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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON, ) No. 81347-1-I

)

 Respondent, )

)

 v. ) UNPUBLISHED OPINION

)

VINCENT EDWARD LANDES, )

)

 Appellant. )

BOWMAN, J. — Police found Vincent Edward Landes hiding in a closet in 

his aunt’s house despite a court order prohibiting him from contacting her. A jury 

convicted Landes of domestic violence (DV) felony violation of a court order 

(FVCO). Landes appeals his conviction. He argues the trial court violated his 

right to confront witnesses by admitting a 911 call recording without the caller 

testifying and erroneously denied his motion for mistrial. He also argues

cumulative error deprived him of a fair trial and the court imposed a sentence 

exceeding the statutory maximum. We accept the State’s concession that the 

trial court erred by admitting the 911 call but conclude that error was harmless. 

Finding no other error, we affirm.

FACTS

In June 2019, Sharon Gorog obtained a no-contact order restraining her 

nephew Landes from contacting her or coming within 1,000 feet of her home for 
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two years. Landes attended the court hearing, signed the original no-contact 

order, “acknowledge[d] receipt of [the] order,” and “was served with [a] copy” of 

the order “in open court.”

Gorog lives with her sister, Linda Vasser. Vasser is the mother of Landes 

and Alisha Ball. On July 19, 2019, Ball called her mother and overheard Landes 

yelling at Gorog in the background. Ball ended the call with her mother and 

immediately called 911 to report Landes was violating the no-contact order with 

Gorog. Ball told the 911 operator that her mother and aunt live together, that she 

could hear her brother “yelling and screaming” at her aunt, and that her aunt “has 

a protection order against my brother.” The King County Sheriff’s Office sent 

deputies to investigate.

Deputy Valerie Kelly and Deputy Jeffery Thomas responded to Gorog and 

Vasser’s home. The deputies first met Gorog at the side door of the home. She 

whispered to Deputy Thomas, “ ‘He’s inside.’ ” The deputies then entered the 

home and Deputy Thomas found Vassar in a bedroom. She told him, “ ‘He’s not 

here.’ ” But Deputy Kelly soon found Landes hiding in a closet in another 

bedroom.

The State charged Landes with DV FVCO. Before trial, Landes moved in 

limine to exclude Ball’s 911 call and Gorog’s “initial statement to the police” that 

“Landes was in the house” as a violation of the “Confrontation Clause”

1 and 

hearsay. The court denied Landes’ motion to exclude Ball’s 911 call, ruling that it 

was not a testimonial statement under the Confrontation Clause and that it was 

 

1 U.S. CONST. amend VI; WASH. CONST. art. I, § 22.
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admissible under the excited utterance exception to hearsay. The State 

acknowledged it would run into a “potential confrontation issue” with Gorog’s 

statement if she did not testify. So the court granted Landes’ motion to exclude 

Gorog’s statement unless she testified.

At trial, the parties stipulated that Landes and Gorog were “family 

members.”

2 The State offered and the court admitted into evidence a certified 

copy of the June 2019 no-contact order. And the State played a redacted 

version of Ball’s 911 call for the jury,

3

though Ball did not testify. Landes again 

objected to its admission.

Neither Gorog nor Vasser testified. Deputy Kelly and Deputy Thomas 

both testified about finding Landes in Gorog’s house. Deputy Thomas testified 

that when he approached the house, Gorog was just outside the side door and 

whispered, “ ‘He’s inside.’ ” Deputy Thomas then testified that inside the home, 

he found Vasser in a bedroom and she told him, “ ‘He’s not here.’ ” Landes 

objected to both statements as hearsay and the court sustained both objections.

Before closing arguments, Landes moved for a mistrial based on Deputy 

Thomas’ testimony that Gorog told him Landes was in the house. The court

agreed the testimony was “a violation of the motions in limine” but denied the 

motion and instead instructed the jury to disregard Deputy Thomas’ testimony 

about both Gorog’s and Vasser’s statements to him.

 

2 The parties also stipulated that Landes had two prior convictions “for violating the 

provisions of a court order prior to 7/19/19,” a necessary element of FVCO. RCW 26.50.110(5).

