Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 67113-8-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
JONATHAN M. CERVANTES,                      )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: April 23, 2012
                                            )

       Lau, J.  --  Jonathan Cervantes appeals his juvenile court conviction for second 

degree assault.  He argues the trial court erred when it admitted a witness's prior 

recorded statement under ER 803(a)(5)'s recorded recollection hearsay exception.  

Cervantes contends the State failed to show the foundational requirements for 

admissibility -- insufficient recollection and prior statement's accuracy.  He also claims 

deficient performance by his counsel for conceding the accuracy of the prior statement 

requirement.  Finding no error, we affirm.       

                                            FACTS

       Oscar Daza-Flores worked at a Subway restaurant in Lake City.  On May 9, 

2010, Daza-Flores' girl friend, Carolina Camacho, picked him up from work a little after 

10 p.m.  Daza-Flores and Camacho drove to El Rinconsito restaurant in Sea-Tac for  

67113-8-I/2

dinner.  

       Daza-Flores and Camacho arrived at El Rinconsito and parked.  On the way into 
the restaurant, they saw Christian Cervantes1 standing outside with his brother, 

Jonathan Cervantes, and two girls.  Daza-Flores knew Christian but had never met 

Cervantes.  Camacho testified that at that time, she knew Cervantes only by his street 

name, "Baby Locs." Report of Proceedings (RP) (Mar. 21, 2011) at 61.  Camacho did 

not remember whether she or Daza-Flores said anything to the Cervantes brothers or 

the two girls on the way into the restaurant, but Daza-Flores testified that he spoke 

briefly to Christian before entering the restaurant.  

       Once inside the restaurant, Daza-Flores realized he had left his wallet in 

Camacho's car.  The couple went back outside to retrieve the wallet.  Daza-Flores 

testified that Cervantes confronted him at that point, blocking his way to Camacho's 

car.  Cervantes held an extendable metal baton in his hand and used it to strike Daza-

Flores in the ear, causing the ear to bleed.  When Daza-Flores asked Cervantes what 

his problem was, Cervantes said, "You are a snitch" and hit Daza-Flores again in the 

shoulder.  RP (Mar. 28, 2011) at 63.  Daza-Flores testified he had nothing in his hands 

when Cervantes attacked him.    

       Camacho told Cervantes to drop the baton and fight like a man.  Cervantes 

dropped the baton, charged at Daza-Flores with his fists closed in a fighting position,

and swung at Daza-Flores.  Daza-Flores testified that he did not want to fight but he 

       1 For clarity, we refer to Christian by his first name. We refer to Jonathan as 
"Cervantes."

                                            -2- 

67113-8-I/3

swung back to defend himself.  Cervantes and Daza-Flores exchanged several 

punches.  Daza-Flores testified that Cervantes then picked him up and slammed him 

against a parked van.  According to Daza-Flores, he and Cervantes fell to the ground 

and continued to fight until the commotion drew security guards from an adjacent 

casino.  At that point, Cervantes complained that Daza-Flores was bleeding on him and 

told Daza-Flores to let go.  The two separated and the fight ended.  

       Daza-Flores was still bleeding after the fight.  Camacho and Daza-Flores drove 

to the hospital.  Daza-Flores received stitches for injuries to his head and ear.  

       Both Camacho and Daza-Flores gave statements to Detective Chris Johnson a 

few days after the incident.  In her May 13, 2010 recorded statement, Camacho said 

that Cervantes confronted Daza-Flores, called him a "snitch," and hit him with a black 

metal stick.  She also said that after dropping the stick, Cervantes charged at Daza-

Flores and the two punched each other.  

       The State charged Cervantes in juvenile court with second degree assault and 

intimidating a witness.  At the bench trial, Cervantes and other witnesses gave 

testimony inconsistent with Daza-Flores' account.  Cervantes testified that Daza-Flores 

initiated the fight.  He claimed that Daza-Flores held what appeared to be a glass bottle 

in his hand.  Cervantes testified that he feared for his safety and picked up a stick from 

the ground to defend himself, but he did not hit Daza-Flores with the stick.  

