State Of Washington v. Jose Villareal, Jr. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 76032-7-I >
rri
v. ) C.7
) UNPUBLISHED OPINION
JOSE AUSTINE VILLAREAL, JR., ) ---- -urn
(i) rn '
)
(-
Appellant. ) FILED: January 17, 2017 27
)
DWYER, J. — Jose Villareal, Jr. appeals from the judgment entered on a
jury's verdict finding him guilty of five counts of felony violation of a
postconviction no-contact order. He contends that the trial court erred by
admitting five redacted jail telephone recordings. The State alleged that the
recordings were of conversations between Villareal and the protected party,
Kristin Carter. Villareal asserts that the recordings were not properly
authenticated. We conclude to the contrary.
Villareal also contends, and the State concedes, that his conviction for one
count of felony violation of a postconviction no-contact order was not supported
by sufficient evidence. We accept this concession and remand for vacation of
count six, and resentencing, within the trial court's discretion, on the remaining
convictions. The judgment of guilt on the other four counts stands.
No. 76032-7-1/2
I
Villareal was charged with seven counts of felony violation of a
postconviction no-contact order, pursuant to RCW 26.50.110(5), which makes
violation of a no-contact order a class C felony if the offender has at least two
previous convictions for violating an order issued under that chapter. At the time,
Villareal had two prior convictions for such violations.
At trial, over Villareal's objection, the trial court admitted into evidence five
recorded telephone conversations that the State alleged were between Villareal
and Carter. Community Corrections Officer Maria Cumero—who had previously
met Villareal and had spoken to Carter on the telephone on several occasions—
testified that the individuals on the recordings sounded like Villareal and Carter.
Although Cumero had initially identified Carter's voice on an additional recorded
conversation—designated the fourth recording and count six—she testified at
trial that she had been mistaken and could not identify the female voice on the
fourth recording. The State did not seek to admit the fourth recording and did not
present any other evidence on count six. Counsel for Villareal elected to play the
fourth recording for the jury.
The jury returned a verdict of not guilty on counts one and two, but guilty
on counts three through seven. Prior to sentencing—and represented by new
counsel—Villareal moved to arrest judgment on count six pursuant to CrR
7.4(a)(3), which allows for an arrest of judgment based upon insufficiency of the
evidence on a material element of the charged crime. The motion was denied.
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No. 76032-7-1/3
Villareal was sentenced to a standard range sentence of 60 months incarceration
on each count, to be served concurrently.
II
Villareal first contends that the trial court erred by admitting the recorded
telephone conversations into evidence. This is so, he asserts, because the State
did not present sufficient evidence to authenticate the recordings as being of
conversations between Carter and Villareal. We disagree.
We review a trial court's ruling on the admissibility of evidence for abuse
of discretion. State v. Rodriquez, 187 Wash. App. 922, 939, 352 P.3d 200, review
denied, 184 Wash. 2d 1011 (2015). Abuse of discretion occurs when a trial court's
decision is manifestly unreasonable or based on untenable grounds. State v.
Bradford, 175 Wash. App. 912, 927, 308 P.3d 736 (2013).
Pursuant to ER 901(a), "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims." Authentication is a threshold question of admissibility and the
requirement is met "if sufficient proof is introduced to permit a reasonable trier of
fact to find in favor of authentication or identification." State v. Danielson, 37 Wn.
App. 469, 471, 681 P.2d 260 (1984). In making such a preliminary
determination, the trial court is not bound by the rules of evidence. State V.
Williams, 136 Wash. App. 486, 500, 150 P.3d 111(2007) (citing ER 104(a); ER
1101(c)(1); Danielson, 37 Wash. App. at 471)).
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No. 76032-7-1/4
The identity of a party to a telephone call may be established by direct or
circumstantial evidence. Danielson, 37 Wn. App, at 472. ER 901 provides a
non-exhaustive list of examples of information that the trial court may consider
when determining whether a prima facie showing of authenticity is made,
including testimony by a witness with knowledge, distinctive characteristics taken
in conjunction with circumstances, and voice identification by opinion based upon
hearing the voice at any time under circumstances connecting it with the alleged
speaker. ER 901(1), (4), (5).
Here, the trial court heard testimony from Cumero regarding the telephone
system that Villareal had access to while incarcerated in the Nisqually Public
Safety Complex. Cumero testified that each inmate is assigned a personal
identification number (PIN) that the inmate uses to place a telephone call. When
placing a telephone call using their PIN, the inmate is required to speak their first
and last name into the telephone and the telephone system will then verify that
the name matches the assigned PIN. These telephone conversations are
recorded and can be accessed by authorized personnel.
Cumero testified that she had spoken with Villareal in person during a
meeting in her office on June 25, 2015, and had spoken to Villareal over the
telephone on other occasions. Cumero also testified that she had spoken to
Carter over the telephone on multiple occasions and could recognize Carter's
telephone number. The telephone number that Villareal dialed on multiple
occasions while he was incarcerated was identified by Cumero as being Carter's
number. Cumero then testified that, after listening to the recordings of the calls
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No. 76032-7-1/5
made to Carter's telephone number, she recognized the voices and identified the
speakers as Villareal and Carter. This testimony served as proper authentication
of the recordings.
In addition to the identification of Villareal and Carter by a witness with
knowledge of their voices, the content of the telephone conversations also
supports the trial court's decision to admit the recordings into evidence. For
instance, during multiple calls the speakers discussed their daughter, identified
as Farrah in one call. Villareal and Carter have a daughter together named
Farrah. During another call the male speaker calls the female speaker "Kristin"—
Carter's first name—and the female speaker refers to the male speaker as
"Mexi"—Carter's nickname for Villareal.
Cumero's personal knowledge of the parties' voices, along with the
circumstances surrounding the telephone calls, provided her with a reasonable
basis to testify that the participants on the call were Villareal and Carter. Thus,
the telephone call recordings were properly authenticated. Accordingly, the trial
court did not err by admitting the recordings.
III
Villareal next contends, and the State concedes, that the State failed to
present sufficient evidence to support his conviction for count six of a violation of
a postconviction no-contact order. We agree.
Evidence is sufficient to support a conviction if, when viewed in the light
most favorable to the State, any rational trier of fact could have found the
essential elements of the charged crime proved beyond a reasonable doubt.
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No. 76032-7-1/6
State v. Garbaccio, 151 Wash. App. 716, 742, 214 P.3d 168 (2009) (citing State v.
Hosier, 157 Wash. 2d 1, 8, 133 P.3d 936 (2006)). Accordingly, we will reverse a
conviction for insufficient evidence only when no rational trier of fact could have
found that the State proved all of the elements of the crime beyond a reasonable
doubt. State v. Smith, 155 Wash. 2d 496, 501, 120 P.3d 559 (2005).
Here, count six consisted entirely of one purported telephone call between
Villareal and Carter, which was designated call four. Although Cumero initially
identified Carter as the female speaker on call four, she testified at trial that she
was mistaken and that the voice did not belong to Carter. The State did not seek
to admit call four into evidence and did not present any other evidence on count
six. Nevertheless, the jury returned a verdict of guilty on count six. The State
concedes error.
We remand for vacation of the conviction for count six (violation of a
postconviction no-contact order). The trial court may exercise its discretion in
determining whether resentencing on the other convictions is called for. The
judgment of guilt as to the other counts stands. We affirm in all other respects.
Affirmed in part, and reversed in part.
We concur:
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