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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66503-1-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
IRA WASHINGTON,                             )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: May 29, 2012

       Spearman, A.C.J.  --  Ira Washington was convicted of felony violation of a no-

contact order which prohibited Washington from contacting or coming within 500 feet of 

Felicia Kirkland. At trial, a redacted recording of the 911 call that summoned officers to 

the Federal Way home where they found Washington with Kirkland was admitted under 

the excited utterance exception to the hearsay rule. Washington's only argument on 

appeal is that there was no evidence of a startling event and the admission of the tape 

was therefore error. Because the record corroborates the startling event, we reject 

Washington's argument and affirm. 

                                            FACTS

       On November 17, 2006, the superior court entered a domestic violence no-

contact order prohibiting Washington from contacting or coming within 500 feet of 

Kirkland, her school, her workplace, or her residence. This order did not expire until 

November 17, 2011. 

No. 66503-1-I/2

       On February 24, 2010 at 1:46 a.m., a woman called 911 requesting immediate 

assistance at an address in Federal Way. The caller reported a domestic disturbance 

and told the operator that she had been beaten up. Officers Douglas Laird and Steven 

Olson went to the address. When they arrived, Olson recognized a car he had seen 

Washington in earlier that evening. Olson saw Kirkland running out of the house, 

frantically yelling "He's in there. Get him." Olson and Laird found Washington on the 

back deck and took him into custody.

       Olson recognized Kirkland because he had spent several hours fingerprinting 

her one week earlier during an unrelated incident. Additionally, Olson had encountered 

and spoke to Kirkland at an apartment complex several hours before the 911 telephone 

call, on the evening of February 23. During that conversation, Kirkland appeared to 

acknowledge she was the person Olsen had fingerprinted a week earlier. While he was 

talking with Kirkland, Olsen saw Washington sitting inside a car about five to ten feet 

away. 

       The officers arrested Washington. After his arrest, Kirkland became 

uncooperative and neither she nor any of the other people in the house identified 

themselves to the officers or offered a statement.

       The State charged Washington with felony violation of a court order. Pretrial, the 

State moved to admit the 911 tape for the purpose of establishing Kirkland's presence 

at the house. The State argued Kirkland's statements on the tape were admissible as 

excited utterances. Washington opposed the motion, arguing the tape was irrelevant 

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and prejudicial. The court admitted the tape as an excited utterance on the condition 

that the State redact the portion where the caller states that she was beaten up. 

       At trial, Kirkland claimed she was not the person at the house. She testified she 

is often mistaken for Washington's girlfriend, Avalina Fortson. Likewise, Fortson 

testified she was the person at the home with Washington, not Kirkland, although she 

denied calling 911. Fortson also testified she was the person who spoke with a police 

officer at the apartments on the evening of February 23. The State played the redacted 

911 tape at trial. The jury convicted Washington as charged, and he appeals.

                                        DISCUSSION

       On appeal, Washington argues only that it was error to admit the 911 tape 

because there was neither direct nor sufficient corroborating circumstantial evidence of 

a startling event. We disagree with Washington for the reasons described herein, and 

affirm.

       We review a trial court's decision to admit a hearsay statement under the excited 

utterance exception for abuse of discretion. State v. Young, 160 Wn.2d 799, 806, 161 

P.3d 967 (2007). Under ER 803(a)(2) a hearsay statement is admissible as an excited 

utterance if it is a statement "relating to a startling event or condition made while the 

declarant was under the stress of excitement caused by the event or condition."

       Three conditions must be met for a hearsay statement to be admissible under 

this exception: "(1) a startling event or condition must have occurred; (2) the statement 

must have been made while the declarant was still under the stress of startling event; 

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and (3) the statement must relate to the startling event or condition." State v. Hardy, 

133 Wn.2d 701, 714, 946 P.2d 1175 (1997), citing State v. Chapin, 118 Wn.2d 681, 

686, 826 P.2d 194 (1992)). Washington argues that the first condition was not met.

