### FILED OCT. 28,2014 In theOffice oftheClerkofCourt WA StateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 31515-1-111 ) Respondent, 

### ) 

### ) 

## v. ) ) JOSEPH JAMES GOGGIN, ) UNPUBLISHED OPINION ) Appellant. ) 

# , 

# I BROWN, J. - Joseph Goggin appeals hisfelony driving underthe**in1~uence** (OUI) jury conviction. In addition to his evidence insufficiency challenge, Mr. Goggin contends the trial court erred in 

### (1) admitting blood alcohol test results without an additional 

# I 1 independent-testing advisement, and (2) admitting an Idaho OUI judgment and sentence in violation ofhis state confrontation rights. We affirm. FACTS 

# I On December 

### 17,2011, Spokane police officer Barry Marcus responded to a call about a person, later identified as Mr. Goggin, possibly driving underthe influence ofan intoxicant. Upon contactwith Mr. Goggin, Officer Marcus noticed the odorofintoxicants
on Mr. Goggin's breath and observed hewas stumbling and had slurred speech. Mr. Gogginfailed field sobriety tests. Officer Marcus then arrested Mr. Goggin for OUI. ! 

# , Aftertaking Mr. Goggin in for a blood alcohol concentration (BAC) test, Officer Marcus 

# I 1

### No. 31515-1-111 State v. Goggin
read him the implied consentwarnings, including the rightto have additional tests performed by a person of his own choosing. Mr. Goggin indicated he understood his rights and signed the implied consentform. When Mr. Goggin refused the breath test, Officer Marcus obtained a search warrantto draw a sample of Mr. Goggin's blood that
was taken aboutthree hours after his arrestwithout anyfurther independent-testing advisement. Alleging Mr. Goggin had four prior DUI convictions, the State partly charged him with felony driving underthe influence ofan intoxicating liquor. He moved to suppress the results ofthe blood test based on the officer's failure to advise him of his right to an additional test afterobtaining the warrant. The trial court concluded, U[t}his was a blood draw authorized by a search warrant. The trooper did not haveto advise the defendant ofthe right to additional tests." Clerk's Papers (CP) at

### 23. The court explained: Thetrooperwas not mandated by the statute to geta search warrant. Itwas a decision, a discretion [sic} decision on his partto basically seek outfurther evidence by a neutral and detached magistrate. In no way did the Court seethat as mandatory, and the trooper could have atthattime gotan implied consentwarning, taken a refusal and gone with it. Report of Proceedings (RP) (April 

### 26, 2012) at 

### 17. Attrial, brothers Jared and Jordan Berezay testified that on December 

### 17, 2011, around 

### 5:00 p.m., theywere driving when they were abruptly cut offby a man later identified as Mr. Goggin. They saw Mr. Goggin swerving left and right and crossing the center line into oncoming traffic, causing other carsto swerve out ofthe way. The

2No. 31515-1-111 State v. Goggin
brothers called 911 and followed Mr. Goggin until he parked. According to Jared Berezay, when Mr. Goggin exited his car hewas staggering and smelled ofalcohol. Jordan Berezay noticed Mr. Goggin "had a hard time keeping his balance" and was "stumbling"toward Jared. RP at 265. Liberty Lake Police Officer Taj Wilkerson responded first. He testified Mr. Goggin's speech was "thicktongued and slurred." RP at 291. Mr. Goggin told Officer Wilkerson he had had a "few beers" at a bar. RP at 292. OfficerWilkerson observed Mr. Goggin was "very slowto respond to my questioning." RP at 293. Trooper Barry Marcus testified when he contacted Mr. Goggin, he noticed Mr. Goggin struggled to get out of his car, could not maintain his balance, and had "a strong odor of intoxicants on his breath." RP at 326. He related Mr. Goggin had difficulty focusing and his eyes were watery and bloodshot. Trooper Marcus then administered the three standard field sobrietytests. According to the Trooper, Mr. Goggin's abilityto perform the tests was "impaired prettywell by alcohoL" RP at 342. He staggered, could not maintain his balance or put one foot in front ofthe other, could not stand on one leg, perform the eye tracking test, or recite his ABCs. During cross-examination, defense counsel asked Trooper Marcuswhether he re-read the implied consent warnings to Mr. Goggin after obtaining the search warrant: [Defense counsel]: Did you at anytime advise him as part ofany warnings related to the blood test that he could get an additional blood test?



