                                                                                HEED
                                                                           COURT OF APPEALS
                                                                              DIVISIM
    IN THE COURT OF APPEALS OF THE STATE OF WASHI1GTON
                                        2015 FEB - 3 AM 8: 52
                                               DIVISION II
                                                                          STATE OF WASHINGTON

 STATE OF WASHINGTON,                                                       1tfL 44722- 3-
                                                                                  DEPOT

                                   Respondent,                         UNPUBLISHED OPINION


        v.




 CARL L. WARNER,


                                   Appellant.


       BJORGEN, A.C. J. —       Carl L. Warner appeals from his conviction following a jury trial for

felony violation of a domestic violence court order, arguing that the trial court erred in admitting

the recording of a 911 call placed by the alleged victim, Jaunette Norvey. Warner also submits a

statement of additional grounds for review under RAP 10. 10, arguing that he received ineffective

assistance of counsel. Finding no error, we affirm.

                                                      FACTS


        In August 2012, the Lakewood Municipal Court entered a protection order prohibiting

Warner from contacting Norvey for five years. Warner and Norvey had lived together in a

romantic relationship for several years and thought of each other as husband and wife.

        In November 2012, a hospital admitted Norvey for treatment unrelated to this case.

Norvey called 911 from her hospital room early in the afternoon of November 6, and reported

that her " husband [ had] just beat the shit out of' her. Ex. 2, track 1.


        Norvey, apparently agitated, began describing Warner' s appearance and direction of

travel to the 911 operator. Norvey said that Warner had come to the hospital to visit her, and she

told the operator that Warner was probably going to Norvey' s house. The operator then asked if

Warner had   a   key   to the house,   and   Norvey   said   he did.
No. 44722- 3- 11



           Moments later, Norvey asserted that Warner did not have a key to her house and

informed the 911        operator   that   she and   Warner had   a "   restraining     order."     Ex. 2, track 1.   The


operator asked how long Warner had been at the hospital visiting her, and Norvey replied that he

had spent the night there. When the operator asked why Warner had been there in violation of

the court order, Norvey replied that " they called him last night because they found me delirious

walking down the        street."   Ex. 2. The operator asked if Norvey had told the hospital staff about

the court order, and Norvey replied that she had not because she was delirious at the time. When

asked whether she had told staff about the court order after she woke up in the morning, Norvey

answered, "    I just   woke   up.. I   woke   up to him choking       and   beating    the hell   out of me.    Ex. 2,


track 1.


           The 911 operator then asked to speak to a nurse. Norvey replied that all the nurses were

busy and that she could not call one. The operator then placed a call to the hospital and was

connected to the charge nurse for Norvey' s room. In response to the operator' s questions, the

nurse reported that Warner had been in the room that day, that Norvey had allowed him to be

there, and that to the best of the nurse' s knowledge, Norvey had been awake all day.

           Lakewood police officer Paul Osness responded to Norvey' s hospital room a few minutes

later. Osness observed that Norvey seemed upset, was crying, and had " some blood in her

mouth around      her lips." 2 Verbatim Report of Proceedings ( VRP) at 143. Norvey told Osness


that Warner had arrived at the hospital the previous night, that the two argued when Norvey

awoke, and that Warner then pinned her in a corner of the room, held her neck with one hand,

and punched her with the other.


           Lakewood police officer Ryan Moody also responded to the call, and located Warner a

few blocks away from the hospital.              Moody described        Warner    as "   fully   cooperative"    and "[   v] ery




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No. 44722 -3 -II



polite."    2 VRP at 162. Moody arrested Warner and gave him the Miranda' advisements.

Warner waived his rights and admitted that he had been at the hospital with Norvey, but claimed

that " he thought the [ no- contact]   order   had been dismissed."   2 VRP at 158. Moody turned

Warner over to other officers, who transported Warner back to the hospital. Osness questioned


Warner at the hospital, and Warner denied assaulting Norvey.

           The State charged Warner under RCW 26. 50. 110( 4) with felony violation of a court

order (protection/ other), based on Warner having assaulted Norvey. The defense moved to

exclude the 911 recording before trial, arguing that Norvey' s statements were hearsay and were

not admissible under the excited utterance exception to the rule against hearsay. After listening

to the recording, the court ruled it admissible. The defense also argued that admission of the 911

recording would violate Warner' s right to confront the witnesses against him, but conceded that

this would not apply if Norvey testified, as she ultimately did.

           At trial, Norvey claimed that she had no recollection of the events in the hospital because

she was heavily medicated and using heroin at the time. Norvey acknowledged that the caller' s

voice in the recording sounded like hers, however, and the court admitted the recording.

