                                                                                                                 FILED
                                                                                                          COURT OF APPEALS
                                                                                                                     SIO   II
       IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                          CA              I
                                                                                                      2015MA ' 10 Aii 8 : 34
                                                   DIVISION II
                                                                                                          STA
    STATE OF WASHINGTON,                                                         No. 44974 -
                                                                                                 94I8 Y_
                                       Respondent,


           v.



    MICHAEL E. MCCOMAS, JR.,                                                  PUBLISHED OPINION


                                       Appellant.


          MELNICK, J. —          Michael E. McComas, Jr. appeals his conviction of domestic violence


assault in the fourth degree, arguing that the trial court erred by admitting the victim' s recorded

                                                               evidence under    ER 801( d)( 1)( i).        Because the
statement       concerning the     assault as   substantive




victim did not make her statement under oath, the court erred by admitting that statement as

substantive        evidence.    However, we hold the error was harmless and we affirm McComas' s

conviction.



                                                           FACTS


I.         SUBSTANTIVE FACTS


           On November 15, 2012, Philana McComas, while upset and crying, went to the Mason
                                                                                                      1
County     Sheriffs Office       and reported   that her   husband Michael    choked and   hit her.       Deputy Robert

Noyes observed visible signs of injury on Philana including abrasions on her neck, scratches on

her chest, and a red area on her lower back.


           Later that afternoon, Deputy Justin Cotte went to the McComases' home and took an audio -

recorded        statement   from Philana.       She stated that Michael became angry that morning and

screamed vulgarities at          her. When she told him to calm down, he threw some dishes against the




1                                                                                              disrespect.
     For clarity   we refer    to the McComases     by their first   names.   We intend   no
44974 -9 -II



wall.    Philana added that when she tried to grab her cell phone and leave, Michael attacked her,

took her to the    ground, and choked       her. She   said   that   she   blacked   out   momentarily. She then ran


out of   the house.      Because the police station was closed for lunch, Philana went to lunch with a


friend before going back to the police station.

          At the end of her statement, Deputy Cotte asked Philana if she declared, under penalty of

                      foregoing   is true                     Clerk' s Papers ( CP)             66. Philana replied yes.
perjury, that " the                         and correct."                                  at




The State subsequently charged Michael with domestic violence assault in the second degree by

strangulation.




          In   January   2013, Philana   recanted   her November           statement.      During a second interview

with the police, she denied being strangled or choked. Philana said that she fell to the floor while

trying to take an iPod from Michael. She added that her injuries resulted from Michael landing on

top of her and their dog scratching her. Philana declined to allow her recantation to be recorded.
II.       PRETRIAL MOTION TO EXCLUDE STATEMENT


          Before trial, the defense moved to exclude Philana' s recorded statement as substantive


evidence. At the hearing on that motion, Philana testified that she remembered giving a statement

on November 15 but that she did not remember it being recorded. She also did not remember the

deputy advising her that her statement was made under penalty of perjury. She added that she did
not understand the word " perjury" until its meaning was explained two days before trial. Philana

further testified that mental health issues contributed to her inability to fully understand the nature

of her recorded statement.


          The trial court found this testimony not credible. The trial court denied the defense motion.
It entered written findings of fact and conclusions of law that admitted Philana' s prior recorded




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44974 -9 -II



statement as substantive evidence under ER 801( d)( 1)( i) and State v. Smith, 97 Wn.2d 856, 857,

651 P. 2d 207 ( 1982).


III.      TRIAL PROCEEDINGS


          At trial, Philana testified that she awoke to Michael making noise. When she told him to

settle   down, he threw            some    dishes.   When asked whether Michael had choked her, she replied,


 There    was     dogs around        and we were      down     on   the   ground."   2 Report of Proceedings ( RP) at 71.


She did     not   think that Michael         choked   her: "   I think the dog had stepped on me or something like

that."   2 RP      at   71.    She said that she blacked out because she was upset, and not because Michael

choked her. She also acknowledged giving three statements about the episode.

          Deputy Noyes testified about the injuries he saw on Philana' s neck, chest, and back when

she came to the police station. The trial court admitted into evidence photographs of Philana' s

neck and chest           injuries.    Noyes also testified, over a defense objection, that Philana identified


Michael as her assailant. The trial court admitted this testimony as impeachment evidence.

          Deputy Cotte testified that he saw damage to the house consistent with Michael throwing

plates against the wall. The trial court admitted photographic evidence of this damage. Cotte also

testified   about       the recorded        statement   he took from Philana.           The trial court admitted the CD


 compact disc) of the statement into evidence and allowed the jury to review the transcribed

statement as it listened to the recording.

