dissenting with opinion.
I respectfully dissent. Although the evidence, admittedly, is not overwhelming with regard to the age of the defendant juvenile, I believe there is sufficient evidence to support the conviction.
At the outset, I note that I agree with the majority’s interpretation of Indiana Code Section 35-42-4-3(b). I further agree that this reading “puts the child molestation statute in harmony with the Indiana statutes proscribing vicarious sexual gratification, sexual conduct in the presence of a minor, child solicitation, child seduction, and sexual misconduct with a minor, all of which require that the offender be older than the child.” Op. at 611 (footnotes omitted). I note, however, that this reading of Indiana Code Section 35-42—4—3(b) creates an inconsistency between that subsection and subsection (a) of the same statute.
Indiana Code Section 35-42-4-3(a) provides: “A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony....” (Emphasis added). In W.C.B. v. State, 855 N.E.2d 1057 (Ind.Ct.App.2006), trans. pending, we observed that Indiana Code Section 35-42-4-3(a) “does not prescribe a minimum age for the perpetrator of the offense.” W.C.B., 855 N.E.2d at 1061. We further held that the statute clearly applies to “a person” who commits the requisite act and that it is not unconstitutionally vague as applied to a child under the age of fourteen. Id. at 1062 (citing Ind.Code § 35-42-4-3(a)). Contrary to our reading of Indiana Code Section 35-42-4-3(b), subsection (a) does *616not require that the defendant be older than the victim.
Because we must give meaning to every word used by the legislature, I assume that the drafters of this statute had a reason for creating different age requirements for these two subsections. Perhaps because sexual intercourse and deviate sexual conduct are more serious actions than fondling or touching, the legislature wanted to give prosecutors the latitude to prosecute all offenders, regardless of their age, pursuant to Indiana Code Section 35-42-4-3(a). To the extent that this inconsistency may have been inadvertent, however, I believe it is important to note it.
As for the sufficiency of the evidence, as the majority notes, both A.C. and A.C.’s step-father testified that C.D.H. is eleven years old. Specifically, A.C. testified that C.D.H. is a “different age” from her, and her step-father testified that he “believe[s] [C.D.HJ’s eleven years old.” Tr. pp. 73, 175. Because the deputy prosecutor inquired about C.D.H’s age by asking how old he is, and because both A.C. and her step-father answered in the present tense, I assume that their answers refer to C.D.H.’s age at the time of his delinquency hearing. A.C.’s mother testified that A.C.’s birthday is April 21, 1994, so at the time of C.D.H.’s November 16, 2004 hearing, A.C. was ten years old. I further note that A.C.’s stepfather testified that his family had known C.D.H. for “a while,” that C.D.H. had been to A.C.’s home to play on “[m]any occasions,” and that “[C.D.H.] was like one, one of the kids of the home” and had spent the night on two occasions. Id. at 213.
I believe that our supreme court’s recent opinion in Staton v. State, 853 N.E.2d 470 (Ind.2006) is instructive here. Staton addressed the sufficiency of the State’s evidence in proving that Staton was at least eighteen years old when he committed sexual misconduct with a minor. The court held that although the State’s evidence was paltry, given the standard of review, it was reasonable for the jury to infer that Staton was at least eighteen.
In Staton, the State’s evidence of age was similar to the evidence of C.D.H.’s age here. In Staton, the fifteen-year-old victim testified that Staton was “older” than she; she “imagined” Staton was four years older; he graduated “a year before [her] sister, so ’03 I’m thinking”; and it was her understanding that Staton was eighteen at the time of the incident. Staton 853 N.E.2d at 474. The victim further testified that her family and Staton’s family had been friendly for a very long time.
The Staton victim’s testimony that Sta-ton was “older” and she “imagined” Staton was four years older than she is very similar to A.C.’s testimony that C.D.H. was a “different” age and A.C.’s step-father’s testimony that he “believed” C.D.H. was eleven. In addition to her specific statements regarding Staton’s age, the victim in Staton, like A.C.’s step-father, testified that she was familiar with Staton and knew him relatively well. Although I recognize that it is not our prerogative to judge a witness’s credibility, it is undeniable that such statements imply the speaker had reliable information about the defendant’s age. I find it meaningful that the Staton court chose to relate that statement in its recitation of the evidence and note that this is yet another way in which the evidence in this case bears a striking resemblance to the evidence in Staton.
Noting the meager evidence of C.D.H.’s age, the majority states, “had either side at trial thought it necessary to introduce evidence of C.D.H.’s age, we have no doubt that side could have produced sufficient evidence to conclusively establish C.D.H.’s age.” Op. at 613. This same argument was rejected by the Staton court:
*617The age of a defendant should be an easy element to prove, and the State could presumably have established it through documentary evidence, other witnesses, or through public records. It is tempting to find that this ease of proof leads to a requirement that the State present conclusive evidence of age. But the ease of proof cuts both ways. Staton offered nothing to rebut E.G.’s testimony. The jury can apply its common sense to this record.
Staton, 853 N.E.2d at 475. Here, the trial court applied its common sense to the record. I find no fatal element flaw.
Finally, I recognize, as does the majority, that the State commented during its closing argument that “the defendant’s only ten,” and during C.D.H.’s sentencing hearing, his probation officer stated, “[C.D.H.] is ten years old.” Op. at 614 (citations omitted). I do not believe that either of these statements affects the sufficiency of the State’s evidence because they were not evidence during C.D.H.’s delinquency hearing. The deputy prosecutor and probation officer may have been imprecise in making such statements, but they do not constitute evidence.
The majority further notes that the trial court referred to C.D.H. as a “ten-year-old,” when it announced its decision. Id. (citation omitted). The sentence to which the majority refers reads, in substantial part: “I believe the mens rae [sic] or the ability for this ten year old and based upon the testimony is, there is some doubt here and I believe the doubt is reasonable that when he walked into that room you better believe he was going in there to touch her.... ” Tr. p. 323-24. The trial court did not enter a finding that C.D.H. was ten years old, and when read in context, there is nothing in the trial court’s statement to suggest that the trial court intended it as such.
I would affirm.