¶1concurring in result on Issue I.
¶2I concur in result as to Issue I, Inconsistent Statements. Willis has waived the issue because it was available on his direct appeal and he does not claim his appellate counsel was ineffective for failing to raise it. I agree with the majority that the particular issue Willis seeks to raise, that the instruction allowed him "to be convicted upon 'evidence' that is not evidence at all-that is, the mere existence of a prior inconsistent statement ... [and deprived [Willis] of his confrontation right as well because it acted as a bar to impeachment on prior inconsistent statements" (Appellant's Brief at 14) was resolved adverse to Willis's position in Smith v. State (1986), Ind., 490 N.E.2d 800, 308. However, I disagree with the implication in the majority decision that Smith in any way addresses the substantial difference in meaning between the words "substantive" and "substantial." In all other respects I concur in the majority opinion.