Brown, J.
Following the presentation of the State’s witnesses, Griffith informed the trial court that he wished to introduce the testimony of two witnesses, Timothy Brinson and Catrina Kennett, to impeach Darren. Griffith stated that the witnesses would testify that Darren had conversations with them following the altercation during which he told a story different than the one to which he testified. The State objected and argued that neither of Griffith’s witnesses were present at the time of the incident and that their testimony was inadmissible hearsay. The State argued that the second reason the testimony of Brinson and Kennett should be excluded was because, “in order to impeach a witness, you have to give the witness the opportunity to deny that he did or said whatever it is your rebuttal witnesses are going to say” and that Darren “was never asked about any conversation with either one of these two witnesses.” Id. at 278. The court sustained the State’s objections. Griffith’s defense counsel stated: “Well I’ll call [Darren] as my case in chief and ask him those questions. Is he still available?” Id. at 279. The prosecutor indicated he did not know if Darren was still available and argued that “there’s no reason that he couldn’t have asked these questions while [Darren] was on the stand” and that “you can’t call a witness just to rebut his testimony.” Id. at 279-280. The court noted that “if you call him and lay the foundation then you can impeach him.” Id. at 280. The court later stated that Indiana courts forbid impeachment of one’s own witness by a prior inconsistent statement if the sole purpose in calling the witness was to place otherwise inadmissible evidence before the jury. Griffith’s counsel stated: “Let me do this Judge. If your ruling is against me let me briefly put [Brinson and Kennett] on to preserve the record and then we’ll go from there,” and the court agreed. Id. at 282.
Outside the presence of the jury, Brinson testified that, approximately two months after the altercation between Griffith and Darren, Darren told him that “he took a two (2) by four (4) and hit [Griffith] a few times with the two (2) by four (4) and then [Griffith] cut him with a knife.” Id. at 284. Kennett stated that, on the day following the altercation, Darren told her that he “had got into it with Summer’s dad” and that he “hit Summer’s dad with a two [] by four [] and then he said Summer’s dad stabbed him after he hit him and then he said he hit him again after [Griffith] stabbed him.” Id. at 287.
Following the offer of proof outside the presence of the jury, the court asked if there was anything further, and Griffith’s counsel responded “No Judge, I have one (1) witness to call and we’ll rest.” Id. The jury entered, and defense counsel called Griffith to the stand. Griffith then testified before the jury that Darren “pick[ed] up [a] stick and then he started coming at [him],” that “[Griffith’s] daughter was standing in front of [Griffith] when this happened,” that Griffith “pushed her out of the way you know to keep her from getting hit,” that he “went up and [] pushed [Darren] back once and that’s when [Darren] hit [Griffith] in the head and [Griffith] pushed [Darren] again . . . .” Id. at 298. Griffith testified that Darren “started rearing back a third time with that two (2) by four (4) [which] is when I swung the first time at him with the blade . . . I just wanted him back and I pushed him again and he just reared back even harder . . . .” Id. at 298-299. Griffith stated that the “first swing” was “a stick that was swung by Darren.” Id. at 304. On cross-examination, the prosecutor asked Griffith to describe the “two [] by four,” confirmed Griffith’s testimony that Darren struck him with a “two [] by four,” and then asked “[a two by four] that the police couldn’t find,” and Griffith replied “I have no idea, I can’t answer that.” Id. at 307. Following Griffith’s testimony, the court asked defense counsel if he had any more witnesses, and defense counsel stated that the defense rested. The jury found Griffith guilty as charged. The court sentenced Griffith to four years in the Indiana Department of Correction.
. . . .
. . . With respect to impeachment, Ind. Evid. Rule 607 provides: “Any party, including the party that called the witness, may attack the witness’s credibility.” However, Ind. Evid. Rule 613(b) provides:
Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
(Emphasis added).
Here, Griffith does not assert that Brinson and Kennett observed any portion of the altercation between Griffith and Darren. To the extent the testimony Griffith wished to elicit from Brinson and Kennett related to the truth of the facts asserted in Darren’s alleged statements, their testimony would have constituted inadmissible hearsay. However, under Evid. Rule 613(b), their testimony that Darren made a prior statement to them which was inconsistent with his trial testimony would have been admissible “only if [Darren] [was] given an opportunity to explain or deny the statement.” Darren was not asked to explain or deny any alleged statement he may have made to Brinson and Kennett which was inconsistent with his trial testimony. Griffith did not call or attempt to call Darren during the presentation of his case in order to provide an opportunity to explain or deny his alleged statements to Brinson and Kennett. As noted above, after the court stated that “if you call him and lay the foundation then you can impeach him” and later that “Indiana Courts forbid impeachment of ones [sic] own witness . . . by prior inconsistent statement if the sole purpose in calling the witness was to place otherwise inadmissible evidence before the jury,” Griffith’s counsel then said: “Let me do this Judge. If your ruling is against me let me briefly put [Brinson and Kennett] on to preserve the record and then we’ll go from there.” Id. at 280, 282 (emphases added). The court said “Alright.” Id. at 282. The colloquy between the court and Griffith’s counsel does not reveal that the court categorically foreclosed the possibility of Griffith calling Darren as a witness as the dissent states. The offer of proof related to what Brinson and Kennett would testify to if Griffith called them as witnesses. However, admitting the testimony of Brinson and Kennett was not proper unless Darren was given the opportunity to explain or deny his alleged prior inconsistent statements. After Griffith’s counsel presented the offer of proof, he did not attempt to call Darren as a witness, but rather called Griffith to the stand. Then, following Griffith’s testimony, the court asked defense counsel if he had any more witnesses, clearly giving Griffith the opportunity to call Darren as a witness. Instead, defense counsel stated “Your Honor the defense rest [sic].” Id. at 324.
