### HEED COURT OF APPEALS 

### DIVISIM IN THE COURT OF APPEALS OF THE STATE OF WASHI1GTON 2015 

### FEB - 3 

### AM 8: 52
STATE OF WASHINGTON,

v. CARL L. WARNER, DIVISION II

Respondent,

Appellant. STATE OF WASHINGTON 1tfL 44722- 3- DEPOT UNPUBLISHED OPINION

BJORGEN, A.C.J. — 

### Carl L.Warner appeals from his conviction following ajurytrial for 

### felonyviolation ofadomestic violence court order, arguing thatthe trial court erred in admitting the recording ofa 911 call placed bythe alleged victim,Jaunette Norvey. Warner also submits a statement ofadditional grounds for review under RAP 10. 10, arguing that he received ineffective assistance ofcounsel. Finding no error, we affirm. FACTS In August 2012, the Lakewood Municipal Court entered a protection order prohibiting 

### Warnerfrom contacting Norveyforfive years. Warnerand Norvey had lived together in a 

### romantic relationship forseveral years andthought ofeach otheras husband and wife. In November 2012, a hospital admitted Norvey fortreatment unrelated to this case. 

### Norvey called 911 from her hospital room early in the afternoon ofNovember 6, and reported that her " husband [had] just beat the shit out of' her. Ex. 2, track 1. 

### Norvey, apparently agitated, began describing Warner's appearance and direction of travel to the 911 operator. Norvey saidthat Warner had come to the hospital to visit her, and she told the operatorthat Warnerwas probably going to Norvey's house. The operatorthen asked if Warner had a key to the house, and Norvey said he did.No. 44722-3- 11



### Moments later, Norvey asserted that Warner did not have a keyto her house and informed the 911 operator that she and Warner had a " restraining order." Ex. 2, track 1. The 

### operator asked how long Warner had been atthe hospital visiting her, and Norvey replied that he had spentthe nightthere. When the operator asked why Warner had been there in violation of 

### the court order, Norvey replied that "theycalled him last night because they found me delirious walking down the street." Ex.2. The operator asked ifNorvey had told the hospital staffabout 

### the court order, and Norvey replied that she had not because she was delirious atthe time. When asked whether she had told staffaboutthe court order after she woke up in the morning, Norvey
answered, " I just woke up.. I woke up to him choking and 

### beating the hell out of me. Ex. 2, track 1. The 911 operatorthen asked to speakto a nurse. Norvey replied that all the nurses were 

### busyandthatshe could not call one. The operatorthen placed acall to the hospital and was connected to the charge nurse for Norvey' s room. In response to the operator' s questions, the 

### nurse reported thatWarnerhad been in the room that day,thatNorvey had allowed him to be there, and that to the best ofthe nurse' s knowledge, Norvey had been awake all day. Lakewood police officer Paul Osness responded to Norvey's hospital room afew minutes 

### later. Osness observedthat Norvey seemed upset, was crying, and had "some blood in her
mouth around her lips." 2 Verbatim Report of Proceedings (VRP) at 143. Norvey told Osness that Warner had arrived atthe hospital the previous night,that the two argued when Norvey awoke, and that Warner then pinned her in a corner ofthe room, held her neck with one hand, and punched her with the other. 

### Lakewood police officer Ryan Moody also responded to the call, and located Warner a few blocks away from the hospital. Moody described Warner as " 

### fully cooperative" and "[ v] ery

2No. 44722 - 3 -II
polite." 

### 2 VRP at 162. Moody arrested Warner and gave him the Miranda' advisements. Warnerwaived his rights and admitted that he had been atthe hospital with Norvey, but claimed that " he thought the [ no- contact] order had been dismissed." 2 VRP at 158. Moody turned Warner over to other officers, who transported Warner back to the hospital. Osness questioned Warner at the hospital, and Warner denied assaulting Norvey. 

### The State charged Warner under RCW 26.50. 110(4) with felony violation ofa court 

### order (protection/other), based on Warner having assaulted Norvey. The defense moved to exclude the 911 recording before trial,arguing that Norvey's statements were hearsay and were not admissible underthe excited utterance exception to the rule against hearsay. After listening 

### to the recording, the court ruled it admissible. The defense also argued that admission ofthe 911 recording would violate Warner's right to confront the witnesses against him,but conceded that this would not apply ifNorvey testified, as she ultimately did. 

