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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40986-1-II

                             Respondent,

       v.

ADAM DEAN HORD,                                            UNPUBLISHED OPINION

                             Appellant.

       Worswick, A.C.J.  --  Adam Dean Hord appeals his conviction of harassment (domestic 

violence), claiming that the trial court erred in admitting a domestic violence victim statement.  

We affirm.

                                             Facts

       In March 2009, A.M. and her daughter Grace began living with her friend Misha Condon.  

A.M. had been living for seven and a half years with Hord.  On March 27, A.M. took Grace to 

Hord's parents' home so that Hord could have time with Grace.  Hoping that he could have a 

longer visit with Grace, Hord became angry and aggressive toward A.M. when she started to 

leave with Grace.  During this discussion, Hord allegedly told A.M., "People get killed for this"

and "I could kill you." Suppl. Clerk's Papers (Suppl. CP) at 45. 

40986-1-II

       Later that same day, Hord telephoned A.M. in order to find out where Condon lived.  

After A.M. told him, Hord responded that he was going to come over and snap her neck.  He then 

qualified it, saying, "I'm just joking." Report of Proceedings (RP) at 59.  Dawn Durgan was 

present during this call and described A.M. as shocked and scared when the call ended.  She 

stayed with A.M. until Hord's niece showed up to be with A.M., as Condon had gone out with 

family and friends.  A.M. sent Condon a text message asking her to come home and describing 

what Hord had said.

       Around midnight, Hord came to Condon's home and, after Condon let him in, he walked 

down the hallway looking for A.M. and Grace.  Bill and Dawn Durgan were present at the time 

and Bill tried to stop Hord, who Dawn described as being mean, very agitated, and frustrated.  

Hord got face-to-face with Bill until Bill finally got Hord to sit down on the couch and talk.  Hord 

then asked the Durgans if they would baby-sit because he wanted to take a walk with A.M.  When 

A.M. responded that she was not going with him, Hord responded, "What do you think I'm going 

to do, cut you up into little pieces?" RP at 111. Hord then left but, according to Condon, 

returned at 2:00 AM, holding a pair of Condon's garden shears and asking if he could come in.  

When Condon said no, Hord asked, "Do you think you can keep me out of your house?" RP at 

115.  Condon replied, "No." RP at 115.  Hord then responded, "You're lucky I'm not burning 

your house down." RP at 115.

       The next morning, A.M. spoke with her father, who was the Chief of Police for the City of 

Washougal, asking him what he thought she should do about Hord.  He advised her to go down 

to the police station and file a report for her own peace of mind.  Later though, he called back and

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said that he was sending an officer down to talk with her.  That officer was Corporal Tyson 

Ferguson, who asked A.M. if she would fill out a written statement.  He testified that she 

voluntarily filled it out, that he read the perjury clause to A.M., that she signed it, and that he 

witnessed and signed it.

       The State charged Hord by amended information with felony harassment based on death 

threats (domestic violence).1 The matter proceeded to a jury trial where A.M., Condon, Dawn 

Durgan, and Corporal Ferguson testified.  A.M. downplayed the conflict, testifying that she was 

never afraid of Hord, that she did not take his threat to break her neck seriously, that his threat of 

chopping her up in little pieces was "ridiculous," that she never felt that he would hurt her, that 

she still loves him, that everything was blown out of proportion, and that she simply called her 

dad for advice, not because he was the police chief.

       Condon testified that A.M. was scared, nervous, and wringing her hands after Hord

threatened A.M. on the telephone.  She testified that she had known Hord for years and was not 

afraid of him but that evening, he scared her to the point where she hid weapons in the house.  

Dawn Durgan testified that she was with A.M. when Hord made his telephone threat about 

breaking A.M.'s neck and that A.M. looked shocked and scared when she hung up the telephone.  

Dawn Durgan also testified that she had known Hord for eleven years, that he used to be her 

husband's best friend, and that she had never seen him act like he had that evening.

       The State offered and the court admitted A.M.'s domestic violence victim statement.  The 

jury found Hord not guilty of felony harassment but guilty of the lesser offense of harassment 

1 RCW 9A.46.020(1)(a)(i) and (2)(b)(ii); RCW 10.99.020. 

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(gross misdemeanor) and found that it involved domestic violence.  The sentencing court imposed 

a 365-day sentence, suspended 305 days, and gave Hord credit for 31 days previously served.  

Hord appeals.

                                           Discussion

                               I.  Admission of A.M.'s Statement

       Hord argues that the trial court erred in admitting A.M.'s written statement as substantive 

evidence because the State failed to establish the four criteria necessary for admitting a witness's 

prior inconsistent statements.  He also argues that without the affidavit, the State did not present 

sufficient evidence to support his conviction.  We disagree with his first assertion and thus need 

not reach the second as sufficient evidence supports his conviction.

