IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. WALLACE ROBINSON, JR., Appellant. No. 71929-7- DIVISION ONE

PUBLISHED FILED: August 31, 2015
Cox, J. —Wallace Robinson appeals hisjudgment and sentence following 

### his conviction ofsecond degree robbery. His Sixth Amendment right to 

### confrontation was not violated bythe admission intoevidence of a recorded 911 

### call by a witness to the robbery. And the prosecutordid not commitmisconduct 

### by using the word "we" during closing argumentto argue to the juryinferences to be drawn from the evidence at trial. We affirm. 

### The material facts are largely undisputed. Duringthe early morning hours 

### ofOctober27, 2013, Hector Aguayo stood nearthe entrance of Pike Place Market indowntown Seattle. He was talking to a friend on his white iPhone. 

### Aguayo called his friend to get a ride to West Seattle, where he hoped to join otherfriends with whom he had spentthe earlier part ofthat night.No. 71929-7-1/2 While Aguayo was talking on his phone, Robinson approached and started talking to him. Aguayo avoided speaking with Robinson and remained on his phone with his friend. Robinson became increasingly aggressive and agitated, according to Aguayo's testimony attrial. Aguayo began moving away from Robinson, while remaining on the phone. Robinson followed. As Aguayo moved through a breezeway offSecond Avenue, Robinson hitAguayo inthe face. The two struggled. According to 

### Aguayo's testimony at trial, Robinson had his hand on Aguayo's phone during most ofthe struggle. Aguayo testified that Robinson struck him a second time in the breezeway. Shortly afterthis struggle ended, Robinson fled. 

### Aguayo chased after Robinson, demanding that Robinson return his 

### phone. The two exchanged words during the chase. Aguayo testified at trial that during the chase, Robinson faced him and showed himthe iPhone. Aguayo 

### recognized the phone as his by its distinctive case and stickeron the phone's 

### "home button." Duringthese events, Aguayo continued to demand the return of his phone and yell for help. 

### During this incident, a 911 caller, who identified himselfas Leslie Caldwell, witnessed these events and reported them, as they developed, to authorities. 

### Caldwell was a concierge at a condominium complex nearthe breezeway where Robinson struck Aguayo. Police responded to the reported robbery and spotted a man fitting Robinson's descriptionjust north ofSpring Street and Second Avenue. AguayoNo. 71929-7-1/3

was stillchasing Robinson when the police arrived. The officers arrested Robinson. The State charged Robinson with second degree robbery and second degree attempted robbery. Before trial, Robinson moved to suppress the 911 recording ofCaldwell's call. The State was unable to locate Caldwell to testify at trial. Accordingly, the State claimed the 911 call was a present sense impression, not excludable as hearsay. Robinson claimed that admitting the call would violate his Sixth Amendment right to confront Caldwell. The court denied the motion, ruling that the call was not testimonial and was also a present sense 

### impression.1 At trial, the court admitted the 911 recording into evidence. Robinson did 

### not testify and did notdispute that he assaulted Aguayo. In closing, his counsel 

### argued to the jury that Robinson did not take Aguayo's white iPhone, but that it
was swatted away and fell to the ground during their struggle inthe breezeway. Counsel based this argument on alleged inconsistencies inAguayo's testimony 

### at trial. Accordingly, counsel urged thejury to not convict Robinson ofeither robbery or attempted robbery. 

### The jury found Robinson guilty ofsecond degree robbery. The court entered itsjudgmentand sentence on thejury verdict. Robinson appeals.

1 ER 803(a)(1).No. 71929-7-1/4
CONFRONTATION CLAUSE Robinson argues that the admission of Caldwell's 911 recording violated the Sixth Amendment's confrontation clause. We hold that Caldwell's statements during the call were not testimonial under the circumstances ofthis case and did not violate Robinson's right to confrontation. Underthe Sixth Amendment, "In all criminal prosecutions, the accused 

### shall enjoy the right... to be confronted withthe witnesses against him."2 We 

### review de novo confrontation clause challenges.3 InCrawford v.Washington, the United States Supreme Court held thatthis provision prohibits the "admission of testimonial statements of a witness who d[oes] not appear attrial unless he [is] unavailable to testify, and the defendant had [] a prior opportunity for crossexamination."4 Inthat case, Michael Crawford was prosecuted for stabbing a man who 

### allegedly attempted to rape hiswife, Sylvia.5 She witnessed the stabbing.6 On the night ofthe stabbing, police took Sylvia intocustody, informed her that she 

