                                                                                                   F11-ED
                                                                                              01-
                                                                                                JRT OF APPLUkLS.
                                                                                                             '
                                                                                                PDMISIMI] 11
                                                                                         201 FEE 6 25    AM      1,r6


                                                                                                             I


                                                                                                  D)    KY        0.




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II


STATE OF WASHINGTON,                                                      No. 43203 -0 -II


                                   Respondent,


         V.



MARK ALLEN MARKUSSEN,                                               UNPUBLISHED OPINION




         LEE, J. —      A jury found Mark Allen Markussen guilty of first degree kidnapping, first

degree burglary, second degree assault with intent to commit a felony, and second degree assault

by strangulation, all while armed with a deadly weapon. Markussen appeals arguing that ( 1) the
trial   court   erred   in   declining   to   admit   the   computer -aided dispatch ( CAD)    log created

contemporaneously with a 911 call made after the incident, and ( 2). he was denied the right to be

present when the trial court responded to two questions from the deliberating jury without

bringing him back to court. Markussen also argues in a statement of additional grounds ( SAG)'

that his timely trial rights were violated, he received ineffective assistance of counsel, both the

prosecutor and the trial court committed misconduct, and errors occurred at sentencing.




  RAP 10. 10.
No. 43203 -0 -II



          Because the trial court did not abuse its discretion in declining to admit the CAD log into

evidence and any error stemming from the violation of Markussen' s right to be present when the

trial    court    declined to further instruct the            deliberating jury          was    harmless, we affirm his


convictions.       And because Markussen fails to " inform the court of the nature and occurrence of


 the] alleged errors" in his SAG, we refrain from addressing these arguments. RAP 10. 10( c)

                                                            FACTS


BACKGROUND


           On the morning of August 17, 2010, an intruder entered Terrie Cox' s house while she

was     home     alone   in the kitchen. At first, Cox assumed that the intruder might be a construction


worker     who     accidentally        came   to the   wrong house.           He was wearing a black stocking cap,

sunglasses,       jeans,    and    a   blue " puffy" jacket —which Cox thought strange because it was


supposed       to be   a   very   warm    day.   3B Report    of   Proceedings ( RP)       at   454.   All of a sudden, the


man raised a gun at Cox and asked her if anyone else was home.


           Although her husband was at work, Cox told the intruder that he was upstairs hoping that

would      scare   the intruder        off.   Instead, he started walking toward Cox, yelling at her to turn

around. After Cox turned around, the intruder placed the gun against Cox' s neck and forced her

into her home office. The intruder then turned to look down the hallway and Cox briefly escaped

out     the front door.      The intruder ran Cox down                 and   forced her back inside      at gunpoint.   Once


inside, he again forced Cox into her home office.


           Fearing       that the intruder "     was   there to   rob me or      to   rape me,"   Cox began resisting his

attempts     to    pin     her down      and " a   wrestling . match"         ensued.   3B RP     at   459.   Although Cox


managed to knock the intruder' s gun away, he straddled her on the floor and put her in a choke



                                                                  k)
No. 43203 -0 -II



hold. He then      pulled out a rubber glove          from his backpack               and   began putting it     on.    Panicking,

Cox bit the intruder'   s   hand    and " started     shredding the           glove."   3B RP    at   461.    Although she was


                                                                the intruder why he                            to kill her.    He
struggling to breathe, Cox                       to                                                   trying
                                     managed              ask                                  was




responded that somebody had his children and wanted Cox dead, and he would not leave until he

killed her.


          As the intruder spoke, Cox got the distinct impression that she recognized his voice.

Something about his voice, the heavy scent of cigarette smoke on him, and his size made Cox

think the intruder was       a contractor she         had hired        some years earlier.           She pleaded with him to


loosen his grip on her and successfully got him " to at least back off' a little bit after telling him

that   she was   hurt. 3B RP    at   464. Cox then          got off     the   floor   and ran out of       the house.    This time,


she    successfully   made   it to her   neighbor' s       home.        Although she was " visibly pretty well shook

       she managed     to   explain   to her   neighbor         that   she   had been    attacked     by   a man with a gun.     2
up,"


RP at 290. The neighbor called 911.


          When the    police arrived at        Cox'   s   home, the intruder had already fled. Police collected


swabs    of blood from Cox' s hand         and   leg —Cox          herself did not          appear   to be   bleeding.    Cox told


police that she thought she recognized the intruder' s voice and odor as belonging to a former

contractor she had hired, but could not remember the contractor' s name off the top of her head.