       Camacho testified that when she and Daza-Flores left the restaurant to retrieve 

Daza-Flores' wallet, Daza-Flores and Cervantes exchanged words.  But she testified 

that she did not know how the fight started.  She saw Cervantes hit Daza-Flores in the 

                                            -3- 

67113-8-I/4

ear with "[s]ome kind of stick." RP (Mar. 21, 2011) at 65.  She testified that Cervantes 

and Daza-Flores were hitting and punching each other, but she did not remember who 

approached who or who hit first.  She also testified that the two men were "calling each 

other snitches" and reiterated that both men used the word "snitch," but could not 

remember who used the word first.  RP (Mar. 21, 2011) at 68.  She thought Daza-

Flores might have had something in his hand during the fight and stated that he 

commonly carried a plastic juice bottle.  

       The State confronted Camacho with her prior recorded statement in an attempt 

to refresh her memory regarding critical details of the incident.  She testified she had 
read over the statement before trial, but she could not remember the statement.2 She 

agreed that she made the statement closer to when the event occurred and that her 

memory would have been fresher a few days after the incident than at trial.  

       The State offered Camacho's recorded statement at trial as a recorded 

recollection under ER 803(a)(5).  The court initially declined to admit the entire 

statement, but allowed the State to ask follow-up questions.  At the conclusion of 

Camacho's testimony, the court revisited the ER 803(a)(5) issue.  Defense counsel 

objected, arguing that the statement was cumulative and unnecessary.  But defense 

counsel agreed that Camacho had not disavowed the accuracy of her prior statement:  

       I think what Ms. Camacho is saying is, today or yesterday, she doesn't recall 
       some of the events as they occurred, but she doesn't disavow the accuracy of 
       the statement she provided to Detective Johnson back in May of 2010.  In fact, 
       she said, "That's what I said, I don't remember that, but that's what I said." She's 

       2 Camacho testified that reading her prior statement was "like reading a book.  I 
don't remember me actually saying this or anything." RP (Mar. 21, 2011) at 85.  

                                            -4- 

67113-8-I/5

       not saying that the recording is inaccurate, in fact, I think she said it was 
       accurate, and there are many times throughout the direct examination that she 
       took a long period of time to review the recording, specific paragraphs that the 
       State wanted her to read, and then either read into the record or answered the
       direct question proposed by the State.

RP (Mar. 22, 2011) at 25.  When the court asked whether the defense was conceding 

that the police statement was "accurate in terms of what [Camacho] recalled at the 

time," defense counsel stated, 

       Yeah, I don't think Ms. Camacho ever said that the recording  --  the exhibit that 
       she was looking at, the transcript, I don't think she ever said that that was 
       inaccurate.  I think she doesn't know recall some of the things that are in that 
       would be accurate recording transcripts.

RP (Mar. 22, 2011) at 28.  In response to further questioning from the court, defense 

counsel clarified, "Right, [Camacho is] not disavowing that the transcript that she was 

shown, the State's exhibit . . . she's not saying that is inaccurate, she's saying that she 

believes they are different now.  Her memory of the incident is different now than then.  

So the accuracy of the statement is not in question." RP (Mar. 22, 2011) at 29.  And 

again, "I don't think at all she's disavowing the accuracy of the transcript." RP (Mar. 22, 

2011) at 32.  The defense maintained that the State achieved its goals of obtaining 

testimony through Camacho's memory and by showing her the statement at trial, and 

thus, the statement need not be admitted.  

