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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vaska v. State (05/15/2006) sp-6013

Vaska v. State (05/15/2006) sp-6013, 135 P3d 1011

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


          IN THE SUPREME COURT OF THE STATE OF ALASKA


STANLEY VASKA, )
) Supreme Court No. S- 11171
Petitioner, )
) Court of Appeals No. A-8232
v. ) Superior Court No. 4BE-S95-111 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6013 - May 15, 2006
)

          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from  the  Superior  Court,  Fourth  Judicial
          District, Bethel, Raymond M. Funk, Judge.

          Appearances:   Margi Mock,  Assistant  Public
          Defender,  and   Barbara  K.  Brink,   Public
          Defender, Anchorage, for Petitioner.  Kenneth
          M.  Rosenstein,  Assistant Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for Respondent.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.
          CARPENETI, Justice, dissenting in part.
          MATTHEWS,   Justice,  with  whom   CARPENETI,
          Justice, joins in part, dissenting.
I.   INTRODUCTION
          A  jury  found Stanley Vaska guilty of sexually abusing
T.E.,  a  minor.   The evidence identifying Vaska  as  the  young
childs  abuser  included  testimony of  T.E.s  mother  describing
statements  T.E. had made after the alleged abuse.  Because  T.E.
said  at  trial  that  she had no memory of  the  period  in  her
childhood  when the abuse occurred, the trial court admitted  her
mothers testimony under the catchall exception to Alaskas hearsay
rule.   On  appeal, Vaska argued that the trial  court  erred  in
applying  the catchall exception.  In response, the  state  urged
the  court  of appeals to affirm on the alternative  ground  that
T.E.s   statements   were   admissible  as   prior   inconsistent
statements.   The  court of appeals accepted  this  argument  and
affirmed  Vaskas  conviction, ruling that T.E.s  statements  were
admissible  under this new theory.1  We granted  Vaskas  petition
for  hearing  and  now reverse.  Because Vaskas decision  not  to
cross-examine  T.E.  at  trial may have been  influenced  by  the
states  exclusive reliance on the catchall exception and  by  its
failure to lay any foundation to admit T.E.s statements as  prior
inconsistent statements, we hold that it was error to  apply  the
prior-inconsistent-statement provision  for  the  first  time  on
appeal,  and we remand to allow the court of appeals to  consider
other potential grounds for affirming.
II.  FACTS AND PROCEEDINGS
          Three-year-old  T.E. began having mood  swings  in  the
spring of 1994.  She eventually disclosed to her mother, Olga E.,
that her girl (T.E.s term for her genital area) hurt.  T.E. later
told  her  mother that a ga-ga (the family term for monster)  had
hurt her.  Olga reported the abuse and took T.E. to a hospital in
Bethel for examination by Dr. Donald Burgess.  Dr. Burgess  asked
T.E.  to  show  the  area of her pain on an anatomically  correct
doll,  and  T.E. responded by pointing to the dolls genital  area
and  to its mouth.  Dr. Burgess asked T.E. who had hurt her,  and
T.E. answered, Ga-ga.  T.E. then referred to M.V.s daddys ga-ga.2
She  placed her finger in the dolls vagina when asked how the ga-
ga  hurt  her.   Dr. Burgess conducted a pelvic  examination  and
found  an  opening  in T.E.s hymen that was larger  than  any  he
previously observed in a girl her age.  The doctor concluded that
T.E.  had been penetrated by a large object.  Sometime after this
examination,  Olga and T.E. were walking in their home  community
of  Russian  Mission and encountered Vaska.  According  to  Olga,
T.E. said,  Theres the ga-ga   hes the ga-ga and then she pointed
at Stan [Vaska].
          Vaska was later indicted and convicted on one count  of
first-degree  sexual abuse of a minor, T.E.,  and  one  count  of
second-degree  sexual  abuse  of  another  minor,  M.V.3    Vaska
appealed  the convictions to the court of appeals, which reversed
and ordered new trials.4
          At  Vaskas  retrial on the count relating to T.E.,  the
state  called  T.E. as a witness and questioned her briefly,  but
ended its examination after T.E. said that she could not remember
anything before the third grade.  T.E.s complete testimony was as
follows:
          Q:   . . . .  How old are you [T.E.]?
          A:   Ten.
          Q:   And do you know what your birthday is?
          A:   March 5.
          Q:   Do you know what year you were born in?
          A:   1991.
          Q:   And youre going to school now?
          A:   Uh-huh (affirmative).
          Q:    What  grade?  What grade did  you  just
          finish?
          A:   Fourth.
          Q:   Did you like school?
          A:   Uh-huh (affirmative).
          Q:   What was your teachers name?
          A:   Theresa Vaska.
          Q:    Now, do you know what it means to  tell
          the truth?
          A:   (Inaudible reply).
          Q:    You dont know what it means to tell the
          truth?  Do you know the differ  well, what if
          I  told you its snowing in the room her [sic]
          today?  What am I doing?
          A:   Lying.
          Q:   Is that good?
          A:   Unh-unh (negative).
          
          . . . .

          Q:    Now,  [T.E.], do you remember  back  to
          when you were a little tiny girl?
          A:   Unh-unh (negative).
          Q:   Whats the  what  think  what Id like you
          to  do  is think back in your mind and  whats
          the  first thing you can think of as a little
          girl?
          (Pause)
          Q:   Do you remember being in kindergarten?
          A:   (Inaudible reply).
          Q:    No?   Do  you remember being  in  first
          grade?
          A:   (Inaudible reply).
          
          . . . .

          A:   No.
          Q:   What grade do you remember?
          A:   Third.
          Q:    Third grade?  Okay.  Do you  whats your
          moms name?
          A:   Olga [E.].
          Q:   Whats your daddys name?
          A:   Larry [E.].
          Q:    So do you remember anything before  the
          third grade?
          A:   No.
          Q:   Okay.
          [Prosecutor]:    I  dont   have   any   other
          questions, Your Honor.
          
          Defense  counsel did not cross-examine T.E.  The  court
then  told  T.E.,  You  can leave now,  thats  the  end  of  your
testimony maam.  The trial transcript states: (Witness excused).
          After  T.E.  left the stand, the prosecutor  asked  the
superior  court to find, under Alaska Rule of Evidence 804(a)(3),
that  T.E.  was unavailable as a witness because she  lacked  all
memory  of  her  out-of-court statements.5  The  prosecutor  then
moved  to  have  T.E.s  statements to her mother  admitted  under
Evidence  Rule 804(b)(5), the catchall exception to  the  hearsay
rule.6
          The  superior  court  stated that it  would  allow  the
mother  to  testify as to the statements [T.E.]  made  concerning
identification  of the defendant . . . .  The court  also  stated
that theres no reason to believe . . . that these statements  are
so  unreliable as to be inadmissible.  The court concluded  that,
given  the broad general exceptions under 804(b)(5), . . .  given
the  evidence presented to date and the review of the court  file
.  .  .  the  court  believes that testimony  by  the  mother  of
statements  made . . . by her daughter, concerning this  incident
will be admissible.
          The  prosecutor then called T.E.s mother to the witness
stand.   She described the statements T.E. made to her about  her
girl  hurting  and  the  ga-ga; she also testified  that  on  one
occasion,  when  she  and T.E. encountered  Vaska  while  walking
together  in Russian Mission, T.E. said, Theres the  ga-ga    hes
the ga-ga and  then she pointed at Stan [Vaska].  The state never
sought to recall T.E. to the witness stand after she was excused.
Nor  did  it  ever  ask  the trial court  to  admit  T.E.s  prior
statements as prior inconsistent statements under Alaska Evidence
Rule 801(d)(1)(A).
          The jury found Vaska guilty of sexual abuse of T.E.  in
the first degree.  Vaska appealed, arguing that the admission  of
T.E.s  hearsay  statements  to her  mother  under  Evidence  Rule
804(b)(5)s catchall exception violated the confrontation  clauses
of  the state and federal constitutions.7  In response, the state
urged the court of appeals to hold, as an alternative ground  for
affirming,8  that  the  statements  were  admissible   as   prior
inconsistent  statements under Alaska Evidence Rule 801(d)(1)(A)9
a theory that the state had never previously asserted.  The court
of appeals adopted this new theory and affirmed Vaskas conviction
without  deciding whether T.E.s statements were admissible  under
the catchall exception.10
          Vaska petitioned for hearing to this court, challenging
the   court  of  appealss  ruling  that  T.E.s  statements   were
admissible  as  prior inconsistent statements.   We  granted  the
petition to consider that issue.
III. DISCUSSION
     A.   Standard of Review
          We  apply  de  novo  review in determining  whether  an
intermediate  appellate court has erroneously applied  new  legal
grounds to affirm a trial courts ruling.11
     B.   The   State  Failed  To  Establish  a  Foundation   for
          Admitting  T.E.s Prior Statements Under  Evidence  Rule
          801(d)(1)(A).
          
          Vaska  challenges  the  court of appealss  ruling  that
T.E.s  prior statements implicating Vaska were properly  admitted
as  prior  inconsistent statements.  The superior court  did  not
rely  on this theory; instead, it ruled the statements admissible
under   Alaskas  catchall  exception,  Alaska  Rule  of  Evidence
804(b)(5).12  Not until Vaska appealed did the state first  argue
that   the  statements  were  admissible  as  prior  inconsistent
statements.13  The court of appeals accepted the states  argument
and  admitted  the disputed evidence on this new  theory.   Vaska
argues that the court of appeals erred in so ruling.
          Alaska   Rule   of  Evidence  801(d)(1)  allows   prior
statements of a witness to be admitted if:
          The  declarant  testifies  at  the  trial  or
          hearing and the statement is (A) inconsistent
          with  the  declarants testimony.  Unless  the
          interests  of justice otherwise require,  the
          prior statement shall be excluded unless  (i)
          the  witness was so examined while testifying
          as  to  give  the  witness an opportunity  to
          explain or to deny the statement or (ii)  the
          witness  has  not  been excused  from  giving
          further testimony in the action.
          
