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n t2 Factual and Procedural History In August 2014, Relator filed a felony co mplaint charging Billy Joe Jordan (Defendant) with first-degree statutory rape, first-degree statutory sodomy, first-degree child molestation and sexual abuse. See § 566.032; § 566.062; § 566.067; § 566.100. 1 All of these charges involve alleged improper sexual activity between Defendant and his granddaughter, M.B. Two weeks prior to the filing of these char ges, M.B. was interviewed by forensic interviewer Carrie Newenham (Newenham) at the Farmington Child Advocacy Center. The forensic interview was observed on closed circuit as the interview took place by Joe Tiffany (Tiffany) and Nancy Raines (Raines), bo th Family Services workers. An audiovisual recording also was made of the forens ic interview (hereinafter referred to as the recording). Prior to the preliminary hearing, Relator notified defense counsel that the State intended to introduce the recording into evid ence. In November 2014, a hearing pursuant to the provisions of § 491.075 (hereinafter re ferred to as the Chap ter 491 hearing) was conducted by Respondent. 2 Newenham testified at that Chapter 491 hearing, and the court found sufficient indicia of reliability to exist and admitted the recording into

1 All references to statutes are to RSMo Cum. Supp. ( 2013) unless otherwise indicated.

2 In a criminal case involving a Ch apter 566 offense, § 491.075 provides a procedure for determining the admissibility of a statement made by a child under the age of 14. The child’s statement is admissible in evidence in a cr iminal proceeding as substantive evidence to prove th e truth of the matter asserted if “[t]he court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide suffi cient indicia of relia bility....” § 491.075.1(1). This statute does not require the person interviewing the child to testify at the Chapter 491 hearing or at trial. Id .; see State v. Sanders , 473 S.W.3d 675, 678 (Mo. App. 2015).3 evidence at the preliminary h earing. Defendant was bound over to circuit court in cause number 14WY-CR00674-01. Thereafter, Relator notified the defense that the State intended to offer multiple statements made by M.B. into evidence at trial pursuant to the provisions of Chapter 491. According to Relator, he then learned that Newenham was no longer employed by the Child Advocacy Center. He contacted Newenha m directly and was advised that, due to the effects of multiple sclerosis from whic h she was suffering: (1) she was physically unable to testify; and (2) her testimony was not feasible because the disease affected her mental capability, including her memory, a nd caused blackouts. Respondent and defense counsel were advised of the situation. In September 2015, another pre-trial Chapte r 491 hearing was c onducted. Relator presented testimony from Kelly Tesson (Tesso n), a forensic interviewer who had taken Newenham’s place, and testimony from Tiffany a nd Raines. Tesson testified that she had viewed the recording and that the interview had been co nducted in a proper manner. Tiffany and Raines testified that they also had viewed the recording and that it accurately reflected the entirety of the forensic interview as they had observed it in real time. They also testified about their indi vidual recollections of what th ey remembered M.B. to have said during the interview. Thereafter, Respondent found that there was sufficient indicia of reliability in the statements made by M.B. during the forensic interview and that the recollections of that interview as testified to by Tiffany and Raines would be admitted into evidence. Respondent ruled, however, the recording itself would not be admitted4 due to noncompliance with § 492.304, in that the forensic interviewer Newenham was not available to testify. 3 In November 2015, Relator filed a motion asking Respondent to reconsider the latter ruling, based on the opini on handed down by this Court in State v. Sanders , 473 S.W.3d 675, 678-79 (Mo. App. 2015) (holding, inter alia , that the testimony of the forensic interviewer was not required for the trial court to determine that the children’s recorded statements were admissible pursuant to § 491.075). Because Sanders did not address § 492.304, Respondent adhered to his former ruling that § 492.304 provides the exclusive statutory procedure for determini ng whether an audio-visual recording of a forensic interview of a child under 14 can be admitted into evidence. Respondent issued an order refusing to admit the recording into evidence unless the forensic interviewer was present and available to testify at trial. Relator then filed the underlying petition in prohibition, seeking to prevent Resp ondent from enforcing his order. Discussion and Decision The trial court’s order excluding the reco rding does not constitute the suppression of evidence that would authorize an interlocutory appeal by the State because the recording was not illegally obtained. See § 547.200.1(3) RSMo (2000); State v. Puckett , 146 S.W.3d 19, 22 (Mo. App. 2004); State v. Rivers , 26 S.W.3d 608, 609 (Mo. App. 2000). If the case were tried to conclusion with the recording ex cluded and judgment entered for Defendant upon a verdict of acquittal , Relator also would not have a right to

