                                                                                                IL.E?
                                                                                   COURT     OF
                                                                                               APPEALS
                                                                                           ViSION Ir
                                                                                  2015 AN 13         111,11 1:   17
                                                                                  STATE OF
                                                                                                WASHINGTON
                                           Or                                                                ON
      IN THE COURT OF APPEALS OF THE STATE
                                                                                           EPUr
                                                 DIVISION II

CITY OF VANCOUVER,                                                          No. 45443 -2 -II


                                   Respondent,


          v.

                                                                     UNPUBLISHED OPINION
BRINESH PRASAD,


                                   Appellant.




         MAXA, J. —      Brinesh Prasad appeals his conviction following a bench trial for second

degree   driving while   license invalidated (DWLI). Prasad argues that the trial court violated his


Sixth Amendment right to confrontation by admitting into evidence a letter from the Department

of Licensing (DOL) regarding the status of his license and denying him the opportunity to

confront the letter' s author. We accept the City of Vancouver' s ( City) concession that the trial

court erred by admitting the letter into evidence, but hold that this error was harmless.

Accordingly, we affirm Prasad' s conviction.

                                                     FACTS


         On March 24, 2012, Vancouver Police detective David Brown was on patrol when he


noticed Prasad driving a vehicle in front of him. Brown ran a license plate check, which

revealed that the vehicle' s owner had a suspended license.


         Brown initiated a traffic stop. He approached Prasad' s vehicle and asked him if his name

was   Brinesh. Prasad     responded   that it   was and provided   Brown   with   his driver'   s   license. Brown
45443 -2 -I1



returned to his patrol car with Prasad' s license and confirmed that it was .suspended. Brown also

confirmed that the driver' s license photo matched the driver. Brown issued Prasad a citation for

DWLI.


        At trial, DOL records custodian Michael McQuade testified regarding Prasad' s driving

status based on three exhibits the City offered. McQuade identified exhibit 1 as a notice of

revocation, which the DOL sends to drivers informing them of the dates of their ineligibility to

drive. McQuade testified that revocation notices are sent out in the ordinary course of business

to the driver' s last address of record. Exhibit 1 showed that Prasad' s driver' s license was

revoked   for   one year   starting   on   October 6, 2011. McQuade also identified exhibit 3 as the


abstract of Prasad' s complete driving record. The abstract showed the revocation of Prasad' s

driver' s license from October 6, 2011 until October 6, 2012 for refusing a breath or blood test.

        Exhibit 2 was the DOL' s diligent search/ cover letter, which stated that " a diligent search


of our official record indicates" that Prasad' s driving status on March 12, 2012 was " revoked."

The letter was signed by another DOL records custodian. The letter included certification that

the attached revocation notice and driving record were true and correct copies.

        McQuade testified that his independent review of the record led him to conclude that


Prasad' s driving status was revoked at the time Prasad was stopped and cited. His review of the

records showed that the revocation order was in effect for Prasad' s refusal of a breath or blood

test.


        Prasad    objected at   trial to    exhibits   1, 2,   and   3.   The court allowed the three exhibits into


evidence because exhibit .2 was properly certified under the DOL' s seal and included a




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45443 -2 -II



certification that the attached revocation notice (exhibit 1) and driving record (exhibit 3) were

official records maintained within the state.


        The trial court issued oral findings of fact and conclusions of law, finding that ( 1) Prasad

was driving a motor vehicle in the City of Vancouver at a time when his license was revoked by

the DOL, (2)   the DOL properly sent the notice of revocation to Prasad' s last address of record,

and ( 3) Brown' s testimony and the additional corroborative evidence confirmed that Prasad was

the driver of the vehicle and was the same Brinesh Prasad who had a revoked license. The trial

court concluded that Prasad committed the crime of second degree DWLI and entered its

judgment and sentence.


        Prasad appealed to the superior court. The superior court concluded that exhibit 2 could


be admitted only if Prasad had the ability to confront the drafter, but that McQuade' s testimony

authenticated all three exhibits. The court also found that there was sufficient evidence to


support Prasad' s conviction. Accordingly, the superior court affirmed Prasad' s conviction.

        Prasad filed a motion for discretionary review challenging the admissibility of all three

exhibits. We granted review solely on the issue of whether the three exhibits were inadmissible

under the Sixth Amendment' s confrontation clause. In his opening brief, Prasad assigned error

only to the admission of exhibit 2.

                                       ANALYSIS


A.      CONFRONTATION CLAUSE


        Prasad claims the trial court' s admission of exhibit 2 into evidence violated his right to

confront witnesses against him because the " diligent search" portion of that document was


testimonial, and he had no ability to confront the exhibit' s author. The City concedes that it was


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45443 -2 -1I



error for the trial court to admit the diligent search portion of exhibit 2 into evidence. We accept


the City' s concession. 1
             Under the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington State Constitution, an accused person has the right to confront the witnesses


against him.2 Therefore, a witness may not testify against a defendant unless that witness

appears at trial or the defendant had a prior opportunity for cross -examination. State v. Jasper,

174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012). We review alleged confrontation clause violations de


novo. Id. at 108.


             When the prosecution offers a document into evidence and the document' s author does


not testify, the first issue is whether the author is a " witness" for confrontation clause purposes.