          The  party  offering a statement under this  rule  must
satisfy two foundational conditions.14  First, the offering party
must  show  that the prior statement is indeed inconsistent  with
the  declarants  testimony.  Inconsistency does  not  necessarily
require textual conflict; other circumstances, including lack  of
memory  at trial, may suffice.15  Because the question whether  a
declarants alleged lack of memory establishes inconsistency often
becomes  a  disputed issue,16 a claim of inconsistency  based  on
faulty  memory normally must be raised by the offering  party  at
the  trial  court  level. The trial court  is  best  situated  to
resolve  testimonial disputes of this kind, and raising the issue
in  the trial court ensures that the party against whom the prior
statement  is  offered will have ample notice that  inconsistency
has  been  asserted  and  a  fair  opportunity  to  contest  this
foundational point.
          The second foundational condition for admitting a prior
inconsistent  statement requires that the witness  who  made  the
prior  statement be given an opportunity to explain or  deny  it.
Under  Evidence Rule 801(d)(1)(A)(i), the offering party  usually
must  meet  this requirement by ensuring that the witness  is  so
examined  while testifying as to give the witness an  opportunity
to  explain or deny the statement.  Alternatively, Evidence  Rule
801(d)(1)(A)(ii) sometimes allows trial courts to admit  a  prior
inconsistent statement before the declarant can explain  or  deny
it   but  only  if  the witness has not been excused from  giving
further  testimony  in the action.17  As the commentary  to  Rule
801(d)(1)(A)  makes clear, however, this option applies  only  in
          exceptional situations: Except in special cases, counsel should
lay  the  foundation  for  an inconsistent  statement  while  the
witness who made the statement is testifying . . . .18
          Ordinarily,  then, Rule 801(d)(1)(A) contemplates  that
both  of the foundational conditions it describes should  be  met
before  the prior statement is admitted, and while the  declaring
witness  is  still  on  the stand.  And at a  minimum,  the  rule
directs  that  the  full  foundation  must  be  laid  before  the
declarant  has  been  excused from  testifying.19   The  text  of
Evidence  Rule 801(d)(1)(A)(i) makes these expectations clear  by
requiring  that the declarant be so examined while testifying  as
to  give  the  witness an opportunity to explain or to  deny  the
statement.20  It follows that when the state fails to make a prima
facie   showing   of  compliance  with  the  rules   foundational
conditions,  the  defendant  has no  duty  to  cross-examine  the
declarant  in  order  to  negate  the  existence  of   a   proper
foundation.  Indeed, to shift the foundational burden in this way
would  leave  a  defendant like Vaska with an  untenable  choice:
[F]orcing  a defendant to call a child complainant to testify  in
order to cross-examine that individual . . . unfairly requires  a
defendant  to  choose  between  his  right  to  cross-examine   a
complaining witness and his right to rely on the States burden of
proof in a criminal case.21
          Although  we have long recognized that the foundational
conditions  for  admitting a prior inconsistent statement  should
not be mechanically applied in every instance,22 our adherence to
this  principle assumes a corresponding showing of  circumstances
establishing  good  cause to relax the rules clear  commands;  we
have  never  suggested that the principle of  flexibility  should
routinely  excuse  offering  parties  from  complying  with  Rule
801(d)(1)(A)s foundational prerequisites.  As already  indicated,
the  commentary  to the rule precludes such an interpretation  by
emphasizing  that  the  rules foundational conditions  should  be
enforced except in special cases.23  This emphasis on the need for
compliance   as   a  general  rule  is  justified   because   the
foundational conditions serve the vital purpose of protecting the
rights to effective confrontation and cross-examination.24   They
do  this  by  sparing the party against whom a prior inconsistent
statement is offered from the unfair burden of having to directly
examine  a witness about a prior statement that has not yet  been
shown  to  be admissible under Rule 801, while at the  same  time
preserving that partys right to fully cross-examine the declarant
about the statement if it passes muster and is properly admitted.
          Moreover,  when  Rule 801(d)(1)(A) is invoked  for  the
first  time on appeal, as the state invoked it here, the need  to
enforce  its  foundational conditions takes on  added  importance
because   those  conditions  serve  the  additional  purpose   of
protecting the accused from being unfairly surprised by the rules
late  invocation.  In this procedural setting, because compliance
with  the  rules  foundational conditions  would  provide  actual
notice   at  trial  that  the  statement  in  question  met   the
prerequisites   for   admission  under  Rule  801(d)(1)(A),   the
existence  of a proper foundation would at a minimum ensure  that
the  accused received fair and timely warning that the rule might
          be invoked.
          With these considerations in mind, we turn to the facts
of  this  case.  Here, the trial court excused T.E. and  declared
her  unavailable as a witness immediately after the  prosecutions
preliminary  questioning caused her to claim that she  could  not
recall anything that had happened to her before she entered third
grade.  Because the state did not offer to admit T.E.s statements
as  prior  inconsistent statements during the trial, the adequacy
of   the  states  foundation  for  admission  under  this  theory
necessarily  depends on whether the states brief  examination  of
T.E.  established inconsistency between her trial  testimony  and
her prior statements and resulted in her being so examined as  to
give   her   an  opportunity  to  explain  or  deny  the   [prior
inconsistent]   statement[s].25              T.E.s    abbreviated
testimony failed to satisfy, or even address, either foundational
condition  for admission under Rule 801(d)(1)(A).  The  court  of
appeals nevertheless excused  these foundational flaws, primarily
relying  on  two  previous  cases  in  which  it  had  considered
foundational challenges to prior inconsistent statements:  Bodine
v. State26 and Wassilie v. State.27
          In  Bodine, a child declarant made statements to social
workers and the police, alleging fellatio with her father.28   At
trial,  she  repeatedly  denied that  her  father  had  ever  put
anything  in her mouth and also denied ever telling anybody  that
he  had  done  so.29  The trial court admitted into evidence  her
statements to the social workers and police.  The prosecutor  had
not  specifically asked the witness questions about when she made
the  prior  statements, to whom they were made,  or  their  exact
contents,  but  when Bodine appealed, the court of  appeals  held
that for purposes of Rule 801(d)(1)(A), the prosecutors questions
sufficiently  alluded  to  the  subject  matter  of  the   childs
statements to the social worker and the police.30  The  court  of
appeals  concluded  that, given the childs age  and  the  subject
matter of the interrogation, the superior court did not abuse its
discretion in admitting the statements.31
          The  court reached a similar conclusion in Wassilie  v.
State.   There, an elderly witness at trial could not remember  a
statement  he  had  made to police after he  and  his  wife  were
assaulted.  The prosecutor did not directly confront the  witness
with  his prior statement or ask him to explain or deny  it,  but
did  ask  him  whether he recalled talking to the police  or  the
police coming to his home.32  Even though he could not recall any
details,  the witness was able to testify that his  wife  had  in
fact been injured.33  Analogizing the witnesss limited ability to
testify to that of a child, the court of appeals recognized  that
foundational requirements should not be mechanically  applied  in
every  instance and concluded that the trial court had not abused
its  discretion  in  admitting the prior  statement  despite  the
minimal foundation presented.34
          Here, unlike Bodine and Wassilie, where the prosecutors
conducted  at least a minimal inquiry into the prior  statements,
none  of  the questions the state posed to T.E. remotely  touched
upon   or  even  suggested  the  subject  matter  of  her   prior
statements.   The  states  brief examination  of  T.E.  consisted
          entirely of preliminary, background questions covering topics
such  as  what  it  means  to tell the truth,  how  far  back  in
elementary  school T.E.s memory extended, and the  names  of  her
parents.   None  of these questions gave T.E. an  opportunity  to
explain  or  deny any prior statements T.E. made  to  her  mother
regarding  sexual abuse by Vaska.  The prosecutor failed  to  ask
about  the subject matter of T.E.s prior statements; he  likewise
failed  to ask about the surrounding circumstances in which  T.E.
made  those  statements.  Nor did the state otherwise attempt  to
test  T.E.s lack of memory; it simply accepted at face value  her
general  assertion  that  she remembered  nothing  that  happened
before she entered third grade.
          In  short, the state abandoned its examination of T.E.,
asked  for her to be declared unavailable, and allowed her to  be
excused  without complying with either foundational  prerequisite
for  admitting  prior  inconsistent statements   indeed,  without
eliciting  any germane testimony whatsoever.  To be sure,  as  we
noted  above, a declarant need not directly deny or contradict  a
prior statement to establish inconsistency.  But in our view  the
duty  to establish inconsistency under Rule 801(d)(1)(A) requires
something   more  concrete  and  specific  than  an   unexplained
statement  asserting a general memory loss of  everything  before
third  grade.  By the same token, while it seems safe  to  assume
that the states duty to give T.E. a chance to explain or deny her
prior   statements  might  be  minimal  under  the  circumstances
presented here, the state offers no persuasive justification  for
ignoring   this  condition  completely.   The  states  near-total
failure  to  lay  a foundation provides a strong  factual  ground
distinguishing this case from Bodine and Wassilie.
          The   dissent   tries  to  dismiss  Rule  801(d)(1)(A)s
opportunity-to-explain requirement as merely a dispensable frill.35
Citing McMaster v. State,36 it suggests that this requirement  is
distinctly  optional where the witness is a young  child.37   But
McMaster is readily distinguishable from this case, as are  other
cases   that   have  condoned  relaxing  the  rules  foundational
conditions   such  as  Bodine  and  Wassilie   because  they  all
involved  situations  in which the disputed  witnesses  had  been
available  to  testify, had actually given  meaningful  testimony
about  the  offenses  at issue, and had subjected  themselves  to
cross-examination  on their testimony.  Here,  by  contrast,  the
witness was excused and declared unavailable without offering any
relevant  testimony   and,  as  we discuss  further  below,  this
occurred  under  circumstances in which  Vaskas  counsel  had  no
reason to believe that the state might later claim that her brief
appearance  on the stand had testimonial significance under  Rule
801(d)(1)(A).
          Another important procedural distinction exists here as
well.  Our opinion in McMaster and the court of appealss opinions
in  Bodine and Wassilie reviewed and affirmed decisions in  which
trial  judges exercised their broad powers of discretion to admit
evidence   that  was  expressly  offered  at  trial  under   Rule
801(d)(1)(A).   As  the  court of appeals  itself  emphasized  in
deciding Bodine, In determining the sufficiency of the foundation
for  admission of prior inconsistent statements, the trial  court
          is allowed considerable latitude, particularly where the witness
is a young child.38  By sharp contrast, in Vaskas case, the state
raised Rule 801(d)(1)(A) as a theory for admission for the  first
time  on  appeal; and the court of appeals declared the  disputed
evidence   admissible  not  out  of  deference  to  trial   court
discretion  exercised  in  applying  this  rule,  but  rather  by
independently ruling as a matter of law that, despite the lack of
a  proper foundation, T.E.s statements were admissible under Rule
801(d)(1)(A).
          This  ruling is problematic for several reasons.   When
an  offer  of  evidence presented at trial fails to  comply  with
formal  requirements set out in our evidence rules, trial  judges
commonly  exercise  broad  discretion  in  deciding  whether  the
offered  evidence should be admitted despite its formal  lack  of
compliance,  usually basing their decisions in large  part  on  a
careful  consideration of the precise facts at issue in the  case
at hand.
Because  such  decisions  rely heavily on  case-specific  factual
considerations,  they fall squarely within the  domain  of  trial
courts, not appellate tribunals, as demonstrated by the fact that
appellate review in such cases is typically deferential.39  After
all, an appellate court lacks the trial courts ability to observe
witnesses,  assess  credibility, weigh  competing  evidence,  and
resolve  disputed  facts   all  essential  tools  for  fact-based
discretion.  Accordingly, when foundational facts have  not  been
established and the trial court has never been asked to  consider
a theory of admissibility freshly raised on appeal, it would seem
problematic  for  an appellate tribunal to resolve  the  disputed
issue  by exercising fact-based discretion; yet it seems  equally
problematic to decide the controversy as if it presented  a  pure
issue of law.
          We   recognize  of  course  that  an  appellate   court
ordinarily has broad authority to affirm a trial courts ruling on
any legal theory established in the appellate record.40  But this
rule  is  not  absolute.  By its own terms, it  applies  only  to
issues  of law that find support in settled facts.  It  does  not
extend  to  new  theories  that would  normally  be  resolved  by
discretionary  powers  traditionally reserved  for  trial  courts
powers  relying  on case-specific consideration  of  disputed  or
disputable issues of fact.
          The  rule  allowing appellate courts to affirm  on  any
legal  theory  also must be tempered by the need  for  procedural
fairness.   As  we  have  previously  indicated,  invoking   Rule
801(d)(1)(A) for the first time on appeal raises unique  concerns
relating   to   fair  notice.   Specifically,   it   would   seem
fundamentally unfair to apply a legal theory raised for the first
time  on appeal if a different theory asserted by the prosecution
at  trial  encouraged the defendant to chart a procedural  course
that  might  not  have been taken if the prosecutions  new  legal
theory  had  been timely asserted.  The circumstances  of  Vaskas
case suggest the potential for this kind of unfairness.
          The  prosecution  ended  T.E.s direct  examination  and
asked  to have her declared unavailable without any inquiry  into
the  alleged offense or any effort to lay a proper foundation for
          admitting her prior statements as prior inconsistent statements
under  Rule  801(d).  Because T.E. had said nothing relevant  and
the  prosecution  offered no clue that it  might  later  use  her
limited  direct  examination  as a foundation  to  introduce  her
earlier  out-of-court statements, Vaska unsurprisingly   declined
to  cross-examine.  The prosecution immediately moved  to  excuse
T.E. as a witness, and the trial court formally excused her.  The
state  then  asked the superior court to declare T.E. unavailable
under  Rule 804(a)(3) because she lacked any relevant memory;  at
the same time, it asked to admit T.E.s prior statements under the
catchall  exception.  Despite strenuous objections by Vaska,  the
superior  court  granted the states motions  and  admitted  T.E.s
prior statements under the catchall exception.
          On  appeal,  the  state opted to advance  a  new  legal
theory, urging the court of appeals to hold that T.E.s statements
would have been admissible as prior inconsistent statements under
Rule  801(d)(1)(A)41  a ground that the state never mentioned  at
trial.   In accepting this theory, the court of appeals expressed
the  view  that T.E.s lack of memory did not deprive Vaska  of  a
fair  opportunity for cross-examination;42 the court  then  ruled
that  T.E.s  declarations were admissible as  prior  inconsistent
statements.43
          Yet given the totality of these circumstances, it seems
to  us  that invoking the states new legal theory for  the  first
time  on appeal potentially exposed Vaska to unfair prejudice  by
undercutting tactical choices he might have made in  reliance  on
the  theory of admissibility invoked by the state at  trial   the
catchall  exception.  As set out in Evidence Rule 804(b)(5),  the
catchall exception applies only when (a) the declarant is  unable
to testify  in other words, is unavailable as a witness;44 (b) no
other hearsay exception specifically cover[s] the proposed out-of-
court  statements;45 and (c) the statements  are  shown  to  have
equivalent   circumstantial  guarantees  of  trustworthiness   in
comparison  to specifically covered exceptions  in  other  words,
trustworthiness so strong that adversarial testing through cross-
examination would not benefit the defendant.46  In light  of  the
catchall rules requirements, when the superior court found  T.E.s
statements  admissible under this rule, it effectively determined
that  T.E.  had  shown herself to be incapable of  providing  any
useful testimony, that her prior statements were not specifically
covered  by  any other exception, and that they were so  reliable
that  Vaska  had  no  need to cross-examine her.   In  short,  by
accepting  the  states  theory  of  admissibility  at  trial  and
applying  the catchall exception, the superior court  effectively
told Vaska that there was no real reason to cross-examine T.E.
          By  contrast,  the  rule applied  on  appeal,  Evidence
