State Of Washington, V Iskander Nuriyev ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54152-1-II
Respondent,
v.
ISKANDER NURIYEV, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Iskander Nuriyev appeals his convictions and sentence for second
degree assault‒domestic violence, felony harassment, and intimidating a witness. The victim did
not testify at trial, but the trial court admitted the victim’s prior out-of-court statements under the
forfeiture by wrongdoing doctrine. Nuriyev argues that the trial court erred and violated his
Sixth Amendment rights when it admitted the victim’s out-of-court statements, and when it
conducted a pre-trial hearing without an interpreter. We hold that the trial court erred when it
admitted the victim’s out-of-court statements to the police officer, but we hold that this error was
harmless. We do not reach Nuriyev’s second argument because he argues it for the first time on
appeal. Accordingly, we affirm.
FACTS
I. BACKGROUND
In April 2019, Iskander Nuriyev and the victim, N.S., had been in a relationship for more
than four years. In the early morning hours of April 7, Nuriyev was at N.S.’s home. Nuriyev
No. 54152-1-II
was drunk and became combative when N.S. attempted to pour out the vodka he was drinking.
Nuriyev hit her and grabbed her by the neck. He strangled, slapped, and punched her; pulled her
hair; and kicked her repeatedly while she was on the floor. This assault caused a concussion,
bruises all over N.S’s body, and bleeding in her left ear. N.S. fled her home.
At around 4:00 AM on April 7, N.S.’s neighbor Andrey Koptelev responded to N.S.
ringing his doorbell. N.S. asked Koptelev to let her in, and she collapsed on the floor in tears.
N.S.’s face was swollen, and she told Koptelev to let her in or “‘he’ll kill me.’” Verbatim Report
of Proceedings (VRP) at 57-58. N.S. told Koptelev’s wife, Natalia Babiy, that N.S.’s boyfriend
was beating her, and that she had tried earlier to escape to a nearby fire station. N.S. also told
Babiy that she had urinated herself while trying to escape because of how hard Nuriyev was
holding her.
When Koptelev told N.S. to call the police, she refused. N.S. told Babiy she was scared
Nuriyev would kill her if she called police. After N.S. refused to call the police, Koptelev drove
to the police station to file a report. Koptelev said that N.S. did not want to be the person who
filed a police report. Babiy offered to take N.S. to the hospital because N.S. could not hear from
one ear, but N.S. refused. After several hours, Babiy took N.S. to N.S.’s sister’s house.
Officer Porter and other police officers stopped Nuriyev’s vehicle as it was leaving N.S.’s
residence on April 7. Porter observed a recent injury to Nuriyev’s middle finger knuckle, and he
photographed the injury. The police officers arrested Nuriyev.
N.S. eventually went to the emergency room (ER) on April 7 for multiple injuries to her
head, face, neck, chest, and extremities. N.S. reported to the ER staff that her boyfriend
strangled, slapped, and punched her repeatedly in the face, chest, and stomach, then pulled her
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hair, threw her on the floor, and kicked her repeatedly. ER doctor Audrey Collins-Watson noted
injuries consistent with this report. Dr. Collins-Watson diagnosed ruptured capillaries and linear
markings across N.S.’s throat consistent with “assault by a manual strangulation;” scalp trauma;
contusions to her scalp, face, elbows, knees, forearms, and chest wall; and a strained neck. Dr.
Collins-Watson further diagnosed N.S. with a concussion, blood in her left ear canal, and vertigo
consistent with an inner ear injury.
N.S. told the ER nurse that the incident had occurred in her home, and that she had
escaped to her neighbors’ house. N.S. told hospital staff that she did not want to talk to police
because Nuriyev told her that he would kill her if she told anyone that he hurt her. N.S. told Dr.
Collins-Watson and the ER nurse that Nuriyev would “finish [her] up” and told the ER nurse that
he was “dangerous.” VRP at 148, 179.
Vancouver Police Officer James Porter also responded to N.S. in the ER. He observed
that N.S. had swelling to her face and ear and that she was grimacing in pain. Officer Porter took
several photographs of N.S.’s injuries.
On April 17, N.S. saw Dr. Adam Wilson, an ear, nose, and throat surgeon. N.S. reported
hearing loss, pain, and dizziness. Dr. Wilson diagnosed N.S. with a hole to her left eardrum
consistent with blunt force trauma.
II. STATE’S PRETRIAL MOTION TO ADMIT TESTIMONIAL STATEMENTS
The State charged Nuriyev with first degree kidnapping, second degree assault, felony
harassment, and intimidating a witness, all with domestic violence designations. Before trial, the
State amended the information to include an aggravator that the victim’s injuries substantially
exceeded the level of bodily harm necessary to satisfy the elements of second degree assault.
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The State subpoenaed N.S. to appear at trial.1 However, N.S. told a State-appointed advocate
and Officer Porter that she was afraid to testify and would not appear.
A. State’s Motion to Admit N.S.’s Out-of-Court Statements to Police
The State filed a motion to admit N.S.’s out-of-court testimonial statements made to
Officer Porter through the doctrine of forfeiture by wrongdoing. The State argued that Nuriyev
had waived his right to confront N.S. because his threats and assault prevented her from seeking
help, and his and his family’s statements to her made her fear testifying at trial. To support its
motion, the State presented testimony from Officer Porter regarding his contact with N.S.
