       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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 STATE OF WASHINGTON,                                No. 75662-1-1         = rr
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                     Respondent,                     DIVISION ONE
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 TOMMIE BERNARD LEWIS,
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                                                     UNPUBLISHED

                     Appellant.                      FILED: November 6, 2017



       Cox, J. — Tommie Lewis appeals his judgment and sentence for two

counts of domestic violence felony violation of a court order. Lewis contends that

his Sixth Amendment right to confrontation was violated by the admission into

evidence of two hearsay statements of identification. Because admission of

these statements was harmless beyond a reasonable doubt, we affirm.

       Lewis and Wendy Hynd were involved in a romantic relationship and have

one child. In April 2014, Lewis was charged with assaulting Hynd. The trial court

entered a no contact order, and Lewis was later convicted of witness tampering

and two counts of domestic violence misdemeanor violation of a court order.

During a bench trial on those charges, Lewis admitted that he had called Hynd

from the King County jail on May 7, 2014.
No. 75662-1-1/2


       On November 13, 2015, Hynd called 911 to report that Lewis had

assaulted her in the couple's apartment while Hynd was holding their daughter.

Lewis was booked in the King County jail, arraigned, and served with a no

contact order protecting Hynd.

       On January 27 and 28, 2016, while Lewis was in the King County jail, he

made two calls to a phone number later identified as belonging to Hynd. Based

upon these two recorded phone calls, Lewis was charged with two counts of

domestic violence felony violation of a court order.'

       Hynd did not testify at the ensuing bench trial. As part of its proof that

Lewis was speaking to Hynd during the phone calls, the State sought to

introduce testimony from Detective Daljit Gill. Detective Gill had investigated the

2014 incident, and telephoned Hynd to interview her as part of that investigation.

Detective Gill testified that when she called the telephone number listed in the

police report, she asked to speak with Wendy and "[s]he said it was her."2

Detective Gill also testified regarding a second phone call that she received later •

the same day. She testified that she "recognized the voice to be the same

person. . . I had spoken to earlier in the morning regarding this case, and the

same person on the in-car video."3 Detective Gill told the caller that she was on

a police-recorded line and then asked,"[Mho is this?" The caller "identified

herself as Wendy Hynd."5


        See RCW 26.50.110(5).
      2 Report of Proceedings(RP)(July 7, 2016) at 192.
      3 Id. at 195.
      4 id.

      5 Id.



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No. 75662-1-1/3


       Lewis objected to admission of Hynd's statements based on hearsay and

his Sixth Amendment confrontation rights. The trial court overruled the hearsay

objection because the two statements were "statement[s] of identity."6 The trial

court also concluded that admission of Hynd's statements did not violate the

Confrontation Clause because they were nontestimonial.

       After considering all of the evidence, the trial court convicted Lewis of two

counts of domestic violence felony violation of a court order. It sentenced Lewis

accordingly.

       Lewis appeals.

                                      HEARSAY

       Lewis argues that the trial court abused its discretion in admitting Hynd's

statements of self-identification because they were hearsay. We agree.

       "Hearsay is 'a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.'"7 In general, hearsay is not admissible.8 But if a statement is

offered for a purpose other than its truth, the statement is not hearsay and it is

admissible.6 We review the trial court's hearsay ruling for abuse of discretion.1°

       Hynd's statements of self-identification were being introduced to prove her

identity, the truth of her assertions. Thus, those statements were hearsay and



      6 Id. at 192, 379.
       7 State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799(2005)(quoting
ER 801(c)).
      8 Id.
      9 Id. at 337.
      16 Id. at 336.

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No. 75662-1-1/4


inadmissible absent some exception set forth in the Washington Rules of

Evidence.11 No exception applies to a hearsay statement of self-identification

made by a witness, so the trial court erred in admitting these statements.12 The

State properly concedes this point in its briefing on appeal.