Rule    801(d)(1)(A)s   prior-inconsistent-statement   provision,
requires the declarant to testify and be available for meaningful
cross-examination.   When  realistically  viewed,  the   findings
required  under  the states newly raised theory  flatly  conflict
with  the superior courts express finding that T.E. was  in  fact
not available to testify  a finding specifically requested by the
state  and  authorized  under Rule  804(a)(3).47   The  court  of
appealss conclusion that T.E. was available for meaningful cross-
          examination also conflicts with the trial courts finding that
T.E.s  statements  met the guarantee of trustworthiness  required
under Rule 804(b)(5)  a finding implicitly determining that cross-
examination would not provide any meaningful benefit to Vaska.48
          To  be sure, as the state now points out, a finding  of
unavailability  under Rule 804(a)(3) does not necessarily  equate
to  a  legal determination that the witness could not  have  been
meaningfully  cross-examined in a  way  that  would  satisfy  the
accuseds  constitutional  right  of  confrontation.49   But  this
abstract  constitutional distinction begs the practical  question
at  issue here: whether the particular manner in which the  state
chose  to present its case at trial could have influenced  Vaskas
tactical   choices.   Here,  as  already  mentioned,  the   state
terminated  T.E.s direct examination at the earliest opportunity,
without questioning her about any circumstances relevant  to  the
case  at  hand and without making any attempt to lay a foundation
for  introducing  her earlier declarations as prior  inconsistent
statements.   The  state  then immediately  asked  to  have  T.E.
declared unavailable and simultaneously asked the court to  admit
her out-of-court statements under the catchall exception.
          At  no  time during the trial did the state do  or  say
anything  to suggest that it might later seek to introduce  T.E.s
out-of-court  statements on a basis that  would  authorize  their
admission   only  if  T.E.  actually  testified  and   could   be
meaningfully cross-examined.  Given that the states chosen theory
of  admissibility at trial did not require T.E. to  testify  and,
indeed,  assumed that cross-examination would be  unhelpful,  the
totality of the circumstances could easily have led Vaskas  trial
counsel  to conclude  quite reasonably  that cross-examining  her
would  be  pointless,  even though under different  circumstances
asserting that procedural right might have been crucial.
          As  the  state  itself recognizes, Vaskas  decision  to
waive cross-examination at trial reflects a tactical choice.  Yet
despite  this  recognition, the state  ignores  the  most  likely
tactical  explanation for Vaskas choice: the states own strategic
decision   to  cut  short  T.E.s  testimony,  have  her  declared
unavailable, and ask that her earlier statements be  admitted  on
grounds wholly unrelated to her ability to appear as a witness at
trial  or  to  be meaningfully cross-examined. Theoretically,  of
course,  Vaska  remained  free to cross-examine  T.E;  but  as  a
practical  matter,  the  states tactical  choice  gave  Vaska  no
immediate  reason to conduct cross-examination, and it  suggested
no  foreseeable reason. Indeed, it appears that the  states  most
likely  purpose in deciding to seek admission at trial under  the
catchall exception, instead of on alternative grounds that  would
have  required T.E.s presence, was to spare T.E. from  having  to
face the emotional trauma of cross-examination.50  From the states
perspective at trial, T.E. had no meaningful testimony to  offer,
so  there was no point in initiating an ongoing dispute over  her
present ability to testify and be meaningfully cross-examined   a
dispute  that the state was bound to invite unless it  relied  on
the catchall provision.51
          Under   these  circumstances,  it  is  unrealistic   to
suggest,  as  the dissent does, that Vaskas trial counsel  had  a
          duty to cross-examine T.E. about her prior statements to her
mother,  or to call her back for cross-examination, if he  wanted
to  avoid losing Vaskas right to challenge the states future (but
then-unforeseeable)  efforts to have  T.E.s  statements  declared
admissible  on  new grounds.  While it might  be  correct  as  an
abstract  legal proposition to say that T.E. was always available
and  could have been cross-examined, by any practical measure the
proposition is hardly convincing.52
          In  summary,  when  the  state  chooses  not  to  offer
evidence under the prior-inconsistent-statement theory at  trial,
fails to lay a proper foundation for admission under this theory,
and  relies  instead  on  the catchall  exception,  its  tactical
choices could easily lead the accused to reasonably believe  that
the  declarants testimony and testimonial credibility are not  at
issue  and  that  no question of inconsistency has  been  raised;
these beliefs may in turn shape the accuseds conduct at trial  by
persuading him that, under the circumstances, the inherent  risks
of  cross-examining the declarant outweigh the potential benefit.
If  the  state  later invokes Rule 801(d)(1)(A) on  appeal  in  a
situation like this, we think that the foundational conditions of
Rule  801(d)(1)(A) should generally be enforced  because  of  the
crucial  role  they  can  play in avoiding  surprise  and  unfair
prejudice.    Considering  the  totality  of  the   circumstances
presented in this case, we are unable to conclude that the  state
laid  an adequate foundation for admitting T.E.s prior statements
to her mother under Rule 801(d)(1)(A).
            The dissenting opinion nonetheless reasons that T.E.s
out-of-court  statements were alternatively admissible   and  may
actually  have  been  admitted   as prior  identifications  under
Evidence  Rule 801(d)(1)(C).53   Some comments are  in  order  to
explain  why  we  are  unpersuaded  by  the  dissents  thoughtful
discussion of this theory.
          Initially,  we note that our own review  of  the  trial
transcript leaves us unconvinced that the superior court actually
admitted,  or  even  considered admitting,  T.E.s  statements  as
evidence  of  prior identification.  As we read  the  record,  it
seems as likely that the trial court admitted them only under the
catchall exception, Rule 801(d)(1)(A).54  But even if we  assumed
that  Judge Funk found T.E.s statements admissible on this  other
alternative ground, his ruling would provide no occasion for this
court to affirm the court of appealss decision.
          The alternative theories discussed by the dissents have
never been raised  by the state, addressed by Vaskas counsel,  or
considered by the court of appeals; they have been proposed  only
by  the  dissents.   Because adversary  briefing  serves  as  the
foundation of due process in an appellate forum, it would  hardly
seem  right  for  this  court  to rely  on  yet  another  set  of
alternative  legal  grounds  grounds that the  court  of  appeals
never  had an opportunity to consider and that neither party  has
ever  recognized,  let  alone briefed.  Absent  briefing  on  the
issue,  we  are in no position to decide whether T.E.s statements
were  inevitably  admissible  under Rule  801(d)(1)(C)  as  prior
identifications.
          We  granted Vaskas petition to decide whether the court
          of appeals correctly affirmed on the newly raised legal theory
that   T.E.s   statements  were  admissible   under   the   prior
inconsistent  statement  provision, and  we  have  resolved  that
issue.   Our decision on that narrow point does not suggest  that
the  disputed  evidence was inadmissible on other legal  grounds.
To  the  contrary, it leaves the court of appeals ample  room  to
consider  on  remand  any  other  alternative  legal  ground  for
affirming, including harmless error, so long as both parties have
fair  notice of the ground and an opportunity to address it,  and
provided that the ground finds support in the record and  can  be
applied without unfairly altering procedural expectations  formed
during the trial court proceedings.55
IV.  CONCLUSION
          For these reasons, we REVERSE the evidentiary ruling of
the  court  of  appeals on the limited ground that the  rationale
adopted  by  that court was unsound.  We REMAND to the  court  of
appeals  for  further proceedings consistent with  this  opinion,
including  further  consideration  to  determine  whether   T.E.s
statements  were  admissible on other legal grounds  and  whether
improper  admission  of  the statements would  have  amounted  to
harmless error.
CARPENETI, Justice, dissenting in part.
          I  agree with the analysis contained in Part III.B.  of
todays Opinion, which holds that the state failed to establish  a
foundation  for  admitting T.E.s prior statements under  Evidence
Rule 801(d)(1)(A).  But I do not join the Opinion in this regard,
because  I do not believe it is necessary to reach this issue  in
this  case.  The trial courts decision can and should be affirmed
on  the  grounds on which the trial court admitted the  evidence,
identification  of  a  person under Evidence Rule  801(d)(1)(C).1
This  is the thesis of Part II of Justice Matthewss dissent, with
which  I  agree.   For this reason, I join  in  Part  II  of  the
dissent.
          A  review  of the trial record convinces me that  Judge
Funk  correctly admitted the disputed evidence on  the  basis  of
Evidence  Rule  801(d)(1)(C).  That is  a  sufficient  basis  for
affirmance.  Accordingly, I would affirm Vaskas conviction on the
ground  that  the superior court correctly admitted the  disputed
evidence.
MATTHEWS, Justice, with whom CARPENETI, Justice, joins as to part
II, dissenting.
          Todays  opinion holds that because T.E.s statements  to
her  mother  were not offered into evidence as prior inconsistent
statements,  the  court  of  appeals  erred  when  it  held   the
statements   to  be  admissible  on  that  basis.   The   opinion
acknowledges the rule that an appellate court may affirm a  trial
courts ruling on grounds other than those relied on by the  trial
court.   But the court holds that this doctrine cannot be  relied
on in this case because (1) no foundation was established for the
admission  of  the  statements  on prior  inconsistent  statement
grounds and (2) Vaska might have decided to cross-examine T.E. if
he  had known that the statements were offered on the ground that
they were prior inconsistent statements.
          I  disagree and would affirm the decision of the  court
of  appeals  based on the rationale expressed  by  the  court  of
appeals.   In my view a satisfactory foundation for admission  of
the  statements  on  prior  inconsistent  statement  grounds  was
established.  Further, affirming on prior inconsistent  statement
grounds  does not result in unfairness to Vaska because  he  knew
the statements were going to be offered and he had an opportunity
to cross-examine T.E. concerning them and her lack of memory.  In
addition,  I  believe  that the trial  court  also  admitted  the
statements  on  a  separate  ground,  namely,  that   they   were
statements of identification of a person.  I would affirm on this
basis as well.
          I  will  first discuss the trial courts decision,  next
the question of admissibility of the statements as statements  of
identification,   and  last  why  I  believe   that   the   prior
inconsistent statement rationale employed by the court of appeals
is correct and justifies affirmance.
I.   The Trial Courts Decision
          My  first  disagreement  with the  court  is  based  on
differences  as  to  what  happened at  the  trial.    The  court
concludes  that Judge Funk admitted T.E.s out-of-court statements
under Evidence Rule 804(b)(5), the catch-all exception.  Although
I  acknowledge that the catch-all exception was the basis of  the
states  offer,  it was not the sole basis of the superior  courts
decision to admit the evidence.  Instead, Judge Funk admitted the
evidence  on two alternative grounds.  First, he ruled that  Olga
E.s  account of her daughters prior statements was admissible  as
prior identifications.1  Only after this  ruling, and without  in
any  way  receding from it, did he also rule that  the  testimony
would   be  allowed  under  the  catch-all  exception.   In   the
paragraphs that follow I will explain this in some detail.
          Olga  and  the  doctor who examined T.E.  testified  to
several  out-of-court  statements  made  by  T.E.    First,   Dr.
Burgess,  who  examined  T.E.  a  few  days  after  the  assault,
testified that he asked T.E. who hurt her.  She replied:  [M.V.]s
daddys ga-ga  which signified that [M.V.]s father, Vaska, was the
perpetrator.  Second, Olga testified to four prior statements  by
T.E.    First,  she  said that T.E. told her that  her  girl  was
hurting,  girl  being their word for T.E.s  vagina.   The  second
statement  was that T.E. said a ga-ga had hurt her, a  word  Olga
          translated as monster.  Third, prior to Dr. Burgesss examination,
Olga  testified  that T.E. told her that [M.V.]s  dad  hurt  her.
Fourth,  she related how T.E. saw Vaska while she and  T.E.  were
walking  in Russian Mission and identified him to her as the  ga-
ga.
          The  admissibility of the doctors statement is  not  at
issue,  because Vaska did not object to it at trial and  has  not
challenged  its  admission in his petition for hearing.  But  the
doctors  written report was objected to on hearsay grounds.   The
report  included  a  form child abuse report filled  out  by  Dr.
Burgess.   This  form  report is important.   It  contains  T.E.s
statement to Dr. Burgess that [M.V.]s daddys gocha hurt her,  and
sets  out  Olgas account of T.E.s report to Olga of T.E.s  sexual
abuse  by Vaska.  In objecting to the report Vaskas counsel  made
it  clear that his biggest concern was paragraph VIII of the form
report, which is Olgas account of T.E.s statements to Olga.2
          Initially  Judge Funk indicated that the  report  might
come  in  as  a medical record under Evidence Rule  803(4).   But
defense  counsel  pointed  out that  the  identification  of  the
perpetrator  would  not be permitted under that  exception.   The
court  found  that  this observation was well  taken,  but  after
further study indicated that the identification made by the child
would  not  be hearsay under Evidence Rule 801(d)(1)(C)3  if  the
child testified at trial.  In so ruling the court mentioned  Rule
801(d)(1)(C)  expressly,  along with  a  court  of  appeals  case
concerning the rule, Bell v. State.4  At that point the child had
not  yet testified and the court deferred ruling on the admission
of the report.5
          Subsequently,  there was a colloquy  on  whether  Olgas
testimony  was inadmissible as hearsay, and it was this  colloquy
that led to the ruling challenged here.  The colloquy occurred in
the  interval after Dr. Burgess and T.E. had testified and before
Olga  took  the stand.  Immediately after T.E. was  excused,  the
prosecutor  asked  that the court declare T.E. unavailable  under
Rule  804(a)(3),  so  that her out-of court statements  could  be
admitted under the catch-all exception of Rule 804(b)(5).   Under
Rule 804, a declarant (here T.E.) is unavailable to testify where
the  declarant establishes a lack of memory of the subject matter
of  the declarants statement.6  If a declarant is unavailable  in
this  way,  her  out-of-court statements can come in  under  Rule
804(b)(5)  provided the other, somewhat open-ended  prerequisites
of  that  rule are also met.  In making the offer, the prosecutor
said  he  would  be seeking to admit certain statements  made  by
[T.E.],  so  that  it  doesnt have  to  come  up  every  time  as
potentially   as  an  objection.   The  prosecutor   noted   that
statements  made by T.E. could also be admitted under some  other
grounds.   The prosecutors offer was thus evidently an effort  to
save  time and avoid numerous objections during Olgas forthcoming
testimony;  it  amounted to an attempt to  have  Olgas  testimony
declared  admissible in advance.  The content of  this  testimony
was  familiar to both parties, inasmuch as Olga had testified  at
the first trial about T.E.s statements.
          In   response   to  this  offer  (and  throughout   the
colloquy), defense counsel never argued that T.E.s lack of memory
          had not been established, or that the court should not declare
her  unavailable.  Instead, after the offer, Judge  Funk  pointed
out  that  one  of T.E.s out-of-court statements  had  [come]  in
already  without objection.  This was a reference to Dr. Burgesss
testimony.  Defense counsel responded  apparently to explain  why
he did not object to the doctors testimony  noting that once T.E.
testified the doctors testimony would be admissible under 801 and
my reading of the Bell case.  The reference to the Bell case was,
again, a reference to  Bell v. State.7  In Bell, the court stated
that even if an out-of-court statement could not come in under an
exception   for  medical  diagnoses,  the  statement   might   be
admissible as a prior identification under 801(d)(1)(C).8
          As  I  have  noted, Bell had already  come  up  in  the
colloquy  over whether to admit the doctors medical  report  into
evidence,  so  Judge  Funk  was familiar  with  the  case.   This
discussion  of  Bell seemed to prompt the court to conclude  that
the out-of-court statements to Olga should be admissible as prior
identifications under Rule 801(d)(1)(C), even though  the  states
offer  had  been  based  on  the  catch-all  exception  of   Rule
804(b)(5).   Specifically, both defense  counsel  and  the  court
recognized  that one issue was admissibility under Evidence  Rule
801.   Defense  counsel mentioned the rule  explicitly,  and  the
court  described  the rule by its subject, prior identifications.
After  the  court  stated that one of the childs  statements  had
already come in without objection, the colloquy continued:
               MR.  SOBERAY:  I understand that because
          my  reading  of the Bell case was  such  that
          unless she testifies -- if she doesnt testify
          then they wouldnt be admissible.  If she  has
          testified under 801, I think its admissible.
          
