IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 77964-8-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION JASON LEE WILKES, Appellant. FILED: August 12, 2019 CHUN, J.

—Jason Wilkes appeals his conviction forsecond degree assault. Attrial, the court admitted statements an unavailable witness made to a 911 operator and to police officers who first arrived atthe scene. On appeal, Wilkes claims the admission ofthese statements violated the Confrontation Clause. He also argues that his trial counsel performed ineffectively byfailing to call an expertwitness and thatthe trial court erred by imposing $300 in legal financial obligations in his Judgment and Sentence. Forthe reasons discussed herein, we affirm Wilkes’s conviction. And we remand to the trial courtto strike the fees. BACKGROUND In the summerof2017, Wilkes lived with his daughter, Cassandra Kelich, his son-in-law, Matthew Kelich,1 and his six-year-old grandson (Cassandra and Kelich’s son).

1 In the remainder ofthis opinion, forclarity, we referto cassandra Kelich by herfirst name and to Matthew Kelich by his last name. We intend no disrespect.No. 77964-8-112
On June 23, 2017, Kelich told his son to sit down and eat his pizza. His
son responded, “Fuckyou.” Kelich lost his temper and started shouting in foul language at his son. From his bedroom, Wilkes heard Kelich shouting. Concerned that Kelich was losing his temper, he wentto the kitchen. Wilkes said that once he entered the kitchen, Kelich turned towards him and raised his fist. Wilkes said he feltthat he needed to defend himself. He pushed Kelich into the cornerofthe kitchen and then punched him in the eye. BecauseWilkes did not believe one punch would incapacitate Kelich, he hit him
seven to ten more times. Kelich contended thatWilkes strangled him, butWilkes denied this. Shayna Blount, a friend of Cassandra’s, was atthe house with her children when the fight began. Blount leftthe house with all the children and called 911. When the operator asked how he could help, Blounttold him, “My bestfriend’s father is beating up her husband and she is not here. Butthere’s three kids. I leftwith the kids and we’re atthe neighbor’s house butwe need the police and probablyan ambulance here.” The operatorthen asked ifthe fight involved anyweapons. Blount said, “[N]o butwe need help. We need help.” Blount stated Kelich was “bleeding out of his face [and] out of his ears.” Blount then answered questions regarding Wilkes’s race, height, build, and age. During the phone call, Wilkes walked out ofthe house. Blounttold him to get back inside because he was scaring the children. Wilkes complied. The operator assured Blountthat officers were on theirway. Blount responded, “We

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just need them here now. Like bad.” Bythe end ofthe call, Blounttold the operator, “Well, we’re with the neighbor nowso everything is fine.” The police arrived 14 minutes after Blount called 911. OfficerJeremy King arrived atthe scene first. To ensure officersafety, Officer King parked down the street and waited foranother officer. Officer Matthew Mishlerarrived shortly thereafter. Blount ran to the police and told them aboutthefight. Believing Wilkes was inside, the police went into the house. ButWilkes had fled outthe back door. The police then used a tracking dog to locate him in the backyard bushes ofa nearby business. The police arrested Wilkes. On July 12, 2017, the State charged Wilkes with second degree assault domestic violence. On November 14, 2017, the State amended the information to add aggravated domesticviolence, accusing Wilkes ofcommitting the assault against a family or household memberand within the sight orsound of minor children. The State could not locate Blountfortrial. Despite herabsence, the State offered into evidence a recording of her 911 call and testimony ofthe statements she made to the police. The State argued thatthe statements did not present a confrontation issue because theywere nontestimonial. The court admitted both statements overthe defense’s objection. Attrial, Officer King testified that he arrived atthe scene and saw Blount standing in the streetwith a neighbor. He also observed Kelich sitting down and bleeding from his head, face, and upper body. Blount began running towards the officer and seemed “hyperactive” and “freaked out.” Officer King asked Blount
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what had happened and “[s]he made statements ofwitnessing the assault. That [Wilkes] had attacked [Kelich] and that she had to intervene to getthe kids out and getthem to safety.” Officer Mishleralso testified to statements Blount made. He too stated that Blount immediately started running towards him and Officer King when they first arrived. He said Blountwas “very excited” and thatshe was “waving her hands” and ‘talking reallyfast.” Officer Mishler asked Blount ifshe had seen what happened and ‘[s]he said she had and had seen the whole thing.” He recounted, “[Blount] said that she was sitting on the back porch smoking a cigarette and she heard ourvictim, [Kelich]

