Munson, J.
Maurice Young appeals his convictions for first degree rape and second degree assault contending the court erred in (1) denying his motion to dismiss at the end of the State's case based upon the insufficiency of the evidence and (2) allowing a police officer to testify concerning statements made by the victim shortly after the incident. We affirm.
Mr. Young was arrested and charged with one count of first degree rape and one count of second degree assault.1 On the day before trial, the victim, Delores Floyd, told the prosecutor she would not testify at the trial. The court held a material witness hearing later that day. Defense counsel was present. Mr. Young was not. The prosecutor asked Ms. Floyd to relate the events of January 24, 1986. A transcript of her testimony is of record. Ms. Floyd told the court about the facts upon which the charges were based and that she would not testify at trial. The court ordered that Ms. [109]*109Floyd be held as a material witness until trial, at which time she would be required to post a $25,000 bond.
At the trial, the State's first witness, Felita Alvarez, testified that on the evening of January 24, 1986, she heard a knock and found a woman with two small children at her back door. The woman asked if she could come in and use the telephone. Ms. Alvarez let them in and the woman called the police. A short time later, a police officer arrived and took the woman and her children away. Ms. Alvarez testified the woman was crying and out of breath.
George Bumpaous, a deputy with the Franklin County Sheriff's Department, testified that he met with Ms. Floyd at 9:25 p.m. that evening and observed two abrasions on her right wrist.
Ms. Floyd took the stand, answered three preliminary questions, then refused to testify further. After the court questioned her concerning her decision, she again stated she would not testify. The court found her in contempt of court and imposed a jail term of 30 days. Two days later, the court reconvened and again asked Ms. Floyd if she would testify; she refused. The court, being convinced she was adamant in her position not to testify and that further confinement would not be productive, freed her from further attendance in the court. The trial was recessed while the State contemplated what to do.
Later that day, the State moved to allow Pasco police officer Archie Pittman to testify concerning statements made to him by Ms. Floyd. The State made an offer of proof through Officer Pittman who testified that at 9:02 p.m. on January 24, 1986, he received a call to respond to a residence. When he arrived 2 minutes later, he met Ms. Alvarez, Ms. Floyd, and two children. Ms. Floyd was excited, frightened, nervous, arid out of breath. She was extremely angry and demanded that he do something. He stated Ms. Floyd told him she was afraid of Mr. Young. She told him she was picking up some mail when Mr. Young put a knife to her throat, took her into the home, tied her up, and forced her to have sexual intercourse. They then [110]*110agreed to get some food. Mr. Young, Ms. Floyd, and the two children got into the car and drove to the Chinese Gardens. When Mr. Young went into the restaurant to pick up the food, Ms. Floyd and her two children ran from the car and began to knock on houses until they reached Ms. Alvarez' house.
Officer Pittman admitted he did not make a report or take any notes concerning the incident. He explained he did not investigate the matter further because he realized the incident occurred in the county, not the city. He took Ms. Floyd to the police station and turned her over to Deputy Bumpaous.
The court ruled that the statements made by Ms. Floyd to Officer Pittman were admissible as excited utterances, found Ms. Floyd to be unavailable, and found the statements were reliable under the factors set forth in Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) and State v. Parris, 98 Wn.2d 140, 654 P.2d 77 (1982).
The jury was recalled and the trial proceeded. After Officer Pittman repeated his prior testimony before the jury, the State rested. Mr. Young moved to dismiss the case claiming the evidence presented by the State was not sufficient to prove first degree rape and second degree assault beyond a reasonable doubt. The court denied the motion.
Mr. Young testified he and Ms. Floyd had been living together since 1979, but they were not living together at the time of the alleged incident. He stated that on January 24, 1986, he spoke with Ms. Floyd via telephone and asked her if she would stop by and give him a ride into town. When she arrived, he took the mail to her and got into the car. They talked and agreed to get some food. Mr. Young went into the house and placed an order by telephone; they then drove to the Chinese Gardens. When they arrived at the restaurant, he got out of the car to pick up the food. When he came out, the car doors were open, and Ms. Floyd and the children were gone. Mr. Young stated he did not know charges had been brought against him until February 1, 1986, when he was arrested.
[111]*111On cross examination, when told that Ms. Floyd was afraid of him, he replied, "Never once has there been a call made here about me striking her, me hitting her, me doing anything to her." The court allowed the State to introduce the testimony of Edward Kennelly, a sergeant with the Franklin County Sheriff's Department, to rebut the statement. He testified that on January 15, 1986, after a complaint by Ms. Floyd, he served a domestic violence restraining order on Mr. Young.
