                                                                                             ILEA
                                                                                     COURT OF APPEALS
                                                                                         DIVISION 11

                                                                                    2013 OCT -8   AM g, 20

                                                                                    STS

                                                                                    BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

STATE OF WASHINGTON,                                               No. 42224 7 II
                                                                             - -


                               Respondent,                         PUBLISHED OPINION


       V.




BRANDON McWILLIAMS,




       BJORGEN, J.Brandon McWilliams appeals his second degree assault convictions and
                  —

sentence. He argues that (1) trial court erred by improperly admitting testimony as prior
                            the

consistent statements under ER 801 and (2) sentencing court erred by ordering forfeiture of
                                         the

property and imposing improper community custody conditions. In his statement of additional

grounds for review, McWilliams also argues that ( )
                                                3 insufficient evidence supports his

convictions, 4) counsel was ineffective because he failed to move for dismissal of the second
             ( his

degree assault charge, and ( ) trial court erred in admitting the 911 tape because it violated
                           5 the

his confrontation   rights. Finding   no   error,we affirm the trial court.
No. 42224 7 II
          - -



                                             FACTS


       On the evening of July 25, 2010, McWilliams was at a social gathering with his

girlfriend, Amber Pacheco Noel,her mother, Kimberly Pacheco, and his friend, Alighwa
                          -

Henderson. The party was at Pacheco's apartment. Around midnight,Pacheco Noel walked
                                                                         -

about two blocks to a nearby convenience store, where McWilliams and Henderson shortly

joined her.

       Outside of the store, Marqise Labee and Lamar Reynald were selling recordings of their

music. Pacheco Noel went inside the convenience store, and Henderson began to follow her.
               -

Apparently mistaking the two men for gang members, McWilliams began.arguing with Labee

and Reynald outside the store. Henderson then came back outside and joined McWilliams's

argument. Labee and Reynald used a racial' epithet toward Henderson and Henderson threw the
first punch. McWilliams then punched Labee in the face, causing him to lose consciousness.

Pacheco Noel ran outside to try to pull McWilliams and Henderson from the fight.
        -

       McWilliams produced a pistol and fired it in Reynald's direction, lacerating Reynald's

neck, shattering the store window, and hitting a store clerk's leg. Another store clerk called 911,

identifying the shooter as a white male.

       Responding to the 911 call,police apprehended Henderson and Pacheco Noel as each
                                                                           -

attempted to run toward Pacheco's apartment. When police initially apprehended Henderson, he

told Deputy Huber that,he did not know what was happening; he merely heard gunshots and ran.




  McWilliams is a Caucasian male; Henderson, Reynald and Labee are African American males.

                                                 2
No. 42224 7 II
          - -



But later that same night, Henderson told Deputy Huber about his involvement in the fistfight

and that McWilliams produced a gun and fired it.

           The State charged McWilliams with two counts of first degree assault, each charged
with   a   firearm enhancement      and   a   gang   motivation aggravator; one count of second degree

assault, also with a gang motivation aggravator; and one count of first degree unlawful

possession     of   a   firearm. The State also charged Henderson with the same crimes.
           In an interview with Detective Nist, Henderson stated only that he had heard shots; he did

not say that McWilliams was the shooter. Henderson did tell Nist,however, that he and

McWilliams had been in the fistfight at the store. About five or six months later, Henderson

entered into an agreement to plead guilty,for which the State would recommend a nine month
                                                                                     -

sentence, plus fines and restitution.

           At trial,Henderson testified and identified McWilliams as the shooter. McWilliams

cross -examined Henderson, asking several questions about his plea agreement. Henderson

admitted that his plea spared him from a possible 25 to 30 year sentence and a " econd strike"
                                                           -                   s

under Washington's three strikes law in exchange for his testimony against McWilliams. 4

Verbatim      Report of Proceedings (VRP)at           558 59.
                                                          -     In addition, Henderson admitted on cross-



