                                                                                r)     -
                                                                  COURT OF APPEALS OlY I
                                                                   STATE OF WASHIP-1GTON

                                                                   2018 AUG 20 All II: 29

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                                 No. 75690-7-1
                     Respondent,
                                                 DIVISION ONE
              V.
                                                 UNPUBLISHED OPINION
SERGIO AGUSTIN DONATO,

                    Appellant.                  FILED: August 20, 2018


      TRICKEY,J.— The State charged Sergio Donato with second degree assault
by strangulation, felony harassment, and witness tampering, all with domestic

violence aggravating factors. At trial, the State introduced a translated transcript

of a jail telephone call between Donato and the victim, Flor Elise Rosas-Sosa. The

trial court admitted the evidence as Donato's adoptive admissions despite his

confrontation clause and hearsay objections. Although Rosas-Sosa's statements

were nontestimonial and do not implicate Donato's Sixth Amendment right to

confrontation, they were improperly admitted as adoptive admissions. Because

the error was not harmless, we reverse and remand for a new trial.

                                     FACTS

      Very early on the morning of May 6, 2016, several Renton police officers

responded to Flor Elise Rosas-Sosa's 911 call. One of the officers met Rosas-

Sosa in a vehicle outside of her residence. Rosas-Sosa was sobbing, shaking,

and visibly distressed. She was wet and disheveled and her left knee was

scratched and bloody.
Na. 75690-7-1/ 2

       Rosas-Sosa spoke Spanish and very little English, and none of the

responding officers spoke Spanish. An officer was able to obtain information

through a conversation of limited English and hand gestures.              The officer

concluded that Rosas-Sosa's boyfriend had hit her on the back of her head and

dragged her by her hair. The officer also learned that Rosas-Sosa was pregnant.

       Rosas-Sosa indicated that the argument had occurred at her nearby

residence. When an officer knocked on the door to the residence, Donato opened

the door wearing shorts and no shoes. He told the officer that he had just awoken.

The officer arrested Donato. He denied hitting Rosas-Sosa. He said she had

come home drunk, woken him up, and begun arguing with him.

       Donato went to trial on charges of second degree assault by strangulation,

felony harassment, and tampering with a witness, all with domestic violence

aggravating factors. Neither Donato nor the State expected Rosas-Sosa to testify

because she had been unresponsive to both parties and was near the due date

for her pregnancy.

       At trial, the State offered a translated transcript of a jail telephone call

between Rosas-Sosa and Donato) Donato had called Rosas-Sosa from jail soon

after his arrest. The jail telephone call began with a warning that such calls are

recorded and may be monitored.

       The transcript included the following exchanges that detail Rosas-Sosa's

description of the alleged assault:




1 The jail telephone call was conducted in Spanish. The State played a redacted version
of the Spanish audio recording for the jury.
                                          2
No. 75690-7-1/ 3

       [Rosas-Sosa:] "Baby, but [crying] why do you hurt me?
       [Donato:] Look, I'm not going to ...
       [Rosas-Sosa:] There's no need to hit me as if I were a dog.
       [Donato:] Sweetie. .. we can't talk about that here, okay?
           •
       [Rosas-Sosa:] I was really scared, Sergio. I thought you wanted to
       kill me, and I was afraid. You had never done that before, to try to
       cut off my breathing. [crying] Never. And that really frightened me.
       I don't want to die. And you just didn't care, even though you know
       I'm pregnant. [sobbing]
       [Donato:] Anyway, though, sweetie, I'm not going to be able to talk
       to you anymore. Okay? Because tomorrow they're going to issue
       a no contact order.


       [Rosas-Sosa:] I was frightened, Sergio. [crying] I mean,jeez, you
       wanted to kill me.
       [Donato:] No. And let's not talk about that anymore here, okay?


       [Rosas-Sosa:] But since I'm soft, your hands don't hurt—that's why
       you prefer to hit me instead.
        [Donato:] I can't talk to you here, okay?


