            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                                     No. 77964-8-I

                                     Respondent,          DIVISION ONE

                   v.                                     UNPUBLISHED OPINION

 JASON LEE WILKES,

                                    Appellant.            FILED: August 12, 2019


            CHUN, J.   —   Jason Wilkes appeals his conviction for second degree

assault. At trial, the court admitted statements an unavailable witness made to a

911 operator and to police officers who first arrived at the scene. On appeal,

Wilkes claims the admission of these statements violated the Confrontation

Clause. He also argues that his trial counsel performed ineffectively by failing to

call an expert witness and that the trial court erred by imposing $300 in legal

financial obligations in his Judgment and Sentence. For the reasons discussed

herein, we affirm Wilkes’s conviction. And we remand to the trial court to strike

the fees.

                                        BACKGROUND
        In the summer of 2017, Wilkes lived with his daughter, Cassandra Kelich,

his son-in-law, Matthew Kelich,1 and his six-year-old grandson (Cassandra and

Kelich’s son).

        In the remainder of this opinion, for clarity, we refer to cassandra Kelich by her first
        1

name and to Matthew Kelich by his last name. We intend no disrespect.
No. 77964-8-112


        On June 23, 2017, Kelich told his son to sit down and eat his pizza. His

son responded, “Fuck you.” Kelich lost his temper and started shouting in foul

language at his son. From his bedroom, Wilkes heard Kelich shouting.

Concerned that Kelich was losing his temper, he went to the kitchen.

       Wilkes said that once he entered the kitchen, Kelich turned towards him

and raised his fist. Wilkes said he felt that he needed to defend himself. He

pushed Kelich into the corner of the kitchen and then punched him in the eye.

Because Wilkes did not believe one punch would incapacitate Kelich, he hit him

seven to ten more times. Kelich contended that Wilkes strangled him, but Wilkes

denied this.

       Shayna Blount, a friend of Cassandra’s, was at the house with her

children when the fight began. Blount left the house with all the children and

called 911. When the operator asked how he could help, Blount told him, “My

best friend’s father is beating up her husband and she is not here. But there’s

three kids. I left with the kids and we’re at the neighbor’s house but we need the

police and probably an ambulance here.” The operator then asked if the fight

involved any weapons. Blount said, “[N]o but we need help. We need help.”

Blount stated Kelich was “bleeding out of his face [and] out of his ears.” Blount

then answered questions regarding Wilkes’s race, height, build, and age.

       During the phone call, Wilkes walked out of the house. Blount told him to

get back inside because he was scaring the children. Wilkes complied. The

operator assured Blount that officers were on their way. Blount responded, “We




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 No. 77964-8-113


just need them here now. Like bad.” By the end of the call, Blount told the

operator, “Well, we’re with the neighbor now so everything is fine.”

       The police arrived 14 minutes after Blount called 911. Officer Jeremy King

arrived at the scene first. To ensure officer safety, Officer King parked down the

street and waited for another officer. Officer Matthew Mishler arrived shortly

thereafter. Blount ran to the police and told them about the fight. Believing

Wilkes was inside, the police went into the house. But Wilkes had fled out the

back door. The police then used a tracking dog to locate him in the backyard

bushes of a nearby business. The police arrested Wilkes.

       On July 12, 2017, the State charged Wilkes with second degree assault

domestic violence. On November 14, 2017, the State amended the information

to add aggravated domestic violence, accusing Wilkes of committing the assault

against a family or household member and within the sight or sound of minor

children.

       The State could not locate Blount for trial. Despite her absence, the State

offered into evidence a recording of her 911 call and testimony of the statements

she made to the police. The State argued that the statements did not present a

confrontation issue because they were nontestimonial. The court admitted both

statements over the defense’s objection.

       At trial, Officer King testified that he arrived at the scene and saw Blount

standing in the street with a neighbor. He also observed Kelich sitting down and

bleeding from his head, face, and upper body. Blount began running towards the

officer and seemed “hyperactive” and “freaked out.” Officer King asked Blount


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 No. 77964-8-1/4


what had happened and “[s]he made statements of witnessing the assault. That

[Wilkes] had attacked [Kelich] and that she had to intervene to get the kids out

and get them to safety.”

        Officer Mishler also testified to statements Blount made. He too stated

that Blount immediately started running towards him and Officer King when they

first arrived. He said Blount was “very excited” and that she was “waving her

hands” and ‘talking really fast.” Officer Mishler asked Blount if she had seen

what happened and ‘[s]he said she had and had seen the whole thing.” He

recounted, “[Blount] said that she was sitting on the back porch smoking a

cigarette and she heard our victim, [Kelich]       .   .   .   inside screaming at his son and

was swearing at him and then she saw [Wilkes] come into where he was and just

start hitting him.”

        The State additionally presented expert testimony that Kelich showed

symptoms that he had been strangled, including petechia.2

        On November 20, 2017, the jury convicted Wilkes as charged. The jury

also returned special verdicts finding that Wilkes and Kelich were members of the

same family or household and that the assault involved aggravated domestic

violence.

        The court sentenced Wilkes to 55 months imprisonment on January 1 8,

2018. The court also imposed a $200 criminal filing fee and a $100 DNA fee.

        Wilkes appeals.

        2 Petechia refers to one of the minute hemorrhages or purpuric spots that appear on the

skin or mucous and serous membranes or within an organ.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1689 (2002).



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No. 77964-8-1/5


                                    ANALYSIS
    A. Confrontation Clause

       Wilkes contends that the trial court admitting Blount’s 911 call and her

statements to the police violated his right to confrontation. The State claims the

court properly admitted the statements because they were nontestimonial. We

agree with the State.

       We review de novo confrontation clause challenges. State v. Koslowski,

166 Wn.2d 409, 417, 209 P.3d 479 (2009).

       Under the Sixth Amendment of the United States Constitution, criminal

defendants have the right to confront the witnesses against them. U.S. CONST.

amend. VI; Crawford v. Washington, 541 U.S. 36, 42, 124 5. Ct. 1354, 158 L. Ed.

2d 177 (2004). Our state constitution provides a similar right. CONST. art. I   § 22;
State v. Hurtado, 173 Wn. App. 592, 595, 294 P.3d 838 (2013). The right to

confrontation “applies to ‘witnesses’ against the accused—in other words, those

who ‘bear testimony.” Crawford, 541 U.S. at 51. If a prosecutor seeks to admit

testimonial evidence, then the Confrontation Clause requires the declarant’s

unavailability and a prior opportunity for cross-examination by the defendant.

Crawford, 541 U.S. at 68. Nontestimonial evidence does not implicate the

Confrontation Clause. Crawford, 541 U.S. at 68.

       Because, in this case, neither party challenges Blount’s unavailability or

that Wilkes lacked a prior opportunity to cross-examine her, the admissibility of

her statements turn on whether they are testimonial. See State v. Ohlson, 162




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No. 77964-8-1/6


Wn.2d 1, 16, 168 P.3d 1273 (2007). When determining whether a statement is

testimonial, courts look to its primary purpose:
          [S]tatements 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.
Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006).

       To decide whether an ongoing emergency exists, courts must conduct “a

highly context-dependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 363, 131 5.

Ct. 1143, 179 L. Ed. 2d 93(2011). Four factors aid courts in conducting this

inquiry: (1) whether the speaker described current or past events (with current

events suggesting the statements are nontestimonial), (2) whether a reasonable

listener would conclude that the speaker faced an ongoing emergency and

needed help, (3) whether the nature of the questions asked and answered were

necessary to resolve an ongoing emergency rather than learn what happened in

the past, and (4) the level of formality of the interrogation (with informality

suggesting the statements are nontestimonial). Koslowski, 166 Wn.2d at 418-1 9.

The State bears the burden of establishing that statements are nontestimonial.

Koslowski, 166 Wn.2d at 417 n.3.

       Wilkes argues that both Blount’s 911 call and her statements to the police

were testimonial because no ongoing emergency existed at the time she made




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No. 77964-8-1/7


them. He contends any emergency was over before Blount made the

statements, because the fight had ended and those involved had separated

themselves from him. We address each set of statements in turn.

         1. 911 Call

        The facts show that Blount’s statements in the 911 call were

nontestimonial because the primary purpose was to obtain help for an ongoing

emergency. Applying the four factors, Blount spoke using the present tense,

saying, “My best friend’s father is beating up her husband.” Even if her

statements were made shortly after Wilkes’s assault on Kelich had ended, our

Supreme Court has noted that a court may consider statements made within

minutes of an assault as contemporaneous with the event described. Ohlson,

162 Wn.2d at 17.

        Second, a reasonable listener would believe that Blount faced an ongoing

emergency. At the beginning of the call, Blount said she needed the police and

an ambulance. See State v. Pugh, 167 Wn.2d 825, 832, 225 P.3d 892 (2009)

