No. 21453-2-IIIThe Court of Appeals of Washington, Division Three. Panel Seven.
Filed: November 25, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County Docket No: 02-1-00557-1 Judgment or order under review Date filed: 09/11/2002
Counsel for Appellant(s) Sharon Marie Brown Attorney at Law PO Box 4056 Pasco, WA 99302-4056
Joseph Theodore McNeil (Appearing Pro Se) #714586 P.O. Box 769 Connell, WA 99326
Counsel for Respondent(s) Terry Jay Bloor Attorney at Law Benton Co Pros Office 7320 W Quinault Ave Kennewick, WA 99336-7665
KATO, A.C.J.
Joseph McNeil was convicted of felony violation of a protection order. Claiming the court improperly admitted hearsay statements and the evidence did not support his conviction, he appeals. We affirm.
As a result of his contact with Laurie Carrillo on May 28, 2002, the State charged Mr. McNeil with felony violation of a protection order. He waived his right to jury trial.
Ms. Carrillo’s mother, Patricia Epler, was with her on May 28, 2002, when Ms. Carrillo left to go to the store. Upon her return, she was crying and trying to cover herself up with what was left of her shirt. Ms. Carrillo tried to catch her breath and went to put on some clothes. Ms. Epler told her daughter to call the police; she did. Ms. Epler then asked her if Mr. McNeil had done this to her, whereupon she said yes. Ms. Carrillo’s eye was `messed up’ and she had scratches `here and there.’ Report of Proceedings (RP) at 51. After her mother asked her what happened, Ms. Carrillo said she was walking down the sidewalk when Mr. McNeil saw her wearing his jacket. He told her to take it off and he started pulling the jacket off her. Ms. Carrillo said that `he was pounding me.’ RP at 52.
Officer Scott Child contacted Ms. Carrillo at Ms. Epler’s residence on May 28. When he arrived, Ms. Carrillo was extremely upset. She told the officer she was walking to the Sun Mart when she was approached by Mr. McNeil. He grabbed her hair and took his jacket off her, ripping her shirt. He punched her in the face and left. Ms. Carrillo also told the officer there was a no contact order in place.
Officer Child located that order. A certified copy was admitted at trial. He noted Ms. Carrillo’s eyes were swollen and her shirt was torn.
Officer Duane Kist arrested Mr. McNeil on May 29. The officer had seen him on the front porch of Ms. Carrillo’s residence. He then saw him driving away so he effected the stop. Officer Kist searched Mr. McNeil’s vehicle incident to the arrest and found two letters addressed to Ms. Carrillo.
Ms. Carrillo was called for the defense and asserted her right not to testify when asked about this incident.
Mr. McNeil testified in his own defense. He denied seeing Ms. Carrillo on May 28. He said she had called him on that day and asked him to come get her at the store, but he refused. He did acknowledge seeing her on May 29. She had been in his car and must have had the letters there at that time.
The court found Mr. McNeil guilty of violating a protection order. This appeal follows.
He first claims the court erred by admitting as excited utterances Ms. Carrillo’s hearsay statements to Ms. Epler and Officer Child. We review the decision for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 597-98, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
‘The excited utterance exception is based on the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.’ State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). A statement `qualifies as an excited utterance . . . if (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.’ Id.
Whether the declarant makes statements while still under the stress of an event is a factual determination. State v. Sims, 77 Wn. App. 236, 238, 890 P.2d 521 (1995). Often, the key factor is “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.” State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnson v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)). Spontaneity is critical. State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097
(2000).
The court admitted Ms. Carrillo’s hearsay statements. While the defense objected to Ms. Epler’s testimony, it made no objection to the testimony of Officer Child. The issue with respect to Officer Child’s testimony was thus not preserved for review. ER 103; RAP 2.5(a); State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995), review denied, 129 Wn.2d 1007 (1996).
The challenge to the admission of Ms. Epler’s testimony, however, was preserved. The challenge nonetheless fails. Ms. Carrillo was still under the stress of the event when she made the statements to her mother. She was crying and appeared upset. Her clothes were torn. She told her mother what had just happened.
But Mr. McNeil asserts that Ms. Carrillo’s statements were improperly admitted because they were unreliable and thus violated the confrontation clause. The excited utterance exception to the hearsay rule is a firmly rooted exception and thus automatically meets the reliability test required to comply with the confrontation clause. Woods, 143 Wn.2d at 595. The court did not err by admitting the statements over this objection.
Mr. McNeil also claims that Ms. Carrillo was not credible so her statements should not have been admitted. But this credibility determination is left to the trier of fact and is not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
He further contends that Ms. Carrillo’s refusal to testify about the incident at trial required the court to exclude her statements. But a court is not required to exclude evidence that otherwise qualifies as an excited utterance because the witness later recants. State v. Briscoeray, 95 Wn. App. 167, 174, 974 P.2d 912, review denied, 139 Wn.2d 1011 (1999). Although Ms. Carrillo did not recant; she still refused to testify. The court was not required to exclude her excited utterances on this ground.
Mr. McNeil next claims the evidence was insufficient to support his conviction. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628
(1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Mr. McNeil was charged with violation of a protection order pursuant to RCW 26.50.110. A protection order was issued requiring Mr. McNeil to stay away from Ms. Carrillo. On May 28, he contacted her in violation of that order. He had two prior convictions for violation of a protection order. The evidence was sufficient to support the conviction.
Mr. McNeil also challenges the sufficiency of the evidence by again asserting that Ms. Carrillo’s statements were not credible. But the credibility of witnesses and the weight to be given the evidence are matters for the finder of fact. Bender v. City of Seattle, 99 Wn.2d 582, 594-95, 664 P.2d 492 (1983). Mr. McNeil attacked Ms. Carrillo’s credibility at trial, but the court determined she was credible. We will not disturb its decision.
Mr. McNeil further challenges the sufficiency of the evidence by claiming the State did not cite the proper provision of RCW 26.50.110 in the information. Because his contention is unsupported by any authority, we decline to review it. RAP 10.3(a)(5).
Affirmed. A majority of the panel has determined 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.
KURTZ and SCHULTHEIS, JJ., concur.