                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                             July 8, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 52852-5-II

                                Respondent,

         v.

 GEORGE FREDERICK JONES,                                       UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J.  A jury convicted George Jones of violating a no-contact order, a felony.

Jones argues that the trial court violated his right to a unanimous jury verdict by failing to issue a

unanimity instruction and it violated his right to confrontation by admitting testimonial statements

from a witness who did not appear at trial. We affirm.

                                              FACTS

       On March 2, 2016, the Lewis County Superior Court issued a no-contact order prohibiting

Jones from contacting VN.

       On September 15, VN visited Jones’s home in Rochester. After arriving, VN and Jones

had an argument. VN called 911 to report a no-contact order violation. Thurston County Deputy

Ryan Hoover responded. Dispatch informed Hoover that, per information provided by VN, he

was being dispatched for a “protection order violation” and looking for VN and Jones. 1 Report

of Proceedings (RP) at 132.
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       Upon his arrival, Hoover made contact with VN, who appeared “[s]omewhat

apprehensive” and “a little bit scared to start to talk” to him. 1 RP at 140. When Hoover inquired

as to Jones’s location, VN stated that “he had probably left to Olympia.” 1 RP at 140. When

Hoover pointed out that Jones’s car was still at his home, and asked what vehicle Jones had taken,

VN “lowered her voice,” “appeared nervous,” and told Hoover “he’s actually under the house

watching us.” 1 RP at 140-41. Deputies found Jones near the home’s crawl space.

       Hoover then spoke with Jones, who admitted to knowing about the no-contact order.

According to Hoover, Jones further stated he and VN had been in the same vehicle earlier that day,

and VN had told him that the no-contact order had been dropped. He had doubts that the order

had been dropped. Jones also told Hoover that he had been under the house when Hoover arrived,

but had panicked when he saw Hoover. Jones also described the situation with VN as he “caused

a little bit of a ruckus and things hit the fan [with VN].” 1 RP at 146.

       The case proceeded to trial. Jones disputed Hoover’s claim that Jones told him he had

ridden in a car with VN earlier that day, and testified that he had not seen VN that day until she

came to his home. When he saw VN on his property, he told her to leave, and she began to yell at

him. He admitted “there was a ruckus back and forth,” and that he did not leave the property

because he believed the police were on the way. 1 RP at 179. Jones also testified that VN followed

him around the house as he attempted to get away from her.

       VN, out of state at the time of trial, did not testify. Through a motion in limine, Jones

sought to exclude all statements made by VN from evidence. The court ruled that certain

statements by VN did not violate the hearsay rule, and admitted her statements as set forth above.

It did not rule if the statements violated the confrontation clause. Hoover testified both as to what

he had been told by the dispatcher and by VN.



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       In its opening statement, the State told the jury the evidence it expected to admit in support

of the no-contact order violation:

       [Hoover] was dispatched to a call arising out of an address in Rochester belonging
       to Mr. Jones. And you’ll hear that [VN] was at the residence and Mr. Jones was at
       the residence. And you’ll hear—and you’ll see the no-contact order that’s—that
       was in place at that time, and you’ll see that Mr. Jones having any contact direct or
       otherwise with [VN] is prohibit[ed] by that order.

1 RP at 129.

       In closing argument, the State focused on Jones’s knowledge that a no-contact order existed

and that he should not have been at his home with VN present. In rebuttal closing, the State briefly

mentioned Jones’s alleged contact with VN earlier that day. The State argued, “Deputy Hoover

said that Mr. Jones said that he’d been with [VN] earlier in the day, when he came home he caused

a ruckus with [VN], that things hit the fan, and he admitted that he panicked when law enforcement

was coming.” 2 RP at 284.

       The jury found Jones guilty of violating a no-contact order. Then, in a bifurcated

proceeding, it found that he had two previous convictions for violations of a no-contact order,

which made the present crime a felony. Jones appeals.

                                            ANALYSIS

I.     UNANIMITY JURY INSTRUCTION

       As an initial matter, Jones did not ask the trial court to provide a unanimity jury instruction

or object to the trial court’s failure to do so. We generally do not review objections to jury

instructions raised for the first time on appeal unless the party claiming the error can prove an

exception to that rule, such as a manifest error affecting a constitutional right. RAP 2.5(a)(3).