B. Officer Porter’s Pretrial Testimony
Officer Porter testified at a pretrial hearing on October 13, 2019. Nuriyev appeared at the
hearing without an interpreter but was represented by counsel.2 Officer Porter testified that he
had contacted N.S. the night before the hearing to determine if she planned to show up for trial.
The State questioned Porter:
Q. Okay. And did she express reservations in regard to testifying in this matter?
A. Yes.
Q. What did she say about that?
A. Her concern was repercussions of coming to trial. Her statements to me were,
“If I come to trial and he’s found innocent, that’s going to be an issue for me.” And
that if she doesn’t come to trial and he’s found innocent it will look better for me.
1
The State subpoenaed N.S. twice, once in April 2019, and again in October.
2
The State addressed the interpreter issue at the pretrial hearing stating, “Your Honor, I wanted
to clarify one thing. I think the defendant has had an interpreter at some of the hearings, and I
don’t know if he’s asking for an interpreter at trial. And then I think that potentially at least one
of the State’s witnesses might need a Russian interpreter.” VRP at 21.
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No. 54152-1-II
Q. And did she express any fear of the defendant during your phone call last night,
or what would happen?
A. Yes, of being killed.
Q. And did she indicate whether or not she had received any pressure from outside
sources regarding testifying in this matter?
A. She stated that she had received phone calls from his family to not come to trial.
Q. Okay. And did she indicate–did she at any point recant the allegations to you–
A. No.
Q. –that she originally made?
A. No.
Q. And did she express a desire to proceed, but just reluctance based on fear?
A. Correct.
VRP at 6-7.
The following exchange took place on cross-examination:
Q. And did you verify–did you contact Mr. Nuriyev’s family and make contact with
them about these allegations?
A. No, ma’am.
Q. So, you have no independent information as to where this information came
from other than what [N.S.] gave you?
A. Correct.
Q. And have you had contact with her previously, [N.S.]?
A. I’ve had contact twice before this phone conversation.
Q. Okay. And the first time was April 7th, the date of the alleged incident?
A. Yes.
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No. 54152-1-II
Q. And then what other date; do you recall?
...
A. I think it’s the second day.
Q. Okay. Like the 8th or 9th of April?
A. Correct.
Q. And since then you haven’t had any contact from her?
A. No.
Q. She’s made no contact with you regarding any fear that she may have?
A. It’s all done through the PA[3] and the advocate. I don’t have any–
Q. I’m just asking you specifically, if you can answer it. Has she contacted you
specifically and indicated that she was fearful or that she didn’t want to testify?
A. She has not reached out to me, no.
VRP at 7-8.
The trial court admitted N.S.’s out-of-court statements to Officer Porter under the
forfeiture by wrongdoing doctrine. In its oral ruling, the trial court stated that it looked at “the
totality of the circumstances” and noted that domestic violence cases “[don’t] always come in a
prepackaged and preset template.” VRP at 16. The trial court stated it made its finding based on
“clear, cogent, and convincing evidence,” but made no other findings, other than to state that
“there may or may not have been some physical violence” during the long-term relationship.
VRP at 15-16.
3
From the context in the record, it appears Officer Porter was referring to the Prosecuting
Attorney.
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C. Injuries Exceeding Substantial Bodily Harm Aggravator
At the same hearing, the State filed an amended information adding the aggravating
circumstance that N.S.’s injuries substantially exceeded the level of bodily harm necessary to
constitute second degree assault. Nuriyev’s counsel explained the amendment to Nuriyev:
[COUNSEL]: Everything else stays the same, but there is an additional aggravator.
The additional language here is that the victim’s injuries exceed the level of bodily
harm necessary to satisfy the elements of assault two. So, that is an aggravator.
It’s not a new charge, but it’s an additional aggravator. Do you want the Court to
read it out into the record or do you understand it?
[NURIYEV]: I don’t really understand it.
VRP at 19-20. The trial court then read the full count for second degree assault, including the
added aggravator language. The trial court asked Nuriyev, “Do you need a full reading of all the
other counts as well? That’s the only one that’s changed.” VRP at 21. Nuriyev’s counsel
responded:
[COUNSEL]: He understands. We’ve gone over them. He understands the other
counts.
THE COURT: Pleading not guilty as charged in the Amended Information then?
[COUNSEL]: He’s pleading not guilty; continuing with a not-guilty plea.
VRP at 21.
III. TRIAL
The trial proceeded on November 18. N.S. did not appear. Nuriyev moved for a
continuance the day of trial. Nuriyev’s counsel argued that because Nuriyev did not have an
interpreter at the forfeiture hearing, he did not understand that they had called the case ready for
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trial, and Nuriyev was waiting for his brother to provide him some documents. Counsel also
stated that Nuriyev wanted a new attorney.
The State responded that it had asked for a continuance on October 10, and that Nuriyev
objected at that time and wanted to proceed. The trial court denied the motion for a continuance.
A. Testimony Presented by the State
Koptelev and Babiy, testified as detailed above. Part I, supra. Koptelev identified
Nuriyev as N.S.’s boyfriend.
Dr. Collins-Watson, Dr. Wilson, as well as an ER nurse testified as described above.
Part I, supra. Additionally, Dr. Collins-Watson also testified that urination can occur during
strangulation. Dr. Collins-Watson explained that N.S.’s symptoms were consistent with a report
of strangulation and that strangulation can cause abnormalities due to cutting off blood flow to
the brain.