               THE  COURT:  It appears to  me   I  mean
          theyre  a  little ambiguous in  the  way  the
          Court   of   Appeals  and  Judge   Singletons
          language makes it ambiguous but it appears to
          the  court that if the defendant[9] testifies
          then,  if  what  it is is an  identification.
          Then prior identifications are admissible.
          
               MR. SOBERAY:  Right.
          
               THE COURT:  And that appears to be whats
          the   issue  bef  --  in  this,  is  a  prior
          identifications. . . .
          
(Emphasis  added.)   Judge  Funk then expanded  on  this  with  a
statement  that seemed to be based not only on Rule  801(d)(1)(C)
(prior  identifications),  but also  on  a  case  not  previously
mentioned by the parties, Natkong v. State:10
          Under  Natkong v. State, Alaska App. 96,  the
          court had faced issues where a lack of memory
          or  refusal to testify came up and the  Court
          of  Appeals affirmed [the] ruling that  prior
          statements  describing  the  sexual  amus  --
          abuse  were  admissible.  It appears  to  the
          court  that  if you consider that  they  were
          statements by a very young girl to more  than
          one  person,  that  they  --  or  issues   of
          identification,   that   they   were   issues
          involving   sexual  abuse   that   there   is
          consistent   case   law   that   such   prior
          statements, prior identifications,  come  in.
          That   theres   no  reason  to  believe   any
          particular   reasons  to  find   that   these
          statements  are  so  unreliable  as   to   be
          inadmissible.  Certainly the extent  of  such
          statements and the -- are a subject  for  the
          weight  to  be considered by the  jury  after
          appropriate  cross examination argument.   So
          the  court would allow the mother to  testify
          as   to  the  statements  that  [T.E.]   made
          concerning  identification of  the  defendant
          and/or   concerning  the  sexual  abuse   she
          suffered at the age that she was at the time.
          Do we need anything else at this point.
          
(Emphasis added.)
          Natkong construes Rule 801(d)(1)(A), which admits prior
inconsistent  statements  of a witness that  would  otherwise  be
hearsay.11  Judge Funk may have been saying that T.E.s  inability
to  remember  the  assault, which the state  had  said  made  her
unavailable for purposes of the catch-all, was also what made her
testimony inconsistent with her prior out-of-court statement  for
purposes  of  Rule 801(d)(1)(A).  But this reference  to  Natkong
does  not  clearly show that Judge Funk also relied  on  a  prior
inconsistent  statement rationale for admitting the evidence  for
two  reasons.   First,  Natkong  contains  a  discussion  of  the
admission  on prior identification grounds of statements  that  a
witness  has  forgotten.12  Second, Natkong contains  a  sentence
that  mentions  Rule 804(b)(5), the catch-all, as  an  acceptable
alternative  ground  for  admitting  the  out-of-court  statement
involved there.13  The important point, in my view, is that  this
part   of  the  colloquy,  with  its  many  references  to  prior
identifications,  its discussion of the Bell case,  and  counsels
express mention of Rule 801, indicates that the mothers testimony
was   found   admissible   because   it   satisfied   the   prior
identification criteria of Rule 801.
          After  this  ruling, Vaskas lawyer did  not  object  or
directly  register his disagreement with the courts  decision  to
allow the mother to testify as to the statements that [T.E.] made
concerning identification of the defendant and/or concerning  the
sexual  abuse she suffered at the age that she was at  the  time.
Instead   he   raised  the  possibility  that  the   out-of-court
statements might be thought admissible under a different  hearsay
exception, not mentioned by the court or the state  and  then  he
explained  why  he believed this exception did not  apply.   More
specifically, after the court asked if we need anything  else  at
this  point, defense counsel asked to just make my argument, even
though he said he understood that the court has ruled.  Urged  to
          continue, Vaskas lawyer then cited several cases, among them
Greenway  v. State,14 discussing the common law hearsay exception
for first reports of a sexual assault.  Although up to this point
this  exception had not been raised by anyone, the defense argued
that  the  exception should not apply because too much  time  had
supposedly elapsed between the assault and T.E.s report.15
          Judge  Funk  responded by saying that [t]he court  will
still   allow  the  out-of-court  statements.   He  appeared   to
appreciate that Vaska was arguing that the first report exception
should not apply, but did not, at least not clearly, address this
exception.   Instead  he  said that any delay  in  reporting  the
assault  was  irrelevant, because its not just a witness  talking
about a prior event, but it is someone identifying a defendant as
causing  an  injury, it is a specific prior statement  about  sex
abuse.  (Emphasis added.)  This again suggests a reliance on  the
prior  identification.  But then, right at the  end,  Judge  Funk
concluded  in  a  way that suggested he thought the  out-of-court
statements  in the mothers testimony were admissible  under  Rule
804(b)(5), the catch-all exception initially raised by the state.
Specifically,  the  court  said that  the  time  lag  was  not  a
sufficient basis, given broad general exceptions under  804(b)(5)
to  exclude the testimony by the mother of statements made . .  .
by  her  daughter, concerning this incident.  On this  note,  the
colloquy  came  to  a close.  Defense counsel made  a  continuing
objection  to  Olgas  testimony  so  as  to  not  interrupt  that
testimony, which the court acknowledged, and then Olga was called
to the stand.
          Putting  aside  for a moment whether  the  decision  to
admit  the  evidence was erroneous, I draw two  conclusions  from
this colloquy.
          First, Judge Funks initial ruling  the one in which  he
discussed   Bell   and   made  numerous   references   to   prior
identifications   must  be evaluated  on  review.   This  is  the
clearest  statement  of  the  courts rationale,  and  unlike  the
somewhat  haphazard response to Vaskas first report argument,  it
was  clearly  based on independent research and some forethought.
This   first  ruling  was  based  at  least  in  part   on   Rule
801(d)(1)(C), the prior identification rule.  This is seen in the
courts  (and defense counsels) references to Bell, in the  courts
repeated characterization of T.E.s statements as prior identifica
tions,  and  in defense counsels reference to Rule  801.16   When
evidence  is  admitted on two or more grounds, one of  which  has
been correctly applied and justifies the admission, admitting the
statement is not grounds for reversal.17
          Second,  it should be clear that insofar as Judge  Funk
relied  on the catch-all ground under Rule 804(b)(5), this ruling
was based on T.E.s unavailability, which in turn was based on her
apparent  inability  to remember the assault and  her  statements
concerning  it.   Vaska never contested her lack of  memory,  and
does  not  do so on appeal.  He states, without sarcasm,  in  his
reply brief that T.E.s memory loss amounted to virtual amnesia  .
. . .
II.  The  Trial  Courts Decision on Prior Identification  Grounds
     Was Not Erroneous.
     
          It seems clear to me that T.E.s out-of-court statements
were  admissible as statements of identification of a person made
after  perceiving the person under subpart (C) of Rule 801(d)(1).
T.E.  told her mother prior to Dr. Burgesss examination but after
T.E.s report of vaginal irritation that [M.V.]s dad [Vaska]  hurt
her.   In  addition,  sometime later  while  walking  in  Russian
Mission  with  Olga,  T.E. identified  Vaska  as  the  ga-ga,  or
perpetrator  of  the  assault.   These  identifications  by  T.E.
readily  fall  within  the  literal  language  of  the  rule  and
authoritative interpretations of it.18 19
III. The   Court   of   Appeals  Correctly  Affirmed   on   Prior
     Inconsistent Statement Grounds.
     
