Concurs in Results:
¶ 1 I agree the provisions of 12 O.S.1991, § 2613 were not followed in the presentation of the evidence in question. See S Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, §§ 47.27 & 47.28. Howev*960er, I find the error was in styling the State’s methodology of seeking to admit the prior statement as impeachment.
¶ 2 The witness was, in effect, unavailable due to her refusal to testify and statements of lack of memory regarding the acts committed by Appellant. It appears from the record she was hesitant to testify to those acts in the open courtroom with the participants and audience present. This type of testimony implicates the provisions of 12 O.S. 1991, § 2804(A)(2)(3). However, the previous statement of the witness was not taken in a hearing, proceeding or deposition which would satisfy the requirements of Section 2804(B).
¶3 The best analysis of the attempt to use evidence of this type is through 12 O.S. 1991, § 2803(5), the hearsay exception for a past recollection recorded. 2 Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 36.17. The State was not seeking to impeach the witness’s loss of memory. It was seeking to have the statement admitted as substantive evidence. If admitted under Section 2803(5), the statement can be used by the trier of fact as substantive evidence of guilt. However, if admitted under Section 2613, it may only be used to impeach the statement of the witness that she did not remember or was asleep. If this issue had been presented as a question of whether a video record of the statement was admissible pursuant to Section 2&03(5), it would have raised a question of first impression for the Court. However, the State gained the admission of the statement as impeachment evidence pursuant to Section 2613 and that is the basis upon which the Court must decide the issue on appeal.
¶ 4 I concur in the results reached by the Court through the above analysis and agree the judgment and sentence should be affirmed.