                                                                r-'T-'T n~ .',




                                                                 2j'i'i OCT Zl r...\ S: 5o




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                        DIVISION ONE
                         Appellant,
                                                        No. 70742-6-1
                    v.

                                                        UNPUBLISHED OPINION
KAVEN LIONEL HILL,

                         Respondent.                    FILED: October 27, 2014


        Dwyer, J. — Kaven Hill appeals from his conviction of forgery. He

contends that (1) insufficient evidence supports his conviction, (2) he was entitled

to have the jury instructed on the "rule of efficacy," and (3) his constitutional right

to confront the witnesses against him was violated when the "money order" at

issue, upon which the notations "Return Unpaid" and "Non-Treasury Item"

appeared, was admitted into evidence.1 Because Hill was entitled to have the

jury instructed on "the rule of efficacy," we reverse the conviction and remand for

a new trial.

                                                I


        Using his home computer, Hill created a "money order" that was drawn on

the United States Treasury (the Treasury) and, by its terms, entitled a business

of his to an amount in excess of $377,000.00. This "money order" possessed, in


        1 Hill raises essentially the same arguments in his statement of additional grounds. We
accept or reject them for the reasons explained below.
No. 70742-6-1/2



pertinent part, the following characteristics:

              it read "Money Order" at the top, in the center;
              it listed "Kaven L. Hil" (sic) in the upper left hand corner;
              it read "Pay to the order of," followed by the name of a business
              owned by Hill;
              it was written in the amount of $377,986.00;
              it was signed by Hill;
              it read "Payable to the U.S. Treasury without recourse" below the
              signature line;
              there was an unusually long statement in the "memo" section; and
              there was a routing number and what appeared to be an account
              number at the bottom.

At trial, Hill testified that he had created the "money order" on his home computer

following instructions that he had found on the Internet. He claimed that he had

been attempting to lawfully access a limitless account in his name at the

Treasury Department.

       On August 17, 2012, Hill presented the "money order" for deposit in a

newly-opened business account at Verity Credit Union. Because of irregularities

on the face of the money order—including the misspelling of Hill's name, the

excess verbiage, and the fact that it was written for hundreds of thousands of

dollars, whereas money orders are usually capped at $1,000.00—Verity

employees were suspicious of the "money order." The "money order" was

nevertheless accepted for deposit and sent to the Treasury for processing.

Despite being informed by the Verity branch manager that a hold would be

placed on the funds deposited into Hill's account until the "money order" cleared,

Hill called Verity later that day and attempted to convince an assistant manager
No. 70742-6-1/3



to release the funds to him.

      After Hill deposited the "money order," Verity's fraud officer, Melissa Mutic,

further investigated the item. She was able to verify that the routing number at

the bottom of the check, "000000518," was an actual routing number for the

Treasury. She testified that, ifthe "money order" had been accepted, it would

have resulted in a transfer of money from the Treasury into Hill's account. Mutic

also discovered videos on YouTube containing instructions on how to create the

type of "money order" that had been presented by Hill.

       The "money order" was eventually returned to Verity unpaid. It was

stamped "Return Unpaid" and "Non-Treasury Item" on the front. Verity closed all

of Hill's accounts and contacted law enforcement.

       Thereafter, Hill was charged with one count of forgery. At trial, before jury

selection, Hill sought to exclude the "money order" from being admitted into

evidence with the notations on the front. Hill argued that the stamped statements

were testimonial and, therefore, admitting the statements without testimony from

a Treasury Department official violated his Sixth Amendment right to confront the

witnesses against him. The trial court ruled that the "money order" was

admissible notwithstanding the notations.

       After the close of evidence, Hill proposed a jury instruction that provided

the common law definition of the term "instrument." The trial court refused to

give the proposed instruction.

       The jury found Hill guilty as charged. Hill moved for arrest of judgment

and dismissal, contending that the State failed to establish his guilt at trial. His

                                         -3-
No. 70742-6-1/4



motion was denied. Hill was sentenced within the standard range, and now

appeals.