2 RCW 9A. 6.
      011(
         1
         3 ).

3 RCW 9. ).
      533( 4A.
         3
         9
4
    RCW 9.
        s).
        535( 4A.
           3)(
           9
5
    RCW 9A. 6.
        a).
        021(
           1)(
           3
6
    RCW 9.1.
        a).
        040(
           1)(
           4
7
    Henderson is not a party to this appeal. His actual plea agreement is not in the record but he
testified to its substance.
                                                            3
No. 42224 7 II
          - -



examination that he lied to officers by telling them that he was not involved in anything and

confirmed both that Labee or Reynald called him "he ` ' word"and that they had directed this
                                                t   N

derogatory term only toward Henderson because McWilliams was white. 4 VRP at 562 64.
                                                                                 -

McWilliams then asked if Henderson had pulled the gun and pointed it at Labee and Reynald

because he was so angry; Henderson denied this. McWilliams asked, You didn't shoot at
                                                                  "

anybody? ...    You   didn't   run   into the   parking   lot... [ try to hide the gun ?" 4 VRP at 564.
                                                              and]

Henderson said he had not done these things.

         After Henderson's testimony, the State asked Detective Nist whether Henderson had told

her about McWilliams's involvement. McWilliams objected, saying that the testimony was

hearsay; the State argued that Nist's testimony was admissible under ER 801(
                                                                        1) as a
                                                                           d)(
                                                                             either

prior consistent statement or for purpose of identification. The trial court admitted Detective

Nist's testimony as a prior consistent statement under ER 801(
                                                          1)( Detective Nist testified
                                                             ii).
                                                             d)(

that Henderson had not told her that McWilliams was the shooter but that his testimony was

consistent with what he had told her regarding McWilliams's involvement in the fight outside the

store.


         The jury found McWilliams not guilty of first degree assault, but guilty of three counts of

second degree assault, with two firearm enhancements. The jury also found McWilliams guilty

of first degree unlawful possession of a firearm. The jury did not find that McWilliams

committed the assaults with the gang motivation aggravating circumstance.

         The sentencing court imposed a 156 month sentence, and ordered McWilliams to
                                            -

cooperate with the Department of Corrections (DOC)and maintain law-
                                                                  abiding behavior. The

court further ordered the forfeiture of unclaimed property seized in his case and community


                                                           0
No.42224 7 II
         - -



custody with crime-
                  related prohibitions " er DOC CCO [community corrections officer] per
                                       p        /

appendix F." s Papers (CP)at 335. Appendix F stated that based on McWilliams's second
           Clerk'

degree assault sentence, the court ordered special conditions " er DOC; CCO."CP at 340.
                                                              p

McWilliams did not move the trial court to return the seized property.

                                             ANALYSIS


         McWilliams argues that the trial court improperly admitted Henderson's statement under

ER 801 and that the sentencing court improperly ordered property forfeiture and community

custody. We disagree.

                                                I. ER 801


         McWilliams argues that the trial court improperly admitted Henderson's statement to

Detective Nist under ER 801 because Henderson made the statement after he had ample time and

reason to fabricate a story blaming McWilliams. Specifically, McWilliams argues that

Henderson made the statement after police arrested Henderson for his involvement and after

Henderson had replied to police inquiry with an admitted fabrication. The State responds that

when McWilliams cross-
                     examined Henderson; he strongly implied that Henderson fabricated his

story to receive the benefits of a plea agreement; therefore, the trial court properly admitted the

testimony. The State is correct.




8
    McWilliams also argues that the State erroneously argued an alternative theory to the trial court
   identification of
of "                    a   person made after   perceiving   the   person" under   ER   1)( In
                                                                                        801(
                                                                                           iii).
                                                                                           d)(
responding, the State argues that the testimony was proper under that portion of the rule. The
trial court, though, did not admit the testimony under the "identification" portion of ER
1)(therefore, we need not consider that argument.
801(
   iii);
   d)(
                                                    5
No. 42224 7 II
          - -



A.     Standard of Review


       We review the trial court's decisions to admit evidence under the abuse of discretion


standard. State v. Thomas, 150 Wn. d 821, 856, 83 P. d 970 (2004),
                                 2                 3             abrogated on other

grounds by Crawford v. Washington, 541 U. .36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004).
                                        S

Thus, we will reverse the trial court's decision only if no reasonable person would have decided

the matter as the trial court did. Thomas, 150 Wn. d at 988.
                                                 2

B.     Prior Consistent Statement


       ER 801(
          1) d)(
               provides that a statement is not hearsay if:

               The declarant testifies at the trial or hearing and is subject to
       cross[ -examination concerning the statement, and the statement is ... ( ii)
                ]
       consistent with the declarant's testimony and is offered to rebut an express or
       implied charge against the declarant of recent fabrication or improper influence or
       motive....


