      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       DIVISION ONE
                       Respondent,
                                                       No. 72411-8-1              p"
                  v.
                                                       PUBLISHED OPINION          7
JENARO DE JESUS HERNANDEZ,

                       Appellant.                      FILED: February 16, 2016       l-


       Dwyer, J. — Two principles control the decision in this case. First, under

the doctrine of forfeiture by wrongdoing a defendant forfeits his Sixth Amendment

right to confront a witness against him when clear, cogent, and convincing
evidence demonstrates that he engaged in wrongdoing that was designed to,

and did, procure the unavailability of the witness at trial. Second, when a
defendant forfeits his Sixth Amendment right of confrontation by wrongdoing, he

also forfeits his right to interpose hearsay objections to the same evidence. In
this case, involving allegations ofsex crimes committed upon Y.C., a child, by
Jenaro Hernandez, the trial court correctly ruled that Hernandez engaged in

wrongdoing—with Olga, Y.C.'s mother as his co-conspirator1—that was designed
to, and did, procure the unavailability of Y.C., Olga, and Y.C.'s brother at trial.
The trial court, thus, correctly ruled that Hernandez had forfeited his Sixth
Amendment right to confront any of these witnesses. Additionally, because
       1Forclarity, we referto Y.C.'s mother by her first name, Olga.
No. 72411-8-1/2



Hernandez forfeited his Sixth Amendment right of confrontation, he also forfeited

the right to interpose hearsay objections to Y.C.'s testimony, including an

objection pursuant to RCW 9A.44.120, the child hearsay statute. Accordingly,

we affirm.

                                          I


       On November 21, 2013, eight-year-old Y.C. approached her teacher in the

classroom at her school. Y.C. told her teacher that "this hurts," while pointing to

her genital area. When Y.C.'s teacher asked why it was hurting, Y.C. responded
"[m]y stepdad." Y.C.'s teacher then asked if it had been going on for a while, and
Y.C. responded "yes."

       Y.C.'s teacher left her classroom in the care of a student teacher and

immediately escorted Y.C. to the nurse's office. Upon arrival, Y.C's teacher
located the school nurse and the school psychologist. Y.C.'s teacher informed

them that "we may have an issue of abuse here, sexual abuse." While in the
nurse's office, Y.C. explained—in the presence of her teacher, the nurse, and the
psychologist—that the alleged sexual contact with her "stepdad" began when she
was six years old and recounted the details to them. Following this conversation
with Y.C, the psychologist wrote a report and telephoned both the police and
Child Protective Services.

       Later that same day, Y.C. was taken to the Swedish Mill Creek emergency

department by a foster care representative. She was there examined by a
forensic nurse. During that examination, Y.C. identified her "stepdad,"
No. 72411-8-1/3



Hernandez, as the man who had sex with her.2 Y.C. also, once again, recounted

the details of her alleged sexual contact with Hernandez.

       In the days following Y.C.'s initial report at school, Y.C. was interviewed by

a child interview specialist at the request of law enforcement. Olga and Y.C.'s

brother also spoke with Detective Karen Kowalchyk of the Everett Police

Department about the instances of alleged sexual contact between Hernandez

and Y.C.

       Ultimately, the State charged Hernandez by twice amended information

with three counts of rape of a child in the first degree, three counts of child

molestation in the first degree, and one count of tampering with a witness. He

pleaded not guilty to all counts.

       On June 3, 2014, the defense filed a motion to compel witness interviews

with Y.C. and Olga. Two days later, the parties appeared before the trial judge to

address preliminary matters. Defense counsel orally moved to compel interviews

with the intended witnesses.

       MS. LOPEZ DE ARRIAGA [Defense Counsel]: We had interviews
       scheduled today at 2:30 of the alleged victim and her mother. It's
       my understanding from counsel that those are not going to go
       forward. I can't defend my client effectively, Your Honor, without
       that interview. I'm here asking the Court to compel the State to
       produce the witnesses for interview.