       Despite defense counsel's concession regarding accuracy, the court stated, "I 

think the Court, in considering this, can reasonably find that [Camacho], in effect, 

disavowed accuracy.  I mean, she may well have phrased in terms of not remembering, 

but she didn't really want to adopt any of those statements here in court when 

                                            -5- 

67113-8-I/6

confronted with that."  RP (Mar. 22, 2011) at 34.  Both parties disagreed and defense 

counsel reiterated, "I don't think that [Camacho] says that those statements were 

inaccurate at the time and that that was an inaccurate transcript of what occurred." RP 

(Mar. 22, 2011) at 34.  The court then noted, "[M]aybe it is fair to say that, certainly, the 

Court should respect that both counsel are agreeing that [Camacho] did not disavow 

the accuracy of the statements at the time that she testified to them; is that correct?"  

RP (Mar. 22, 2011) at 35.  Both parties agreed, and the court concluded:

       [Camacho] didn't disavow the accuracy to the statements, she was saying she 
       couldn't remember them.  She would read them, and then was able to recite, 
       after looking at them . . . she would concede that's what the statement says.  
       There is no dispute it was accurate at the time she made the statement, I don't 
       think there is any statement that the recording was reliable, anybody arguing 
       there wasn't an accurate and reliable tape recording here. . . . I don't see 
       anything that would be contrary to the notion that the statements, when made, 
       that these statements are trustworthy statements.

RP (Mar. 22, 2011) at 35-37.  Defense counsel agreed with that analysis.  The court 

later clarified, "[I]t is more accurate . . . for the Court to find that the [Camacho] 

basically stated that she could not remember the statements attributed to her," not that 

she disavowed them.  RP (Mar. 28, 2011) at 3.  The court reviewed the statement in 

camera, determined that portions of it were admissible under ER 803(a)(5), and read 

those portions into the record.  Defense counsel again objected on cumulative 

evidence grounds to no avail.  

       The court convicted Cervantes of second degree assault but found insufficient 

evidence to convict him of intimidating a witness.  The court imposed a standard range 

sentence of 103 to 129 weeks of community supervision.  

                                            -6- 

67113-8-I/7

                                          ANALYSIS

       Trial Court's Admission of Camacho's Statement as Recorded Recollection

       Cervantes contends the trial court erred when it admitted portions of Camacho's 

statement to Detective Johnson as a recorded recollection under ER 803(a)(5).  The 

State counters that the trial court properly exercised its discretion in admitting the 

statement.  In the alternative, the State contends that any error was harmless because 

the trial court did not rely on Camacho's statement in finding Cervantes guilty.

       Although hearsay is generally inadmissible, ER 803(a)(5) provides an exception 

to the hearsay rule for 

       A memorandum or record concerning a matter about which a witness once had 
       knowledge but now has insufficient recollection to enable the witness to testify 
       fully and accurately, shown to have been made or adopted by the witness when 
       the matter was fresh in the witness' memory and to reflect that knowledge 
       correctly.  If admitted, the memorandum or record may be read into evidence but 
       may not itself be received as an exhibit unless offered by an adverse party.

Admission of a recorded recollection under ER 803(a)(5) is proper when the following 

requirements are met:  (1) the record pertains to a matter about which the witness once 

had knowledge, (2) the witness has an insufficient recollection of the matter to provide 

truthful and accurate trial testimony, (3) the record was made or adopted by the witness 

when the matter was fresh in the witness's memory, and (4) the record reflects the 

witness's prior knowledge accurately.  State v. White, 152 Wn. App. 173, 183, 215 P.3d 

251 (2009).  Here Cervantes challenges only the second and fourth requirements.

       We review admission of statements under ER 803(a)(5) for abuse of discretion.  

White, 152 Wn. App. at 183.  "An abuse of discretion occurs only when no reasonable 

                                            -7- 

67113-8-I/8

person would take the view adopted by the trial court."  White, 152 Wn. App. at 183-84.

       Insufficient Recollection

       Cervantes first argues that Camacho did not have an insufficient recollection of 

the event and thus cannot satisfy ER 803(a)(5)'s second requirement.  Cervantes failed 

to raise this argument below and thus waives it on appeal.  RAP 2.5(a); State v. 

Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011).  Further, Cervantes cites only 

State v. Chavez, 134 Wn. App. 657, 142 P.3d 1110 (2006), in support of this argument.  