        [Donato] I can't.. . I can't talk about that. I can't be talking about
        that here anymore, my love.[2]
       Donato objected to admission of Rosas-Sosa's statements on both

confrontation clause and hearsay grounds.3 In the alternative, he requested a

limiting instruction to inform the jury that these portions of the transcript were not


2Ex. 6 at 3-13.
3 Donato's pretrial brief includes a motion in limine to exclude all witness statements of
witnesses who do not appear at trial. The recording and transcript were redacted to
remove inadmissible ER 404(b) evidence. Parts of the transcript were also separately
admissible for Donato's witness tampering charge as statements of a party-opponent.
These portions of the transcript are not at issue in this appeal.
                                            3
No. 75690-7-1 /4

competent evidence to prove his harassment and assault charges. The trial court

denied Donato's objection and request for a limiting instruction.

         The trial court found that Donato had adopted the statements, "not

necessarily by silence, but by failure to object." Therefore, the statements were

admissible as Donato's own statements. This portion of the transcript was

admitted as a nonhearsay adoptive admission and was not subject to the

confrontation clause. The trial court noted that the decision to admit these portions

of the transcript was a threshold determination and that the jury would decide the

ultimate issue of whether Donato adopted the statements.

         Rosas-Sosa did not testify at trial. The State played a redacted version of

the original jail telephone call recording in Spanish. The trial court admitted the

redacted and translated transcript into evidence.

         The jury acquitted Donato of second degree assault by strangulation and

convicted him of the lesser degree offense of fourth degree assault. The jury also

convicted Donato offelony harassment and witness tampering and found domestic

violence aggravating factors on all three convictions.

         Donato appeals.

                                      ANALYSIS

                                 Confrontation Clause

         Donato claims that admission of the challenged portions of the transcript

violated his Sixth Amendment right to confrontation. Specifically, he argues that

Rosas-Sosa's statements were the functional equivalent of testimony to a



4   3 Report of Proceedings(RP)(June 7, 2016) at 287.
                                           4
No. 75690-7-1/ 5

government agent because of the automated voice notification that the telephone

call was recorded. We disagree.

       The Sixth Amendment of the United States Constitution provides criminal

defendants the right "to be confronted with the witnesses against him." U.S.

CONST. amend VI. To protect this right, the confrontation clause bars out-of-court

testimonial statements unless the witness is unavailable to testify and the

defendant had prior opportunity for cross-examination. State v. Beadle, 173 Wn.2d

97, 107, 265 P.3d 863(2011)(citing Crawford v. Washington, 541 U.S. 36, 53-54,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). But "not all out-of-court statements

give rise to the protections of the confrontation right because not all speakers are

acting as a 'witness' against the accused as described in the Sixth Amendment."

State v. Wilcoxon, 185 Wn.2d 324, 325, 373 P.3d 224(2016)(citing Crawford, 541

U.S. at 51). The confrontation clause applies only to "testimonial" statements.

Wilcoxon, 185 Wn.2d at 331.

       A testimonial statement "is designed to establish or prove some past fact,

or is essentially a weaker substitute for live testimony at trial." Wilcoxon, 185

Wn.2d at 334. Such a statement is "the functional equivalent of in-court testimony."

Wilcoxon, 185 Wn.2d at 334. A statement is testimonial when, "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

Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93(2011));

see State v. Streepv, 199 Wn. App. 487, 494, 400 P.3d 339, review denied, 189


                                          5
No. 75690-7-1 /6

Wn.2d 1025, 406 P.3d 283(2017). "[T]he relevant inquiry is not the subjective or

actual 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; see Streepy, 199 Wn. App. at 494.

       In addition, the recipient of the statements is highly relevant. State v.

Scanlan, 2 Wn. App.2d 715, 728,413 P.3d 82(2018), petition for review filed, No.

95971-4 (Wash. June 18, 2018). "Statements made to someone who is not

principally charged with uncovering and prosecuting criminal behavior are

significantly less likely to be testimonial than statements given to law enforcement

officers." Clark, 135 S. Ct. at 2182; see Scanlan, 2 Wn. App.2d at 728.

      The appellate court only examines whether a defendant's right to

confrontation was violated if the given statement is testimonial. Wilcoxon, 185

Wn.2d at 331-32. Appellate courts review alleged violations of the confrontation

clause de novo. State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876(2012).