       THE COURT: Do you have any objection?

       MR. ALSDORF [Prosecutor]: I don't really see a way I can object,
       but Iwould like to explain the state of affairs, if that's okay, if I could
       by way of [an] offer of proof.


       2 The record indicates that Hernandez was actually Olga's boyfriend.

                                             -3-
No. 72411-8-1/4



          THE COURT: Go ahead.


          MR. ALSDORF: It came to my attention, perhaps about a month
          ago now, a few weeks ago anyway, that [Y.C], the victim in this
          case, had stopped attending school. When Child Protective
          Services went to investigate why she was no longer coming to
          school, they went to her apartment and found that the apartment
          had been completely moved out of. No sign of anyone residing
          there.
                  Who should have been residing] there is [Y.C], her older
          brother, [M.C], and [Y.C.'s] mother, all three of whom would be
          witnesses if they were available.
                  I had Detective Kowalchyk investigate the matter. Her
          efforts included contacting co-workers of [Y.C.'s] mother at her
          place of employment. They confirmed that [Y.C.'s] mother had also
          stopped attending her job. Further, that they had heard from her by
          telephone, and that [Y.C.'s] mother was indicating over the
          telephone that she had taken [Y.C] and herself to Mexico
          specifically to avoid all of the appointments, I think, related to this
          case and this investigation.
                 So that's our understanding of where [Y.C] and her mother
          and her brother are is in Mexico. Although I certainly acknowledge
          the State has some obligation to make diligent efforts to put our
          witnesses in contact with the defense for an interview, I think that
          those efforts can't really extend into Mexico for all practical
          purposes.

                   So I guess that's my way of saying [that] I intend to proceed
          in this case without the live testimony of [Y.C], her mother, or her
          brother.

          The trial court then ordered "the State to make reasonable and diligent

efforts to locate and produce those witnesses." In so ordering, the trial judge

noted that, "I think that's all the Court can do and all that the State is responsible

to do."

          Following this ruling, the State continued its efforts to procure the

presence of the intended witnesses at trial. These efforts were later outlined in
an affidavit that was attested to by the prosecutor and in the State's trial
No. 72411-8-1/5



memorandum as detailed offers of proof to the trial court. The record indicates

that the State's efforts included having Detective Kowalchyk contact Olga's

employer, co-workers, and several of her family members. Olga's brother

provided Kowalchyk with a private telephone number in Mexico, from which he

had received a call from Olga. The State's affidavit detailed that when

Kowalchyk utilized an interpreter to call the telephone number provided by Olga's

brother, "[o]n the third attempt a young woman answered, who claimed to not

know who Olga was and that it must be a wrong number. This woman

assertively told the interpreter to never call back again."

       In addition to making these telephone calls, the affidavit explained that

"the State obtained copies of the audio recordings of all of the defendant's jail

phone calls" and arranged to have them translated from Spanish into English. A
preliminary examination of the call log was "concerning" to the State, given that it

evidenced that "the defendant ha[d] placed 142 calls to Olga's cell phone number

since the Court ordered him not to have contact with any [of the] State's

witnesses. Since that time the defendant ha[d] also placed 16 calls to the land

line associated with Olga and [Y.C.'s] now-vacant apartment."

       Finally, the affidavit detailed that the prosecutor "asked Detective

Kowalchyk to investigate whether corroborative evidence exist[ed] to prove

exactly when Olga, [Y.C], and [Y.C.'s brother], purchased tickets to travel by bus
to Mexico, and when they crossed the border." In effectuating this request,

Kowalchyk contacted the Greyhound bus company and law enforcement officials


                                           5-
No. 72411-8-1/6



who were familiar with the border between the United States and Mexico.3

       On June 23 and 24, the court held a hearing to determine the admissibility

of certain statements made by Y.C, Olga, and Y.C.'s brother. After hearing

testimony and the argument of counsel, the trial court found that statements

made by Y.C, Olga, and Y.C.'s brother were admissible pursuant to the forfeiture

by wrongdoing doctrine and that certain of Y.C.'s statements were admissible

pursuant to the child hearsay statute, RCW 9A.44.120.4

       A trial was held and the jury found Hernandez guilty on each count. He

was sentenced to an indeterminate sentence ranging from a minimum of 318

months of confinement to a maximum term of life in prison. He now appeals.