State   v.   Lui, 179 Wn. 2d 457, 470, 315 P. 3d 493,      cert.   denied, 134 S. Ct. 2842 ( 2014). Our


Supreme Court in Lui adopted a two -part test for making this determination. Under this test, we

ask whether ( 1) the author made some statement of fact to the court ( as opposed to merely

processing       a piece of evidence),   and ( 2) that statement of fact was inculpatory (i.e., related to

some    factual issue in the   case).    Id. at 470 -71.




1 The City initially argues that we should decline to consider Prasad' s confrontation clause
argument because he waived the issue by not raising it at trial. Prasad counters that the City is
barred from making this argument because we accepted discretionary review of this issue.
Because we accepted review of this issue, we will consider it.

2 The federal and state constitutions provide the same protection for the right of a defendant to
confront witnesses. State v. Lui, 179 Wn.2d 457, 468, 315 P. 3d 493, cert. denied, 134 S. Ct.
2842 ( 2014).
45443 -2 -II



        Exhibit 2   served   two functions: ( 1) the diligent search portion included a conclusion



about a person' s driving status on the date of the offense, and ( 2) another portion authenticated

the attached records supporting that conclusion.

        Our Supreme Court in Jasper held that an affidavit from a legal custodian of driving

records stating that the custodian performed a diligent search of records and that the records

indicated that the defendant' s driver' s license was suspended on the date of an automobile

accident   is testimonial   and   inadmissible   absent an      opportunity for   confrontation.     174 Wn.2d at


116. Based on Jasper, the City properly concedes that the trial court violated Prasad' s

confrontation right by admitting the diligent search portion of exhibit 2 into evidence.

        However, a clerk' s certification that a driver' s record is a true and correct copy is non -

testimonial in nature, and a trial court does not violate a defendant' s confrontation right by

admitting it for authentication purposes. Jasper, 174 Wn.2d at 112. This rule applies to the

second portion of exhibit 2, which certified and authenticated the attached notice of revocation


and, driving record. The author of the certification portion of exhibit 2 was not a witness against

Prasad because the author certified only that the copies were authentic. The certification

function of exhibit 2 did not inculpate Prasad because it did not interpret the two attached

documents to    resolve a    factual issue in the   case.   See Lui, 179 Wn.2d       at   471.   Accordingly, the

trial court did not violate Prasad' s right to confrontation by admitting exhibit 2 into evidence for

authentication purposes.




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45443 -2 -II



B.        HARMLESS ERROR


          Although it was error for the trial court to admit the diligent search portion of exhibit 2


into evidence, the City argues that this error was harmless. We agree because the City' s

overwhelming untainted evidence proved the necessary elements of second degree DWLI.

          A confrontation clause violation is subject to constitutional harmless error analysis.

Jasper, 174 Wn.2d at 117. An error is harmless if it is clear " beyond a reasonable doubt that the

error complained of          did   not contribute       to the   verdict obtained."   Id. at 117 ( quoting Chapman v.

California, 386 U. S. 18, 24, 87 S. Ct. 824, L. Ed. 2d 705 ( 1967)).                    In making this determination,

courts use the " overwhelming untainted evidence" test, under which the appellate court looks " to

the untainted evidence to determine if it was so overwhelming that it necessarily leads to a

finding   of guilt."    Lui, 179 Wn.2d at 495.


          For the City to prove that Prasad was guilty of second degree DWLI, it had to prove that

Prasad drove a motor vehicle within the city of Vancouver while his license was suspended or

revoked    for any     of   20   enumerated reasons.         RCW 46.20. 342( 1)( b). One of these enumerated


reasons   is " an   administrative action          taken   by the    department   under chapter   46.20 RCW." RCW


46. 20. 342( 1)( b)(   xviii).     The diligent search portion of exhibit 2 stated that on the day of the

alleged crime Prasad' s license was revoked. Therefore, the question is whether there was


overwhelming untainted evidence of this fact apart from exhibit 2.

          The City provided evidence from two sources that Prasad' s license was revoked on

March 24, 2012. First,                        1         3 — which                                 show that Prasad' s
                                                                                      adritted3   —




                                   exhibits       and               were   properly



3 For the same reasons that the second portion of exhibit 2 was admissible; the admission of
exhibits 1 and 3 did not violate the confrontation clause. Those exhibits were true business
records, and were neither testimonial nor inculpatory.

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45443 -2 -II



license was revoked from October 6, 2011 until October 6, 2012 for refusing a breath or blood

test. Second, McQuade' s testimony that he reviewed Prasad' s driving record and determined

that Prasad' s license was suspended on March 24, 2012 for refusing a breath or blood test shows

these facts. Therefore, the City' s untainted evidence overwhelmingly proves that Prasad' s

license was revoked on the date of the alleged crime based on an administrative action taken by

the DOL.


        The trial court' s admission of the diligent search portion of exhibit 2 was error, but the

error was harmless because the City presented overwhelming untainted evidence to prove that

Prasad' s license was suspended on March 24, 2012. Accordingly, we affirm Prasad' s

conviction.




        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 pursuant to RCW 2. 06. 040, it is

so ordered.




 We concur:




                     r
           r
     HANSON, C. J.




  SUTTON, J.


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