3 Section 492.304 sets out a procedure fo r determining the admissibility of a “visual and aural recording” of a statement by a child under the age of 14 alleged to be a victim of specified crimes, including sexual offenses found in Chapter 566. Such a recording is admissible if, inter alia , “[t]he person conducing the interview of the child in the recording is present at the proceeding and available to tes tify or be cross-examined by either party[.]” § 492.304.1(6).5 appeal. See State v. Metzinger , 456 S.W.3d 84, 90 (Mo. App. 2015); State v. Stein , 876 S.W.2d 623, 625 (Mo. App. 1994). For this reas on, a remedial writ is generally the proper method to review an interlocutory order in a criminal case. State v. Eisenhouer , 40 S.W.3d 916, 918 (Mo. banc 2001). Writ relief is appropriate when an important question of law is decided erroneously and would otherwise escape appellate review. In re N.D.C. , 229 S.W.3d 602, 604 (Mo. banc 2007). 4 In the case at bar, Respondent deci ded that § 492.304 provides the exclusive procedure to determine the admissibility of th e recording into evidence in this criminal case. Relator contends th e recording is admissible pursuant to § 491.075. For the reasons that follow, we agree with Relator and grant the writ relief he requests. Whether Respondent has correctly interpre ted and applied a st atute is a question of law which we review de novo. See State v. Bass , 81 S.W.3d 595, 602 (Mo. App. 2002). “When interpreting statutes , our primary responsibility is to ascertain the intent of the legislature from the language used, to give effect to that intent if possibl e, and to consider the words used in their plain and ordinary meaning.” State v. Rousseau , 34 S.W.3d 254, 259 (Mo. App. 2000). When the legi slative intent is apparent from the words used and no ambiguity exists th ere is no room for construction. Id .; Bass , 81 S.W.3d at 602. The principles of statutor y construction also do not apply when two statutes are examined unless there is an irreconcilable conflict between them. See Earth Island Inst. v. Union Elec. Co. , 456 S.W.3d 27, 33 (Mo. banc 2015).

4 In N.D.C. , our Supreme Court concluded that a writ was the proper remedy to review and correct the trial court’s errone ous decision to exclude statements, normally admissible pursuant to § 491.075, to prevent a perceived violation of the Sixth Amendment’s Confrontation Clause. N.D.C. , 229 S.W.3d at 603-04.6 Relator contends Respondent’s eviden tiary ruling did not correctly apply provisions of § 491.075 and § 492.304. Accord ing to Relator, § 492.304 provides an alternative, rather than an exclusive, pro cedure for determining the admissibility of the recording. We agree. Whether these statutes provide an exclusive or alternative procedure for determining the admissibility of a recorded statement was addressed in State v. Benwire , 98 S.W.3d 618, 627 (Mo. App. 2003). There, the interview of the seven-year-old victim was “both videotaped and a udiotaped (evidently because the videotape contained no audio).” Id . at 621. Although the reco rded statements were found to be admissible pursuant to § 491.075, the defendant argued th at the trial court violated § 492.304 by permitting the State to play the audiotap e at trial because § 492.304.1(2) requires the recording to be “both visual and aural[.]” 5 The western district of this Court rejected this argument, concluding that § 492.304 does not exclusively govern the admissibility of the recorded statements: Despite Benwire’s argument that § 491.075 is limited by the requirement of § 492.304.1(2) that th e recording be both visual and aural, the following reference to § 491.075 appears in § 492.304: 2. If the child does not testify at the proceeding, the visual and aural recording of a verbal or nonverbal statement of the child shall not be admissible under this section unless the recording qualifies for admission under section 491.075 RSMo. (emphasis added). Recordings that do not meet the criteria for § 492.304 may still be admissible if they qualify for admission under § 491.075. Further evidence that § 492.304 does not exclusively govern the admission of recordings of the st atement of a child under twelve in these cases is the fact that there ar e numerous instances in which such

