BARNES, J.
On December 3, 2009, the State alleged that D.G. was a delinquent child for committing what would be Class B felony child molesting and Class C felony child molesting if committed by an adult. On April 14, 2010, the trial court held a fact-finding hearing. At the hearing, when A.S. was called as a witness, the prosecutor requested that her father be permitted to stand near her because she was blind and very scared. Defense counsel did not object and explained that he would speak up if he thought A.S. was being coached. Immediately after A.S. was sworn in and stated her name, defense counsel objected and a sidebar was conducted. This discussion was not recorded. At the conclusion of the sidebar, defense counsel thanked the trial court and the trial court instructed the prosecutor to continue. A.S. then testified without any assessment of her competency. At the conclusion of the hearing, the trial court entered a true finding on the Class B felony allegation and a not true finding on the Class C felony allegation.
D.G. argues that the trial court improperly admitted A.S.’s testimony without determining whether she was competent to testify. As an initial matter, we must decide whether the issue was properly preserved. It is undisputed that the nature of D.G.’s initial objection was not recorded and could not be adequately recreated. The State argues D.G. “has waived his claim that A.S. was not a competent witness because the record does not show that he ever objected on this basis in the juvenile court.” . . . The State asserts that defense counsel’s objection could have been related to some sort of perceived coaching by A.S.’s father. The State asserts that, in light of the waiver, D.G. must show that this issue rises to the level of fundamental error.
In reviewing a post-conviction relief proceeding addressing the issue of unrecorded bench conferences during trial, our supreme court stated:
The lack of bench conference records certainly suggests that a reviewing court should take an appropriately liberal approach to issues that might otherwise be considered waived at trial for lack of either objection or argument. It also justifies giving [the petitioner] the benefit of the doubt in speculating about what may have been discussed during any of the unrecorded sidebars.
Ben-Yisrayl v. State, 753 N.E.2d 649, 661 (Ind. 2001), cert. denied, 536 U.S. 918, 122 S. Ct. 2382; see also Steinberg v. State, 941 N.E.2d 515, 530-31 (Ind. Ct. App. 2011) (“Because the record is silent on this point through no fault of Steinberg, and given our oft-stated preference for deciding issues on their merits, we will assume for purposes of this appeal that the issue has been preserved and address Steinberg’s argument”), trans. denied.
With this in mind, we take the appropriate approach to the issue of waiver and give D.G. the benefit of the doubt as to what may have been discussed during the unrecorded sidebar. Neither the State nor the trial court could say definitively that D.G. did not object to A.S.’s competency. Because the failure to record the sidebar was not D.G.’s fault, we cannot agree with the State that the issue is waived. As such, we assume that D.G. raised the issue of A.S.’s competency and address his claim on the merits.
Indiana Evidence Rule 601 provides, “Every person is competent to be a witness except as otherwise provided by these rules or by act of the Indiana General Assembly.” “A child’s competency to testify at trial is established by demonstrating that he or she (1) understands the difference between telling a lie and telling the truth, (2) knows he or she is under a compulsion to tell the truth, and (3) knows what a true statement actually is.” . . . .
Here, neither the trial court nor counsel conducted any inquiry as to whether A.S. understood the difference between telling a lie and telling the truth, knew she was under a compulsion to tell the truth, or actually knew what a true statement was. Given our assumption that D.G. raised the issue during the unrecorded sidebar, the failure to assess A.S.’s competency was error.
We now must consider whether this error is harmless. See Russell v. State, 540 N.E.2d 1222, 1225 (Ind. 1989) (holding that trial court’s refusal to question the child witness regarding her understanding of the truth or to permit defense counsel the opportunity to question the witness was harmless error where subsequent proof at trial supplied the missing element of the preliminary determination that the witness was competent to testify). The State contends that A.S. demonstrated she knew the difference between the truth and a lie when she acknowledged her earlier testimony that a prosecutor had promised her a harp was not true and she had only been promised gum. We believe this is an oversimplification of A.S.’s testimony. On cross-examination, defense counsel questioned A.S. as follows:
Q And what do you. . . What present did she offer you?
A I don’t remember.
Q Was it chewing gum, or ice cream, or something?
A Chewing gum.
Q Okay. So they said when you’re done today they’ll give you some gun [sic]?
A Yeah. 7
Q Is that a yes? I can’t hear you sweetie.
A Yes.
Q Okay. And did they promise you anything else?
A Yeah.
Q What else they gonna give you?
A Toy.
Q They’re gonna give you a toy. Okay. Did they. . . Have you told them what kind of toy yet?
A Yeah.
Q What are you gonna get?
A A harp.
Tr. pp. 25-26. On re-direct examination the State clarified:
Q [A.S.], earlier you said that Kristen promised you a harp? That’s not true is it?
A Mm mm.
Q She didn’t promise you anything?
A (laughing)
Q Were you just being silly?
A Yeah.
Id. at 43. On re-cross-examination, defense counsel asked:
Q [A.S.] did Kristen at least promise you some gum?
A Yes.
Q Yes. Anything else she promised you? 8
A That was it.
Id. at 45. Taking this exchange along with A.S.’s testimony describing the size of D.G.’s tummy, someone urinating on the floor, D.G. wearing roller skates that day, and to whom she initially reported the allegations, we question the veracity of A.S.’s testimony. We are not convinced that the trial court’s failure to assess A.S.’s competency was harmless error.
The State claims that if we find the trial court was required to establish A.S.’s competency, [footnote omitted] the proper remedy is to remand for a hearing at which the trial court can make the competency inquiry. The State asserts that, if A.S. is found to be incompetent, then D.G. is entitled to a new fact-finding hearing. According to the State, if A.S. is found to be competent, “there would be no problem with her having testified at the earlier proceeding, and she should not be made to go through the trauma of testifying about her molestation a second time at another delinquency hearing.” . . . This proposed remedy, however, is inadequate because it does not account for the fact that nearly a year has passed since the April 2010 fact-finding hearing. Given A.S.’s youth, her ability to appreciate the difference between the truth and a lie today is irrelevant to whether she could do so a year ago. Because an after-the-fact assessment of A.S.’s competency is not an adequate remedy, we reverse the true finding.3 [3This case is unique in that we are asked to address a question of legal error after D.G. successfully completed probation and was discharged by the trial court. Thus, theoretically, the rehabilitative goals of the juvenile process have been achieved, leaving us to wonder what goals would be served by conducting a second fact-finding hearing. Nevertheless, because neither party raises the issue on appeal, we reserve the resolution of this question for another day.]
RILEY, J., and DARDEN, J., concur.