          Michael testified on his own behalf and stated that on the morning of the incident, Philana

confronted him about making too much noise. He admitted that they argued and that he damaged

the wall by throwing two cup holders against it. He claimed that Philana hit him as well as herself,

and    that he    pulled      her to the   ground and   held her down in           defense and
                                                                              self -             to   protect   her. "[ Y] ou' ve




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44974 -9 -II



got to hold her down with the shoulders and hold her arms down to the ground with your knees so

she   doesn' t   punch   herself in the face." 2 RP at 124 -25.


          Both    parties     proposed         defense
                                          self -          jury instructions.      The defense proposed a lesser


included instruction on assault in the fourth degree. The trial court instructed the jury accordingly.

          During closing argument, defense counsel admitted that Michael assaulted Philana but

argued    that he did    so   in   self defense.
                                        -            Counsel concluded that the proper verdict was " not guilty


all the way around based on the self -defense defense that you were instructed on. And if you do

not accept that, then the proper verdict is fourth degree assault with the family relation part of it."

2RPat193.


          The jury returned a verdict of not guilty on the charge of assault in the second degree by

strangulation,     but it found Michael guilty          of assault   in the fourth degree.   The jury also answered

 yes"     to the special verdict asking whether Michael and Philana were family or household

members. CP at 16. The trial court sentenced Michael to 364 days in jail with 304 days suspended.

          Michael appeals his conviction. He argues that the trial court erred by admitting Philana' s

prior recorded statement as substantive evidence under ER 801( d)( 1)( i).

                                                        ANALYSIS


I.        STANDARD OF REVIEW


          We review a trial court' s decision to admit evidence for abuse of discretion. State v. Nieto,

119 Wn.     App. 157,       161, 79 P. 3d 473 ( 2003).       If the trial court based its evidentiary ruling on an

incomplete legal analysis or a misapprehension of legal issues, the ruling may be an abuse of

discretion.      City   of Kennewick     v.   Day,   142 Wn.2d 1, 15, 11 P. 3d 304 ( 2000);    Nieto, 119 Wn. App.

at 161.




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44974 -9 -II



II.         ER 801 — PRIOR INCONSISTENT STATEMENTS


            The rule against hearsay generally excludes out -of -court statements that are offered in court

for the truth       of   the   matter       asserted.        ER 801(    a) -(c);   ER 802.           A witness' s prior inconsistent


statement is not hearsay and may be admitted as substantive evidence if the declarant testified at

trial, was subject to cross -examination, and the declarant gave the statement under oath subject to


penalty     of   perjury "     at a   trial,     hearing,   or other   proceeding,     or   in   a   deposition."   ER 801( d)( 1)( i);


Nieto, 119 Wn. App. at 161.

            Michael argues that the trial court improperly admitted Philana' s recorded statement under

ER 801( d)( 1)( i) because the police interview did not constitute a " proceeding" under the rule and

because Philana did not make her statement under oath.

            A.        OTHER PROCEEDING UNDER ER 801


            In Smith, the Washington Supreme Court considered the admissibility of an assault victim' s

sworn written statement to investigating police officers. 97 Wn.2d at 857. The victim' s complaint

in Smith identified the defendant                     as    her   assailant.   97 Wn. 2d     at      857.   When the victim named


another man as her assailant at trial, the trial court allowed her prior complaint to be used as

substantive evidence under                 ER 801( d)( 1)( i). Smith, 97 Wn.2d at 857.


            In reviewing the trial court' s ruling, the Supreme Court declined to adopt a bright line rule

as to whether a sworn statement given during a police interrogation would be admissible as a

statement provided             during      a "   proceeding"       under   ER 801( d)( 1)( i). Smith, 97 Wn.2d          at   861. " We


do    not   interpret the      rule   to   always exclude or always admit such affidavits.                      The purposes of the


rule and      the facts    of each case must                be    analyzed.    In determining whether evidence should be

admitted,        reliability is the      key." Smith, 97 Wn.2d at 861 ( footnote omitted).




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44974 -9 -II




         The Smith court considered a variety of factors in assessing such prior inconsistent

statements: (        1)    whether     the   witness   voluntarily    made   the   statement, (     2) whether there were


minimal guarantees of             truthfulness, ( 3) whether the statement was taken as standard procedure in



one of the four legally permissible methods of determining the existence of probable cause, and

 4) whether the witness was subject to cross -examination when giving the subsequent inconsistent

statement.     State       v.   Nelson, 74 Wn.     App.   380, 387, 874 P. 2d 170 ( 1994) (         citing Smith, 97 Wn.2d

at 861 -63).