       Cross -examination that merely attempts to point to inconsistencies in the witness's

testimony does not raise an inference of recent fabrication and does not justify admission of prior

consistent statements. State v. Bargas, 52 Wn.App. 700, 702 03,763 P. d 470 (1988).
                                                            -       2

However, if cross-
                 examination raises an inference " hat the witness changed [his] story in
                                                 t

response to an external pressure, then whether that witness gave the same account of the story

prior to the onset of the external pressure becomes highly probative of the veracity of the

witness's story given while testifying."Thomas, 150 Wn. d at 865. Cross -examination
                                                      2

designed to show that the witness has the motive to change his story to receive a plea agreement

triggers ER 801(
            1)( Thomas, 150 Wn. d at 866.
               ii).
               d)(            2

       Here, McWilliams plainly implied that Henderson fabricated his story by asking

Henderson whether his plea agreement allowed him to reduce a potential 25 to 30 year sentence
                                                                                -


                                                 n
No. 42224 7 II
          - -



to less than a year in exchange for testimony against McWilliams. Rebutting an implied charge

of recent fabrication is one of the purposes for which prior consistent statements may be

admitted under ER 801(
                  1)( McWilliams argues that when Henderson made the statements
                     ii).
                     d)(

to Detective Nist,he already had ample time and reason to fabricate a story blaming

McWilliams. Specifically, McWilliams argues that Henderson made the statements after police

arrested Henderson for his involvement and after Henderson had replied to police inquiry with an

admitted fabrication. However, t] mere assertion that motives to lie may have existed at the
                               "[ he

time of the prior statement is insufficient to prevent their admission."State v. Makela, 66 Wn.

App. 164, 173, 831 P. d 1109 (1992).The trial court must decide, as a threshold matter,
                    2                "

whether the proffered motive to lie rises to the level necessary to exclude the prior consistent

statement."Makela, 66 Wn.App. at 173. To do so, the trial court considers whether the witness

made the prior consistent statements when " he witness was unlikely to have foreseen the legal
                                          t

consequences of his or her statements."Makela, 66 Wn. App. at 169.

       Here,the trial court considered that Henderson entered into a plea agreement six months

after he made the challenged statements to Detective Nist. Although Henderson was under arrest

at the time he made the statements, he had not been arraigned or met with his attorney; therefore

Henderson was not weighing a plea agreement at that time. Additionally, although Henderson

had initially told police that he had no idea what was happening he shortly thereafter told

Detective Nist that McWilliams was the shooter. Therefore, the trial court reasonably concluded

that although Henderson had a motive to lie from the time of his first interaction with police, that

generalized motive did not rise to a level requiring exclusion of his prior statement to Detective




                                                  7
No. 42224 7 II
          - -



Nist. We conclude that because the trial court did not make.a decision that no reasonable person

would have made, it did not abuse its discretion. Thomas, 150 Wn. d at 856.
                                                                2

                                               II. SENTENCING


          McWilliams next argues that the sentencing court improperly ordered property forfeiture

and community custody. Specifically, McWilliams argues that ( ) forfeiture condition
                                                            1 the

exceeded statutory authority because it denied him due process and (2) condition written as
                                                                     the

Conditions per DOC; CCO"was an impermissible delegation of the court's statutory sentencing

authority. CP at 335. The State responds that ( )
                                              1 McWilliams has not and does not assert any

possessory interest to the property in his case, 2)
                                                 ( McWilliams's pre-
                                                                   enforcement challenge to

his community custody is not ripe for review, and ( ) sentencing court did not impermissibly
                                                  3 the

delegate authority to the DOC. Although the State's ripeness argument is erroneous, we

otherwise agree with it.