Mr. Young first contends the court erred in denying his motion to dismiss at the end of the State's case based on the insufficiency of the evidence. A defendant waives a challenge to the sufficiency of the evidence at the close of the State's case if he introduces evidence, on his behalf, unless the evidence has no bearing on the merits of the case. State v. Allan, 88 Wn.2d 394, 396, 562 P.2d 632 (1977); State v. Wilson, 74 Wn.2d 243, 248, 444 P.2d 141 (1968), cert. denied, 395 U.S. 903 (1969); State v. Ramirez, 46 Wn. App. 223, 225, 730 P.2d 98 (1986). A defendant can, however, always seek appellate review of the sufficiency of the evidence as a whole to support a criminal conviction. State v. Kerry, 34 Wn. App. 674, 677, 663 P.2d 500 (1983). Here, Mr. Young's testimony clearly had a bearing on the merits of the case as he denied committing the rape and the assault. Because he does not challenge the sufficiency of the evidence as a whole, but specifically assigns error to the trial court's denial of his motion to dismiss at the close of the State's case, and because he did not renew his challenge at any further stage of the proceedings, he has waived this assignment of error. See State v. Martin, 14 Wn. App. 717, 718, 544 P.2d 750, review denied sub nom. State v. Rosi, 87 Wn.2d 1001 (1976). Even if he had not so waived, the evidence, viewed most favorably to the State, would allow a rational trier of fact to find the essential elements of first degree rape and second degree assault beyond a reasonable doubt. State v. Hughes, 106 Wn.2d 176, 199,
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Munson, J.
Maurice Young appeals his convictions for first degree rape and second degree assault contending the court erred in (1) denying his motion to dismiss at the end of the State's case based upon the insufficiency of the evidence and (2) allowing a police officer to testify concerning statements made by the victim shortly after the incident. We affirm.
Mr. Young was arrested and charged with one count of first degree rape and one count of second degree assault.1 On the day before trial, the victim, Delores Floyd, told the prosecutor she would not testify at the trial. The court held a material witness hearing later that day. Defense counsel was present. Mr. Young was not. The prosecutor asked Ms. Floyd to relate the events of January 24, 1986. A transcript of her testimony is of record. Ms. Floyd told the court about the facts upon which the charges were based and that she would not testify at trial. The court ordered that Ms. [109]*109Floyd be held as a material witness until trial, at which time she would be required to post a $25,000 bond.
At the trial, the State's first witness, Felita Alvarez, testified that on the evening of January 24, 1986, she heard a knock and found a woman with two small children at her back door. The woman asked if she could come in and use the telephone. Ms. Alvarez let them in and the woman called the police. A short time later, a police officer arrived and took the woman and her children away. Ms. Alvarez testified the woman was crying and out of breath.
George Bumpaous, a deputy with the Franklin County Sheriff's Department, testified that he met with Ms. Floyd at 9:25 p.m. that evening and observed two abrasions on her right wrist.
Ms. Floyd took the stand, answered three preliminary questions, then refused to testify further. After the court questioned her concerning her decision, she again stated she would not testify. The court found her in contempt of court and imposed a jail term of 30 days. Two days later, the court reconvened and again asked Ms. Floyd if she would testify; she refused. The court, being convinced she was adamant in her position not to testify and that further confinement would not be productive, freed her from further attendance in the court. The trial was recessed while the State contemplated what to do.
Later that day, the State moved to allow Pasco police officer Archie Pittman to testify concerning statements made to him by Ms. Floyd. The State made an offer of proof through Officer Pittman who testified that at 9:02 p.m. on January 24, 1986, he received a call to respond to a residence. When he arrived 2 minutes later, he met Ms. Alvarez, Ms. Floyd, and two children. Ms. Floyd was excited, frightened, nervous, arid out of breath. She was extremely angry and demanded that he do something. He stated Ms. Floyd told him she was afraid of Mr. Young. She told him she was picking up some mail when Mr. Young put a knife to her throat, took her into the home, tied her up, and forced her to have sexual intercourse. They then [110]*110agreed to get some food. Mr. Young, Ms. Floyd, and the two children got into the car and drove to the Chinese Gardens. When Mr. Young went into the restaurant to pick up the food, Ms. Floyd and her two children ran from the car and began to knock on houses until they reached Ms. Alvarez' house.
Officer Pittman admitted he did not make a report or take any notes concerning the incident. He explained he did not investigate the matter further because he realized the incident occurred in the county, not the city. He took Ms. Floyd to the police station and turned her over to Deputy Bumpaous.
The court ruled that the statements made by Ms. Floyd to Officer Pittman were admissible as excited utterances, found Ms. Floyd to be unavailable, and found the statements were reliable under the factors set forth in Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) and State v. Parris, 98 Wn.2d 140, 654 P.2d 77 (1982).
The jury was recalled and the trial proceeded. After Officer Pittman repeated his prior testimony before the jury, the State rested. Mr. Young moved to dismiss the case claiming the evidence presented by the State was not sufficient to prove first degree rape and second degree assault beyond a reasonable doubt. The court denied the motion.