         Here, the trial court applied these factors and concluded that Philana' s prior recorded

statement      was        reliable   and   thus   admissible.    Michael contends that the trial court abused its


discretion by relying on Smith and urges us to abandon the Smith reliability test in favor of a bright -

line rule stating that police interviews do not qualify as a " proceeding" under ER 801( d)( 1)( i).

          In support of his argument, Michael cites the legislative history of Fed. R. Evid.

801( d)( 1)( A). ER 801( d)( 1)( i)           was "   taken   verbatim"   from this federal       rule.   Smith, 97 Wn.2d at


859. The original version of the federal rule would have allowed all prior inconsistent statements

to be   used as substantive evidence.               United States v. Castro-Ayon, 537 F. 2d 1055, 1057 ( 9th Cir.

1976).    A subsequent version narrowed the rule to allow substantive admissibility only if the prior

inconsistent statement was given under oath, subject to prosecution for perjury, subject to cross -

examination, and given in a trial, hearing, or deposition. CastroAyon, 537 F.2d at 1057; State v.

Sua, 115 Wn.         App. 29,        44, 60 P. 3d 1234 ( 2003). The final compromise version required the prior


statement to be given under oath, subject to prosecution for perjury, and given in a " trial, hearing,

or other   proceeding."              Castro -Ayon, 537 F. 2d     at   1057; Sua, 115 Wn.      App.        at   45 -46.   This final


version    abandoned             the cross -examination       requirement    to    permit   the    inclusion       of grand   jury
44974 -9 -II



proceedings within           the category    of "other    proceeding."        Castro -Ayon, 537 F. 2d at 1057; Smith, 97


Wn.2d at 860.


            In. Castro -Ayon, the Ninth Circuit              extended    the "   other   proceeding"          category further and

determined that a tape- recorded statement made under oath and taken in an immigration

investigation       was admissible under        Fed. R. Evid. 801( d)( 1)..        537 F. 2d at 1057 -58; Smith, 97 Wn.2d


at   860.    The    court observed      that the     choice of   the    open -ended          term "   other   proceeding"   showed




Congress'     s   intent to   extend   the   rule    beyond    grand    jury     proceedings.         CastroAyon, 537 F.2d at


1058. The court also observed that the immigration proceeding at issue bore similarities to a grand

jury proceeding: both were investigatory, ex parte, inquisitive, sworn, basically prosecutorial, held

before an officer other than the arresting officer, recorded, and held in circumstances of some legal

formality. Castro -Ayon,          537 F. 2d     at   1058.    The Ninth Circuit limited its holding, stating that not

                                                                         interrogation                   be                 Castro -
every   sworn statement given           during       a police- station                         would          admissible.




Ayon, 537 F. 2d at 1058.


            As stated, the Smith court determined that reliability was the key to admitting a prior

inconsistent statement made during a police interview. 97 Wn.2d at 861. Michael now argues that

Smith expanded the " other proceeding" category beyond what Congress intended, and he supports

his claim of error by citing Delgado- Santos v. State, 471 So. 2d 74 ( Fla. Dist. Ct. App. 1985).

            In Delgado- Santos, the court considered the admissibility of a prior inconsistent statement

made    by    a   juvenile   during   police   questioning. 471 So. 2d            at   75.    The court rejected the argument


that police investigatory activity constitutes a " proceeding" under the Florida statute based on Fed.

R. Evid. 801( d)( 1)( A). Delgado- Santos, 471 So. 2d                    at   75 ( citing Fla. Stat. Ann. § 90. 801( 2)( a)).


The    court      observed     that the word " proceeding"              implied "      a degree of formality, convention,




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44974 -9 -II



structure, regularity and replicability of the process in question" that police questioning does not

include. Delgado- Santos, 471 So. 2d at 77.


        The Delgado- Santos court expressly rejected the Smith court' s reliance on reliability,

finding that it had no basis in the statute:

        While the legislature and Congress may have been ultimately concerned with the
         reliability" of a particular statement, they sought to vindicate that concern only by
        establishing given and objective criteria as to the circumstances, including.the kind
        of forum, under which it was given. And it is for the legislature, not the courts, to
        determine not only the policy to be promoted, but the means by which that end is
        to be achieved.

471 So. 2d     at   79.   The court concluded that the Smith reliability test violated this basic principle

by suggesting, without statutory .authority, that the existence of a " proceeding" can depend on what

is said before it. Delgado- Santos, 471 So. 2d at 79.