          In my opinion the court of appeals correctly ruled that
T.E.s  statements  to Olga were admissible as prior  inconsistent
statements  under  Rule  801(d)(1)(A).   As  I  explain  in   the
discussion that follows, an adequate foundation for admitting the
statements  was established and no unfairness resulted  from  the
fact  that the statements were not explicitly admitted  as  prior
inconsistent statements.
          When  a  witness  claims at trial  that  she  does  not
remember  the substance of a prior statement, the prior statement
is  considered to be inconsistent with the witnesss testimony and
it  may be admitted as a nonhearsay statement under Evidence Rule
801(d)(1)(A).20
          Todays opinion treats lack of memory of a statement  as
a  necessary foundational condition for admission of a  statement
as a prior inconsistent statement.21  In the second trial of this
case T.E., then in the fourth grade, testified that she could not
remember  events  when  she was a little  tiny  girl,  could  not
remember  being in the first grade, and indeed could not remember
anything before the third grade.22  The abuse that T.E. suffered,
and  her  statements concerning it, occurred when she  was  three
years  old.  In my view her testimony was sufficient to establish
that  she  did  not remember either the abuse or the  statements,
since  she  said  that she remembered nothing at all  about  that
period  of  her  life.   Thus  it seems  to  me  that  the  first
foundational requirement for the admission of statements that the
witness has forgotten making  lack of memory  was satisfied.
          But the opinion of the court contends that, as a second
foundational  requirement,  T.E.  should  have  been   given   an
opportunity to explain or deny the statements that she made  when
she  was  three  years  old.23  Normally,  of  course,  the  only
explanation for not remembering making a statement is just  that,
not  remembering making the statement.  Where the witness  is  an
adult, it does no harm to make a further inquiry, but in the case
of  a  young  and  frightened  child, conducting  an  examination
seeking some other explanation for unremembered statements  would
typically be both confusing and futile.24
          The  purposes of the opportunity to explain requirement
are  to  avoid  unfair surprise to the adversary; to  save  time,
since  an  admission  by  the witness may  make  extrinsic  proof
unnecessary; and to give the witness a fair chance to explain the
discrepancy.25   In this case considerations of fairness  to  the
          witness are not of concern because T.E. was not unfairly treated.
Likewise,  the  time-saving purpose of  the  requirement  is  not
implicated  because  the truth of T.E.s lack  of  memory  is  not
contested and because it would be an untenable irony to  conclude
that  the  possibility  of  avoiding  delay  could  be  a  reason
justifying  reversing a jury verdict and requiring a  new  trial.
In  theory,  the  first  purpose  of  the  requirement   avoiding
surprise  to  the adversary  might well be a significant  factor.
But  here  it  was not because this case had already been  tried.
Vaska  knew the substance of Olgas impending testimony.26   Thus,
under  the  facts of this case, none of the values sought  to  be
advanced  by  the opportunity to explain foundational requirement
would be prejudiced by not adhering to it.
          Case  law  in  Alaska counsels that the opportunity  to
explain requirement is distinctly optional where the witness is a
young  child.  The leading case is McMaster v. State.27  McMaster
was  accused  of shooting her husband. The couples five  year-old
daughter testified that the father shot himself.28  The state put
a  family  friend on the stand, who testified that  the  daughter
told  him  after  the shooting that she saw her mommy  shoot  her
daddy.29   Over  objection,  the  state  sought  to  admit   this
testimony under the predecessor to Rule 801(d)(1)(A), which had a
substantially  similar opportunity to explain  requirement.   The
child  had  not been asked about the prior statement and  it  was
offered after she had already testified.  Nonetheless, this court
upheld  the  admission  of  the  statement.   We  observed   that
commentators   on   the  law  of  evidence  generally   supported
flexibility   with   respect  to  the  opportunity   to   explain
requirement, including dispensing with it altogether if it  seems
fairer  to  do  so.30   We noted that this relaxed  approach  was
advocated   in  the  case  of  adult  witnesses  without   direct
reflection on the other crucial problem in this case:   the  fact
the  witness  in  question was only five years old.31   In  cases
involving  young  children  we indicated  that  there  were  even
greater reasons not to insist on a mechanical application of this
foundational  requirement:  This is particularly  true  when  the
court is dealing with the testimony of a child of tender years.32
Since  McMaster, in every case in which the failure to adhere  to
the  opportunity to explain requirement has been raised in  cases
involving  young  children, Alaska appellate courts  have  either
approved dispensing with the requirement or have found incomplete
compliance to be sufficient.33
          Based  on the above discussion, I conclude that of  the
two  foundational requirements found wanting by  todays  opinion,
the   first,   lack  of  memory,  was  satisfied.   The   second,
opportunity to explain, would not properly have been required  in
this  case  because any attempt to satisfy it would  likely  have
been  futile,  none of the values sought to be  advanced  by  the
requirement  were  lost  by dispensing  with  it,  and  case  law
suggests  that  it  need  not be applied to  children  of  tender
years.34
          But  the question remains whether it was unfair to rule
on  appeal that the evidence would have been admissible on  prior
inconsistent statement grounds given that it was actually offered
          under the catch-all exception contained in Evidence Rule
804(b)(5).   I   do  not  think that there  was  any  unfairness,
primarily  because admission of the evidence under either  theory
was predicated on T.E.s lack of memory which Vaska decided not to
challenge.
          The  basis  for  invoking  the catch-all  exception  is
unavailability  of  a  witness due  to  lack  of  memory.   Under
Evidence Rule 804(a)(1) a witness is said to be unavailable  when
the witness establishes a lack of memory of the subject matter of
the [witnesss] statement.  As already noted, Vaska did not oppose
the states offer of unavailability on the ground of T.E.s lack of
memory.   If he had wished he could have requested that  T.E.  be
recalled  to  the stand for cross-examination as to her  lack  of
memory on the subject matter of the statements that he knew  were
about to be offered.35  T.E.s lack of memory would also have been
the  foundational basis for admission of her statements on  prior
inconsistent statement grounds.  Since Vaska chose not to  cross-
examine  T.E.  concerning her lack of memory when it  formed  the
predicate  for admission of her statements under Rule  804(b)(5),
there  is  no reason to think that he would have done so  if  her
lack of memory had formed the predicate for the admissibility  of
her statements under Rule 801(d)(1)(A).36
          Moreover, at the time that T.E. testified the  question
of  the admission of Dr. Burgesss written child abuse report  was
still  pending.  Judge Funk had already indicated that the report
might  be  admissible  under  Evidence  Rule  801(d)(1)(C)  as  a
statement  of identification if T.E. testified but, as  T.E.  had
not yet testified, he had deferred ruling on the admission of the
report.  Vaskas counsel, of course, knew T.E.s testimony was  the
predicate  for admissibility of the child abuse report  on  prior
identification grounds.  The purpose of requiring  a  witness  to
testify  before  a statement of identification  may  be  admitted
under  Evidence Rule 801(d)(1)(C) is so that the opponent of  the
evidence  may  question the witness about the statement  she  has
reportedly made.37  Vaskas counsel thus knew that T.E.s testimony
opened  the  door  for admission of the report  containing  T.E.s
statements to her mother, and that he had an opportunity to cross-
examine her concerning it, yet he chose not to take advantage  of
this  opportunity.38  Again, this points to the  conclusion  that
Vaska likewise would have declined to cross-examine T.E. if T.E.s
statements  to her mother had been offered on prior  inconsistent
statement grounds.
          In summary, because T.E.s lack of memory concerning her
prior  statements would be the predicate for admitting them under
either   the   catch-all  exception  or  as  prior   inconsistent
statements, Vaskas failure to seek cross-examination of her  when
the   evidence   was  being  offered  under  the  former   theory
demonstrates  that he would have done nothing  different  if  the
evidence  had been introduced under the latter theory.   This  is
underlined  by  the fact that while Vaska knew that  the  written
account of the most damning statement that T.E. had made to  Olga
was  pending  admission  as  a  prior  identification,  he  still
declined to exercise his right of cross-examination.
          The  bottom line is that the court is contemplating the
          possibility of a third trial in this case,39 ostensibly to give
Vaska  an  opportunity  to ask T.E. about  the  assault  and  her
statements  concerning it  even though Vaska conceded  that  T.E.
has  no  memory of these matters, and even though  Vaska  had  an
opportunity to cross-examine T.E. about her lack of memory of the
subject  matter  of her statements at a time  when  he  knew  the
statements  were about to be offered, yet showed no  interest  in
doing  so.   I  do not see what unfairness would be  remedied  by
giving Vaska another trial.
IV.  Conclusion
          For  these reasons I would affirm the decision  of  the
court of appeals.
               APPENDIX TO THE DISSENTING OPINION
     THE  COURT:   You  can  leave now, thats  the  end  of  your
testimony maam.
     (Witness excused)
     THE COURT:  Mr. Olson, your next witness?
     MR.  OLSON:  I -- you could just wait right outside.  If  we
could approach?
     THE COURT:  Certainly.
     (Bench conference as follows:)
     (Whispered conversation)
     MR. OLSON:  (Indiscernible - away from microphone).
     THE  COURT:   Well,  I mean, as to what?   As  to  the  next
witnesses testimony?
     (Whispered conversation)
     THE COURT:  Should we discuss this?
     (Whispered conversation)
     THE COURT:  Youd like to discuss this for a while?
     (Whispered conversation)
     THE COURT:  All right.
     (End of bench conference)
     THE  COURT:  Were going to need to send you back to the jury
room  for a little bit to discuss this -- a legal question.   So,
even  though  youve only been here a short while, well  send  you
back,  well  get you back in here as soon as we can.   Thank  you
very much.
     (Pause)
     THE COURT:  Mr. Olson?  The jury is not present.
     MR.  OLSON:  Your Honor, what I am asking to do, rather than
having  to -- number 1, so we can determine the issue but  number
2,  so it doesnt have to come up every time as -- potentially  as
an  objection  is  to  have  [T.E.]  declared  unavailable  under
804(a)(3).
     THE  COURT:   And under 804(a)(3) unavailability of  witness
includes situations in which the declarant establishes a lack  of
memory of the subject matter of his statement.  And.....
     MR.  OLSON:  Then Id, among other things, theres some  other
exceptions  but  Id  be asking that certain  statements  made  by
[T.E.] be admitted under 804(b)(5).
     THE COURT:  Which is the catchall?
     MR.  OLSON:   Thats correct.  And Im just  doing  it  as  an
abundance  of  caution, Your Honor.  This wasnt --  although  the
youth -- wha  the -- my -- the young girl was unavailable in  the
last trial, she was actually physically hiding underneath a table
in  the  library.   So physically couldnt come  in  but  all  the
statements  had  --  were admitted before  but  I  just  want  to
establish  this  and there are some other grounds  for  admitting
certain statements.
     THE COURT:  Mr. Soberay?
     MR. SOBERAY:  Well, if we have the jury out now, I.....
     THE COURT:  Im sorry, I didnt understand the last statement.
     MR.  SOBERAY:  Well, if the jury is out right now,  I  guess
what  the prosecution is asking is for the court to rule  not  on
the availability or unavailability of a witness but to go further
and  determine  whether  or not the out of  court  statements  by
[T.E.] would be admissible.
     THE  COURT:   Well,  one  come -- came  in  already  without
objection.
     MR.  SOBERAY:  I understand that because my reading  of  the
Bell  case  was such that unless she testifies -- if  she  doesnt
testify  then  they wouldnt be admissible.  If she has  testified
under 801, I think its admissible.
     THE  COURT:   It  appears to me -- I mean  theyre  a  little
ambiguous  in  the way the Court of Appeals and Judge  Singletons
language makes it ambiguous but it appears to the court  that  if
the defendant testifies then, if what it is is an identification.
Then prior identifications are admissible.
     MR. SOBERAY:  Right.
     THE COURT:  And that appears to be whats the issue bef -- in
this, is a prior identifications.  Under Natkong v. State, Alaska
App.  96,  the court had faced issues where a lack of  memory  or
refusal  to  testify  came up and the Court of  Appeals  affirmed
Judge  Carpenetis  ruling  that prior statements  describing  the
sexual  amus -- abuse were admissible.  It appears to  the  court
that  if  you consider that they were statements by a very  young
girl  to  more  than  one  person, that  they  --  or  issues  of
identification, that they were issues involving sexual abuse that
there  is  consistent case law that such prior statements,  prior
identifications, come in.  That theres no reason to  believe  any
particular  reasons  to  find  that  these  statements   are   so
unreliable as to be inadmissible.  Certainly the extent  of  such
statements  and  the  --  are a subject  for  the  weight  to  be
considered  by  the  jury  after  appropriate  cross  examination
argument.  So the court would allow the mother to testify  as  to
the  statements that [T.E.] made concerning identification of the
defendant and/or concerning the sexual abuse she suffered at  the
age  that  she was at at the time.  Do we need anything  else  at
this point.
     MR. SOBERAY:  Can I just make my argument.....
     THE COURT:  Certainly.
     MR.  SOBERAY:   .....regarding  that,  Your  Honor?   And  I
understand the court has ruled, Im -- just maybe.....
     THE COURT:  Make an offer of proof, you bet.
     MR. SOBERAY:  Well, essentially, Your Honor.....
     THE COURT:  Theres (indiscernible) to be a ruling.
     MR.  SOBERAY:  Well, essentially, Your Honor, I think we all
know from the previous trial and we would -- wed expect that  the
testimony  would  be rather consistent with what  had  previously
been testified.  So that -- thats the proffer of what essentially
is  -- think the testimony is going to be.  But there is case law
that  goes  back to -- well, the 1970s.  I think it started  with
Torres versus State at 519, 788 where there was an exception  for
sex  crimes  and  the first reporting of abuse or  assault.   But
there  were cases -- a litteny of cases after that that  sort  of
homed  in  on,  you know, what it was that was so reliable  about
this first reporting exception.  And what they basically said is,
you  know, the courts found that it to be reliable based  on  the
fact  that  it  was  the first reporting and  then  they  started
getting  into issues of how much time had passed.  And there  was
one  case thats -- that was cited in Greenway in 1980 -- Greenway
versus  State, which was at 626, 1060 -- 626 P.2d 1060, a Supreme
Court  from  1980  where they cited another  case,  State  versus
Twyford, T-w-y-f-o-r-d, which was a case out of South Dakota from
1971  where  they said a delay of over two months not  reason  to
exclude testimony since victim was only 12 years old.
     The  problem  that we have here is we dont  know  when  this
all  --  when this is supposed to have happened.  The only  thing
that  we  have  is  the spring of 1994 is whats  alleged  in  the
indictment.   So if the spring of 1994 started in --  March  20th
and  this is being reported in -- May 6th or early May, then  the
question  becomes is that such a long delay that we now get  into
the  considerations  that Greenway talked about  in  saying  that
delays  reduce that indicia of reliability.  And I dont have  any
case law and I dont think that any court is going to say its  got
to  be  two  weeks or four weeks -- I dont think theres  anything
like that, I think its a judgment call.  So, we dont know exactly
when,  and I dont think anybody is going to tell us, but I  think
the court could glean some information from the doctors testimony
and that would suggest that some healing had taken place and that
there  had  to be some length of time and so if thats  the  case,
that  -- thats basically my argument.  We just dont know  --  its
just  theres  no  nexus  between when it occurred  and  when  the
reporting   is   done   and  your  indicia  of   reliability   is
substantially reduced and therefore it would be unfair  to  admit
the statements.
     THE  COURT:   The  court will still  allow  it.   The  court
accepts  that what the argument thats being asserted is  is  that
certainly on issues of reliability, newness of the event  to  the
time of report, especially when dealing with adults increases the
level  of  reliability.  And clearly in this  case,  we  --  were
dealing  with  a  very  young child whose  ability  to  carefully
discern  dates,  if  we  had them, would  be  difficult  to  find
reliable.  In this case we dont have any but the court, given the
number  of cases that find because its not just a witness talking
about a prior event, but it is someone identifying a defendant as
causing  an  injury, it is a specific prior statement  about  sex
abuse, it is one where the person testifying is of such young age
that these are always problematic.
     The  court doesnt find that a sufficient basis, given  broad
general  exceptions  under 804(b)(5),  the  court  finds  in  its
discretion  that  given the evidence presented to  date  and  the
review of the court file that the offer of proof is such that the
court believes that testimony by the mother of statements made by
her,   by   her  daughter,  concerning  this  incident  will   be
admissible.  Anything further at this time?
     MR. SOBERAY:  No, Your Honor.
     THE  COURT:  So were ready to -- why dont we call her in and
get her in and situated.
     MR. SOBERAY:  Your Honor, so as not to interrupt, may I have
a continuing objection.
     THE  COURT:   And  --  absolutely.   And  there  will  be  a
continuing objection.  Id much prefer to make sure thats clear on
the  record so I dont have to -- you dont feel compelled to  keep
jumping up and down.
     MR. SOBERAY:  Yes, sir.
     THE  COURT:  Mr. Vaska, that means that your attorney -- the
court  respects  and  has  admitted  for  the  record  that  your
attorney,  if  I didnt say there was continuing objection,  would
want  to  object to each and every question and Id say  overruled
and  not  to have that happen, Ive just -- he has just said  that
hes  going to continue to object to the courts ruling and that  I
have  noted  that  for  the record and Ive denied  all  of  those
objections now to all the questions.  Okay?
_______________________________
     1    Vaska v. State, 74 P.3d 225, 228-30 (Alaska App. 2003).

