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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  DIVISION ONE
                       Respondent,
                                                  No. 73740-6-1
                  v.
                                                  UNPUBLISHED OPINION
JASON TYLER GARCIA,

                       Appellant.                 FILED: November 21, 2016



       Dwyer, J. — Jason "J.T." Garcia appeals from the judgment entered on a

jury's verdict finding him guilty of robbery in the first degree committed while
armed with a firearm and while on community custody, unlawful possession of a

firearm in the second degree, and possession of stolen property in the second
degree. He contends that the trial court erred by ruling that a victim's utterances
recorded during a 911 conversation were both admissible as excited utterances

and as nontestimonial statements. We conclude that there was no error.

       Garcia also contends, and the State concedes, that both of his convictions

for robbery and possession ofstolen property cannot stand. We remand for
vacation of the possession of stolen property conviction, a result required by

controlling authority.

                                           I


       On October 12, 2014, an employee of a Motel 6 in Everett telephoned 911

to report that Brett Losey and Shana Morcom had just been robbed. The 911
operator asked the employee several questions regarding the location of the
No. 73740-6-1/2



robbery and whether medical assistance was required, and then asked to speak

directly to Losey. Losey explained, in response to the 911 operator's questions,

that he and Morcom had been robbed at gunpoint in their motel room five

minutes earlier. Losey referenced more than one robber during the 911 call,

stating that "they" made him and Morcom wait in the bathroom until the robbers

had left. Losey stated that he knew the individual who held the gun—who he

called "J.T." and described as a 26-year-old white male with long, brown hair,

wearing jeans, a light-colored jersey, and a red hat. Losey did not know J.T.'s

last name.

       After police arrived at the motel, Losey and Morcom described the second
robber as a 30-year-old male, bald, wearing a black T-shirt, with a teardrop tattoo

near his left eye. The police were able to track Morcom's stolen cell phone to a
residential location where they apprehended Jacob T. Harrison.1 Losey and
Morcom each personally identified Harrison as the second robber.
       On October 16, 2014, Lynnwood Police Officer Zachariah Olesen arrested

Garcia on an outstanding warrant. Olesen discovered that Garcia was holding
two debit cards that had been stolen from Losey and Morcom during the robbery

four days earlier. Olesen contacted Losey and Morcom and told them that their
property had been found in the possession of Garcia. Morcom responded that
she knew Garcia as "J.T." and that he had robbed her and Losey. Several days




       1Although both Garcia and Harrison share the initials "J.T.," only Garcia matched Losey's
description of the robber who was holding the gun.
                                              -2-
No. 73740-6-1/3



after Garcia's arrest, Morcom positively identified Garcia during a police

photomontage, stating that she was 100 percent certain of her identification.

       Prior to trial, the trial court granted the State's motion in limine to admit the

911 conversation into evidence as an excited utterance. In so ruling, the trial

court stated that Losey spoke with "a degree of agitation" in his voice during the

911 call, although he also sounded "fairly measured" at the beginning of the call.

The trial court concluded that Losey "didn't sound as though he considered

himself to be safe." The trial court also denied Garcia's motion to suppress

evidence of the 911 call for violating the confrontation clause of the United States

Constitution, concluding that the call was nontestimonial. Losey was unable to

testify at trial, as he was then hospitalized.

       The jury found Garcia guilty of robbery in the first degree while armed with
a firearm and while on community custody, unlawful possession of a firearm in
the second degree, and possession of stolen property in the second degree. The
trial court imposed concurrent prison sentences of 231 months for the robbery
conviction, 60 months for the possession ofa firearm conviction, and 29 months
for the possession of stolen property conviction. Garcia timely appealed.
                                            II


                                           A


       Garcia contends that the trial court erred by admitting Losey's statements

during the 911 conversation as excited utterances. This is so, he asserts,
 because when Losey spoke to the 911 operator he was no longer under the
 stress of excitement caused by the robbery.