         Michael argues that the Florida court' s concerns about the Smith test are confirmed by the

United States Supreme Court' s concerns about a reliability standard for admitting hearsay, as

expressed      in Crawford    v.   Washington, 541 U. S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004). In


Crawford, the Court concluded that confrontation clause protections should not be left to

 amorphous notions of `reliability.         "'   541 U. S. at 61. The Court abandoned the Roberts test, which


allowed a jury to hear hearsay evidence based on a judicial determination of reliability, in favor of

anew rule stating that the admission of testimonial hearsay evidence at trial violates the Sixth

Amendment when the witness is unavailable and cannot be cross- examined by the defendant.

Crawford, 541 U.S. at 62, 68, abrogating Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed.

2d 597 ( 1980).


         There are fundamental problems with Michael' s challenge to the Smith decision. First, we

are   bound to apply Washington law              as   interpreted   by   the Washington Supreme Court.    State v.


Gore, 101 Wn.2d 481, 487, 681 P. 2d 227 ( 1984).                  We cannot abandon the reliability test set forth


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44974 -9 -II



in Smith in favor of a bright -line rule holding that police questioning does not qualify as a

 proceeding"         under   ER 801( d)( 1)( i). Second, there is no confrontation clause problem when the


witness testifies at trial, concedes making the prior statement, and is subject to unrestricted cross -

examination.         United States v. Owens, 484 U.S. 554, 560, 108 S. Ct. 838, 98 L. Ed. 2d 951 ( 1988);

State   v.   Thach, 126 Wn.        App. 297,      309, 106 P. 3d 782 ( 2005) ( citing   Crawford, 541 U. S. at 59 n.9).

Crawford has no bearing on the admissibility of prior inconsistent statements under ER

801( d)( 1)(      i) and does not compel abandonment of the Smith test. Thach, 126 Wn. App. at 309.

             Some states have resolved the issue presented in this case by expressly including recorded

statements within the categories of prior inconsistent statements that are admissible as substantive

evidence.         See McManamon            v.   Washko, 906 A.2d 1259, 1267 ( Pa. Super. 2006); State v. Fields,


120 Haw.          App.   73, 89   n. 3,   201 P. 3d 586 ( 2005),       affirmed, 108 Haw. 503, 168 P. 3d 955 ( 2007). 2

Until ER 801( d)( 1)( i)           is amended accordingly, or until our Supreme Court overrules Smith,

Washington courts are bound by the reliability test set forth in Smith in determining the

admissibility of any prior inconsistent statement made during a police interview.

             B.       OATH REQUIREMENT


             Michael argues that even if Smith remains good law, the court erred by admitting Philana' s

statement because it was not made under oath, as ER 801( d)( 1)( i) requires. In a related argument,

Michael contends that the trial court erred in concluding that Philana' s prior statement met the

minimal guarantees of truthfulness that Smith requires. Michael did not raise the oath requirement


as a separate issue below, but his argument that Philana' s prior statement did not satisfy the Smith



2
    Pa. R. Evid. 803. 1( 1)(         C) excludes from the hearsay definition a witness' s prior inconsistent
statement that is " a verbatim contemporaneous electronic, audiotaped, or videotaped recording of
an oral      statement."      Haw. R. Evid. 802. 1( 1)( C) excludes prior inconsistent statements that are
    r] ecorded in substantially verbatim fashion by stenographic, mechanical, electrical, or other
means contemporaneously with the making of the statement."


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44974 -9 -II




test   preserves      this issue   on appeal.    See Nieto, 119 Wn. App. at 163 ( minimal guarantees of

truthfulness standard is satisfied by an oath and a formalized proceeding).

         We addressed the oath requirement in Sua, where each alleged victim provided a written


statement and signed a paragraph             stating, " The above is a true and correct statement to the best of


my knowledge. No threats or promises have been made to me nor any duress used against me."

115 Wn. App. at 32. We compared these facts with Smith, where the declarant took an oath from
a   notary    public, and with     Nelson,   where   the declarant      complied with       RCW 9A. 72. 085. Sua, 115



Wn. App. at 48. In contrast, neither declarant in Sua took an oath, complied with RCW 9A.72. 085,
or   in any   other   way   gave   her   statement under oath subject          to penalty   of   perjury.   115 Wn. App. at

48.    As a consequence; we held that the trial court erred by admitting the victims' statements as

substantive evidence under           ER 801( d)( 1)( i).   Sua, 115 Wn. App. at 49.