                          CONFRONTATION CLAUSE

       Lewis argues that the trial court violated his confrontation clause rights

secured by the Sixth Amendment by admitting Hynd's statements of self-

identification. Assuming without deciding that Lewis is correct, that error was

harmless beyond a reasonable doubt.

       The Sixth Amendment confrontation clause provides that in all criminal

prosecutions "the accused shall enjoy the right. .. to be confronted with the

witnesses against him."13 "When a violation has occurred, we then review for

harmless error."14

       We review de novo confrontation clause challenges.15

       The confrontation clause only applies to testimonial statements.16 A

testimonial statement is "typically a 'solemn declaration or affirmation made for




       11 See id.; ER 802.
       12 See generally, ER 803 and 804.
      "U.S. CONST. amend. VI.
       14 State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012)(citing
Chapman v. California, 386 U.S. 18, 21-22, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967)).
       15 Id.

       16 Id.




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No. 75662-1-1/5


the purpose of establishing or proving some fact."17 The State has the burden of

establishing that a statement is nontestimonia1.18

       The United States Supreme Court has stated that, at a minimum,

testimonial statements include "prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and   police interrogations."18 In deciding whether

statements are testimonial, the Washington supreme court adopted the "primary

purpose" test.2° Under this test:

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the
       primary purpose of the 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 that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal
       prosecution.E211

       Testimonial statements include those that were "made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial."22

       The State argues that Hynd's statements are nontestimonial because

"they were basic, present-tense acknowledgements of[Hynd's] identity at the




       17 Id. at 109 (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177(2004).
       18 State v. Koslowski, 166 Wn.2d 409, 417 n.3, 209 P.3d 479 (2009).
       19 Crawford, 541 U.S. at 68.
      29 Koslowski, 166 Wn.2d at 418.
      21 Id. (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006)).
      22 State v. Lui, 179 Wn.2d 457, 506, 315 P.3d 493(2014)(quoting
Crawford, 541 U.S. at 52).


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No. 75662-1-1/6


initiation of phone conversations."23 It further argues that Hynd "was not formally

bearing testimony by simply acknowledging who she was" and she was not

chronicling past events or leveling an accusation.24 Moreover, it contends that

she would not have anticipated that her statements would be used in court two

years later to establish her identity in a completely different case. The State

provides no authority in support of its contentions, and we are unpersuaded by

these arguments.25

       Hynd's statements were made to a police officer during the investigation of

a crime. In addition, they were not given to enable law enforcement to assist with

an ongoing emergency.26 Instead, Detective Gill's primary purpose in speaking

with Hynd was "to establish or prove past events potentially relevant" to a later

criminal prosecution for domestic violence.27 These circumstances are such as

would lead an objective witness to reasonably believe that the statements would

be later used at tria1.28

       Assuming, without deciding, that Hynd's statements were testimonial and

their admission violated Lewis's Sixth Amendment confrontation rights, we review

their admission for constitutional harmless error.29




       23Respondent's Supplemental Brief at 15.
       24Id.
      25 See State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171, cert. denied,
439 U.S. 870, 99 S. Ct. 200, 58 L. Ed. 2d 182(1978).
      26 Koslowski, 166 Wn.2d at 418 (quoting Davis, 547 U.S. at 822).
      27 Id.

      25 Lui, 179 Wn.2d at 506 (quoting Crawford, 541 U.S. at 52).
      29 Jasper, 174 Wn.2d at
                               108.


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No. 75662-1-1/7


                                HARMLESS ERROR

       Lewis argues that admission of Hynd's hearsay statements was not

harmless for purposes of the confrontation clause. We disagree.

       A constitutional error is only harmless if the State shows "beyond a

reasonable doubt that the error. . . did not contribute to the verdict."33 The State

bears the burden of proving beyond a reasonable doubt that the error was

harmless.31

       In applying the harmless error analysis when considering a confrontation

clause violation, "[t]his court employs the 'overwhelming untainted evidence' test

and looks to the untainted evidence to determine if it is so overwhelming that it

necessarily leads to a finding of guilt."32

       Here, admission of Hynd's statements was harmless in light of the

overwhelming evidence in support of Lewis's conviction and, more specifically, in

support of the finding that Lewis called Hynd, the person protected by the no

contact order, from the King County jail.

