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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JOEL M. SCHUMM Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
L.H., Appellant-Respondent, vs. STATE OF INDIANA, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 49A04-0701-JV-45

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn Moores, Judge The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-0608-JD-3208

December 27, 2007

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issue L.H. was found by the juvenile court to have committed child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. L.H. appeals the true findings, contending that he was denied a fair trial when the juvenile court, at the State's request and over his objection, incorporated testimony, evidence, and exhibits from a child hearsay hearing into the fact-finding hearing. Concluding that the juvenile court improperly incorporated the record of the child hearsay hearing, we reverse and remand. Facts and Procedural History In August 2006, eight-year-old A.H. told her mother that for approximately the past four years, her cousin, twelve-year-old L.H., had been touching her inappropriately. A.H.'s mother took A.H. to the Child Advocacy Center where Lynette Garcia conducted a videotaped interview with A.H. about these allegations. The State subsequently filed a delinquency petition alleging that L.H. had committed child molesting and battery on A.H. on or between February 2002 and August 2006. An initial hearing was held on August 28, 2006, at which time L.H. denied the allegations of the petition. A fact-finding hearing was ultimately scheduled for November 2, 2006. Prior to the fact-finding hearing, the State filed a Child Hearsay Notice, notifying L.H. of its intent to introduce certain out-of-court statements made by A.H., including those made to Garcia during the videotaped interview, and requesting a hearing for determining the admissibility of the statements pursuant to Indiana Code section 35-37-4-6. A hearing was held on November 2, 2006. The State questioned A.H., A.H.'s mother, 2

and Garcia, with L.H. having the opportunity to cross-examine each witness. Four exhibits, including two illustrations, the videotaped interview, and a transcript of the interview, were admitted into evidence by the State. At several points during the presentation of evidence, both the State and L.H. referred to the proceeding as a child hearsay hearing. See Transcript at 46 (State objecting to L.H.'s questioning of A.H., stating "I know this is a child hearsay hearing . . . "); id. at 47 (L.H. responding to the State's objection, stating "[I]t's a pretrial hearing . . . right now"); id. at 71-72 (with respect to the playing of the videotape, L.H. stating "for purposes of the child hearsay portion of this hearing, I have no objection to it. At this point I'm not . . . agreeing to its admission for the trial . . ." and the juvenile court responding, "[t]hat was the only motion was that it will be admitted for purposes of this"). After A.H., A.H.'s mother, and Garcia had testified, the State rested "with respect to the child hearsay portion of the trial." Id. at 78. L.H. indicated he wanted to call a witness but needed to step out of the courtroom to find him. The State asked, "Is this for the child hearsay portion?" Id. L.H. replied it was, but then was unable to locate his witness. The juvenile court then asked for argument, and the State moved "for the admissibility of the hearsay statements that have been shown before the Court." Id. at 79. The State also moved "to incorporate all the testimony, as well as the evidence that has been entered into State's case in chief." Id. L.H. objected to both of the State's motions. With respect to the admission of the videotape, L.H. argued that the State had not shown that the hearsay statements bore sufficient indications of reliability to be admitted into evidence. With respect to incorporating the evidence, L.H. stated: I object to the State's motion to incorporate. If the parties were in agreement 3

to that, I could, that would be all right but with respect to incorporating pretrial testimony into the trial itself, we object to that. We don't agree to that and the statute certainly gives us an opportunity once the Court's made its ruling with respect to where the hearsay

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