           The trial court conducted a CrR 3. 5 hearing and ruled Warner' s statements to Moody and

Osness admissible. The officers testified to facts as set forth above, and the court admitted a


certified copy of the no- contact order. The defense rested without offering any evidence.

           The jury returned a guilty verdict and found by special verdict form that Warner and

Norvey were members of the same family or household. Warner appeals.




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


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No. 44722 -3 -II



                                                      ANALYSIS


        After setting forth the standard of review, we address Warner' s contention that the trial

court erred in admitting the 911 recording. We then turn to Warner' s claim that he received

ineffective assistance of counsel.


                                               I. STANDARD OF REVIEW


        We review a trial court' s admission of hearsay under the excited utterance exception for

abuse of    discretion. State    v.   Ohlson, 162 Wn.2d 1, 7 -8, 168           P. 3d 1273 ( 2007). We will

generally not reverse a trial court' s decision to admit evidence under a hearsay exception unless

we believe that     no reasonable      judge   would   have      made   the   same   ruling. Ohlson, 162 Wn.2d at 8.


            A trial court abuses its discretion if its decision is manifestly unreasonable or based

upon untenable grounds or reasons."              State v. Garcia, 179 Wn.2d 828, 846, 318 P. 3d 266 ( 2014)


 quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P. 3d 27, superseded by 272 P. 3d 851 ( 2012))

 internal   quotation marks omitted).          A court acts on untenable grounds if the record does not


support its factual findings, and it acts for untenable reasons if it applies an incorrect standard or


if the facts on which it relied do not satisfy the correct standard. State v. Rundquist, 79 Wn. App.

786, 793, 905 P. 2d 922 ( 1995).         Finally, a court' s exercise of discretion is " manifestly

unreasonable" if it is " outside the range of acceptable choices given the facts and the legal

standard."     Rundquist, 79 Wn. App. at 793.

                     II. THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE


        Warner contends that the trial court abused its discretion in admitting the recording

because "[    t] he record here shows that Ms. Norvey consciously and deliberately fabricated a

portion of    her   statement   to the 911     operator,   for        serving reasons,"
                                                                 self -                    specifically Norvey' s

statements indicating that she did not know that Warner was in her room prior to the assault and



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No. 44722 -3 - II



had   not allowed      him in. Br.     of   Appellant   at   5 - 11.   Because Norvey had time to reflect and

fabricate a portion of her story, Warner argues, the excited utterance exception does not apply.

We disagree.


             The rule against hearsay provides that a person' s assertions, other than those made by a

witness while testifying in the proceeding at issue, are generally not admissible to prove the truth

of the matters asserted. ER 801, 802. However, a hearsay statement is admissible if it qualifies

as an "[ e] xcited [ u] tterance,"      that is, if it "relat[ es] 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).      Statements may be admissible under the excited utterance exception even if the

declarant is available to testify. Ohlson, 162 Wn.2d at 8.

             Our Supreme Court has articulated the rationale for the excited utterance exception to the


rule against hearsay as follows:

             This exception is based on the idea that " under certain external circumstances of
             physical shock, a stress of nervous excitement may be produced which stills the
             reflective   faculties   and removes    their     control ".   6 J. WIGMORE, EVIDENCE § 1747,
             at   195 [( Chadbourn     rev. ed.   1974)].      The utterance of a person in such a state is
             believed to be " a spontaneous and sincere response to the actual sensations and
             perceptions    already    produced    by   the     external    shock ",    rather than an expression

             based on reflection or self interest.
                                         -         6 J. WIGMORE, at 195.

State   v.   Chapin, 118 Wn.2d 681, 686, 826 P. 2d 194 ( 1992).                    In determining whether the

exception applies to a particular statement, then,



             the key determination is whether the statement was made while the declarant was
             still under the influence of the event to the extent that [ the] statement could not be
             the result of fabrication, intervening actions, or the exercise of choice or judgment.

State   v.   Brown, 127 Wn.2d 749, 758 -59, 903 P. 2d 459 ( 1995) ( internal quotation marks omitted)


 alteration in the original).




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No. 44722 -3 -II



           To have evidence properly admitted under the excited utterance exception, the proponent

must meet      three interrelated       requirements: "            that ( 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."     Ohlson, 162 Wn.2d


at   8.   Warner does not argue that the record contains insufficient evidence to support a finding

that a startling event had occurred, nor does he contest that Norvey' s statements related to that

startling event. Warner' s challenge instead focuses on the second requirement, which

 constitutes    the     essence of    the    rule."      Chapin, 118 Wn.2d at 687.