       In this case, Rosas-Sosa statements were not an effort to create out-of-

court substitute testimony. Rather,they reflect her attempt to have Donato account

for his abusive behavior. She expressed her fear of Donato's actions and asked

why he had hurt her. From the circumstances and content of the conversation,

Rosas-Sosa's purpose was to voice her fear and attempt to understand Donato's

behavior. Rosas-Sosa was discussing her relationship with her boyfriend, not

establishing Donato's guilt for prosecution.




                                        6
No. 75690-7-1 /7

       Further, additional topics of the conversation underscore that Rosas-Sosa's

purpose was not to create substitute testimony for use in prosecution. During the

telephone call, Rosas-Sosa and Donato discussed ways to minimize the criminal

charges and circumvent the impending no contact order. Thus, Rosas-Sosa was

helping to undermine, not to assist, the prosecution.

       We conclude that Rosas-Sosa's statements were not testimonial and,

therefore, did not implicate Donato's rights under the confrontation clause.

                                Adoptive Admission

       Donato claims that the trial court erred by admitting portions of the transcript

containing Rosas-Sosa's description of the events as nonhearsay adoptive

admissions. We agree. Rather than adopt Rosas-Sosa's statements, Donato

repeatedly objected to discussing her accusations.

       Admissions by party-opponents are excluded from the definition of

"hearsay."    ER 801(d)(2).      This includes adoptive admissions which are

"statement[s] of which the party has manifested an adoption or belief in its truth."

ER 801(d)(2)(ii).

      "[W]hen a statement is made in the presence and hearing of an accused

that is accusatory or incriminating in character, and such statement is not denied,

contradicted, or objected to by him, both the statement and fact of his failure to

deny, contradict, or object are admissible" as evidence of acquiescence in its truth.

State v. Redwine, 23 Wn.2d 467, 470, 161 P.2d 205 (1945), overruled on other

grounds by State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946)). These

are statements that "would naturally call for a reply if the defendant did not desire


                                          7
No. 75690-7-1 /8

to acquiesce in them." State v. Goodwin, 119 Wash. 135, 140, 204 P. 769(1922).

A party-opponent can manifest adoption of a statement by words, gestures, or

silence. State v. Neslund, 50 Wn. App. 531, 550, 749 P.2d 725(1988).

      Silence constitutes admission only if the party-opponent heard the

accusatory or incriminating statement, was physically and mentally able to

respond, and "the statement and circumstances were such that it is reasonable to

conclude the party-opponent would have responded had there been no intention

to acquiesce." Neslund, 50 Wn. App. at 551. "The circumstances must also be

such that 'an innocent defendant would normally be induced to respond."

Neslund, 50 Wn. App. at 551 (quoting United States v. Sears, 663 F.2d 896, 904

(9th Cir. 1981), cert. denied sub nom. Werner v. United States,455 U.S. 1027, 102

S. Ct. 1731, 72 L. Ed. 2d 148 (1982)).

       When a trial court admits evidence as an adoptive admission by silence, the

jury determines whether the defendant heard, understood, and acquiesced to the

statement. Neslund, 50 Wn. App. at 551. "Whether an accused has made an

adoptive admission is thus a matter of conditional relevance to be determined

ultimately by the jury." Neslund, 50 Wn. App. at 551-52.

       A trial court's decision on the admissibility of evidence is reviewed for abuse

of discretion. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705(2014). "A trial court

abuses its discretion when its decision 'is manifestly unreasonable or based upon

untenable grounds or reasons." Dobbs, 180 Wn.2d at 10(quoting State v. Powell,

126 Wn.2d 244, 258, 893 P.2d 615 (1995)). A decision is based on untenable

grounds if it is based on an incorrect standard or misapplication of law, or the facts


                                          8
No. 75690-7-1/9

do not meet the requirements of the correct standard. Ryan v. State, 112 Wn.App.

896, 899-900, 51 P.3d 175(2002).