A few days later, she found copies of checks she had written to a handyman, Markussen, several

years earlier. Cox sent copies of the checks to the police because she was " almost positive" that

Markussen was her attacker. 3B RP at 476.


          On September        14,     Cox had a business appointment with a friend at Tommy O' s

restaurant.      As she walked to the back of the bar, she " started having a panic attack" when she



                                                                   3
No. 43203 -0 -II



recognized       the strong         smell of cigarette smoke on a "                   guy   about   the    right size"   as her attacker


sitting   at   the   bar. 3B RP            at   481.     She asked her friend to speak with the man and try to get his

name.     The man gave Cox' s friend a note with the name " Mark" on it and a cell phone number.

3B RP     at   481.      Convinced that this was the same man that attacked her a few weeks earlier, Cox


dialed 911.          In addition, as the man was leaving, she asked the restaurant manager to follow the

man out and record his license plate number. Cox sent the information to police and asked them

 to   please go      talk to [ Markussen]               and get [   deoxyribonucleic        acid ( DNA)]."        3A RP at 485.


          Vancouver Police Detective Darren McShea obtained a DNA sample from Markussen on

September 17.             Testing later revealed that the blood left on Cox' s hand after the attack matched

the   sample provided             by   Markussen.             On November 22, McShea advised Markussen that he was

under arrest and should turn himself in. Markussen complied with the request.

PROCEDURE


          On November 29, 2010, the State charged Markussen with first degree kidnapping, first

degree    burglary,           second   degree      assault with          intent to   commit a   felony ( first    degree   burglary),   and




second     degree         assault      by   strangulation.           RCW 9A.40. 020( 1)( b), (            c);   RCW 9A.52. 020( 1)( b);


RCW        9A. 36. 021( 1)(        e), (    g):        It later amended the information to add deadly weapon

enhancements to each charged offense.


          Prior to trial commencing, Markussen moved under CrR 8. 3( c) to have the weapon

enhancements             dismissed for insufficient                 evidence.        Markussen argued that the police reports


referenced someone                in the 911           call   saying that the intruder had          a   fake    gun.   After pointing out

that CrR        8. 3(   c)(   3) explicitly       states      that a "   court shall not dismiss a sentence enhancement or




                                                                             M
No. 43203 -0 -II



aggravating     circumstance unless                 the underlying        charge     is [   also]       subject   to dismissal," the trial


court denied the motion. 2 RP at 225.


          Markussen'        s   jury   trial    commenced          on   December 5, 2011.                  Cox, Cox' s neighbor, and


various   police      officers      testified       as   to the    events    described       above.         The neighbor specifically

testified that Cox never told him that the gun was fake and that she came " running through our

gate   yelling that     she     had been       attacked     by   a man with a gun ...          she was visibly pretty well shook


up."    2 RP    at   290.       Cox maintained throughout her testimony that she thought the gun was real

and was    in fear for her life. The neighbor also testified that Cox spoke to the 911 operator, but


Cox could not recall doing so. For unknown reasons, the recording of the 911 call was lost.

          Throughout. the State' s case, Markussen made numerous unsuccessful efforts to get the


CAD     log   that   was created        by     the 911       operator contemporaneous                   to the 911 call2 admitted into

                                                                                                    3
evidence,      either   as      a   business        record   or    an   excited     utterance.            In his final offer of proof,


Markussen       called      911      Operator Lori Brenner               who      created      the CAD            log   at   issue.   Brenner


recalled speaking with Cox on the 911 call, but had no independent recollection of whether Cox

told   her that the intruder had threatened her                          with   a   fake     gun.         Because Brenner could not


remember Cox mentioning a fake gun ( and Cox herself could not remember even talking to

Brenner), the trial court ruled that the statements in the log referring to a fake gun lacked " indicia



2
    The 911 operator creates the CAD log contemporaneously with the 911 call to get important
information to        police officers          in   real   time.   Thus, the CAD log is not a verbatim transcription of
the call but is a summary of the vital information the operator believes police should know when
they respond to the situation.

3 At trial, Markussen also argued that Cox' s alleged statements in the CAD log should be
admissible as prior             inconsistent        statements.      The trial court declined to admit the statements on
that ground, and Markussen has not challenged that ruling in this appeal.


                                                                         E
No. 43203 -0 -II



 of] reliability" and would not allow them into evidence under any exception to the hearsay rule.

5RPat830.


          On December 8, shortly after the trial court denied Markussen' s final effort to have the

CAD log admitted into evidence, the State rested. Markussen rested without calling witnesses or

presenting any evidence.


