       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                        Respondent,         )
                                            )       No. 76032-7-I                     >
                                                                                      rri
                   v.                       )                                         C.7
                                            )       UNPUBLISHED OPINION
JOSE AUSTINE VILLAREAL, JR.,                )                                         ---- -urn
                                                                                      (i) rn '
                                            )
                                                                                           (-
                        Appellant.          )       FILED: January 17, 2017           27
                                            )

       DWYER, J. — Jose Villareal, Jr. appeals from the judgment entered on a

jury's verdict finding him guilty of five counts of felony violation of a

postconviction no-contact order. He contends that the trial court erred by

admitting five redacted jail telephone recordings. The State alleged that the

recordings were of conversations between Villareal and the protected party,

Kristin Carter. Villareal asserts that the recordings were not properly

authenticated. We conclude to the contrary.

       Villareal also contends, and the State concedes, that his conviction for one

count of felony violation of a postconviction no-contact order was not supported

by sufficient evidence. We accept this concession and remand for vacation of

count six, and resentencing, within the trial court's discretion, on the remaining

convictions. The judgment of guilt on the other four counts stands.
No. 76032-7-1/2


                                           I

       Villareal was charged with seven counts of felony violation of a

postconviction no-contact order, pursuant to RCW 26.50.110(5), which makes

violation of a no-contact order a class C felony if the offender has at least two

previous convictions for violating an order issued under that chapter. At the time,

Villareal had two prior convictions for such violations.

       At trial, over Villareal's objection, the trial court admitted into evidence five

recorded telephone conversations that the State alleged were between Villareal

and Carter. Community Corrections Officer Maria Cumero—who had previously

met Villareal and had spoken to Carter on the telephone on several occasions—

testified that the individuals on the recordings sounded like Villareal and Carter.

Although Cumero had initially identified Carter's voice on an additional recorded

conversation—designated the fourth recording and count six—she testified at

trial that she had been mistaken and could not identify the female voice on the

fourth recording. The State did not seek to admit the fourth recording and did not

present any other evidence on count six. Counsel for Villareal elected to play the

fourth recording for the jury.

       The jury returned a verdict of not guilty on counts one and two, but guilty

on counts three through seven. Prior to sentencing—and represented by new

counsel—Villareal moved to arrest judgment on count six pursuant to CrR

7.4(a)(3), which allows for an arrest of judgment based upon insufficiency of the

evidence on a material element of the charged crime. The motion was denied.




                                          -2-
No. 76032-7-1/3


Villareal was sentenced to a standard range sentence of 60 months incarceration

on each count, to be served concurrently.

                                          II

       Villareal first contends that the trial court erred by admitting the recorded

telephone conversations into evidence. This is so, he asserts, because the State

did not present sufficient evidence to authenticate the recordings as being of

conversations between Carter and Villareal. We disagree.

       We review a trial court's ruling on the admissibility of evidence for abuse

of discretion. State v. Rodriquez, 187 Wn. App. 922, 939, 352 P.3d 200, review

denied, 184 Wn.2d 1011 (2015). Abuse of discretion occurs when a trial court's

decision is manifestly unreasonable or based on untenable grounds. State v.

Bradford, 175 Wn. App. 912, 927, 308 P.3d 736 (2013).

       Pursuant to ER 901(a), "[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims." Authentication is a threshold question of admissibility and the

requirement is met "if sufficient proof is introduced to permit a reasonable trier of

fact to find in favor of authentication or identification." State v. Danielson, 37 Wn.

App. 469, 471, 681 P.2d 260 (1984). In making such a preliminary

determination, the trial court is not bound by the rules of evidence. State V.

Williams, 136 Wn. App. 486, 500, 150 P.3d 111(2007) (citing ER 104(a); ER

1101(c)(1); Danielson, 37 Wn. App. at 471)).




                                         -3-
No. 76032-7-1/4


       The identity of a party to a telephone call may be established by direct or

circumstantial evidence. Danielson, 37 Wn. App, at 472. ER 901 provides a

non-exhaustive list of examples of information that the trial court may consider

when determining whether a prima facie showing of authenticity is made,

including testimony by a witness with knowledge, distinctive characteristics taken

in conjunction with circumstances, and voice identification by opinion based upon

hearing the voice at any time under circumstances connecting it with the alleged

speaker. ER 901(1), (4), (5).

       Here, the trial court heard testimony from Cumero regarding the telephone

system that Villareal had access to while incarcerated in the Nisqually Public

Safety Complex. Cumero testified that each inmate is assigned a personal

identification number (PIN) that the inmate uses to place a telephone call. When

placing a telephone call using their PIN, the inmate is required to speak their first

and last name into the telephone and the telephone system will then verify that

the name matches the assigned PIN. These telephone conversations are

recorded and can be accessed by authorized personnel.

       Cumero testified that she had spoken with Villareal in person during a

meeting in her office on June 25, 2015, and had spoken to Villareal over the

telephone on other occasions. Cumero also testified that she had spoken to

Carter over the telephone on multiple occasions and could recognize Carter's

telephone number. The telephone number that Villareal dialed on multiple

occasions while he was incarcerated was identified by Cumero as being Carter's

number. Cumero then testified that, after listening to the recordings of the calls


                                         -4-
No. 76032-7-1/5


made to Carter's telephone number, she recognized the voices and identified the

speakers as Villareal and Carter. This testimony served as proper authentication

of the recordings.

       In addition to the identification of Villareal and Carter by a witness with

knowledge of their voices, the content of the telephone conversations also

supports the trial court's decision to admit the recordings into evidence. For

instance, during multiple calls the speakers discussed their daughter, identified

as Farrah in one call. Villareal and Carter have a daughter together named

Farrah. During another call the male speaker calls the female speaker "Kristin"—

Carter's first name—and the female speaker refers to the male speaker as

"Mexi"—Carter's nickname for Villareal.

       Cumero's personal knowledge of the parties' voices, along with the

circumstances surrounding the telephone calls, provided her with a reasonable

basis to testify that the participants on the call were Villareal and Carter. Thus,

the telephone call recordings were properly authenticated. Accordingly, the trial

court did not err by admitting the recordings.

                                          III

       Villareal next contends, and the State concedes, that the State failed to

present sufficient evidence to support his conviction for count six of a violation of

a postconviction no-contact order. We agree.

       Evidence is sufficient to support a conviction if, when viewed in the light

most favorable to the State, any rational trier of fact could have found the

essential elements of the charged crime proved beyond a reasonable doubt.


                                         -5-
No. 76032-7-1/6


State v. Garbaccio, 151 Wn. App. 716, 742, 214 P.3d 168 (2009) (citing State v.

Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006)). Accordingly, we will reverse a

conviction for insufficient evidence only when no rational trier of fact could have

found that the State proved all of the elements of the crime beyond a reasonable

doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).

       Here, count six consisted entirely of one purported telephone call between

Villareal and Carter, which was designated call four. Although Cumero initially

identified Carter as the female speaker on call four, she testified at trial that she

was mistaken and that the voice did not belong to Carter. The State did not seek

to admit call four into evidence and did not present any other evidence on count

six. Nevertheless, the jury returned a verdict of guilty on count six. The State

concedes error.

       We remand for vacation of the conviction for count six (violation of a

postconviction no-contact order). The trial court may exercise its discretion in

determining whether resentencing on the other convictions is called for. The

judgment of guilt as to the other counts stands. We affirm in all other respects.

       Affirmed in part, and reversed in part.




We concur:



                                           ')-luvco Q,

                                          -6-
