                                                                                         C/>C3
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                                o
STATE OF WASHINGTON,
                                                   No. 72390-1-1
                                                                                 CO
                         Respondent,        ;
                                                   DIVISION ONE
                 v.
                                                                                    S?
                                                   UNPUBLISHED OPINION                    o-


BASHIR ABDIRASHID MOHAMED,

                         Defendant,         ]

MOHAMED A. AHMED,

                         Appellant.                FILED: November 23, 2015


        Trickey, J. — Mohamed Ahmed appeals his judgment and sentence for

his conviction of robbery in the first degree.     He claims that the admission of

statements made by his non-testifying codefendant violated his right to

confrontation.        Because the challenged statements are not testimonial, we

disagree and affirm.

                                         FACTS

        One night in December 2013, Abdirisak Hashi went to Waid's, a bar in

Seattle's Central District.     While at Waid's, Hashi saw Bashir Mohamed and

Mohamed Ahmed.1 Hashi knew Bashir, because Hashi had dated Bashir's sister

for a period of several years.        Hashi recognized Ahmed but did not know his

name.    Over the course of the night, Hashi consumed several drinks.            He

became intoxicated.



1 The court record reflects alternative spellings for the defendants' names, e.g.,
Mohamed Ahmed, Mohamud Ahmed, Bashir Mohamed, and Basher Mohamed. To
avoid confusion, we adopt the following spellings in this opinion: Mohamed Ahmed and
Bashir Mohamed. Further, due to the similarity in names, we refer to Bashir Mohamed
by his first name. We mean no disrespect to the parties.
No. 72390-1-1/2


       Later that night, Hashi left Waid's and went to his car, which was parked

outside.   He got into his car and tried to start the ignition. At that moment,

Ahmed entered Hashi's car, grabbed the keys from Hashi's hand, and threw the

keys to Bashir. Hashi ran over to Bashir and demanded his keys. The men

refused to return Hashi's keys, and Bashir punched Hashi in the mouth. Bashir

and Ahmed then got into Hashi's car and drove away. Two hours later, Tukwila

police found Hashi's severely damaged car.

       Based on these events, the State jointly charged Bashir and Ahmed with

robbery in the first degree. The case proceeded to a joint jury trial, where the

State sought to admit portions of jail telephone calls made by Bashir. Ahmed

argued that Bashir's statements in the telephone calls implicated him, and he
moved to sever his case from Bashir's several times during the trial. The court

denied these requests.          It admitted the telephone calls into evidence but

instructed the jury that the calls were to be used solely against Bashir. Bashir did

not testify at trial. The jury convicted Ahmed as charged.

       Ahmed appeals.

                                      ANALYSIS


       Ahmed argues that the admission of Bashir's out-of-court statements

made during the jail telephone calls violated his right to confrontation under
Bruton v. United States. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968),

because the statements directly implicated him and because Bashir did not

testify.2 We disagree.



2 Br. of Appellant at 1,6-11.
No. 72390-1-1/3


         The Sixth Amendment of the United States Constitution and article I,

section 22 of the Washington Constitution guarantee a criminal defendant the

right to be confronted with the witnesses against him. U.S. Const, amend. VI;

Const, art. I, § 22.    In Bruton. the United States Supreme Court held that a

criminal defendant was deprived of his confrontation rights under the Sixth

Amendment when he was incriminated by a pretrial statement of a codefendant

who did not take the stand at trial. 391 U.S. at 135-36.

         In recent years, however, the United States Supreme Court has clarified

the contours of the confrontation clause.           Beginning with Crawford v.

Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Court

has explained that the confrontation clause applies only to "testimonial"

statements made by an out-of-court declarant. State v. DeLeon. 185 Wn. App.

171,208,341 P.3d 315 (2014).

         Both Washington and federal courts have recognized that because Bruton

is based on the protections afforded by the confrontation clause, "'[l]t is . . .

necessary to view Bruton through the lens of Crawford.'" DeLeon. 185 Wn. App.

at 208 (alterations in original) (quoting United States v. Fiqueroa-Cartagena. 612

F.3d 69, 85 (1st Cir. 2010)). Thus, the Bruton rule similarly applies only to

testimonial statements. Accordingly, the "threshold question" in every case is

whether the challenged statement is testimonial. Figueroa-Cartagena. 612 F.3d

at 85.     If it is not, the confrontation clause has no application.   Figueroa-

Cartagena, 612 F.3d at 85.
No. 72390-1-1/4


       With regard to what constitutes a "testimonial" statement, the Crawford

court indicated that '"statements 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'" are testimonial.   541 U.S. at 52.      The

Crawford court also stated, "An accuser who makes a formal statement to

government officers bears testimony in a sense that a person who makes a

casual remark to an acquaintance does not." 541 U.S. at 51.

       We review de novo alleged violations of the state and federal

confrontation clauses. State v. Jasper. 174 Wn.2d 96, 108, 271 P.3d 876 (2012).

       Here, the court admitted statements made by Bashir to Hashi during jail

telephone calls. Ahmed challenges several of these statements, arguing that

Bashir's references to the "other guy" implicated him.3 In one of these calls,

Bashir stated as follows:

       I will be in jail 20 years if you show up the court. Don't show up at
       the court. . . . I will go [to] trial and it will be dismissed. Of
       (inaudible) of God, I did not take your car. The other guy is in jail.
       He was in jail, but this guy was outside. Uh, uh, the other guy who
       is in jail, he's—he's motherf[***]er. Uh, I can work with you to find
       him and to prove (phonetic) him. Uh, don't come to court otherwise
       I will be in jail 20 years.141

       In another call, Ahmed asserts that Bashir stated, "Tell him the other guy

did it. And he was high and crashed the car."5 It is unclear on this record

whether this statement was also admitted at trial. For purposes of our analysis,

we assume that it was.




3 Br. of Appellant at 4, 5, 8-10.
4 5 Report of Proceedings (RP) at 68.
5 Br. of Appellant at 5.
No. 72390-1-1/5


       We conclude, and Ahmed does not assert otherwise, that Bashir's

remarks were not made under circumstances that would lead an objective

witness to understand that the statements would later be used in               criminal


proceedings. The telephone calls did not involve any active participation by a

government official. In short, Bashir's out-of-court statements are not testimonial,

and their admission at trial did not violate Ahmed's right to confrontation.

       Ahmed relies on State v. Vincent. 131 Wn. App. 147, 120 P.3d 120

(2005), and State v. Fisher. 184 Wn. App. 766, 338 P.3d 897 (2014), review

granted in part. 183 Wn.2d 1024, 355 P.3d 1154 (2015). But neither of those

cases considered whether the challenged statements were testimonial. Thus,

they are not helpful to the threshold inquiry before this court, and we do not

address them any further.

       Given our resolution of this issue, we need not address the State's

argument that the admission of Bashir's statements was harmless beyond a

reasonable doubt.

       We affirm the judgment and sentence.




                                                   ~T>;<^ , O

WE CONCUR:
