¶34 (dissenting) — The majority holds Arthur Dixon failed to provide evidence “ ‘sufficient to support’ ” the fact that N.D. had been discussing Dixon’s molestation charges when she asked her aunt, Amber Hansen, “[W]hat do I do if I’m lying!?]” Majority at 78 (quoting State v. Karpenski, 94 Wn. App. 80, 102, 971 P.2d 553 (1999)); 4 Report of Proceedings (RP) at 489. Accordingly, the majority upheld the trial court’s determination that Hansen’s testi*82mony was “too speculative and therefore not relevant” under ER 104(b). Majority at 79. I disagree.
Sanders, J.*82¶35 Hansen’s testimony is not irrelevant because viewed in a light most favorable to Dixon it is entirely plausible for the jury to infer N.D.’s statement, “[W]hat do I do if I’m lying[?]” referenced Dixon’s alleged molestation. And when considering preliminary questions related to relevance, the trial court may not reject evidence or inferences favorable to the proponent. Karpenski, 94 Wn. App. at 103 n.101.
¶36 Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401 (emphasis added). The threshold for relevancy is low. Bell v. State, 147 Wn.2d 166, 182, 52 P.3d 503 (2002). “When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” ER 104(b).3 In other words, “ ‘[t]he judge requires the proponent to bring forward evidence from which the jury could find the existence of the preliminary fact. The opposing party may then bring in disputing evidence. If on all the evidence the judge determines that the jury could not find the existence of the preliminary fact, *83he excludes the evidence. Otherwise, the question is for the jury.’ ” Kosmas v. State, 316 Md. 587, 601, 560 A.2d 1137 (1989) (quoting McCormick on Evidence § 53, at 137 (Edward W. Cleary ed., 3d ed. 1984)); see also Kosmas, 316 Md. at 601 (“ ‘The judge must determine that a reasonable jury could make the requisite factual determination based on the evidence before it.’ ” (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence § 104[09] (1988))).
¶37 N.D.’s aunt who witnessed the question believed N.D. was discussing her father. It is therefore plausible a jury could reach the same conclusion.
Q: (Defense counsel) And what was [N.D.] talking about?
A: (Hansen) She was talking about her dad or at least that’s
what I got out of it.
Q: Had you been talking about her father?
A: Yes.
4 RP at 489.
¶38 Judge C.C. Bridgewater’s dissent from the Court of Appeals decision below correctly determines a reasonable jury could reach such a conclusion after inferring from N.D.’s statement,
“1. A lie had been told.
“2. By [N.D.] (she was asking about herself, and not asking for another).
“3. The lie related to whether the molestation occurred, not to lies about breaking things.”
State v. Dixon, noted at 118 Wn. App. 1005, 2003 Wash. App. LEXIS 1770, at *17 (2003) (unpublished opinion) (Bridgewater, J., dissenting). N.D.’s use of the first person suggests she was talking about herself as having told the lie. Her comment, “phrased in the past tense, that it had ‘gone too far’ suggests both that N.D. was talking about an actual, past lie and that the lie was about a serious matter capable of‘go[ing] too far.’ ” Id. at *17 (alteration in original) (quoting 4 RP at 489). Furthermore, N.D. posed the question shortly after Hansen and N.D.’s mother discussed *84Dixon in N.D.’s presence. 4 RP at 489. In a light most favorable to Dixon, this evidence and resulting inferences reasonably connect N.D.’s he to Dixon’s alleged molestation. Dixon, 2003 Wash. App. LEXIS 1770, at *17-18.