                                                 II


        Hernandez contends that the trial court erred by concluding that certain

statements made by Y.C, Olga, and Y.C.'s brother were admissible under the

forfeiture by wrongdoing doctrine. This is so, he asserts, both because the "State
did not satisfy the 'wrongdoing' requirement,"5 and because the witnesses were

not "unavailable" as evidenced by "the State['s] fail[ure] to engage in reasonable,

good faith efforts to secure the witnesses' presence at trial."6 We disagree.
        "The Sixth Amendment provides that '[i]n all criminal prosecutions, the

        3The record indicates that, when the intended witnesses were still in the United States,
the State's efforts to procure their presence at trial included having a prosecutor and a victim
witness advocate meet with Y.C. and Olga. In addition, after receiving notification that the
intended witnesses may have been in Mexico, the State mailed subpoenas to their last known
address.
        4The trial judge did make a redaction to one of Olga's statements. He declined to admit
what he deemed to be a "very speculative" statement that was uttered by Olga about
Hernandez's alleged desire to touch Y.C.
      5 Br. of Appellant at 20.
      6 Br. of Appellant at 1, 17.
No. 72411-8-1/7



accused shall enjoy the right... to be confronted with the witnesses against

him.'" State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009) (alterations

in original) (quoting U.S. Const, amend. VI). "[T]he Sixth Amendment's right of

an accused to confront the witnesses against him ... is made obligatory on the

States by the Fourteenth Amendment." Pointer v. Texas. 380 U.S. 400, 403, 85

S. Ct. 1065, 13 L. Ed. 2d 923 (1965).7

       The right of confrontation has been "'most naturally read'" as "'admitting

only those exceptions established at the time of the founding.'" Giles v.

California, 554 U.S. 353, 358, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (quoting

Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 158 L Ed. 2d 177

(2004)). Under one such exception, the forfeiture by wrongdoing doctrine,

"defendants who are responsible for a witness' unavailability at trial forfeit their

right to confront the missing witness." State v. Mason, 160 Wn.2d 910, 924, 162
P.3d 396 (2007). Forfeiture occurs "when clear, cogent, and convincing

evidence shows that the witness has been made unavailable by the wrongdoing

of the defendant and that the defendant engaged in the wrongful conduct with the

intention to prevent the witness from testifying." State v. Dobbs, 180 Wn.2d 1,

11, 320 P.3d 705 (2014).8 "To permit the defendant to profit from such conduct


        7"Article I, section 22 of the Washington Constitution also guarantees criminal
defendants the right to confront and cross-examine witnessesagainstthem. However, as [the
defendant] made no arguments based on the state constitution, we do not address the state
constitution here." State v. Ohlson. 162 Wn.2d 1, 10 n.1, 168 P.3d 1273 (2007).
        8We review legal issues arising out ofthe Sixth Amendment's confrontation clause de
novo. Koslowski, 166 Wn.2d at 417. When we review factual findings that must be proved by
clear, cogent, and convincing evidence, as here, "the fact at issue must be shown to be 'highly
probable.'" Dobbs. 180 Wn.2d at 11 (quoting In reWelfare ofSeqo. 82 Wn.2d 736, 739, 513
P.2d 831 (1973)); Mason, 160 Wn.2d at 926-27 (declining to adopt a preponderance ofthe
No. 72411-8-1/8



would be contrary to public policy, common sense and the underlying purpose of

the confrontation clause.'" Dobbs, 180 Wn.2d at 5 (quoting United States v.