A.        Standard of Review


          An appellant may challenge an illegal or erroneous sentence for the first time on appeal.

State v. Ford, 137 Wn. d 472, 477,973 P. d 452 (1999).
                     2                 2             Although we review the imposition of

crime -
      related prohibitions for abuse of discretion, we review whether the sentencing court had

the statutory authority to impose a sentencing condition de novo. State v. 4rmendariz, 160

Wn. d 106, 110, 156 P. d 201 (2007).
  2                  3

B.        Property Forfeiture

               A]court may refuse to return seized property no longer needed for evidence only if 1)
                                                                                                  (

the defendant is not the rightful owner; 2) property is contraband; or ( ) property is
                                         ( the                         3 the

subject   to   forfeiture pursuant to statute. "'   City of Walla Walla v. 401, 33.164 Wn. App.
                                                                           44,
                                                                           $  3


                                                        E''
No.42224 7 II
         - -



236, 244, 262 P. d 1239 (2011)quoting City of Walla Walla v.401, 33.150 Wn. App. 360,
               3               (                            44,
                                                             $ 3

367, 208 P. d 574 (
          3            CrR
                  2009)).         e)
                                  2. (
                                   3 governs motions for the return of illegally seized

property; it provides that a person aggrieved by an unlawful search and seizure may move the

court for the property's return on the ground that the person is lawfully entitled to its possession.

A defendant may make a motion for return of property " t any time, including after a
                                                     a

determination of guilt."
                       State v. Card, 48 Wn. App. 781, 786, 741 P. d 65 (1987).Our Supreme
                                                                 2

Court has interpreted the rule to require an evidentiary hearing to determine the right to

possession between the State and the defendant. State v. Marks, 114 Wn. d 724, 734 35,790
                                                                      2            -

P. d 138 (1990).
 2

        Because "[ he seizure of property from someone is prima facie evidence of that
                t]

person's"
        property entitlement, the State (or government agency)has the initial burden to show a

possessory right. Walla Walla, 164 Wn.App. at 247. " hereafter,the defendant must come
                                                   T

forward with sufficient facts to convince the court of his right to possession."Marks, 114 Wn. d
                                                                                             2

at 735. If the defendant does not make such a showing, the court must deny the defendant's

motion for return of property. Marks, 114 Wn. d at 735. Although the State has the initial
                                            2

burden, the rule contemplates that the defendant moves for the property's return and that an

evidentiary hearing ensues. Marks, 114 Wn. d at 735 36
                                         2          -




9
    CrR 2. (
        e)
         3 provides:
                A person aggrieved by an unlawful search and seizure may move the court
        for the return of the property on the ground that the property was illegally seized
        and that the person is   lawfully entitled   to   possession thereof.   If the motion is

        granted the property shall be returned. If a motion for return of property is made
        or comes on for hearing after an indictment or information is filed in the court in
        which the motion is pending, it shall be treated as a motion to suppress.
                                                     G
No.42224 7 II
         - -



         McWilliams challenges the lack of process afforded to him regarding property forfeiture.

His judgment and sentence included this printed text:

         Property may have been taken into custody in conjunction with this case.
         Property may be returned to the rightful owner. Any claim for return of such
         property must be made within 90 days. After 90 days, if you do not make a claim,
         property may be disposed of according to law.

CP at 333. This handwritten text followed the printed text:

         Conditions per DOC; CCO
         Law -abiding behavior
         Forfeit all property seized

CP at 333. On appeal, McWilliams correctly notes that the handwritten text requires property

forfeiture without process. But McWilliams failed to move for the return of any seized property
                                                            10
under CrR    3 either during
            e)
            2. (                    or     after his trial.      Further, he failed to object to this language at
                                                                                             11
sentencing.   On   appeal, he   fails to   identify   any   property with any specificity.

         McWilliams limits his argument to whether the trial court had authority to impose the

forfeiture condition as a matter of law. The trial court has authority to order the forfeiture of

lawfully seized property when the defendant is not the rightful owner. Walla Walla, 164 Wn.