Officer Porter testified as described above. Part I, supra. He also testified that N.S. told
him Nuriyev arrived at her house at around 2:00 AM on the morning of April 7. She reported that
Nuriyev’s shirt was ripped and he appeared as if he had just gotten into a fight. She said that he
was intoxicated and requested vodka. She told Officer Porter that Nuriyev requested juice for his
vodka, but they had none, so she drove to a nearby grocery to get more juice and returned home,
where Nuriyev continued to drink. N.S. reported that at one point she poured out Nuriyev’s
vodka, which was when he began beating her.
Officer Porter also testified that N.S. told him she escaped from the house and began
running toward a nearby fire station to call for help. She said that Nuriyev caught up with her
and started dragging her back to the house. She stated that when she would attempt to flag down
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passing cars, he would punch her. Officer Porter quoted N.S. as saying, “‘I literally thought I
was going to die. I was scared for my life.’” VRP at 89. She told Officer Porter that Nuriyev
made a gun sign with his fingers and threatened to kill her and her family if she called the police.
N.S. told Officer Porter that on returning to the house, Nuriyev continued to beat her, and
he strangled her against the wall until she urinated herself. After that, she was able to leave the
house and flee to her neighbors’ home.
Officer Porter testified that during his interview with N.S., she expressed concern talking
to the police and stated that “‘[i]f [Nuriyev] gets out, he’s gonna kill me.’” VRP at 92. N.S. also
completed and signed a Smith affidavit.4 Officer Porter read the affidavit, which described
Nuriyev’s actions on April 7:
He came to my house at around two a.m., drunk and [under] some other influence.
I asked him to leave and he wouldn’t. Started arguments and slapping me on the
face for no reason. I tried to run out and scream, run down the street, Andresen and
63rd, towards the fire station. He came after me and I told him to walk home—he
came after me and told me to walk home with him. When we got home he
continued hitting me on the face and my head multiple times, punching me all over
and throwing across the room, pulling me by hair and putting his hands around my
neck. He was very angry and yelled at me all this time. He also punched me in the
belly and all over with his feet. I lost hearing in my left ear from him hitting me
many times. Also, shook me a few times and pulled my hair. I thought I was gonna
die there. My head was exploding from pain and dizziness. I peed my pants from
fear of him killing me. I tried to escape a few times in the garage and outside, but
he took my car keys and my phone. After all this, I escaped through an open door
somehow and ran to my neighbors in one shoe. Neighbors let me in, Nataliya and
Andrey. Nataliya let me stay till eight or so. Then she took me to my sister. They
saw my condition and were very afraid for me. I did tell them what happened and
I was afraid for my life. They saved my life.
VRP at 96-97.
4
A Smith affidavit satisfies the oath requirement of ER 801(d)(1) and may be admissible where a
victim testifies at trial and makes statements inconsistent with his or her affidavit. See State v.
Smith, 97 Wn.2d 856, 860-62, 651 P.2d 207 (1982).
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The trial court also admitted the photos Officer Porter took of N.S.’s injuries, and Officer
Porter described them to the court.
Officer Porter testified that he contacted N.S. the week before trial to determine if she
would come to trial. Officer Porter said that she stated, “‘If I come to trial and he’s found not
guilty, then I’m gonna be [in] trouble. And if I come to trial and he’s—if I don’t come to trial
and he’s guilty, it will look better for me.’” VRP at 108. Officer Porter further testified that he
spoke to N.S. on the day of trial and she said she was too scared to appear and testify.
B. Nuriyev’s Testimony
Nuriyev also testified. He stated that he had been at N.S.’s house on the evening of
April 6 before leaving to go to a wedding. Nuriyev stated he returned after midnight in a “bad
mood” and wanted to get drunk. VRP at 206, 217. He stated that N.S. left at one point to go to
the grocery store but returned. He denied that she had fled towards the fire station and also
denied forcing her to return to her home. He admitted that he hit N.S., but denied threatening her
or her family.
When asked if he put his hands around N.S.’s neck, Nuriyev responded, “Her neck,
something—I got ahold of something. It was rather her clothes, and I kind of pushed her away
from me.” VRP at 213. On cross-examination, Nuriyev admitted to sending N.S. a text around
9:00 PM on April 6 saying that he was looking for a fight and to “beat their heads.” VRP at
216-18. He admitted that he became angry when N.S. poured out his vodka and that he then hit
her. He stated that he hit her several times on her face.
Nuriyev explained that he had tried to take the vodka bottle away from N.S. when he
accidentally hit her with the bottle, but that he continued to hit her with his hands afterwards.
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No. 54152-1-II
When asked if he applied pressure to her neck with his hands, Nuriyev responded, “I was just
grabbing her trying to open the door, so while I was holding her trying to open the door, I kind of
pushed her away and that’s why–while I was trying to hold the door, perhaps that was when I
caused those marks.” VRP at 227. He denied kicking N.S. or bruising her legs but admitted that
she “might have fallen.” VRP at 227-29.
C. Verdicts and Sentence
The jury found Nuriyev not guilty of first degree kidnapping. However, the jury found
Nuriyev guilty of second degree assault, felony harassment, and intimidating a witness. The jury
also returned special verdicts finding that N.S.’s injuries substantially exceeded the level of
bodily harm necessary to constitute substantial bodily harm, and that Nuriyev and N.S. were
members of the same family or household. The trial court sentenced Nuriyev to an exceptional
sentence of 55 months confinement. Nuriyev appeals.