Carlson. 547 F.2d 1346, 1359 (8th Cir. 1976)).

                                                    A


        Hernandez first asserts that the State failed to demonstrate that he

engaged in wrongdoing. We disagree.

        The forfeiture doctrine's application is not limited to direct acts of

wrongdoing by a defendant. Giles, 554 U.S. at 359-61. Indeed, it includes

instances where a defendant "uses an intermediary for the purpose of making a

witness absent." Giles. 554 U.S. at 360. In addition, it is not limited to acts of

wrongdoing that are procured by means of violence. Dobbs. 180 Wn.2d at 4

(noting that "[w]ithout such a forfeiture rule, defendants would have 'an

intolerable incentive ... to bribe, intimidate, or even kill witnesses against them'"

(emphasis added) (alteration in original)) (quoting Giles. 554 U.S. at 365).

        In ruling on the motion in limine, the trial judge made a factual

determination that Hernandez engaged in wrongdoing by analyzing several

recorded jailhouse telephone calls.

                 The series of calls that I've reviewed are an effort by [the]
        defendant to get [Y.C], Olga, and [Y.C.'s brother] out of the
        country. They are used in code which is so rudimentary that it does
        not require a code breaker to understand what is going on here. It

evidence standard of proof); In re Pet, of LaBelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986)
("[W]here the State must prove its case by clear, cogentand convincing evidence, the evidence
must be more substantial than in the ordinary civil case in which proof need only be by a
preponderance ofthe evidence, in other words, the findings must be supported by substantial
evidence in light of the 'highly probable' test." (citation omitted)).
No. 72411-8-1/9



      is not speculation to understand that the words "goats" and "herd"
      refer to the children. "Shepherd" refers to Olga. "Movies" refers to
      Mexico. "Chocolate" refers to cash. He knows this, he knows he's
      being recorded, and he makes these references in code that Olga
      understands in order to manipulate her and to have the effort to get
      her out of the country established.
             The code, as I said, there's no speculation on anybody's part
      ifyou read the transcripts as to what's -- what this means and how
      she responds.
              I reject the idea that Olga initiated this. She did not. And I'll
      get to the transcript. On page 128 of the transcript, in fact, that's
      clear to me that she did not. If you look at 128, you will see the
      following exchange:
             [Hernandez]: "Hello."
             Olga says, "Hello."
             [Hernandez]: "Hello, love."
             Olga: "Hello, love."
             [Hernandez]: "What are you doing?"
             "I'm just watching TV," says Olga. "I'm sitting here watching
      TV."
             That conversation is initiated by [Hernandez] and not by
      Olga. Then goes on. He says, "Olga, I love you. I have to tell you
      something, but you are going to need to take it nottoo bad." He
      goes on to say that, "I'm going to tell you something, but you have
      to digest it slowly." And then he says, "I don't think whatwe had
      planned is going to work." Implying that there was a plan between
      the two of them.
              [Olga]: "Why?"
            [Hernandez]: "Because Iwas talking to my cousin. The flock
      has got to get - the flock has to leave, all sheep."
              Which is a euphemism for the family.
              [Olga]: "What?"
              [Hernandez]: "All the sheep have to get out of the pen. Do
      you understand?"
            She says, "So so."
              [Hernandez]: "I mean they have to go from one field to the
      other." Continuing with the agricultural euphemisms.
             [Olga]: "Yes, love."
                [Hernandez] says, "It's going to be difficult like this because
       if the flock stays out of the pen, Idon't know what will happen
       really, and Idon't want anything bad to happen that's why they
       have to leave the pen and go [to] another field."
              And she says, "All the way to where we talked about?"
       Implying that Olga knows, of course, where they're going.
No. 72411-8-1/10



