[¶ 1] Lаnce E. Hirschkorn appealed from a criminal judgment entered on a jury verdict finding him guilty of class B felony gross sexual imposition for engaging in sexual contact with a female under the age of 15 years. We conclude the trial court abused its discretion in admitting the child’s hearsay statements about sexual abuse into evidence because the prosecutor failed to sаtisfy the foundational requirements for admitting the statements under N.D.R.Ev. 803(24). We further conclude admission of the evidence was obvious error affecting Hirschkorn’s substantial rights under N.D.R.Crim.P. 52(b), and we reverse and remand for a new trial.
I
[¶ 2] On October 21, 1999, a mother was with her children in their home when she discovered her five-year old daughter in a bedroom with her pants pulled down and a Ken doll between her legs. When the mother asked her daughter what she was doing, the daughter told her “Uncle Lance told me not to tell.” The mother called “Ask-A-Nurse” for assistance, and was told the information would be reported to the Burleigh County Sheriffs Department. Deputy Sheriff Gary Schaffer contacted the mother and arranged a meeting with Deb Osowski, a forensic interviewer at a Bismarck child advocacy center. During Osowski’s October 27, 1999 interview with the child, the child indicated “Uncle Lance” had touched her “privates” in his bedroom at her grandmother’s ranch near Wing. Lance Hirsch-korn lives with his mother near Wing and is the younger brother of the child’s father, who is divorced from the mother.
[¶ 3] On October 29, 1999, law enforcement officers obtained a warrant to search Hirschkorn’s residence, seized videotapes from his bedroom, and arrested Hirsch- *442 korn. Hirschkorn was interviewed by Schaffer upon his arrival at the Sheriffs Department, and answered “I guess” or “I suppose” to questions tending to implicate him in having had sexual contact with the child. Hirschkorn was charged with gross sexual imposition in violation of N.D.C.C. § 12.1 — 20—03(2) (a).
[¶ 4] On September 13, 2000, eight days before trial, the State moved under N.D.R.Ev. 803(24) to allow hearsay statements of the child admitted into evidence. Following a hearing on September 19, 2000, the trial court granted the motion, ruling the mother and Osowski could testify about statements the child had made to them about sexual abuse. The child testified at trial, but did not remember anyone touching her in a “bad place.” The mother and Osowski testified about what the child had told them, but the trial court did nоt allow admission of a videotape of Osowski’s interview with the child into evidence. Schaffer also testified, and an audiotape of his interview with Hirschkorn was played for the jury. Hirschkorn, his mother, and the child’s father were called to testify by the defense. The jury returned a guilty verdict, and Hirschkorn was sentenced to ten years imprisonment, with seven years suspended.
II
[¶ 5] On appeal, Hirsсhkorn argues the trial court erred in granting the State’s motion to allow the child’s hearsay statements into evidence and in allowing Schaf-fer and Osowski to testify about the truthfulness of statements made to them.
[¶ 6] At trial, Hirschkorn did not make a hearsay objection to the testimony of the mother and Osowski about what the child told them. In
State v. Wiest,
[¶ 7] The applicable legal rule in this case is N.D.R.Ev. 803(24):
Child’s statement about sexual abuse. An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
We apply the abuse of discretion standard of review to a trial court’s evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse unless the trial court acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law.
State v. Messner,
*443 [¶8] Hirschkorn first argues the State’s motion was untimely because it was made only eight days before trial and he received less than 24 hours notice of the hearing on the motion. Hirschkorn claims he was prejudiced by the untimely notice because he had no time to serve subpoenas on witnesses to testify at the hearing and his defense counsel had inadequate time to prepare.
[¶ 9] Rule 803(24)(a), N.D.R.Ev., does not specify a deadline for bringing a motion to admit a child’s statement about sexual abuse, but merely requires that a hearing be held “upon notice in аdvance of the trial of the sexual abuse issue.” Most courts have adopted a flexible approach to the similar notice requirement under the residual exception to the hearsay rule.
See
5 J. McLaughlin,
Weinstein’s Federal Evidence
§ 807.04[2] (2nd ed.2001); N.D.R.Ev. 807. Here, Hirsch-korn’s major complaint about the timeliness of the notice is unfair surprise. The proper remedy for unfair surprise is a continuance.
State v. Gross,
[¶ 10] Hirschkorn also argues the State failed to establish a legal foundation for thе use of the child’s hearsay statements. Although this Court discussed N.D.R.Ev. 803(24) in
Messner,
[¶ 11] Enactment of child-hearsay rules is intended to ensure that child abusers do not go free merely because the prosecutor is unable to obtain witnesses to the abuse other than the child, who is unable to testify about the abuse.
Stevens v. People,
[¶ 12] Although witness testimony is often given at hearings conducted under the child-hearsay rule, courts have ruled a determination that a witness’s testimony contains sufficient indicia of reliability and guarantees of trustworthiness can be made without a hearing at which witnesses testify.
See Juvenile Court,
[¶ 13] Under N.D.R.Ev. 803(24)(a), the child’s hearsay statements are not admissible unless the trial court finds that “the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.” Factors to consider include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate.
Messner,
[¶ 14] During the hearing in this case, the prosecutor informed the court the child was five years old when she was interviewed by Osowski and the videotape of the interview was provided to defense counsel. The prosecutor told the court the Messner case was “factually very similar to this case,” explained that only Osowski and the child were present during the interview, and related Osowski’s qualifications as a forensic interviewer. The following exchange then occurred:
THE COURT: So what statements are you asking to be admitted?