¶39 In support of its position, the majority states, “the trial court concluded that [Hansen] had failed to confirm that N.D.’s question about lying concerned the molestation allegations.” Majority at 77. But the trial court’s analysis was incorrect; Hansen did not need to confirm N.D.’s question about lying concerned the molestation allegations; the court needed merely to find “evidence sufficient to support a finding of the fulfillment of the condition.” ER 104(b) (emphasis added).4 And here, the evidence was sufficient to support such a finding.5
¶40 Even after “conditionally relevant” evidence is admitted, a jury must weigh its value and probative force to determine the ultimate question: whether Dixon molested N.D. See State v. Red, 409 N.W.2d 99, 106 (N.D. 1987) (“ ‘Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent’s proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted. [ER 104(b)] requires only that the court admit evidence if sufficient proof has been introduced so that a *85reasonable juror could find in favor of authenticity or identification. The rest is up to the jury.’ ” (quoting 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 901(a)[01], at 901-16 to -18 (1983))). In the end, the jury may find the evidence so overwhelmingly indicative of abuse that N.D.’s question could not have been referencing the molestation charges. But this is a question for the jury and not for the courts.
f 41 Dixon was precluded from using Hansen’s testimony for impeachment purposes under ER 613(b). Criminal defendants have a constitutional right to impeach prosecution witnesses with prior statements that are inconsistent with the witness’s trial testimony. See State v. Dickenson, 48 Wn. App. 457, 470, 740 P.2d 312 (1987) (constitutional harmless error test applies to the erroneous refusal to allow a defendant to impeach a witness with a prior inconsistent statement). And reversal is required unless no rational jury could have a reasonable doubt about the defendant’s guilt absent the error. State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002). Contrary to the majority’s determination that “ ‘the untainted evidence is so overwhelming it necessarily leads to a finding of guilt’ beyond a reasonable doubt,” the court’s error is not harmless as the entire case rests upon N.D.’s credibility, and evidence “poking holes” in her credibility would doubtless affect the outcome of the trial. Majority at 79 (quoting State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996)); see State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001) (“An error is prejudicial if, ‘within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.”).
*86¶42 The case should be reversed and remanded for a new trial.
¶43 Accordingly I dissent.
Alexander, C.J., and Chambers, J., concur with Sanders, J.
The principle of conditional relevance poses some evidentiary difficulties. Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U. L. Rev. 447 (1990). Nance sets forth the “notice hypothetical” to illustrate such difficulties: “ ‘[W]hen a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it.’ ” Id. at 450 (alteration in original) (quoting Fed. R. Evid. 104(b) advisory committee note).
Nance argues the “[trier of fact] must evaluate the likelihood that [the statement] was heard, but even if, from all the evidence presented, there is only a small probability that X heard the spoken statement, it is still some evidence of notice that, together with the other evidence, may warrant a finding of notice.” Id. (second emphasis added). Moreover, argues Nance, “[i]f notice is merely an evidentiary proposition, rather than an ultimate proposition in the case, then the ultimate proposition toward which evidence of notice is directed may be found to be true notwithstanding insufficient evidence to warrant a finding of notice. In such a case, the evidence of notice must be considered together with other evidence that pertains to the ultimate proposition.” Id. at 451.
Nance’s point is simply “the trier of fact must make a finding, by the appropriate standard of proof, only as to the ultimate propositions in the case, not as to intermediate evidentiary propositions contained within inferential chains.” Id.
The majority states, “the trial court’s proper inquiry under ER 104(b) is ‘whether the evidence is sufficient to support a finding of the needed fact.’ ” Majority at 78 (quoting Karpenski, 94 Wn. App. at 102). Emphasis is more appropriately placed as follows: “the trial court’s proper inquiry ... is . . . ‘whether the evidence is sufficient to support a finding of the needed fact.’ ” That is, could a reasonable jury conclude, from the evidence before them, N.D.’s question referred to Dixon’s molestation charges.
The trial court stated, “We have the surmise, the inference, the conclusion made by this witness that that’s what was in [N.D.’s] mind. But we can’t allow one witness to speculate on what the other witness is thinking.” 4 RP at 506-07. Ironically, the same court confidently determined a jury could not have concluded N.D.’s question pertained to her father’s molestation charges. See State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946) (“It is highly improper for courts, trial or appellate, to speculate upon what evidence appealed to a jury. Jurors and courts are made up of human beings, whose condition of mind cannot be ascertained by other human beings. Therefore, it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.”).