         Here,the trial court admitted portions of the transcript as adoption "by failure

to object" after applying the Neslund test.5 The trial court found that the evidence

satisfied the threshold requirements for admission, and that the jury would decide

if the statements were adopted. But Neslund applies only to adopted admissions

by silence. See 50 Wn. App. at 551-52; State v. Cotten, 75 Wn. App. 669, 689,

879 P.2d 971 (1994); State v. King, 113 Wn. App. 243, 281 n.11, 54 P.3d 1218

(2002). Because the trial court specifically determined that Donato had adopted

Rosas-Sosa's statements by failing to object, rather than by silence, Neslund is

inapposite. Therefore, the trial court applied the incorrect test for admissibility to

the challenged portions of the transcript. This was an abuse of discretion. See

Ryan, 112 Wn. App. at 899-900.

         Furthermore, the trial court erred in concluding that Donato failed to object

to Rosas-Sosa's statements. The transcript of the jail telephone call shows that

Donato refused to discuss the accusations made by Rosas-Sosa, repeatedly

telling her that they could not talk about the issues. While he did not affirmatively

deny the accusations, his statements are clear objections to the topic of

conversation.      Because Donato explicitly objected, Rosas-Sosa's statements

cannot be considered his adopted admissions. Therefore, the trial court's decision

to admit the evidence was made on untenable grounds and was an abuse of

discretion. See Ryan, 112 Wn. App. at 899-900.



5   3 RP (June 7, 2016) at 286-87.
                                            9
No. 75690-7-1 /10

                                Harmless Error Analysis

         The State argues that any error in admitting the evidence was harmless due

to the independent evidence supporting the convictions. The State's emphasis on

the adoptive admissions as a substitute for Rosas-Sosa's testimony and Donato's

failure to deny her accusations as evidence of guilt, belies this contention.

         An erroneous evidentiary ruling does not require reversal unless the

defendant was prejudiced. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970

(2004). For evidentiary issues without constitutional implications, an error "is not

prejudicial unless, within reasonable probabilities, the outcome of the trial would

have been materially affected had the error not occurred." State v. Tharp, 96

Wn.2d 591, 599, 637 P.2d 961 (1981). "The improper admission of evidence

constitutes harmless error if the evidence is of minor significance in reference to

the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d

389, 403, 945 P.2d 1120(1997).

         Prior to closing argument, the State acknowledged the importance of the

statements in the transcript for Donato's felony harassment charge.             The

prosecutor noted that "all of the evidence that could support this charge really is

found more -- is found more so in the -- in the phone call as opposed to the

testimony of the officers." [W]hat Ms. Rosas-Sosa says on the phone is that she

was really scared."6

         The importance of this evidence was further underscored by the State's

reliance on the adopted admissions in closing arguments. The prosecutor noted



6   6 RP (June 14, 2016) at 822-23.
                                          10
No. 75690-7-1 / 11

that he would "hit on this a lot, so get ready to hear this quite a bit, but why on the

jail phone call didn't [Donato] deny that he did that to her?"7 Donato's failure to

deny Rosas-Sosa's accusations was emphasized throughout the State's closing

argument and revisited on rebuttal.

         The State also invoked the transcript to demonstrate Rosas-Sosa's fear in

the context of the harassment charge, highlighting that Rosas-Sosa expressed her

fear of Donato's behavior and that he failed to question or deny her concerns.

Additionally, the prosecutor likened the transcript to testimony from Rosas-Sosa.

"And in this case through this phone call you heard Ms. Rosas-Sosa tell you what

happened and heard the defendant's response and basically agreement with what

she said as to what happened that evening, because he didn't deny it."8

         Introduction of the transcript allowed for the jury to consider Rosas-Sosa's

first-person account of the alleged assault, despite her unavailability to testify. The

State essentially argued that Donato's failure to deny the allegations was proof of

his guilt.    In light of the State's emphasis on Rosas-Sosa's statements and

Donato's failure to deny them, the evidence cannot be considered of minor

significance. We conclude that, within reasonable probabilities, the outcome of the

trial was materially affected by the erroneous admission of the challenged portions

of the transcript. Therefore, the error was not harmless, and a new trial is required.




7   7 RP (June 15, 2016) at 867.
8   7 RP (June 15, 2016) at 873.
                                          11
No. 75690-7-1 / 12

      Reversed and remanded for a new trial.




WE CONCUR:



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