MS. FELAND: The statement the child makes to the interviewer in relation to what happened to her; who touched her, where she was touched, where it happened at, whether or not it was below or above clothing, and details about the incident itself. In addition, I am asking that the statements of the mother be allowed as to how this came to light. The mother basically observed the child engaged in sexual role playing with a Ken doll and asked the child some questions and the child gave some initial responses. The mother did not get any great detail, but it shows consistencies in the type of contact that the child references both to the mother and forensic interviewer.
THE COURT: You are asking for the statements made to the forensic interviewer be admitted?
MS. FELAND: For the statements made to the forensic interviewer and those are admitted on the videotape of *445 the child. In addition, I am asking that the statements the child madе to the mother that led to the report roughly on October 21st be admitted. Those are outlined in the 960 report as well as a written statement that was provided by the mother to law enforcement. Both of those statements were provided to the defense at the time discovery was initially requested in this case.
[¶ 15] Defense counsel objected that there was an inadequаte record for the court to make the findings required by the rule and argued the child’s statements given to Osowski during the interview contained “four material misstatements of fact.” After the subject of the hearing-shifted to other pretrial matters, the prosecutor continued:
As I said, this is very similar to the Messner case as to the facts. In that case there is a social worker and in this case a forensic interviewer, not like just statements made to some guy as parties to the proceeding. These are made basically to the equivalent of a law enforcement type professional, someone who does this for a living. Clearly shows reliability and I would ask the Court to admit the same.
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THE COURT: ALL right.... As to the motion to allow hearsay regarding the child’s statement about sexual abuse, from the information I have here today, it appears that just the statement made to the interviewer — at this point you are asking about the mother’s statements also, is that correct?
MS. FELAND: Yes.
THE COURT: About what the child told her?
MS. FELAND: And those would be, those were provided to the defense. Both in the 960 report it indicates that the mother said this is what the child told her, and there is also a written report that the mother provided to law enforcement and included in discovery and when I saw and observed this. I asked the child where she learned this or seen this. And it would be strictly limited to those statements. Nothing outside of the statements that have already been provided to the defense.
THE COURT: There may be statements provided to the defense, but what’s the guarantee of the trustworthiness?
MS. FELAND: Basically again look at the time, content. The time again is in close proximity to when this occurred. The content is consistent with the information that was provided to the forensic interviewer. It’s not like getting inconsistent statements here. The child’s mother has basically had no other discussions with the child in any manner regarding this with the exception of the initial conversation which led up to this report.
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THE COURT: Okay. As far as the statements arе concerned under Rule 803, based on the information they have here today, it appears that there are sufficient guarantees of trustworthiness regarding time, content and circumstances and the Court would allow those statements....
[¶ 16] Although apparently provided to defense counsel, the videotape of the Osowski interview, the mother’s report to law enforcement, and the “960 report” were not admitted in evidence, do not appear in the record, and were not reviewed by the trial court. 1
*446
[¶ 17] The trial court’s admissibility evaluation failed to comply with the requirements of N.D.R.Ev. 803(24) in several respects. The court did not even know the verbatim content of the out-of-court statements so an evaluation of their reliability could be mаde.
See State v. Reiners,
[¶ 18] A trial court must make an in-depth evaluation of the proposed testimony.
Nelson,
The text of section 13-25-129 also contemplates that the trial court’s ruling, which obviously will affect the trial preparation of the party adversely affected by the ruling, will be based solely оn those matters presented to the court at the in-limine hearing. Indeed, if this were not the legislative intent, the in-limine hearing would serve no purpose at all and there would be no reason for mandating it by statute.
[¶ 19] We conclude the trial court abused its discretion in admitting the child’s hearsay statements into evidence. Because the prosecutor’s motion was so lacking in factual support, we further conclude the error is plain because it is “a clear or obvious deviation from an applicable legal rule ...”
Olander,
[¶ 20] To affect substantial rights, a plain error must have been prejudicial, or have affected the outcome of the proceeding.
State v. Erickstad,
[¶ 21] In this case, credibility was a crucial issue. There were neither eyewitnesses nor direct physical evidence in the form of a physical examination conducted on the child. The child testified and could not remember anyone touching her in a “bad place.” Hirschkorn testified and denied touching the child’s vagina. Although the jury heard the audiotape of Schaffer’s interview with Hirschkorn in which Hirschkorn answers “I guess” or “I suppose” to questions tending to implicate him in the crime, Schaffer described Hirsch-korn’s responses as “subtle admissions.” Hirschkorn testified about the circumstances surrounding the interview. Hirschkorn, who was 23 years old at the time of trial, testified he “just [went] along” with what Schaffer was telling him because he assumed the sexual contact must have оccurred accidentally while “wrestling ... or horsing around” with the child. Hirschkorn further testified he was “scared” and “wanted to get out of the interview room.” The only other evidence directly linking Hirschkorn with committing the crime was the inadmissible hearsay testimony of the mother and Osowski about what the child had told them. On this record, we conclude it is probable the inadmissible hearsay testimony affected the outcome of the proceedings.
[¶ 22] Even if the defendant meets the burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within our discretion, and we will exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Miller,
[¶ 23] Because the child-hearsay issue is dispositive of this appeal, it is unnecessary to address the other issues raised by Hirschkorn.
See State v. Flamm,
Ill
[¶ 24] The criminal judgment is reversed and the case is remanded for a new trial.
Notes
. In an in-chambers conference on the morning of the trial, the trial court ruled the jury *446 would not be allowed to watch the videotape of the Osowski interview, explaining "I have not seen this video. I don’t know what is on it. I have no idea what is on it, so I wouldn't let it come in.”