Opinion
No. 22804-5-III
Filed: March 22, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-03334-1. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. Salvatore F. Cozza.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043, Andrew J. III Metts, Spokane County Pros Office, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Ikeim Vaster was convicted by a jury in Spokane County Superior Court of escape from community custody, RCW 72.09.310. On appeal, he contends a prior judgment and sentence were improperly admitted at trial without proper authentication. He also challenges the sufficiency of the evidence to support the jury's verdict. We find no error, and affirm.
Facts
In June 2003, Mr. Vaster was in community custody related to a February 2002 conviction for possession of a controlled substance. Originally, Mr. Vaster was assigned to a community corrections officer (CCO) in Seattle. He was later transferred to CCO Dan Turner in Spokane, but never contacted Mr. Turner or anyone at the Spokane department of supervision. Mr. Turner attempted to contact Mr. Vaster a couple of times at his last known Spokane address. On June 23, 2003, Mr. Turner decided that Mr. Vaster was violating the conditions of his community custody and arranged for his arrest in October 2003 on an escapee warrant.
Mr. Vaster was charged with one count of escape from community custody, RCW 72.09.310. At trial in February 2004, Mr. Vaster did not stipulate to the felony convictions that were the basis for his community custody. Mr. Turner testified that offenders are required to report to their CCO after release from custody. The CCO then conducts home and field supervision during the period of community custody. Mr. Turner explained that he opened a file on each offender with the judgment and sentence that was the basis for the community custody.
At this point, the State presented Mr. Vaster's February 2002 judgment and sentence. Mr. Turner noted that the document was imprinted with the seal of the clerk of court and identified it as the judgment and sentence for Ikeim Vaster. The deputy prosecutor then asked if that was 'the individual now in the courtroom. Is that correct?' Report of Proceedings (RP) at 27. Mr. Turner answered, 'That is correct.' RP at 27. Defense counsel objected and in a sidebar argued that Mr. Vaster's signature had not been properly authenticated. According to defense counsel, Mr. Turner had never met Mr. Vaster so could not identify him as the person who signed the judgment and sentence. The trial court ruled that the judgment was a self-authenticating document under ER 902(a) and admissible. The court also concluded that the identification of Mr. Vaster by Mr. Turner was a matter of weight, not admissibility.
After Mr. Turner's testimony, the State rested. Defense counsel then moved to dismiss, arguing that there was no foundation for Mr. Turner's identification of Mr. Vaster. The State responded that if Mr. Vaster had an issue with Mr. Turner's identification, he could have addressed the basis for the identification in cross-examination. The trial court considered the evidence in the light most favorable to the State and found sufficient documentary evidence to deny the motion to dismiss. Without presenting testimony, the defense rested. The jury returned a verdict of guilty and Mr. Vaster was sentenced to 90 days of incarceration. He timely appealed.
ER 901 Authentication
Mr. Vaster first challenges admission of the 2002 judgment and sentence document presented as evidence at trial. He contends his signature on the document was not authenticated and the document's authenticity was not supported by evidence. He also argues that Mr. Turner had never met him before and therefore was not qualified to identify him as the defendant who signed the 2002 judgment and sentence.
We first note that defense counsel specifically told the trial court he was not challenging the authenticity of the 2002 judgment document. He only challenged the State's evidence that Mr. Vaster was the person to whom the document pertained. On appeal, however, he dedicates much of his argument to authentication of the document under ER 901. 'If a specific objection is overruled and the evidence in question is admitted, [we] will not reverse on the basis that the evidence should have been excluded under a different rule [that] could have been, but was not, argued at trial.' 5 Karl B. Tegland, Washington Practice: Evidence Law Practice sec. 103.11, at 48 (4th ed. 1999); see also State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986). Accordingly, we may choose to reject this issue on appeal. Mak, 105 Wn.2d at 718. On the other hand, although Mr. Vaster did not argue lack of authentication under ER 901 or ER 902 at trial, the trial court ruled that the 2002 judgment and sentence document was self-authenticating under ER 902. Consequently, we review that ruling for abuse of discretion. State v. Davis, 141 Wn.2d 798, 854, 10 P.3d 977 (2000); State v. Chapman, 98 Wn. App. 888, 890, 991 P.2d 126 (2000).
Records and proceedings of any court are admissible in evidence if they are certified by the attestation of the clerk or other officer in charge of the court records and if the seal of that court is annexed. RCW 5.44.010. Extrinsic evidence of the authenticity of a certified copy of a public record is not required as a condition precedent to admissibility. ER 902(d). Such documents are considered self-authenticating. ER 902. Because the 2002 judgment and sentence document offered into evidence here bears the official seal of the Spokane County Superior Court and is attested by the clerk of court, the document is self-authenticating and was properly admitted. State v. Ross, 30 Wn. App. 324, 327, 634 P.2d 887 (1981).
Mr. Vaster's real issue is with the sufficiency of the evidence to prove that he is the same person who signed the 2002 judgment and sentence. We review the sufficiency of the evidence below.
For the first time in his reply brief, Mr. Vaster argues that admission of the 2002 judgment and sentence violated the confrontation clause of the Sixth Amendment because he was not allowed to cross-examine the clerk of court who attested the document. He cites Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004). Generally, this court will not address an issue raised for the first time in the reply brief. State v. Tjeerdsma, 104 Wn. App. 878, 886, 17 P.3d 678 (2001). In some cases, a pertinent intervening change in the law justifies a delay in raising an argument before the reply brief. See State v. Dhaliwal, 150 Wn.2d 559, 575 n. 11, 79 P.3d 432 (2003). In such cases, RAP 18.8 allows an appellate court to waive the rules 'in order to serve the ends of justice.' RAP 18.8(a); Dhaliwal, 150 Wn.2d at 575 n. 11. This is not one of those cases.