ANALYSIS
I. FORFEITURE BY WRONGDOING
Nuriyev argues that the trial court erred when it admitted N.S.’s hearsay testimony under
the forfeiture by wrongdoing doctrine. We agree. However, we hold that this error was
harmless beyond a reasonable doubt.
A. Legal Principles
Our Supreme Court adopted the forfeiture by wrongdoing doctrine in 2007, in State v.
Mason, 160 Wn.2d 910, 925, 162 P.3d 396 (2007). Under the forfeiture by wrongdoing doctrine,
an absent witness’s hearsay statement may be admitted at trial where the defendant’s
wrongdoing prevented the testimony. Mason, 160 Wn.2d at 926. In 2008, the U.S. Supreme
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No. 54152-1-II
Court held that a trial court may admit out-of-court testimonial statements from an absent
witness as an exception to the right of confrontation, but only where the defendant intended to
prevent that witness from testifying. Giles v. California, 554 U.S. 353, 361, 377, 128 S. Ct.
2678, 171 L. Ed. 2d 488 (2008). Our court recognized the State’s obligation to prove the
defendant’s intent in State v. Dobbs, 180 Wn.2d 1, 11, 320 P.3d 705 (2014).
A challenge to hearsay testimony admitted under the forfeiture by wrongdoing doctrine is
a Sixth Amendment confrontation issue that we review de novo. Dobbs, 180 Wn.2d at 10.
Where the confrontation issue relates to admissibility of evidence, we review the trial court’s
admission of evidence for an abuse of discretion. Dobbs, 180 Wn.2d at 10; State v. Darden, 145
Wn.2d 612, 619, 41 P.3d 1189 (2002). “A trial court abuses its discretion when its decision ‘is
manifestly unreasonable or based upon untenable grounds or reasons.’” Dobbs, 180 Wn.2d at 10
(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
Under the forfeiture by wrongdoing doctrine, “a defendant forfeits the Sixth Amendment
right to confront a witness 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.” Dobbs, 180
Wn.2d at 11. Under the clear, cogent, and convincing evidence standard of proof, the fact at
issue must be shown to be “‘highly probable’” but need not be beyond a reasonable doubt.
Dobbs, 180 Wn.2d at 11, 16 (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831(1973)).
The forfeiture by wrongdoing doctrine is not limited to direct acts of wrongdoing by a
defendant. State v. Hernandez, 192 Wn. App. 673, 682, 368 P.3d 500 (2016) (citing
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Giles, 554 U.S. at 359-61). It also includes instances where a defendant “uses an intermediary
for the purpose of making a witness absent.” Giles, 554 U.S. at 360.
B. Clear, Cogent, and Convincing Evidence of Intent
Nuriyev argues that the trial court erroneously applied the forfeiture by wrongdoing
doctrine because it did not make the requisite finding that Nuriyev engaged in wrongful conduct
with the intent to prevent N.S. from testifying at trial.5 We agree.
As an initial matter, we address the standard the State must meet under the forfeiture by
wrongdoing doctrine. The State argues that it has no burden to show that Nuriyev threatened
N.S. with the intent to prevent her testimony. And indeed that was the standard under Mason.
160 Wn.2d at 926. However that standard was changed following Giles, which held that
forfeiture occurs only when clear, cogent, and convincing evidence shows the witness was made
unavailable by the wrongdoing of the defendant, and the defendant intended to prevent the
witness form testifying. Dobbs, 180 Wn.2d at 11. Thus, the State must show by clear, cogent,
and convincing evidence that is was highly probable that Nuriyev threatened N.S. with the intent
to prevent her from testifying. It does not do so here.
Here, the trial court erred because it did not make the required findings based on clear,
cogent, and convincing evidence that N.S. was made unavailable by Nuriyev’s wrongdoing and
that Nuriyev intended to prevent her from testifying. Instead, the trial court made cursory
findings based on “the totality of the circumstances” and made no specific ruling on how the
5
Nuriyev also argues that the State did not make a good faith effort to obtain N.S.’s presence at
trial. He argues that the State should have sought a material witness warrant. Because we hold
that the trial court erred in admitting the statements on other grounds, we do not consider this
argument.
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evidence showed Nuriyev acted with intent to prevent N.S.’s testimony. Moreover, even if the
trial court had made the required findings, insufficient evidence was admitted at the hearing to
support them.
Both parties rely on Dobbs, 180 Wn.2d 1. Nuriyev cites Dobbs to argue that the State
must prove by clear, cogent and convincing evidence that he intended to prevent N.S. from
testifying. The State argues that under Dobbs, the crime for which a defendant is arrested may
provide sufficient evidence that a defendant forfeited his right to confrontation. We agree with
Nuriyev.
In Dobbs, the defendant engaged in a series of violent and threatening actions against his
ex-girlfriend. 180 Wn.2d at 4-5. Police responded to the victim’s residence for a domestic
violence call. Dobbs, 180 Wn.2d at 5. The victim informed police that Dobbs had been
following her and threatening to shoot her, and that he was banging on her door. Dobbs, 180
Wn.2d at 5. When Dobbs left, the victim discovered her tires slashed. Dobbs, 180 Wn.2d at 5.