       We review the trial court's decision to admit or exclude evidence for an abuse of 

discretion.  State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). "An abuse of 

discretion occurs when the trial court bases its decision on untenable grounds or exercises 

discretion in a manner that is manifestly unreasonable." State v. Zunker, 112 Wn. App. 130, 140, 

48 P.3d 344 (2002).

       ER 801(d)(1)(i)2 permits the admission of a trial witness's prior inconsistent statement as 

substantive evidence when that statement was made as a written complaint (under oath subject to 

2 ER 801(d)(1) provides:
       (d)  Statements Which Are Not Hearsay.  A statement is not hearsay if -- 
              (1) Prior Statement by Witness.  The declarant testifies at the trial or 
       hearing and is subject to cross examination concerning the statement, and the 
       statement is (i) inconsistent with the declarant's testimony, and was given under 
       oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in 
       a deposition . . . .

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penalty of perjury) to investigating police officers.  This type of victim statement is frequently 

referred to as a "Smith affidavit" based on State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982).

See State v. Nelson, 74 Wn. App. 380, 386, 874 P.2d 170 (1994) (discussing "Smith" affidavit).

       The Smith court instructed the trial courts to consider four factors when assessing the 

reliability of the prior inconsistent statement:

       (1) whether the witness voluntarily made the statement; (2) whether there were 
       minimal guaranties of truthfulness; (3) whether the statement was taken as 
       standard procedure in one of the four legally permissible methods for determining 
       the existence of probable cause; and (4) whether the witness was subject to cross 
       examination when giving the subsequent inconsistent statement. 

Nelson, 74 Wn. App.  at  387 (footnote omitted)  (citing  Smith, at 861-63).    The four legally 

permissible methods for determining the existence of probable cause include:

       (1) filing of an information by the prosecutor in superior court (see Const. art. 1, § 
       25, and RCW 10.37.026); (2) grand jury indictment (see RCW 10.[27]); (3) 
       inquest proceedings (see RCW 36.24); and (4) filing of a criminal complaint before 
       a magistrate (see RCW 10.16). 

Smith, 97 Wn.2d at 862 (quoting State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971)).

       Hord argues that A.M.'s statement satisfied only the fourth Smith criteria, namely, that 

A.M. was subject to cross-examination regarding the prior inconsistent statement and thus the 

trial court should not have admitted it into evidence at trial.

A.     Voluntariness

       Hord argues that A.M. did not provide her statement voluntarily because she had confided 

in her father as a father and not as a police officer.  Her father then sent Corporal Ferguson to her 

home.  Hord contends that A.M. did not understand that she did not have to fill out the statement.

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       A.M.'s testimony at trial is as follows:

       Q.    Okay. And, again, you spoke with law enforcement, you agreed to give this 
             written statement, correct?
       A.    Oh, I just -- I mean, it was just a piece of paper put in front of me so I just 
             certainly filled it out. I mean,  -- 
       Q.    Okay.
       A.    I didn't really know I had the option not to, I guess.
       Q.    Okay.  And, you signed the form, correct?
       A.    Yes, I did.
       Q.    And, what is the date and time for that?
       A.    It is March [28], 2010, at 9:22 PM.
       Q.    Okay. And, that is signed under penalty of perjury, correct?
       A.    Yes.

RP at 78.

       While no Washington court applying this exception has defined "voluntary" in this 

context, Black's Law Dictionary defines "voluntary" as:  "1. Done by design or intention.  2.  

Unconstrained by interference; not impelled by outside influence."  Black's Law Dictionary 1710-

11 (9th ed. 2009).

       It is clear from A.M.'s testimony that giving the statement was a voluntary act.  There was 

no coercion.  While she may not have fully understood the statement's legal significance, it was 

still a product of her free will.  In State v. Thach, 126 Wn. App. 297, 308, 106 P.3d 782 (2005), 

this court found the following facts sufficient to show voluntariness:  "Officer Martin provided the 

domestic violence form to Ms. Thach.  She then filled out the first page of the form.  At trial, Ms. 

Thach testified that she wrote and signed her statement while seated in an ambulance after the 

assault." Similarly here, Corporal  Ferguson gave A.M. the form, A.M. wrote out her own 

statement and signed it.  At trial she admitted writing the statement and signing it under penalty of 

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perjury.  She did not show any confusion about what she was doing.  This was sufficient to satisfy 

the first Smith factor.