10
  Although CrR 2. (
                e) 3 provides that a defendant may move for the return of seized property, it
does not compel raising such a claim. The right against self- incrimination protects a defendant
from asserting     a   property interest, which would implicate him in               a   crime.   City of Seattle v.
Stalsbroten, 138 Wn. d 227, 232, 978 P. d 1059 (1999).
                   2                  2
11
     The record is not clear regarding the property seized by the.State or what claim McWilliams
may have to it. The State asserts:
       N]  early all of the seized property was clearly contraband . . . or subject to
      competing claims. The seized ammunition could not be lawfully returned to
         defendant due to his felony history. Police discovered the remaining property at
         the 7-Eleven store or in the vicinity of Kimberly Pacheco's apartment. A pair of
         white shorts consistent with the shorts worn by the shooter were recovered from
        defendant's person, yet he elected to remain silent about their ownership.
Br. of Resp't at 34 (internal citations omitted).
                                                              10
No. 42224 7 II
          - -



App.244. Unlike the cases McWilliams relies on,he has not, and does not assert any

possessory interest in the property at issue. See State v. Alaway, 64 Wn. App. 796, 797 99,828
                                                                                        -

P. d 591 (1992);
 2             Espinoza v. City ofEverett, 87 Wn. App. 857, 862, 943 P. d 387 (1997)..
                                                                      2             Thus

the trial court did not abuse its discretion when it ordered the forfeiture of property that

defendant never claimed when he had notice and an opportunity to do so.

C.      Community Custody Conditions

        McWilliams also argues that his community custody condition written as "Conditions per

DOC; CCO"was an impermissible delegation of the court's statutory sentencing authority. Br.

of Appellant at 35. We disagree.

        The State argues that McWilliams's challenge to his custody conditions is not yet ripe for

review. Pre -enforcement challenges to community custody conditions are ripe for review when

the issue raised is primarily legal, further factual development is not required, and the challenged

action is final. State v. Sanchez Valencia, 169 Wn. d 782, 786, 239 P. d 1059 (2010).Courts
                                                  2                  3

routinely entertain pre-
                       enforcement challenges to sentencing conditions. See, e. .,
                                                                              g Sanchez

Valencia, 169 Wn. d at 786. Specifically the State argues, The trial court is empowered to
                2                                          "

order eligible offenders to comply with the administrative regulations promulgated by the

department pursuant to its legislatively delegated authority."Br. of Resp't at 27. The State's

argument conflates the issue of whether the law ultimately supports McWilliams's argument

with the issue of whether it is indeed a legal argument based on a final action, requiring no

further factual development.

        McWilliams raises a primarily legal issue, whether the sentencing court improperly

delegated authority to the DOC. Nothing about this statutory question will change between now

                                                   11
No. 42224 7 II
          - -



and the time McWilliams is released from prison, supporting its characterization as a legal

question. Sanchez Valencia, 169 Wn. d at 788. Further, unlike conditions imposing financial
                                  2

obligations or allowing for the search of a person or residence, this statutory question does not

depend on the particular circumstances of the attempted enforcement. Sanchez Valencia, 169

Wn. d at 789 (quoting United States v. Loy, 237 F.d 251, 258 (3d Cir. 2001)).
  2                                              3                         Under Sanchez

Valencia the issue is ripe, and we consider it on the merits.

       Washington sentencing courts are required to impose certain community custody

conditions in specified circumstances"and are authorized to impose others. State v. Bahl, 164

Wn. d 739, 744, 93 P. d 678 (2008).RCW 9. sets out the community custody
  2           1     3                  703
                                        94A.

conditions that are mandatory, waivable, or discretionary.

       While it is the function of the judiciary to determine guilt and impose sentences,
       the execution of the sentence and the application of the various provisions for the
       mitigation of punishment and the reformation of the offender are administrative in
       character and are properly exercised by an administrative body, according to the
       manner prescribed by the Legislature.'