Police were at the victim’s residence later when she received a phone call where Dobbs argued
with her about her calling the police and warning her that she was going to “get it.” Dobbs, 180
Wn.2d at 6. Several days later, the victim’s neighbor observed Dobbs in a car next to the
victim’s house and heard gunshots. Dobbs, 180 Wn.2d at 6. Police found bullet holes in the
victim’s house. Dobbs, 180 Wn.2d at 6. Later that same day, the victim’s neighbor spotted
Dobbs on her property with a gun. Dobbs, 180 Wn.2d at 6. Police responded and arrested
Dobbs. Dobbs, 180 Wn.2d at 7. Dobbs left the victim a voicemail after he was arrested in which
he pleaded with her not to press charges and then used threatening language. Dobbs, 180 Wn.2d
at 7.
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Dobbs’s victim did not appear at trial, despite a subpoena. Dobbs, 180 Wn.2d at 8. The
trial court admitted the victim’s out-of-court statements, ruling Dobbs had forfeited his
confrontation right by wrongdoing. Dobbs, 180 Wn.2d at 8-9. On appeal, our Supreme Court
followed Giles, and explained that the State’s showing by clear, cogent, and convincing evidence
that the defendant made the witness unavailable must include “that the defendant engaged in the
wrongful conduct with the intention to prevent the witness from testifying.” Dobbs, 180 Wn.2d
at 11. The Dobbs court affirmed, holding that the State established a “pattern of abuse and
intimidation” toward the victim and shown it was “highly probable” that the violent threats
caused her absence from trial. Dobbs, 180 Wn.2d at 11-12.
Nuriyev also cites State v. Fallentine, 149 Wn. App. 614, 215 P.3d 945 (2009), and
Hernandez, 192 Wn. App. 673, 682, to further distinguish the facts here. In Fallentine, the court
held that statements made by a witness, Clark, were properly admitted under the forfeiture by
wrongdoing doctrine. 149 Wn. App. at 623. After an arson, a fire investigator questioned Clark,
who stated that Fallentine set the fire. Fallentine, 149 Wn. App. at 617-18. After Clark was
interviewed by the arson investigator, a State social worker found him in the fetal position,
sobbing. Fallentine, 149 Wn. App. at 623. Clark recanted and said that he set the fire.
Fallentine, 149 Wn. App. at 618. Clark told the social worker that he could not testify against
Fallentine or else Fallentine, his family, or members of his motorcycle gang would retaliate.
Fallentine, 149 Wn. App. at 621-22. Clark told her that Fallentine told Clark that if he “rolled on
him,” Fallentine would have the motorcycle gang “put a hit” on Clark. Fallentine, 149 Wn. App.
at 623. Clark refused to testify, and the trial court admitted his statements. Fallentine, 149 Wn.
App. at 618.
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In Fallentine, the State produced clear, cogent, and convincing evidence that Fallentine
directly threatened Clark with death if he testified. 149 Wn. App. at 620, 623. Such is not the
case here.
In Hernandez, 192 Wn. App. at 676, Division I held that the trial court had appropriately
admitted out-of-court statements under the forfeiture doctrine. There, a child told her teacher
that her stepfather had been sexually abusing her. Hernandez, 192 Wn. App. at 676. The child
repeated these allegations to three school officials. Hernandez, 192 Wn. App. at 677. The State
arrested and charged Hernandez with child rape and molestation. Hernandez, 192 Wn. App. at
677. When Hernandez filed a motion to compel interviews with the witnesses, the State could
not find the family. Hernandez, 192 Wn. App. at 677-79. The State discovered that the child
and mother were in Mexico. Hernandez, 192 Wn. App. at 678. Despite a no-contact order, the
State discovered that Hernandez had made more than 150 telephone calls to the child’s mother
from jail in which he told the mother to get the family out of the United States. Hernandez, 192
Wn. App. at 679, 682-86. The trial court admitted the victim’s statements to her teacher and
other school officials. Hernandez, 192 Wn. App. at 680. Division I of this court affirmed,
holding that the State proved by clear, cogent, and convincing evidence that Hernandez and his
wife conspired to remove the victim from the country, thus preventing her from testifying.
Hernandez, 192 Wn. App. at 686.
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Here, although there is evidence that Nuriyev attempted to stop N.S. from initially
reporting the assault to the police, there was not clear, cogent, and convincing evidence that
Nuriyev took any action with the intent to prevent N.S. from testifying at this trial.6
The trial court made no finding and there was no evidence presented in the trial court to
allow the court to find it highly probable that any of Nuriyev’s actions were intended to prevent
N.S. from testifying. Each of the above cases contains this critical element that is not present
here: clear, cogent and convincing evidence of the defendant’s intent to prevent the witness from
testifying. In Dobbs, the State not only presented evidence of Dobbs’s violent behavior, the
evidence showed that police heard Dobbs threaten the victim against testifying. 180 Wn.2d at 6.
In Fallentine, the defendant directly threatened Clark with a “hit” by a motorcycle gang.
149 Wn. App. at 623. And in Hernandez, the defendant made scores of telephone calls from jail
to the victim’s mother, intimating that the family should move to Mexico. 192 Wn. App. at 679,
682-86. In each case, the defendant took some action with the aim of preventing a witness from
testifying at trial. And in the case of Hernandez, there was a clear nexus between the defendant
and a third party’s action to remove the witness from the country. Hernandez, 192 Wn. App. at
679, 682-86. Such evidence was absent here.
