       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            NO. 69918-1-1                  rJ     ta   ••
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                     Respondent,                DIVISION ONE                   P1     m
                                                                               az      _••


       v.

                                                UNPUBLISHED OPINION             °1
NEGATU ABEBE FENTAHUN,

                     Appellant.                 FILED: August 18, 2014           cf


       Leach, J. — Negatu Fentahun appeals his conviction for assault in the

second degree.    He claims that the trial court violated his confrontation clause

rights by admitting a tape of a 911 call and statements that a nontestifying

witness made to an emergency room social worker. Fentahun also challenges

the admission of this nontestifying witness's statements under ER 803(a)(4)

because the witness did not make these statements for the purpose of his own

medical diagnosis or treatment.     Because Fentahun fails to show that the

admission of the challenged evidence was improper, we affirm.

                                     FACTS


       On July 13, 2010, Fentahun got into an argument with his 28-year-old

sister, Wosenyelesh, at their residence. When Fentahun jumped forward and hit

Wosenyelesh on the head, she fell down. He then jumped on her back, grabbed

her head, and struck her multiple times in the face with a closed fist. Fentahun

then fled the residence.
NO. 69918-1-1/2




          Fentahun and Wosenyelesh's brother Amanuel witnessed the incident.

Amanuel called 911. When the 911 operator asked what happened, Amanuel

stated, "See my brother beat up my sister so bad, her two teeth went out, and

she got like a big eye uh a eye swollen," and also stated, "Please hurry up okay."

He told the operator, "She's awake, but she like blacked out. You could . . . she

needs help right now please." He also stated that the incident occurred "[l]ike

three, four minute ago" and that Fentahun had run away.         Amanuel provided

Fentahun's name and description and told the 911 operator that Fentahun had

no weapons.


          Wosenyelesh lost one tooth and two others remained loose in her mouth.

She had swelling and bleeding around her mouth and around her left eye. She

also had a cut underneath her left eye.

          Paramedics transported Wosenyelesh to Harborview Hospital before

police arrived. Amanuel rode in the ambulance to Harborview.

          At Harborview, Wosenyelesh and Amanuel spoke with emergency room

social worker Annie Drummond. Amanuel told Drummond about the events that

he witnessed and that he tried to intervene but was unable to do so.          After

speaking with Drummond, Amanuel called the Seattle Police Department to file a

report.

          On July 19, 2010, Fentahun arrived at the police precinct and stated that

his family told him police were looking for him. Fentahun told a police officer that

his sister walked up behind him while he was arguing with his mother. When he


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NO. 69918-1-1/3



turned around, his head collided with his sister's, and she fell onto a chair and hit

her mouth. Fentahun told the officer that he was so mad after the argument with

his mother that he left the house.       The officer believed that Fentahun was

describing the July 13 incident and asked him for identification. Police arrested

Fentahun.


       The State charged Fentahun with assault in the second degree with a

special allegation of domestic violence. Wosenyelesh did not appear at trial, and
Amanuel did not testify. A jury convicted Fentahun as charged, and the court

imposed a standard range sentence.

       Fentahun appeals.

                            STANDARD OF REVIEW

       We review alleged confrontation clause violations de novo.1 We apply a

harmless error analysis.2 The error is harmless if, considering the untainted

evidence, we are convinced beyond a reasonable doubt that any reasonable jury

would have reached the same result in the absence of the error.3 We presume

that the error is prejudicial, and the State bears the burden of proving beyond a

reasonable doubt that the error did not contribute to the jury's verdict/4
                                                                       •




       1 State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
      2 State v. Fraser, 170 Wn. App. 13, 23, 282 P.3d 152 (2012) (citing
Jasper, 174 Wn.2d at 117V review denied, 176Wn.2d 1022(2013).
       3Fraser, 170 Wn. App. at 23 (quoting State v. Gulov, 104 Wn.2d 412, 425,
705P.2d 1182(1985)).
       4 Fraser, 170 Wn. App. at 23-24 (citing Gulov, 104 Wn.2d at 425; Jasper,
 174Wn.2dat117).
NO. 69918-1-1/4




