                                                                                           F ILE:D
                                                                                      COURT OF APPEALS
                                                                                            DIVISION 11

                                                                                     2915 AUG 18      AM 9: O

                                                                                     STATE OF WASHINGTON

                                                                                      BY
                                                                                                E PfTY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

 STATE OF WASHINGTON,                                                                   No. 46107 -2 -II


                                      Respondent,


           V.



 TORIBIO AMARO- SOTELO,                                                        UNPUBLISHED OPINION




          SUTTON, J. —      Toribio Amaro- Sotelo appeals his jury trial convictions of second degree

unlawful possession of a firearm and four counts of unlawful delivery of a controlled substance.

We hold that ( 1)    a testifying police detective did not improperly comment on Amaro- Sotelo' s

constitutional right   to   silence and constitutional right        to   a   jury   trial, ( 2) the trial court' s admission



of a certified record from the Judicial Information System (JIS) attesting to the existence of a prior

assault   conviction   did   not   violate   his   right   to   confrontation, (      3) the trial court did not err in


admitting the certified JIS record, and ( 4) the trial court did not undermine the presumption of

innocence and infringe on his right to present a defense by suggesting the jury could consider a

prior assault conviction in determining the weight or credibility of his testimony. Accordingly, we

affirm    Amaro- Sotelo'    s convictions.
No. 46107 -2 -II




                                                             FACTS


         Following several controlled -buy operations in whicha confidential informant purchased

cocaine, methamphetamine, and a firearm from Amaro- Sotelo, the State charged Amaro- Sotelo


with second degree unlawful possession of a firearm and four counts of unlawful delivery of a

controlled substance. The case proceeded to a jury trial.

         The confidential informant and the drug task force officers involved in the investigation

testified about each of the controlled -buy operations, and the jury heard recordings of the

informant' s contacts with Amaro- Sotelo. The State also presented evidence that the informant had


prior convictions for second degree possession of stolen property, third degree possession of stolen

property,    and "   making    a   false   statement."      1 Report of Proceedings ( RP) at 90.


         In addition to testifying about the investigation, Detective Jeffrey Lee Brown testified

about   Amaro- Sotelo'     s   arrest.      After Amaro- Sotelo had waived his Miranda' rights,2 he denied

selling any drugs. Detective Brown testified that he then told Amaro- Sotelo that he " knew that to

be untrue" because the task force had purchased drugs from Amaro- Sotelo on several occasions.


2 RP    at   333.    When the State asked how Amaro- Sotelo responded to this statement, Detective


Brown testified, " Well, he kind             of smirked or smiled and            looked up   at   the sky and said, .`Well,


then,   you' re     going to have to        prove   it."'    2 RP    at   334.   Amaro- Sotelo did not object to this


testimony.




1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966)

2 The trial court had previously ruled that Amaro- Sotelo' s statements to Detective Brown were
admissible. Amaro- Sotelo does not challenge the trial court' s CrR 3. 5 ruling.




                                                                 2
No. 46107 -2 -II




           Also during Detective Brown' s testimony, the State asked him to identify exhibit 12, a

certified JIS record from the Cowlitz County District Court showing that Amaro- Sotelo had a prior

conviction for fourth degree domestic violence assault.3 Exhibit 12 was a computer printout of a

JIS   record     certified   by   the district   court   deputy      clerk as   being " a true and correct copy of the

original    on    file in the" district      court.      Detective Brown identified exhibit. 12 as a notarized


document from Cowlitz               County    District Court         and   stated   that this was " a court print-out of


conviction" for fourth degree domestic violence assault. 2 RP at 313- 14


           The State      moved     to   admit exhibit    12.    Defense     counsel        objected,   stating, "[ W] e would


object to its admission for lack of foundation. I' m not sure it purports to show anything relevant

other    than .my client     has   one misdemeanor conviction."                 2 RP   at   314.   Following an unrecorded

sidebar on the objection, the trial court admitted exhibit 12.


           The State also presented testimony from a forensic scientist from. the Washington State

Patrol    crime    lab.   He testified that he had found Amaro- Sotelo' s fingerprint on the firearm' s


trigger.