### was a potentialsuspect, and interrogated her about the incident.7 Forpurposes

2 U.S. Const, amend. VI. 3State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). 4541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 5Id, at 38. 6 IdL at 38-39. 7 Id. at 65.No. 71929-7-1/5 

### oftrial, she was unavailable because ofspousal privilege.8 Thus, the State introduced her recorded statementto police during interrogation to disprove her 

### husband's claimthat he acted inself-defense.9 Thejuryconvicted him, and the state supreme court affirmed.10 The United States Supreme Court reversed.11 While itdeclined to spell out a comprehensive definition of "testimonial," the Court stated that at minimum itincludes "priortestimony at a preliminary hearing, before a grandjury, or at a 

### formertrial; and [] police interrogations."12 Because SylviaCrawford's recorded statementwas testimonial and Michael Crawford had no opportunity to cross

### examine her, introducing the statementviolated hisSixth Amendmentright.13 The United States Supreme Court considered further what statements are testimonial in the consolidated cases of Davis v. Washington14 and Hammon v. Indiana.15 Both ofthese cases involved domestic violence.

8 Id at 40. 9ld 10 id, at 41. 11 Id at 69. 12 Id at 68. 13jd 14 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) 15 829 N.E.2d 444 (Ind. 2005).No. 71929-7-1/6 

### In Davis, Michelle McCottrymade statements to a 911 operatorduring a 

### domestic disturbancewith Adrian Davis, her formerboyfriend.16 She reported, 

### "He's herejumpin' on me again," and "[hje's usin' hisfists."17 The operator asked for his name, which McCottryprovided.18 McCottry also responded that Davis
was "runnin' now."19 She did not appear at trial, and the trial court admitted the 

### 911 recording of her conversationwith the operator.20 In Hammon, police responded to a domestic disturbance call at the 

### residence ofAmy and Hershel Hammon.21 They foundAmy Hammon on the 

### front porch, appearing "'somewhatfrightened.'"22 She told them "'nothing was the matter.'"23 After obtaining her permission, police entered the house, 

### encountering Hershel Hammon.24 They kept the parties separated while interviewing them both.25

16 Davis, 547 U.S. at 817. 17 Id 18id at 818. 

### 19 id 20 Id at 819. 21 id 22 Id. 

### 23 Id (quoting Hammon, 829 N.E.2d at 446). 

### 24 Id (quoting Hammon, 829 N.E.2d at 447.) 25 Id. at 819-20.No. 71929-7-1/7 Amy Hammon completed a written battery affidavit, detailing Hershel Hammon's assaults on her and her daughter prior to police arriving on the 

### scene.26 Because she did not appear at his trial, police who interviewed her 

### testified to her statements and authenticated her battery affidavit.27 The trial court admitted this evidence, and his conviction followed.28 The Indiana 

### Supreme Court affirmed.29 The United States Supreme Court affirmed the conviction in Davis and 

### reversed that in Hammon.30 In its analysis, the Court expanded upon the meaning of "testimonial" discussed in Crawford and discussed the meaning of an ongoing emergency.31 In doing so, the Court adopted the "primary purpose" testto determine whether a statement is testimonial.32 Under this test: Statements are nontestimonial when made inthe course of police 

### interrogation undercircumstances objectively indicating that the primary purpose ofthe interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate thatthere is no such ongoing 

### emergency, and thatthe primary purpose of the interrogation is to

26 Id at 820. 27 Id at 820-21. 28 Id 29 id at 821. 30 id at 834. 31 id at 822. 32 Id.No. 71929-7-1/8 

### establish or prove pastevents potentially relevantto later criminal prosecution.[33] 

### Applying this testto the statements in Davis, the Court decided they were 

### nontestimonial.34 In reaching its conclusion, the Courtdistinguished them from those in Crawford. One distinguishing factorwas thatthe victim's statements in Davis were "aboutevents as they were actually happening, ratherthan 

### 'describing] past events.'"35 Moreover,there was an ongoing emergency, and 

### the statements were necessary to resolve thatemergency.36 Finally, the
statements were not formal.37 

### On the other hand, itwas quite clear in Hammon thatthe police 

### interrogation "was part ofaninvestigation into possibly criminal pastconduct."38 There was no emergency at the time of the interrogation.39 And Amy Hammon's interrogation was sufficientlyformal, although done at her house rather than at

33 id 34 Id. at 828. 