      We review decisions on the admissibility of evidence under an abuse of

discretion standard.5 An abuse of discretion exists "[wjhen a trial court's exercise

of its discretion is manifestly unreasonable or based upon untenable grounds or

reasons."6 A discretionary decision "is based 'on untenable grounds' or made

'for untenable reasons' if it rests on facts unsupported in the record or was

reached by applying the wrong legal standard."7

                                    ANALYSIS


       Fentahun claims that the trial court should have excluded as testimonial

hearsay a tape of the 911 call and Amanuel's statements to Drummond.8 Under

the federal confrontation clause, a criminal defendant has the right to confront

and to cross-examine adverse witnesses.9       The confrontation clause bars the

admission of "testimonial" hearsay unless the declarant is unavailable to testify

and the defendant had an earlier opportunity to cross-examine the declarant.10




       5 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239(1997).
       6 Stenson, 132 Wn.2d at 701 (citing State v. Powell, 126 Wn.2d 244, 258,
893 P.2d 615 (1995)).
      7 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State
v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
      8 The trial court admitted a transcript of the 911 call for illustrative
purposes.
      9 U.S. Const, amend. VI; Douglas v. Alabama, 380 U.S. 415, 418, 85 S.
Ct. 1074, 13 L. Ed. 2d 934 (1965). The Sixth Amendment applies to the states
through the due process clause of the Fourteenth Amendment. Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 13 L Ed. 2d 923 (1965).
      10 Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L.
Ed. 2d 177(2004).
NO. 69918-1-1/5




This guarantees an adequate opportunity for effective cross-examination.11 The
prosecution has the burden to establish that statements are not testimonial.12
      Although Washington courts have not adopted a comprehensive list of

what qualifies as a testimonial statement, the courts have found that statements

are testimonial in nature "when the circumstances objectively indicate that there

is no . . . ongoing emergency, and that the primary purpose of the interrogation is

to establish or prove past events potentially relevant to later criminal

prosecution."13 "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."14

       To help decide if statements are not testimonial, the court considers (1) if

the speaker was speaking about past events or current ones, as they occurred,

requiring police assistance; (2) if a reasonable listener would conclude that the
speaker was facing an ongoing emergency that required help; (3) the nature of


       11 Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974); State v. Hudlow, 99 Wn.2d 1, 15-16, 659 P.2d 514 (1983). "Bias
is . . . the relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in favor of or against a
party. Bias may be induced by a witness' like, dislike, orfear of a party, or by the
witness' self-interest." United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 83
L.Ed. 2d 450 (1984).
       12 State v. O'Cain, 169 Wn. App. 228, 235, 279 P.3d 926 (2012).
       13 Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006).
       14 State v. McWilliams, 177 Wn. App. 139, 156, 311 P.3d 584 (2013)
(citing State v. Koslowski, 166 Wn.2d 409, 418, 209 P.3d 479 (2009)), review
denied, 179 Wn.2d 1020 (2014).
NO. 69918-1-1/6




the questions asked and answered; and (4) the interrogation's formality.15 A

conversation can contain both testimonial and nontestimonial statements.        A

conversation to learn about any need for emergency assistance can become

testimonial when the emergency appears to have ended or the information

necessary to meet the emergency has been obtained.16 Witness statements to a

medical doctor are not testimonial, and their admission does not violate the

confrontation clause (1) when made for the purpose of diagnosis and treatment,

(2) when no evidence indicates that the witness expected the statements to be

used at trial, and (3) when the doctor is not employed by or working with the

State.17

       Fentahun claims that the trial court should have excluded the 911 call as

testimonial hearsay because a conversation that "began to determine the need

for emergency assistance" "quickly evolved into testimonial statements divorced

from getting medical help for the caller's sister. At that point the circumstances

objectively indicate the primary purpose was is [sic] to establish or prove the

facts of a past crime in order to identify the perpetrator." He argues that the

caller described a past event. He claims that the caller "was only asked a couple

of questions regarding [Wosenyeleshj's medical condition. He was asked if she

needed a medic and whether she was conscious" and asserts, "The rest of the



       15 Koslowski, 166 Wn.2d at 418-19.
       16 Koslowski, 166 Wn.2d at 419 (citing Davis, 547 U.S. at 828).
       17 State v. Sandoval, 137 Wn. App. 532, 537, 154 P.3d 271 (2007) (citing
State v. Moses, 129 Wn. App. 718, 729-30, 119 P.3d 906 (2005)).
NO. 69918-1-1/7




questions were related to the incident and identity of the assailant.              The

questions and the answers that were elicited were not necessary to resolve a

present emergency." Fentahun also alleges that because the caller told the 911

operator that the assailant had left and had no weapons, no ongoing emergency

existed. He contends that "the questioning was less formal than a face-to-face

interrogation with police, the questions were pointed and direct. Few of the

caller's statements were spontaneous, and the caller was speaking from a place

of safety."