          While       deliberating,   the   jury   sent   two   notes   to the trial   court   related   to   exhibits.   In


response, on both occasions, Markussen' s attorney waived Markussen' s right to be present, and

the trial court instructed the jury (in writing) that it had all the evidence admitted at trial.

          The jury found Markussen guilty on all four counts and that he. committed each offense

while armed with a deadly weapon. Markussen appeals.

                                                      DISCUSSION


A. CAD LOG


          1.           BUSINESS RECORD


          Markussen argues that the trial court erred in refusing to admit the CAD log as a business

record.    Because the trial court did not abuse its discretion in ruling that the hearsay statements

within the business record should be excluded and State v. Bradley, 17 Wn. App. 916, 567 P.2d

650 ( 1977),        review   denied, 89 Wn.2d 1013 ( 1978),         relied on by Markussen, is not on point, we

disagree.


               The trial judge' s decision to admit or exclude business records is given great weight and

will not       be   reversed unless   there   has been    a manifest abuse of     discretion."     State v. Ziegler, 114


Wn.2d 533, 538, 789 P. 2d 79 ( 1990).                 A trial court manifestly abuses its discretion when its




                                                                2
No. 43203 -0 -II



decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.

State v. Sanders, 86 Wn. App. 466, 469, 937 P.2d 193 ( 1997).

          Hearsay is " 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 unless allowed              by    court rule or statute.           ER 802.   Under the " business records"


exception to the hearsay rule,

           a] record of an act, condition or event, shall in so far as relevant, be competent
          evidence if the custodian or other qualified witness testifies to its identity and the
          mode of its preparation, and if it was made in the regular course of business, at or
          near the time of the act, condition or event, and if, in the opinion of the court, the
          sources of information, method and time of preparation were such as to justify its
          admission.




RCW 5. 45. 020 ( emphasis added).


          In    addition, "[    i] n    instances      of   multiple       hearsay, each level of hearsay must be

independently       admissible."         State    v.   AlvarezAbrego, 154 Wn.               App.     351, 366, 225 P. 3d 396


 2010);    ER     805.     If the content of the hearsay within the business record is otherwise

inadmissible and


          goes to the heart of an issue on trial so that when believed by a jury it could
          logically be regarded as proof of the affirmative or negative of an issue, the
          hearsay should be rejected or expunged, even if in doing so the records must
          necessarily be mutilated or rendered incoherent.

State v. White, 72 Wn.2d 524, 530, 433 P. 2d 682 ( 1967).

          Here, the CAD         log     involves    hearsay    within       hearsay —the CAD log itself is hearsay and

Cox'   s alleged statements            to Brenner      about   the   fake   gun constitute    hearsay     within      hearsay.   At


trial, Markussen' s offer of proof established that the CAD log could meet the criteria for a

regularly produced business record under RCW 5. 45. 020, as Brenner testified that she made the



                                                                     VA
No. 43203 -0 -II



      in the regular                         business contemporaneous to the 911                         call.      However, Markussen
log                        course       of




failed to provide for an exception to the hearsay rule that would allow admission of Cox' s

alleged statements about a                fake     gun within           the CAD      log. 4    Cox could not remember speaking

with Brenner at all, and Brenner could not remember whether Cox told her that the gun was a

fake.    In   addition,       Cox   and   Brown          maintained          throughout trial that the gun was real.               In these


circumstances, the trial court did not abuse its discretion in excluding the hearsay within the

CAD log as this decision was neither manifestly unreasonable nor based on untenable grounds.

State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).

         Markussen            argues    that this       court' s    1977 decision in          Bradley controls. But his argument

is   misplaced.       In that case, Edward Bradley was on trial for fatally shooting a jewelry store

owner around          5: 30   Plot on   December 1,           1975.          Bradley,     17 Wn.     App.      at   917.   At trial, Bradley

presented an alibi witness that claimed Bradley had seen and spoken with her " between 5: 30 and

6 p.m. on the night of the crime, at a grocery store a considerable distance from the site of the

robbery- murder."             17 Wn.     App.      at   917. The witness purportedly remembered the conversation


because " many people had gathered around a police car in the grocery store parking lot and that

she    heard   someone        in the    store      say there had been              a purse    snatching."        17 Wn. App. at 917 -18.