       It is undisputed that there is no direct evidence of the alleged startling event, 

that Kirkland had been threatened and beaten up. The issue is whether there is 

sufficient circumstantial evidence corroborating the alleged event to permit admission 

of Kirkland's statements as excited utterances. In Young, 160 Wn.2d at 806, the 

Washington Supreme Court addressed the question of what quantum of evidence is 

sufficient to corroborate the occurrence of a startling event. The court held that while 

"the bare words of the utterance" alone are insufficient, circumstantial evidence derived 

from the "declarant's behavior and the statement's context" may satisfy the minimum 

necessary to corroborate the occurrence of a startling event. Id. at 809, 812.

       In Young, the declarant, 11 year old K.L., told several adult neighbors that 

Young had molested her, although she later recanted her statement and testified at trial 

that she had lied at the time. Id. at 801-804. The trial court heard pretrial testimony 

regarding K.L.'s behavior, appearance and condition and concluded that this along with 

the fact that she came directly from her own home, across the street, corroborated that 

this was an excited utterance. Id. at 818-819. The supreme court held that the 

admissibility of K.L.'s statements based on this evidence alone would be a "close 

question," but found that additional evidence presented at trial provided "ample 

circumstantial evidence" to independently corroborate that a startling event occurred. 

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No. 66503-1-I/5

Id. at 819.

       Unlike the situation in Young, here, there is no additional trial evidence to 

corroborate the startling event. Thus, we must decide the "close question" of whether 

evidence of Kirkland's behavior at the time the statements were made and the context 

of those statements, is sufficient. We conclude that it is. During the 911 call, Kirkland 

screamed and sounded very agitated and fearful.  She told the operator that she needs 

the police "immediately." In addition, when the police arrived, within nine minutes of the 

call, Kirkland came out of the house, frantic, and blurted out, "He's in there. Get him."

This fearful behavior, along with the statement's context as a 911 call, independently 

corroborates the occurrence of the startling event.  We reject Washington's argument 

on this issue. 

                              Statement of Additional Grounds

       Washington raises a number of issues in his statement of additional grounds, 

none of which have merit. Washington first takes issue with the police officers' failure to 

request identification of the women at the house and ask sufficient questions during 

their investigation. Essentially, Washington contends that the evidence is insufficient to 

establish that the woman in the house was Felicia Kirkland, the protected party in the 

no-contact order at issue in this case. Evidence is sufficient to support a conviction if, 

when viewed in the light most favorable to the State, any rational trier of fact could find 

the essential elements of a crime beyond a reasonable doubt. State v. Thomas, 150 

Wn.2d 821, 874, 83 P.3d 970 (2004). Officer Olson testified at trial that he observed 

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No. 66503-1-I/6

Washington within 500 feet of Kirkland in violation of a valid no contact order. He 

further testified that he recognized Kirkland from his previous contact with her a week 

before and earlier the same day. Although Kirkland and Avalina Fortson disputed the 

officer's identification, this is a credibility issue the resolution of which lies solely within 

the province of the jury and which we will not disturb on appeal. State v. Camarillo, 115 

Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility determinations are for the trier of fact 

and cannot be reviewed on appeal). The evidence was sufficient to support 

Washington's conviction.

       Next, Washington argues that the prosecutor told the jury they could not be 

hung. He offers no citation to the record for this claim, and our reading of the 

prosecutor's closing statement, where she carefully discusses the jury instructions, 

shows that this comment was not made. 

       Finally, Washington claims that all of the jurors expressed the view that they 

already believed that he was guilty during voir dire, and that defense counsel was 

ineffective for accidentally stating that the defendant was guilty in opening argument. 

Washington did not designate for review, however, voir dire or opening statements, and 

as such, we cannot review his arguments. Bulzomi v. Dep't of Labor & Indus., 72 Wn. 

App. 522, 525, 864 P.2d 966 (1994) (insufficient record on appeal precludes review); 

Olmsted v. Mulder, 72 Wn. App. 169, 183, 863 P.2d 1355 (1993) (failure to designate 

relevant portions of the record precludes review).

       Affirmed.

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No. 66503-1-I/7

WE CONCUR:

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