       We reject Fentahun's arguments and conclude that the statements in the

911 call were not testimonial.    First, the record indicates that the caller sought

medical help as a result of an incident that occurred "[l]ike three, four minute[s]

ago." A speaker may speak contemporaneously of past events if the speaker

connects the past events with ongoing ones.18

       Second, courts recognize two ways that an ongoing emergency may exist:

first, if the crime is still in progress and, second, if the victim is in danger, either

because of the need for medical assistance or because the defendant poses a

threat.19     Although the caller reported that Fentahun ran away and had no

weapons, a reasonable listener could conclude that an ongoing emergency


        18 Koslowski, 166 Wn.2d at 422-23 n.8 ("[l]t is not inconsistent to speak of
past events in conjunction with an ongoing emergency and, in appropriate
circumstances, considering all of the factors the Court identified [in Davis], the
fact that some statements are made with regard to recent past events does not
cast them in testimonial stone.").
        19 Koslowski, 166 Wn.2d at 419 n.7 (citing State v. Shea, 184 Vt. 453, 460,
965 A.2d 504 (2008)).

                                          -7-
NO. 69918-1-1/8



existed based on the caller's statements: "[M]y brother beat up my sister so bad,

her two teeth went out, and she got like a big eye uh a eye swollen"; "Well my

brother beat up my sister so bad so she need a paramedic right now"; and "She's

awake, but she like blacked out.         You could ... she needs help right now

please."   These statements show a concern for Wosenyelesh's well-being

because of her need for medical assistance.

       Third, the caller focused on his sister's need for medical attention. He did

not volunteer information about the assailant but provided the description only in

response to the 911 operator's questions. The caller discussed no facts about
the assault and did not ask police to pursue or to prosecute the assailant.

Although, when viewed in isolation, the questions about the incident and the
assailant's identity appear as an attempt to elicit testimony, the sequence of

questions indicates that the 911 operator asked the questions to determine if
police would "be encountering a violent felon" when responding and how they

might resolve the situation.20

       Fourth, interactions with 911 operators are typically informal.21       The

caller's statements, some of which appear emphatic, show concern about getting

medical help for his sister. He made these statements from the location where
the assault took place, which was not secure. Given these facts, the caller's
statements share nothing with the formality that customarily attends testimony.


        20 See Davis, 547 U.S. at 827.
        21 Davis, 547 U.S. at 827 (contrasting the solemnity of a formal police
 interrogation with a 911 call).

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NO. 69918-1-1/9




      The caller's statements in the 911 call were not testimonial because,

viewed objectively, the circumstances show a call for emergency assistance

rather than a mere report of a crime. We conclude that the trial court did not

violate Fentahun's right to confrontation by admitting the 911 call.

       Fentahun also claims that admitting Amanuel's statements to Drummond

violated his right of confrontation because Amanuel did not make these

statements for the purpose of his own medical diagnosis or treatment or for the

purpose of diagnosing or treating Wosenyelesh.              Fentahun argues, "A

reasonable person in Amanuel's position would anticipate that telling a hospital

social worker that his brother assaulted his sister, that he tried to stop the

assault, and that he called police, that his statement would be used to either

investigate or prosecute the alleged assault."

       Drummond conducted her interview and wrote her notes on the day of the

assault, shortly after Amanuel and Wosenyelesh arrived in the emergency room.

At trial, she testified that in her role as an emergency room social worker she

provides crisis intervention for families and becomes their advocate with the

medical staff.     Because this case involved domestic violence and "it appeared

that there were witnesses to what had happened," she understood that her job

was to "make sure that not only [Wosenyelesh] got the appropriate support and

more long term counseling related to that, but that there would be services for the

family as well."




                                         -9-
NO. 69918-1-1/10




      Drummond interviewed Amanuel to be able to provide appropriate

treatment to Wosenyelesh and other members of their family.         No evidence

shows that Drummond had a role in investigating the assault, that she shared her

notes with police when they arrived, or that she prepared the notes in the form of

an extrajudicial sworn or certified statement to be used as a substitute for

testimony in court. Nothing in the record indicates that police were present when

Drummond spoke with Amanuel or that Drummond was working on behalf of or

in conjunction with the police or governmental officials to develop testimony for

the prosecution. And no evidence shows that Amanuel believed or had reason to

believe that his statements to Drummond would be used at a subsequent trial to

establish Fentahun's culpability.    Drummond also testified that the fact the

incident involved domestic violence affected diagnosis and treatment.22

Therefore, these statements were not testimonial, and their admission did not

violate Fentahun's confrontation clause rights.