     2    M.V. is Vaskas daughter and T.E.s cousin.

     3    Vaska v. State, 955 P.2d 943, 944 (Alaska App. 1998).

     4     Vaska  v. State, Mem. Op. & J. No. 4326 (Alaska  App.,
January  10, 2001), 2001 WL 21196, at *3-4.  The court of appeals
remanded for determination whether the superior courts law  clerk
was  biased  against Vaska.  Vaska, 955 P.2d at 947.  On  remand,
the  superior  court decided to sever the two counts.   Vaska  v.
State, 2001 WL 21196, at *1.  The petition now before us concerns
only  Vaskas  conviction on the count charging him  with  abusing
T.E.

     5     Alaska  Evidence Rule 804(a)(3) defines unavailability
to include situations in which the declarant . . . establishes  a
lack of memory of the subject matter of the declarants statement.

     6    Under Alaska Evidence Rule 804(b)(5), if a declarant is
unavailable as a witness, the hearsay rule does not exclude:

          [a] statement not specifically covered by any
          of   the   foregoing  exceptions  but  having
          equivalent   circumstantial   guarantees   of
          trustworthiness, if the court determines that
          (A) the statement is offered as evidence of a
          material  fact;  (B) the  statement  is  more
          probative  on  the  point  for  which  it  is
          offered  than  any other evidence  which  the
          proponent   can  procure  through  reasonable
          efforts;  and  (C)  the general  purposes  of
          these rules and the interests of justice will
          best  be served by admission of the statement
          into evidence.
          
          Alaska  appellate decisions have variously referred  to
this  provision as the residual exception and catch-all exception
to  the hearsay rule.  See, e.g., In re T.P., 838 P.2d 1236, 1239
(Alaska  1992);  In  re A.S.W., 834 P.2d 801,  802,  804  (Alaska
1992);  Cleveland v. State, 91 P.3d 965, 971 (Alaska App.  2004);
Hughes v. State, 56 P.3d 1088, 1091 (Alaska App. 2002).  We refer
to it here as the catchall exception.

     7    Vaska, 74 P.3d at 226.

     8     An appellate court can affirm a correct ruling of  law
by  a  trial court, regardless of the grounds relied upon by  the
trial  court,  if  there exist independent grounds  which,  as  a
matter  of  law, support the trial courts conclusion.   McGee  v.
State, 614 P.2d 800, 805-06 n.10 (Alaska 1980).

     9    Vaska, 74 P.3d at 227.

     10    See generally Vaska, 74 P.3d 225.

     11     McGee,  614  P.2d at 805-06 n.10;  Stordahl  v.  Govt
Employees Ins. Co., 564 P.2d 63, 67 n.16 (Alaska 1977).

     12    Vaska, 74 P.3d at 227.

     13    Id.  The states brief in the court of appeals candidly
stated that neither the state nor the trial court relied on [Rule
801(d)(1)(A)]  as  a  basis  for  admitting  T.E.s   out-of-court
statement . . . .

     14    Cf. Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000)
(stating  that, for admission of hearsay statement under Evidence
Rule 803(1), [t]he burden is on the proponent of the evidence  to
establish  the  foundational  facts  necessary  for  the  hearsay
exception).

     15    [I]nconsistency is not limited to diametrically opposed
answers but may be found in evasive answers, inability to recall,
silence,  or  changes of position.  United States v. Dennis,  625
F.2d  782,  795  (8th  Cir.  1980) (interpreting  Fed.  R.  Evid.
801(d)(1)(A))  (citing  United States v. Rogers,  549  F.2d  490,
495-96  (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977));  see
also  Richards  v. State, 616 P.2d 870, 871 (Alaska  1980)  (When
[the declarant] testified at trial that he had forgotten much  of
what  he had seen that night, the tape was admissible as a  prior
inconsistent statement.).

     16    See, e.g., Wassilie v. State, 57 P.3d 719, 722 (Alaska
App.  2002) (affirming admission under Evidence Rule 801(d)(1)(A)
where  elderly  witness could not recall at trial  statements  he
made to police investigating assault); Brandon v. State, 839 P.2d
400, 411-12 (Alaska App. 1992) (upholding admission where witness
had no memory at trial of prior statements); Van Hatten v. State,
666 P.2d 1047, 1049-51 (Alaska App. 1983) (holding feigned memory
loss inconsistent with prior statement).

     17    A.R.E. 801(d)(1)(A)(ii).

     18     Commentary, A.R.E. 801(d)(1)(A).  The commentary  for
Rule 801(d)(1)(A) refers to the foundation requirement for Alaska
Evidence Rule 613, which generally requires asking the testifying
witness  to  identify the statement after being reminded  of  its
substance  and  to whom it was made, and either to  admit  having
made the statement and explain the circumstances, or to deny  it.
Commentary,  A.R.E. 613(b).  Rule 613(b) addresses use  of  prior
inconsistent statements to impeach the declarant.

     19    Id.

     20     If admission is sought under the alternative provided
in Evidence Rule 801(d)(1)(A)(ii), the declarant cannot have been
excused  as  a witness; this implies that inconsistency  must  be
demonstrated  while  there  is  still  an  opportunity  for   the
declarant to testify.

     21    Lowery v. Collins, 996 F.2d 770, 771 (5th Cir. 1993).

     22    McMaster v. State, 512 P.2d 879, 882 (Alaska 1973).

     23    Commentary, A.R.E. 801(d)(1)(A).

     24    United States v. Owens, 484 U.S. 554, 559 (1988).

     25    A.R.E. 801(d)(1)(A)(i).  Although Rule 801(d)(1)(A)(ii)
provides an alternative route for admission in exceptional  cases
when an opportunity to deny or explain can be established because
a declarant has not been excused from giving further testimony in
the  action, this provision has no conceivable application  here.
As  already  mentioned, T.E. was excused and declared unavailable
immediately  after the states preliminary questioning  concluded.
Even  assuming  that  both parties might have  remained  free  to
recall  her for purposes of laying the required foundation during
the  remainder of the trial, neither party had occasion to do so,
because  the  State  failed  to  invoke  the  prior  inconsistent
statement  rule  until the trial was over  and  Vaska  filed  his
appeal.   By  then, of course, no possibility of  recalling  T.E.
existed.

     26    Bodine v. State, 737 P.2d 1072 (Alaska App. 1987).

     27    Wassilie v. State, 57 P.3d 719 (Alaska App. 2002).

     28    Bodine, 737 P.2d at 1073.

     29    Id. at 1074.

     30    Id.

     31    Id.

     32    Wassilie, 57 P.3d at 721.

     33    Id. at 720.

     34    Id. at 721-22 (quoting McMaster, 512 P.2d at 882).

     35    Dissent at 42-44.

     36    512 P.2d 879 (Alaska 1973).

     37    Dissent at 42.

     38    Bodine, 737 P.2d at 1074.

     39     Crook  v.  Mortenson-Neal, 727 P.2d 297, 302  (Alaska
1986)  (On  appeal, we defer to [the superior courts] ability  to
observe  the witnesses demeanor . . . .); McMaster, 512  P.2d  at
882-83  (The  trial judge should exercise his discretion  to  see
that the testimony is fairly presented to the jury.).

     40     McGee, 614 P.2d at 805-06 n.10; Stordahl, 564 P.2d at
67 n.16.  The first case to follow this rule was Ransom v. Haner,
362  P.2d  282,  285  (Alaska 1961) (citing treatise  on  federal
practice).

     41    Vaska v. State, 74 P.3d 225, 227 (Alaska App. 2003).

     42    Id. at 229.

     43    Id. at 228.

     44     A.R.E. 804(b) (requiring unavailability under  A.R.E.
804(a) for hearsay exceptions set out in A.R.E. 804(b)).

     45    A.R.E. 804(b)(5) (defining catchall provision to apply
to [a] statement not specifically covered by any of the foregoing
exceptions).

     46     Id.;  see  also Ryan v. State, 899  P.2d  1371,  1375
(Alaska App. 1995) (quoting Idaho v. Wright, 497 U.S. 805, 820-21
(1990), for the proposition that evidence admitted under catchall
exceptions    must   possess   particularized    guarantees    of
trustworthiness  and  be so trustworthy that adversarial  testing
would add little to its reliability).

     47     Evidence  Rule 804(a) provides: Unavailability  as  a
witness  includes situations in which the declarant  .  .  .  (3)
establishes  a  lack  of memory of the subject  matter  of  [his]
statement[.]

     48    See Ryan, 899 P.2d at 1375 (quoting Wright, 497 U.S. at
820-21).

     49    See, e.g., United States v. Owens, 484 U.S. 554, 563-64
(1988).

     50     Notably,  at  Vaskas  original  trial,  T.E.  was  so
terrified of appearing as a witness that she hid under a table in
the  court  buildings law library and could not be  convinced  to
come out, or even to communicate, despite repeated entreaties  by
the  prosecuting attorney.  After T.E. was unable to testify, the
trial  court evidently admitted her out-of-court statements under
this  courts  opinion in In re T.P., 838 P.2d 1236, 1241  (Alaska
1992),  which  affirmed  a  trial court  decision  applying  Rule
804(b)(5)s catchall exception under similar circumstances.