Pursuant to Evid. Rule 613(b) it would have been improper for the court to admit extrinsic evidence from Brinson and Kennett of Darren’s alleged prior inconsistent statements without Darren having been given the opportunity to explain or deny the inconsistent statements. See Ind. Evid. Rule 613(b) (providing extrinsic evidence of a witness’s prior inconsistent statement “is admissible only if the witness is given an opportunity to explain or deny the statement”) (emphasis added). C.f. Bald v. State, 766 N.E.2d 1170, 1174 (Ind. 2002) (citing Griffin v. State, 754 N.E.2d 899 (Ind. 2001), on reh’g, 763 N.E.2d 450, but noting that, unlike the witness in Griffin who was impeached by the testimony of another witness, the witness at issue admitted making the prior statement). Also, we cannot say that the testimony Griffith wished to elicit would have been admissible under the hearsay exception found at Evid. Rule 803(3) as the testimony did not relate to Darren’s state of mind or intent at the time of the altercation. See Ind. Evid. Rule 803(3) (providing that the hearsay exception does not apply to statements “of memory or belief to prove the fact remembered or believed”) (emphasis added). Based upon the record, we cannot say the trial court abused its discretion in excluding the testimony Griffith wished to elicit from Brinson and Kennett. Further, Griffith’s defense counsel cross-examined Darren but did not ask him anything concerning the statements to Brinson and Kennett, Griffith did not call or attempt to call Darren as a witness in the presentation of his defense, Griffith testified that Darren took the “first swing” with a piece of wood, see Transcript at 304, and Griffith was not denied the opportunity to impeach Darren’s testimony or present his self-defense claim. [Footnote omitted.]
BRADFORD, J., concurs.
BARNES, J., dissents with separate opinion:
I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements. . . . .
In Orr v. State, 968 N.E.2d 858, 863 (Ind. Ct. App. 2012), prior to Griffith’s trial, another panel of this court adopted the federal interpretation of Evidence Rule 613(b). The Orr panel did state that the preferred procedure is to confront a witness with a prior inconsistent statement before it is introduced into evidence and that trial courts retain wide discretion in deciding the proper sequence for impeachment. The panel made clear, however, that “a party who is able to recall a witness to explain or deny prior statements cannot later object on the basis of Rule 613(b).” Orr, 968 N.E.2d at 862. The panel also noted that Evidence Rule 613(b) permits the introduction of prior inconsistent statements without any opportunity for explanation if “the interests of justice otherwise require.” Id. at 864. The panel concluded:
In determining whether to require a specific sequence, trial courts should consider: the trial court’s inclination to allow the impeachee to be recalled as a witness to explain, the witness’s availability to be recalled, the likelihood of unfair prejudice from repetition of evidence admissible only for impeachment, and other factors, for example, the importance of the credibility of the impeachee to the resolution of the case.
Id. at 865 (citation omitted).
Here, the trial court categorically excluded the possibility of Griffith presenting his impeachment evidence without any examination of whether Darren would be available to be recalled by the State to explain his prior inconsistent statements or of the danger of unfair prejudice. It also is clear that Darren’s credibility about the sequence of events—whether he struck Griffith several times with a large piece of wood before Griffith stabbed him, or vice versa—was very important to the resolution of the case and Griffith’s self-defense claim. The trial court apparently believed Griffith was required to cross-examine Darren about those statements during the State’s case-in-chief, but as Orr had already held, Evidence Rule 613(b) did not require him to do so. The trial court’s ruling was based on a misinterpretation of the law, in my view. . . . .
Also, Griffith proposed to address the trial court’s and the State’s concerns about sequence by offering to first call Darren as his own witness to question him about the prior inconsistent statements before introducing them into evidence. [Footnote omitted.] Again, the trial court categorically refused to allow this procedure. It apparently did so based upon cases such as Griffin v. State, 754 N.E.2d 899 (Ind. 2001), and Appleton v. State, 740 N.E.2d 122 (Ind. 2001). Those cases state that, under Evidence Rule 607, a party cannot call a witness when the party’s sole purpose in doing so is to introduce otherwise inadmissible evidence to the jury cloaked as impeachment. Griffin, 754 N.E.2d at 904; Appleton, 740 N.E.2d at 125. This rule does not apply “where the witness observed the underlying crime and provided, on the stand, other relevant testimony.” Herron v. State, 10 N.E.3d 552, 556 (Ind. Ct. App. 2014). Here, Darren was of course a witness to the crime; he was the alleged victim and testified on behalf of the State. Griffith’s attempt to recall Darren was not just an attempt to introduce otherwise inadmissible hearsay evidence, rather, it was for the purpose of impeaching the testimony he had already given and to give him an opportunity to admit to, explain, or disown the prior inconsistent statements. I do not believe the Griffin/Appleton rule should have barred Griffith’s attempt to recall Darren under these circumstances.
I also observe that, even if it would have been preferable for Griffith to have questioned Darren about his alleged prior inconsistent statements during cross-examination, to completely foreclose his ability to present any evidence of those statements without good reason threatened Griffith’s Sixth Amendment right to present a defense. . . . I conclude the trial court abused its discretion in insisting that Griffith had to ask Darren about the prior inconsistent statements during cross-examination and in not exploring other avenues to allow introduction of those statements, such as by allowing either Griffith or the State to recall Darren.