I respectfully dissent. Ind.Evidence Rule 80l(d)(1)(A) provides for admissibility, as substantive evidence, of a prior statement that (a) is inconsistent with the declarant's testimony and (b) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.. - Richard Muehe's "prior statement" was inconsistent with his in-court testimony. However, inconsistency alone is not sufficient to render a prior statement admissible as substantive evidence. Miller, 13 Indiana Evidence § 801.4004 (1994 Supplement). The statement also must have been made under oath "at a trial, hearing, or other proceeding, or in a deposition.1 Evid.R. 801(d)(1)(A).
The prior statement given to the Elkhart Police by Richard Muche was not given under oath or under the penalties of perjury. The statement was given orally by Richard Muche and then was typewritten by the Elk-hart Police Department on a form provided by them. The statement began and ended as follows:
My name is Richard Muche and I am at the Elkhart Police Department talking to Det. Posthuma and Lt. Converse. Det. Posthuma has read me my Civil Rights and I have waived these rights and agreed to make this Statement. I am telling the Detective about what has been going on with my daughter (N.M.) ...
This is a true and correct statement to the best of my knowledge and ability.
This statement was not made under oath nor was it made at a trial, hearing, or other proceeding. It is simply inadmissible hearsay under the rules of evidence and should not have been admitted for any purpose.
Richard Muche at trial testified that he did not tell the defendant that he had sexual relations with N.M.
After the alleged sexual conduct with N.M. was over, totally over, I had told Janet ... I didn't tell her that I had sexual relationship with her [N.M.], I didn't tell her that I had intercourse, I told her something had happened and I didn't want any more of it, I wanted to seek counseling. Ah-seek any way out of the situation out of what was happening because I could see what was coming.
I didn't tell Janet we had intercourse. I told Janet that I had feelings, I told Janet that I was getting tired of alot (sic) of *985things, and a lot of it was the abuse of [N.M.].
Record at 117-121.
Therefore, the only evidence that is left to convict the defendant of "knowingly" placing her child in a situation that endangered her life and health is the defendant's confession. Her "confession" was also typewritten by a person from the Elkhart Police Department on a form provided for that purpose. Detective Westlake was asked if "the wording in the statement (was) Janet's herself?"
The wording in the statement is a mixture of our conversation and then before I typed each sentence a discussion was held between us so I understood what she said, and I told her what I was going to type and then I typed it.
Record 139.
However, before the defendant's confession can be admitted, the state must establish the corpus delicti or the fact that the specific crime charged has actually been committed by someone. Swafford v. State (1981), Ind., 421 N.E.2d 596, 604.
Therefore, because Richard's prior statement is inadmissible and his in court testimony failed to corroborate that defendant "knowingly" neglected N.M., the corpus de-lieti has not been proven and the confession of the defendant should not have been admitted into evidence.
There was insufficient evidence to convict the defendant of knowingly placing her child in a situation that endangered her life and health by failing to take steps to cause her husband to cease having sexual intercourse with NM.
. Modesitt v. State (1991), Ind., 578 N.E.2d 649, 653-654, decided September 26, 1991, in which the Indiana Supreme Court adopted Federal Rule 801(d)(1) for use in Indiana courts.