COA reverses child molesting delinquency adjudication for hearsay

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A trial court committed fundamental error when it allowed a videotaped interview to be entered into evidence in a delinquency case against a 15-year-old boy, the Court of Appeals of Indiana has ruled.

The Court of Appeals’ unanimous ruling in J.B. v. State of Indiana, 22A-JV-612, reverses the adjudication of the teen.

Appellant-respondent J.B. had been adjudicated as a delinquent child for committing an act that, if committed by an adult, would be Level 4 felony child molesting. The original case was heard in Elkhart Circuit Court.

J.B. and his half-sister, A.W., had been living with their grandmother in early 2021 when A.W. told her grandmother that she’d had inappropriate but nonforced sexual contact with J.B.

During a videotaped interview arranged by the Department of Child Services, A.W. disclosed details of sexual contact between herself and J.B., and the state then filed a delinquency petition against J.B.

Shortly after, A.W. wrote a letter in which she said she had been “in a broken mental State” when she had made the previous statement about her brother, and that the statement “was wrong and uncalled For to make.”

During J.B.’s delinquency hearing, he testified that A.W.’s statements during the videotaped interview were not true and that he had neither touched his sister on her private parts nor had her touch him to arouse him sexually.

The juvenile court admitted A.W.’s recorded interview into evidence, over a general objection from J.B. The court also admitted A.W.’s letter.

A.W. did not testify at the hearing because she had invoked her Fifth Amendment right not to do so.

After declaring J.B. a delinquent child, the court placed him on supervised probation, which was to be transferred to Florida, where J.B. had begun living with his father.

In appealing the adjudication, J.B. argued the juvenile court erred in admitting A.W.’s videotaped interview into evidence because her statements constituted hearsay.

The juvenile court had admitted the interview under a hearsay exception, classifying the interview as former testimony. But the Court of Appeals disagreed, saying the interview could not be considered testimony because A.W. had not been under oath during the interview.

The appeals court also noted J.B. had not had the opportunity to cross-examine A.W. because she had asserted her Fifth Amendment right not to testify at the hearing.

“Under the circumstances herein, where a videotaped interview of the child victim was entered into evidence erroneously because it did not meet the cited exceptions to the rule against hearsay, where J.B. had no right to confront the child victim, and where the record contains no other evidence of the elements of the alleged delinquent act, we hold the admission of the videotaped interview constituted fundamental error,” the Court of Appeals wrote.

The appellate court thus reversed and remanded the case for further proceedings.

The opinion was written by Judge Melissa May, with judges Terry Crone and Leanna Weissmann concurring.

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