¶1dissenting.
¶2I respectfully dissent.
¶3The trial court erred in admitting both the testimony of the foster parent, Olene Gutierrez, under the spontaneous statement exception to the hearsay rule, See Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), and the testimony of Dr. Kearl, that repeated the child’s identification of the perpetrator to him, under the statement made for the purpose of medical diagnosis or treatment exception to the hearsay rule, See Fed.R.Evid. 803(4); United States v. Renville, 779 F.2d 430 (8th Cir.1985); Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990).
¶4The spontaneous statement exception to hearsay admits extrajudicial statements made in response to a startling occurrence or event if they are spontaneous, relate to the startling occurrence or event, and consist of data that would be competent evidence if presented as testimony by the declarant. Mounce v. Commonwealth, Ky., 795 S.W.2d 375 (1990), quoting R. Lawson, Kentucky Evidence Law Handbook, 8.60(a) (2d ed. 1984). Whether a particular statement qualifies as a “spontaneous utterance depends upon the particular circumstances in each case.” Consolidated Coach Corp. v. Earl’s Adm’r, 263 Ky. 814, 94 S.W.2d 6, 8 (1936).
¶5The theory behind this exception is that circumstances produce a condition of excitement which temporarily suspends the declarant’s capacity to reflect, and thus basically eliminates the possibility that the declarant is fabricating his statement. Preston v. Commonwealth, Ky., 406 S.W.2d 398, 401 (1966), cert. denied, 386 U.S. 920, 87 S.Ct. 886, 17 L.Ed.2d 792 (1967), quoting 6 J Wigmore on Evidence, § 1747 at 135 (1976). Spontaneity, thus, is of primary importance in determining whether a statement under this hearsay rule exception is admissible because if the declarant is under the shock of the event, and his nervous excitement has not elapsed, reliability of the statement is more assured. See Preston, supra 406 S.W.2d at 401. “[SJpontaneity is the principal, and often the only, guarantee of trustworthiness [for this exception, and] its absence should result in the exclusion of the statement,” J. Strong, McCormick on Evidence, § 270, Vol. 2 (4th ed. 1992).
¶6While no bright line rule exists to define whether a statement was indeed “spontaneous,” this determination should be made by examining in each case:
(1) lapse of time between the main act and the declaration, (2) the opportunity or likelihood of fabrication, (3) the inducement to fabrication, (4) the actual excitement of the declarant, (5) the place of the declaration, (6) the presence there of visible results of the act or occurrence to which the utterance relates, (7) whether the utterance was made in response to a question, and (8) whether the declaration was against interest or self-serving. Souder, supra, at 733.
¶7The hearsay statement made by the boy to Ms. Gutierrez, in which he identified the perpetrator, was not spontaneous, for it was not made near the time of the occurrence, nor do circumstances surrounding its communication to the foster parent, infer its spontaneity. While the child’s last unsupervised visit with his grandmother, Martha Lowry, occurred on November 21, 1989, Ms. Gutierrez on cross-examination stated that the boy, on December 13, 1989, finally identified “Paul” as the perpetrator. Thus the statement, “Paul hurt my butt” cannot be characterized as a spontaneous statement, since almost three weeks elapsed between the possible “startling event,” and the boy relating the occurrence to Ms. Gutierrez.
¶8Lapse of time between the startling event and the out-of-court statement is not fully dispositive in determining whether a statement falls within this hearsay exception, but the fact that such statements are relayed at the child’s first opportunity to speak, contributes to their trustworthiness. Trustworthiness is to be inferred in this situation, because it is argued, there is less likelihood of fabrication. Here, the child had ample opportunity to communicate with his foster parent, well before the time that he identified appellant as the perpetrator. Such a time lapse between the star*847tling event and communication of it by the boy, infers “the opportunity or likelihood of fabrication” as identified in Souder, supra,for the “first opportunity” for the child to speak was not utilized.
¶9I thus conclude that circumstances surrounding the boy’s statement to Ms. Guiti-errez were too remote and unreliable to fit within the spontaneous statement exception to the hearsay rule; this evidence therefore, was impermissibly introduced against the appellant.
¶10Likewise, the trial court erred in admitting the portion of Dr. Kearl’s testimony, relating that the boy identified the appellant as the perpetrator. While Drumm, supra,recognizes the exception to the hearsay rule that admits statements made for the purpose of diagnosis or treatment, the segment of Dr. Kearl’s statement, relating the identification of appellant as the abuser, is not pertinent to diagnosis or treatment.
¶11Reliability of statements made for the purpose of diagnosis or treatment is based on the theory that the patient believes his accurate report to the physician of his condition is essential to his receiving medical treatment. J. Strong, McCormick on Evidence, § 277, supra. Thus while a description of cause is admissible as medically pertinent under this hearsay rule exception, statements of fault, which include identifying the perpetrator of the condition, will unlikely qualify within its purview. Id.; C.J.S., Evidence, § 246(b); Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257, 258 (1989).
¶12This Court, in Souder, supra at 735, when it reviewed whether medical records were admissible as “important to an effective diagnosis or treatment,” noted that the medical records hearsay rule exception:
does [not] usually include information identifying the name of the wrongdoer because normally the name of the wrongdoer is not essential to treatment.
¶13Reliance by the majority opinion on the exception to the hearsay rule that admits statements of identity of the perpetrator made to a physician, as found in United States v. Renville, supra,is misplaced, for the case at bar is factually distinguishable. In United States v. Renville, supra,as the majority notes, statements of identity were relevant to medical treatment because: (1) the physician was not merely diagnosing and treating the child for physical injuries, but was also treating the child’s psychological injuries, and (2) the abuser was a family, household member.
¶14The court in Renville, supra at 436, applied Fed.R.Evid. 803(4) and allowed statements of the young victim of sexual abuse, to identify the perpetrator, by applying a two-part test found in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981), that consists of:
(1) the declarant’s motive in making the statement must be consistent with the purpose of promoting treatment, and
(2) the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.
¶15Dr. Kearl, unlike the physician in Renville, supra,only performed an examination in order to make a diagnosis of the child’s physical condition, while the physician in Renville, supra,examined and treated the child for its physical and psychological condition. Dr. Kearl’s testimony, relating the “patient’s history,” fails to show how he relied on the abuser’s identity in diagnosis or treatment. Neither does the record reveal how identity of the abuser was important in protecting the child from future harm, because unlike the facts in Renville, supra,the child was no longer “at risk” for he did not live with his grandmother, nor was he subject to any more unsupervised visitation with his grandmother, the scenario that initially exposed the child to the appellant.
¶16The trial court improperly admitted the portion of Dr. Kearl’s testimony that contained the victim’s statement identifying the abuser, because it was neither used in treating the child’s physical condition, nor was it made by the child to receive treatment for his physical condition.
¶17*848For the reasons thus stated, I would reverse appellant’s conviction and remand the case to the trial court for consideration in conformity with this dissent.
¶18LEIBSON, J., joins in this dissent.