Regarding the alleged phone calls from Nuriyev’s family, it is true that a defendant may
waive his confrontation rights through an intermediary who acts to make a witness absent. Giles,
6
To hold otherwise would significantly erode a defendant’s right of confrontation. Taking
Nuriyev’s argument to its logical conclusion, a victim’s fear of testifying based solely on a
defendant’s attempt to keep a victim from reporting a crime to law enforcement could form the
basis of a “waiver” of the defendant’s Sixth Amendment rights. We note that it is a common
occurrence for perpetrators to urge or threaten victims to not call the police. As our Supreme
Court stated in Mason, “[T]he right of confrontation should not be easily deemed forfeited by an
accused.” 160 Wn.2d at 927.
17
No. 54152-1-II
554 U.S. at 360. Additionally, the forfeiture doctrine is not limited to wrongdoing by violent
means. See Dobbs, 180 Wn.2d at 4. However, an intermediary’s actions, without more, cannot
waive a defendant’s confrontation rights. See Hernandez, 192 Wn. App. at 682-86; see also
State v. Brownlee, 18 Wn. App. 2d 1, 492 P3.d 866 (2021).7 Although Officer Porter testified at
the pretrial hearing that N.S. stated she received calls from Nuriyev’s family “to not come to
trial,” there is nothing in the record to show that Nuriyev directed his family to contact N.S.
VRP at 6. The evidence produced in the trial court simply does not make it highly probable that
Nuriyev directed his family to try to prevent N.S. from testifying.8
In conclusion, although it may be highly probable that Nuriyev’s actions instilled a fear
in N.S. to the extent that she did not testify at trial, there is nothing in the record from which to
draw a clear inference that any of Nuriyev’s actions were intended to prevent her from testifying
in this trial. Accordingly, we hold that the trial court abused its discretion when it admitted
Officer Porter’s testimony containing N.S.’s out-of-court statements because clear, cogent, and
convincing evidence does not support a finding that Nuriyev intended to prevent N.S. from
appearing at trial.
C. Constitutional Harmless Error
The State alternatively argues that if we hold that the trial court erred, such error was
harmless. We agree.
7
In Brownlee, 18 Wn. App. 2d at 6, the defendant made multiple phone calls from jail to ask
them to “fix” his situation and ensure his victim did not testify at trial.
8
It is critical that the State must establish Nuriyev’s involvement in the alleged phone calls. It is
Nuriyev who must waive his constitutional right to confrontation; his family’s actions, without
more, cannot waive these rights on Nuriyev’s behalf.
18
No. 54152-1-II
We conduct constitutional harmless error analysis for confrontation clause errors. State
v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012). We use the “overwhelming untainted
evidence” test and look only to the untainted evidence to determine if it is so overwhelming that
it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182(1985); State v. Fraser, 170 Wn. App. 13, 24, 282 P.3d 152 (2012). The State bears the burden
of proving the error was harmless. Guloy, 104 Wn.2d at 425. To find a constitutional error
harmless, we must therefore conclude that any reasonable jury would have reached the same
result. State v. DeLeon, 185 Wn.2d 478, 487, 374 P.3d 95 (2016).
1. Domestic Violence Designation
As an initial matter, to prove the domestic violence finding, which applies to each crime
here, the State must prove that the defendant and victim were “household members,” which
includes people who have had a dating relationship. RCW 9A.36.041; see also RCW 9.41.040;
RCW 10.99.020; VRP at 286. Here, Nuriyev admitted that he and N.S. were in a relationship.
Koptelev also identified Nuriyev as N.S.’s boyfriend. Thus, there was overwhelming evidence
to prove this designation and any reasonable jury would have reached the same result.
2. Second Degree Assault
To convict Nuriyev of second degree assault, the State was required to prove that
Nuriyev “intentionally assault[ed] another and thereby recklessly inflict[ed] substantial bodily
19
No. 54152-1-II
harm; or . . . assault[ed] another by strangulation or suffocation.”9 RCW 9A.36.021(1)(a), (g).
“‘Substantial bodily harm’ means bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or impairment of the function of
any bodily part or organ, or which causes a fracture of any bodily part.”10 RCW
9A.04.110(4)(b). “‘Strangulation’ means to compress a person’s neck, thereby obstructing the
person’s blood flow or ability to breathe, or doing so with the intent to obstruct the person’s
blood flow or ability to breathe.” RCW 9A.04.110(26). To prove the aggravating
circumstances, the State was required to prove that the victim’s injuries substantially exceeded
those required to constitute substantial bodily harm under RCW 9A.36.021. RCW
9.94A.535(3)(y).
9
Jury Instruction no. 16A said:
To convict the defendant of the crime of assault in the second degree, each of the
following two elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about April 7, 2019, the defendant: (a) intentionally assaulted [N.S.]
and thereby recklessly inflicted substantial bodily harm; or (b) intentionally
assaulted [N.S.] by strangulation; and (2) That this act occurred in the State of
Washington. If you find from the evidence that element (2) and either alternative
element (1)(a) or (1)(b) have been proved beyond a reasonable doubt, then it will
be your duty to return a verdict of guilty.
VRP at 279.
