Opinion
67536-2-I
01-22-2013
STATE OF WASHINGTON, Respondent, v. AARON LORENZO OLSEN, Appellant.
UNPUBLISHED OPINION
Lau, J.
Aaron Olsen appeals his domestic violence felony violation of a court order and interfering with domestic violence reporting convictions. He argues that the trial court erred in admitting the complaining witness's affidavit as substantive evidence. Finding no error, we affirm.
FACTS
The State charged Aaron Olsen by second amended information with two counts of domestic violence felony violation of a court order (counts I and III) and one count of interfering with domestic violence reporting (count II). The State further alleged aggravating factors on count I (the crime was committed "within sight or sound of the victim's or the offender's minor child under the age of eighteen years" and constituted an "ongoing pattern of psychological, physical or sexual abuse of the same victim or multiple victims manifested by multiple incidents over a prolonged period of time") and count III (ongoing pattern of abuse). At trial, witnesses testified to the following facts:
Harriett Griffin lived in a Renton apartment with her three children. Griffin had been dating the children's father, Aaron Olsen, for about 13 years. At the time of the incident described below, a no-contact order protected Griffin from Olsen.
On December 30, 2010, Griffin and her children were playing Monopoly at her apartment with "a man." Report of Proceedings (July 12, 2011) (RP) at 66. On direct examination, Griffin stated she would "rather not say his name" and referred to him simply as "a man." RP at 66. Griffin testified that she received a phone call that night and the man at her apartment got angry because he thought Griffin was talking to a male caller. The man threw objects at Griffin and cursed at her. Griffin ran up and down the hallway and yelled for her children to go to their rooms. The children ran and hid. During the altercation, Griffin was struck by multiple objects, including two candleholders, a set of speakers, an ottoman, and pots and pans. She sustained injuries, including bruising, bleeding, swelling, and pain.
Griffin tried to call the police, but the man grabbed her cell phone and "threw it, stepped on it and broke it . . . ." RP at 76-77. Griffin grabbed a kitchen knife to protect herself. She ran toward the front door and out of the apartment, dropped the knife, and saw police officers approaching. When she saw the police, she yelled, "[H]e was hurting me." RP at 100. As the police entered the apartment, the man jumped off Griffin's second-story balcony and ran away.
Griffin's neighbor, Denise Johnson, heard the altercation and called 911. Police officers arrived soon after Johnson's call.
Griffin initially told the responding police officers that Aaron Olsen assaulted her. The police searched the area but failed to locate a suspect. Griffin then gave a written statement to police describing the incident. In the statement, she again identified Olsen as the man who assaulted her.
Both Griffin and Officer Lane testified to this fact without objection at trial.
Griffin testified that on January 5, 2011, Olsen was again in her apartment. The police knocked on Griffin's door and entered her apartment when she answered. Olsen hid in a closet when the police arrived. The police found Olsen and arrested him. While transporting Olsen to King County jail, Officer Kevin Lane noticed that Olsen had "a fairly significant limp." RP at 152. Olsen later told the jail booking staff that he injured his ankle in a "big fall" the previous week. RP at 153.
On cross-examination, Griffin testified that regardless of what she initially told the police, the man who assaulted her was not Olsen. She testified that her attacker was another man who was a known gang member. She refused to name the other man at trial.
Detective Andie Metzger interviewed Griffin on January 5, 2011 after Olsen was arrested. Detective Metzger testified at trial that during the interview, Griffin said "somebody named Baby Dub" had assaulted her on December 30, not Olsen. RP (July 13, 2011) at 240. Griffin said "Baby Dub" was a gang member.
The jury found Olsen guilty as charged. The jury found an aggravating factor on count I for a child being present during the offense. In a bifurcated portion of the trial, the jury found an aggravating factor for an ongoing pattern of abuse on count I but not on count III. The court imposed a standard range sentence. Olsen appeals.
ANALYSIS
Olsen argues that the trial court erred in admitting Griffin's written statement to police as substantive evidence because the State failed to establish the criteria necessary for admitting a witness's prior inconsistent statements under ER 801(d)(1)(i). The State responds that the trial court fully addressed all relevant factors in its findings and conclusions and properly admitted the statement.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Abuse of discretion occurs "[w]hen a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons . . . ." Stenson, 132 Wn.2d at 701.
Under ER 801(d)(1)(i),
a prior inconsistent statement is not hearsay and may be admitted as substantive evidence if: (1) the declarant testified at trial and was subject to cross-examination; (2) the statement was inconsistent with the declarant's testimony; (3) it was given under oath subject to penalty of perjury; and (4) it was provided at "a trial, hearing, or other proceeding, or in a deposition."State v. Nieto, 119 Wn.App. 157, 161, 79 P.3d 473 (2003) (quoting ER 801(d)(1)(i)). Under this rule, a court can admit a trial witness's prior inconsistent statement as substantive evidence when the statement was made as a written complaint—under oath and subject to penalty of perjury—to investigating police officers. This type of victim statement is frequently referred to as a "Smith affidavit" based on State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982). See State v. Nelson, 74 Wn.App. 380, 386-87, 874 P.2d 170 (1994) (discussing Smith affidavit). Smith directed trial courts to consider the following factors in assessing the reliability of a prior inconsistent statement:
(1) whether the witness voluntarily made the statement; (2) whether there were minimal guaranties of truthfulness; (3) whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause; and (4) whether the witness was subject to cross examination when giving the subsequent inconsistent statement.Nelson, 74 Wn.App. at 387 (footnote omitted) (citing Smith, 97 Wn.2d at 861-63).