The discussion of ER 803(a)(5) in Chavez is limited to the unpublished portion of the 

opinion.  Not only is reliance on unpublished opinions improper, we generally do not 

consider arguments unsupported by authority or insufficiently argued by the parties.  

GR 14.1(a); Skamania County v. Woodall, 104 Wn. App. 525, 536 n.11, 16 P.3d 701 
(2001).  We decline to address Cervantes' "insufficient recollection" argument.3

       3 Even if we addressed this argument, it lacks merit.  Under the second 
requirement of the recorded recollection test, a prior statement is properly admitted if 
the witness has an insufficient recollection of the matter to provide truthful and accurate 
trial testimony.  Alvarado, 89 Wn. App. at 548. Commentators have interpreted this 
requirement broadly to apply when the witness recalls the matter in a general way but 
cannot recall important details.  5C Karl B. Tegland, Washington Practice:  Evidence 
Law and Practice § 803.28, at 83 (5th ed. 2007).  The recording here was a taped 
statement made on May 13, 2010, four days after the incident.  At trial, Camacho 
remembered basic details about the evening of May 9, 2010, but testified that she 
could not remember critical aspects of the incident.  She could not remember who 
approached who outside the restaurant, how the fight started, who hit first, or who used 
the word "snitch" first.  Nor could she remember the color or material of the "stick"
Cervantes used to hit Daza-Flores.  She did not remember whether Cervantes and 
Daza-Flores fought up against a car.  In contrast, Camacho told Detective Johnson on 
May 13, 2010, that Cervantes held a black metal stick and started the fight by hitting 
Daza-Flores on the ear and calling him a "snitch." We conclude that a reasonable 
person could have found that during trial, Camacho had an insufficient recollection of 
important details about the fight.  Thus, the trial judge did not abuse his discretion in 
concluding that Camacho's statement met ER 803(a)(5)'s second requirement.     
                                            -8- 

67113-8-I/9

       Prior Statement's Accuracy

       Cervantes also challenges the admission of Camacho's recorded statement 

under ER 803(a)(5)'s fourth requirement, arguing that Camacho disavowed the 

statement's accuracy at trial and thus the court erred in admitting it. Cervantes failed to 

raise this argument below and thus waives it on appeal.  RAP 2.5(a); Robinson, 171 

Wn.2d at 304.  But because Cervantes alleges defense counsel provided ineffective 

assistance for conceding that Camacho did not disavow the statement's accuracy, we 

address this issue below in resolving his ineffective assistance claim.  

       Ineffective Assistance of Counsel

       Cervantes argues that defense counsel's performance was deficient because 

counsel conceded at trial that Camacho did not disavow the statement's accuracy.  The 

State contends that defense counsel properly stipulated that Camacho had not 

disavowed her statement and, alternatively, that Cervantes fails to show he was 

prejudiced by any deficient performance.

       To establish ineffective assistance of counsel, Cervantes must show both 

deficient performance and resulting prejudice.  Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  If a defendant fails to satisfy either 

prong, the court need not inquire further.  There is a strong presumption of effective 

representation.  State v. McFarland, 127 Wn.2d 322, 334 -- 35, 899 P.2d 1251 (1995).

Matters that go to trial strategy or tactics do not show deficient performance, and 

Cervantes bears the burden of establishing there were no legitimate strategic or tactical 

reasons behind his attorney's choices. State v. Rainey, 107 Wn. App. 129, 135 -- 36, 28 

                                            -9- 

67113-8-I/10

P.3d 10 (2001). To establish prejudice, a defendant must show that the outcome of the 

trial or ruling would have been different absent counsel's deficient performance.  State 

v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).  Because Cervantes' ineffective 

assistance claim hinges on whether defense counsel properly conceded the disavowal 

issue while objecting to the statement's admission on other grounds, we consider 

whether Camacho disavowed the accuracy of her prior statement under ER 803(a)(5)'s 

fourth requirement.    