### 3No. 31515-1-111 State v. Goggin [Trooper Marcus]: Thatwas in part ofthe implied consent warnings for breath. It states in there that you have the right to additional tests administered by a qualified person ofyour own choosing. [Defense counsel]: You have separatewarnings for blood; do you not? [Trooper Marcus]: Wedo, but implied consent warnings for blood weren't read in this case. RP (Feb. 27,2013) at 399. Dr. Naziha Nuwayhid, PhD, aforensic toxicologist, testified Mr. Goggin's blood sample tested 0.32 gram per 100 milliliters and related a person's abilityto drive is impaired at 0.08 gram per milliliter. She estimated Mr. Goggin had the equivalent of 16 standard drinks in his system atthe time ofhis arrest. The State moved to admit certified copies offour prior DUI judgment and sentences bearing Mr. Goggin's name. Defense counsel objected to their admission, arguing the State was required to bring in a witness to verify the documents. He argued the admission ofthe documents without awitnessto verify them violated his confrontation rights under Crawford. 1 The court rejected Mr. Goggin's argument, reasoning certified court records are admissible under RCW 5.44.010 and are not testimonial evidence, rendering Crawfordinapplicable. Even so, to identify Mr. Goggin
as the person in theWashington State DUI judgment and sentences, the State produced related booking photographs and called the police officerswho had arrested Mr. Goggin on the 2003, 2004, and 2006 DUI cases.

1 Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354, 158 

### L. Ed. 2d 177 (2004).



### 4No. 31515-1-111 State v. Goggin
Afterthe State initially rested, the trial court allowed the State to reopen to inform thejury it had admitted exhibits 5, 7, 9, and 11. Mr. Goggin unsuccessfully argued even ifthejudgment and sentence had been admitted "there's not been any testimony about howthe arrest occurred if, indeed, it did occur in the state of Idaho." RP at 549. Mr. Goggin renewed his motion to dismiss based on the State'sfailure to produce a witness from Idaho who could provide evidence that he had been arrested in Idaho. The court denied the motion, finding sufficient circumstantial evidence to go to thejury. Thejuryfound Mr. Goggin guilty offelony DUI. He appealed. ANALYSIS 

### A. Admissibility of Blood Test Results The issue is whetherthe court erred in admitting Mr. Goggin's blood alcohol test results. He contends the test should not have been admitted because the State failed to re-advise him ofhis right to additional testing after it administered a blood draw pursuantto a search warrant. The State responds itwas not statutorily mandated to read the implied consent warnings for a blood alcohol test because the arresting officer
was not investigating a crime that statutorily mandated a blood draw under RCW 46.20.308(3). When reviewing a suppression motion, we determine ifsubstantial evidence supports the findings offact and ifthe findings supportthe conclusions oflaw. State 

### v. Dempsey, 88 Wn. App. 918, 921,947 P.2d 265 (1997). We review solelythose findings



### 5No. 31515-1-111 State v. Goggin
offact to which error has been assigned; we treat unchallenged findings as verities on appeal. State v. Hill, 123 Wn.2d 641,647,870 P.2d 313 (1994). We review conclusions of law de novo. State v. Eisfeldt, 163Wn.2d 628, 634, 185 P.3d 580 (2008). Mr. Goggin does not challenge the court's findings offact. Thus, our review is confined to the trial court's conclusion thatthe arresting officerwas not required to advise Mr. Goggin ofthe right to additional tests because the blood drawwas authorized by a search warrant, notthe implied consent statute. RCW46.20.308(1) partly states: Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests ofhis or her breath for the purpose of determining the alcohol concentration,