State v. Sansone, 127 Wn.App. 630, 642, 111 P. d 1251 (2005)quoting State v. Mulcare, 189
                                             3               (

Wash. 625, 628, 66 P. d 360 (1937)).
                    2

       Here, the sentencing court properly delegated the specifics of McWilliams's community

custody conditions to the DOC. Unlike the cases McWilliams relies on,he does not challenge a

specific court-
              created condition. See Sanchez Valencia, 169 Wn. d at 794 95 (he court
                                                             2          - t

prohibited Valencia's possession of paraphernalia);
                                                  State v. Zimmer, 146 Wn. App. 405, 413,

190 P. d 121 (2008)the court prohibited Zimmer's possession of a cell phone).Instead,
     3              (

McWilliams challenges whether the sentencing court may ask the DOC to establish additional

conditions based on the community's risk. RCW 9.
                                              a)
                                              704( 4A.authorizes the DOC to
                                                 2)(
                                                 9


                                                 12
No. 42224 7 II
          - -



establish and modify additional conditions.of community custody based upon the risk to

community safety."Further, the court's delegation of the specifics of community custody

conditions to DOC was within DOC's authority set by Sansone. Therefore, the sentencing court

did not impermissibly delegate sentencing authority to the DOC.

                              III. STATEMENT OF ADDITIONAL GROUNDS


A.      Sufficient Evidence


       McWilliams argues that the evidence is insufficient to support his convictions because

Reynald testified that he did not recognize anybody in court and also testified that he had not

seen McWilliams before. McWilliams argues that,therefore, the State's only evidence was

Henderson's testimony, which is insufficient because it is not direct.

        When reviewing a challenge to the sufficiency of the evidence, we consider the evidence

in the light most favorable to the State and determine whether any rational trier of fact could

have found the crime's essential elements beyond a reasonable doubt. State v. Williams, 137

Wn. App. 736, 743, 154 P. d 322 (2007)quoting State v. Green, 94 Wn. d 216, 221, 616 P. d
                        3              (                           2                  2

628 (1980)). draw all reasonable inferences from the evidence in the State's favor and
          We

interpret   the evidence "`
                         most   strongly against the   defendant. "'   State v. Joy, 121 Wn. d 333, 339,
                                                                                           2

851 P. d 654 (1993)quoting State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992)).
     2              (                              2                  2              We

consider both circumstantial and direct evidence as equally reliable, and we defer to the trier of

fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the

evidence. Thomas, 150 Wn. d at 874 75.
                        2          -

        Here, the jury considered Henderson's testimony, surveillance video camera footage, and

the tape of the 911 call identifying the shooter as a white male. Viewing all evidence in the light


                                                  13
No. 42224 7 II
          - -



most favorable to the State, and considering circumstantial evidence as equally reliable as direct

evidence, a rational trier of fact . ould have determined that McWilliams committed second
                                   c

degree assault with firearm enhancements and that he unlawfully possessed a weapon. Thus, the

evidence against McWilliams is sufficient.

B.     Effective Assistance of Counsel


       McWilliams similarly argues that his attorney provided ineffective assistance of counsel

because he failed to move for dismissal of the second degree assault charge despite the

insufficient evidence supporting that crime.

       To prevail on an ineffective assistance of counsel claim, McWilliams must show both

deficient performance and resulting prejudice. State v. McFarland, 127 Wn. d 322, 334 35,899
                                                                         2            -

P. d 1251 (1995).If McWilliams fails to satisfy either part of the test, we need not inquire
 2

further. State v. Hendrickson, 129 Wn. d 61, 78, 917 P. d 563 (1996),
                                     2                2             abrogated on other

grounds by Carey v. Musladin, 549 U. . 70, 127 S. Ct. 649, 166 L.Ed. 2d 482 (2006).
                                   S

McWilliams is prejudiced if it is reasonably probable that, if not for his counsel's deficient

performance, the outcome would have differed. In re Pers. Restraint ofPirtle, 136 Wn. d 467,
                                                                                    2

487, 965 P. d 593 (1998).
          2

       As discussed above, sufficient evidence supports McWilliams's convictions. Further,

because an attorney's performance is not deficient for declining to raise frivolous or groundless

matters, McWilliams's counsel was not deficient. State v. Stevens, 69 Wn. d 906, 908, 421 P. d
                                                                        2                  2

360 ( 966).
    1




                                                 14
No. 42224 7 II
          - -



C.     911 Call


       McWilliams finally argues that the trial court erred in admitting the 911 tape because he

did not have an opportunity to confront the witness against him.