             The   key to   the    second element          is spontaneity[:] ...            as the time between the event and the


statement lengthens, the opportunity for reflective thought arises and the danger of fabrication

increases."        Chapin, 118 Wn.2d              at   688.   Thus, where the evidence establishes that the declarant


 had the opportunity to, and did in fact, decide to fabricate a portion of" the proffered out -of c- ourt

statement, the trial court necessarily errs in admitting it as an excited utterance. Brown, 127 Wn.2d

at   759; State    v.   Young,     160 Wn.2d 799, 807, 161 P. 3d 967 ( 2007). That is,


            b] ecause the excited utterance rule is based on the premise that the speaker has no
            opportunity to make up a lie before making the utterance, if the speaker in fact did
            have that opportunity, then by definition the statement cannot be an excited
            utterance.




State v. Briscoeray, 95 Wn. App. 167, 172, 974 P. 2d 912 ( 1999).

            That the declarant said something false, omitted unflattering details, or later recanted,

however, does not automatically remove a proffered statement from the scope of the excited

utterance exception.             See State   v.   Magers, 164 Wn.2d 174, 188, 189 P. 3d 126 ( 2008) ( plurality


opinion) (    holding that the trial court did not abuse its discretion in admitting statements as

excited utterances even            though the          declarant    initially      lied);   Young, 160 Wn.2d at 808 ( rejecting a

 bright -line      rule   that   an excited utterance         is   never admissible once           it has been   recanted ");   State v.



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No. 44722 -3 - II



Woods, 143 Wn.2d 561, 600, 23 P. 3d 1046 ( 2001) (                 holding that the trial court did not abuse its

discretion in admitting statements as excited utterances despite apparently self serving
                                                                                 -

omissions).      Under these precedents, whether the trial court abused its discretion in admitting the

911 recording depends on ( 1) whether the record clearly establishes that Norvey said something

false to the   operator and,   if   so, (   2) whether the falsehood shows that Norvey consciously

fabricated a portion of her statement.


        Warner contends that this case is indistinguishable from Brown, 127 Wn.2d 749, in which


our Supreme Court reversed a rape conviction because the trial court had erroneously admitted

the alleged victim' s 911 call as an excited utterance. In Brown, TG, the alleged victim, told the


911   operator   that Brown    had    abducted    her   and   forced her into his   apartment.   127 Wn.2d at 751.


She later admitted, however, that she had entered the apartment voluntarily to perform oral sex

for money. Brown, 127 Wn.2d at 752. TG testified that, after talking the matter over with her

boyfriend, she had conceived the abduction story to make her accusation more convincing.

Because she had initially agreed to perform oral sex for money, TG feared police would not

believe that Brown      and   his   codefendants raped        her. Brown, 127 Wn. 2d     at   753.   The court


concluded that



         T.G.' s testimony that she had the opportunity to, and did in fact, decide to fabricate
         a portion of her story prior to making the 911 call renders erroneous the trial court' s
         conclusion that the content of her call was admissible as an excited utterance.


Brown, 127 Wn.2d at 759.


         Brown does not resolve the matter, however. In Young, our Supreme Court characterized

Brown as follows:


         Brown stands for the proposition that when there is undisputed evidence that a
         declarant fabricated her hearsay statements, the second element of an excited
         utterance —   that the statement was made under the influence of a startling event —
         is not satisfied.


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No. 44722 -3 - II




Young,   160 Wn.2d       at   807 ( emphasis       added).     In Young, the alleged victim later recanted,

claiming that she had made up the molestation allegations in order to get Young out of her

mother' s   house.    160 Wn.2d at 804. The Young court held that, because the State disputed the

veracity of the recantation, the trial court did not abuse its discretion in admitting the original

accusation as an excited utterance.               Young, 160 Wn.2d at 808 -09.

         Warner points out that Norvey told the operator that she had been asleep all day and

woke up to Warner choking and beating her, while the charge nurse stated that Norvey had

allowed Warner to be in the room and, as far as she knew, Norvey had been awake that day.

From this, Warner       argues      that "[   t]he record here shows that Ms. Norvey consciously and

deliberately fabricated a portion of her statement to the 911 operator, for self serving
                                                                                 -       reasons."

Br. of Appellant at 9.


         The State counters that here, as in Young, no undisputed evidence establishes that Norvey

said anything false to the operator, and argues that admission of the recording thus lay in the

discretion of the trial court. The State maintains that the charge nurse' s statements do not


establish that Norvey was untruthful:


         Because Ms. Norvey was delirious, at the time she was brought to the hospital, a
         rational    trier   of   fact   could   infer that   she made statements ...   at that time that she

         did not recall [ when] she called 911 the following afternoon.