                                           II


       Hill first contends that the evidence admitted at trial was insufficient to

support his forgery conviction. He maintains that the State failed to prove that (1)

he acted with intent to defraud, (2) he knew the instrument was forged, and (3)

the "money order" had apparent legal efficacy. Hill's contention is unavailing.

       The due process clauses of the federal and state constitutions require that

the State prove every element of a crime beyond a reasonable doubt. Apprendi

v. New Jersey. 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);

U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he critical inquiry on

review of the sufficiency of the evidence to support a criminal conviction must

be ... to determine whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,

318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson, 443 U.S. at 319.

       A claim of insufficiency admits the truth of the State's evidence and all

reasonable inferences from that evidence. State v. Kintz. 169 Wn.2d 537, 551,

238 P.3d 470 (2010). Circumstantial evidence and direct evidence can be

equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

We defer to the jury on questions of conflicting testimony, credibility of witnesses,

                                         -4-
No. 70742-6-1/5



and the persuasiveness of the evidence. State v. Killinqsworth, 166 Wn. App.

283, 287, 269 P.3d 1064 (2012).

       "A person is guilty of forgery if, with intent to injure or defraud:... He or

she possesses, utters, offers, disposes of, or puts off as true a written instrument

which he or she knows to be forged." RCW 9A.60.020(1)(b). To convict Hill of

forgery, the jury was required to find that each of the following elements of the

crime was proved beyond a reasonable doubt:

               (1) That on or about the 17th of August 2012, the defendant
       possessed or offered or disposed of or put off as true a written
       instrument which had been falsely made, completed or altered;
               (2) That the defendant knew that the instrument had been
       falsely made, completed or altered;
               (3) That the defendant acted with intent to injure or defraud.

Jury Instruction 13.

       Thus, in order to convict Hill as charged, the State had to prove that he

acted with intent to injure or defraud. Specific intent is intent "to produce a

specific result, as opposed to intent to do the physical act that produces the
result." State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Specific intent

cannot be presumed, but it can be inferred as a logical probability from all of the

facts and circumstances. State v. Pedro, 148 Wn. App. 932, 951, 201 P.3d 398

(2009).

          Here, the evidence established that Hill created a homemade "money

order" and, in an attempt to have his account credited with more than

$377,000.00, presented it to Verity as a valid money order drawn on the

Treasury. These facts permit an inference to be drawn that Hill intended to
No. 70742-6-1/6



defraud either the credit union or the Treasury. The inference that Hill acted with

the requisite intent is bolstered by evidence that Hill, despite being told by the

Verity manager that a hold would be placed on the funds until the "money order"

was verified, attempted to persuade an assistant manager to release the funds to

him later the same day. Although Hill testified that he did not intend to injure or

defraud anyone, the jury was not required to credit his testimony. Sufficient

evidence was adduced by the State with regard to Hill's intent.

       The State was also required to prove that Hill knew that the written

instrument was forged. The jury was given the following instruction as to

the knowledge requirement:

             A person knows or acts knowingly or with knowledge with
       respect to a fact, circumstance or result when he or she is aware of
       that fact, circumstance or result. . . .

              If a person has information that would lead a reasonable
       person in the same situation to believe that a fact exists, the jury is
       permitted but not required to find that he or she acted with
       knowledge of that fact.

Jury Instruction 12. Thus, the State may have established the knowledge

element by proving either that Hill actually knew that the "money order" was

forged or that, based on the information that he knew, a reasonable person in his

situation would have believed that it was forged.

       The "money order" presented by Hill purported to be drawn on the

Treasury. By his own admission, however, Hill produced the "money order" on

his home computer. Therefore, the evidence established that, although Hill

presented the "money order" as drawn on the Treasury, Hill was aware that it
No. 70742-6-1/7



was not, in fact, issued by the Treasury. These circumstances give rise to an

inference that Hill knew that the homemade "money order" was not a legal

means of acquiring Treasury funds. Although Hill testified that he believed that

the "money order" was a valid means of accessing the Treasury money, again,

the jury was not required to credit this testimony. Sufficient evidence was

adduced by the State with regard to Hill's knowledge.