10
Jury instruction no. 14 said:
Substantial bodily harm means bodily injury that involves a temporary but
substantial disfigurement, or that causes a temporary but substantial loss or
impairment of the function of any bodily part or organ, or that causes a fracture of
any bodily part. The term ‘substantial’ signifies a degree of harm that is
considerable in amount, value, or worth and requires a showing greater than an
injury merely having some existence.
VRP at 279.
20
No. 54152-1-II
Here there was overwhelming untainted evidence proving each element. First, Nuriyev
admitted to assaulting N.S. When asked if he choked her, Nuriyev replied, “Her neck,
something—I got ahold of something.” VRP at 213. Later he admitted that “perhaps” he had
caused marks on N.S.’s neck by holding her. VRP at 227. Nuriyev also had a fresh wound on
his hand when he was arrested.
Next, overwhelming evidence proved that Nuriyev caused N.S. substantial bodily harm.
The medical professionals’ and the neighbors’ testimony, which were admitted under separate
exceptions to the hearsay rule, provide evidence to support this. Nuriyev does not appeal N.S.’s
statements to Koptelev, Babiy, and the medical professionals.
N.S. had bruises all over her body and was bleeding from her left ear. She had ruptured
capillaries and linear markings across her throat, scalp trauma, and contusions to her scalp, face,
and much of her body. She was concussed, had vertigo, and a strained neck. The bruising and
bleeding from her ear proved temporary but was a substantial disfigurement, and any and all of
her diagnoses of a strained neck, vertigo, or concussion prove she had temporary but substantial
loss or impairment of the function of any bodily part or organ. Likewise, N.S. had a hole in her
eardrum consistent with blunt force trauma that caused her hearing loss, pain, and dizziness,
which was a substantial loss or impairment of the function of any bodily part.
Turning to strangulation, in addition to Nuriyev’s statement that he “got ahold of
something” when grabbing N.S., Dr. Collins-Watson testified that N.S.’s throat injuries were
consistent with “assault by a manual strangulation.” VRP at 152. N.S. also told Babiy that she
had urinated herself when Nuriyev strangled her. Dr. Collins-Watson testified that urination is
21
No. 54152-1-II
consistent with strangulation. Thus, there was overwhelming untainted evidence that Nuriyev
intentionally assaulted N.S, causing substantial bodily harm or strangulation.
Likewise, there was overwhelming untainted evidence that the bodily harm Nuriyev
inflicted on N.S. substantially exceeded the evidence required to show substantial bodily harm.
As explained above, when Nuriyev’s description of the events of April 7 are combined with
Koptelev’s and Babiy’s testimony, and the medical professionals’ testimony on the extent of
N.S.’s injuries, there is ample evidence to support a finding of bodily harm exceeding that
required to satisfy the elements of assault. Any of N.S.’s injuries alone would have been
sufficient to prove substantial bodily harm, but here she sustained multiple substantial injuries in
the attack.
Again, Dr. Collins-Watson diagnosed N.S. with ruptured capillaries and linear markings
across the throat consistent with “assault by a manual strangulation,” scalp trauma, contusions to
her scalp, face, elbows, knees, forearms, and chest wall, as well as a strained neck. The jury also
saw photographs of N.S.’s injuries. Furthermore, Dr. Wilson diagnosed N.S. with a hole in her
eardrum consistent with blunt force trauma, and ongoing hearing loss, pain, and dizziness.
Based on this overwhelming untainted evidence, we hold that any reasonable jury would have
reached the same result regarding Nuriyev’s guilt for second degree assault and the sentencing
aggravator that N.S.’s injuries substantially exceeded the level of bodily harm necessary to
satisfy that element of the offense.
3. Felony Harassment – Death Threats
To convict Nuriyev of felony harassment, including death threats, the State was required
to prove that Nuriyev—without lawful authority—knowingly threatened to kill N.S. immediately
22
No. 54152-1-II
or in the future and that he placed her in a reasonable fear that the threat would be carried out.11
RCW 9A.46.020(2)(b)(ii). Here, there was overwhelming untainted evidence of Nuriyev’s
threats and evidence of N.S.’s fear.
Although Nuriyev denied threatening N.S., his text messages to her show that he texted
her about “beat[ing] . . . heads.” VRP at 216-18. The ER staff testified that N.S. told them
Nuriyev threatened to kill her if she told anyone he hurt her. VRP at 147-48. N.S. told the staff
that Nuriyev was dangerous and would “finish [her] up.” VRP at 148, 179. Likewise, when she
arrived at her neighbors’ house, N.S. asked them to let her in or “he’ll kill me.” VRP at 57-58.
This shows Nuriyev’s threats. N.S.’s fear at her neighbors’ house, evinced by her collapsing on
the floor in tears, stating she was fearful of Nuriyev killing her, as well as her statements to the
ER staff, show that she was in fear. This fear was reasonable, especially in light of her injuries.
Accordingly, we hold that there was overwhelming untainted evidence for any reasonable jury to
convict Nuriyev for felony harassment beyond a reasonable doubt.
4. Intimidating a Witness
Turning to the charge of intimidating a witness, the State was required to prove that
Nuriyev, by threatening a current or prospective witness, attempted to induce N.S. not to report
11
Jury instruction no. 20 provided:
To convict the defendant of the crime of harassment, each of the following elements
of the crime must be proved beyond a reasonable doubt: (1) That on or about April
7, 2019, the defendant knowingly threatened to kill [N.S.] immediately or in the
future; (2) That the words or conduct of the defendant placed [N.S.] in reasonable
fear that the threat to kill would be carried out; (3) That the defendant acted without
lawful authority; and (4) That the threat was made or received in the State of
Washington.