       The confrontation clause provides that: " all criminal prosecutions, the accused shall
                                               In

enjoy the right ... to be confronted with the witnesses against him." S.CONST. amend. VI.
                                                                    U.

The confrontation clause bars the admission of testimonial"hearsay unless the declarant is
                                               "

unavailable to testify and the defendant had a prior opportunity for cross -examination.

Crawford, 541 U. . at 53 54. Statements are nontestimonial when made in the course of police
               S         -

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. State v. Koslowski,

166 Wn. d 409, 418, 209 P. d 479 (2009).To determine whether statements are nontestimonial,
      2                  3

the court considers: (1)
                       whether the speaker was speaking about events requiring police

assistance as they occurred; 2)
                             ( weather a reasonable listener would conclude that the speaker

was facing an ongoing emergency; 3) nature of the information elicited by police; and ( )
                                 ( the                                                4

the formality of the interrogation. Koslowski, 166 Wn. d at 418 19. At McWilliams's trial,the
                                                     2          -

State sought to admit the 911 recording, despite the fact that the store clerk had not appeared to

testify. The State argued that the store clerk made the 911 phone call while the events were

transpiring and while facing an ongoing emergency. The trial court agreed with the State and

admitted the 911 call into evidence.


       The store clerk made the 911 call to inform police of a fistfight. While on the phone, the

store clerk told police that a white person fired a shot, which shattered the store's window and hit

another store clerk in the leg. Thus,the 911 recording captured events as they occurred and


                                                 15
No. 42224 7 II
          - -



where the speaker faced an ongoing emergency. The nature of the questions and the lack of

formality all show that the clerk's statements were made in the course of an ongoing emergency

and were not testimonial in' 1 nature. Koslowski, 166 Wn. d at 418 19. We conclude that the
                           2                            2          -

trial court did not violate McWilliams's right to confrontation by admitting this evidence.

       We affirm the trial court.




                                                  BJOR -iEN, J.
I concur:
        g



   x
W RSWICK, C. .
           J




                                                R
No. 42224 7 II
          - -



         PENOYAR, J. CONCURRENCE) — I concur in the result but write separately to question the
                     (


logic and continuing validity of one of the preconditions to the availability of the prior consistent
statement exception to the hearsay rule. According to the case law, one of the requirements for

an admissible prior consistent statement is that the declarant was unlikely to have foreseen the

legal consequences      of his statement.      This "legal consequences" requirement first appeared in

State v. Murley, 35 Wn. d 233, 212 P. d 801 (1949), subsequent cases have continued to
                      2             2             and

cite it despite its inapt narrowing of the prior consistent statement exception.
         The hearsay rule is founded on the theory "that the many possible sources of inaccuracy
and untrustworthiness which may lie underneath the bare untested assertion of a witness can best

be brought to light and exposed, if they exist, by the test of cross -examination." 5 J. WIGMORE,
Evidence §    1420, at 251 (J.Chadbourn rev. 1974). The hearsay rule will also usually exclude

prior   statements   by witnesses who testify     at trial. 5 J. WIGMORE, Evidence §        1363, at 10. An

exception to this exists when a witness is impeached in cross -examination for bias, interest, or
corruption.    4 J. WIGMORE, Evidence §          1128, at 268 (J. Chadbourn      rev.   1972). A
                                                                                               "      consistent


statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption,
will effectively explain away the force of the impeaching evidence."4 J.WIGMORE, Evidence §
 1128, at 268 (emphasis in original).This prior consistent statement exception to the hearsay rule
allows a witness to have his credibility affirmed after it has been attacked:

          A statement is not hearsay if—
          1)
           Prior Statement by Witness. The declarant testifies at the trial or hearing and is
          subject   to cross   examination   concerning   the statement, and the statement is ... (   ii)
          consistent with the declarant's testimony and is offered to rebut an express or
          implied charge against the declarant of recent fabrication or improper influence or
          motive.




