State v. Otton , 185 Wash. 2d 673 ( 2016 )

Yu, J.

¶ 1 While ostensibly concerning the interpretation of an evidentiary rule, this is actually a case about stare decisis. Petitioner Nakia Lee Otton seeks reversal of his convictions for second degree assault and felony harassment. The victim testified at Otton’s trial, and because her testimony was inconsistent with her prior sworn statement to police about the incident, the trial court admitted the victim’s prior statement as substantive evidence. Otton acknowledges that the trial court’s decision and the Court of Appeals opinion affirming that decision were proper in accordance with this court’s long-standing precedent. He asks us to reject that precedent. We decline the invitation and affirm the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶2 Otton and the victim had a romantic relationship and lived in the same household. The victim was disabled due to a history of multiple brain surgeries and sometimes had difficulties with memory and speaking. Late one night in December 2012, Otton and the victim had a confrontation. After Otton left the house, the victim called 911. When the police arrived, the victim gave a written statement, signed under penalty of perjury, alleging that Otton held her on the bed and against the wall by her neck so that she could not breathe and told her he was going to kill her. The State charged Otton with second degree assault and felony harassment.

¶3 At trial, the victim testified that while she would not have intentionally lied to police, her allegations against Otton were false, and that she had called 911 because she was “angry” and “had a couple of drinks.” 2A Verbatim Report of Proceedings (VRP) (Aug. 7, 2013) at 132. At the State’s request and over Otton’s objection, the trial court admitted the victim’s written statement as substantive evidence pursuant to ER 801(d)(1)(i), in accordance with State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982), and State v. Binh Thach, 126 Wn. App. 297, 106 P.3d 782 (2005). 2A VRP at 212. The jury convicted Otton as charged, and the Court of Appeals affirmed in an unpublished opinion. State v. Otton, noted at 187 Wn. App. 1001, review granted, 184 Wn.2d 1017, 360 P.3d 819 (2015).

ISSUE

¶4 Should this court reject Smith’s interpretation of ER 801(d)(l)(i)?

ANALYSIS

A. Standard of review and principles of stare decisis

¶5 A decision to admit or exclude evidence is generally reviewed for abuse of discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). But in this case, Otton does not challenge the manner in which the trial court exercised its discretion; he challenges the way this court previously interpreted ER 801(d)(1)(i). “‘Interpretation of an evidentiary rule is a question of law, which we review de novo,’” id. (quoting State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)), but we have previously addressed the precise question Otton now raises. We must therefore be mindful of stare decisis.

¶6 “Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). In order to effectuate the purposes of stare decisis, this court will reject its prior holdings only upon “a clear showing that an established rule is incorrect and harmful.” Id. There are also “ ‘relatively rare’ occasions when a court should eschew prior precedent in deference to intervening authority” where “the legal underpinnings of our precedent have changed or disappeared altogether.” W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (internal quotation marks omitted) (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)).

¶7 When a party asks this court to reject its prior decision, it “is an invitation we do not take lightly.” State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011). The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent—“ ‘promoting] the evenhanded, predictable, and consistent development of legal principles, fosterling] reliance on judicial decisions, and contribuí [ing] to the actual and perceived integrity of the judicial process.’” Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)). With these principles in mind, we turn to the precedent Otton asks us to reject—Smith, 97 Wn.2d 856.

B. The Smith decision and its application in this case

¶8 Smith was a case about the proper interpretation of ER 801(d)(l)(i), an evidentiary rule concerning the definition of “hearsay.” “Hearsay” is defined generally as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). “Hearsay is not admissible except as provided by these [evidentiary] rules, by other court rules, or by statute.” ER 802. However, ER 801(d)(1) provides that an out-of-court statement is not hearsay if

[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of peijury at a trial, hearing, or other proceeding, or in a deposition.

Because such a statement is not hearsay, it is admissible at trial as substantive evidence, that is, to prove the truth of matter asserted in the statement.¹

¶9 As noted, it is undisputed on appeal that the victim in this case testified at Otton’s trial, that she was subject to cross-examination about her prior written statement, that the prior written statement was inconsistent with the victim’s trial testimony, and that the prior written statement was given under oath and subject to the penalty of peijury. The only question is whether her police interview was an “other proceeding” within the meaning of ER 801(d)(l)(i).

¶10 When confronted with the same question in 1982, this court declined to issue a categorical ruling that a police interview is either always or never considered an “other proceeding.” Smith, 97 Wn.2d at 861. Rather, we held that “[t]he purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key.” Id. Applying this approach to the facts presented, Smith held that the police interview at issue in that case was an “other proceeding” because “the complaining witness-victim voluntarily wrote the statement herself, swore to it under oath with penalty of perjury before a notary, admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross examination.” Id. at 863. The victim’s sworn statement was therefore admissible as substantive evidence. Id. at 857.