           Amaro- Sotelo'     s   defense   was a general       denial.    In addition to testifying himself, he called

his son and a friend as witnesses who' testified they had never seen Amaro- Sotelo sell drugs.

Amaro- Sotelo' s son also testified that he was the one who owned the firearm the informant


purchased, that he sold the firearm to the informant, and that he never saw his father handling the




3 A person commits second degree unlawful possession of a firearm if that person possesses a
firearm and has previously been convicted of fourth degree assault committed against a family or
household member.. RCW 9. 41. 040( 2)( a)( i).



                                                                 3
No. 46107 -2 -II



gun. Amaro- Sotelo testified that he had only been joking with the informant about drugs and the

only thing he sold to the informant were car parts.

         After the parties rested, the trial court allowed the State to reopen its case to submit two

additional exhibits, exhibits 14 and 15, intended to show that Amaro- Sotelo was the person named

in   exhibit   12.    Exhibit 14    was a     fingerprint "   analysis or exemplar"          containing Amaro- Sotelo' s

name,    date   of    birth,   and address,   which matched          the information on       exhibit   12.   2 RP at 456.


Exhibit 15 was a booking photograph for the incident that generated the fingerprint exemplar. The.
trial court admitted these exhibits.


            The trial    court   then instructed the     jury.       Two of, these instructions referred to prior


convictions.         The first, instruction 7,   stated, "   You may consider evidence that a witness has been

convicted of a crime only in deciding what weight or credibility to give the testimony of the witness

and   for   no other purpose."       Clerk' s Papers ( CP) at 31.


            The second, instruction 8, stated:

                      Certain    evidence   has been   admitted       for   a   limited   purpose.   The State has

            offered Exhibits 12, 14 and 15 as evidence of element two of Count V [the unlawful
            possession of a firearm charge].
                      You may consider this evidence solely for this purpose and for no other
            purpose.




 CP at 32.


            The jury found Amaro- Sotelo guilty, as charged. He appeals his convictions




                                                                El
No. 46107- 2- 11



                                                          L     A1A&% V


                                      1. COMMENT ON CONSTITUTIONAL RIGHTS


             Amaro- Sotelo first argues that Detective Brown' s testimony that Amaro- Sotelo " smirked"

before stating that the State was going to have to prove any charges against him was an

impermissible        comment on       his   exercise of   his   right   to   remain silent.    Br.   of     Appellant        at   9.   He


further argues that this was also an impermissible comment on his intent to exercise his right to

due   process       to   require   the State to   prove   the    elements      of   the   offenses     in   a   jury     trial.    Even


presuming, but not deciding, that these issues qualify as manifest constitutional errors,4 these
arguments fail.


              A comment on an accused' s silence occurs when used to the State' s advantage either as


substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt."

State   v.   Lewis, 130 Wn. 2d 700, 707, 927 P. 2d 235 ( 1996); see also State v. Burke, 163 Wn.2d 204,


225, 181 P. 3d 1 ( 2008). Here, however, Amaro- Sotelo                       was not   exercising his       right   to    silence—     in


fact, he      was   talking   to Detective Brown after waiving his Miranda                   rights.    Thus, this testimony

was not a comment on Amaro- Sotelo' s exercise of his right to remain silent.


             Regarding his claim that Detective Brown' s testimony was an improper comment on his

right to require the State to prove the offenses in a jury trial, Amaro- Sotelo cites only State v.

Holmes, 122 Wn.            App.    438, 93 P. 3d 212 ( 2004),        and State v. Silva, 119 Wn. App. 422, 81 P. 3d

889 ( 2003).        But these cases address witnesses' impermissible comments on the defendant' s right


to silence and are inapposite here. Amaro- Sotelo does not cite any cases that support his argument.



4 RAP 2. 5( a)( 3).



                                                                 E
No. 46107 -2 -II



RAP 10. 3(    a)(   6); State   v.     Dennison, 115 Wn.2d 609, 629, 801 P. 2d 193 ( 1990).                       Accordingly, we

reject that argument. .


                                                    II. CONFRONTATION RIGHT


         Sotelo next argues that the admission of exhibit 12 violated his Sixth Amendments and


article I, section 226 confrontation rights because he was not permitted to cross- examine the person

who    created      the document.            Even presuming that this was a manifest constitutional error that

Amaro- Sotelo can raise for the first time on appeal, this argument fails.