(determining that a request for an ambulance in conjunction with statements that

someone had been beaten indicated an ongoing emergency). During her call,

Blount told the operator “we need help. We need help.” After Wilkes walked

outside, she said, “We just need [the police] here now. Like bad.” Blount was

still frantic3 when she spoke to the police who arrived at the scene about


         ~ Our Supreme Court in Koslowski noted that a declarant’s emotional state is relevant
only insofar as it relates to analyzing the four factors applied when deciding whether statements
are testimonial. 166 Wn.2d at 424. Here, Blount’s frantic state indicated a belief of a continuing
emergency and caused the police interrogation to be informal. As such, Blount’s frantic state
shows she was seeking help within the meaning of Confrontation Clause case law.


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 No. 77964-8-1/8


 14 minutes later. These facts show that Blount sought to obtain police

assistance to help resolve an ongoing emergency.

       At the end of the phone call, Blount told the operator that “everything is

fine.” Though this statement may suggest she was alright for the moment, it is

not dispositive of whether an ongoing emergency existed. Instead, it constitutes

but one fact to consider in the overall analysis. Given all the other facts of the

phone call suggesting an ongoing emergency—namely her requests for the

police and an ambulance, her pleas for help, and her frantic conduct vis-à-vis the

police—we still conclude the second factor weighs in favor of her statements

being nontestimonial.

       As to the third factor, the operator’s questions aimed to assist an ongoing

emergency. The questions focused on Wilkes’s identity, whether he was armed,

and the extent of Kelich’s injuries. See Pugh, 167 Wn.2d at 833 (noting an

operator’s questions indicated an ongoing emergency because they asked about

the assailant’s identity and whether he was armed).

       Finally, the interrogation was informal. The parties asked and answered

questions over the phone. Blount made the call while she was standing outside

in the street, the police had not arrived yet, and her environment was not tranquil.

See Davis, 547 U.S. at 827 (providing that a 911 call was informal because the

interrogation occurred over the phone and “in an environment that was not

tranquil”); State v. Reed, 168 Wn. App. 553, 566, 278 P.3d 203 (2012)

(determining that an interrogation was informal because the declarant made the

statements from an unsafe location and outside of police protection).


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 No. 77964-8-119


             Though all four factors suggest that Blount’s statements were

nontestimonial, Wilkes contends no ongoing emergency existed because, Kelich,

Blount, and the children had removed themselves from the house. But in

domestic violence cases, courts assess the presence of an ongoing emergency

based on whether a continuing threat to the victim existed. Reed, 168 Wn. App.

at 567 (citing Bryant, 562 U.S. at 363). Additionally, as a domestic assailant’s

departure from a scene does not necessarily eliminate a potential threat, a mere

separation also does not prove that an emergency has ended. See Reed, 168

Wn. App. at 567. Thus, that Wilkes was not outside with Blount while she made

the 911 call does not render her statements testimonial.4

        A 911 call “is ordinarily not designed primarily to ‘establis[h] or prov[e]’

some past fact, but to describe current circumstances requiring police

assistance.” Davis, 547 U.S. at 827 (changes in original). This general

observation proves true here. We determine the trial court did not err by

admitting Blount’s 911 call.

        2. Statements to Police

        Wilkes next argues that Blount’s statements to the police were testimonial

for the same reasons as the 911 call—i.e., because the individuals had



        ~‘Wilkes likens this case to Koslowski. But that case involved a robbery by unknown
assailants who had left the scene; and nothing indicated that they would return, or that any other
ongoing situation or relationship with the victim existed. 166 Wn.2d at 422. In contrast, here, the
officers believed Wilkes remained at the scene and did not realize he had fled until entering the
home. Even if they had known Wilkes had fled, he may have returned since he lived at the house
where the assault occurred. Additionally, in this domestic violence case, an ongoing relationship
existed between the defendant and the victim existed. Accordingly, the Court’s analysis in
Koslowski does not suggest that Blount’s statements, both in the 911 call and to the police, were
testimonial.


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No. 77964-8-I/IC


separated from Wilkes, there was no present danger and therefore no ongoing

emergency. This issue presents a closer question. Nevertheless, because the

facts indicate that Blount’s primary purpose in speaking to the police was to

resolve an ongoing emergency, we determine that the trial court properly

admitted her statements.

       The record shows that the police arrived at the scene 14 minutes after

Blount called 911. As soon as the officers parked their cars, Blount began

running towards them, waving her arms in the air. Blount seemed “hyperactive,’

“freaked out,” and “excited.” The officers asked Blount what had happened.