¶11 We have not reexamined Smith since it was issued. However, based on Smith, the Court of Appeals has formulated a four-factor test for determining whether an out-of-court statement by a nonparty witness is admissible pursuant to ER 801(d)(l)(i):

(1) whether the witness voluntarily made the statement, (2) whether there were minimal guaranties of truthfulness, (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement.

Thach, 126 Wn. App. at 308. Otton does not challenge the trial court’s discretionary determinations that the police interview at issue here qualified as an “other proceeding” and that the victim’s written statement was properly admitted in accordance with this four-factor test. He also does not contend that the four-factor test is anything but a faithful application of Smith. Rather, he argues that we should reject Smith.

C. Otton has not shown that Smith is incorrect or harmful

¶12 Smith reasonably held that the phrase “other proceeding” must be interpreted in a way that gives effect to its plainly “open-ended” language, Smith, 97 Wn.2d at 861, and the constraints of the four-factor test articulated by the Court of Appeals prevent the harmfulness that could theoretically flow from an unrestrained, subjective inquiry into “amorphous notions of ‘reliability,’” Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We therefore hold that Otton has not shown that Smith’s interpretation of an “other proceeding” for purposes of ER 801(d)(l)(i) is clearly incorrect or harmful.

1. Otton has not shown that Smith is incorrect

¶13 Where a party asks this court to reject its previous decision, the party must show that the previous decision is “incorrect.” Stranger Creek, 77 Wn.2d at 653. Otton contends that Smith is incorrect because it conflicts with (1) the plain language of ER 801(d)(l)(i) and applicable principles of rule interpretation and (2) decisions of other jurisdictions that have considered similar evidentiary rules. We disagree with both contentions.

a. Interpretation of evidentiary rules

¶14 “This court interprets court rules the same way it interprets statutes, using the tools of statutory construction.” State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408 (2014). We therefore begin with the plain language of the rule. Id. ER 801(d)(l)(i)’s plain language allows prior inconsistent statements by nonparty witnesses to be admitted as substantive evidence if the statements were “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” “Other proceeding” is not defined in the rule, and its meaning is not apparent from the rule’s plain language. Smith therefore appropriately looked to the “history and purposes” of the federal counterpart to ER 801(d)(l)(i). Smith, 97 Wn.2d at 859; see Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P.3d 4 (2002) (statutory ambiguity may be resolved by considering relevant legislative history).

¶15 Smith noted that the first proposed version of the federal rule would have allowed “all prior inconsistent statements to be used as substantive evidence,” but a requirement “that the statement be made under oath, subject to penalty for perjury” was later added “to assure reliability.” Smith, 97 Wn.2d at 859-60. However, further proposals to restrict the rule by requiring greater procedural formalities (that the statements be given during grand jury proceedings and subject to cross-examination at the time they were given) were rejected. Id. at 860. This history shows that statements admitted under the rule must meet a certain level of reliability and must have been given with some level of procedural formality, but that the phrase “other proceeding” was intentionally left “open-ended.” Id. at 861.

¶16 Smith also considered “the original purpose of the sworn statement,” and noted that the statement given in that case “was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause.” Id. at 862 (citing State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971)). The court noted that “‘[o]ther proceeding’ under the rule would clearly cover” three of the four methods—grand jury proceedings, inquest proceedings, and filing a criminal complaint before a magistrate. Id. at 863. It would therefore be an anomaly to categorically exclude the fourth method—“police investigations into alleged criminal activity, and the taking of statements from witnesses and the presentment of them to the prosecuting attorney.” Id. at 862.

¶17 Otton, however, argues that based on applicable principles of statutory interpretation, this court must hold that an “other proceeding” “mean[s] something similar to the preceding specific terms ‘trial’ or ‘hearing.’ ” Suppl. Br. of Pet’r at 6. This, according to Otton, would include “judicial proceedings, often adversarial, where the declar-ant is officially placed under oath and subject to questioning” but not proceedings like those at issue here, where voluntary, sworn witness statements are given outside “a courtroom or governmental office.” Id. at 6-7. Even if we were to assume that this could be a reasonable interpretation in the first instance, it is not compelled by the plain language of ER 801(d)(l)(i).

¶18 By focusing on the terms “trial” and “hearing,” Otton takes into account only some of the context in which the term “other proceeding” is used. However, we must “give[ ] effect to the plain language of a court rule, as discerned by reading the rule in its entirety and harmonizing all of its provisions.” State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (emphasis added). This means we must consider the fact that the plain language of ER 801(d)(l)(i) also includes statements made at depositions, which are not necessarily judicial proceedings and may take place outside of a courtroom or governmental office. Otton’s proposed interpretation also reads into the phrase “other proceeding” terms that are not there. ER 801(d)(l)(i) does not refer to other judicial proceedings or other adversarial proceedings or other formal proceedings. It refers only to an “other proceeding,” a phrase that “does not, in itself, reveal its own dimension.” United States v. Castro-Ayon, 537 F.2d 1055, 1057 (9th Cir. 1976).

¶19 Perhaps most problematically, even if we were to agree that the victim’s statement here was not given at an “other proceeding,” Otton does not propose a workable analytical framework for future cases. See Key Design, Inc. v. Moser, 138 Wn.2d 875, 883, 983 P.2d 653 (1999) (adhering to precedent in part because “Key Design proposes no alternative rule which would provide the clarity and certainty it says the [previous] rule lacks”). He certainly proposes a bright-line rule that witness statements given to investigating police officers are never admissible under ER 801(d)(l)(i), but the suggestions that an “other proceeding” must be adversarial and occur in a governmental building seem untenable. It is not clear how the physical location where a statement is given would necessarily advance the plain language or underlying purposes of the rule, and a grand jury proceeding is clearly an “other proceeding,” even though it is “investigatory,” rather than adversarial, in nature. Castro-Ayon, 537 F.2d at 1058.

¶20 We thus conclude that Smith’s interpretation of ER 801(d)(l)(i) was reasonable and that Otton’s reading of ER 801(d)(l)(i) is not compelled by the rule’s plain language.

b. Decisions from other jurisdictions

¶21 Where our prior interpretation is inconsistent with the decisions of “the vast majority of our sister states,” there may be good reason to reconsider our own approach. Davis v. Baugh Indus. Contractors, Inc., 159 Wn.2d 413, 417, 150 P.3d 545 (2007). However, a decision is not necessarily incorrect merely because it lacks universal acceptance. See Key Design, 138 Wn.2d at 883 (argument “about the rule being extreme, unusually strict, and not generally accepted or favored” held insufficient). In this case, the decisions of other jurisdictions do not show that Smith’s interpretation of ER 801(d)(l)(i) is clearly incorrect.

¶22 We begin with the one jurisdiction that clearly and completely disagrees with Smith—Florida. Florida courts have specifically rejected Smith’s case-by-case approach and instead use a “ ‘bright line’ test” to interpret Florida’s version of ER 801(d)(l)(i). Delgado-Santos v. State, 471 So. 2d 74, 79 (Fla. Dist. Ct. App. 1985). Under that test, an “ ‘other proceeding’ ” does not ever include a “police interrogation.” State v. Delgado-Santos, 497 So. 2d 1199, 1199 (Fla. 1986). However, while the Florida evidentiary rule is textually similar to ER 801(d)(l)(i), the Florida courts faced different considerations than the Smith court did. In light of these different considerations, we cannot say that the Florida courts’ disagreement with Smith clearly shows that Smith is incorrect.

¶23 Notably, in the seminal case establishing Florida’s bright-line test, the court was plainly troubled by the circumstances under which the statement at issue in that case was made: the witness who gave the statement was 16 years old at the time, he was accused of participating in the homicide then under investigation, and he did not give his statement until he had been in custody (“although supposedly not ‘under arrest’ ”) for over six hours and subjected to “a long process of ‘pre-statement interrogation.’” Delgado-Santos, 471 So. 2d at 75. The Florida court freely acknowledged that the “admixture of Ortiz’s youth and the improprieties involved in confining him without arrest and without transporting him to a youth facility” would have been sufficient, in and of themselves, to exclude the proffered statement as substantively unreliable. Id. at 78.

¶24 Nevertheless, the Florida court rejected a case-by-case approach, and it did so explicitly as a matter of legislative deference:

While the legislature and Congress may have been ultimately concerned with the “reliability” of a particular statement, they sought to vindicate that concern only by establishing given and objective criteria as to the circumstances, including the kind of forum, under which it was given. And it is for the legislature, not the courts, to determine not only the policy to be promoted, but the means by which that end is to be achieved.

Id. at 79. In Washington, however, evidentiary rules are adopted by this court pursuant to its inherent powers under the state constitution. State v. Gresham, 173 Wn.2d 405, 428, 269 P.3d 207 (2012). “[W]hen interpreting court rules we are not concerned about usurping the role of the legislature because we alone are uniquely positioned to declare the correct interpretation of any court-adopted rule.” Jafar v. Webb, 177 Wn.2d 520, 527, 303 P.3d 1042 (2013).

