Opinion
No. 52238-8-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-8-04651-9. Judgment or order under review. Date filed: 04/21/2003. Judge signing: Hon. Suzanne M Barnett.
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
During J.R.'s trial for second degree rape, the victim testified that she wanted to call the police after the rape, but decided to call her friend instead. Over defense objections, the juvenile court admitted the victim's hearsay statements to her friend as an excited utterance. The court also admitted a 911 tape containing statements made by the victim and her friend. J.R. appeals his rape conviction, arguing that the victim's decision to call her friend instead of the police shows that her subsequent statements were the product of reflection and were not, therefore, excited utterances. He also challenges the admission of the 911 tape.
Because we conclude the court did not abuse its discretion in admitting the victim's statements to her friend, and because any error in admitting the 911 tape was harmless, we affirm.
DECISION
A hearsay statement is admissible as an excited utterance if three criteria are satisfied: `(1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition.' J.R. contends the second criterion was not satisfied in this case because the victim's statements to her youth pastor were the product of reflection. He concludes that the trial court trial abused its discretion in admitting the statements. We disagree.
State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000); ER 803(a)(2).
Davis, 141 Wn.2d at 841 (admission of hearsay statement is reviewed for abuse of discretion).
A challenge to the second criterion requires us to determine `whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.' We consider the amount of time that passed between the startling event and the utterance, and any other facts relating to whether the witness had an opportunity to reflect on the event and fabricate a story about it.
State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001).
State v. Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912 (1999).
Here, the evidence showed that the victim, E.V., called her youth pastor, Janelle Villegas, shortly after the rape. E.V. was crying `intensely' and told Villegas she was too scared to call the police. J.R. was still in her residence and came back into her room during the call. When Villegas heard a male voice, she called 911 on a different phone. Villegas relayed E.V.'s statements to the 911 operator, who eventually called E.V. and spoke to her directly. When the police arrived, they found E.V. hiding under her bed. Her boxers and underwear were ripped and she was trembling and crying. These facts demonstrate all the attributes of an excited utterance.
The evidence varied regarding the amount of time that passed between the rape and E.V.'s phone call to Villegas. E.V. testified that she called Villegas six minutes after J.R. left her room. Other evidence suggested that several hours may have passed between the rape and the call. The difference is not material, however, since a delay of several hours is well within the reach of the excited utterance exception. See, e.g., State v. Flett, 40 Wn. App. 277, 287, 699 P.2d 774 (1985) (statement made seven hours after rape); State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (statements made three hours after rape); State v. Guizzotti, 60 Wn. App. 289, 296, 803 P.2d 808 (1991) (statement made seven hours after rape).
J.R.'s argument that E.V.'s statements were the product of reflection, rather than the stress of the event, is unpersuasive. He points out that E.V. told a defense investigator that she thought about calling the police but decided to `resolve it myself with my friend.' But this evidence falls far short of demonstrating the sort of calm reflection that removes a statement from the excited utterance exception. E.V.'s statements were made in a state of severe stress precipitated by the rape and the continuing presence of her assailant. Her decision to seek help, and her thoughts about who to seek help from, were made while she was in the throes of that trauma and do not demonstrate an opportunity or effort to fabricate her story. The trial court did not abuse its discretion in admitting the statements to Villegas.
E.V. clarified at trial that she had wanted to call the police, but decided to call her youth pastor first because she would understand what she had gone through.
See State v. Lawrence, 108 Wn. App. 226, 234-36, 31 P.3d 1198 (2001), review denied, 145 Wn.2d 1037 (2002) (rape victim's statements were not the product of reflection even though she admitted she did not initially call police because she had an outstanding warrant for her arrest; `[t]he fact that she briefly hesitated before calling the police does not show that she lacked the requisite excitement. . . . Any opportunity to reflect on her own self-interest was made during a time of severe stress.'); State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997) (excited utterance is a spontaneous statement made before declarant has had `time to calm down enough to make a calculated statement based on self interest'); compare State v. Brown, 127 Wn.2d 749, 903 P.2d 459 (1995) (trial court erred in admitting 911 tape as excited utterance because victim testified she had the opportunity to, and did in fact, decide to fabricate part of her story prior to calling 911).
J.R. also challenges the court's admission of the 911 tape. The court ruled that the tape, which contained both Villegas' statements to the 911 operator and a separate call between E.V. and the operator, was admissible as either an excited utterance or a present sense impression. J.R. contends the tape did not qualify as a present sense impression, but says nothing about whether it qualified as an excited utterance. That omission is fatal.
Report of Proceedings (Mar. 20, 2003) at 99-100. The present sense impression exception is found in ER 803(a)(1).
We note that during the portion of the tape in which E.V. speaks directly to the 911 operator, she is still crying intensely and clearly remains under the influence of the rape.
In any event, even assuming the court erred in admitting the tape, the error was harmless. An evidentiary error is harmless if, within reasonable probabilities, the outcome of the trial would not have been materially affected absent the error. There is no reasonable probability that the outcome of J.R.'s trial would have been different absent the 911 tape. The tape was cumulative of Villegas' and other witnesses' testimony and added little to the State's case. E.V.'s account of the incident was corroborated by her torn clothing and was consistent in each of her statements. J.R.'s account, on the other hand, was neither consistent nor corroborated. The juvenile court ultimately found he was not credible, noting his inconsistent versions of the incident and the absence of any motive for E.V. to lie. Any error in admitting the 911 tape was harmless.
State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986).
Last, J.R.'s contention that the court failed to enter written findings is contrary to the record. Written findings were entered in July, 2003, roughly one month prior to the filing of J.R.'s opening brief.
Affirmed.
KENNEDY and COX, JJ., concur.