             [Hernandez]: "Yeah, love. And I'll give you ten chocolates so
       you can take the flock with you."
                Now, there's no evidence before me that this was an
       agricultural family that owned sheep or goats or had pens or that
       they were fine diners on chocolates. So I could assume, perhaps,
       that this would have other meanings. They're euphemisms.
               She says, "I don't want to leave."
              And then he says, "Me neither. But that's the worst. But
       don't say it like that. I don't want to take the flock away from here.
       But, anyway, it has to be done because one way or the other over
       here, they will look for the flock, and they will take it away from you,
       and I don't want that."
             And her response, "I don't want that either."
             That is a clear statement of their plan; a clear statement of
       the motivation; and a clear statement, in my mind, of what
       [Hernandez] wants her to do and how he is manipulating her with
       cash.[9]
              They go on to say on page 423 of section 128: "There's an
       option. It's risky. You have to do it anyway. It's already a mess,"
       and so forth.
           The transcripts that I read are replete with this kind of
       communication between [Hernandez] and Olga, designed to get
       Olga, [Y.C], and [Y.C.'s brother] out ofthe country. And it's
       designed based upon what the defendant knows about Olga and
       that she's easily manipulated, she's afraid, and that she's
       overwhelmed.
                And if I look - as I look at the evidence rule, it has nothing to
       do with the person who is trying to be - who the defendant is trying

       9The record indicates that in a transcript of one conversation Hernandez and
Olga discussed the plan to go to Mexico without the use ofcoded language:
       Olga - Should I go to Mexico with the kids?
       [Hernandez] - Eh?
       Olga - Should I go to Mexico with the kids?
       [Hernandez] - If you do it, you should do it as soon as possible.
       Olga - That's what I'm telling you. Ithink it would be easier, no?
       [Hernandez] - Yeah. But if you do that you should decide it right away, before
       trial.
       Olga - That's why I'm saying.
        [Hernandez] - And then come back in two years.
        Olga - If Ileave, no no, no ... How can Isay it? If Icome back later, what's
        going to happen?
        [Hernandez] -1 think they would free me. Idon't really know what would happen
        with that.

        Olga - But then you can go to trial and even win it.
        [Hernandez] - If that happens, Iwould win the trial for sure ... But we cannot
        talk about that over the phone, my love.

                                              -10-
No. 72411-8-1/11



        to move out of the country, it has to do with the defendant's actions
        that we primarily look at. Are his actions designed to have the
        witness secreted and prevent them from testifying?1101
               The mention of chocolates, certainly euphemism, as I said,
        for cash. The statement made to the third party about research
        essentially asking what happens if the victim and the other
        witnesses are here, what are my odds, so to speak, and I
        paraphrase.111] That's contained there. Certainly goes to a scheme
        or plan on part of the defendant.
                 So looking at that, looking at the [State v.lDobbs case,'12!
        then, it's clear to me by clear, cogent, and convincing evidence that
        Mr. Hernandez has engaged in activity specifically designed to
        prevent the witnesses - Olga, [Y.C], and [Y.C.'s brother] - from
        testifying.

        Based on the trial judge's explanation of his ruling, it is evident that the

trial judge concluded that Hernandez's use of coded language was an effort to

conspire with Olga to take the children to Mexico in advance of his trial date. The

         10 The trial judge was referring to ER 804(b)(6). This rule creates an exception to the rule
against hearsay, provided that the declarant is unavailable as a witness, and the statementthat is
sought to be admitted is "[a] statementoffered against a party that has engaged directly or
indirectly in wrongdoing that was intended to, and did, procure the unavailability of the declarant
as a witness."
        11 The record indicates that in a transcript of one conversation with the unidentified male,
Hernandez made the following request:
        [Hernandez] -1 want you to do some research for me, man.
        Male - Okay.
        [Hernandez] - Suppose that they are accusing you ... Iam accusing you of...
        Shooting at me.
        Male-Mmmm
        [Hernandez] - Okay, so I go to Mexico, I run off to Mexico ... you are accusing
        me, no, I am accusing you of shooting at me, and so I get you in jail. So, I am
        the only witness, and if I go to Mexico, what would happen to you? Would they
        let you go free?
        Male - Mmmm ... I don't know, man.
        [Hernandez] - Look that up for me, man. I need you to look it up for me because
        something could free me from all this mess. And that's good . . . that I go to
        Mexico, and you go free .. . that would be free, no?
        Male - Yes, without the witness...
        [Hernandez] - Without the victim.