### 35id at 827 (alteration inoriginal) (quotingLilly v.Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)). 36 id 37 id 38 id at 829. 39 Id. at 829-30.
8No. 71929-7-1/9 

### the police station.40 Thus, the statements were not a cry for help to enable authorities to end a threatening situation.41 The Supreme Courtfurther developed itsjurisprudence on testimonial 

### statements and ongoing emergencies in Michigan v. Bryant.42 There, the trial court admitted Anthony Covington's statements "made to police officers who 

### discovered himmortally wounded in a gas station parkinglot."43 A jury convicted Richard Bryant ofsecond degree murderofCovington.44 The primaryissue in his appeal was whether admitting Covington's statements into evidence violated 

### his SixthAmendment right to confrontation.45 The Supreme Court of Michigan held the admission ofCovington's statements violated the confrontation clause.46 The United States Supreme Court vacated thejudgmentand remanded.47 In its analysis, the Court stated the primary purpose of a statement alleged to be 

### testimonial is determined by "objectivelyevaluating the statements and actions of the parties to the encounter, in light ofthe circumstances in which the

40 ]d at 830. 41 id at 832. 42 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). 

### 43 id at 348. 44 id 45 id 46 id 47 Id. at 349.No. 71929-7-1/10 

### interrogation occurs."48 Whetheran "ongoing emergency" exists at the time of the statements "is among the most important circumstances informing the 

### 'primarypurpose' of an interrogation."49 This isbecause "statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subjectthem to the requirement of 

### confrontation."50 "'[T]henature of what was asked and answered'" helps determine whether statements were elicited "'to be able to resolve the present 

### emergency'" or to establish "'whathad happened in the past.'"51 Because the primary purpose ofthe statements in Bryantwas to meet an 

### ongoing emergency, the Courtdetermined thatthe statements were nontestimonial.52 

### Recently, the Supreme Court added to this line ofcase law with Ohio v. Clark.53 That case involved statements made by Darius Clark's girlfriend's son, LP.54

48 id at 370. 49 id. at 361. 50Jd at 370. 51 ]d at 367 (alteration in original) (quoting Davis 547 U.S. at 827). 52 id at 377-78. 

### 53 U.S. , 135 S. Ct. 2173 (2015). 54 id at 2177.
10No. 71929-7-1/11 After Clark took L.P. to preschool, one of his teachers noticed injuries on 

### him.55 The teacher asked L.P. what happened, and he stated that he fell.56 The teacher then took him to the lead teacher, who asked L.P., "'Who did this? What 

### happened to you?'"57 L.P. responded that it had been "Dee," which was Clark's nickname.58 Afterdiscovering more injuries on L.P., the teachers and their 

### supervisorreported suspected childabuse to authorities.59 At trial,the State introduced L.P.'s statements, but he did nottestify.60 Clark argued thatthe Confrontation Clause prohibited introducing L.P.'s statements.61 The Supreme Court held that L.P.'s statements "were not made 

### with the primary purpose of creating evidence for Clark'sprosecution."62 Instead, the primary purpose ofL.P.'s teachers' conversations with himwas to protect him fromfurther abuse.63 Thus, the statements were not testimonial.64

55 id at 2178. 

### 56 id 

### 57 ]d (quoting State v. Clark, 137 Ohio St. 3d 346, 348, 999 N.E.2d 592 (2013)). 58 id 

### 59 id 60 id 61 id 62idat2181. 63 id 64 Id.
11No. 71929-7-1/12 Our analysis is further informed by our state supreme court. InState v. Koslowski, the court looked to Crawford, Davis, and Hammon to determine 

### whetherthere was a violation of the SixthAmendment right to confrontation.65 At the time ofthe Koslowski decision, the United States Supreme Court had not yet decided Bryant or Clark. Comparing the circumstances in Crawford with those in Davis, our state supreme court adopted a four factor test to determine whetherthe primary purpose ofpolice interrogation is to enable assistance to meet an ongoing
emergency: (1) Was the speaker speaking about current events as they were actually occurring, requiring police assistance, or was he or she describing pastevents? The amount oftime that has elapsed (if any) is relevant. (2) Would a "reasonable listener" conclude thatthe speakerwas facing an ongoing emergency that required help? A plain call for help against a bona fide physical threat is a clearexample where a reasonable listenerwould recognize thatthe speakerwas facing such an emergency. (3) Whatwas the nature ofwhatwas asked and answered? Dothe questions and answers show, when viewed objectively, thatthe elicited statements were necessary to resolve the present 