         The confrontation clause prohibits the admission of testimonial hearsay .statements in a

criminal case without an opportunity for cross- examination. State v. Fleming, 155 Wn. App. 489,

501, 228 P. 3d 804 ( 2010).                 We   review alleged confrontation clause violations                  de   novo.   State v.


Medina, 112 Wn. App. 40, 48, 48 P. 3d 1005 ( 2002).

         As a general rule, the admission of certified public records does not violate the Sixth

Amendment right to confrontation:


         Business and public records are generally admissible absent confrontation .. .
         because—         having been created for the administration of an entity' s affairs and not
         for the       purpose         of    establishing     or       proving    some   fact   at   trial— they      are not
         testimonial.


Melendez -Diaz v. Massachusetts, 557 U. S. 305, 324, 129 S. Ct. 2527, 174 L. Ed. 2d 314 ( 2009)

And   a court record       that   is   not created   for    use   in   a criminal   proceeding is    not   testimonial— it    "simply



s
    The Sixth Amendment                 confrontation clause provides that "[              i]n all criminal prosecutions, the
accused shall        enjoy the       right ...     to be    confronted with         the witnesses    against    him." U. S. CONST.
amend. VI.

G
    Article   I,    section     22      of   the   Washington           State    Constitution    provides      that "[   i] n criminal
prosecutions,       the   accused shall          have the   right ...        to meet the witnesses against him face to face."




                                                                         0
No. 46107 -2 -II




memorializes      facts   as   they   occurred    in   court, without reference    to   fixture litigation."   State v.


Hubbard, 169 Wn.          App.    182, 186- 87, 279 P. 3d 521 ( 2012); see also State v. Benefiel, 131 Wn.


App.    651, 656, 128 P.3d 1251 ( 2006) ( prior judgment and sentence was not testimonial as it was


not made to establish a' fact in a criminal proceeding and the declarant had no reasonable

expectation that the State would rely on the record at trial).

          Here, the document in question was a copy of a.record on file in the court system and was

an official court record.         State   v.   Cross, 156 Wn.      App.   568, 588, 234 P. 3d 288 ( 2010) (    records




from the JIS     are " official court records"),        remanded on other grounds, 172 Wn.2d 1009 ( 2011). 8

Because it was not testimonial, Amaro- Sotelo cannot show his confrontation rights were violated


and this argument fails. 9




7
    Amaro- Sotelo    argues     that this JIS     printout   was " created"    for trial.   Br. of Appellant at 14.
Although the physical document was printed and certified for trial, the JIS record itself was created
following his conviction in district court, not in anticipation of this trial, and the certification only
stated that the physical document was a true and correct copy of the original record. Accordingly,
this argument has no merit.


8 In his reply, Amaro- Sotelo asserts that Cross, 156 Wn. App. at 588, is inapplicable here because
it addresses whether a similar document was sufficient to meet the State' s burden of proving prior
convictions at sentencing and does not address whether such documents were testimonial or
otherwise admissible. But we rely on Cross solely for the proposition that such records are official
court records, which is independent of this distinction.


9 Amaro- Sotelo also argues that his trial counsel was ineffective for failing to object to exhibit 12
on confrontation grounds.             Because we hold that there is no confrontation clause issue, Amaro-
Sotelo does not show that his counsel' s failure to raise this argument was deficient performance
or prejudicial and this argument fails. State v. McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d 1251
    1995) ( to   establish     ineffective     assistance    of   counsel,   appellant must show both deficient
representation and prejudice).




                                                              7
No. 46107 -2 -II



                                             III. FACTUAL FOUNDATION


          Sotelo. next argues that the trial court erred in admitting exhibit 12 because the State did

not provide     an adequate      factual foundation.       He     contends   that ( 1)   exhibit 12 was not a " court


 record or    proceeding"' for purposes of RCW 5. 44. 010, so a foundation was required, and (2) there


was no testimony " regarding who created the printout, how it was created, what system it came

from,    or whether   it   was accurate."    Br. of Appellant at 16- 17. We hold that the trial court did not


err in admitting exhibit 12, an official court record, because it was admissible under RCW

5. 44. 040.