     51     As  the  trial prosecutor acknowledged in asking  the
superior  court  to  declare  T.E.  unavailable  and  admit   her
testimony under the catchall provision, [W]hat I am asking to do,
rather  than having to  number 1, so we can determine the  issue,
but  number  2,  so  it  doesnt have to come  up  every  time  as
potentially   as   an  objection  is  to  have  [T.E.]   declared
unavailable under [Rule] 804(a)(3). (Emphasis added.)

     52    In this regard, the dissent suggests that, since Vaska
never  contested T.E.s lack of memory and now characterizes T.E.s
memory  loss  as virtual amnesia, there is no reason  to  suppose
that he would have wanted to cross-examine T.E.   Dissent at  39.
But this argument overlooks that Vaskas reason for not contesting
T.E.s lack of memory may well have been precisely the same as his
reason   for  not  seeking  to  cross-examine  T.E.:  given   the
prosecutors  reliance on the catchall exception,  Vaskas  counsel
may simply have seen no reason to think that the state would seek
to  admit  Olga  E.s testimony concerning T.E.s statements  on  a
theory   of  admissibility  that  would  view  T.E.s  pro   forma
appearance on the stand as a proper foundation for admitting  her
prior  statements as prior inconsistent statements.  The  dissent
further  maintains that Vaskas counsel must have been aware  that
T.E.   had  testified,  because  Judge  Funk  treated  her  brief
appearance  as testimony for purposes of admitting  Dr.  Burgesss
report  as  identification  evidence under  A.R.E.  801(d)(1)(C).
Dissent  at  32, 47.  But this argument assumes that Judge  Funks
comments  in  the  colloquy transcribed in the dissents  Appendix
meant  what  the dissent says they meant and that Vaskas  counsel
necessarily would have understood them to have that meaning  when
they  were  made.   As we explain more fully in  note  54  below,
neither assumption seems warranted.  Moreover, even assuming that
the dissents interpretations of the colloquy in the Appendix were
clearly  correct, we fail to see how Vaskas counsels  willingness
to  forgo cross-examining T.E. about statements attributed to her
and  to  her  mother  in Dr. Burgesss report  shows  that  Vaskas
counsel necessarily would have forgone the opportunity for cross-
examination  had the state tried to lay a timely  foundation  for
admitting  Olga  E.s testimony about what T.E. had  said  on  the
distinctly  different  theory that T.E.s  prior  statements  were
prior inconsistent statements.

     53    Dissent at 33-36.

     54     In  our  view,  the record provides ample  reason  to
question  the  dissents  reading of the superior  courts  ruling.
First,  the state never asked to admit T.E.s prior statements  to
her mother under Rule 801(d)(1)(C)s identification provision,  or
on any other ground besides the catchall exception  the provision
that Judge Funk eventually expressly adopted.

          Second, the catchall provision applies by its own terms
only  when an out-of-court statement is not specifically  covered
by  another provision.  A.R.E. 804(b)(5).  It thus seems unlikely
that  Judge Funk would have ruled the statements admissible under
both  Rule 804(b)(5) and Rule 801(d)(1)(C)  at least not  without
clearly indicating that his ruling on the catchall exception  was
a backup rationale.

          Third,   by  requiring  circumstantial  guarantees   of
trustworthiness equivalent to those required under  the  specific
exceptions  listed in Rule 804(b)(1)-(4), the catchall provision,
Rule  804(b)(5),  invites  courts faced  with  motions  to  admit
evidence   under  that  provision  to  consider  the   issue   of
trustworthiness  by comparing the circumstances  surrounding  the
statement   at  issue  with  similar  circumstances  specifically
covered under hearsay provisions that might not strictly apply to
the  case at hand.  Here, Judge Funks colloquy with trial counsel
addressing  analogous  circumstances  covered  by  other  hearsay
provisions  might  simply  reflect his  understanding  that  Rule
804(b)(5)   required  him  to  find  equivalent   guarantees   of
reliability.   This  would  certainly  explain  why  Judge   Funk
repeatedly  discussed the reliability of T.E.s  statements  (see,
e.g.,  Dissent, Appendix at 3: [T]heres no reason to believe  any
particular  reasons  to  find  that  these  statements   are   so
unreliable  as to be inadmissible.).  Such discussion  would  not
have  been  necessary if the judge had simply meant to rule  that
T.E.s  statements were specifically covered by the identification
provision, since, unlike Rule 804(b)(5)s provisions governing the
catchall exception, Rule 801(d)(1)(C)s provisions do not make the
admission  of identification evidence contingent on a finding  of
circumstantial reliability.

          Fourth, Judge Funk had good reason to believe that Rule
801(d)(1)(C)s  identification provision  might  not  specifically
cover  T.E.s  statements.   The  identification  provision   only
extends  to  those narrow portions of a statement comprising  the
identification   itself    it  does  not   allow   admission   of
accompanying  statements describing the offense.  See  Commentary
to  A.R.E. 801(d)(1)(C).  Furthermore, as noted by the  court  of
appeals in Bell v. State, 716 P.2d 1004, 1006 (Alaska App. 1986),
a  case  that Judge Funk discussed in his colloquy with  counsel,
the  identification provision could be read as  being  applicable
only  if  the  declarant  herself . . . testifies  to  the  prior
identification  a condition that was not met here.

          Fifth, it may not be textually accurate to characterize
Judge  Funks  statements regarding Bell and prior identifications
as a ruling that admitted T.E.s prior statements to her mother as
identification evidence under Rule 801(d)(1)(C).  What Judge Funk
said  was  that he would allow the mother to testify  as  to  the
statements  that  [T.E.] made concerning  identification  of  the
defendant  and/or concerning the sexual abuse.  Dissent  Appendix
at 3 (emphasis added).  This merely describes what evidence Judge
Funk  meant to admit; it does not say what legal ground he relied
on  in  deciding  to admit it.  To view this  as  a  ruling  that
admitted  the disputed evidence under Rule 801(d)(1)(C) overlooks
the  judges conspicuous failure to specify that provision as  the
ground for his ruling.  It also overlooks the judges simultaneous
reference  to  admitting testimony concerning  the  sexual  abuse
evidence  that  could not have been covered by Rule 801(d)(1)(C)s
identification provision.

          Finally,  the catchall exception was the only exception
Judge  Funk was ever asked to apply as a basis for admitting  the
disputed  evidence.  Immediately after the judge  ruled  that  he
would    admit   evidence   of   T.E.s   statements    concerning
identification and sexual abuse, Vaskas counsel asked to complete
his  argument on the point, and Judge Funk invited him to  [m]ake
an offer.  Vaskas counsel proceeded to complete his argument, and
Judge  Funk returned to the one subject he had not yet addressed:
the legal ground for his initial decision to admit this evidence.
The  judge then explicitly stated that he based his ruling on the
broad general exceptions under 804(b)(5), the catchall provision.

          In  sum,  we  think that, when viewed as a  whole,  the
record leaves the dissents reading of Judge Funks ruling arguable
at  best;  the ruling is also amenable to an alternative reading:
After thoroughly considering the catchall exceptions prerequisite
of circumstantial trustworthiness in light of other hearsay rules
that  concerned  similar evidence but did not specifically  cover
Vaskas   case,  Judge  Funk  found  that  T.E.s  statements   had
equivalent trustworthiness to similar evidence routinely admitted
under  those exceptions, so he admitted her statements under  the
catchall exception.

     55     The dissent criticizes the bottom line of our opinion
for  contemplating the possibility of a third trial in this case.
Dissent  at  49.   But our decision under the prior  inconsistent
statement  rule  finds  support in decisions  from  other  states
reversing  convictions  in analogous situations.   See  State  v.
Daniels, 682 P.2d 173 (Mont. 1984);  Felix v. State, 849 P.2d 220
(Nev.  1993),  superseded on other grounds by rule as  stated  in
Evans  v.  State, 28 P.3d 498 (Nev. 2001); State v. Rohrich,  939
P.2d  697  (Wash. 1997).  Furthermore, the dissents concern  that
our decision contemplates a new trial is unfounded.  If the court
of  appeals  confirms  on remand that the disputed  evidence  was
admissible  as  identification evidence (as the dissent  contends
that  it is), then no new trial will be needed; the same will  be
true  if  it turns out on remand that the evidence was admissible
under the catchall exception or some other alternative theory; or
that its erroneous admission amounted to harmless error.  And  of
course,  if it turns out that the evidence was admitted in  error
and that the error was not harmless, then it is completely beside
the point to consider how many prior trials Vaska has had.

     1     Indeed, we have repeatedly held that we can affirm  on
any  basis supported by the record, even if not relied on by  the
trial  court.   See, e.g., Atcherian v. State, Dept  of  Revenue,
Child  Support  Enforcement Div., 14 P.3d 970,  974  n.8  (Alaska
2000)  (We  may affirm a superior courts decision on  any  ground
that   appears  in  the  record.).   See  also  Sopko  v.  Dowell
Schlumberger,  Inc., 21 P.3d 1265, 1269 (Alaska 2001)  ([W]e  can
affirm  a  grant  of  summary judgment  on  alternative  grounds,
including grounds not advanced by the lower court or the parties.
Moreover,  we will consider any matter appearing in  the  record,
even  if  not passed upon by the lower court, in defense  of  the
judgment.).   When  the trial court specifies  a  basis  for  its
decision  with  which we agree, the case for affirmance  is  even
stronger.

1      I  have  attached  as  an  appendix  the  portion  of  the
transcript  that  contains these rulings.  The  ruling  on  prior
identification grounds is found at page 3 of the appendix.

2     The  form  report  sets out T.E.s  statements  to  Olga  as
follows:

          Child told mother that her girl hurt for four
          days  and mother noted irritation and  slight
          discharge from vagina.  She contd to complain
          of  pain  from that area.  Stated that  gocha
          hurt her (monster), then stated [M.V.]s gocha
          and after further questioning she stated that
          [M.V.]s  daddys gocha touched  her  and  hurt
          her.
          
     3    Evidence Rule 801(d)(1)(C) provides:

               (d) A statement is not hearsay if
          
               (1) The declarant testifies at the trial
          or hearing and the statement is
          
               . . .
          
               (C)  one  of identification of a  person
          made after perceiving the person[.]
          
     4    716 P.2d 1004 (Alaska App. 1986).

     5     After  the child testified and the state had presented
its  last  witness the court again took up the  question  of  the
admissibility of the report.  The court ruled that the report was
admissible, particularly that the identifications were  permitted
under the prior identification theory of Bell.

     6    Alaska R. Evid. 804(a)(3).

7    716 P.2d 1004.

     8    Id. at 1006.

     9      The  court  presumably  meant  declarant  instead  of
defendant (since all the exceptions of Rule 801(d) apply only  if
[t]he declarant testifies).

     10   925 P.2d 672 (Alaska App. 1996).

11   Alaska Rule of Evidence 801(d)(1)(A) provides:

               (d) A statement is not hearsay if
          
               (1) The declarant testifies at the trial
          or hearing and the statement is
          
               (A)  inconsistent  with  the  declarants
          testimony.   Unless the interests of  justice
          otherwise require, the prior statement  shall
          be excluded unless
          
               (i)  the  witness was so examined  while
          testifying   as  to  give  the   witness   an
          opportunity  to  explain  or  to   deny   the
          statement or
          
               (ii)  the  witness has not been  excused
          from   giving   further  testimony   in   the
          action[.]
          
     12   Natkong, 925 P.2d at 678 n.5.

     13   Id. at 678.

     14   626 P.2d 1060 (Alaska 1980).

     15   This argument was based on the fact that the indictment
said  the  assault  occurred in spring, which  begins  in  March,
whereas T.E. first reported the crime in May, suggesting a gap of
perhaps  a  month  and  a  half.   But  the  evidence  at   trial
established that T.E. reported the assault only a few days  after
it occurred.