B.     Minimal Guaranties of Truthfulness

       Hord next contends that the statement did not meet minimal guaranties of truthfulness 

because it was not given under oath because the document A.M. signed did not say it was under 

penalty of perjury.  Rather, it said:  "I have written or had this statement written for me and this 

statement truly and accurately reflects my recollection of the event.  The police officer has 

explained to me that I have to certify, or declare, under penalty of perjury, that the above 

information is true and correct, under penalty of law." Ex. 4a (emphasis added). Beneath A.M.'s 

signature is the line:  "I, Officer Ferguson, confirm that [A.M.] authored or dictated this entire 

statement without input from any other person or myself.  I also confirm that I read the above 

perjury clause to [A.M.] before this statement was signed." Ex. 4a.  Hord argues that A.M.'s 

statement is insufficient because it says "I have to certify" rather than "I certify," or declare, under 

penalty of perjury, the truth of the information she gave.  

       Again, Thach is analogous.  There, this court found that the statement carried minimal 

guaranties of truthfulness from the following:

              In the present case, Ms. Thach testified that she signed her statement under 
       penalty of perjury.  Officer Martin also testified that Ms. Thach filled out the first 
       part of the domestic violence form and he assisted her with the final questions as 
       Ms. Thach received medical care. The officer witnessed Ms. Thach sign her 
       statement. From this evidence a reasonable person could find that Ms. Thach's 
       statement carried minimal guaranties of truthfulness.

Thach, 126 Wn. App. at 308. Here, A.M. testified that she signed her statement under penalty of 

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40986-1-II

perjury.  Corporal Ferguson testified that he read the perjury clause to A.M. before she signed it 

and that he then signed the form as well.  This is sufficient to show minimal guaranties of 

truthfulness.

       Similarly in Nelson, the court found sufficient:  "I have read the attached statement or it 

has been read to me and I know the contents of the statement."  74 Wn. App. at 390.  The court 

also relied on evidence that the prosecutor had reviewed the statement with the witness and 

explained the importance of the affidavit, and the notary testified that it was her standard practice 

to ask the witness whether she had read the affidavit and executed the affidavit only if the witness 

answered affirmatively.  But see State v. Nieto, 119 Wn. App. 157, 161-162, 79 P.3d 473 (2003)

(no evidence that victim gave statement under penalty of perjury); State v. Sua, 115 Wn. App. 29, 

48, 60 P.3d 1234 (2003) (statements not given under oath or penalty of perjury).

C.     Probable Cause

       Hord argues that the statement was not used to establish probable cause because Corporal 

Ferguson's declaration of probable cause did not reference A.M.'s statement.  See Suppl. CP at 

44-45.

       Again, Thach undermines Hord's claim.  There this court held:

       Officer Martin took Ms. Thach's statement as part of a standard procedure for 
       determining probable cause.  He testified that obtaining a signed, written victim 
       statement in a domestic violence case was standard procedure.  The statement was 
       part of the evidence Officer Martin gathered and forwarded to the prosecutor.  He 
       also forwarded police reports to the prosecutor.  The prosecutor used all of this 
       information in order to establish probable cause and to determine whether to file an 
       information in the superior court.

Thach, 126 Wn. App. at 309.

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       Here, Corporal Ferguson testified that he took A.M.'s statement as a standard domestic 

violence procedure:

       A.    We ask them if they want -- or, if they are willing to fill out a statement form 
             and then they tell us yes or no.
       Q.    Okay.  Did you do that with [A.M.] in this case?
       A.    Yes.
       Q.    And, how did she respond?
       A.    She said she would fill out the statement form.
       . . . .
       Q.    Okay.  And, did you in fact witness [A.M.] fill that out and sign it?
       A.    Yes, I did.
       Q.    Is that standard procedure in these types of cases?
       A.    Yes, we witness them fill the statement out and then we actually read the 
             perjury clause underneath after they have completed it.  And then, they sign 
             it after that -- after we read the clause.
       Q.    Okay.  So, do you actually read that -- that perjury clause to [A.M.]?
       A.    I did.
       Q.    Okay.  And, she agreed to sign after that?
       A.    Yes.

RP at 133-34.  Corporal Ferguson took A.M.'s statement as a standard procedure in his 

investigation of the harassment allegations.  While he did not reference A.M.'s statement in his 

declaration in support of probable cause, his declaration includes information he obtained from 

A.M. and that A.M. included in her statement.  He also provided the statement to the prosecuting 

attorney. This Smith factor is satisfied.

                                         II.  Conclusion

       We do not find that the trial court abused its discretion in admitting the Smith affidavit.  

State v. Nieto, 119 Wn. App. at 161  ("If the trial court based its evidentiary ruling on an 

incomplete legal analysis or a misapprehension of legal issues, the ruling may be an abuse of 

discretion.").  Accordingly, Hord's sufficiency claim also fails as the State properly used A.M.'s

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statement to show that Hord's conduct put A.M. in fear that he would carry out his threats.

       We affirm.

       A majorityofthe 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, A.C.J.
We concur:

Quinn-Brintnall, J.

Van Deren, J.

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