### emergency or do they show, instead, what had happened inthe past? For example, a 911 operator's effort to establish the identity of an assailant's name so that officers might know whetherthey 

### would be encountering a violent felon would indicate the elicited statements were nontestimonial. (4) What was the level offormality ofthe interrogation? The greater the formality, the more likelythe statementwas testimonial. For example, was the callerfrantic and in an environmentthat was not 

### tranquil or safe?[66]
65 Koslowski, 166 Wn.2d at 417-19. 66 id at 418-19. 12No. 71929-7-1/13
Here, there is no dispute that Caldwell was "speaking about current events 

### as they were actually occurring," as the test's first factor requires. It is also undisputed thatthe unfolding events surrounding the robbery required police assistance. And, as Robinson correctly concedes, these statements were 

### present sense impressions ofthe speaker, admissible as an exception to hearsay. 

### The 911 call recording bears out these observations. The exchanges between the 911 operator and Caldwell state: THE OPERATOR: 911. What are you reporting? 

### [CALDWELL]: Yes, hi. I'm here at 1521 Second Avenue. I'm the concierge, and I'm witnessing an assault. Some—a black guy just assaulted a guy—I guess he's incostume. THE OPERATOR: In front? 

### [CALDWELL]: He's beating him up and stealing his phone right

now. THE OPERATOR: Infront? I'm asking the location, sir. [CALDWELL]: 1521. 

### THE OPERATOR: Okay. Radio, this an assault, perhaps a robbery 

### being witnessed by the concierge at 1521 Second Avenue. He says in front he witnessed a black male hitting, beating up on a 

### Hispanic or white male. It lookedlike he might have been stealing his phone. THE DISPATCHER: Are they stillthere? 

### [CALDWELL]: They have nowgone to Second Avenue. You can still hearthem screaming. The guy is still asking
... for his phone.

13No. 71929-7-1/14 [CALDWELL]: (Indecipherable) and Pike. They're now on Pike. And now the guy is running afterthe other guy for it. He's really— 

### he is not going to lethim get away with his phone.[67] Throughoutthe call, Caldwell continued to describe events as they developed. We turn to the second Koslowski factor: whether a "reasonable listener" would conclude thatthe speakerwas facing an ongoing emergency that required 

### help. There is littledoubtthatwhat Caldwell witnessed and reported to the 911 operatorwas an ongoing emergency. Caldwell reported Robinson assaulting 

### Aguayo inthe breezeway. Aguayo was insomeform ofcostume, and Caldwell reported that Robinson was "beating [Aguayo] up and stealing his phone right now."68 

### Thatthis emergency was ongoing is also clear. Caldwell reported that 

### Aguayo was "literallychasing [Robinson] down the street."69 He further stated 

### "[Aguayo] was—hewas not—going togive upwithout afight."70 Having hit Aguayo at least once in the breezeway, itwas unclear whether Robinsonwould hit himagain, as Aguayo followed, yelling for help. 

### The question iswhetherthis second factor requires thatthe caller ("speaker") be the victim. We think not.

67 Report ofProceedings (April 10, 2014) at 210-12. 68 id at 211. 69 id at 214. 70 id at 215.

14No. 71929-7-1/15 

### Aclose reading of Koslowski makes clearthatthe supreme court primarily had in mind challenged statements by victims. Those were the facts inthat 

### case.71 And the court's analysis primarilyfocused on Davis and Hammon, which
were both domestic violence cases.72 Butthe court was neither called upon to decide, nor did it rule on, whether statements by otherwitnesses who report 

### ongoing emergencies to police are eithertestimonial or nontestimonial. Robinson argues that Caldwell's statements were testimonial because 

### Caldwell did not personally "face an ongoing emergency or require help." We are not persuaded that this is correct. 

### First, in Crawford, Sylvia Crawford was a witness to her husband's violent 

### act against another, not a victim of that violence. The UnitedStates Supreme Court would have had no reason in that case to examine whether her statements 

### to police were testimonial ifthe fact that she neither faced an ongoing emergency nor required help were constitutionally determinative. 

### Second, we can easily envision a scenario where a child calls a 911 

### operatorto report an ongoing emergency ofdomestic violence that she is witnessing. In such a case, we seriously doubt that our state supreme court would hold thatthe fact the child was not personally indangerwould be constitutionally significant. 