       Fentahun also claims that Amanuel's statements to Drummond were not

admissible under ER 803(a)(4) because Amanuel "was not the patient making a

statement for the purpose of his medical diagnosis or treatment, and

[Wosenyelesh] was able to communicate her own medical concerns." He also

alleges that "the State failed to show [Wosenyelesh] incapable of expressing her

concerns to Drummond."




       22 See Sandoval, 137 Wn. App. at 538.


                                        -10-
NO. 69918-1-1/11




      ER 803(a)(4) states that a statement is not hearsay if it is "made for

purposes of medical diagnosis or treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as reasonably pertinent

to diagnosis or treatment."     A party seeking to admit a statement under ER

803(a)(4) must show that the declarant's apparent motive was consistent with

receiving treatment and that the medical provider reasonably relied upon the

information for diagnosis or treatment.23     A statement attributing fault to an

abuser made in a domestic violence case is relevant to diagnosis and treatment

because the abuser's identity may affect the witness's treatment.24 An out-of-

court statement made to a social worker is admissible if made in the course of


diagnosis and treatment.25

      Fentahun cites no authority holding that ER 803(a)(4) applies only to

statements describing the patient's own symptoms or medical history. In State v.

Justiniano,26 the court admitted a parent's statements to a physician about a

child's needs, reasoning that "children of tender years are incapable of

expressing their medical concerns to physicians." In State v. Woods,27 the court

admitted under ER 803(a)(4) an assault victim's statements to a physician and a

       23 State v. Doerflinger, 170 Wn. App. 650, 664, 285 P.3d 217 (2012)
(quoting In re Pers. Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004)),
review denied, 177 Wn.2d 1009 (2013).
      24 Sandoval, 137 Wn. App. at 537 (citing Moses, 129 Wn. App. at 729).
      25 Moses, 129 Wn. App. at 731 (citing State v. Sims, 77 Wn. App. 236,
239-40, 890 P.2d 521 (1995)).
      26 48 Wn. App. 572, 581, 740 P.2d 872 (1987).
      27 143 Wn.2d 561, 601, 23 P.3d 1046 (2001).


                                       -11-
NO. 69918-1-1/12




nurse's description of assaults upon herself and the patient. In Woods, the court

explained that it was reasonably pertinent to the patient's treatment "that her

medical providers be apprised of the physical position [the patient] was in at the

time when her attack occurred."28

      Drummond testified that she was unable to communicate effectively with

Wosenyelesh because of the injuries to Wosenyelesh's mouth.               At trial,

Drummond testified, "I attempted to interview [Wosenyelesh], and in my note I

state that her voice was soft and meek when she speaks, and she's unable to

say more than two words because her teeth are so loose in her mouth."

Drummond also stated, "She was alert, conscious, she was not sedated.          She

was—she had tried to engage with me in conversation and was unable to based

upon her mouth injury." When asked how she communicated with Wosenyelesh,

Drummond testified,

      So she had a brother—well, she had other family members there
      with her too. My very first interaction with her was to actually bring
      back, ... I believe it was another brother and her parents and
      brought them back. But the brother who was at bedside then was
      Amanuel who had witnessed and intervened in the assault.

Drummond stated that during the conversation with Amanuel, she did not recall

anyone else being present in the room besides Wosenyelesh.

      Amanuel had firsthand knowledge about the incident that took place and

about the cause of Wosenyelesh's injuries.            It was also pertinent to

Wosenyelesh's treatment that the incident was one involving domestic violence


       28 Woods, 143 Wn.2d at 603.


                                       -12-
NO. 69918-1-1/13




because of the need to prevent a recurrence.29 Fentahun cites no evidence

demonstrating that Amanuel's motive in providing these statements to

Drummond was to investigate or to prosecute him. Because the record shows

that Amanuel's motive appeared consistent with seeking proper medical

treatment for Wosenyelesh, the trial court did not abuse its discretion when

admitting this evidence.

                               CONCLUSION


       Because Amanuel's statements in the 911 call and to Drummond were not

testimonial and were made for the purpose of providing medical treatment to

Wosenyelesh, we affirm.




WE CONCUR:




   T?^m, ^                                            CZTX^




       29 State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998) (quoting
State v. Butler, 53 Wn. App. 214, 221, 766 P.2d 505 (1989)).

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