       Finally, the State had to prove that the item Hill presented to Verity was a

"written instrument." The definition of "written instrument" includes "[a]ny paper,

document, or other instrument." RCW 9A.60.010(7); Jury Instruction 6

(emphasis added). The criminal statute does not define "instrument." Our

Supreme Court, however, has held that the relevant statute is supplemented by

the common law definition of "instrument."2 State v. Scobv, 117 Wn.2d 55, 57-

58, 810 P.2d 1358, 815 P.2d 1362 (1991). "[UJnder the common law 'an

instrument is something which, if genuine, may have legal effect or be the

foundation of legal liability.'" Scobv, 117 Wn.2d at 57-58 (quoting State v. Scobv.

57 Wn. App. 809, 811, 790 P.2d 226 (1990)). Thus, in the context of the forgery

statute, an "instrument" must be "'something, which, if genuine, may have legal




       2 Two cases describe in detail the common law history of the rule of efficacy and the
development of the law since the enactment of the criminal code. See State v. Scobv, 117 Wn.2d
55, 57-58, 810 P.2d 1358, 815 P.2d 1362 (1991); State v. Smith. 72 Wn. App. 237, 239-43, 864
P.2d 406 (1993). As concluded in Scobv:
       [F]orgery requires the falsification of a paper, document or otherinstrument. The
       statute does not define the term "instrument", however. RCW 9A.04.060 states
       that the common law governing the commission of crimes supplements
       Washington penal statutes. Therefore, we look to the common law definition of
       the term "instrument" for guidance ....
117Wn.2dat57.
No. 70742-6-1/8



effect or be the foundation of legal liability.'"3 Scobv. 117 Wn.2d at 57-58

(quoting Scobv. 57 Wn. App. at 811).

        The criminal code does not provide a framework for evaluating the legal

efficacy of a purported financial instrument. However, such a framework does

exist in the Uniform Commercial Code (UCC).4 Pursuant to the UCC,

"'Instrument' means a negotiable instrument." RCW 62A.3-104(b). Negotiable

instrument is defined as


        an unconditional promise or order to pay a fixed amount of money,
        with or without interest... if it:
                (1) Is payable to bearer or to order at the time it is issued or
        first comes into possession of a holder;
                (2) Is payable on demand or at a definite time; and
                (3) Does not state any other undertaking or instruction by the
        person promising or ordering payment to do any act in addition to
        the payment of money.

RCW 62A.3-104(a). An order is a written instruction to pay money signed by the

person giving the instruction. RCW 62A.3-103(6). If an order does not state any

time of payment, it is "payable on demand." RCW 62A.3-108(a).

        A check is one type of negotiable instrument. A check is a draft, or order,

that is payable on demand and drawn on a bank. RCW 62A.3-104(f). The

requirement that the instrument be "drawn on a bank" may be satisfied by a

routing number. As an official comment to the pertinent UCC provision explains,



        3 This has come to be referred to as the "rule of legal efficacy." Smith, 72 Wn. App. at
239.
        4The practice of looking outside the criminal code to determine the legal efficacy of a
written instrument is well-established. See, e.g., Scobv, 117 Wn.2d at 58 (citing the United States
Code to determine the legal efficacy of a one dollar bill); Smith, 72 Wn. App. at 243 (citing the
UCC to determine the legal efficacy of a check).
No. 70742-6-1/9



          The requirement that the instrument be "drawn on or payable at or
          through a bank" may be satisfied without words on the instrument
          that identify a bank as drawee or paying agent so long as the
          instrument bears an appropriate routing number that identifies a
          bank as paying agent.

RCW 62A.3-104 cmt. 4.56 An instrument may be a check even though it is

described on its face by another term, such as "money order." RCW 62A.3-

104(f).

          Hill's "money order" satisfies all of the UCC requirements of a check.

Preliminarily, the "money order" qualifies as a negotiable instrument. It was an

unconditional order to pay ("pay to the order of) a fixed amount ($377,986.00). It

was signed by Hill, in whose name the supposed account was allegedly kept. It

did not state a time of payment and, thus, was payable on demand. It did not

state any other undertaking or instruction. Moreover, the "money order" qualifies

as a check because it included a routing number connected to the Treasury and

was, therefore, drawn on a bank.