Mr. Young testified he and Ms. Floyd had been living together since 1979, but they were not living together at the time of the alleged incident. He stated that on January 24, 1986, he spoke with Ms. Floyd via telephone and asked her if she would stop by and give him a ride into town. When she arrived, he took the mail to her and got into the car. They talked and agreed to get some food. Mr. Young went into the house and placed an order by telephone; they then drove to the Chinese Gardens. When they arrived at the restaurant, he got out of the car to pick up the food. When he came out, the car doors were open, and Ms. Floyd and the children were gone. Mr. Young stated he did not know charges had been brought against him until February 1, 1986, when he was arrested.
[111]*111On cross examination, when told that Ms. Floyd was afraid of him, he replied, "Never once has there been a call made here about me striking her, me hitting her, me doing anything to her." The court allowed the State to introduce the testimony of Edward Kennelly, a sergeant with the Franklin County Sheriff's Department, to rebut the statement. He testified that on January 15, 1986, after a complaint by Ms. Floyd, he served a domestic violence restraining order on Mr. Young.
Mr. Young first contends the court erred in denying his motion to dismiss at the end of the State's case based on the insufficiency of the evidence. A defendant waives a challenge to the sufficiency of the evidence at the close of the State's case if he introduces evidence, on his behalf, unless the evidence has no bearing on the merits of the case. State v. Allan, 88 Wn.2d 394, 396, 562 P.2d 632 (1977); State v. Wilson, 74 Wn.2d 243, 248, 444 P.2d 141 (1968), cert. denied, 395 U.S. 903 (1969); State v. Ramirez, 46 Wn. App. 223, 225, 730 P.2d 98 (1986). A defendant can, however, always seek appellate review of the sufficiency of the evidence as a whole to support a criminal conviction. State v. Kerry, 34 Wn. App. 674, 677, 663 P.2d 500 (1983). Here, Mr. Young's testimony clearly had a bearing on the merits of the case as he denied committing the rape and the assault. Because he does not challenge the sufficiency of the evidence as a whole, but specifically assigns error to the trial court's denial of his motion to dismiss at the close of the State's case, and because he did not renew his challenge at any further stage of the proceedings, he has waived this assignment of error. See State v. Martin, 14 Wn. App. 717, 718, 544 P.2d 750, review denied sub nom. State v. Rosi, 87 Wn.2d 1001 (1976). Even if he had not so waived, the evidence, viewed most favorably to the State, would allow a rational trier of fact to find the essential elements of first degree rape and second degree assault beyond a reasonable doubt. State v. Hughes, 106 Wn.2d 176, 199, 721 P.2d 902 (1986).
[112]*112Mr. Young next contends the court erred in determining Ms. Floyd was unavailable, thereby allowing Officer Pittman to testify concerning her statements. Given the facts surrounding Ms. Floyd's adamant refusal to testify, the court determined she was unavailable and her statements constituted excited utterances under ER 803(a)(2).* 2 The court then determined the testimony did not violate Mr. Young's right of confrontation under the Sixth Amendment or under Const, art. 1, § 22 (amend. 10) given those findings.
The sixth amendment to the United States Constitution and article 1, section 22 of our constitution both guarantee a defendant in a criminal prosecution the right to confront his accusers. State v. Terrovona, 105 Wn.2d 632, 642, 716 P.2d 295 (1986); State v. Ryan, 103 Wn.2d 165, 169, 691 P.2d 197 (1984). Even though a hearsay statement may be admissible under the rules of evidence, it may still violate the defendant's right of confrontation. California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970); State v. Guloy, 104 Wn.2d 412, 424, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1208 (1986). Admissible hearsay does not violate the defendant's confrontation rights if the State demonstrates the declarant is unavailable and the hearsay statements are reliable. State v. Hieb, 107 Wn.2d 97, 106, 727 P.2d 239 (1986).
On appeal, Mr. Young only challenges the court's determination that Ms. Floyd was unavailable. He contends Ms. Floyd was not "unavailable" because she was neither incompetent nor did she exercise her Fifth Amendment [113]*113privilege. Mr. Young ignores the statement in State v. Ryan, supra at 171 that:
Unavailability means that the proponent is not presently able to obtain a confrontable witness' testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. See ER 804(a); 5A K. Tegland, Wash. Prac., Evidence § 393 (2d ed. 1982). Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness' presence at trial.
(Italics ours.)
One of the definitions of "unavailability" in ER 804(a) is a declarant who "[pjersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so". See State v. Toomey, 38 Wn. App. 831, 838, 690 P.2d 1175 (1984), review denied, 103 Wn.2d 1012, cert. denied, 471 U.S. 1067 (1985). Although ER 804(a) defines "unavailability" for hearsay purposes, the Ryan court cites it to support its definition of "unavailability" for confrontation purposes. See Ryan, at 171. Both the court and the prosecutor made a good faith effort to obtain Ms. Floyd’s presence and testimony at trial. The court did not err in finding her unavailable.
By finding no error, we do not mean this procedure to become a model for the trial of rape cases; rather, it is looked upon as an aberration. Those charged with crimes have both a federal and state constitutional right to confront their accusers.
Mr. Young's conviction is affirmed.
Green, J., concurs.