### Attrial, Norvey claimed that she had no recollection ofthe events in the hospital because she was heavily medicated and using heroin atthe time. Norvey acknowledged that the caller' s 

### voice in the recording sounded like hers, however, andthe court admitted the recording. The trial court conducted a CrR 3.5 hearing and ruled Warner' s statements to Moody and Osness admissible. The officers testified to facts as set forth above, and the court admitted a certified copy ofthe no-contact order. The defense rested without offering any evidence. 

### Thejury returned a guilty verdict and found by special verdict form that Warner and Norvey were members ofthe same family or household. Warner appeals.

1 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
3No. 44722 - 3 -II ANALYSIS 

### After setting forth the standard ofreview,we address Warner' s contention thatthe trial court erred in admitting the 911 recording. We then turn to Warner' s claim that he received ineffective assistance of counsel. I. STANDARD OF REVIEW 

### We review atrial court's admission ofhearsay underthe excited utterance exception for
abuse of discretion. State v. Ohlson, 162 Wn.2d 1, 7 -8, 168 P. 3d 1273 ( 2007). We will 

### generally not reverse atrial court's decisionto admit evidence under a hearsay exception unless we believe that no reasonablejudge would have made the same ruling. Ohlson, 162 Wn.2d at 8. Atrial court abuses its discretion ifits decision is manifestly unreasonable or based
upon untenable grounds or reasons." State v. Garcia, 179 Wn.2d 828, 846, 318 P. 3d 266 (2014) 

### quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27, superseded by 272 P.3d 851 ( 2012)) internal quotation marks omitted). A court acts on untenable grounds ifthe record does not support its factual findings, and it acts for untenable reasons if it applies an incorrect standard or ifthe facts on which it relied do not satisfy the correct standard. State v. Rundquist, 79 Wn.App. 786, 793, 905 P. 2d 922 ( 1995). Finally,a court's exercise ofdiscretion is "manifestly unreasonable" if it is " outside the range of acceptable choices given the facts and the legal
standard." Rundquist, 79 Wn. App. at 793.

II. THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE Warner contends that the trial court abused its discretion in admitting the recording because "[ t]he record here shows that Ms. Norvey consciously and deliberately fabricated a portion of her statement to the 911 operator, for self - serving reasons," specifically Norvey' s statements indicating that she did not knowthat Warner was in her room priorto the assault and

4No. 44722 - 3 -II had not allowed him in. Br. of Appellant at 5 - 11. 

### Because Norvey had time to reflect and 

### fabricate a portion ofher story,Warner argues, the excited utterance exception does not apply. We disagree. 

### The rule against hearsay provides that a person's assertions, otherthan those made by a witness while testifying in the proceeding at issue, are generally not admissible to prove the truth ofthe matters asserted. ER 801, 802. However, a hearsay statement is admissible ifit qualifies

as an "[ e] xcited [ u]tterance," that is, ifit "relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." ER 803( a)(2). 

### Statements may be admissible underthe excited utterance exception even ifthe declarant is available to testify. Ohlson, 162 Wn.2d at 8. Our Supreme Court has articulated the rationale for the excited utterance exception to the 

### rule against hearsay as follows:

This exception is based on the idea that " under certain external circumstances of 

### physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control ". 6 J. WIGMORE, EVIDENCE § 1747, at 195 [( Chadbourn rev. ed. 1974)]. The utterance of a person in such a state is believed to be " a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock ", rather than an expression based on reflection or self - interest. 6 J. WIGMORE, at 195. State v. Chapin, 118 Wn.2d 681, 686, 826 P. 2d 194 ( 1992). In determining whether the exception applies to a particular statement, then, 

### the key determination is whether the statement was made while the declarant was still under the influence ofthe event to the extent that [the] statement could not be 

### the result offabrication, intervening actions, orthe exercise ofchoice orjudgment. State v. Brown, 127 Wn.2d 749, 758 -59, 903 P. 2d 459 ( 1995) ( internal quotation marks omitted) alteration in the original).

5No. 44722 - 3 -II To have evidence properly admitted underthe excited utterance exception, the proponent
must meet three interrelated requirements: " that ( 1) a startling event or condition occurred, (2) the declarant made the statement while under the stress ofexcitement ofthe startling event or condition, and ( 3) the statement related to the startling event or condition." Ohlson, 162 Wn.2d
at 8. 

### Warner does not argue thatthe record contains insufficient evidence to support a finding 

### that a startling event had occurred, nor does he contestthat Norvey's statements related to that startling event. Warner's challenge instead focuses on the second requirement,which
constitutes the essence of the rule." Chapin, 118 Wn.2d at 687.