                                                          17
No. 42224 7 II
          - -



ER 801(
   1)( Murley added a third requirement to the exception, that " he prior out ofcourt
      ii).
      d)(                                                      t              - -
statements were made under circumstances minimizing the risk that the witness foresaw the legal

consequences of his statements."35 Wn. d at 238.
                                     2

       In Murley, a nine -yearold sexual assault victim made statements to police, which the
                              -
defense tried to exclude. 35 Wn. d at 234, 236. The court found these statements reliable and
                               2

therefore admissible because the victim was too young to realize the legal consequences of

making them. Murley, 35 Wn. d at 238 39.
                          2          -

       Murley claims to summarize the principles of the prior consistent statement exception.
35 Wn. d at 238. But the cases preceding Murley do not mention foreseeing legal consequences.
     2

Instead, they rely on a broader rule paralleling the language of ER 801(
                                                                    1)( prior
                                                                       ii):
                                                                       d)(                           "`[
consistent statements are admissible] where the testimony is assailed as a fabrication of a recent

date, or a complaint recently made; for there, in order to repel such imputation, proof of the
antecedent declaration of the party may be admitted. "'   State v. Manville, 8 Wash. 523, 525, 36

P. 470 (1894) quoting Ellicott v. Pearl, 35 U. .' 413, 10 Pet. 412, 9 L. Ed. 475 (1836))
              (                              S 412,
holding that evidence of a prior consistent statement was admissible as an exception to
         12
hearsay).




 12
  Murley also cites a law review article surveying various states.'rules on the admissibility of
prior consistent statements. 35 Wn. d at 237. There is no mention in this article of foreseeing
                                   2
legal consequences, but the author synthesizes a rule that a witness may repel accusations of
recent fabrication by proving he made the same statement "at a time when its ultimate effect and
operation arising from a change of circumstances could not be foreseen."Herald A. O' eill, N
Admissibility ofPrevious Consistent Statements By a Witness, 6 Wash. Law Rev. 112, 113
 1931).
                                                18
No. 42224 7 II
          - -



          In the half -
                      century from Manville to Murley, Washington courts recognized a

foreseeable' element to the prior consistent statement test, but this was not limited to legal

consequences. For example, our Supreme Court held that a prior statement was admissible to
restore a witness's credibility if it was made "before the time when its ultimate effect and

operation could be foreseen."
                            Sweazey v. Valley Transport, Inc., Wn. d 324, 335, 107 P. d 567
                                                             6 2                    2
1940).In a negligence suit against a street car company, the court employed similar language
approving the admissibility of a statement given "before its effect and operation could be
foreseen."
         Callihan v. Wash. Water Power Co., Wash. 154, 162, 67 P. 697 (1902).
                                          27

          Despite the lack of precedent for the legal consequences requirement, Murley continues
to be   broadly    cited.   In another sexual assault case the Court of Appeals emphasized the rule

created in Murley, stating that " charge of recent fabrication can be rebutted by the use of prior
                                a
consistent statements only if those statements were made under circumstances indicating that the
witness was unlikely to have foreseen the legal consequences of his or her statements." State v.

Makela, 66 Wn. App. 164, 168 69, 831 P. d 1109 (1992) emphasis added). There, the court
                             -        2               (
admitted the underage victim's testimony of prior allegations because no motive to fabricate
existed when the statements were made. Makela, 66 Wn. App. at 167 68.
                                                                  -

          Murley's language that prior out ofcourt statements must be made "under circumstances
                                           - -
minimizing the risk that the witness foresaw the legal consequences of his statements" was an
acknowledgement of the youth and guilelessness of the victim -declarant. 35 Wn.2d at 238. This
narrow holding should not be unnecessarily extended. There remain many motive based reasons
                                                                              -

to exclude prior statements. Whether a witness foresaw the legal consequences of his statement
 is but   one.    Alternately, if he foresaw the legal consequences of his statement, this does not

                                                    19
No.42224 7 II
         - -



always make his statement unreliable or inadmissible. The correct test to admit prior consistent
statements is whether the statement was made before the motive to fabricate arose. It remains

for the trial court to decide as a threshold matter whether the evidence of a motive rises to the

level needed to exclude a prior consistent statement. Makela, 66 Wn. App. at 173.




                                                       u/    enoyar   J




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