          RCW 9A.72. 085( 1) sets forth the circumstances in which an unsworn statement may be

treated as a sworn statement:3

                                              any law
                      Whenever,                                 this   state   or   under           rule,   order,   or
                                    under                  of                               any
          requirement made under the law of this state, any matter in an official proceeding
          is required or permitted to be supported, evidenced, established, or proved by a
          person' s sworn written statement, declaration, verification, certificate, oath, or
          affidavit, the matter may with like force and effect be supported, evidenced,
          established, or proved in the official proceeding by an unsworn written statement,
          declaration, verification, or certificate, which:

                       a) Recites that it is certified or declared by the person to be true under
                      penalty of perjury;
                       b)   Is subscribed by the person;
                       c)   States the date and place of its execution; and
                       d) States that it is so certified or declared under the laws of the state of
                      Washington.




3 GR 13 also allows for the use of unsworn statements.


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44974 -9 -II




The statute thus permits verification of unsworn written statements by signing and certifying,

under penalty of perjury, that the information is true and providing the time and place of signing.

Gates v. Port ofKalama, 152 Wn. App. 82, 88, 215 P. 3d 983 ( 2009).

         As we observed in Sua, the sworn written statement in Nelson satisfied each requirement

of   RCW 9A. 72. 085.         115 Wn.   App.   at   47 -48 ( citing Nelson, 74 Wn.   App.     at   390).   Because the


evidence supported a finding that the declarant understood that her sworn statement was made

under penalty of perjury, her signature on that statement satisfied the required minimal guarantees

of   truthfulness.     Nelson, 74 Wn. App. at 390; see also Thach, 126 Wn. App. at 308 ( declarant' s

testimony that she signed her statement under penalty of perjury, and officer' s witnessing of her

signature, supported a finding that her statement carried minimal guarantees of truthfulness).

          Philana testified that she did not understand the meaning of the word " perjury" until shortly

before trial, but the trial        court   found this testimony    neither   credible   nor   truthful.     On appeal,


Michael challenges these findings by citing Philana' s testimony as well as the lack of evidence

showing that anyone explained the meaning of the word "perjury" to her.

          It is well settled that credibility determinations are for the trier of fact and are not subject

to   review.   State   v.   Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004). But, even if we defer to the


trial court' s findings regarding Philana' s lack of credibility, her statement did not qualify as a

sworn statement under           RCW 9A. 72. 085.       The police transcribed her oral statement, but she did


not review, sign, and date the transcription. See State v. Johnson, 40 Wn. App. 371, 378, 699 P. 2d

221 ( 1985) ( statements        to police that were oral or unsigned were inadmissible under.ER 801( d)( 1)).

Consequently, Philana' s prior statement did not satisfy the oath requirement in ER 801( d)( 1)( i) or

meet the minimal guarantees of truthfulness that Smith requires. The trial court erred by admitting

the statement as substantive evidence.




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44974 -9 -II



III.     HARMLESS ERROR


         The State     argues   that any failure to satisfy the    oath requirement    in ER 801( d)( 1)( i) or one


of the Smith factors was harmless error. We agree.


         A reviewing court will not reverse due to an error in admitting evidence where the error

does not prejudice the defendant. Thomas, 150 Wri.2d at 871. Where the error is from the violation


of an evidentiary rule rather than a constitutional mandate, courts do not apply the more stringent

 harmless      error   beyond     a reasonable    doubt"    standard.   Thomas, 150 Wn.2d       at   871.   Rather,


evidentiary error is not prejudicial unless, within reasonable probabilities, the trial' s outcome

would have differed had the error not occurred. Thomas, 150 Wn.2d at 871.

         The evidence of Michael' s guilt is overwhelming. The record shows that Philana went to

the police station in a state of distress. She had visible injuries consistent with an assault. She told

                                                                        4
Deputy       Noyes that Michael had inflicted those injuries.               Although Michael denied choking

Philana, he admitted arguing with her, throwing items against the wall, and assaulting her.

         The issues before the jury were whether Michael acted in 'self -defense or whether he

committed assault        in the   second   degree   by   strangulation or assault   in the fourth degree.   It does


not appear reasonably probable that the jury would have acquitted Michael of assault in the fourth
degree had the trial court excluded Philana' s prior recorded statement as substantive evidence.




4 The trial court admitted this testimony for impeachment purposes but did not offer the jury a
limiting     instruction.   In the absence of a limiting instruction, the jury could consider Deputy
Noyes'   s   testimony   about    Philana'   s statements as substantive evidence.       See State v. Myers, 133
Wn.2d 26, 36, 941 P. 2d 1102 ( 1997) (           absent request for limiting instruction, evidence admitted as
relevant for one purpose is deemed relevant for other purposes).


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44974 -9 -II



        We hold that the trial court' s error was harmless based on the additional evidence


supporting Michael' s conviction of assault in the fourth degree. We affirm the conviction.




We concur:




                              r   ci   l r
           Jrgen,   t.C. J.




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