The 

### key to the second element is spontaneity[:] ... as the time between the event and the 

### statement lengthens, the opportunity for reflective thought arises and the danger of fabrication increases." Chapin, 118 Wn.2d at 688. Thus, where the evidence establishes that the declarant 

### had the opportunityto, and did in fact,decide to fabricate aportion of" the proffered out - of - court 

### statement,thetrial courtnecessarily errs in admitting itas anexcited utterance. Brown, 127 Wn.2d
at 759; State v. Young, 160 Wn.2d 799, 807, 161 P. 3d 967 (2007). That is,

b] ecause the excited utterance rule is based on the premise that the speaker has no 

### opportunityto make up a lie before makingthe utterance, ifthe speaker in fact did have that opportunity, then by definition the statement cannot be an excited utterance. State v. Briscoeray, 95 Wn.App. 167, 172, 974 P.2d 912 ( 1999). 

### Thatthe declarant said something false, omitted unflattering details, or later recanted, however, does not automatically remove a proffered statement from the scope ofthe excited
utterance exception. See State v. Magers, 164 Wn.2d 174, 188, 189 P. 3d 126 (2008) ( plurality opinion) (

### holding thatthe trial court did not abuse its discretion in admitting statements as
excited utterances even though the declarant 

### initially lied); 

### Young, 160 Wn.2d at 808 (rejecting a bright - line rule that an excited utterance is never admissible once it has been recanted "); State v. 6No. 44722 - 3 - II Woods, 143 Wn.2d 561, 600, 23 P. 3d 1046 (2001) ( holding that the trial court did not abuse its 

### discretion in admitting statements as excited utterances despite apparently self - serving omissions). 

### Under these precedents, whetherthe trial court abused its discretion in admitting the 

### 911 recording depends on (1) whetherthe record clearly establishes that Norvey said something false to the operator and, if so, (

### 2) whetherthe falsehood shows that Norvey consciously fabricated a portion of her statement.

Warner contends that this case is indistinguishable from Brown, 127 Wn.2d 749, in which our Supreme Court reversed a rape conviction because the trial court had erroneously admitted the alleged victim' s 911 call as an excited utterance. In Brown, TG, the alleged victim, told the 911 operator that Brown had abducted her and forced her into his apartment. 127 Wn.2d at 751. She later admitted, however, that she had entered the apartment voluntarily to perform oral sex 

### for money. Brown, 127 Wn.2d at 752. TG testifiedthat, aftertalking the matter overwith her boyfriend, she had conceived the abduction storyto make her accusation more convincing. 

### Because she had initially agreed to perform oral sex for money, TG feared police would not believe that Brown and his codefendants raped her. Brown, 127 Wn.2d at 753. The court concluded that 

### T.G.'stestimonythat she hadthe opportunityto, and did in fact, decide to fabricate aportion ofher story priorto makingthe 911 call renders erroneousthe trial court' s conclusion that the content of her call was admissible as an excited utterance. Brown, 127 Wn.2d at 759. 

### Brown does not resolve the matter, however. In Young, our Supreme Court characterized Brown as follows:

Brown stands for the proposition that when there is undisputed evidence that a 

### declarant fabricated her hearsay statements, the second element of an excited utterance —

that the statement was made under the influence ofa startling event — is not satisfied. 7No. 44722 - 3 -II 

### Young, 160 Wn.2d at 807 ( emphasis added). In Young,the alleged victim later recanted, 

### claiming that she had made up the molestation allegations in orderto get Young out ofher
mother' s house. 160 Wn.2d at 804. The Young court held that, because the State disputed the 

### veracity ofthe recantation,the trial court did not abuse its discretion in admitting the original
accusation as an excited utterance. 

### Young, 160 Wn.2d at 808 -09. 

### Warner points outthat Norveytold the operator that she had been asleep all day and 

### woke up to Warner choking and beating her,while the charge nurse stated thatNorvey had allowed Warnerto be in the room and, as far as she knew, Norvey had been awake that day. From this, Warner argues that "[t]he record here shows that Ms. Norvey consciously and deliberately fabricated a portion ofher statement to the 911 operator, for self - serving reasons." Br. ofAppellant at 9. 

### The State counters that here, as in Young, no undisputed evidence establishes that Norvey 

### said anything false to the operator, and argues that admission ofthe recording thus lay in the discretion ofthe trial court. The State maintains that the charge nurse' s statements do not establish that Norveywas untruthful: 

### Because Ms. Norvey was delirious,at the time she was brought to the hospital, a rational trier of fact could infer that she made statements ... at that time that she did not recall [when] she called 911 the following afternoon. 