3 The court excluded a portion of the 911 recording where Ball tells the operator she is 

“scared to death” of her brother and “trembling.”
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A jury convicted Landes of DV FVCO. The court imposed a drug-offender 

sentencing alternative (DOSA), ordering that Landes serve 30 months in prison 

and 30 months of community custody. The court imposed another 12 months of 

community custody “or the difference between the term of confinement and the 

statutory maximum sentence, whichever is less,” should Landes fail to complete 

or be terminated from the DOSA program.

Landes appeals.

ANALYSIS

Confrontation Clause

Landes argues that the trial court erred by admitting the recording of Ball’s 

911 call. The State “concedes that admitting the 911 call when [Ball] did not 

testify was inconsistent with Landes’s right to confrontation” because her

statements were testimonial. But it argues that the error was harmless. We 

accept the State’s concession that the trial court erred by admitting the 911 

recording and agree that the error was harmless.

The Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution guarantee criminal defendants the 

right to confront and cross-examine witnesses. The Confrontation Clause 

provides that the State can present an absent witness’ testimonial out-of-court 

statements only if the witness is unavailable and the defendant had a prior 

chance to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review alleged Confrontation 
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Clause violations de novo. State v. Kronich, 160 Wn.2d 893, 901, 161 P.3d 982 

(2007); State v. McDaniel, 155 Wn. App. 829, 839, 230 P.3d 245 (2010).

A statement is testimonial if the speaker’s primary purpose was to create 

an out-of-court substitute for trial testimony. State v. Scanlan, 193 Wn.2d 754, 

766, 445 P.3d 960 (2019). A statement amounts to an out-of-court substitute for 

trial testimony if its primary purpose was (1) to establish or prove past events 

potentially relevant to later criminal prosecution, (2) to investigate a possible 

crime, (3) to create a record for trial, or (4) to create or gather evidence for 

prosecution. Scanlan, 193 Wn.2d at 767 (citing Davis v. Washington, 547 U.S. 

813, 822, 830, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Michigan v. Bryant, 

562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d. 93 (2011); Ohio v. Clark, 576 

U.S. 237, 246, 249, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015)). Statements are 

nontestimonial when made during police interrogation under circumstances 

objectively indicating that the primary purpose of interrogation is to enable police 

assistance to meet an ongoing emergency. Davis, 547 U.S. at 822. The State 

has the burden to show that statements are nontestimonial. State v. Koslowski, 

166 Wn.2d 409, 417 n.3, 209 P.3d 479 (2009).

Even if the trial court admits a statement in violation of a defendant’s 

confrontation rights, we will not reverse a conviction if the error was harmless. 

State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012). Under the harmless 

error standard, the State must show “ ‘beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.’ ” Jasper, 174 Wn.2d at 
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117 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 

705 (1967)).

Whether such an error is harmless in a particular case depends 

upon a host of factors, . . . includ[ing] the importance of the witness’

testimony in the prosecution’s case, whether the testimony was 

cumulative, the presence or absence of evidence corroborating or 

contradicting the testimony of the witness on material points, the 

extent of cross-examination otherwise permitted, and, of course, 

the overall strength of the prosecution’s case. 

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 

(1986). When “ ‘overwhelming untainted evidence’ ” necessarily leads to a 

finding of guilt, Washington courts deem a constitutional error harmless. State v. 

Lui, 179 Wn.2d 457, 495, 315 P.3d 493 (2014). 

Here, Ball told the 911 operator, “I was just on the phone with my 

mother . . . . My aunt and my mother live in the house at the address I just gave 

you. My aunt has a protection order against my brother. . . . I could hear my 

brother calling her an f’ing B,[4] and . . . all kinds of things.” Ball then gave the 

operator Landes’ full name and date of birth and Gorog’s and Vasser’s full 

names. Ball’s statements were testimonial because the main purpose of her call 

was to provide information to investigate a possible crime. And nothing in Ball’s 

statements suggested Gorog or Vasser were in danger of physical harm, creating 

an ongoing emergency. See Davis, 547 U.S. at 827 (a plain call for help against 

a bona fide physical threat is a clear example of circumstances objectively 

 

4 Fucking bitch. 
No. 81347-1-I/7

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indicating an ongoing emergency). The trial court erred in admitting the 

recording of Ball’s 911 call.5

Even so, the record here shows that the error was harmless. To convict 

Landes of DV FVCO, the State had to prove:

(1) That on or about July 19, 2019, there existed a nocontact order applicable to [Landes]; 

(2) That [Landes] knew of the existence of this order; 

(3) That on or about said date, [Landes] knowingly violated a 

provision of this order; 

(4) That at the time of the violation, [Landes] had twice been 

previously convicted for violating the provisions of a court order; 

and

(5) That [Landes’] act occurred in the State of Washington.