        [Hernandez] - Yes, I need you to do that research because . . . Like Itell you, I
        want to go to Mexico, and because I don't want to be in jail; maybe they can let
        you go out. . . and that's what Ithink, and so if it'll help me, I'll do that business,
        man.

        12180Wn.2d 1.


                                                 -11 -
No. 72411-8-1/12



coded language, when coupled with Hernandez's request of an unidentified male

to conduct research about the law regarding his probability of success if a victim

was not present to testify at trial, evidenced intentional acts by Hernandez that

were designed to procure the unavailability ofa key witness—the victim, Y.C13
The trial judge was in the best position to make the determination that Hernandez
engaged in wrongdoing. He did so thoroughly, thoughtfully, and with reference to

the correct legal standard. There was no error.

                                                  B


        Hernandez next asserts that the trial court erred by concluding that the

witnesses were rendered unavailable. Again, we disagree.

        "The Sixth Amendment requires a demonstration of unavailability when

the declarant witness is not produced." State v. Ryan, 103Wn.2d 165, 170, 691
P.2d 197 (1984). "Unavailability means that the proponent is not presently able
to obtain a confrontable witness' testimony." Ryan, 103 Wn.2d at 171.

            "A witness may not be deemed unavailable unless the prosecution has
made a good faith effort to obtain the witness' presence at trial." Ryan, 103
Wn.2d at 170-71 (citing Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L Ed.
2d 255 (1968)).

            "[T]he lengths to which the prosecution must go to produce the
            witness is 'a question of reasonableness.'" fState v.lSmith, 148
            Wn.2d [122,] 133, [59 P.3d 74 (2002)] (internal quotation marks
            omitted) (quoting rOhio v.lRoberts. 448 U.S. [56,] 74, [100 S. Ct.
            2531, 65 L. Ed. 2d 597 (1980), abrogated on other grounds by
            Crawford, 541 U.S. 36]). In particular, the "good faith" standard

            13 Indeed, the absence of three potential witnesses was procured: Y.C, Olga, and Y.C.'s
 brother.


                                                 -12-
No. 72411-8-1/13



       does not require the State to undertake a "futile act" to satisfy the
       confrontation clause. Ryan, 103 Wn.2d at 172 (citing Roberts, 448
       U.S. at 74). However, if the State makes no effort whatsoever to
       produce the witness, the State cannot rely on the mere possibility
       that the witness would resist such efforts.

State v. Beadle. 173 Wn.2d 97, 113, 265 P.3d 863 (2011). The burden of

proving unavailability lies with the proponent of the hearsay statement. Beadle,

173Wn.2dat112.


       Here, the State obtained recordings of numerous jailhouse telephone calls

between Hernandez and Olga, and between Hernandez and an unidentified

male. It had a Spanish-language interpreter listen to these recordings and

transcribe them into English. From a reading of these transcripts, the State was

able to establish that Hernandez and Olga acted in concert in developing and

implementing a plan to take the children to Mexico in order to ensure Y.C.'s

unavailability at trial. Olga's role as a co-conspirator gave the State, and later the

court, insight into what efforts would be reasonable in an attempt to procure

Y.C.'s presence at trial.