In rebuttal, the prosecution presented " a computer printout as a record that was kept of all phone

calls   requesting        police     assistance"          showing that the only investigation of an alleged purse

snatching      at a   grocery       store occurred after                8 PM.   17 Wn.      App.   at   918.     As Division One of this


court later noted, the printout was offered to show that " the only police investigation for a purse

4
     As Tegland       Statements that could not be made by a witness on the witness stand ( if, for
                    states, "

example, they are irrelevant or contain hearsay statements by others) do not become admissible
by    virtue   of   the   fact they          are   included in           a   business     record."      5C WASHINGTON PRACTICE:
EVIDENCE LAW           AND     PRACTICE, § 803. 34,                at   90 ( 5th   ed.   2007).
No. 43203 -0 -II



snatching      occurred    3 hours          after   the   jewelry    store     robbery....      the statements of the caller were


not admitted       to   prove   the truth      of   the   matter asserted."          State v. Ross, 42 Wn. App. 806, 809, 714

P. 2d 703 ( 1986),       abrogated on other grounds by State v. Davis, 116 Wn. App. 81, 87 -88, 64 P. 3d

661 ( 2003).


          Here, Markussen did not seek to include the CAD log merely to establish that a 911 call

was made, but instead sought to include statements within the log purportedly made by Cox to

contradict a material           fact   at   issue in the        case ( whether      the   gun   involved   was real).     Accordingly,

Bradley is     distinguishable.             We hold that the trial court did not abuse its discretion in excluding

the CAD log from evidence.

          2.            EXCITED UTTERANCES


          Markussen also argues that the trial court should have admitted Cox' s alleged statements


concerning the fake          gun       in the CAD          log   as an excited utterance.             Because Markussen failed to


attribute these alleged statements to a particular declarant excited by the event, this argument

lacks merit.


          Although hearsay is generally inadmissible, ER 803( a)( 2) provides that certain excited

utterances     may be      admissible.          State      v.   Magers, 164 Wn.2d 174, 187, 189 P. 3d 126 ( 2008).                   A


statement      qualifies    as    an excited utterance               if "(1)    a   startling   event occurred, (      2) the declarant


made      the statement         while       under    the    stress   or   excitement       of   the   event,   and (   3) the statement


relates   to the   event."      Magers, 164 Wn.2d at 187 -88.


           Here, Markussen failed to attribute the statement about a fake gun in the CAD log to any

particular declarant, including Cox. As previously discussed, Cox testified that she did not even

recall speaking with 911, and the. 911 operator did not remember Cox telling her that the gun was



                                                                          M
No. 43203 -0 -II


fake.    The trial court did not abuse its discretion in excluding these unattributed statements.
                    K




Powell, 126 Wn.2d at 258.


B. RIGHT TO BE PRESENT


          Markussen next argues that the trial court violated his right to be present at all critical

stages    in his trial    by "        reinstructing the      jury    without [      his]   presence   in the   courtroom."   Suppl.


Brief    of   Appellant    at    1.     Contrary to Markussen' s assertions, the trial court did not " reinstruct"

the jury, but merely responded, in response to both jury questions, that the jury had all the

evidence       admitted     at        trial.   Accordingly, even if the trial court erred in failing to recall

Markussen for the discussion of how to respond to the jury questions, Markussen fails to

establish prejudice and any error is harmless.

          A defendant has a constitutional right to be present at all critical stages of the


proceedings.      State    v.    Ratliff, 121 Wn. App.              642, 646, 90 P. 3d 79 ( 2004).         A critical stage is one


 where the defendant' s presence has a reasonably substantial relationship to the fullness of his or

her opportunity to defend                against    the   charge."
                                                                      State v. Jasper, 158 Wn. App. 518, 539, 245 P. 3d

228 ( 2010), aff'd, 174 Wn.2d 96, 271 P. 3d 876 ( 2012).                                   Generally, conferences between the

court and counsel on legal matters are not critical stages except when the issues raised involve


disputed facts.         In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P. 2d 835, 870 P. 2d 964,

cert. denied, 513 U. S. 849 ( 1994).


          A court' s error in answering jury questions in the defendant' s absence may be harmless if

the State      can show     harmlessness beyond                a reasonable         doubt. State v. Caliguri, 99 Wn.2d 501,


508 -09, 664 P. 2d 466 ( 1983);                State v. Allen, 50 Wn. App. 412, 419, 749 P.2d 702, review denied,

110 Wn. 2d 1024 ( 1988).                   If the   court' s   answer      to   a   jury   question   is " negative in nature and




                                                                      10
No. 43203 -0 -II


conveys       no    affirmative    information," the defendant suffers no prejudice and the error is


harmless. State v. Russell, 25 Wn. App. 933, 948, 611 P. 2d 1320 ( 1980).