Br. of Resp' t at 12. We agree with the State.

         The charge nurse' s statements do not establish that Norvey lied to the operator about

having been asleep until the alleged assault. The nurse merely stated that " as far as [ she] knew,"

Norvey had been awake that day. Ex. 2, track 2. As the recording does not make clear what

basis the nurse had for her knowledge, it is entirely possible that the nurse believed Norvey was

awake when in fact she was not.

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No. 44722 -3 - II



          As Warner points out, the nurse did say that Norvey had allowed him to be in the room.

This did not necessarily contradict Norvey' s statements to the operator, however. In response to

the operator' s question as to why she allowed Warner to visit, Norvey did not deny that she had

done so, but explained that she had been delirious when Warner arrived.


          The apparent inconsistencies on which Warner relies do not amount to the kind of clear -


cut evidence of reflection and fabrication based on which the Brown court found an abuse of


discretion. See Brown, 127 Wn.2d at 752 -53, 759. Even were we to accept that Norvey omitted

certain important facts for apparently self -serving reasons, it would not establish that the trial

court abused its discretion in admitting the recording as an excited utterance. See Woods, 143

Wn.2d at 600.


          The facts of this case fall much closer to those in Young in that we have ambiguous

evidence suggesting that the declarant may have fabricated a portion of her statement. Young,

160 Wn.2d     at   808 -09. Such matters fall within the discretion of the trial court: even where we


may have    reached a      different   resolution of a   factual   question, " we will not substitute our




judgment for that     of   the trial court."   Stieneke v. Russi, 145 Wn. App. 544, 566, 190. P. 3d 60

 2008).    Warner fails to show that the trial court abused its discretion in admitting the recording

as an excited utterance.



                                   III. INEFFECTIVE ASSISTANCE OF COUNSEL


          Warner argues in his statement of additional grounds ( SAG) that his attorney rendered

ineffective assistance of counsel. Specifically, Warner contends that defense counsel' s

performance was deficient because the attorney did not offer ( 1) two photographs of Norvey

apparently taken shortly       after   the alleged assault, ( 2)    recordings of calls Norvey placed recanting

the allegations in the 911 recording, or ( 3) testimony of two defense investigators who



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No. 44722 -3 -II



apparently interviewed Norvey. Warner also contends that he received ineffective assistance of

counsel because ( 4) his attorney " was greatly incompetent in his cross of Ms. Norvey, failing to

ask    any   relev[ a] nt questions."     SAG    at   3.   The specific example Warner gives only concerns

Norvey' s      use " of   heroin   and other   drugs."      SAG   at   3:    These claims are not properly before us.

             A defendant who raises an ineffective assistance claim " bears the burden of showing ( 1)

that   his   counsel' s performance       fell below       an objective standard of reasonableness and,               if   so, (   2)


that   counsel' s poor work prejudiced          him." State v. A.N.J., 168 Wn.2d 91, 109, 225 P. 3d 956


 2010). " There is        a   strong   presumption     that defense         counsel' s conduct   is   not   deficient,"   which




presumption is rebutted if "no conceivable legitimate tactic explain[ s] counsel' s performance."


State   v.   Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004).                     In analyzing ineffective

assistance claims on direct appeal, we may not consider matters outside the record. State v.

McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251 ( 1995).


             Without knowing the exact contents of the recordings, the photographs, or the testimony

of the defense investigators, we cannot evaluate whether they would have helped Warner' s case.

Defense counsel may well have had legitimate tactical reasons for not offering the evidence to

which Warner refers. Thus, it is impossible to ascertain on the record before us whether the


failure to offer this evidence fell below an objective standard of reasonableness or prejudiced


Warner.


             With respect to his allegation that his attorney failed to adequately cross -examine

Norvey, Warner' s SAG fails to " inform the court of the nature and occurrence of the alleged

errors,"      as RAP 10. 10 requires. Regarding the only specific example Warner gives, Norvey' s

drug use, the record establishes that defense counsel fully explored the issue on cross -

examination. Defense counsel also inquired into Norvey' s various recantations.



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No. 44722 -3 -II



        The issues raised in Warner' s SAG depend on matters outside the record or are not


sufficiently articulated to allow for review. We decline to address them further.

                                          CONCLUSION


        The trial court did not err in admitting the entire 911 recording. The matters raised in

Warner' s SAG are not adequately presented for review. We thus affirm the trial court in all

respects.




        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.




                                                               A. C. J.
                                                                          1•0:
 We concur:




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