... in his or her breath ifarrested for any offensewhere, atthe time ofthe arrest, the arresting officer has reasonable grounds to believe the person had been driving orwas in actual physical control ofa motorvehicle while underthe influence of intoxicating liquor or any drug or was in violation of RCW46.61.503. Neitherconsentnorthis sectionprecludes

### a police officerfrom obtaining

### a search warrantfor

### a person's breath orblood. (Emphasis added.) RCW46.20.308{2} partly states "[t]he officer shall inform the person ofhis or her right to refuse the breath test, and ofhis or her right to have additional tests administered by anyqualified person of his or her choosing as provided in RCW 46.61.506." RCW 46.20.308(3} allows either breath or blood testing under circumstances generally concerning unconsciousness or arrestfor certain crimes not



### 6No. 31515-1-111 State v. Goggin applicable here. Mr. Goggin was arrested for DUI. Thus, he was not subject to the mandatorytest provision of RCW 46.20.308(3) forfelony DUI. Relying primarily on State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980), Mr. Goggin argues because he was subjectto a mandatory blood draw, the officer should have advised him of his right to an additional blood test. He reasons the officer's failure to advise him of his right to an additional test mandates suppression ofthe blood test and a newtrial. But Turpin is factually distinguishable. Ms. Turpin was arrested for negligent homicide, a crime subjectto the mandatory test provisions of RCW46.20.308(3). Turpin, 94 Wn.2d at 822. After arrest and a blood drawto determine the blood alcohol content in her blood, police did not advise Ms. Turpin of her right underthe implied consent statute to have an independent blood test performed. The Turpin court held the State has a statutory dutyto notify a person accused ofvehicular homicide that he or she has a right to an independent blood test and suppressed the blood test results because Ms. Turpin had not been able to gather potentially exculpatory evidence. In contrast to Turpin, the arresting trooper advised Mr. Goggin of his right to additional tests, and Mr. Goggin acknowledged he understood this right. Thus, unlike the defendant in Turpin, Mr. Goggin was aware ofthe right to seek alternative testing and gather potentiallyfavorable evidence in his defense. Significantly, the blood test



### 7No. 31515-1-111 State v. Goggin

was taken pursuant to a search warrant supported by probable cause, not underthe mandatory blood or breath test provision of RCW46.20.308(3). Accordingly, thetrial court correctly reasoned Mr. Goggin was no longer subject to the requirements ofthe statute. Itfollows that once the officer obtained a search warrant fora blood alcohol test independent of RCW46.20.308(3), hewas not required to re-advise Mr. Goggin of his right to additional tests. Ourconclusion is supported by CityofSeattle v. RobertSf. John, 166 Wn.2d 941,946,215 P.3d 194 (2009), in which the Washington Supreme Court held thatthe plain language of RCW46.20.308(1) allows officers to "obtain a search warrant for bloodalcoholtests regardless ofthe impliedconsentstatute." Sf. John, 166 Wn.2d at 946 (emphasis added). In St. John, the motorcyclist refused totake the voluntarytest; but, the evidence thatthe motorcyclistwas driving underthe influence constituted sufficient probable cause to justify a warrant. Id. at 948. Similarly here, the search warrant and subsequent blood alcohol testwerethe result ofevidence showing Mr. Goggin was driving underthe influence. Thus, the State was not required to re-advise Mr. Goggin ofhis right to additional tests after issuance ofthe search warrant. Even ifthe blood test results were admitted in error, any errorwas harmless. We review potentially erroneous rulings ofadmissibility underthe nonconstitutional harmless errorstandard. State v. Morales, 173Wn.2d 560, 582, 269 P.3d 263 (2012). An erroneous ruling ofadmissibility will not amountto reversible error unless the court