While “talking really fast,” Blount made statements of seeing Wilkes hit Kelich.

While Blount spoke to the police, Kelich was sitting on the curb, bleeding from his

head, face, and upper body.

       These circumstances indicate that Blount made her statements not to

prove past facts, but to obtain police assistance in responding to an ongoing

emergency. Blount made her statements shortly after the assault and in an

informal setting. With little prompting, Blount told the officers that she had

witnessed an assault. Kelich sat behind her bleeding from his injuries. The

police initially believed Wilkes was inside the home. The police first to arrive

were concerned for their own safety. On these facts, a reasonable listener would

understand Blount’s statements as an attempt to obtain police assistance to end

an ongoing emergency. Again, that Wilkes was not present when Blount made

the statements does not necessarily make them testimonial. See Reed, 168 Wn.

App. at 567 (citing Bryant, 562 U.S. at 363). Because Blount made her


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 No. 77964-8-Ill I


statements to the police in an attempt to resolve an ongoing emergency, her

statements were nontestimonial and did not implicate the Confrontation Clause.

We conclude the trial court properly admitted them.

    B. Statement of Additional Grounds

       Wilkes filed a Statement of Additional Grounds. In it, he argues that his

counsel performed ineffectively by not calling an expert to counter the State’s

expert testimony that Kelich’s petechia suggested he had been strangled.

Because Wilkes cannot show that this prejudiced him, his claim fails.

       A successful claim of ineffective assistance of counsel requires the

petitioner to show both that their counsel performed deficiently and that the

deficient performance prejudiced them. State v. Salas, 1 Wn. App. 2d 931, 949,

408 P.3d 383 (2018). To establish prejudice, there must be “a reasonable

probability that, but for counsel’s unprofessional errors, the outcome of the

proceedings would have been different.” In re Pers. Restraint of Rice, 118

Wn.2d 876, 889, 828 P.2d 1086 (1992).

       Typically, “the decision whether to call a witness is a matter of legitimate

trial tactics and will not support a claim of ineffective assistance of counsel.”

State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). But “depending

on the nature of the charge and the issues presented, effective assistance of

counsel may require the assistance of expert witnesses to test and evaluate the

evidence against a defendant.” State v. A.N.J., 168 Wn.2d 91, 112, 225 P.3d

956 (2010).




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No. 77964-8-1/12


       Assuming that the failure to call an expert on this iss~ue constituted

deficient performance, Wilkes’s claim fails because he cannot show prejudice. In

his Statement, Wilkes fails to establish that an expert could have testified in his

favor and challenged the State’s expert’s assessment that Kelich had been

strangled. Additionally, the Statement does not address the other bases for the

expert’s opinion that Kelich had been strangled—i.e., Kelich’s statements that he

had been strangled, bruising around his throat, and his throat being sore.

       Moreover, Wilkes admitted to having a fight with Kelich. Wilkes, at 6 feet

and 200 pounds, testified that he punched Kelich, who is 5 feet, 8 inches, and

144 pounds, between eight and eleven times. Kelich’s injuries included a

cheekbone fracture, nose fracture, contusions all over his body, and lacerations

on his face and arms. Because Wilkes claimed he punched Kelich in self-

defense, he would have had to show that he used reasonable force for his

defense to be successful. See State v. Janes, 121 Wn.2d 220, 238-39, 850 P.2d

495 (1993)). Thus, even if an expert witness could provide testimony that

strangulation did not cause Kelich’s petechia, Wilkes has not demonstrated a

reasonable probability that, given the facts of this case, a jury would find that he

used reasonable force. Accordingly, we determine that his ineffective assistance

of counsel claim fails.

   C. Legal Financial Obligations

       Citing State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), Wilkes

argues that the $200 filing fee and $100 DNA fee should be stricken from his

Judgment and Sentence. Ramirez, decided after the trial court imposed the fees


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No. 77964-8-1113


in this case, holds that courts may not impose discretionary costs on an indigent

criminal defendant. 191 Wn.2d at 746. Here, the court recognized Wilkes’s

indigence when it allowed him to pursue his appeal at public expense. The DNA

fee here was discretionary because Washington had previously collected his

DNA as a result of a prior conviction. See Ramirez, 191 Wn.2d at 747. The filing

fee was also discretionary. Ramirez, 191 Wn.2d at 748. The State agrees that

fees should be stricken. We accept the State’s concession.

      Affirmed. Remanded to strike the filing fee and DNA fee.




WE CONCUR:




                    I




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