¶25 Moreover, ER 801 is subject to amendment according to prescribed procedures, and ER 801(d)(l)(i) has never been amended to reject Smith. See GR 9 (procedures for rule making by this court). When considering challenges to previous statutory interpretations, “[t] his court presumes that the legislature is aware ofjudicial interpretations of its enactments and takes its failure to amend a statute following a judicial decision interpreting that statute to indicate legislative acquiescence in that decision.” City of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009). We may comfortably presume that this court is aware of its own interpretations of evidentiary rules, and here, over 30 years have elapsed since Smith was decided and ER 801(d)(l)(i) has not been amended to reject it.²

¶26 Otton also suggests that federal courts interpreting the federal equivalent of ER 801(d)(l)(i) have rejected Smith’s interpretation. In United States v. Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988), the Seventh Circuit held that “[t]he term ‘other proceeding’ is not unlimited. A typical police station interrogation, for example, is not an ‘other proceeding’ within the meaning of the [federal] Rule [, Fed. R. Evid. 801(d)(1)(A)].” Instead, Dietrich posited that “ ‘[t]he [federal] Rule seems to contemplate situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, under legal authority.’ ” Id. (internal quotation marks omitted) (quoting United States v. Livingston, 213 U.S. App. D.C. 18, 661 F.2d 239, 240 (1981)). That might be a reasonable way to limit the phrase “other proceeding,” but it is not clear why it is more reasonable than Smith’s interpretation, let alone so clearly correct that we must adopt it and reject Smith. The text of ER 801(d)(l)(i) makes absolutely no reference to official verbatim records, and does not clearly intend to limit an “other proceeding” on the basis of specific procedural indicia of reliability beyond those required by the rule’s plain language.

¶27 Moreover, like the Florida court in Delgado-Santos, the federal court in Dietrich was plainly concerned about the fact that the statements at issue were of questionable substantive reliability, in part because they were given by an individual who was under imminent threat of arrest for allegations related to the ultimate crime at issue. 854 F.2d at 1061-62; Delgado-Santos, 471 So. 2d at 75. That concern is fully addressed by Smith and the four-factor test developed by the Court of Appeals, without imposing the inflexibility created by a bright-line rule. See, e.g., State v. Nelson, 74 Wn. App. 380, 388, 874 P.2d 170 (1994) (“Any motive to lie is therefore much less compelling in this case than if [the witness] had been questioned as a suspect.”); see also Tisdale v. State, 498 So. 2d 1280, 1283 (Fla. Dist. Ct. App. 1986) (Glickstein, J., dissenting in part and concurring in part) (“In my view, the ‘bright line’ test effects a lockstep or mind-set that could produce the injustice the test seeks to prevent.”).

¶28 Other federal cases also do not advance Otton’s argument. Some cases, though holding statements made to investigating police were not given at an “other proceeding,” explicitly acknowledge that the purpose of the rule is “to ensure the reliability and truthfulness of any prior inconsistent statement,” and therefore look to “the totality of the circumstances” under which the statement was given. United States v. Day, 789 F.2d 1217, 1223 (6th Cir. 1986); see also Livingston, 661 F.2d at 243. This clearly indicates an approval of a case-by-case approach turning on some indicia of reliability. And the Ninth Circuit has interpreted the federal rule in a manner entirely consistent with Smith, holding that an interrogation by immigration officials is an “other proceeding” under the rule and noting that “the choice of the open-ended term ‘other proceedings’ was intentional.” Castro-Ayon, 537 F.2d at 1058.

¶29 If Washington were an extreme outlier in its interpretation of ER 801(d)(l)(i), we might reconsider Smith, even though it was a reasonable decision at the time it was made and has not been rejected by any intervening rule amendments. However, Washington is not such an outlier. Otton thus fails to show that Smith is clearly incorrect.

2. Otton has not shown that Smith is harmful

¶30 Even if Otton could show that Smith is clearly incorrect, we will not reject our precedent unless it is “both incorrect and harmful.”³ Barber, 170 Wn.2d at 864. However, the four-factor test formulated by the Court of Appeals creates a principled framework for determining whether a prior, inconsistent, out-of-court statement is sufficiently reliable, and ER 801(d)(l)(i) actually requires more objective procedural indicia of reliability than many other states’ rules. Otton therefore has not shown that Smith is harmful.