. . . inside screaming at his son and
was swearing at him and then she saw [Wilkes] come into where he was andjust start hitting him.” The State additionally presented experttestimonythat Kelich showed symptoms that he had been strangled, including petechia.2 On November 20, 2017, thejury convicted Wilkes as charged. Thejury also returned special verdicts finding thatWilkes and Kelich were members ofthe
same family or household and thatthe assault involved aggravated domestic violence. The court sentenced Wilkes to 55 months imprisonment on January 1 8, 2018. The court also imposed a $200 criminal filing fee and a $100 DNAfee. Wilkes appeals.

2 Petechia refers to one ofthe minute hemorrhages or purpuric spots thatappearon the skin or mucous and serous membranes orwithin an organ.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1689 (2002). 4No. 77964-8-1/5

ANALYSIS

A. Confrontation Clause Wilkes contends thatthe trial court admitting Blount’s 911 call and her statements to the police violated his rightto confrontation. The State claimsthe court properly admitted the statements because theywere nontestimonial. We agree with the State. We review de novo confrontation clause challenges. State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). Underthe Sixth Amendment ofthe United States Constitution, criminal defendants have the rightto confront the witnesses against them. U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 42, 124 5. Ct. 1354, 158 L. Ed. 2d 177 (2004). Ourstate constitution provides a similar right. CONST. art. I 

### § 22; State v. Hurtado, 173 Wn. App. 592, 595, 294 P.3d 838 (2013). The rightto confrontation “applies to ‘witnesses’ againstthe accused—in otherwords, those who ‘beartestimony.” Crawford, 541 U.S. at 51. Ifa prosecutor seeks to admit testimonial evidence, then the Confrontation Clause requires the declarant’s unavailability and a prior opportunityfor cross-examination bythe defendant. Crawford, 541 U.S. at 68. Nontestimonial evidence does not implicate the Confrontation Clause. Crawford, 541 U.S. at 68. Because, in this case, neither party challenges Blount’s unavailabilityor thatWilkes lacked a prior opportunityto cross-examine her, the admissibility of herstatements turn on whetherthey are testimonial. See State v. Ohlson, 162

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Wn.2d 1, 16, 168 P.3d 1273 (2007). When determining whethera statement is testimonial, courts lookto its primary purpose: [S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose ofthe interrogation isto enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).To decide whether an ongoing emergency exists, courts must conduct “a highly context-dependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 363, 131 5. Ct. 1143, 179 L. Ed. 2d 93(2011). Fourfactors aid courts in conducting this inquiry: (1) whetherthe speakerdescribed current or past events (with current events suggesting the statements are nontestimonial), (2) whethera reasonable listenerwould conclude thatthe speakerfaced an ongoing emergency and needed help, (3) whetherthe nature ofthe questions asked and answered were necessaryto resolve an ongoing emergency ratherthan learn what happened in the past, and (4) the level offormality ofthe interrogation (with informality suggesting the statements are nontestimonial). Koslowski, 166 Wn.2d at418-1 9. The State bears the burden ofestablishing thatstatements are nontestimonial. Koslowski, 166 Wn.2d at417 n.3. Wilkes argues that both Blount’s 911 call and herstatements to the police
were testimonial because no ongoing emergency existed atthe time she made

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them. He contends any emergencywas over before Blount made the statements, because the fight had ended and those involved had separated themselvesfrom him. We address each set ofstatements in turn. 1. 911 Call The facts showthat Blount’s statements in the 911 call were nontestimonial because the primary purpose was to obtain help foran ongoing emergency. Applying the fourfactors, Blount spoke using the presenttense, saying, “My best friend’s father is beating up her husband.” Even if her statements were made shortly afterWilkes’s assault on Kelich had ended, our Supreme Court has noted that a court may considerstatements made within minutes ofan assault as contemporaneous with the event described. Ohlson, 162 Wn.2d at 17. Second, a reasonable listenerwould believe that Blountfaced an ongoing emergency. Atthe beginning ofthe call, Blount said she needed the police and
an ambulance. See State v. Pugh, 167 Wn.2d 825, 832, 225 P.3d 892 (2009) (determining that a requestforan ambulance in conjunction with statements that
someone had been beaten indicated an ongoing emergency). During hercall, Blounttold the operator“we need help. We need help.” AfterWilkes walked outside, she said, “Wejust need [the police] here now. Like bad.” Blountwas still frantic3when she spoke to the police who arrived atthe scene about