VRP at 281.
23
No. 54152-1-II
information relevant to a criminal investigation or not to give truthful or complete information
relevant to a criminal investigation.12 RCW 9A.72.110(1)(d). Even without Officer Porter’s
testimony, there was overwhelming untainted evidence in the record to support a finding of guilt
beyond a reasonable doubt.
The same facts that support the felony harassment charge discussed above also apply
here. Additionally, N.S.’s neighbors and the ER staff all testified that N.S. was scared to call
police. Koptelev suggested that N.S. call police but N.S. refused because she was too scared.
Koptelev testified that N.S. said she did not want to be the one to file a police report. N.S. told
Babiy she was scared Nuriyev would kill her if she called police. This testimony, combined with
the statements that Nuriyev threatened N.S. and the evidence of her injuries, is overwhelming.
Accordingly, we hold that any reasonable jury would have reached the same result without the
tainted evidence.
II. INTERPRETER AT PRETRIAL HEARING
Nuriyev argues for the first time on appeal that his lack of an interpreter at the October 13
pretrial hearing violated his rights under the confrontation clause. Because Nuriyev did not
12
Jury instruction no. 23 provided:
To convict the defendant of the crime of intimidating a witness, each of the
following elements of the crime must be proved beyond a reasonable doubt: (1)
That on or about April 7, 2019, the defendant, by use of a threat against a current
or prospective witness, attempted to (a) induce that person not to report the
information relevant to a criminal investigation or (b) induce that person not to give
truthful or complete information relevant to a criminal investigation; and (2) That
this act occurred in the State of Washington.
VRP at 282-83.
24
No. 54152-1-II
object to being without an interpreter below, he has waived this argument and we do not reach it
here.
The right of a defendant in a criminal case to a competent interpreter is grounded in the
defendant’s Sixth Amendment right to confrontation. State v. Gonzales-Morales, 138 Wn.2d
374, 379, 979 P.2d 826 (1999); State v. Aljaffar, 198 Wn, App. 75, 82-83, 392 P.3d 1070 (2017).
A defendant also has a statutory right to a qualified interpreter if he or she needs one. Aljaffar,
198 Wn, App. at 82-83; RCW 2.43.030.13 When the trial court is put on notice that the
defendant may not understand English, the court must identify whether an interpreter is needed,
and if needed, must appoint one. State v. Woo Won Choi, 55 Wn. App. 895, 901, 781 P.2d 505(1989) recognized as superseded by statute on other grounds by State v. Anderson, 72 Wn. App.
453, 458-59, 864 P.2d 1001 (1994); RCW 2.43.030(1)(c).
In State v. Burns, our Supreme Court adopted the rule that the right to confrontation may
be waived by “‘failure to object to the offending evidence.’” 193 Wn.2d 190, 208, 438 P.3d
1183 (2019) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n.3, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009)). Thus, although a manifest constitutional error may be raised for the
first time on appeal under RAP 2.5(a)(3), for a confrontation clause challenge, a defendant must
raise an objection at trial or waive the right of confrontation. Burns, 193 Wn.2d at 210-11.
Nuriyev did not object at trial or at any point during pretrial hearings to the absence of an
interpreter, and he therefore waived his right of confrontation on this issue. Although Nuriyev
did not object during the hearing, he argues that he “raised the issue at the very next court
13
“Except as otherwise provided in this section, when a non-English-speaking person is involved
in a legal proceeding, the appointing authority shall appoint a qualified interpreter.” RCW
2.43.030(1)(c).
25
No. 54152-1-II
appearance.” Br. of Appellant at 17. That next appearance was the first day of trial. Nuriyev
was then provided with an interpreter at trial. Importantly, however, Nuriyev did not object to
being without an interpreter at the pretrial hearing. Indeed, he never objected to appearing
without an interpreter; instead, he requested a continuance on the first day of trial. The State also
noted that Nuriyev appeared at a number of hearings without an interpreter, and Nuriyev has
presented no record that he ever objected. Moreover, Nuriyev waived this issue at the pretrial
hearing when his counsel stated, “He understands. . . . He understands the other counts.” VRP at
21.
Thus, the trial court had no notice and no way of knowing at the pretrial hearing that
Nuriyev might require an interpreter. Thus, the trial court was not put on notice that Nuriyev
may require an interpreter until the State addressed the issue at the end of the pretrial hearing,
and the trial court was therefore not required to identify whether Nuriyev needed one. Woo Won
Choi, 55 Wn. App. at 901. Accordingly, because Nuriyev did not object to being without an
interpreter at the pretrial hearing, he waived this right, and we do not reach his argument.
CONCLUSION
We hold that the trial court abused its discretion when it admitted N.S.’s out-of-court
statements to Officer Porter. However, we further hold that the erroneously admitted testimony
was harmless beyond a reasonable doubt to Nuriyev’s conviction for second degree assault,
felony harassment, and intimidating a witness because overwhelming untainted evidence
supported his conviction. Finally, we do not reach Nuriyev’s argument that he was deprived of
an interpreter because he did not object below and therefore waived that argument. Accordingly,
we affirm.
26
No. 54152-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Lee, C.J.
Glasgow, J.
27