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       To show a manifest error affecting a constitutional right under RAP 2.5(a)(3), we utilize a

two-part test: “‘(1) [h]as the party claiming error shown the error is truly of a constitutional

magnitude, and if so, (2) has the party demonstrated that the error is manifest?’” State v. Grott,

195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355

P.3d 253 (2015)).

       The failure to provide a unanimity instruction, if one is required, is a constitutional error.

State v. Locke, 175 Wn. App. 779, 802, 307 P.3d 771 (2013). We review the requirement for a

unanimity instruction de novo. See State v. Furseth, 156 Wn. App. 516, 520, 233 P.3d 902 (2010);

State v. Brown, 159 Wn. App. 1, 14, 248 P.3d 518 (2010).

       Jones argues that the court violated his right to a unanimous verdict by failing to provide

the jury with a unanimity instruction. He argues that a unanimity instruction was required because

the State alleged multiple acts that could have constituted a violation of the order prohibiting his

contact with VN. We disagree with Jones.

       Criminal defendants in Washington have a constitutional right to a unanimous jury verdict.

WASH. CONST. art. I, § 21; State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007). If the State

has presented evidence of multiple acts that could support a conviction on a single charged count,

the jury must unanimously agree on which act constituted the crime. State v. Kitchen, 110 Wn.2d

403, 411, 756 P.2d 105 (1988), abrogated on other grounds, In re Pers. Restraint of Stockwell,

179 Wn.2d 588, 316 P.3d 1007 (2014). If the State does not elect which act it is relying on to

support the charge, the trial court must instruct the jury that all jurors must agree that the State

proved a specific criminal act beyond a reasonable doubt. Kitchen, 110 Wn.2d at 411; see also

State v. Coleman, 159 Wn.2d 509, 511-12, 150 P.3d 1126 (2007). “Multiple acts tend to be shown




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by evidence of acts that occur at different times, in different places, or against different victims.”

Locke, 175 Wn. App. at 802.

       Here, in support of his argument that the State presented evidence of multiple acts, Jones

relies on Hoover’s testimony that Jones had told him that VN had driven Jones in her vehicle

earlier that day, as well as the State’s mention of Jones and VN seeing each other earlier that day

during rebuttal closing argument. However, a review of the record supports the State’s contention

that it relied on a single act. The State consistently focused on VN’s presence at Jones’s home and

that Jones had knowledge of her presence. The State’s opening statement focused solely on VN’s

presence at Jones’s home. The State’s closing argument, prior to rebuttal, focused solely on VN’s

presence at Jones’s home. Hoover did mention that Jones told him that he had also spent time with

VN earlier that day, but the State did not rely on that information.

       Accordingly, we conclude that the State did not present evidence of multiple acts that could

support a conviction on a single charge, and that the trial court did not err by not giving a unanimity

instruction. Because there is no constitutional error, Jones has not shown that he is entitled to

review under RAP 2.5(a)(3).

II.    CONFRONTATION CLAUSE

       Jones argues that the trial court’s admission of multiple statements made by VN to others

violated the confrontation clause when VN did not appear and testify at trial. We disagree.

       The confrontation clause forbids admission of testimonial statements from a witness who

does not appear at trial, unless the witness is unavailable to testify, and the defendant had a prior

opportunity to cross-examine the witness. U.S. CONST. amend VI; WASH. CONST. art. I, § 22;

Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We review

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



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           In the context of statements made to law enforcement, statements are nontestimonial when

the primary purpose of the interaction is to enable police to meet an ongoing emergency. State v.

Koslowski, 166 Wn.2d 409, 418, 209 P.3d 479 (2009) (citing Davis, 547 U.S. at 827). Statements

are testimonial when there is no ongoing emergency, and the primary purpose of the interaction

“is to establish or prove past events potentially relevant to later criminal prosecution.” Koslowski,

166 Wn.2d at 418 (quoting Davis, 547 U.S. at 827).

           In determining if a statement made to law enforcement is testimonial, we consider four

factors.