~ OurSupreme Court in Koslowski noted thata declarant’s emotional state is relevant only insofaras it relates to analyzing the fourfactors applied when deciding whetherstatements are testimonial. 166 Wn.2d at424. Here, Blount’s frantic state indicated a belief ofa continuing emergency and caused the police interrogation to be informal. As such, Blount’s frantic state shows she was seeking help within the meaning of Confrontation Clause case law. 7No. 77964-8-1/8

14 minutes later. Thesefacts showthat Blount sought to obtain police assistance to help resolve an ongoing emergency. Atthe end ofthe phone call, Blounttold the operatorthat “everything is fine.” Though this statement maysuggest she was alrightforthe moment, it is not dispositive ofwhetheran ongoing emergency existed. Instead, it constitutes but one factto consider in the overall analysis. Given all the otherfacts ofthe phone call suggesting an ongoing emergency—namely her requests forthe police and an ambulance, her pleas for help, and herfrantic conductvis-à-vis the police—we still conclude the second factorweighs in favor of herstatements being nontestimonial. As to the third factor, the operator’s questions aimed to assist an ongoing emergency. The questions focused on Wilkes’s identity, whether he was armed, and the extent of Kelich’s injuries. See Pugh, 167 Wn.2d at 833 (noting an operator’s questions indicated an ongoing emergency because they asked about the assailant’s identity and whether he was armed). Finally, the interrogation was informal. The parties asked and answered questions overthe phone. Blount made the call while she was standing outside in the street, the police had not arrived yet, and herenvironmentwas nottranquil. See Davis, 547 U.S. at 827 (providing that a 911 call was informal because the interrogation occurred overthe phone and “in an environmentthatwas not tranquil”); State v. Reed, 168 Wn. App. 553, 566, 278 P.3d 203 (2012) (determining that an interrogation was informal because the declarant made the statementsfrom an unsafe location and outside of police protection).
8No. 77964-8-119 Though all fourfactors suggestthat Blount’s statements were nontestimonial, Wilkes contends no ongoing emergency existed because, Kelich, Blount, and the children had removed themselvesfrom the house. But in domesticviolence cases, courts assess the presence ofan ongoing emergency based on whethera continuing threatto the victim existed. Reed, 168 Wn. App. at 567 (citing Bryant, 562 U.S. at 363). Additionally, as a domestic assailant’s departure from a scene does not necessarily eliminate a potential threat, a mere separation also does not prove that an emergency has ended. See Reed, 168 Wn. App. at 567. Thus, thatWilkes was not outside with Blountwhile she made the 911 call does not render herstatements testimonial.4 A 911 call “is ordinarily not designed primarilyto ‘establis[h] or prov[e]’
some pastfact, butto describe current circumstances requiring police assistance.” Davis, 547 U.S. at 827 (changes in original). This general observation proves true here. We determine the trial court did not err by admitting Blount’s 911 call. 2. Statements to Police Wilkes next argues that Blount’s statements to the police were testimonial forthe same reasons as the 911 call—i.e., because the individuals had

~‘Wilkes likens this case to Koslowski. Butthatcase involved a robbery by unknown assailants who had leftthe scene; and nothing indicated thattheywould return, orthat any other ongoing situation or relationship with the victim existed. 166 Wn.2d at422. In contrast, here, the officers believed Wilkes remained atthe scene and did not realize he had fled until entering the home. Even ifthey had known Wilkes had fled, he may have returned since he lived atthe house where the assault occurred. Additionally, in this domesticviolence case, an ongoing relationship existed between the defendant and the victim existed. Accordingly, the Court’s analysis in Koslowski does not suggestthat Blount’s statements, both in the 911 call and to the police, were testimonial. 9No. 77964-8-I/IC