The State also had to prove Landes committed the violation against a family or 

household member.

In her 911 call, Ball told the operator that (1) Gorog is Landes’ aunt, (2) 

Landes was at Gorog’s house, and (3) there was a court order prohibiting Landes 

from contacting Gorog. But those facts were undisputed. And other untainted 

evidence overwhelmingly established each fact. At trial, the parties stipulated 

that “Sharon Gorog and Mr. Landes are family members,” two deputies testified 

that they found Landes hiding in Gorog’s home and arrested him there, and the 

State offered and the court admitted as evidence a certified copy of the nocontact order showing Gorog as the protected party and Landes as the 

 

5 Because we conclude that the 911 call was testimonial, we need not consider whether 

the trial court erred in admitting the 911 call as an excited utterance. State v. Kirkpatrick, 160 

Wn.2d 873, 882, 161 P.3d 990 (2007) (“[T]he existence of an applicable hearsay exception is not 

dispositive as to the admissibility at trial. . . . [T]he Confrontation Clause requires another layer of 

analysis.”).
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restrained party. The trial court’s error admitting the 911 call was harmless given

the overwhelming untainted evidence.

6

Motion for Mistrial

Landes argues that the court erred by denying his motion for mistrial after 

Deputy Thomas testified in violation of an order in limine. We disagree.

We review a trial court’s denial of a motion for mistrial for an abuse of 

discretion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). We will 

reverse the trial court only if there is a substantial likelihood the trial irregularity 

prompting the motion affected the jury’s verdict. State v. Rodriguez, 146 Wn.2d 

260, 269-70, 45 P.3d 541 (2002).

A trial court has broad discretion to rule on irregularities during trial 

because it is in the best position to determine whether a trial irregularity caused 

prejudice. State v. Wade, 186 Wn. App. 749, 773, 346 P.3d 838 (2015); State v. 

Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court should grant a 

mistrial when an irregularity in the trial proceedings is so prejudicial that it 

deprives the defendant of a fair trial. State v. Babcock, 145 Wn. App. 157, 163, 

185 P.3d 1213 (2008). We consider three factors to determine whether an 

irregularity warrants a new trial: (1) the seriousness of the irregularity, (2) 

whether the statement was cumulative of other properly admitted evidence, and 

(3) whether an instruction could cure the irregularity. State v. Perez-Valdez, 172 

Wn.2d 808, 818, 265 P.3d 853 (2011).

 

6 At oral argument, Landes claimed Ball’s 911 call was the only evidence establishing 

that Gorog lived at the address where deputies found Landes. But the record shows that the 

court admitted Gorog’s driver’s license as an exhibit and it bore the same address. Deputy 

Thomas also testified that he had been at that address before and “knew [Gorog] lived there.”
No. 81347-1-I/9

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Before trial, Landes moved in limine to exclude evidence that Gorog told 

police, “ ‘He’s inside.’ ” The court granted the motion “should Ms. Gorog not 

testify.” Gorog did not testify at trial. Even so, Deputy Thomas improperly

testified to her statement.

While Deputy Thomas’ testimony violated the court’s order in limine, the 

irregularity was not serious enough to warrant a new trial. The testimony was 

cumulative of other evidence—Deputy Thomas and Deputy Kelly both testified 

that they found Landes hiding in a closet in the house. And the court instructed 

the jury to “disregard this particular testimony” and not “discuss this evidence 

during your deliberation or consider it in reaching your verdict.” We presume 

jurors follow the court’s instructions. Emery, 174 Wn.2d at 766. The trial court 

did not abuse its discretion by denying Landes’ motion for mistrial. 