8No. 31515-1-111 State v. Goggin
determines that '''within reasonable probabilities, had the error not occurred, the outcome ofthe trial would have been materially affected.'" State v. Calegar, 133Wn.2d 718,727,947 P.2d 235 (1997) (quoting State v. Smith, 106Wn.2d 772, 780, 725 P.2d 951 (1986)). The outcome ofa trial is materially affected ifthe jurywould have reached
a differentverdict had the error not occurred. State v. Hardy, 133Wn.2d 701,712,946 P.2d 1175 (1997). Given ourfacts, it is unlikely thejurywould have reached a differentverdict had the trial court excluded the evidence of Mr. Goggin's blood alcohol test. Mr. Goggin was seen swerving into oncoming traffic, his breath smelled ofalcohol, his eyes were bloodshot and watery, he could not maintain his balance, his speech was slurred, he
was slowto answer questions, and he failed all ofthe field sobrietytests. From this evidence, ajurycould reasonably conclude that Mr. Goggin was underthe influence of
or affected by intoxicating liquor. RCW46.61.502(1)(b). Any evidentiary errorwas harmless. In sum, we conclude the trial court did not err in admitting the blood alcohol test. B. Evidence Sufficiency The issue before us is whether sufficient evidence supports Mr. Goggin'sfelony DUI conviction. Mr. Goggin contends the certified copy of an Idahojudgmentand sentence for DUI that bears his name is insufficient proofof a prior conviction because the Statefailed to prove he was the person arrested in Idaho.

9No. 31515-1-111 State v. Goggin
Evidence is sufficient if, when viewed in a light mostfavorable to the State, it permits any rational trier offact to find the essential elements ofthe crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). "A claim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. We deferto the trier offact on issues ofconflicting testimony. credibility ofwitnesses, and the persuasiveness ofthe evidence. State v. Thomas, 150Wn.2d"821, 874, 83 P.3d 970 (2004). To convict Mr. Goggin offelony DUI, the State had to prove that on December 17, 2011, Mr. Goggin drove a vehicle underthe influence oforaffected by intoxicating liquor, he had four ormore prior DUI convictions within 10years and the driving occurred in the State ofWashington. RCW 46.61.502(1)(c), (6)(a). That the defendant has four or more prior offenses is an essential element offelony DUI. State v. Santos, 163Wn. App. 780, 783, 260 P.3d 982 (2011). The best evidence ofa prior conviction is
a certified copy ofajudgment and sentence. Santos, 163Wn. App. at 784. In criminal trials, the State has the burden ofestablishing, beyond a reasonable doubt, the identity ofthe accused as the person who committed the offense. State v. Huber, 129Wn. App. 499, 501, 119 P.3d 388 (2005). When, as here, a previous conviction is an underlying element ofthe current charged offense, U[t]he State must do
more than authenticate and admitthe document; it must also show beyond a

10No. 31515-1-111 State v. Goggin
reasonable doubt 'thatthe person named therein is the same person on triaL'" Huber, 129Wn. App. at 502 (quoting State v. Kelly, 52 Wn.2d 676, 678, 328 P.2d 362 (1958». "Identity of names alone" is insufficient to establish that the person named in the document is the same person on trial. Huber, 129 Wn. App. at 502 (quoting United States v. Jackson, 368 F.3d 59, 63-64 (2d Cir. 2004). Because many people share identical names, the State must show by independentevidence thatthe person named in the document is the defendant in the present action. Id. This burden can be met by presenting booking photographs, booking fingerprints, eyewitness identifications, a certified copy ofa driver's license, or other distinctive personal information. Id. at 503; State v. Chandler, 158 Wn. App. 1,7,240 P.3d 159 (2010). Here, the State met its burden of proving Mr. Goggin was the same Joseph Goggin convicted ofthe 2009 QUI in Idaho by submitting Mr. Goggin's 2007 to 2011 Washington State Identification card. This photographic identification card included Mr. Goggin's height and weight, hair and eye color, and his address. This information matched the identifying information in the 2009 Idahojudgment and sentence. The identification card was issued in 2007 and was valid until 2011 ; thus, it corresponded with the date ofthe Idaho conviction. Accordingly, the State provided sufficient evidence ofthis fourth QUI to supportthe conviction for felony QUI.