     16   It is not uncommon for courts to admit, and approve the
admission of, evidence on more than one basis, even when  one  of
the  grounds  for admission is the catch-all ground expressed  in
Rule  804(b)(5).  Judge Funk would have understood  this  because
one  such  case  is Natkong v. State, 925 P.2d 672  (Alaska  App.
1996), which he referred to in his ruling.  Another is Dezarn  v.
State,  832  P.2d  589,  590  (Alaska App.  1992)  (discussed  in
footnote 17).  Courts elsewhere are in accord.  See, e.g.,  State
v.  Robinson,  699  N.W.2d  790 (Minn. App.  2005)  (Subsequently
recanted statements by victim to nurse were offered as statements
of  identification or, alternatively, under the medical diagnosis
and  catch-all  exceptions  to the  hearsay  rule.   Trial  court
admitted them under the medical diagnosis exception.  On  appeal,
statements  were held not admissible under the medical  diagnosis
exception   but   they   were   admissible   as   statements   of
identification  and  under  the  catch-all  exceptions.);  United
States  v.  Obayagbona, 627 F. Supp. 329, 339-41 (E.D.N.Y.  1985)
(Statement  admissible  under three specific  exceptions  to  the
hearsay  rule  as well as under the catch-all.  The trial  judge,
Judge  Weinstein, an eminent evidence expert, observed  that  the
guarantee  of trustworthiness required by the catch-all provision
has  already been demonstrated in the discussion of [the specific
hearsay   exceptions   under  which   the   evidence   was   also
admissible].).

     17    See,  e.g.,  Dezarn, 832 P.2d at  590  (Testimony  was
admitted both as an excited utterance under Alaska Evidence  Rule
803(2)  and  under  the  residual  hearsay  exception  of  Alaska
Evidence  Rule  804(b)(5).   The  court  of  appeals  upheld  the
admission as an excited utterance and concluded that because  the
statement was admissible under Evidence Rule 803(2), we need  not
reach   [the  superior  courts]  alternative  ruling  that  [the]
statement was also admissible under Evidence Rule 804(b)(5).).

18     See,  e.g.,  Buchanan  v.  State,  554  P.2d  1153,   1158
(Alaska  1976), a case foreshadowing and suggesting the  adoption
of  the  prior  identification exception so that  witness  A  may
testify  as  to witness Bs extra-judicial identification  if  the
circumstances surrounding the prior identification were not  such
as  to render it unfair or unreliable, and witness B is available
for  cross-examination.   See also, e.g., United States v. Brink,
39  F.3d 419, 426 (3d Cir. 1994) (Generally, evidence is admitted
under  Evidence  Rule 801(d)(1)(C) when a witness has  identified
the  defendant  . . . but forgets, or changes, his  testimony  at
trial.); Commentary, Alaska R. Evid. 801(d)(1)(C) (An early, out-
of-court  identification  provides  fairness  to  defendants   by
ensuring  accuracy of the identification.  At the same  time,  it
aids  the  government by making sure that delays in the  criminal
justice  system do not lead to cases falling through because  the
witness  can no longer recall the identity of the person  he  saw
commit  the  crime. . . .  Accord, Buchanan v.  State,  554  P.2d
1153,  1158  (Alaska 1976).).  I note also that under Buchanan  a
case-by-case  review of the circumstances surrounding  the  prior
identification for reliability is appropriate.

     19    In  deference to the position of my colleagues,  I  am
willing  to  assume for purposes of discussion that  Judge  Funks
ruling  that  he  would allow the mother to  testify  as  to  the
statements  that [T.E.] made concerning identification  indicated
not  that  he was admitting the mothers testimony directly  as  a
prior  identification  but instead that  because  he  viewed  the
testimony   as   equivalent  in  trustworthiness   to   a   prior
identification,   he  was  admitting  it  under   the   catch-all
exception.   If  so,  it  seems  to  me  that  the  question   of
admissibility would be put to rest by deciding that admission  on
prior  identification grounds would have been proper.  It  should
be easier, not more difficult, to admit evidence that satisfies a
direct hearsay exception on the basis of the particular exception
rather  than under the multi-factored catch-all rule.  And unlike
the prior inconsistent statement basis in the present case, there
are  no arguably unmet foundational rules in connection with  the
statement of identification ground.  All that is required  is  an
identification and that the declarant testify.

     20   See Wassilie v. State, 57 P.3d 719, 722-23 (Alaska App.
2002) (reviewing federal cases).

     21   See Slip Op. at 8-12.

     22   See the excerpt of the transcript quoted in the opinion
of the court at pages 4 and 5 supra.

     23     Slip   Op.  at  8-12;  the  opportunity  to   explain
requirement is expressed in Evidence Rule 801(d)(1)(A)(i) set out
supra at note 11.

     24    At  the  first  trial  T.E. was  so  frightened  that,
according to Vaska, she hid from the prosecutor and the judge and
refused to come out from under a desk . . . .

     25   McCormick on Evidence  37 at 133 (5th ed. 1999).

26    At  the  first  trial T.E.s statements to Olga  identifying
Vaska as the person who had abused her that were made before  the
visit  to  Dr.  Burgess were admitted without  objection.   T.E.s
later identification of Vaska during the walk in the village  was
elicited by Vaskas counsel on recross-examination.

     27   512 P.2d 879 (Alaska 1973).

     28   Id. at 882.

     29   Id. at 880.

     30   Id. at 883 (quoting McCormick Law of Evidence  37 at 70
(1954)).

     31   Id.

     32   Id. at 882.

     33    See,  e.g.,  Richards v. State, 616 P.2d  870,  871-72
(Alaska  1980).   (When Lonnie testified at  trial  that  he  had
forgotten  much  of  what he had seen that night,  the  tape  was
admissible as a prior inconsistent statement.  And under McMaster
the  prosecution was not required to allow Lonnie to explain  his
inconsistent  statement before introducing  it,  because  of  his
young  age.) (citations omitted); Bodine v. State, 737 P.2d 1072,
1075 (Alaska App. 1987) (general questions found to be sufficient
compliance  since  [i]n  determining  the  sufficiency   of   the
foundation  for  admission of prior inconsistent statements,  the
trial  court is allowed considerable latitude, particularly where
the witness is a young child.); Yatchmenoff v. State, Mem. Op.  &
J. No. 4717, 2003 WL 21350242 (Alaska App., June 11, 2003) (child
was  confronted  with  several but not all  of  the  inconsistent
statements  that  were admitted; noting the  generally  fruitless
result  of  the  confrontation the court held that  the  superior
court  had not abused its discretion in finding that an  adequate
foundation had been laid); accord Wassilie, 57 P.3d at 722 (where
prosecution sought to introduce elderly witnesss prior  statement
after  witness  had  been excused, prior statement  was  properly
admitted  even though the witness was not asked about  his  prior
statement or requested to explain or deny it, because witness was
confused and further testimony was not apt to be useful).

     34    In  addition,  since  none  of  the  purposes  of  the
opportunity  to explain requirement would have been  advanced  by
adhering  to  it  in this case, any complaint by  Vaska  that  it
should  have  been  followed falls within the realm  of  harmless
error.   Civil Rule 61 teaches that courts at every stage of  the
proceeding  must disregard any error or defect in  the  procedure
which  does  not  affect the substantial rights of  the  parties.
Todays  opinion  suggests  that a  substantial  right,  namely  a
defendants  right  to rely on the States burden  of  proof  in  a
criminal  case,  is  affected  when the  opportunity  to  explain
requirement  is not followed.  Slip Op. at 11.  I do  not  agree.
The  burden  of  proof  at  all  times  remains  with  the  state
regardless   of  whether  or  not  the  opportunity  to   explain
requirement is followed.  The suggestion to the contrary  by  the
court would make the explicit alternatives to the opportunity  to
explain    requirement   that   are   built   into    the    rule
801(d)(1)(A)(ii)  (witness  not  excused  from   giving   further
testimony)  and the interests of justice exception  dead  letters
in criminal cases; it is also inconsistent with McMaster.  Todays
opinion also suggests that the opportunity to explain requirement
is   necessary  to  protect  a  defendants  rights  to  effective
confrontation  and  cross-examination.  Slip Op.  at  11  (citing
United  States  v. Owens, 484 U.S. 554, 559 (1988)).  Owens  held
that the confrontation clause is not violated by the admission of
an out-of-court identification made by a witness who suffers from
memory  loss  at  trial.  The Court held that an  opportunity  to
cross-examine  a  forgetful witness satisfies  the  confrontation
clause:   The confrontation clause guarantees only an opportunity
for  effective cross-examination, not cross-examination  that  is
effective  in  whatever way and to whatever extent,  the  defense
might  wish.   Id.  at  559.   Owens  does  not  state  that  the
opportunity  to  explain  requirement serves  vital  purposes  in
protecting   rights   to  effective  confrontation   and   cross-
examination.   In  fact,  the  opinion  does  not   mention   the
opportunity to explain requirement by name nor does it  refer  to
the Federal Evidence Rule that includes the requirement, F.R.C.P.
613(b)  (relating  to  use  of prior statements  for  impeachment
purposes).

35    The  opponent  of  evidence offered based  on  a  claim  of
unavailability  of a witness arising from the  witnesss  loss  of
memory may cross-examine the witness.  McCormick on Evidence  253
at  128  (5th ed. 1999).  If the witnesss forgetfulness  is  only
partial  we have suggested that resort both to present testimony,
to  the extent of recollection, and hearsay would be appropriate.
In re T.P., 838 P.2d 1236, 1240 n.7 (Alaska 1992).

     36    A  defendants right to cross-examine a  witness  whose
statement  is admitted on inconsistent statement grounds  because
the  witness  does  not  remember making  the  statement  is  not
regarded as meaningless in a constitutional sense.  As the  court
of appeals noted in this case, quoting Justice Harlans concurring
opinion  in  California v. Green, 399 U.S.  149,  188-89  (1970),
which subsequently was adopted by the Court in Owens, 484 U.S. at
558:

          The  fact that the witness, though physically
          available,    cannot   recall   either    the
          underlying events that are the subject of  an
          extra-judicial    statement    or    previous
          testimony   or  recollect  the  circumstances
          under which the statement was given, does not
          have   Sixth  Amendment  consequences.    The
          prosecution   has  no  less   fulfilled   its
          obligation  simply because a  witness  has  a
          lapse of memory.  The witness is, in my view,
          available.   To the extent that  the  witness
          is,  in  a  practical sense, unavailable  for
          cross-examination on the relevant facts,  for
          reasons   stated   [previously],   I    think
          confrontation is nonetheless satisfied.
          
Vaska  v.  State,  74 P.3d 225, 229 (Alaska App.  2003).   Todays
opinion  seems  to agree with this statement.  Slip  Op.  at  20.
This  is  a matter of significance because the question initially
presented  by  Vaska in his petition for hearing  to  this  court
(before  the  scope of the petition was expanded by  this  courts
direction  to brief additional issues) was whether the  court  of
appeals had erred in its reliance on Owens in preference  to  Van
Hatten v. State, 666 P.2d 1047 (Alaska App. 1983).  In Van Hatten
the  court  of appeals rejected the general formula advocated  by
Justice  Harlan in his concurring opinion in Green.  Van  Hatten,
of  course,  was  decided before Justice  Harlans  rationale  was
adopted  by the opinion of the Court in Owens.  The state argues,
and I agree, that this aspect of Van Hatten appears to be out  of
step with current law.

     37   See Buchanan v. State, 554 P.2d 1153 (Alaska 1976).  In
Buchanan  this  court suggested adopting a new exception  to  the
hearsay  rule that became the prior identification rule expressed
in Evidence Rule 801(d)(1)(C).  We stated:

               Although  we do not decide the  question
          at   this  time,  we  also  think  there   is
          considerable  merit  in the  states  argument
          that  a  new  exception to the  hearsay  rule
          should  be  recognized.  The  state  contends
          that  witness A may testify as to witness  Bs
          extrajudicial    identification    if     the
          circumstances    surrounding    the     prior
          identification were not such as to render  it
          unfair  or  unreliable,  and  witness  B   is
          available  for cross-examination.   Professor
          Wigmore  supports such a rule  as do a  large
          number  of courts, both on the basis  of  the
          reliability  of  such  evidence  and  because
          cross-examination is readily  available.   If
          the rationale behind the hearsay rule is that
          the  declarant  cannot be cross-examined  and
          cannot be observed by the trier of fact, such
          rationale  is  inapplicable when  the  person
          actually   making   the   identification   is
          available at trial.
          
Id. at 1157-58 (footnotes omitted) (emphasis added).

     38    I  do  not  question the soundness  of  this  tactical
decision.   I  suspect  that  most  trial  attorneys  would  have
concluded  that  the  possible risks involved in  cross-examining
T.E.  far  outweighed any benefits that might have  been  gained.
Likewise, I do not suggest that Vaska had a duty to cross-examine
T.E.  Contra Slip Op. at 22.

     39    Whether a third trial takes place depends on the court
of  appeals  resolution on remand of the questions whether  Olgas
account of T.E.s statements was admissible on grounds other  than
prior  inconsistent statement grounds and whether any  error  was
harmless.

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