       In State v. Alvarado, 89 Wn. App. 543, 551, 949 P.2d 831 (1998), we held that 

the requirement that a recorded recollection accurately reflect the witness's knowledge 

may be satisfied without the witness's direct verification of accuracy at trial.  In such 

cases, "[t]he court must examine the totality of the circumstances, including (1) whether 

the witness disavows accuracy; (2) whether the witness averred accuracy at the time of 

making the statement; (3) whether the recording process is reliable; and (4) whether 

other indicia of reliability establish the trustworthiness of the statement."  Alvarado, 89 

Wn. App. at 551-52.

       Cervantes claims that Camacho disavowed the accuracy of her recorded 

statement because some of her trial testimony contradicted the statement.  He points to 

three instances of contradiction.  First, in her recorded statement, Camacho described 

Cervantes' weapon as a black metal stick with a ball on the end of it.  But during trial,

she testified that she did not remember the stick and also claimed she did not see the 

stick.  Second, in her recorded statement, Camacho said that Cervantes called Daza-

Flores a "snitch." But Camacho testified at trial that Cervantes and Daza-Flores 

                                            -10- 

67113-8-I/11

"call[ed] each other snitches" and she was "not sure who called who a snitch first." RP 

(Mar. 21, 2011) at 68, 91.  Finally, Camacho in her recorded statement claimed that 

after dropping the stick, Cervantes charged at Daza-Flores.  But at trial, she testified, "I 

believe that's incorrect . . . [b]ecause . . . I don't remember [Cervantes] charging him."  

RP (Mar. 21, 2011) at 94.

       We recently explained that a witness does not disavow a prior statement merely 

by giving contradictory testimony at trial.  In White, the defendant violated a no-contact 

order and assaulted his former girl friend.  White, 152 Wn. App. at 176.  The victim 

called 911 during the incident and identified White as her attacker.  White, 152 Wn. 

App. at 176.  The victim also gave an oral and a written statement to police.  White, 

152 Wn. App. at 177.  At trial, the victim testified that she was attacked on the day in 

question but stated she was intoxicated at the time and could not remember any 

details.  White, 152 Wn. App. at 178.  She also testified that White was not present on 

the day of the attack.  White, 152 Wn. App. at 178.  When the State presented her with 

a copy of her signed police statement and played the 911 recording, the victim testified 

that she did not remember if the statements were true and did not remember calling 

911.  White, 152 Wn. App. at 176.  

       On appeal, White argued that the trial court erred by admitting the victim's prior 

written statement under ER 803(a)(5).  White, 152 Wn. App. at 183.  Specifically, White 

argued that the victim disavowed her prior statements when she testified that he was 

not present on the day of the attack, and therefore the statement failed to meet the 

Alvarado test for ER 803(a)(5)'s fourth requirement.  White, 152 Wn. App. at 184.  We 

                                            -11- 

67113-8-I/12

held that even though the victim's trial testimony contradicted her prior statement, "after 

reading the statement on the stand, [the victim] did not disavow the accuracy of the 

statement."  White, 152 Wn. App. at 185.  And because other evidence of reliability 

weighed in favor of admitting the statement, it satisfied Alvarado's "totality of the 

circumstances" test.  White, 152 Wn. App. at 186; Alvarado, 89 Wn. App. at 551-52.  

We emphasized that the victim made the statement on the day of the attack, signed the 

statement as recorded by the officer under penalty of perjury, had the opportunity to 

correct any errors, and the officer testified that he wrote the statement as narrated by 

the victim.  White, 152 Wn. App. at 186.

       This case is similar to White.  Camacho's testimony that she did not remember 

who called whom a "snitch" first did not disavow the accuracy of her prior statement. 