11No. 31515-1-111 State v. Goggin
C. Confrontation Rights The issue is whether Mr. Goggin's confrontation rights underthe Washington Constitution were violated when the trial court admitted Exhibit 5, the Idahojudgment and sentence. Mr. Goggin contends his right to confront the witnesses against him was violated bythe absence ofany testimony that he was the person named in Exhibit 5. He argues the right ofconfrontation under article I, section 22 ofthe Washington Constitution requires more than documentary evidence to supportthe conviction, arguing, "Article I, section 22 mandates and requires a face to face meeting to support the identification ofthe defendant in a criminal prosecution." Br. ofAppellant at 20. Mr. Goggin asks us to conduct a Gunwal(2 analysis and hold thatWashington's confrontation clause requires the State to "bring a person to admit thejudgment and sentences." Br. ofAppellant at 17. Evidence rulings are reviewed for an abuse ofdiscretion. In re Pers. Restraintof Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004). A trial court abuses discretion when its '''decision is manifestly unreasonable, or is exercised on untenable grounds orfor untenable reasons.'" Id. (quoting State v. MichieJli, 132Wn.2d 229, 240, 937 P.2d 587 (1997). In considering whetherthe confrontation clause was violated, our review is de
novo. State v. Jasper, 174Wn.2d 96, 108,271 P.3d 876 (2012).

2 State v. GunwaJl, 106 Wn.2d 54, 720 P.2d 808 (1986).

12No.**31515~1-1I1** State v. Goggin Initially, we must decidewhetherto analyze Mr. Goggin's argument underthe Sixth Amendmentto the United States Constitution or underarticle I, section 22 ofthe Washington Constitution. Mr. Goggin raises the Gunwallargumentforthe first time on appeal. Under RAP 2.5(a)(3), we are not required to considerthe argument because he has failed to assert a manifest constitutional error exception. State v. Bertrand, 165Wn. App. 393, 400, 267 P.3d 511 (2011). TheWashington Supreme Court has concluded article 

### I, section 22 ofour State's constitution is subjectto an independent analysis from the Sixth Amendmentfor the confrontation clause and, therefore, a Gunwallanalysis is no longer necessary. State v. Pugh, 167Wn.2d 825, 839, 225 P.3d 892 (2009). Instead, we analyze whetherthe unique characteristics ofthe state provision and its prior interpretations compel a particular result. Pugh, 167Wn.2d at 835. This entails "an examination ofthe constitutional text, the historical treatment ofthe interest at stake as reflected in relevant
case law and statutes, and the current implications of recognizing or not recognizing an interest." State v. Chenoweth, 160Wn.2d 454, 463, 158 P.3d 595 (2007). Article I, section 22 oftheWashington Constitution provides that "[i]n criminal prosecutions the accused shall have the right

...to meetthe witnesses against him face to face." The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoythe right

...to be confronted with the witnesses against him." U.S. CONST. amend. VI. Quoting State v. Foster, 135Wn.2d 441, 462-63,957 P.2d 712

13No. 31515-1-111 State v. Goggin (1998), our Supreme Court recently noted that although article I, section 22 is unique in using the language "face toface" '''the meaning ofthe words used in the parallel clauses is substantiallythe same.'" State v. Lui, 179Wn.2d 457, 468,315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014). Following this precedent, we conclude the text of the Washington Constitution does not compel a result differentfrom that underthe Sixth Amendment. In Lui, the court noted it had "consistently rejected arguments that the state confrontation clause provides greater protections than the federal confrontation clause." Lui! 179Wn.2d at 469. The courtthen cited numerous cases in support ofthis conclusion, including Pugh, which held thatthe excited utterance hearsay exception does notviolate state confrontation rights. Id. at 469. Mr. Goggin does not pointto any treatment ofthe Washington provision that is more protective ofthe right to confrontation than the federal standard. Next, Mr. Goggin urges us to hold article 1, section 22 requires the State to bring
a person to court to authenticate thejudgment in order to have a "face toface" meeting with adverse witness. But hefails to explain why a broader reading ofthe Washington confrontation clause is necessary. The constitutional interest at issue here is adequately addressed by the Sixth Amendment analysis. The Sixth Amendment confrontation clause "applies to 'witnesses' against the accused-in otherwords, those who 'bear testimony.'" Crawford v. Washington, 541

