concurring.
I agree with the majority opinion in all respects except its conclusion that Officer Leedom’s report was not properly admitted as impeachment by prior inconsistent statement under OEC 613(2). I believe that the trial court properly admitted the report on that basis.
The majority holds that victim four’s asserted lack of memory may not be impeached by substantive statements that she allegedly made to Officer Leedom. The majority reasons that the fact that a witness once stated that something was true is not logically inconsistent with a subsequent loss of memory; that the only thing that would be inconsistent with a claimed loss of memory is evidence that shows that the witness in fact remembers what happened. The majority asserts that its holding is consistent with Oregon case law, as well as what it characterizes as the “best considered” decisions of other jurisdictions.
I have a number of problems with the majority’s reasoning and conclusions. My disagreement with the majority on this issue begins with its misunderstanding of the record in this case. The majority’s analysis is based on its perception that victim four denied any memory of the events that occurred in 1992, but that she did not deny making statements regarding those events to Office Leedom. The majority states “victim four testified only that she had no memory of what had occurred between defendant and her.” 165 Or App at 401 (emphasis in original). That is incorrect. In fact, the testimony victim four gave at trial concerned, almost solely, her earlier statements about the events, not the underlying events. In addition to being asked a number of questions about her participation in the interview with Leedom and her participation in the grand jury proceedings, victim four was asked seven times whether she remembered making specific statements to Leedom and thirteen times whether she remembered making specific statements to the grand jury. She was asked only one question about any of the actual events underlying the charges against defendant. She testified, in part:
*409“Q Well, do you recall any of the information that’s contained in that police report? Do you recall making any of those statements?
“A No.
{(% % * 'Jfi 'Jfi
“Q At that time, you told the grand jury that there were at least three occasions when the defendant hit you on the butt and said, quote, you’re looking good, and that he made comments about your body; did you not tell the grand jury that?
“A I don’t remember.
“Q Do you recall telling the grand jury that while you were in drama class that the defendant placed his hand upon your thigh and indicated that you had soft skin and that the boys probably liked that?
“A I don’t remember.
“Q Do you recall telling the school police officer, Officer Leedom, that those events had occurred?
“A No, I don’t remember.
“Q You don’t remember making those statements?
“A No.
“Q Do you recall telling the grand jury that there was an occasion when the defendant and you were in a dressing room and there was a conversation about the hem of a skirt and at that time he lifted your skirt up?
* % % *
“THE WITNESS: I don’t recall.
ijí íJí * *
“Q Do you recall telling Officer Leedom that, about that event, Mr. Staley telling you about getting a blow job?
* % * ‡
“THE WITNESS: I don’t recall.
^ ^ ^
“Q You don’t recall making those statements to the grand jury?
*410“A No.
“Q Do you recall telling Officer Leedom —
“A No, I —
“Q — that you were playing the role of an older woman and that you were to come down the stairs after having had sex and that the defendant said to you as you were playing the role of a sexually experienced woman, Like you, [victim four].
* i'fi :fi
“THE WITNESS: No.”
I would hold that victim four’s denial that she made the statements to Officer Leedom in 1992 allowed the trial court to conclude that those statements could be introduced as prior inconsistent statements. Underlying the majority’s conclusion that the statements were not admissible as inconsistent statements is the premise that the effect of victim four’s assertion that she did not remember making the statements is neutral; that it did no damage to the state’s case. However, her denial of any recollection of the statements is not neutral. Rather, as I will discuss, her testimony amounts to a denial that she made the statements and the effect of that denial on the state’s case is not neutral. If it is accepted that victim four did not make any statements to Leedom at the time of the incidents, then that clearly undermines the state’s case.
The majority’s claim that its conclusion, that victim four’s statements to Officer Leedom are not admissible as prior inconsistent statements, is consistent with our case law is also wrong. That conclusion is not consistent with Oregon case law. In State v. Van Gorder, 56 Or App 83, 641 P2d 584, rev den 293 Or 146 (1982), a witness testified that he did not remember or was unsure of having made particular statements to an investigator. The trial court refused to allow the defendant to impeach the witness through the investigator’s testimony as to the witness’s earlier statements. The testimony that the state sought to introduce included the substance of the statements that the witness had made to the investigator. In Van Gorder, the state argued exactly the same position that the majority takes here; namely, that *411when a witness doesn’t recall making a statement, you cannot impeach that witness with an earlier statement because there is nothing inconsistent between the witness’s statement at trial and the earlier statements. We disagreed with the state’s assertion, explaining that:
“The defendant contends that, when a witness testifies that he does not recall or is unsure of making a statement, there is a basis for impeaching the witness by his previous statement. The state, on the other hand, contends that there is nothing ‘inconsistent’ in the witness’ testimony which would provide a basis for impeachment and relies on State v. Miller, 35 Or App 207, 582 P2d 1378, vacated on other grounds, 36 Or App 859, 585 P2d 772 (1978). Miller, however, is not helpful. We concluded in that case that when a witness’ answer to a question was an agreement that he had told an investigator exactly what he was alleged to have told him, there was nothing to impeach. 35 Or App at 211. That is not the case at hand. We reiterate our previous holding that, if a proper foundation has been laid, when a witness testifies that he is unsure of or does not remember having made a particular statement, the witness may be impeached by evidence that he made the alleged statements. As this court pointed out in State v. Bruce, 31 Or App 1189, 1194, 572 P2d 351 (1977), rev den 282 Or 385 (1978), for impeachment purposes '[t]he 11 T don’t remember” answers * * * in response to questions asked concerning the prior inconsistent statements * * * were the equivalent of “No, I did not say that” * * *.’ See also, State v. Young, 1 Or App 562,463 P2d 374, rev den (1970); McCormick, Evidence 72, § 37 (2d ed Cleary 1972). Defendant was entitled to introduce testimony by his investigator as to Nilsen’s prior statements to the investigator which Nilsen testified he was unsure of having made or did not remember making. The investigator’s impeaching testimony should have been admitted.” Id. at 88-89 (emphasis added).