Similarly, her testimony that she did not see the stick Cervantes held -- while 

contradictory to her prior statement describing the stick -- did not disavow the accuracy 

of that prior description.  While Camacho questioned the accuracy of her prior 

statement that Cervantes charged at Daza-Flores, she clarified that she believed the 

prior statement was incorrect because she did not remember the incident.  Camacho 
never testified that she lied to Detective Johnson in her prior statement.4  See State v. 

Floreck, 111 Wn. App. 135, 140, 43 P.3d 1264 (2002) (holding that Alvarado's "totality 

       4 Cervantes argues that Camacho had a motive to lie when making her
statement because Daza-Flores was her boyfriend at the time.  This assertion is 
speculative and we decline to make a finding regarding the credibility or lack thereof of 
the witness statements.  See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 
(1990) ("Credibility determinations are for the trier of fact and cannot be reviewed on 
appeal.").  Even if Camacho had such a motive, mere capability of lying does not 
render prior statements inadmissible.  Alvarado, 89 Wn. App. at 552-53. 
                                            -12- 

67113-8-I/13

of the circumstances" test was not met when the witness "specifically said that her prior statement 

was a lie"); Alvarado, 89 Wn. App. at 553 (witness's prior statement lacked sufficient 

indicia of reliability when witness admitted it was untrue).  And to the extent Camacho 

denies remembering the prior statement, denying recollection of a statement does not 

amount to disavowal of the statement's accuracy.  State v. Derouin, 116 Wn. App. 38, 

46, 64 P.3d 35 (2003).

       Other indicia of reliability also support admission of Camacho's statement.  After 

taking Camacho's statement, Detective Johnson asked her if everything she said was 

true to the best of her knowledge.  Camacho answered, "Yes." RP (Mar. 28, 2011) at 8.  

Camacho made the statement four days after the incident and answered affirmatively at 

trial when the prosecutor asked if her "memory would have been fresher a few days 

after the event than it is now." RP (Mar. 21, 2011) at 81.  Camacho consented to 

simultaneous recording of her statement, and no evidence suggests the recording 

method was unreliable.  Camacho's statement was also corroborated by Daza-Flores'

testimony.  The totality of the circumstances indicates that Camacho's statement 

accurately reflected her knowledge of the incident.

       Here, defense counsel's concession that Camacho had not disavowed her 

statement was not deficient performance.  As discussed above, the relevant portions of 

the statement were properly admitted under ER 803(a)(5).  Camacho did not disavow 

the accuracy of her statement.  She merely testified that she could not remember the 

details of the incident and, at most, gave contradictory testimony.  As discussed above, 

giving contradictory testimony does not amount to disavowing a prior statement.  White, 

                                            -13- 

67113-8-I/14

152 Wn. App. at 186.  Defense counsel properly stipulated that Camacho had not 

disavowed her statement. It was a legitimate trial tactic to object on other grounds and 
concede the disavowal issue.5  

                                        CONCLUSION

       Because the trial court properly admitted portions of Camacho's prior statement 

as a recorded recollection under ER 803(a)(5) and no deficient performance occurred, 

we affirm.

WE CONCUR:

       5 Cervantes also fails to show any prejudice.  To the extent Cervantes argues 
that a proper objection likely would have been sustained because the trial court initially 
found that Camacho disavowed the accuracy of her prior statement and only
abandoned that finding after defense counsel conceded the issue, his argument lacks 
merit.  The trial court made no such formal finding.  Rather, it engaged in a discussion 
with the parties and "basically work[ed] through this thinking aloud," in part because it 
had not anticipated addressing the issue that day.  RP (Mar. 22, 2011) at 34-35.  The 
court later considered reliability and accuracy under the totality of the circumstances 
test.  It properly concluded that Camacho "essentially did confer accuracy at the time of 
making the statement" and that her trial testimony was more accurately characterized 
as "stat[ing] that she could not remember the statements attributed to her." RP (Mar. 
28, 2011) at 3.  As discussed above, the trial court correctly concluded that Camacho 
did not disavow the accuracy of her prior statement. The trial court's arrival at the 
correct conclusion does not prejudice Cervantes.         
                                            -14-