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


138 Wn.2d 460, 463- 64, 979 P. 2d 850 ( 19.99). A trial court abuses its discretion when its decision


is manifestly    unreasonable or     based    on untenable grounds.          Wade, 138 Wn.2d at 464.

          RCW 5. 44. 040      permits admission of "[c] opies of all records and            documents ...   on file" in


this   state when certified     by " respective   officers   having by   law the custody thereof...."        A public


record certified    in this    manner   is        authenticated.
                                             self -                  ER 902( d); 10 State v. Monson, 113 Wn.2d

833, 836- 37, 784 P. 2d 485 ( 1989). " To be admissible, the public document must ( 1) contain facts




to ER 902 provides in part:
                   Extrinsic evidence of authenticity as a condition precedent to admissibility
          is not required with respect to the following:

                    d) Certified Copies        of public     Records.   A copy of an official record or
          report or entry therein, or of a document authorized by law to be recorded or filed
           and actually recorded or filed in a public office, including data compilations in any
          form, certified as correct by the custodian or other person authorized to make the
          certification.

       Emphasis added.)




                                                              E
No. 46107 -2 -II




rather   than   conclusions     that involve judgment, discretion         or   the   expression of opinion; (    2) relate


to   facts that   are of a public nature; (     3) be retained for public benefit; and ( 4) be authorized by

statute."    State v. Chapman; 98 Wn. App. 888, 891, 991 P. 2d 126 ( 2000).

          Although Amaro- Sotelo asserts this JIS printout is not a court record or proceeding under

RCW 5. 44. 010, he does not argue that it is not admissible under RCW 5. 44. 040 because it is not

a " public    document" that     meets   the   above criteria.    The certification on this official court record


established that ( 1) it was a copy of a record on file in the Cowlitz County District Court, and ( 2)

it was certified as a true and correct copy by the deputy clerk. Ex. 12. This is sufficient to comply

with RCW 5. 44. 040, and the trial court did not abuse its discretion in admitting this exhibit.

                        IV. FAILURE TO LIMIT USE OF PRIOR ASSAULT CONVICTION


            Finally, Amaro- Sotelo argues that the trial court undermined the presumption of innocence

and infringed on his right to present a defense when it suggested that the jury could consider his

prior assault conviction        in   determining   the weight    or   credibility    of   his testimony. We decline to


reach this issue under RAP 2. 5( a).


            We agree that jury instruction 7 was improper in this case because it arguably allowed the

jury to consider Amaro- Sotelo' s prior conviction for credibility and weight purposes despite its

not   being    admissible   for those    purposes under    ER 609( a).         But because he did not object to this


jury instruction, we will not review this issue unless Amaro- Sotelo first establishes that it is a

manifest error      affecting   a constitutional right.   RAP 2. 5(     a)(   2). To do so, he must " show both that


 1) the error implicates a specifically identified constitutional right, and ( 2) the error is ` manifest'

in that it had `    practical    and   identifiable   consequences'      in the trial below."       State   v.   Bertrand,
No. 46107 -2 -II




165 Wn.      App.   393, 400, 267 P. 3d 511 ( 2011) (       quoting State v. Grimes, 165 Wn. App. 172, 186,

267 P. 3d 454 ( 2011)).         This he fails to do.


            Despite Amaro- Sotelo' s assertion that this instruction undermined the presumption of,


innocence and infringed on his right to present a defense, this instruction merely allowed the jury

to consider his prior conviction when evaluating the credibility and weight of his testimony even

though the     conviction was not admissible           for that   purpose.        See ER 609( a).   Such an error is not


an issue of constitutional magnitude and, thus, cannot be raised for the first time on appeal. State

v.   Ray,    116 Wn. 2d 531,        546, 806 P. 2d 1220 ( 1991) ( erroneous ER 609( a) rulings are not


constitutional errors).     Accordingly, we hold that Amaro- Sotelo has waived this issue.

            We affirm Amaro- Sotelo' s convictions.


            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.

                                                                             II    A




                                                                  SUTTON, J.
 We concur:




                            e

 MAXA, P. J.




 L.X ,J.




                                                            10