### Br. ofResp't at 12. We agree with the State. The charge nurse' s statements do not establish that Norvey lied to the operator about 

### having been asleep until the alleged assault. The nurse merely stated that "as far as [she] knew," Norvey had been awake that day. Ex. 2, track 2. As the recording does not make clearwhat 

### basis the nurse had for her knowledge, it is entirely possible thatthe nurse believed Norvey was awake when in fact she was not. 8No. 44722 - 3 -II 

### As Warner points out,the nurse did saythat Norvey had allowed him to be in the room. This did not necessarily contradict Norvey's statements to the operator, however. In response to the operator's question as to why she allowed Warnerto visit,Norvey did not denythat she had done so, but explained that she had been delirious when Warner arrived.

The apparent inconsistencies on which Warner relies do not amount to the kind ofclear - cut evidence of reflection and fabrication based on which the Brown court found an abuse of discretion. See Brown, 127 Wn.2d at 752 - 53, 759. Even were we to acceptthat Norvey omitted 

### certain important facts for apparently self - serving reasons, itwould not establishthatthetrial court abused its discretion in admitting the recording as an excited utterance. See Woods, 143 Wn.2d at 600. 

### The facts ofthis case fall much closerto those in Young in thatwe have ambiguous 

### evidence suggesting that the declarant may have fabricated aportion ofher statement. Young, 160 Wn.2d at 808 -09. Such matters fall within the discretion ofthe trial court: even where we may have reached a different resolution of a factual question, " we will not substitute our judgment for that of the trial court." 

### Stieneke v. Russi, 145 Wn.App. 544, 566, 190.P.3d 60 2008). Warner fails to showthat the trial court abused its discretion in admitting the recording

as an excited utterance. III. INEFFECTIVE ASSISTANCE OF COUNSEL Warner argues in his statement ofadditional grounds (SAG)that his attorney rendered ineffective assistance ofcounsel. Specifically, Warner contends that defense counsel' s performance was deficient because the attorney did not offer (1) two photographs ofNorvey apparently taken shortly after the alleged assault, (2) recordings ofcalls Norvey placed recanting 

### the allegations in the 911 recording, or (3) testimony oftwo defense investigators who
9No. 44722 - 3 -II 

### apparently interviewed Norvey. Warner also contends that he received ineffective assistance of 

### counsel because (4) his attorney "was greatly incompetent in his cross ofMs. Norvey,failing to
ask any relev[ a] nt questions." SAG at 3. The specific example Warner gives only concerns 

### Norvey' s use " of heroin and other drugs." SAG at 3: These claims are not properly before us. A defendant who raises an ineffective assistance claim "bears the burden ofshowing (1) that his counsel' s performance fell below an objective standard of reasonableness and, if so, ( 2) that counsel' s poor work prejudiced him." State v. A.N. J.,168 Wn.2d 91, 109, 225 P. 3d 956 2010). " There is a strong presumption that defense counsel' s conduct is not deficient," which presumption is rebutted if " no conceivable legitimate tactic explain[s] counsel' s performance." State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004). In analyzing ineffective assistance claims on direct appeal, we may not consider matters outside the record. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 ( 1995). 

### Without knowing the exact contents ofthe recordings,the photographs, orthe testimony 

### ofthe defense investigators, we cannot evaluate whetherthey would have helped Warner's case. Defense counsel may well have had legitimate tactical reasons for not offering the evidence to which Warner refers. Thus, it is impossible to ascertain on the record before us whether the failure to offer this evidence fell below an objective standard of reasonableness or prejudiced Warner. 

### With respect to his allegation that his attorney failed to adequately cross - examine 

### Norvey, Warner' s SAG fails to " inform the court ofthe nature and occurrence ofthe alleged errors," 

### as RAP 10. 10 requires. Regarding the only specific example Warner gives, Norvey's drug use,the record establishes that defense counsel fully explored the issue on cross - examination. Defense counsel also inquired into Norvey' s various recantations.

10No. 44722 - 3 -II The issues raised in Warner' s SAG depend on matters outside the record or are not 

### sufficiently articulated to allow for review. We decline to address them further. CONCLUSION 

### The trial court did not err in admitting the entire 911 recording. The matters raised in Warner's SAG are not adequately presented for review. We thus affirm the trial court in all
respects. 

### A majority ofthe panel having determined thatthis 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.

We concur:

11 

# 1•0: A.C.J.