Opinion
No. 52907-2-I.
Filed: May 10, 2004.
Appeal from Superior Court of King County. Docket No: 03-8-01017-2. Judgment or order under review. Date filed: 08/11/2003. Judge signing: Hon. Leroy McCullough.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St., Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Sara Lynn McCulloch, King Co Pros Office, 516 3rd Ave, Seattle, WA 98104-2390.
The victim's initial testimony that a tape recording accurately reflected the contents of her 911 telephone call was sufficient to authenticate the tape for admission into evidence. The trial court did not abuse its discretion by rejecting the victim's subsequent testimony questioning the accuracy of the recording. The delay in entry of findings of fact and conclusions of law in this juvenile proceeding did not prejudice the appellant, and Jorge Perez's challenge to the restriction upon `unwanted contact' with the victim is moot. We affirm.
FACTS
Within minutes of a 911 call, Officer Jeffrey Johnson responded and found Guadalupe Hernandez Freitas crying and upset. She told the officer that her 17-year-old son, Jorge Perez, hit her after she took a video game away from him. Perez swung his arm with his hand in a fist, making contact with one of her arms and causing her to step backwards. Perez was charged with fourth degree assault (domestic violence).
Freitas recanted at trial, testifying that she and her son pulled and tugged at the video game but that there was no physical contact between them. She had taken her younger children to the neighbor's house not out of a concern for safety, but `so they wouldn't witness or see any of this[.]' She testified that she told the `911 officer' that her husband had been released from jail and had threatened to harm everyone in the home. Her son had threatened to run away, and she was upset and afraid that if her son left the house, then she would not be able to protect the family against her husband if he appeared. She testified that her son would never hurt her.
To authenticate the tape recording of the 911 telephone call, the prosecutor played a short excerpt of the 911 tape for Freitas who acknowledged that she recognized her voice on the tape. Freitas then listened to the entire tape outside the courtroom. When asked if the tape was an accurate depiction of what she told the 911 operator, she answered, `Basically, yes.' The prosecutor asked, `Basically?' and Frietas responded, `Yes, yes it is.'
On voir dire by Perez's attorney, Frietas acknowledged that she previously told the attorney that she did not remember saying the things that were on the tape and that she was extremely upset when she made her 911 call. During argument to the court regarding the authentication requirements, Frietas interjected that the tape includes a statement that she removed her younger children because her son had threatened them, and she did not recall ever saying that and that her son did not threaten her other children at all. The court asked her if it was her voice on the tape and whether the tape represents what she said when she made the 911 call. Frietas said that she does not believe she said `something like that' and that she wonders if there was tampering. When the court inquired again, she responded that the tape `doesn't sound like me saying it.'
The court ruled that the tape could be played `I believe that the earlier information provided by the witness is sufficient to reach a conclusion that, A, it is her voice; and, B, it is [what] the conversation was at that time.' The court concluded that the tape had been adequately authenticated and other questions regarding the information on the tape could be the subject of cross-examination.
The court found that Perez did hit his mother and found him guilty of fourth degree assault (domestic violence).
DECISION
Perez argues that the State did not adequately authenticate the tape recording of the 911 call. The proponent of a recording of a 911 call can authenticate the recording by calling a witness who has personal knowledge of the original conversation and the contents of the recording, who testifies that the recording accurately portrays the original conversation, and who identifies the voice on the recording. Because the proponent seeking to admit a document must make only a prima facie showing of authenticity, ER 901's requirement of authentication or identification is met if the proponent shows proof sufficient for a reasonable fact-finder to find in favor of authenticity. Here, the trial judge was in the best position to assess the credibility of the mother's initial testimony that the tape recording did reflect her voice and that it did accurately reflect her statements to the 911 operator. Further, the mother's statement on the tape that her son had hit her is corroborated by her excited utterance to the investigating officer who spoke with her minutes after the 911 call. The court did not err in allowing the tape of the 911 call to be played at the bench trial.
State v. Jackson, 113 Wn. App. 762, 769, 54 P.3d 739 (2002) (recording of call to 911 was properly authenticated by testimony of caller, who reviewed the recording and identified herself as the voice on the recording and testified that the recording accurately portrayed the original conversation).
State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003), review denied, 150 Wn.2d 1028 (2004).
Perez assigns error to the lack of findings of fact and conclusions of law. The State filed proposed findings of fact and conclusions of law more than a month before the appellant's opening brief was filed, and the superior court signed identical findings of fact less than a month after the appellant's opening brief was filed. Because the findings were not tailored to meet the issues raised in the appellant's opening brief, no relief is warranted on appeal.
State v. Litts, 64 Wn. App. 831, 836, 827 P.2d 304 (1992).
Finally, Perez argues that the provision of the disposition that Perez have no `unwanted contact' with the mother fails to adequately apprise him of what conduct is prohibited. The State responds that this issue is moot because the court did not order community supervision so there is no mechanism for enforcement of this provision and the juvenile court has now lost jurisdiction over Perez. The disposition order does not contain any community supervision, the juvenile court's extension of jurisdiction over Perez expired in October 2003, and the court did not enter a domestic violence no-contact order. Therefore, the State's acknowledgement that no court has any authority to enforce the `no unwanted contact' order is well taken and the issue is moot because there is no effective relief that could be granted on appeal.
The disposition for fourth degree assault (domestic violence) could have included a domestic violence no-contact order. State v. O'Brien 115 Wn. App. 599, 63 P.3d 181 (2003). But here, the court did not enter such a domestic violence no-contact order. State v. O.P., 103 Wn. App. 889, 891, 13 P.3d 1111 (2000) (`After the trial, the court found that O.P. had committed fourth degree assault and entered findings that included the domestic violence designation. As a condition of the standard range disposition it imposed, the court prohibited O.P. from having "unwanted physical contact" with his mother. It did not issue a separate no-contact order under RCW 10.99.050(2).').
State ex rel T.B. v. CPC Fairfax Hosp., 129 Wn.2d 439, 447, 918 P.2d 497 (1996).
We affirm.