Cumulative Error

Landes contends he is entitled to a new trial because the cumulative effect 

of all his asserted errors denied him a fair trial. “Under the cumulative error 

doctrine, a defendant may be entitled to a new trial when cumulative errors 

produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766.

Cumulative error “is limited to instances where there have been several trial 

errors that standing alone may not be sufficient to justify reversal but when 

combined may deny a defendant a fair trial.” State v. Greiff, 141 Wn.2d 910, 

929, 10 P.3d 390 (2000).

Here, the court’s admission of Ball’s 911 call contrary to Landes’ 

confrontation right is the only trial error. This single error that we determined was 
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harmless cannot support reversal under the cumulative error doctrine.

7 Greiff, 

141 Wn.2d at 929.

Unlawful Sentence

Landes argues that his sentence is unlawful because it exceeds the 

statutory maximum. Whether a sentencing court exceeded its statutory authority 

under the Sentencing Reform Act of 1981, chapter 9.94A RCW, is an issue of 

law we review de novo. In re Postsentence Review of Milne, 7 Wn. App. 2d 521, 

523, 435 P.3d 311 (2019).

A court exceeds its authority if it imposes an aggregate term of 

confinement and community custody beyond the statutory maximum sentence. 

RCW 9.94A.701(10); State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012)

(citing former RCW 9.94A.701(9) (2010)). If a court sentences an offender to a 

term of confinement plus a term of community custody greater than the statutory 

maximum for the crime, it must reduce the sentence to comply with the law.

Boyd, 174 Wn.2d at 473. 

The jury convicted Landes of FVCO, a class C felony with a 60-month 

statutory maximum. RCW 26.50.110(5); RCW 9A.20.021(1)(c). With an offender 

score of 10, Landes’ standard-range sentence was 60 months. The court 

imposed a prison-based DOSA under RCW 9.94A.660. That alternative requires

confinement of “one-half the midpoint of the standard sentence range” and 

community custody for the other half. RCW 9.94A.662(2). So the court 

 

7 Landes asks us to consider all trial irregularities in our cumulative error analysis, 

whether or not the irregularities amount to legal error. But he cites no authority that persuades us 

to do so. See RAP 10.3(a)(6).
No. 81347-1-I/11

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sentenced Landes to 30 months’ confinement and 30 months of community 

custody. But if Landes “fails to complete” or “is administratively terminated from”

his DOSA program, he must serve the unexpired term of his sentence in 

confinement. RCW 9.94A.662(4). So the court ordered an additional term of 

community custody of “12 months or the difference between the term of 

confinement and the statutory maximum sentence, whichever is less,” if Landes 

fails to complete or is administratively terminated from the DOSA program.

Landes argues that the additional 12 months of community custody 

exceeds the statutory maximum penalty of 60 months. But the language of the 

sentence itself limits any additional term of community custody to “the difference 

between the term of confinement and the statutory maximum sentence,

whichever is less.” That is, it precludes any total term of custody longer than 60 

months.8If Landes successfully completes his DOSA program, he does not 

trigger the additional 12 months of community custody.9 But if Landes fails to 

complete his DOSA or is administratively terminated from it, the DOSA statute

mandates he serve the balance of his 60-month sentence in confinement.

10 If 

that occurs, the difference between Landes’ term of confinement and the

statutory maximum would be 0, and he would not serve any of the additional term

 

8 Citing Boyd, 174 Wn.2d at 473, and State v. Bruch, 182 Wn.2d 854, 862, 346 P.3d 724 

(2015), Landes also argues that the language used in the judgment and sentence gives the 

Department of Corrections (DOC) discretion to determine his term of community custody. He is 

incorrect. The language reflects the trial court’s determination that should DOC revoke the DOSA 

sentence, the length of community custody will be “the difference between the term of 

confinement and the statutory maximum sentence, whichever is less.”

9 See RCW 9.94A.662(2)(e).

10 RCW 9.94A.662(4).
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of community custody. The trial court’s sentence does not exceed the statutory 

maximum penalty for FVCO.

Because the court’s error admitting the 911 call was harmless, the court 

did not err by denying Landes’ motion for a mistrial, and cumulative error does 

not apply, we affirm Landes’ DV FVCO conviction. And because Landes’ 

sentence does not exceed the statutory maximum, we affirm his sentence.

 

WE CONCUR: