State Of Washington, Res. v. Jenaro De Jesus Hernandez, App. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 72411-8-1 p"
v.
PUBLISHED OPINION 7
JENARO DE JESUS HERNANDEZ,
Appellant. FILED: February 16, 2016 l-
Dwyer, J. — Two principles control the decision in this case. First, under
the doctrine of forfeiture by wrongdoing a defendant forfeits his Sixth Amendment
right to confront a witness against him when clear, cogent, and convincing
evidence demonstrates that he engaged in wrongdoing that was designed to,
and did, procure the unavailability of the witness at trial. Second, when a
defendant forfeits his Sixth Amendment right of confrontation by wrongdoing, he
also forfeits his right to interpose hearsay objections to the same evidence. In
this case, involving allegations ofsex crimes committed upon Y.C., a child, by
Jenaro Hernandez, the trial court correctly ruled that Hernandez engaged in
wrongdoing—with Olga, Y.C.'s mother as his co-conspirator1—that was designed
to, and did, procure the unavailability of Y.C., Olga, and Y.C.'s brother at trial.
The trial court, thus, correctly ruled that Hernandez had forfeited his Sixth
Amendment right to confront any of these witnesses. Additionally, because
1Forclarity, we referto Y.C.'s mother by her first name, Olga.
No. 72411-8-1/2
Hernandez forfeited his Sixth Amendment right of confrontation, he also forfeited
the right to interpose hearsay objections to Y.C.'s testimony, including an
objection pursuant to RCW 9A.44.120, the child hearsay statute. Accordingly,
we affirm.
I
On November 21, 2013, eight-year-old Y.C. approached her teacher in the
classroom at her school. Y.C. told her teacher that "this hurts," while pointing to
her genital area. When Y.C.'s teacher asked why it was hurting, Y.C. responded
"[m]y stepdad." Y.C.'s teacher then asked if it had been going on for a while, and
Y.C. responded "yes."
Y.C.'s teacher left her classroom in the care of a student teacher and
immediately escorted Y.C. to the nurse's office. Upon arrival, Y.C's teacher
located the school nurse and the school psychologist. Y.C.'s teacher informed
them that "we may have an issue of abuse here, sexual abuse." While in the
nurse's office, Y.C. explained—in the presence of her teacher, the nurse, and the
psychologist—that the alleged sexual contact with her "stepdad" began when she
was six years old and recounted the details to them. Following this conversation
with Y.C, the psychologist wrote a report and telephoned both the police and
Child Protective Services.
Later that same day, Y.C. was taken to the Swedish Mill Creek emergency
department by a foster care representative. She was there examined by a
forensic nurse. During that examination, Y.C. identified her "stepdad,"
No. 72411-8-1/3
Hernandez, as the man who had sex with her.2 Y.C. also, once again, recounted
the details of her alleged sexual contact with Hernandez.
In the days following Y.C.'s initial report at school, Y.C. was interviewed by
a child interview specialist at the request of law enforcement. Olga and Y.C.'s
brother also spoke with Detective Karen Kowalchyk of the Everett Police
Department about the instances of alleged sexual contact between Hernandez
and Y.C.
Ultimately, the State charged Hernandez by twice amended information
with three counts of rape of a child in the first degree, three counts of child
molestation in the first degree, and one count of tampering with a witness. He
pleaded not guilty to all counts.
On June 3, 2014, the defense filed a motion to compel witness interviews
with Y.C. and Olga. Two days later, the parties appeared before the trial judge to
address preliminary matters. Defense counsel orally moved to compel interviews
with the intended witnesses.
MS. LOPEZ DE ARRIAGA [Defense Counsel]: We had interviews
scheduled today at 2:30 of the alleged victim and her mother. It's
my understanding from counsel that those are not going to go
forward. I can't defend my client effectively, Your Honor, without
that interview. I'm here asking the Court to compel the State to
produce the witnesses for interview.
THE COURT: Do you have any objection?
MR. ALSDORF [Prosecutor]: I don't really see a way I can object,
but Iwould like to explain the state of affairs, if that's okay, if I could
by way of [an] offer of proof.
2 The record indicates that Hernandez was actually Olga's boyfriend.
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No. 72411-8-1/4
THE COURT: Go ahead.
MR. ALSDORF: It came to my attention, perhaps about a month
ago now, a few weeks ago anyway, that [Y.C], the victim in this
case, had stopped attending school. When Child Protective
Services went to investigate why she was no longer coming to
school, they went to her apartment and found that the apartment
had been completely moved out of. No sign of anyone residing
there.
Who should have been residing] there is [Y.C], her older
brother, [M.C], and [Y.C.'s] mother, all three of whom would be
witnesses if they were available.
I had Detective Kowalchyk investigate the matter. Her
efforts included contacting co-workers of [Y.C.'s] mother at her
place of employment. They confirmed that [Y.C.'s] mother had also
stopped attending her job. Further, that they had heard from her by
telephone, and that [Y.C.'s] mother was indicating over the
telephone that she had taken [Y.C] and herself to Mexico
specifically to avoid all of the appointments, I think, related to this
case and this investigation.
So that's our understanding of where [Y.C] and her mother
and her brother are is in Mexico. Although I certainly acknowledge
the State has some obligation to make diligent efforts to put our
witnesses in contact with the defense for an interview, I think that
those efforts can't really extend into Mexico for all practical
purposes.
So I guess that's my way of saying [that] I intend to proceed
in this case without the live testimony of [Y.C], her mother, or her
brother.
The trial court then ordered "the State to make reasonable and diligent
efforts to locate and produce those witnesses." In so ordering, the trial judge
noted that, "I think that's all the Court can do and all that the State is responsible
to do."
Following this ruling, the State continued its efforts to procure the
presence of the intended witnesses at trial. These efforts were later outlined in
an affidavit that was attested to by the prosecutor and in the State's trial
No. 72411-8-1/5
memorandum as detailed offers of proof to the trial court. The record indicates
that the State's efforts included having Detective Kowalchyk contact Olga's
employer, co-workers, and several of her family members. Olga's brother
provided Kowalchyk with a private telephone number in Mexico, from which he
had received a call from Olga. The State's affidavit detailed that when
Kowalchyk utilized an interpreter to call the telephone number provided by Olga's
brother, "[o]n the third attempt a young woman answered, who claimed to not
know who Olga was and that it must be a wrong number. This woman
assertively told the interpreter to never call back again."
In addition to making these telephone calls, the affidavit explained that
"the State obtained copies of the audio recordings of all of the defendant's jail
phone calls" and arranged to have them translated from Spanish into English. A
preliminary examination of the call log was "concerning" to the State, given that it
evidenced that "the defendant ha[d] placed 142 calls to Olga's cell phone number
since the Court ordered him not to have contact with any [of the] State's
witnesses. Since that time the defendant ha[d] also placed 16 calls to the land
line associated with Olga and [Y.C.'s] now-vacant apartment."
Finally, the affidavit detailed that the prosecutor "asked Detective
Kowalchyk to investigate whether corroborative evidence exist[ed] to prove
exactly when Olga, [Y.C], and [Y.C.'s brother], purchased tickets to travel by bus
to Mexico, and when they crossed the border." In effectuating this request,
Kowalchyk contacted the Greyhound bus company and law enforcement officials
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No. 72411-8-1/6
who were familiar with the border between the United States and Mexico.3
On June 23 and 24, the court held a hearing to determine the admissibility
of certain statements made by Y.C, Olga, and Y.C.'s brother. After hearing
testimony and the argument of counsel, the trial court found that statements
made by Y.C, Olga, and Y.C.'s brother were admissible pursuant to the forfeiture
by wrongdoing doctrine and that certain of Y.C.'s statements were admissible
pursuant to the child hearsay statute, RCW 9A.44.120.4
A trial was held and the jury found Hernandez guilty on each count. He
was sentenced to an indeterminate sentence ranging from a minimum of 318
months of confinement to a maximum term of life in prison. He now appeals.
II
Hernandez contends that the trial court erred by concluding that certain
statements made by Y.C, Olga, and Y.C.'s brother were admissible under the
forfeiture by wrongdoing doctrine. This is so, he asserts, both because the "State
did not satisfy the 'wrongdoing' requirement,"5 and because the witnesses were
not "unavailable" as evidenced by "the State['s] fail[ure] to engage in reasonable,
good faith efforts to secure the witnesses' presence at trial."6 We disagree.
"The Sixth Amendment provides that '[i]n all criminal prosecutions, the
3The record indicates that, when the intended witnesses were still in the United States,
the State's efforts to procure their presence at trial included having a prosecutor and a victim
witness advocate meet with Y.C. and Olga. In addition, after receiving notification that the
intended witnesses may have been in Mexico, the State mailed subpoenas to their last known
address.
4The trial judge did make a redaction to one of Olga's statements. He declined to admit
what he deemed to be a "very speculative" statement that was uttered by Olga about
Hernandez's alleged desire to touch Y.C.
5 Br. of Appellant at 20.
6 Br. of Appellant at 1, 17.
No. 72411-8-1/7
accused shall enjoy the right... to be confronted with the witnesses against
him.'" State v. Koslowski, 166 Wash. 2d 409, 417, 209 P.3d 479 (2009) (alterations
in original) (quoting U.S. Const, amend. VI). "[T]he Sixth Amendment's right of
an accused to confront the witnesses against him ... is made obligatory on the
States by the Fourteenth Amendment." Pointer v. Texas. 380 U.S. 400, 403, 85
S. Ct. 1065, 13 L. Ed. 2d 923 (1965).7
The right of confrontation has been "'most naturally read'" as "'admitting
only those exceptions established at the time of the founding.'" Giles v.
California, 554 U.S. 353, 358, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (quoting
Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 158 L Ed. 2d 177
(2004)). Under one such exception, the forfeiture by wrongdoing doctrine,
"defendants who are responsible for a witness' unavailability at trial forfeit their
right to confront the missing witness." State v. Mason, 160 Wash. 2d 910, 924, 162
P.3d 396 (2007). Forfeiture occurs "when clear, cogent, and convincing
evidence shows that the witness has been made unavailable by the wrongdoing
of the defendant and that the defendant engaged in the wrongful conduct with the
intention to prevent the witness from testifying." State v. Dobbs, 180 Wash. 2d 1,
11, 320 P.3d 705 (2014).8 "To permit the defendant to profit from such conduct
7"Article I, section 22 of the Washington Constitution also guarantees criminal
defendants the right to confront and cross-examine witnessesagainstthem. However, as [the
defendant] made no arguments based on the state constitution, we do not address the state
constitution here." State v. Ohlson. 162 Wash. 2d 1, 10 n.1, 168 P.3d 1273 (2007).
8We review legal issues arising out ofthe Sixth Amendment's confrontation clause de
novo. Koslowski, 166 Wash. 2d at 417. When we review factual findings that must be proved by
clear, cogent, and convincing evidence, as here, "the fact at issue must be shown to be 'highly
probable.'" Dobbs. 180 Wash. 2d at 11 (quoting In reWelfare ofSeqo. 82 Wash. 2d 736, 739, 513
P.2d 831 (1973)); Mason, 160 Wash. 2d at 926-27 (declining to adopt a preponderance ofthe
No. 72411-8-1/8
would be contrary to public policy, common sense and the underlying purpose of
the confrontation clause.'" Dobbs, 180 Wash. 2d at 5 (quoting United States v.
Carlson. 547 F.2d 1346, 1359 (8th Cir. 1976)).
A
Hernandez first asserts that the State failed to demonstrate that he
engaged in wrongdoing. We disagree.
The forfeiture doctrine's application is not limited to direct acts of
wrongdoing by a defendant. Giles, 554 U.S. at 359-61. Indeed, it includes
instances where a defendant "uses an intermediary for the purpose of making a
witness absent." Giles. 554 U.S. at 360. In addition, it is not limited to acts of
wrongdoing that are procured by means of violence. Dobbs. 180 Wash. 2d at 4
(noting that "[w]ithout such a forfeiture rule, defendants would have 'an
intolerable incentive ... to bribe, intimidate, or even kill witnesses against them'"
(emphasis added) (alteration in original)) (quoting Giles. 554 U.S. at 365).
In ruling on the motion in limine, the trial judge made a factual
determination that Hernandez engaged in wrongdoing by analyzing several
recorded jailhouse telephone calls.
The series of calls that I've reviewed are an effort by [the]
defendant to get [Y.C], Olga, and [Y.C.'s brother] out of the
country. They are used in code which is so rudimentary that it does
not require a code breaker to understand what is going on here. It
evidence standard of proof); In re Pet, of LaBelle. 107 Wash. 2d 196, 209, 728 P.2d 138 (1986)
("[W]here the State must prove its case by clear, cogentand convincing evidence, the evidence
must be more substantial than in the ordinary civil case in which proof need only be by a
preponderance ofthe evidence, in other words, the findings must be supported by substantial
evidence in light of the 'highly probable' test." (citation omitted)).
No. 72411-8-1/9
is not speculation to understand that the words "goats" and "herd"
refer to the children. "Shepherd" refers to Olga. "Movies" refers to
Mexico. "Chocolate" refers to cash. He knows this, he knows he's
being recorded, and he makes these references in code that Olga
understands in order to manipulate her and to have the effort to get
her out of the country established.
The code, as I said, there's no speculation on anybody's part
ifyou read the transcripts as to what's -- what this means and how
she responds.
I reject the idea that Olga initiated this. She did not. And I'll
get to the transcript. On page 128 of the transcript, in fact, that's
clear to me that she did not. If you look at 128, you will see the
following exchange:
[Hernandez]: "Hello."
Olga says, "Hello."
[Hernandez]: "Hello, love."
Olga: "Hello, love."
[Hernandez]: "What are you doing?"
"I'm just watching TV," says Olga. "I'm sitting here watching
TV."
That conversation is initiated by [Hernandez] and not by
Olga. Then goes on. He says, "Olga, I love you. I have to tell you
something, but you are going to need to take it nottoo bad." He
goes on to say that, "I'm going to tell you something, but you have
to digest it slowly." And then he says, "I don't think whatwe had
planned is going to work." Implying that there was a plan between
the two of them.
[Olga]: "Why?"
[Hernandez]: "Because Iwas talking to my cousin. The flock
has got to get - the flock has to leave, all sheep."
Which is a euphemism for the family.
[Olga]: "What?"
[Hernandez]: "All the sheep have to get out of the pen. Do
you understand?"
She says, "So so."
[Hernandez]: "I mean they have to go from one field to the
other." Continuing with the agricultural euphemisms.
[Olga]: "Yes, love."
[Hernandez] says, "It's going to be difficult like this because
if the flock stays out of the pen, Idon't know what will happen
really, and Idon't want anything bad to happen that's why they
have to leave the pen and go [to] another field."
And she says, "All the way to where we talked about?"
Implying that Olga knows, of course, where they're going.
No. 72411-8-1/10
[Hernandez]: "Yeah, love. And I'll give you ten chocolates so
you can take the flock with you."
Now, there's no evidence before me that this was an
agricultural family that owned sheep or goats or had pens or that
they were fine diners on chocolates. So I could assume, perhaps,
that this would have other meanings. They're euphemisms.
She says, "I don't want to leave."
And then he says, "Me neither. But that's the worst. But
don't say it like that. I don't want to take the flock away from here.
But, anyway, it has to be done because one way or the other over
here, they will look for the flock, and they will take it away from you,
and I don't want that."
And her response, "I don't want that either."
That is a clear statement of their plan; a clear statement of
the motivation; and a clear statement, in my mind, of what
[Hernandez] wants her to do and how he is manipulating her with
cash.[9]
They go on to say on page 423 of section 128: "There's an
option. It's risky. You have to do it anyway. It's already a mess,"
and so forth.
The transcripts that I read are replete with this kind of
communication between [Hernandez] and Olga, designed to get
Olga, [Y.C], and [Y.C.'s brother] out ofthe country. And it's
designed based upon what the defendant knows about Olga and
that she's easily manipulated, she's afraid, and that she's
overwhelmed.
And if I look - as I look at the evidence rule, it has nothing to
do with the person who is trying to be - who the defendant is trying
9The record indicates that in a transcript of one conversation Hernandez and
Olga discussed the plan to go to Mexico without the use ofcoded language:
Olga - Should I go to Mexico with the kids?
[Hernandez] - Eh?
Olga - Should I go to Mexico with the kids?
[Hernandez] - If you do it, you should do it as soon as possible.
Olga - That's what I'm telling you. Ithink it would be easier, no?
[Hernandez] - Yeah. But if you do that you should decide it right away, before
trial.
Olga - That's why I'm saying.
[Hernandez] - And then come back in two years.
Olga - If Ileave, no no, no ... How can Isay it? If Icome back later, what's
going to happen?
[Hernandez] -1 think they would free me. Idon't really know what would happen
with that.
Olga - But then you can go to trial and even win it.
[Hernandez] - If that happens, Iwould win the trial for sure ... But we cannot
talk about that over the phone, my love.
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No. 72411-8-1/11
to move out of the country, it has to do with the defendant's actions
that we primarily look at. Are his actions designed to have the
witness secreted and prevent them from testifying?1101
The mention of chocolates, certainly euphemism, as I said,
for cash. The statement made to the third party about research
essentially asking what happens if the victim and the other
witnesses are here, what are my odds, so to speak, and I
paraphrase.111] That's contained there. Certainly goes to a scheme
or plan on part of the defendant.
So looking at that, looking at the [State v.lDobbs case,'12!
then, it's clear to me by clear, cogent, and convincing evidence that
Mr. Hernandez has engaged in activity specifically designed to
prevent the witnesses - Olga, [Y.C], and [Y.C.'s brother] - from
testifying.
Based on the trial judge's explanation of his ruling, it is evident that the
trial judge concluded that Hernandez's use of coded language was an effort to
conspire with Olga to take the children to Mexico in advance of his trial date. The
10 The trial judge was referring to ER 804(b)(6). This rule creates an exception to the rule
against hearsay, provided that the declarant is unavailable as a witness, and the statementthat is
sought to be admitted is "[a] statementoffered against a party that has engaged directly or
indirectly in wrongdoing that was intended to, and did, procure the unavailability of the declarant
as a witness."
11 The record indicates that in a transcript of one conversation with the unidentified male,
Hernandez made the following request:
[Hernandez] -1 want you to do some research for me, man.
Male - Okay.
[Hernandez] - Suppose that they are accusing you ... Iam accusing you of...
Shooting at me.
Male-Mmmm
[Hernandez] - Okay, so I go to Mexico, I run off to Mexico ... you are accusing
me, no, I am accusing you of shooting at me, and so I get you in jail. So, I am
the only witness, and if I go to Mexico, what would happen to you? Would they
let you go free?
Male - Mmmm ... I don't know, man.
[Hernandez] - Look that up for me, man. I need you to look it up for me because
something could free me from all this mess. And that's good . . . that I go to
Mexico, and you go free .. . that would be free, no?
Male - Yes, without the witness...
[Hernandez] - Without the victim.
[Hernandez] - Yes, I need you to do that research because . . . Like Itell you, I
want to go to Mexico, and because I don't want to be in jail; maybe they can let
you go out. . . and that's what Ithink, and so if it'll help me, I'll do that business,
man.
12180Wn.2d 1.
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No. 72411-8-1/12
coded language, when coupled with Hernandez's request of an unidentified male
to conduct research about the law regarding his probability of success if a victim
was not present to testify at trial, evidenced intentional acts by Hernandez that
were designed to procure the unavailability ofa key witness—the victim, Y.C13
The trial judge was in the best position to make the determination that Hernandez
engaged in wrongdoing. He did so thoroughly, thoughtfully, and with reference to
the correct legal standard. There was no error.
B
Hernandez next asserts that the trial court erred by concluding that the
witnesses were rendered unavailable. Again, we disagree.
"The Sixth Amendment requires a demonstration of unavailability when
the declarant witness is not produced." State v. Ryan, 103Wn.2d 165, 170, 691
P.2d 197 (1984). "Unavailability means that the proponent is not presently able
to obtain a confrontable witness' testimony." Ryan, 103 Wash. 2d at 171.
"A witness may not be deemed unavailable unless the prosecution has
made a good faith effort to obtain the witness' presence at trial." Ryan, 103
Wash. 2d at 170-71 (citing Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L Ed.
2d 255 (1968)).
"[T]he lengths to which the prosecution must go to produce the
witness is 'a question of reasonableness.'" fState v.lSmith, 148
Wn.2d [122,] 133, [59 P.3d 74 (2002)] (internal quotation marks
omitted) (quoting rOhio v.lRoberts. 448 U.S. [56,] 74, [100 S. Ct.
2531, 65 L. Ed. 2d 597 (1980), abrogated on other grounds by
Crawford, 541 U.S. 36]). In particular, the "good faith" standard
13 Indeed, the absence of three potential witnesses was procured: Y.C, Olga, and Y.C.'s
brother.
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No. 72411-8-1/13
does not require the State to undertake a "futile act" to satisfy the
confrontation clause. Ryan, 103 Wash. 2d at 172 (citing Roberts, 448
U.S. at 74). However, if the State makes no effort whatsoever to
produce the witness, the State cannot rely on the mere possibility
that the witness would resist such efforts.
State v. Beadle. 173 Wash. 2d 97, 113, 265 P.3d 863 (2011). The burden of
proving unavailability lies with the proponent of the hearsay statement. Beadle,
173Wn.2dat112.
Here, the State obtained recordings of numerous jailhouse telephone calls
between Hernandez and Olga, and between Hernandez and an unidentified
male. It had a Spanish-language interpreter listen to these recordings and
transcribe them into English. From a reading of these transcripts, the State was
able to establish that Hernandez and Olga acted in concert in developing and
implementing a plan to take the children to Mexico in order to ensure Y.C.'s
unavailability at trial. Olga's role as a co-conspirator gave the State, and later the
court, insight into what efforts would be reasonable in an attempt to procure
Y.C.'s presence at trial.
In this context, with the knowledge that Olga was a co-conspirator in the
effort to keep Y.C. away from the trial—and given that Y.C. was under Olga's
control and custody—the State's efforts to procure Y.C.'s presence at trial
included speaking with Olga's employer, co-workers, and family members. The
detective obtained a telephone number from Olga's brother and, with the aid of
an interpreter, called the telephone number on three separate occasions. On the
last occasion, the only occasion on which a call was answered, the interpreter
was directed by the call's recipient not to call again. It was reasonable for the
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No. 72411-8-1/14
State to infer that the woman who answered the telephone was either Olga
herself or someone who was aware of the conspiracy to keep Y.C. away from the
trial and that any further efforts to make contact would be futile.
In ruling on whether Y.C. was unavailable at trial—given the State's offer
of proof regarding its efforts—the trial judge acknowledged that the joint efforts of
Hernandez and Olga "makes unavailable not only Olga and [M.C.], the brother,
and the mother of [Y.C], but [Y.C] herself. That's the key reason why she is not
here. And that clearly is a fact these three parties are not here." Ultimately, the
trial judge made a factual determination that "the physical fact that [Y.C], her
mother, and her brother are now in Mexico, which we all know that to be the fact,
makes her, per se, unavailable."
Given the trial judge's explanation of his ruling, he clearly concluded that
the State's efforts of speaking with Olga's employer, co-workers, and family
members, obtaining a private telephone number in Mexico, and utilizing an
interpreter to make three separate telephone calls constituted a reasonable
response to Olga's flight to Mexico with the children in tow. Moreover, given that
Olga and Hernandez were intimately involved in a conspiracy to keep Y.C. away
from the trial by causing her to move to Mexico, the State was not presented with
a situation akin to attempting to procure the presence of an adult victim at trial.
Instead, the trial judge recognized that the State was charged with the task of
attempting to change the mind of an adult co-conspirator in order to procure the
return to this country and the presence of a child victim for testimony at trial. In
this regard, the trial judge reasonably concluded that, given that Y.C. was under
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No. 72411-8-1/15
the control and custody of Olga, the State's efforts were circumscribed by Olga's
role as a co-conspirator. The trial judge was in the best position to make the
determination that Y.C, Olga, and Y.C.'s brother were made unavailable due to
the efforts of Olga and Hernandez, and that nothing more the State could
reasonably have done would have had the foreseeable effect of encouraging
Olga to change her mind and return to the United States with Y.C. for
Hernandez's trial. The trial judge ruled thoroughly, thoughtfully, and on the
record before him. There was no error.14
Ill
Finally, Hernandez contends that the trial court erred by admitting certain
statements made by Y.C. pursuant to RCW 9A.44.120, the child hearsay statute.
We need not evaluate this claim because Hernandez forfeited his right to
interpose such an objection.
In State v. Dobbs, 180 Wash. 2d at 16-17, the court addressed whether an
individual who forfeits his or her right to confrontation by wrongdoing also forfeits
the right to assert hearsay objections to the same evidence. The court held that
this is so, explaining that, "when the defendant's actions are the reason thatthe
State must rely on out-of-court statements, he is hardly in a position to complain
14 In his brief, Hernandez argues that the additional step of sending a "letter to the
mother's address would have demonstrated at least minimal effort on the part of the State" to
procure Y.C.'s presence at trial. Reply Br. of Appellant at8. Hernandez made no such
suggestion to the trial court. Instead, he offers this suggestion to us for the first time on appeal.
Unsurprisingly, Hernandez points to nothing in the record that would indicate that such an act
would have been anything other than a futile act. The State was not required to engage in futile
acts in order to satisfy its burden of proof on the question. Beadle, 173 Wash. 2d at 113.
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No. 72411-8-1/16
about the use of those out-of-court statements, whether through an assertion of
confrontation rights or a hearsay objection." Dobbs, 180 Wash. 2d at 16.
Because Hernandez forfeited his Sixth Amendment right of confrontation
by engaging in wrongdoing, he also forfeited his right to interpose hearsay
objections to the same evidence.
Affirmed.
We concur:
oecke^
-16