May, J.
J.B. appeals his adjudication as a delinquent child for committing an act that, if committed by an adult, would be Level 4 felony child molesting.1 He raises three issues on appeal but we need address only one: Whether fundamental error resulted from the admission of a videotaped interview of the child victim, A.W., that had been recorded at the Child and Family Advocacy Center (“CFAC”) when: (1) A.W. asserted her Fifth Amendment privilege not to testify at the delinquency hearing; (2) J.B. had no opportunity to cross-examine A.W. about her recorded statement; and (3) that recorded statement, which provided the only proof at trial of the elements of the alleged delinquent act, was not admissible under the hearsay exceptions cited by the State and the trial court. We reverse and remand.
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J.B. asserts the juvenile court erred by admitting into evidence the recording of the CFAC interview.
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The parties agree the CFAC interview contains hearsay. Hearsay is defined as “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Evid. R. 801(c). Herein, the statements A.W. made during the CFAC interview were being offered to prove the delinquency allegation against J.B. and, as such, was hearsay. Hearsay presumptively is excluded from evidence unless its admission is permitted by some other rule or law, Evid. R. 802, such as the exceptions provided within our Evidence Rules. See, e.g., Evid. R. 803 (providing exceptions that apply regardless of whether declarant is available to testify) and Evid. R. 804 (providing exceptions that apply only when the declarant is unavailable to testify).
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The juvenile court’s announced basis for admission of the recording of the CFAC interview was that it constituted former testimony under Evidence Rule 804(b)(1), which makes former testimony admissible when a witness is unavailable for trial.
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Here, however, the CFAC interview of A.W. occurred prior to the filing of the delinquency allegation against J.B., such that J.B. had no opportunity to cross-examination her during that interview. Nor did he have an opportunity to cross-examine her at trial because she asserted her Fifth Amendment right not to testify. Moreover, while A.W. agreed at the beginning of the CFAC interview that she would tell the truth, she was not placed under oath, as she would have been at a deposition or an in-court hearing. See, e.g., Trial Rule 28(A) (requiring deposition be taken by person “authorized to administer oaths”). Accordingly, the juvenile court abused its discretion when it determined the video was admissible as former testimony under Evidence Rule 804(b)(1).
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The State argues on appeal, as it did at trial, that the videotaped interview was admissible under the hearsay exception for a “statement against interest.”
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Assuming arguendo A.W.’s admission of sexual activity with her half-brother sufficiently exposed her to civil or criminal liability,4 the fact remains that her statement implicates both herself and J.B. Evidence Rule 804(b)(3) explicitly provides: “A statement or confession . . . implicating both the declarant and the accused is not within this exception.”
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J.B. asserts his right to due process was violated because, not only was the recorded CFAC interview entered into evidence as inadmissible hearsay, but he also was not afforded an opportunity to cross-examine A.W. regarding the allegation against him.
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Moreover, the recorded CFAC interview was the only evidence that demonstrated the elements of the delinquent act alleged.
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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. See, e.g., Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374 (2004) (“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”) (footnote added). Accordingly, we reverse J.B.’s adjudication as a delinquent child and remand for further proceedings not inconsistent with this opinion.
Fundamental error occurred when a videotaped interview was entered into evidence to prove the commission of a delinquent act, because the State failed to provide a viable exception for the admission of the hearsay contained therein, because J.B. was not provided an opportunity to confront and cross-examine the only witness against him, and because the videotaped interview contained the only evidence of the elements of the delinquent act alleged. Accordingly, we reverse and remand.
Reversed and remanded.
Crone, J., and Weissmann, J., concur.