### Forthese reasons, we reject Robinson's reading of Koslowski.

71 Koslowski, 166 Wn.2d at 412-13. 72 Id. at 418-421.
15No. 71929-7-1/16 Turning to the third factor, we conclude thatthe exchanges between Caldwell and the 911 operator, viewed objectively, show the statements were necessary to resolve a present ongoing emergency. Caldwell was reporting an ongoing assault—he stated that "[Robinson]'s beating him up and stealing his 

### phone rightnow."73 Later he stated "[y]ou can still hearthem screaming."74 And the operator's questions focused on determining the location ofthe altercation, 

### and obtaining descriptions of the participants—information necessary for police to provide assistance. 

### Robinson argues that Caldwell reported no dangerto public safety. He 

### argues that under Bryant "there must be an ongoing threatto the speaker, the 

### police, or the public." Forthe reasons we just discussed, the record shows there
was an ongoing emergency during the exchanges between Aguayo and Robinson until police arrived and arrested Robinson. 

### Additionally, the interview in this case was informal. Caldwell was not 

### "responding calmly, at the station house, to a series ofquestions, with the officerinterrogator taping and making notes."75 Instead, he was describing events as they happened overthe phone to a 911 operator. Forthese reasons, we conclude thatthe statements in the 911 call were
not testimonial.



### 73 Report ofProceedings (April 10, 2014) at 211 (emphasis added). 74 id at 212. 75 See Davis, 547 U.S. at 827.
16No. 71929-7-1/17
PROSECUTORIAL MISCONDUCT Robinson next argues that the prosecutor committed misconduct during closing argument. We hold thatthere was no misconduct underthe circumstances ofthis case. 

### To prevail on a claim ofprosecutorial misconduct, the defendant must 

### establish that the prosecutor's conductwas both improper and prejudicial.76 A 

### prosecutor commits misconduct by vouching for a witness's credibility.77 "Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to 

### the jurysupports the witness's testimony."78 "In closing argument, a prosecutoris afforded wide latitude to draw and 

### express reasonable inferences from the evidence."79 This court reviews a trial court's decision on alleged prosecutorial 

### misconductfor abuse of discretion.80 We review alleged prosecutorial misconduct in "the context ofthe total argument, the issues inthe case, the 

### evidence [addressed in theargument], and the instructions given to thejury."81 Here, the prosecutordid not commit misconduct.
76 State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). 77 State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 (2010). 78 id 79 State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012). 80 State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). 81 Emery, 174 Wn.2d at 764 n.14.
17No. 71929-7-1/18 Robinson objected to two ofthe prosecutor's statements. First, the prosecutor stated "But whatwe do know from Mr. Aguayo's testimony—and Mr. 

### Aguayo has no reason to lieaboutthis. He has no reason."82 Atthat point, Robinson objected, and the court overruled the objection. The prosecutorthen continued: Mr.Aguayo has no motive to fabricate what he told you he saw Mr. Robinson do atthe Starbucks, which was remove his phone. And it wasn't Mr. Robinson's phone as [Robinson's counsel] would have you speculate. Itwas his phone. He said Irecognized it, because ithad that special detail on the button. And then placed that cover on the—on the table. Mr.Aguayo had no motive to fabricate that;83! Robinson then objected again, and his objection was overruled. The prosecutor's statements were not impermissible vouching. As stated earlier, vouching can occur in two ways: "[T]he prosecution may place the 

### prestige ofthe government behind the witness or may indicate that information 

### notpresented to the jurysupports the witness's testimony."84 Here, neither occurred. 

### Nothing inthe prosecutor's comments suggestthat he had a special
source ofknowledge. Instead, his statements were argumentthatthe evidence presented attrial demonstrated Aguayo had no motive to lie. The prosecutor 

### stated, "Mr. Aguayo then continued to pursue Mr. Robinson. He had no motive

82 Report ofProceedings (April 14, 2014) at 289. 83 id at 290. 84 Coleman, 155 Wn. App. at 957.
18No. 71929-7-1/19
to pursue Mr. Robinson ifthe cell phone wasn'tthe focus ofMr. Robinson's 

### intent."85 Thus, the prosecutorwas simply drawing inferences from the evidence at trial, not implyingknowledge offacts outside the evidence. The prosecutor also did not "place the prestige ofthe government behind the witness."86 Nothing inthe prosecutor's statements personally endorsed Aguayo as a witness. 