During trial, the State offered Griffin's written statement as an exhibit. The court held a hearing regarding the statement's admissibility and carefully considered the four Smith factors on the record. The court's extensive oral ruling—later explicitly incorporated into the court's written findings and conclusions—determined that the statement satisfied the four Smith factors and was admissible under ER 801(d)(1)(i). The court entered the following written findings of fact regarding Griffin's statement:
1. Harriett Griffin, the alleged domestic violence victim in this case, gave a written statement to police on December 30, 2010. She wrote this statement in her own hand within an hour after the incident she documented in the written statement. This statement was given voluntarily on Griffin's own initiative with the intent of helping police identify and locate the person who had victimized her. Officer Lane was present when Griffin wrote and signed the statement. While Officer Lane assisted her in the process of completing the statement, Officer Lane in no way directed the content or improperly influenced the creation of the written statement. Griffin signed the statement under penalty of perjury and was aware that she was signing it under penalty of perjury when she completed the statement. All aspects of the statement's contents, with the exception of the identity of the perpetrator, was consistent with the victim's earlier testimony in open court to the jury, where she was subject to defense cross-examination. Griffin reviewed and was aware of the contents of the statement when she completed the written statement and gave it to police.
2. The taking of the statement and the form used were consistent with standard victim statement procedure. The date and time the statement was taken is contained on the statement itself. This was the normal form and filled out consistent to standard protocol. A victim statement is then submitted by police to a prosecutor to help establish probable cause for a crime. This victim's statement was obtained right after the crime for this purpose. The collection of this statement was a part of the police investigation. This statement was taken within an hour of the incident and was thus more reliable than later testimony of Griffin in Court months later.
Olsen argues that Griffin's statement failed to satisfy the second and third Smith factors. He does not challenge the court's oral or written factual findings regarding admissibility of Griffin's statement. Thus, we treat the findings of fact as verities on appeal and review the conclusions of law de novo. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
Regarding the second Smith factor, Olsen argues that minimal guarantees of truthfulness were absent. Smith established that an oath given in a formalized proceeding tends to assure minimal guarantees of truthfulness. Smith, 97 Wn.2d at 862. Olsen first argues that Griffin's statement fails to meet this requirement because no notary was present when Griffin signed her statement. We disagree. Olsen cites to no authority establishing that "minimal guarantees of truthfulness" requires a notary, and our case law provides to the contrary. See State v. Thach, 126 Wn.App. 297, 308, 106 P.3d 782 (2005) (minimal guarantees of truthfulness established where victim testified that she signed her statement under penalty of perjury, a police officer testified that the victim wrote most of the statement herself and that he assisted the victim with the final questions as she received medical care, and the officer witnessed the victim sign her statement).
Olsen also argues that Griffin did not understand that she was signing the statement under penalty of perjury. But he ignores the court's unchallenged oral and written findings establishing that Griffin knew she was signing the statement under penalty of perjury. The court noted in its oral ruling that Griffin testified she signed the statement under penalty of perjury. The court explained that when Griffin was asked if the police told her she was signing under penalty of perjury, she testified, "They probably did." RP (July 13, 2011) at 301. The court reviewed this testimony and concluded that Griffin "understood that she was signing under penalty of perjury." RP (July 13, 2011) at 301. The court further found that Griffin wrote the statement voluntarily within an hour after the crime, that she reviewed and was aware of its contents when she gave it to the police, and that Officer Lane "in no way directed the content or improperly influenced the creation of the written statement." The court properly concluded that minimal guarantees of trustworthiness were satisfied.
Citing Nieto, 119 Wn.App. 157, Olsen argues that minimal guarantees of truthfulness were absent because Griffin's statement contained "boilerplate language, " no formal procedures were followed, and "the affidavit is ambiguous as to who actually signed the form, as well as the time and place it was signed." Appellant's Br. at 6. His reliance on Nieto is misplaced. Nieto found minimal guarantees of truthfulness were absent partly because the victim filled out a preprinted police form containing boilerplate oath language and "[t]he nature and placement of the boilerplate language [did] little to aver that the statement's content [was] true." Nieto, 119 Wn.App. at 162. In contrast, our review of Griffin's statement reveals no ambiguity in the content or placement of the "penalty of perjury" language. The prosecutor showed Griffin her statement and asked her, "[I]s this your signature, signed under penalty of perjury, here in this statement?" RP (July 12, 2011) at 112. Griffin responded affirmatively. As discussed above, the trial court's unchallenged findings establish that Griffin signed the statement under penalty of perjury, she knew she was doing so, and proper procedures were followed. For these reasons and the reasons discussed above, Olsen's argument fails.
Regarding the third Smith factor, Olsen argues that Griffin's statement was not used to establish probable cause. The four legally permissible methods for determining the existence of probable cause include "'(1) filing of an information by the prosecutor in superior court (see Const. art. 1, § 25, and RCW 10.37.026); (2) grand jury indictment (see RCW 10.[27]); (3) inquest proceedings (see RCW 36.24); and (4) filing of a criminal complaint before a magistrate (see RCW 10.16).'" Smith, 97 Wn.2d at 862 (alteration in original) (quoting State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971)).
Olsen again ignores the trial court's unchallenged findings. The court found, "The taking of the statement and the form used were consistent with the standard victim statement procedure" and explained that "[a] victim statement is then submitted by police to a prosecutor to help establish probable cause for a crime." The court explicitly found that Griffin's statement was used to establish probable cause. As in Smith and Nelson, Griffin's statement "was taken as standard procedure in a police investigation that resulted in the filing of an information." Nelson, 74 Wn.App. at 391. Because Griffin's statement factually satisfied this Smith factor, the trial court properly admitted the statement.
CONCLUSION
Because the trial court did not abuse its discretion in admitting Griffin's written statement under ER 801(d)(1)(i), we affirm.