                                           -3-
No. 73740-6-1/4



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

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

denied, 184Wn.2d 1011 (2015). Abuse of discretion occurs when the trial

court's ruling is manifestly unreasonable or based on untenable grounds or

reasons. State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014).

      An "excited utterance" is "[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by

the event or condition." ER 803(a)(2). Our Supreme Court has recognized three

closely connected requirements for analyzing an excited utterance: (1) a startling
event or condition occurred, (2) the declarant made the statement while under

the stress of excitement of the startling event or condition, and (3) the statement

related to the startling event or condition. State v. Young, 160 Wn.2d 799, 806,
161 P.3d 967 (2007). "Washington courts have found statements admissible
under this exception despite significant lapses of time between the startling or
exciting event and the statement concerning it." Robert H. Aronson &
Maureen A. Howard, The Law of Evidence in Washington § 10.07(2)(b)(i), at

10-31 (5th ed. 2016).

       The first and third elements are not in dispute in this matter. The second

element can be established by circumstantial evidence, such as "the declarant's
behavior, appearance, and condition; ... and the circumstances under which the
statement is made." Young, 160 Wn.2d at 810. "The key determination is often
 'whether the statement was made while the declarant was still under the

 influence ofthe event to the extent that the statement could not be the result of
No. 73740-6-1/5



fabrication, intervening actions, or the exercise of choice or judgment.'"

Rodriguez, 187 Wn. App. at 939 (quoting State v. Woods, 143 Wn.2d 561, 597,

23P.3d 1046(2001)).

       Immediately after the robbers had left the hotel room, Losey and Morcom

went to the front desk of the motel and asked the employee to call 911 on their

behalf. After confirming the location of the robbery and that no one was injured,

the 911 operator spoke directly to Losey and asked him a series of questions.

These questions were intended to determine (1) whether medical assistance was

required, and (2) the description and possible location of the robbers who were

actively fleeing the scene ofthe crime. Losey could not answer some ofthe
questions that he was asked by the 911 operator, explaining that, at the time of
the incident, he was "starting] down the barrel of a gun" and thus could not

remember all of the details. Near the end of the call Losey expressed, "I'm afraid

he's gonna shoot me now. I'm snitchin'. It's crazy."
       The trial court listened to the 911 conversation and stated, "there wasn't a

great deal of agitation in it at the beginning, but it seemed to me the stress in his
voice built as he was speaking. And it appeared - it sounded to me as though
there was a degree ofagitation in his voice." The trial court noted that "it didn't
sound as though [Losey] considered himself to be safe" and that Losey "was
contemplating the possibility that he might pay a rather high price for making the
phone call that he was making."2


        2The trial court made the same determination in the State's case against Harrison, where
it noted that Losey spoke with "what sounds like a heightened level of agitation in his voice, and it
sounds as though it rises to a peak where he blurts out something about being afraid that he's
                                                 -5-
No. 73740-6-1/6



       The evidence establishes that the 911 conversation took place shortly

after an armed robbery in which Losey had a gun pointed at his head. Because

of the fear that this event caused, Losey was at times unable to remember details

regarding the robbery or understand and respond to the 911 operator's

questions. Moreover, Losey's revelation at the end of the phone call—that he

was "snitchin"' and afraid he may be shot—further supports that Losey caused

the 911 call to be made before he had time to reflect and consider the

consequences of making his statements.

       The trial court properly considered the evidence before it and ruled that

Losey was still under the stress of the excitement of the robbery at the time he
talked with the 911 operator. Such a determination was not manifestly
unreasonable or based on untenable grounds or reasons. Garcia, 179 Wn.2d at

844. There was no error.

                                               B


        Garcia next contends that the trial court violated the confrontation clause

of the Sixth Amendment of the United States Constitution by ruling that the 911

conversation was nontestimonial and thus admissible. This is so, he asserts,

because the primary purpose of the 911 conversation was not to respond to an
ongoing emergency but, rather, to relate information regarding past events. We
disagree.




going to be shot, which is something that is perhaps consistent with a person having a gun put to
their head."
No. 73740-6-1/7



        We review de novo an alleged violation of the confrontation clause. State

v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). The confrontation

clause bars the admission of "testimonial" hearsay in criminal trials unless the

declarant is unavailable to testify and the defendant had a prior opportunity for

cross-examination. U.S. Const, amend. VI; Crawford v. Washington, 541 U.S.

36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). "Testimony" has been

defined as "'[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.'" Crawford, 541 U.S. at 51 (alteration in

original) (quoting 2 N. Webster, an American Dictionary of the English

Language (1828)).

        The Court in Crawford expressly declined to expand on what statements

are considered "testimonial." 541 U.S. at 68. In light of the uncertainty created

by this omission, the Court later announced the "primary purpose" test to
distinguish between testimonial and nontestimonial witness utterances:
        Statements are nontestimonial when made in the course of police
        interrogation under circumstances objectively indicating that the
        primary purpose ofthe interrogation is to enable police assistance
        to meet an ongoing emergency. They are testimonial when the
        circumstances objectively indicate that there is no such ongoing
        emergency, and thatthe primary purpose ofthe interrogation is to
        establish or prove past events potentially relevant to later criminal
         prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006).3



        3 "Our inquiry is also guided by (1) whether the speaker was speaking about past events
or current ones as they were occurring, requiring police assistance, (2) whether a reasonable
 listener would conclude that the speaker was facing an ongoing emergency, (3) the nature ofthe
 information elicited by police, and (4) the formality of the interrogation." State v. Perez, 184 Wn.
                                                  -7-
No. 73740-6-1/8



       Whether an ongoing emergency exists is determined by an objective

evaluation of "the circumstances in which the encounter occurs and the

statements and actions of the parties." Michigan v. Bryant, 562 U.S. 344, 359,

131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). "[T]he relevant inquiry is not the

subjective oractual purpose of the individuals involved in a particular encounter,
but rather the purpose that reasonable participants would have had, as
ascertained from the individuals' statements and actions and the circumstances

in which the encounter occurred." Bryant, 562 U.S. at 360 (emphasis added).

Moreover, whether there is an ongoing emergency is not the sole, determining
factor in deriving the primary purpose of the utterances. Rather, admissibility
depends on whether "in light of all the circumstances, viewed objectively, the
'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute
for trial testimony.'" Ohio v. Clark. _ U.S. _, 135 S. Ct. 2173, 2180, 192 L Ed.
2d 306 (2015) (alteration in original) (quoting Bryant. 562 U.S. at 358).
        Neither party disputes that Losey was unavailable to testify or that Garcia
had no prior opportunity to cross-examine him. Thus, the sole issue is whether
his utterances in the 911 conversation were testimonial.

        "[T]he initial interrogation conducted in connection with a 911 call[] is
 ordinarily not designed primarily to 'establish] or prov[e]' some past fact, but to
 describe current circumstances requiring police assistance." Davis, 547 U.S. at
 827 (some alterations in original) (quoting Crawford, 541 U.S. at 51). Indeed,


 App. 321, 339, 337 P.3d 352 (2014) (citing Koslowski. 166 Wn.2d at 418-19), review denied, 182
 Wn.2d 1017 (2015).

                                               -8-
No. 73740-6-1/9



although an armed robber may have fled the scene of the crime, the emergency

may still be ongoing. A fleeing robber may pose a continuing threat to the public,

and the information that a person provides to a 911 operator regarding the

robber's name, physical description, and whereabouts is necessary for the police

to promptly evaluate the danger and respond appropriately. Similarly, an attempt

by the 911 operator to establish the identity of the robber is necessary "so that

the dispatched officers might know whether they would be encountering a violent

felon." Davis, 547 U.S. at 827. Whether either participant harbors a secondary

purpose in making such utterances—such as an intention to have the robber

prosecuted—is not significant so long as it is not the primary purpose a

reasonable person would have had in making the utterances. Clark. 135 S. Ct.

at 2180; accord Bryant. 562 U.S. at 368; Davis. 547 U.S. at 827.

       Here, the 911 operator first spoke to the motel employee who placed the

call. The employee confirmed the location of the robbery and that no one was

hurt. The employee then transferred the telephone to Losey. The 911 operator

again confirmed that no one was injured and asked Losey details about the
incident. The 911 conversation principally established that (1) at least one of the

robbers was armed, (2) the robbers were actively fleeing the scene of the crime,

and (3) the current location and final destination ofthe robbers was unknown.
       Losey's conversation with the 911 operator was the type of question-and-
answer conversation that reasonable participants would have engaged in when

their primary purpose was to ask for police assistance in resolving an ongoing
emergency. Moreover, Garcia's contention that the "summoning for help" ended

                                         -9-
No. 73740-6-1/10



upon the transfer of the telephone from the employee to Losey ignores the

reason for the transfer entirely—namely, to allow the emergency operator to

more quickly and effectively respond to the emergency by speaking directly to

the victim.4

         Viewed properly, the primary purpose of the 911 conversation was not to

create an out-of-court substitute for trial testimony. Clark. 135 S. Ct. at 2180.

Thus, it was not testimonial. Accordingly, no confrontation clause violation is

established.

                                               Ill


         Garcia contends, and the State concedes, that both his conviction for

robbery and his conviction for possession of stolen property cannot stand. We
agree.

         It is well established that "one cannot be both the principal thief and the

receiver of stolen goods." State v. Hancock. 44 Wn. App. 297, 301, 721 P.2d
1006 (1986). Indeed, the taker of the property "does not at the same time give
himself the property he has taken." Milanovich v. United States. 365 U.S. 551,
558, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961) (Frankfurter, J., dissenting). In cases
where the defendant is charged with both robbery and possession of the same

stolen property, the trial court must instruct the jury to first consider the robbery
charge and then consider the possession charge only if it finds insufficient proof

         4Garcia also contends that the 911 conversation presented a degree of formality,
evidencing that it was testimonial in nature. This is so, he asserts, because making false
statements to a 911 operator is prohibited by law. However, the Court has already addressed
thislineofargumentin Davis, which itself involved a 911 conversation. 547 U.S. at817-18. The
applicable standard remains an objective determination of the primary purpose that reasonable
participants would have had in making the statements under the circumstances then extant.
                                               -10-
No. 73740-6-1/11



that the defendant was the robber. United States v. Gaddis. 424 U.S. 544, 550,

96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976). Ifthe jury was not so instructed, and the

defendant was convicted of both charges, the conviction for possession of stolen

property must be vacated. State v. Melick. 131 Wn. App. 835, 844, 129 P.3d 816

(2006).

        Garcia was charged and convicted of robbery in the first degree and

possession of stolen property. The two convictions cannot both stand. Melick.

131 Wn. App. at 844. The State concedes this point and requests that we

remand this matter to the trial court to vacate Garcia's conviction for possession

of stolen property.5

          We remand for vacation of the conviction for possession of stolen

property. We affirm in all other respects.

          Affirmed in part, and reversed in part.




We concur:



                                                       ^J<eic{
VL .v-^cy^


          5Garcia contends that both his conviction for robbery and his conviction for possession of
stolen property must be vacated. He is wrong. Gaddis makes clear that the jury must be
 instructed to first consider the robbery charge and only proceed to consideration of the
 possession charge should it determine that there is insufficient evidence on the robbery charge.
424 U.S. at 550. Washington cases are in accord, holding that the proper remedy is to vacate the
possession charge. Melick, 131 Wn. App. at 844; Hancock. 44 Wn. App. at 304.

                                                -11-