5 This particular require ment was one of seven. See § 492.304.1(1)-(7). At issue in this case is the sixth requirement, which requires that the interviewer be present and available to testify. § 492.304.1(6); see supra , n.3.7 recordings have been admitted in to evidence pursuant to § 491.075. See, e.g. , State v. Russell , 872 S.W.2d 866 (Mo. App. 1994); State v. Olson , 854 S.W.2d 14 (Mo. App. 1993); State v. Robinson , 782 S.W.2d 694 (Mo. App. 1989). Benwire , 98 S.W.3d at 627 (bold emphasis added); see also State v. Bohanon , 747 S.W.2d 294, 298-99 (Mo. App. 1988). 6 We agree with the reasoning in Benwire . First, § 492.304.2 expressly recognizes that § 491.075 may provide an alternative procedure for determining admissibility, as noted by the Benwire court. Second, § 491.075 likewise acknowledges possible alternativ e procedures for determining admissibility when it refers to “[a] statement made by a child under the age of fourteen ... not otherwise admissible by statute or court rule ....” § 491.075.1 (emphasis added). In a later subsection, the statute states that “[n]othing in this section shall be construe d to limit the admissibility of statements, admissions or confessions ot herwise admissible by law.” § 491.075.4. The plain language used in both § 491.075 and § 492.304 indicates that each statute provides an alternative, rather than an exclusive, procedure for determining the admissibility of the recording in this case. Respondent contends his ruling conforms to the principle of st atutory construction that the more specific statute contro ls over the more general statute. See, e.g. , State ex rel. City of Jennings v. Riley , 236 S.W.3d 630, 631 (Mo. banc 2007). The fallacy of Respondent’s position, however, is that it “presupposes that th e statutes are in conflict, which is a precondition to the ap plication of the principles of statutory construction.” Id

. As explained above, there is no conflict be tween these two statutes. The differing

6 In Bohanon , the trial court admitted a videotape pursuant to § 491.680 even though none of the required proced ural steps were followed. Bohanon , 747 S.W.2d at 299. This Court noted that “i f the videotape inte rviews were compet ent evidence under any theory, the trial court did not err in admitting the same.” Id . Because the videotape was admissible pursuant to § 492.304, the trial court did not err by admitting the evidence. Bohanon , 747 S.W.2d at 299.8 foundational requirements of each statute provide an alternative procedure for determining the admission of recorded statements like the one at issue here. 7 Respondent erred by relying upon § 492.304 as the basis for excluding the recording at trial. Because the recording was already found to be admissible pursuant to § 491.075, and § 492.304 is not the exclusive procedure for determining its admissibility, Respondent is prohibited from enforcing his or der excluding the recording. We therefore make permanent our preliminary writ in prohibition. 8

JEFFREY W. BATES, J. – OPINION AUTHOR DANIEL E. SCOTT, P.J. – CONCUR MARY W. SHEFFIELD, C.J. – CONCUR

7 For example, we held in Sanders that the absence of the interviewer at a Chapter 491 hearing did not prevent the tria l court from deciding there was a sufficient indicia of reliability to admit the statements pursuant to § 491.075. State v. Sanders , 473 S.W.3d 675, 678-79 (Mo. App. 2015).

8 As required by State ex rel. Unnerstall v. Berkemeyer , 298 S.W.3d 513 (Mo. banc 2009), all initially issu ed writs shall be “prelimin ary” writs of mandamus or prohibition, as the case be, and “upon final determination, shall be made quashed or made permanent.” Id . at 516.