           (1) Was the speaker speaking about current events as they were actually occurring,
           requiring police assistance, or was he or she describing past events? The amount
           of time that has elapsed (if any) is relevant. (2) Would a “reasonable listener”
           conclude that the speaker was facing an ongoing emergency that required help? A
           plain call for help against a bona fide physical threat is a clear example where a
           reasonable listener would recognize that the speaker was facing such an emergency.
           (3) What was the nature of what was asked and answered? Do the questions and
           answers show, when viewed objectively, that the elicited statements were necessary
           to resolve the present emergency or do they show, instead, what had happened in
           the past? For example, a 911 operator's effort to establish the identity of an
           assailant's name so that officers might know whether they would be encountering a
           violent felon would indicate the elicited statements were nontestimonial. (4) What
           was the level of formality of the interrogation? The greater the formality, the more
           likely the statement was testimonial. For example, was the caller frantic and in an
           environment that was not tranquil or safe?

Koslowski, 166 Wn.2d at 418-19 (footnotes omitted).

           In Koslowski, the victim called 911 to report a robbery. 166 Wn.2d at 414. When the

police arrived, the upset victim began showing the officer ties that had been used on her as

temporary handcuffs and where she had been forced to lay on the floor. She explained what had

happened. Koslowski, 166 Wn.2d at 414. The court determined that the victim’s statements were

testimonial, because the victim was speaking about an incident that had already occurred, was no




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longer in danger or dealing with a present emergency, and there was no evidence that the aggressor

was still in the vicinity. Koslowski, 166 Wn.2d at 422-429.

        Here, Jones challenges two sets of statements, those made by VN to police dispatch, as

relayed to Hoover, and those VN made directly to Hoover.

        A.      VN’s Statements to Police Dispatch, as Relayed to Hoover1

        Hoover testified that, on the date in question, dispatch sent him to Jones’s home for a

“protection order violation,” to look for VN and Jones. 1 RP at 132. Hoover knew that VN had

provided that information to dispatch.

        Applying the first factor, VN described events as they took place and required police

assistance. Applying the second factor, VN, a protected party, was in the presence of the person

violating the protection order. A reasonable person would believe that the presence of someone

in violation of a no-contact order presents a danger to the protected party. Applying the third

factor, Hoover testified that he knew the location of the incident, and that it involved a no-contact

order. He also knew the names of the two people named in the no-contact order. Those statements

are objectively necessary for Hoover to respond to the emergency. Applying the fourth factor, the

record provides little evidence, other than that there was “an argument” and “ruckus” between

Jones and VN. It is reasonably assumed that a protected party being in the presence of a restrained

party is neither tranquil nor safe.

        Accordingly, we conclude that VN’s statements during her 911 call to police dispatch, as

relayed to Hoover, were nontestimonial. Their primary purpose was to enable police to respond

to an ongoing emergency.


1
  As mentioned above, the trial court ruled that these statements were not being offered for the
truth of the matter. The trial court did not instruct the jury as to what purpose it could use the
statements, and the parties did not request such an instruction.


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       B.      VN’s Statements Directly to Hoover

       Jones also challenges the admission of statements VN made directly to Hoover after he had

arrived at Jones’s home. When Hoover asked VN about Jones’s location, VN told him “that he

had probably left to Olympia.” 1 RP at 140. When Hoover pointed to Jones’s car and asked what

vehicle he had left in, VN told Hoover “he’s actually under the house watching us.” 1 RP at 141.

Hoover noted that VN initially appeared “apprehensive” and “seemed a little bit scared to start to

talk to me.” 1 RP at 140. When Hoover asked what vehicle Jones had left in, she “lowered her

voice” and appeared “nervous.” 1 RP at 140-41.

       Applying the first factor, VN described events as they occurred and while the protection

order violation was still happening. She required police assistance. Applying the second factor,

VN was in the presence of a restrained party in a no-contact agreement. She was actively seeking

assistance from police. A reasonable person would believe that the presence of someone in

violation of a no-contact order presents a danger to the protected party. Applying the third factor,

VN replied to a question by Hoover regarding Jones’s present location. The fact that VN’s first

response was an obvious lie, combined with her nervousness and apprehension, only intensified

Hoover’s need to ascertain Jones’s location and resolve the emergency. As to the fourth factor,

the interaction occurred as law enforcement searched for Jones. The environment was neither

tranquil nor safe.

       Accordingly, we conclude VN’s statements to Hoover were nontestimonial. Because the

trial court did not err in admitting VN’s statements, Jones’s confrontation clause argument fails.




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       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                            Melnick, J.

We concur:




       Lee, C.J.




       Glasgow, J.




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