       Lewis challenges admission of Hynd's two statements of identification, but

does not challenge the remainder of the trial court's findings and thus they are

verities on appea1.33




       30 Id. at 117.
       31 Id.
       32 State v. Anderson, 171 Wn.2d 764, 770, 254 P.3d 815(2011)(quoting
State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
       33 State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182(2014).




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No. 75662-1-1/8


       On January 27 and 28, 2016, two calls were placed from the unit where

Lewis was held. Although the calls were placed using the account of another

inmate, it is common for inmates to use each other's phone accounts to avoid

detection and the male voice on the phone belonged to Lewis.

       A Child Protective Services caseworker testified that he had spoken with

Hynd twice at the phone number Lewis called on January 27 and 28, 2016, and

CPS records listed that number as belonging to Hynd.

       The jail phone call recorded May 7, 2014, was offered in evidence and

played at trial. Lewis had previously admitted under oath that the voices on the

May 7, 2014 call belonged to him and Hynd.

       Detective Gill testified that the female voice in the January 27 and 28,

2016 calls was the same voice in the 911 call and the in-car video of the 2014

incident, the voice on the May 7, 2014 tape, and the voice of the person she had

spoken with on the phone in April 2014. She noted that, in all the recordings she

reviewed, Hynd had the same distinctive "gravelly" voice. She also noted that

the person she spoke with on the phone in 2014 had knowledge of case-specific

facts, knew what Detective Gill was investigating, and knew the people involved.

       The audiotapes from the jail telephone conversations on May 7, 2014, and

January 27 and 28, 2016, were played at trial. The trial court listened to all three •

recordings and could compare the voices for itself.

       In addition, the content of the December 7, 2014 and January 27 and 28,

2016 calls supports a finding that Hynd was the recipient of all three calls. In all

three calls, the man and woman discussed personal details of their lives



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No. 75662-1-1/9


including discussions about Lewis' father, the couple's child, Lewis's violent

behavior towards Hynd, and the ongoing legal proceedings against Lewis.

       The properly admitted evidence overwhelming established that Lewis

violated the no contract orders by phoning Hynd from jail.

       Lewis further contends that the "trial court's findings confirm that the court

relied on [the] constitutionally infirm evidence."34 Lewis is wrong.

       After hearing all the evidence, the trial court stated that it was persuaded

by the testimony of a witness who had identified Lewis's voice, the circumstantial

evidence, and "the court's own voice recognition that these same two people had

the conversations."35 The trial court noted that "[i]t would take a real stretch of

the imagination to consider that. .. anything but the obvious [] happen[ed]

here."36

       In its written findings, the trial court did not rely upon Hynd's statements of

identification. It found that Detective Gill recognized Wendy Hynd's voice from

her telephone conversations with Hynd, the 911 call and the in-car video from the

2014 case, and the female voice on the May 7, 2014 jail phone call. After

comparing the phone calls from May 7, 2014, and January 27 and 28, 2016, the

trial court found that "the male and female on the January 27 and 28, 2016 phone

calls were Tommie Lewis and Wendy Hynd."37




      34 Appellant's Opening  Brief(Amended) at 16.
      35 RP (July 8,
                     2016) at 429.
      36 id.
      37 Clerk's Papers at 62.




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No. 75662-1-1/10


       Because the untainted evidence is "so overwhelming that it necessarily

leads to a finding of guilt," any error in the admission of Hynd's statements of

self-identification was harmless beyond a reasonable doubt.38

       We affirm the judgment and sentence.

                                                           -0--A l-D--,
WE CONCUR:




      38 Anderson, 171   Wn.2d at 770.

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