          Viewed in the light most favorable to the State, sufficient evidence was

adduced with regard to the legal efficacy of the "money order."

          The evidence was sufficient for a rational trier of fact to find beyond a

reasonable doubt that Hill acted with intent to injure or defraud, that he knew the


         5 Hill cites to State v. Taes. 5 Wn.2d 51, 53,104 P.2d 751 (1940), for the proposition that
an instrument is so incomplete so as to lack legal efficacy where it does not contain the name of
the bank that is to pay the money. However, the "check"at issue in Taes lacked not only the
name of any bank, but also any appropriate routing number, which would have identified the bank
responsible for payment. See 5 Wn.2d at 53.
         6 Hill also cites two foreign authorities to the contrary: Nat'l City Bank, Davton v. Ohio
Nat'l Life Assurance Corp.. 111 Ohio App. 3d 387, 392, 676 N.E.2d 536, 539 (1996), and People
v. Norwood, 26 Cal. App. 3d 148, 154-55, 103 Cal. Rptr. 7 (1972). We consider the official
comment to the Washington statute to be superior authority.

                                               -9-
No. 70742-6-1/10



instrument was forged, and that the "money order" had apparent legal efficacy.

Hill's insufficiency of the evidence claim fails.

                                                    Ill


        Hill next contends that the trial court erred by refusing to give his proposed

jury instruction on the rule of legal efficacy. Hill maintains that because his

defense relied, in part, on his averment that the "money order" was not legally

efficacious, the trial court erred by allowing the jury to resolve a question of fact—

whether he "possessed or offered or disposed of or put off as true" an

instrument7—without fully defining "instrument" for the jury.8 We agree.

        The Fourteenth Amendment right to due process and the Sixth

Amendment right to trial by jury, taken together, entitle a criminal defendant to a

jury determination of guilt beyond a reasonable doubt as to every element of the

charged crime. Apprendi. 530 U.S. at 476-77; In re Winship, 397 U.S. 358, 364,

90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); U.S. Const, amends. VI, XIV; Wash.

Const, art. I, §§3, 22.

        When requested, "[tjrial courts must define technical words and

expressions used in jury instructions, but need not define words and expressions


        7 Jury Instruction 13.
        8 Hill also contends that the trial court's refusal to instruct the jury as to legal efficacy
violated his constitutional "right to present a defense." This claim is off the mark. "The
constitutional requirement is only that the jury be instructed as to each element of the offense
charged. . . . [F]ailure of the court in the case at bench to define further one of those elements is
not within the ambit of the constitutional rule." State v. Scott. 110 Wn.2d 682, 689, 757 P.2d 492
(1988) (internal quotation marks omitted) (quoting State v. Nq, 110 Wn.2d 32, 44, 750 P.2d 632
(1988)). "Legal efficacy" is not an element of the offense. Rather, itis part of the definition of
"instrument," which is an element or fact that must be found by the jury. See Jury Instruction 13.
Therefore, assigning errorto the trial court's refusal to properly define an element ("instrument")
does not state a constitutional claim. State v. Brown. 132 Wn.2d 529, 612, 940 P.2d 546 (1997)
("failure to give a definitional instruction is not failure to instruct on an essential element").

                                                  -10-
No. 70742-6-1/11



that are of ordinary understanding or self-explanatory."9 State v. Brown. 132

Wn.2d 529, 611 -12, 940 P.2d 546 (1997). A term is "technical" when it has a

meaning that differs from common usage. Brown. 132 Wn.2d at 611. A request

must be made; thus, "'[n]o error can be predicated on the failure of the trial court

to give an instruction when no request for such an instruction was ever made.'"

State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988) (quoting State v. Kroll.

87 Wn.2d 829, 843, 558 P.2d 173 (1976)). To assert such a claim of error on

appeal, a defendant must "propose a defining instruction at trial." Scott, 110

Wn.2dat691. Here, Hill did so.

       We review a trial court's refusal to give a requested jury instruction de

novo where the refusal is based on a ruling of law. State v. Walker, 136 Wn.2d

767, 771-72, 966 P.2d 883 (1998). The trial court's refusal to give the requested

instruction in this case was based on a ruling of law—namely, the incorrect

assertion that legal efficacy was an issue for the judge and not the jury.