The Sixth Amendment's confrontation clause guarantees a criminal defendant's right to be confronted with the witnesses against him or her. Crawford, 124 S. Ct. at 1359. In Crawford, the U.S. Supreme Court examined previous Washington interpretations of the confrontation clause that allowed admission of an unavailable witness's out-of-court statement if that statement had 'adequate indicia of reliability' — meaning it fell within a recognized hearsay exception or bore "particularized guarantees of trustworthiness." Id. (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)). Washington courts apply a nine-factor test to determine whether a particular statement bears particularized guarantees of trustworthiness — in other words, to determine whether it is reliable. Id. at 1358. This judicial determination of an out-of-court statement's reliability was at issue in Crawford.
After reviewing the historical record on the confrontation clause, Crawford rejected the reliability test for testimonial statements. Id. at 1369-70. Testimonial statements are generally defined as declarations or affirmations made for the purpose of establishing some fact. Id. at 1364. Examples of testimonial statements include pretrial statements the declarants would reasonably expect to be used by the prosecutor, such as affidavits, depositions, confessions, and statements taken by police officers in the course of interrogations. Id. Crawford concluded that 'the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' Id. at 1365.
However, Crawford recognized that some hearsay evidence is admissible against a criminal defendant without implicating the defendant's confrontation rights. Id. at 1367. Any written assertion made out of court and offered at trial to prove the truth of the matter is a hearsay statement. State v. Monson, 113 Wn.2d 833, 836, 784 P.2d 485 (1989). The certified copy of the 2002 judgment here, offered to prove that Mr. Vaster had been sentenced to a period of community custody, was clearly hearsay. See id. (a certified copy of a defendant's driving record is a hearsay statement). However, this hearsay statement is an example of a firmly rooted hearsay exception: the certified copy of a public record, RCW 5.44.040. Crawford specifically allowed for hearsay exceptions that cover 'statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy.' Crawford, 124 S. Ct. at 1367. The judgment and sentence document here is not testimonial. It is not a statement made for the purpose of establishing some fact and it does not constitute a statement the declarant would reasonably believe would be used by the prosecutor in a later trial. Id. at 1364.
Crawford does not alter Washington law regarding nontestimonial material that qualifies as a firmly rooted exception to the hearsay rule. Such material does not implicate the confrontation clause:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
Id. at 1374. Mr. Vaster's 2002 judgment and sentence document was properly admitted as a hearsay exception under RCW 5.44.040. Because Crawford did not change the law pertinent to admission of nontestimonial hearsay that falls within a hearsay exception, further review of this issue raised for the first time in the reply brief is declined. Dhaliwal, 150 Wn.2d at 575 n. 11.
Sufficiency of the Evidence
An inmate in community custody is guilty of escape from community custody if he or she 'willfully discontinues making himself or herself available to the department for supervision by making his or her whereabouts unknown or by failing to maintain contact with the department as directed' by the CCO. RCW 72.09.310. Mr. Vaster contends the State failed to prove beyond a reasonable doubt that he actually violated the conditions of his community custody or that he willfully violated those conditions.
When a criminal defendant challenges the sufficiency of the evidence, we draw all reasonable inferences from the evidence in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Reviewing the evidence in the light most favorable to the State, we will find the evidence sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Askham, 120 Wn. App. 872, 884, 86 P.3d 1224, review denied, 152 Wn.2d 1032 (2004). Circumstantial evidence is considered no less reliable than direct evidence. Goodman, 150 Wn.2d at 781.
Mr. Vaster first contends the State failed to present sufficient evidence that he was the person who signed the 2002 judgment and sentence. Because the 2002 judgment was self-authenticating, it needed no extrinsic evidence to support the authenticity of the signatures on it. ER 902(d). Mr. Turner testified that the Ikeim Vaster who was the defendant in the current action was the same Ikeim Vaster who was the defendant in the 2002 judgment and sentence. By way of an objection made out of the jury's hearing, defense counsel challenged Mr. Turner's ability to identify Mr. Vaster. However, he declined to cross-examine Mr. Turner on this basis. Consequently, the jury heard only testimony that tended to establish that Mr. Vaster was subject to the conditions of community custody set out in the 2002 judgment and sentence.
These conditions of community custody specified that Mr. Vaster was to report to the Spokane department of corrections within 72 hours of his release from custody. Specific to his special drug offender sentencing alternative program, he was to serve from 9 to 12 months in community custody. During that period, he was to 'report to and be available for contact with the assigned community corrections officer as directed.' Ex. 3, at 8-9. He was to comply with ordered education, employment, and/or community service. Any living arrangements and residence locations were subject to the prior approval of the department of corrections.
Mr. Vaster's signature on the 2002 judgment and sentence raises the reasonable inference that he knew the conditions of his community custody. Although he contends the State did not present evidence that he willfully failed to comply with these conditions, Mr. Turner's testimony raised reasonable inferences that Mr. Vaster moved from Seattle to Spokane and chose not to report to the Spokane department of corrections. Viewed in the light most favorable to the State, this evidence is sufficient to allow any reasonable juror to find that Mr. Vaster willfully discontinued making himself available to the department of corrections during his period of community custody. RCW 72.09.310. Goodman, 150 Wn.2d at 781.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C. and KURTZ, JJ., concur.