14No. 31515-1-111 State 

### v. Goggin
U.S. 36, 51,124 S. Ct. 1354, 158 

### L. Ed. 2d 177 (2004) (citation omitted). Thus, in a criminal trial, the State cannot introduce a testimonial statement 'from a nontestifying witness unless thewitness is unavailable and the defendant has a cross-examination opportunity. Crawford, 541 U.S. at68. A statement is testimonial when its primary purpose is to establish facts relevant to a criminal prosecution. Davis 

### v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 

### L. Ed. 2d 224 (2006). Crawfordallows nontestimonial statements. State 

### v. Benefiel, 131 Wn. App. 651,653-54,128 P.3d 1251 (2006).In Benefiel, this court held a defendant'sjudgment and sentence is not testimonial because "[ilt is not a statementforthe purpose ofestablishing some fact and it does not constitute a statementthe declarantwould reasonably believe would be used by the prosecutor in a latertrial." Benefiel, 131 Wn. App. 656. In Benefiel, one ofthe issues beforethis court was whether admission ofthe defendant'sjudgmentand sentence violated the confrontation clause ofthe Sixth Amendment. Id. at 655. Mr. Benefiel argued, as does Mr. Goggin, that the admission ofajudgmentand sentence violates the confrontation clause because he was not allowed to cross-examine the clerk who attested to the document. Id. The Benefielcourt rejected his argument,

15No. 31515-1-111 State v. Goggin noting that under RCW 5.44.0103 and ER 902(d), certified court records are selfauthenticating and admissible and that court records are nottestimonial. Id. at655-56. Considering Benefiel, the trial court did not err in admitting Mr. Goggin's judgment and sentence as a nontestimonial, self-authenticating public record under RCW 5.44.010. Ourconclusion is in accord with the purpose ofarticle I, section 22, which is to preventthe admission of unconfronted statements "[w]here cross examination would serve to expose untrustworthiness or inaccuracy." State v. Ryan, 103Wn.2d 165, 175,691 P.2d 197 (1984). Regarding confrontation clause protections,
we evaluatewhether admission ofthe hearsay statement constitutes a '" material departurefrom the reason underlying the constitutional mandate guaranteeing to the accused the right to confrontthewitnesses against him.'" Pugh, 167 Wn.2d at 837 (quoting State v. Ortego, 22 Wn.2d 552, 563, 157 P.2d 320 (1945». Mr. Goggin's Idahojudgment and sentence was inherently trustworthy. Itwas not created in anticipation oflitigation orto prove a fact attrial; therefore, itwas not necessaryto cross-examine the clerk who certified the document. 

### A certified record not prepared for use in a criminal proceeding but created forthe administration ofan entity's affairs is nottestimonial. State v. Jasper, 174Wn.2d 96, 112,271 P.3d 876 (2012).

3 RCW 5.44.010 provides: "The records and proceedings ofany court ofthe United States,

... shall be admissible in evidence in all cases in this statewhen duly certified bythe attestation ofthe clerk,

... or otherofficer having charge ofthe records ofsuch court, with the seal ofsuch court annexed."

16No. 31515-1-111 State v. Goggin
Trustworthiness ofpublic records exists because ofthe declarant's official duty and high probabilitythat he or she has performed his public dutyto make an accurate record. State v. James, 104Wn. App. 25, 34,15 P.3d 1041 (2000). Accordingly, the admission ofthe Idahojudgment and sentence did notviolate Mr. Goggin's confrontation rights. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:



### 17