Therefore, our review is de novo.

       The common law definition of instrument supplements the statutory

definition of written instrument. Moreover, the common law meaning of

instrument—"'something, which, if genuine, may have legal effect or be the

foundation of legal liability,'" Scobv. 117 Wn.2d at 57-58 (quoting Scobv. 57 Wn.

App. at 811)—differs from the word's common usage. Therefore, "instrument,"

as used in the to-convict instruction, is a technical term. There is no dispute that

        9 This is the "technical term rule." See, e.g., In re Pet, of Pouncv, 168 Wn.2d 382, 390,
395, 229 P.3d 678 (2010) (Madsen, C.J., concurring and dissenting) (referring at length to the
rule), and Scott, 110 Wn.2d at 692 (referring to the rule).

                                              -11 -
No. 70742-6-1/12



Hill requested an instruction on the common law definition of instrument. It

follows that Hill was entitled to have the jury instructed on this definition.10

       The failure to instruct on the definition of a technical term may be

harmless error. State v. Flora. 160 Wn. App. 549, 554, 249 P.3d 188 (2011). "A

harmless error is an error which is trivial, or formal, or merely academic, and was

not prejudicial to the substantial rights of the party assigning it, and in no way

affected the final outcome of the case." State v. Britton. 27 Wn.2d 336, 341, 178

P.2d341 (1947).

       Here, the trial court's error was not harmless. Had the jury been informed

of the doctrine of legal efficacy, it may have concluded that the State had not

proved beyond a reasonable doubt that the purported money order was legally

efficacious. The jury could have concluded as such because the "money order"

was lacking some typically-expected features while others that were present

were incoherent. For example, the money order did not appear to be drawn on

any financial institution. It was payable to both Hill and the "U.S. Treasury."

Moreover, it included a nonsensical "memo" stating that "acceptance of

warehouse receipt it paying down continuance reoccurring balance to DBP, Inc."

In short, parts of the money order did not make sense, and a rational trier of fact

might have discredited the evidence presented as to its asserted legal effect.

       Furthermore, the evidence of the many obvious errors on the face of the

"money order" militates in favor and against both parties on different elements.

Although this evidence supports the inferences of intent and knowledge in favor

       10 The State does not challenge the content of Hill's proposed instruction.

                                             -12-
No. 70742-6-1/13



of the State and against Hill,11 the evidence also weighs against finding that the

"money order" had legal efficacy, which favors Hill and not the State. Yet, only

the State was able to argue the effect of this evidence to the jury.12 This

imbalance is indicative of the prejudice to Hill that resulted from the trial court's

refusal to instruct the jury on legal efficacy. Indeed, the court's decision not to

instruct the jury on the rule of legal efficacy dispossessed Hill of the ability to

argue to the jury that the "money order" was so obviously ineffective—especially

in light of the evidence that it was "returned]" as a "non-treasury item"—that a

reasonable doubt existed as to whether it was, in fact, an "instrument." The error

was not trivial, formal, or academic. Accordingly, Hill's judgment and sentence

must be reversed and remanded for a new trial. See Britton. 27 Wn.2d at 341-

42.

                                                  IV


        The State argues differently, contending that the question of the legal

efficacy of the alleged written instrument is one for the trial court, not the jury.

This contention is based on an assertion that legal efficacy is neither an explicit

nor an implied element of the crime of forgery—a proposition with which we do




        11 See, infra, section II.
        12 For example, during the State's rebuttal closing argument, the prosecutor argued:
"Defense counsel tried to address three different areas that she believed affected this.... So,
one, not legally effective. You can look through the instructions all day. I didn't see anything in
there addressing that."
         Moreover, in its merits briefing to this court, the State argued the following with regard to
the sufficiency of the evidence on the knowledge element: "The money order in this case was so
obviously fake that, even if Hill hadn't actually created the document himself, a reasonable person
in Hill's situation would have known that the money order was a forgery."

                                                -13-
No. 70742-6-1/14



not disagree. Legal efficacy is neither an element nor an implied element of

forgery.

        In fact, the element at issue is that Hill possessed or put off as true a

written instrument. To be an instrument, a writing must be found to have legal

efficacy. Thus, while legal efficacy is not a separate element of the offense of

forgery, it is a definitional aspect of "instrument," which must be proved to the jury

beyond a reasonable doubt.

        The State's assertion that the question of the legal efficacy of the "money

order" was properly decided by the trial judge is premised upon State v. Miller,

156 Wn.2d 23, 123 P.3d 827 (2005). In Miller, our Supreme Court held that the

existence of a domestic violence no-contact order is an element of the crime of

violating such an order. 156 Wn.2d at 24. It also held that the validity of such an

order is not an element but, rather, a question of law appropriately within the

province of the trial court to decide as part of the court's "gate-keeping

function."13 Miller. 156 Wn.2d at 24. The State contends that this gate-keeping

function extends to determining the legal efficacy of a written instrument in a

forgery prosecution.

        The legal efficacy of an alleged written instrument is distinguishable from

the validity of a domestic violence no-contact order. Prior authority establishes

that the question of whether the "money order" was legally efficacious was for the


        13 The Miller court was not presented with any indication that the validity of a no-contact
order was intended to be an element of the crime. 156 Wn.2d at 28. However, the court noted
that, ifthe validity of the order were an element of the crime, itwould be required to be decided by
a jury as a matter of fact. Miller, 156 Wn.2d at 24.

                                               -14-
No. 70742-6-1/15



trier of fact to determine because it was part and parcel of the trier of fact's

inquiry into whether an instrument was proved to exist. This conclusion

necessarily follows from State v. Smith. 72 Wn. App. 237, 864 P.2d 406 (1993).

In Smith, the defendant challenged the sufficiency of the evidence to support his

forgery conviction. 72 Wn. App. at 239. As herein, Smith argued that the written

instrument at issue—which, as here, was a check—was not legally efficacious.

Smith, 72 Wn. App. at 239. In reversing Smith's forgery conviction, the appellate

court concluded that the written instrument at issue did not meet the common law

definition of instrument and was, accordingly, "insufficient to support a conviction

for forgery." Smith. 72 Wn. App. at 243; accord Scobv. 117 Wn.2d at 63 (holding

that paper currency is a written instrument for purposes of the statutory definition

of forgery, and, therefore, the actions proved by the State—that the defendant

passed an altered $1 bill—constituted the crime of forgery); see also State v.

Aitken. 79 Wn. App. 890, 892-95, 905 P.2d 1235 (1995) (holding that a bank

withdrawal slip was a "written instrument" within the meaning of the forgery

statute and upholding the defendant's forgery conviction as against an

evidentiary sufficiency challenge, where the evidence was that the defendant

signed a false name to a bank withdrawal slip).

       There is nothing in Miller that purports to change the effect of Smith or

Scobv and, in view of our decision in State v. Green. 157 Wn. App. 833, 845-46,

239 P.3d 1130 (2010)—which cabined the application of Miller to judicial

orders—Smith and Scobv guide our analysis.



                                          15
No. 70742-6-1/16



       In Green, we were faced with a similar argument from the State urging us

to expand the trial court's gate-keeping function beyond that described in Miller.

In declining the invitation, we held that the lawfulness of a trespass notice must

be proved beyond a reasonable doubt in a criminal trespass prosecution arising

from an alleged violation of that notice. Green. 157 Wn. App. at 850-51. We

distinguished the trespass notice from a prior court order, noting that the trespass

notice was not issued by a court based upon facts found at a proceeding with

due process protections. As was the case with the trespass notice in Green, the

"money order" herein is not a court order and its creation was not the result of

processes imbued with the protections of due process. Our holding in Green

forecloses the State's proposed extension of Miller.

       Here, the jury was required to determine whether Hill possessed, offered,

disposed of or put off as true a written instrument. This was a factual question.

To be an instrument, a writing must have legal efficacy. Scobv. 117 Wn.2d at 57-

58; Smith. 72 Wn. App. at 243. Thus, because Hill requested such an

instruction, it was incumbent upon the trial court to fully instruct the jury on the

meaning of instrument. Nothing in Miller alters this conclusion.

                                           V


       Hill next contends that the admission into evidence of the "money order"

bearing the notations stating "Return Unpaid" and "Non-Treasury Item" violated




                                         -16
No. 70742-6-1/17



his federal constitutional right to confront the witnesses against him.14 U.S.

Const, amend. VI. This is so, he asserts, because the two notations are

testimonial statements. We disagree.

        When an out of court testimonial statement is offered against a defendant

at trial, the confrontation clause requires that the defendant be given the

opportunity to confront and cross-examine the person who made the statement.

Crawford v. Washington. 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). The only exception to this guarantee is when both the witness is not

available and there was a prior opportunity for cross-examination. Crawford. 541

U.S. at 59; United States v. Marquet-Pillado. 560 F.3d 1078, 1085 (9th Cir.

2009). When the evidence is nontestimonial, however, confrontation is not

necessarily required. Marquet-Pillado, 560 F.3d at 1085.

        No comprehensive definition of "testimonial" exists,15 but an important

factor is "'the declarant's awareness or expectation that his or her statements

may later be used at a trial.'" Marquet-Pillado. 560 F.3d at 1085 (quoting United

States v. Larson. 460 F.3d 1200, 1213 (9th Cir. 2006)). Accordingly, "A

document created solely for an 'evidentiary purpose,'. . . made in aid of a police

investigation, ranks as testimonial." Bullcoming v. New Mexico.                  U.S.     , 131

S. Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (emphasis added) (quoting Mejendez;

Diaz v. Massachusetts. 557 U.S. 305, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314


       14 Hill does not make an independent argument premised upon article 1, section 22 of the
Washington Constitution. In any event, "[njothing about the unique language of article 1, section
22 compels a particular result here." State v. Lui. 179 Wn.2d 457, 469, 315 P.3d 493 (2014).
       15 "We leave for another day any effort to spell out a comprehensive definition of
'testimonial.'" Crawford, 541 U.S. at 68.


                                             -17-
No. 70742-6-1/18



(2009)); see also State v. Jasper. 174Wn.2d96, 115,271 P.3d 876 (2012)

(certifications attesting to the existence or nonexistence of public records that

"were created, and in fact used, for the sole purpose of establishing critical facts

at trial" were testimonial (emphasis added)).

        However, a document or record is deemed nontestimonial when it is the

product of "'a routine, objective^ cataloging'" of facts that is not undertaken for an

evidentiary purpose. United States v. Berry. 683 F.3d 1015, 1022 (9th Cir. 2012)

(quoting Marquet-Pillado. 560 F.3d at 1085). Thus, "[bjusiness 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."16 Melendez-

Diaz. 557 U.S. at 324; see also United States v. Bahena-Cardenas. 411 F.3d

1067, 1075 (9th Cir. 2005) (a warrant of deportation—including a notation on the

warrant that the alien had been removed—was nontestimonial because it was a

"routine, objective, cataloging of an unambiguous factual matter").

        The notations on the "money order" were not made in preparation for

criminal prosecution. Indeed, uncontroverted witness testimony established that

the stamp was placed on the instrument as part of the normal procedure by

which all checks and money orders are processed through the Federal Reserve.



        16 Hill proposes a different line of inquiry. He asserts that a business record must be
deemed testimonial if—at the time of its creation—its creator could have speculated that it might
be used for an evidentiary purpose at some later date. We decline to adopt Hill's approach.
Rather, based on the authority set forth herein, we undertake a far more grounded inquiry,
examining the primary purpose for which a document or record was created and deeming it
testimonial if it was created for an evidentiary purpose.

                                                -18-
No. 70742-6-1/19



A stamp of some type is placed on any check or money order that is rejected.

Because the stamp on the "money order" was not testimonial, the confrontation

clause was not violated when the trial court admitted the "money order" into

evidence.


      Reversed and remanded for a new trial.




                                                 \,^^-^,
We concur:




 W\iM*^i j^                               C6fjtedt>t&lt.




                                        19