The majority reads Van Gorder as requiring that a witness must have given some substantive testimony that is inconsistent with the prior statements to justify introducing the earlier statements as prior inconsistent statements under OEC 613. Although it is true that the witness there had given some substantive testimony that was inconsistent with his earlier statements, our holding that the statements were admissible was not dependant on that fact. In fact, it *412was the ruling of the trial court distinguishing between substantive and nonsubstantive testimony that we reversed in Van Gorder. The trial court had ruled that only the statements that were inconsistent with substantive evidence already in the record were admissible:
“ ‘Well, the witness was asked if he had made certain statements to [defendant’s investigator]. In some cases, he said he could not recall; in some cases, he said he could not remember whether he made the precise statement or not; in other cases, he agreed that he had made the statements; and in some cases he denied the statements.’
"* * * * *
“ ‘The only ones that properly can be read are those statements which contradict his testimony. In other words, impeach the witness. If you can identify those, you may read those to the jury or have [the investigator] read them to the jury.’ ” Id. at 88 (emphasis added).
In addition to being supported by existing Oregon case law, the allowance of the witnesses’ prior statements under these circumstances is consistent with the purpose and limitations of this exception to the hearsay rule. This exception was not designed to be used as a subterfuge for getting in otherwise admissible evidence. As McCormick explains: “It has been widely held that a criminal prosecutor may not employ a prior inconsistent statement to impeach a witness as a ‘mere subterfuge’ or for the ‘primary purpose’ of placing before the jury substantive evidence which is otherwise inadmissible.” John W. Strong, ed., McCormick on Evidence, ch 5, § 38, 142 (5th ed 1999) (emphasis in original). Because of that, the question of how much inconsistency is needed before the introduction of prior inconsistent statements to impeach a witness is allowed requires that we balance the need to be able to properly assess the credibility of the witness against the need to prevent the misuse of this exception to gain admission for evidence that otherwise is inadmissible.
Here, victim four testified that she vaguely remembered being interviewed by Leedom. However, after being shown his report of that interview, she testified she did not recall making any of the statements in it. As in Van Gorder, her failure to recall was the equivalent of her saying, “No, I *413did not say that” and that denial was inconsistent with her prior statements. This is a case where, on balance, the evidence is necessary to assess the credibility of this critical witness. Victim four was sufficiently alerted to the statements’ existence and she was given an “opportunity to explain or deny’ them. In addition, defendant was afforded the opportunity to interrogate both victim four and Leedom with respect to the statements in the report. The trial court made the correct decision in admitting this testimony as a prior inconsistent statement.
Finally, although acknowledging that there is authority that goes both ways on this issue, the majority finds support in what it views as the “best considered” discussions from other jurisdictions. I question how helpful it is to look to decisions of other jurisdictions in circumstances such as this, where there is Oregon authority on this question and the decisions of other jurisdictions are quite mixed. Nevertheless, not suprisingly, I find the reasoning of jurisdictions that reach the same conclusion that I do to be the most persuasive.1
For all of the above reasons, I would hold that Officer Leedom’s testimony regarding the statements that victim four made to him was properly admitted by the trial court as a prior inconsistent statement.
See, e.g., State v. Lenarchick, 247 NW 2d 80 (Wis 1976), as analyzed in Debra T. Landis, Annotation, Denial of Recollection as Inconsistent with Prior Statement so as to Render Statement Admissible, 99 ALR 3d 906 (1976). The witness in Lenarchick, testified at trial, that while she remembered all of the circumstances surrounding her earlier statement to police and the events contained in that statement, she had no recall of either the events in question or the content of her statement to the police. There, as here, it was “apparent that the trial judge, with reason, doubted the good faith of [the witness’s] trial protestations of lack of memory, and, on that basis and in the exercise of judicial discretion, could declare her trial testimony inconsistent and lay the ground for the admission of the police statement.”