### Thus, the trial court properly overruled Robinson's objections to the prosecutor's statements. 

### Robinson argues that the prosecutor's use of "weknow" was vouching for the witness and an attemptto align the juryagainst Robinson. Robinson cites


### cases fromotherjurisdictions to argue that use of "weknow" is improper. But the
cases Robinson cites do not supportthe proposition that use of "we know" is always misconduct, orthat itwas misconduct in this case. In United States v. Younger, the court stated that prosecutors should 

### avoid using the phrase "weknow" because it "readily blurs the line between 

### impropervouching and legitimate summary."87 Butthe court held that the prosecutors' statements in that case were not improperbecause "the prosecutors used the phrase 'we know' to marshal evidence actually admitted attrial and reasonable inferences from that evidence, not to vouch for witness veracity or



### 85 Report ofProceedings (April 14, 2014) at 290. 86 See Coleman, 155 Wn. App. at 957. 87 398 F.3d 1179, 1191 (9th Cir. 2005).
19No. 71929-7-1/20 

### suggestthat evidence not produced would support a witness's statements."88 In this case, the prosecutor also used "we know" to draw reasonable inferences from the evidence, not for any improper purpose. Similarly, in United States v. Bentlev, the court stated that it is misconduct for the prosecutorto use "we know" "when itsuggests that the government has special knowledge ofevidence not presented to thejury, carries an implied 

### guarantee oftruthfulness, orexpresses a personal opinion about credibility."89 But inthis case, "we know" did not imply special knowledge or express a personal opinion. In State v. Mavhorn, the court stated that "a prosecutor is not a member of 

### thejury, so to use 'we' and 'us' is inappropriate and may be an effort to appeal to 

### the jury's passions."90 But in that case, the courtwas "concern[ed] that there may have been instances in th[e] trial in which the state attempted to highlight 

### cultural differences between the predominantly white jury and the defendant."91 In this case, there is no allegation thatthe State used "we" to attemptto align the jury against Robinson on racial or socioeconomic grounds. Here, because the prosecutor used "we know" to marshal the evidence, the prosecutor did not commit misconduct.

88 id 89 561 F.3d 803, 812 (8th Cir. 2009). 90 720 N.W.2d 776, 790 (Minn. 2006). 91 id at 789.
20No. 71929-7-1/21
STATEMENT OF ADDITIONAL GROUNDS Robinson raises several issues in his Statement ofAdditional Grounds for Review. None warrants reversal. Robinson challenges the admission ofthe 911 tape under article I, section 22 ofthe state constitution. But our supreme court has recently reaffirmed that article I, section 22's confrontation clause and the Sixth Amendment's 

### confrontation clause have the same standards.92 The supreme court noted, "Neitherthe constitutional text, the historical treatment ofthe confrontation right,
northe current implications of adopting a broaderconfrontation right support an 

### independent reading of article I, section 22."93 Thus, for the reasons we explained earlier inthis opinion, the admission of the 911 tape did not violate Robinson's state constitutional rights. Robinson also points out alleged inconsistencies inAguayo's testimony. 

### Forexample, Robinson notes that Aguayo stated that he had lived in Portland for 23 years, but later stated that he was 22 years old. Additionally, Aguayo stated that he had not consumed any alcohol that night, but an officer noted the smell of alcohol on Aguayo's breath. Butthejury had the opportunity to weigh Aguayo's testimony and chose to believe him. This court does not review on appeal credibility determinations.

92 State v. Lui, 179 Wn.2d 457, 469-70, 315 P.3d 493, cert, denied, 134 S. Ct. 2842, 189 L. Ed. 2d 810 (2014). 93 id

21No. 71929-7-1/22 

### Robinson also argues that the prosecutor liedwhen he stated thatAguayo had no motive to lie. Robinson argues that underthe terms ofAguayo's 

### insurance, Aguayo may have received a new phone if he were the victim of a crime, but not if he had simply lost his phone. Butthe record is silent on whether Aguayo had insurance and the terms ofany such insurance policy. Itwas not misconductfor the prosecutorto pointoutthat nothing inthe record suggested thatAguayo had a motive to lie. 

### Finally, Robinson argues that his counsel's performance was 

### constitutionally deficient forfailing to object to the 911 recording under ER 804. Specifically, Robinson contends that the Statefailed to prove that Caldwell was unavailable. But inthis case, the courtdid not admitthe 911 call under ER 804. 

### Instead, the court admitted the call as a present sense impression under ER 

### 803(a)(1). Under ER 803, present sense impressions are not excluded as 

### hearsay "even though the declarant isavailable as awitness."94 Thus, the State
was not required to prove that Caldwell was unavailable. We affirm thejudgment and sentence. 

# CcTtX

cj-i 

## WECONCUR: % 

# J***//. foloirriXk,

94 ER 803(a). 22