¶31 Relying primarily on Crawford, 541 U.S. 36, Otton contends that any substantive, case-by-case reliability determination is simply too subjective to be allowed. See Suppl. Br. of Pet’r at 12-14. This argument confuses the requirements of the confrontation clause at issue in Crawford, U.S. Const. amend. VI, with those of the eviden-tiary rule defining hearsay at issue here, ER 801(d)(l)(i). They are clearly not the same:

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.

California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

¶32 The confrontation clause is a procedural guaranty that statements will be tested in “the crucible of cross-examination.”⁴ Crawford, 541 U.S. at 61; see also Green, 399 U.S. at 158 (discussing the purposes of the confrontation clause). An alleged confrontation clause violation is therefore appropriately reviewed as a matter of law—either the confrontation clause was violated or it was not, and the individual perspective and observations of the trial court are not at issue. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007). Meanwhile, evidentiary rules should be applied and interpreted in a manner that promotes their substantive purpose—“that the truth may be ascertained and proceedings justly determined” in each individual case. ER 102. Evidentiary rulings are therefore appropriately reviewed for abuse of discretion. See State v. Sisouvanh, 175 Wn.2d 607, 621, 290 P.3d 942 (2012) (noting the considerations that support reviewing decisions for abuse of discretion).

¶33 Moreover, admissibility pursuant to ER 801(d)(l)(i) is not conditioned on each individual trial court’s unrestrained assessment of reliability. Washington courts must work within a specific four-factor framework. Otton does not point to any published Washington cases that have applied this framework and reached conflicting conclusions, and we can find none. Washington courts have proved themselves well up to the task of evaluating evidence sought to be admitted pursuant to ER 801(d)(l)(i) in a consistent, evenhanded manner.

¶34 To the extent that Otton implies that it is inherently harmful to allow prior inconsistent statements to be admitted as substantive evidence without requiring specific procedural formalities beyond those found in the plain language of ER 801(d)(l)(i), we disagree. Indeed, many states allow the admission of prior inconsistent statements as substantive evidence, even where the prior statements were given with few or no procedural formalities. See Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1, 11 n.29 (2002) (collecting statutes and court rules). Otton does not show those states have suffered any harm. And the beneficial effects of the procedural formalities that are required by ER 801(d)(l)(i)’s plain language are clearly preserved by Smith and its progeny. State v. Lavaris, 106 Wn.2d 340, 343, 721 P.2d 515 (1986) (noting that a statement to police that was not given under oath and subject to the penalty of perjury is not admissible as substantive evidence pursuant to ER 801(d)(1)(i)); State v. McComas, 186 Wn. App. 307, 319, 345 P.3d 36 (same), review denied, 184 Wn.2d 1008 (2015); State v. Nieto, 119 Wn. App. 157, 161-62, 79 P.3d 473 (2003) (same); State v. Sua, 115 Wn. App. 29, 48, 60 P.3d 1234 (2003) (same).

¶35 Otton has not made a clear showing that Smith is incorrect or harmful. We thus adhere to the doctrine of stare decisis and reaffirm Smith’s interpretation of an “other proceeding” for purposes of ER 801(d)(l)(i).

CONCLUSION

¶36 A party asking this court to reject its precedent faces a challenging task. The party must show not merely that it would have been reasonable to reach a different conclusion in the first instance, but that the prior decision is so incorrect and harmful that it would be unreasonable to adhere to it. Otton has not made such a showing. We affirm the Court of Appeals.

Madsen, C.J., and Johnson, Owens, Fairhurst, Stephens, Wiggins, and González, JJ., concur.

1 The statement’s admissibility is subject, of course, to other applicable eviden-tiary and constitutional limitations.

2 This is not to imply that the court would be unwilling to revisit the interpretation of the rule and modify it for clarity through the rule making process.

3 To the extent that Otton argues Smith is harmful because it is incorrect, we reject that argument. Incorrectness and harmfulness are separate inquiries. Barber, 170 Wn.2d at 864-65.

4 We note that the focus of Otton’s argument has shifted somewhat over the course of this appeal. His petition for review to this court appears to contend that Smith is no longer good law following Crawford. Pet. for Review at 9. At oral argument, however, Otton’s attorney acknowledged that Smith's interpretation of ER 801(l)(d)(i) is not jeopardized by Crawford as a matter of constitutional law. Wash. Supreme Court oral argument, State v. Otton, No. 91669-1 (Feb. 18, 2016), at 38 min., 3 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org. We agree. ER 801(l)(d)(i), by its plain language, applies only when “[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement,” so the confrontation clause is necessarily satisfied for any statement admitted pursuant to ER 801(l)(d)(i). See Crawford, 541 U.S. at 61; Green, 399 U.S. at 164.