separated from Wilkes, there was no present dangerand therefore no ongoing emergency. This issue presents a closerquestion. Nevertheless, because the facts indicate that Blount’s primary purpose in speaking to the police was to resolve an ongoing emergency, we determine thatthe trial court properly admitted herstatements. The record shows thatthe police arrived atthe scene 14 minutes after Blount called 911. As soon as the officers parked theircars, Blount began running towards them, waving herarms in the air. Blount seemed “hyperactive,’ “freaked out,” and “excited.” The officers asked Blountwhat had happened. While “talking reallyfast,” Blount made statements ofseeing Wilkes hit Kelich. While Blount spoke to the police, Kelich was sitting on the curb, bleeding from his head, face, and upper body. These circumstances indicate that Blount made herstatements notto prove pastfacts, butto obtain police assistance in responding to an ongoing emergency. Blount made herstatements shortly afterthe assault and in an informal setting. With little prompting, Blounttold the officers thatshe had witnessed an assault. Kelich sat behind her bleeding from his injuries. The police initially believed Wilkes was inside the home. The police firstto arrive
were concerned fortheir own safety. On these facts, a reasonable listenerwould understand Blount’s statements as an attemptto obtain police assistanceto end
an ongoing emergency. Again, thatWilkes was not presentwhen Blount made the statements does not necessarily make them testimonial. See Reed, 168 Wn. App. at 567 (citing Bryant, 562 U.S. at 363). Because Blount made her
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statements to the police in an attemptto resolve an ongoing emergency, her statements were nontestimonial and did not implicate the Confrontation Clause. We conclude the trial court properly admitted them. B. StatementofAdditional Grounds Wilkes filed a Statement ofAdditional Grounds. In it, he argues that his counsel performed ineffectively by not calling an expertto counterthe State’s experttestimonythat Kelich’s petechia suggested he had been strangled. Because Wilkes cannot showthatthis prejudiced him, his claim fails. Asuccessful claim of ineffective assistance ofcounsel requires the petitionerto show both thattheir counsel performed deficiently and thatthe deficient performance prejudiced them. State v. Salas, 1 Wn. App. 2d 931, 949, 408 P.3d 383 (2018). To establish prejudice, there must be “a reasonable probabilitythat, butforcounsel’s unprofessional errors, the outcome ofthe proceedings would have been different.” In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992). Typically, “the decision whetherto call a witness is a matterof legitimate trial tactics and will not support a claim of ineffective assistance ofcounsel.” State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). But “depending
on the nature ofthe charge and the issues presented, effective assistance of counsel may require the assistance ofexpertwitnesses to test and evaluate the evidence against a defendant.” State v. A.N.J., 168 Wn.2d 91, 112, 225 P.3d 956 (2010).

11No. 77964-8-1/12 Assuming thatthe failure to call an expert on this iss~ue constituted deficient performance, Wilkes’s claim fails because he cannot show prejudice. In his Statement, Wilkes fails to establish that an expert could have testified in his favorand challenged the State’s expert’s assessment that Kelich had been strangled. Additionally, the Statementdoes not address the other bases forthe expert’s opinion that Kelich had been strangled—i.e., Kelich’s statements that he had been strangled, bruising around his throat, and his throat being sore. Moreover, Wilkes admitted to having a fightwith Kelich. Wilkes, at 6 feet and 200 pounds, testified that he punched Kelich, who is 5 feet, 8 inches, and 144 pounds, between eight and eleven times. Kelich’s injuries included a cheekbonefracture, nosefracture, contusions all over his body, and lacerations
on his face and arms. Because Wilkes claimed he punched Kelich in selfdefense, he would have had to showthat he used reasonable forcefor his defense to be successful. See State v. Janes, 121 Wn.2d 220, 238-39, 850 P.2d 495 (1993)). Thus, even ifan expertwitness could provide testimonythat strangulation did not cause Kelich’s petechia, Wilkes has not demonstrated a reasonable probabilitythat, given the facts ofthis case, ajurywould find that he used reasonable force. Accordingly, we determine that his ineffective assistance ofcounsel claim fails. C. Legal Financial Obligations Citing State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), Wilkes argues thatthe $200 filing fee and $100 DNAfee should be stricken from his Judgment and Sentence. Ramirez, decided afterthe trial court imposed the fees
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in this case, holds that courts may not impose discretionarycosts on an indigent criminal defendant. 191 Wn.2d at 746. Here, the court recognized Wilkes’s indigencewhen it allowed him to pursue his appeal at public expense. The DNA fee here was discretionary because Washington had previously collected his DNA as a result ofa priorconviction. See Ramirez, 191 Wn.2d at 747. The filing fee was also discretionary. Ramirez, 191 Wn.2d at 748. The State agrees that fees should be stricken. We acceptthe State’s concession. Affirmed. Remanded to strike the filing fee and DNAfee.

WE CONCUR:



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