          In State v. Langdon, 42 Wn. App. 715, 713 P.2d 120, review denied, 105 Wn.2d 1013

 1986),      for instance, the court instructed the jury on the elements of first and second degree

robbery,     accomplice       liability,   and   theft.    During deliberations, the jury sent a note to the judge

reading, " Does ` committing'              mean aid       in escaping ?" Langdon, 42 Wn.              App.   at   717.   Without


consulting      with    counsel,       the judge   responded, "            You are bound by those instructions already

given   to   you."     Langdon, 42 Wn.           App.     at   717.    The defendant argued that this communication


violated     CrR 6. 15( f)(1)      and his right to be present at all critical stages of the proceedings.


Division One of this court disagreed and found any error was harmless because the

communication was neutral and simply referred the jury back to the previous instructions.

Langdon, 42 Wn. App. at 717 -18.

          More recently, in State v. Jasper, Division One reiterated this sentiment under nearly

identical circumstances:


                      The trial court erred by not informing the parties of the jury' s inquiry...
          But this     error was       harmless...         The trial court' s response was neutral, did not
          convey any affirmative information, and did not communicate to the jury any
          information that was harmful to Jasper... Jasper was in no way prejudiced by the
          trial    court' s   error.    The State has satisfied- its burden of proving that the trial
          court' s error was harmless.


158 Wn. App. at 543.

          Here, the      jury   sent    two   questions        to the trial     court   during   its deliberations.      The first


involved a map that the State had used for illustrative purposes at trial but was not admitted into

evidence.          After recalling      counsel    for both       parties,     the trial   court—   contrary to Markussen' s

assertions     in his briefs —mentioned            that if Markussen' s attorney wanted him present, he could


                                                                      11
No. 43203 -0 -II



send for him. Markussen' s attorney did not ask that Markussen be retrieved. The parties agreed

that the    trial      court     should     send    a   note    repeating (       verbatim)   part of the court' s first jury

instruction, stating,

                  Exhibits may have been marked by the court clerk and given a number,
          but they do not go with you to the jury room during your deliberations unless they
          have been           admitted    into   evidence.          The exhibits that have been admitted will be
          available to you in the jury room.

Clerk' s Papers ( CP) at 268; see also CP at 235 ( Instruction No. 1).


          Later, the jury sent a second question because it was concerned with the accuracy of

information in         one of     the defense      exhibits.        As before, the trial court recalled both attorneys and


asked Markussen' s attorney whether he would like Markussen to be present for the discussion

about how to respond. Markussen' s attorney declined the invitation. After discussion, all parties

agreed    that the trial          court   should    respond with a note             stating, " You have all of the exhibits


admitted at        trial[,]   you can'    t have anything       more."      CP at 269.


          In these            circumstances,       as   in Langdon, the trial court' s communications with the


deliberating jury were neutral and simply referred the jury back to the instructions ( and exhibits)

it had previously received. Thus, even assuming the trial court erred in not including Markusseni

in this process, that error was harmless as the court' s response was neutral and did not convey

any affirmative information to the jury. 'Russell, 25 Wn. App. at 948.

C. STATEMENT OF ADDITIONAL GROUNDS


          In   a   SAG, Markussen           argues      that ( 1)    his timely trial    rights were violated, ( 2)   he received


ineffective        assistance of counsel, ( 3)          the trial    court and    the   prosecutor committed misconduct, ( 4)



certain    evidence           should   have been        excluded, and (      5)    errors   occurred   at   sentencing.   Because




                                                                       12
No. 43203 -0 -II



Markussen fails to inform this court of the nature and occurrence of these alleged errors, we


refrain from addressing these issues.

        Although Markussen is "            not required       to   cite   to the     record or   authority....     he must still


 inform the       court   of   the    nature   and       occurrence       of   alleged   errors "'   in his SAG.       State v.


Thompson, 169 Wn.         App.       436, 493, 290 P. 3d 996 ( 2012) ( quoting RAP 10. 10( c)), review denied,


176 Wn.2d 1023 ( 2013).                Here, Markussen' s SAG consists entirely of references to page

numbers in the trial transcripts and brief comments on what is occurring at that point in the

proceedings.        For   example,        under      a    heading       entitled "   Judge Misconduct ( Incompetent),"


Markussen'    s   SAG     states, "    Page 430 ( line 18 - 19)             Judge is Confused            again."   These brief


comments fail to inform us of the nature and occurrence of the errors alleged by Markussen.

RAP 10. 10( c).      Accordingly,        we refrain       from addressing them.            State v. Brown, 159 Wn. App.

366, 374, 245 P. 3d 776, review denied, 171 Wn.2d 1025.( 2011).

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports,. but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.



                                                                                                     i


                                                                                                 Lee. J.




                                                                   13