       In this context, with the knowledge that Olga was a co-conspirator in the

effort to keep Y.C. away from the trial—and given that Y.C. was under Olga's

control and custody—the State's efforts to procure Y.C.'s presence at trial

included speaking with Olga's employer, co-workers, and family members. The

detective obtained a telephone number from Olga's brother and, with the aid of

an interpreter, called the telephone number on three separate occasions. On the
last occasion, the only occasion on which a call was answered, the interpreter

was directed by the call's recipient not to call again. It was reasonable for the

                                        -13-
No. 72411-8-1/14



State to infer that the woman who answered the telephone was either Olga

herself or someone who was aware of the conspiracy to keep Y.C. away from the

trial and that any further efforts to make contact would be futile.

       In ruling on whether Y.C. was unavailable at trial—given the State's offer

of proof regarding its efforts—the trial judge acknowledged that the joint efforts of

Hernandez and Olga "makes unavailable not only Olga and [M.C.], the brother,

and the mother of [Y.C], but [Y.C] herself. That's the key reason why she is not

here. And that clearly is a fact these three parties are not here." Ultimately, the

trial judge made a factual determination that "the physical fact that [Y.C], her

mother, and her brother are now in Mexico, which we all know that to be the fact,

makes her, per se, unavailable."

       Given the trial judge's explanation of his ruling, he clearly concluded that

the State's efforts of speaking with Olga's employer, co-workers, and family

members, obtaining a private telephone number in Mexico, and utilizing an

interpreter to make three separate telephone calls constituted a reasonable
response to Olga's flight to Mexico with the children in tow. Moreover, given that

Olga and Hernandez were intimately involved in a conspiracy to keep Y.C. away
from the trial by causing her to move to Mexico, the State was not presented with
a situation akin to attempting to procure the presence of an adult victim at trial.

Instead, the trial judge recognized that the State was charged with the task of
attempting to change the mind of an adult co-conspirator in order to procure the
return to this country and the presence of a child victim for testimony at trial. In
this regard, the trial judge reasonably concluded that, given that Y.C. was under
                                         -14-
No. 72411-8-1/15



the control and custody of Olga, the State's efforts were circumscribed by Olga's

role as a co-conspirator. The trial judge was in the best position to make the

determination that Y.C, Olga, and Y.C.'s brother were made unavailable due to

the efforts of Olga and Hernandez, and that nothing more the State could

reasonably have done would have had the foreseeable effect of encouraging

Olga to change her mind and return to the United States with Y.C. for
Hernandez's trial. The trial judge ruled thoroughly, thoughtfully, and on the

record before him. There was no error.14

                                                 Ill


        Finally, Hernandez contends that the trial court erred by admitting certain
statements made by Y.C. pursuant to RCW 9A.44.120, the child hearsay statute.

We need not evaluate this claim because Hernandez forfeited his right to

interpose such an objection.

        In State v. Dobbs, 180 Wn.2d at 16-17, the court addressed whether an

individual who forfeits his or her right to confrontation by wrongdoing also forfeits

the right to assert hearsay objections to the same evidence. The court held that
this is so, explaining that, "when the defendant's actions are the reason thatthe
State must rely on out-of-court statements, he is hardly in a position to complain



        14 In his brief, Hernandez argues that the additional step of sending a "letter to the
mother's address would have demonstrated at least minimal effort on the part of the State" to
procure Y.C.'s presence at trial. Reply Br. of Appellant at8. Hernandez made no such
suggestion to the trial court. Instead, he offers this suggestion to us for the first time on appeal.
Unsurprisingly, Hernandez points to nothing in the record that would indicate that such an act
would have been anything other than a futile act. The State was not required to engage in futile
acts in order to satisfy its burden of proof on the question. Beadle, 173 Wn.2d at 113.

                                                -15-
No. 72411-8-1/16



about the use of those out-of-court statements, whether through an assertion of

confrontation rights or a hearsay objection." Dobbs, 180 Wn.2d at 16.

      Because Hernandez forfeited his Sixth Amendment right of confrontation

by engaging in wrongdoing, he also forfeited his right to interpose hearsay

objections to the same evidence.

      Affirmed.




We concur:




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