Mathias, J.
In VanPatten v. State, 986 N.E.2d 255, 265-67 (Ind. 2013), our Supreme Court held that there must be affirmative evidence in the record that a young child understands “the role of [a] medical professional and the purpose of [her] visit” with the professional “in order for us to infer that the child was motivated to speak truthfully” to that professional for the purposes of medical diagnosis or treatment. Here, a five-year-old child, N.W., made statements to a medical professional that were incriminating toward her grandfather, David C. Wanke, Sr., which statements the trial court admitted into evidence over Wanke’s hearsay objection. However, as in VanPatten, here there is no affirmative evidence in the record to show that N.W. understood the role of the nurse to whom she spoke or the need to speak truthfully to that nurse for the purpose of medical diagnosis or treatment. Accordingly, following our Supreme Court’s clear precedent, we reverse Wanke’s conviction for Level 1 felony child molesting and his adjudication as a habitual offender, and we remand for further proceedings consistent with this opinion.
…..
1. The trial court erred when it permitted Nurse Benson to testify to N.W.’s out-of-court statements.
….
To have an out-of-court statement to a medical professional admitted into evidence under Rule 803(4), the State must first show that “the declarant [was] motivated to provide truthful information in order to promote diagnosis [or] treatment.”…
But more is required when the declarant is “a young child brought to the medical provider by a parent.” Id. at 261. As our Supreme Court has made clear:
young children may not understand the nature of the examination, the function of the examiner, and may not necessarily make the necessary link between truthful responses and accurate medical treatment. In that circumstance, there must be evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information. This evidence does not necessarily require testimony from the child-declarant; it may be received in the form of foundational testimony from the medical professional detailing the interaction between him or her and the declarant, how he or she explained his role to the declarant, and an affirmation that the declarant understood that role. But whatever its source, this foundation must be present and sufficient.
Id. (cleaned up; emphases added).
….
We conclude that VanPatten is controlling authority on this record. The State established no record at all as to whether N.W. understood Nurse Benson’s role or the role of nurses or doctors in general. Nor is there testimony from any witness concerning past experiences N.W. may have had at medical facilities or with medical providers from which one may be able to infer that a five-year-old child understood why she was being examined. And Nurse Benson, while testifying to her usual routine in cases such as this, provided no testimony that N.W. in particular, and on this occasion, understood Nurse Benson’s role or the importance of being truthful to Nurse Benson for the purpose of diagnosis or treatment.
As in VanPatten, “[s]imply put, there is no evidence that the declarant understood the professional’s role in order to trigger the motivation to provide truthful information” under Rule 803(4). Id. at 267 (quotation marks omitted). Therefore, the trial court abused its discretion when it admitted N.W.’s statements to Nurse Benson under that exception to the prohibition against hearsay.
2. Nurse Benson’s testimony had a significant probable impact on the outcome of the trial, and, thus, the error in the admission of that testimony is not harmless.
….
3. Retrial is not prohibited.
Finally, where, as here, the trial court erroneously admits improper evidence into the record and the error is not harmless, retrial of the defendant is not barred by double jeopardy if the admitted evidence in the first trial was sufficient to support the conviction. Gaby v. State, 949 N.E.2d 870, 882 (Ind. Ct. App. 2011).
….
Conclusion
For all of the above-stated stated reasons, we reverse Wanke’s conviction for Level 1 felony child molesting and his adjudication as a habitual offender, and we remand for further proceedings consistent with this opinion.
Reversed and remanded.
Tavitas, J., and Weissmann, J., concur.