Appeal from Superior Court of Douglas County. Docket No: 94-1-00087-3. Date filed: 10/04/94. Judge signing: Hon. Ted W. Small Jr.
Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, Frank L. Kurtz.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Quirino Elenes-Rocha appeals his conviction of first degree kidnapping. The primary issue on appeal is whether the trial court erred in admitting certain statements by an alleged coconspirator to the victim's wife under the coconspirator exception to the hearsay rule. See ER 801(d)(2)(v) ("a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay).
Sisto Molina borrowed money from Romaldo Alverez. Mr. Molina then worked for Mr. Alverez transporting cars from California to Washington, Nevada, and Canada. After several months, Mr. Molina told Mr. Alverez he wanted to quit. In June 1994, Mr. Alverez and Mr. Elenes-Rocha kidnapped Mr. Molina at gunpoint and took him to Tacoma. They told Mr. Molina he had to transfer title to his home if he wanted to stop working for Mr. Alverez. They suggested that they might harm his family if Mr. Molina refused.
Juan Ortiz, who was in the car with Mr. Molina at the time of the kidnapping, told Mr. Molina's wife, Adelaida Molina, that her husband was being held in Tacoma and that she must transfer title to their home to have him released. She complied. Mr. Alverez and Mr. Elenes-Rocha took Mr. and Mrs. Molina to an escrow company to transfer their home. Mr. Molina and his wife were again threatened with harm to their child if they called police. When Mr. Elenes-Rocha and Mr. Alverez returned to the escrow company several days later to complete the transfer, they were arrested.
The State charged Mr. Elenes-Rocha with first degree kidnapping. At trial the State, over the objection of Mr. Elenes-Rocha, introduced statements made by Mr. Ortiz to Mrs. Molina through Mrs. Molina. A jury convicted Mr. Elenes-Rocha of first degree kidnapping. He appeals.
Admission of Coconspirator Statements. Mr. Elenes-Rocha first challenges the court's admission of statements made by Mr. Ortiz to Mrs. Molina. He claims the statements were hearsay.
A statement is not hearsay, however, if the "statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." ER 801(d)(2)(v); State v. Halley, 77 Wash. App. 149, 152, 890 P.2d 511 (1995). The court must first determine that there is prima facie evidence of a conspiracy. State v. St. Pierre, 111 Wash. 2d 105, 118, 759 P.2d 383 (1988). The court must also find that the statements were made during the course and in furtherance of the conspiracy. Id. at 118-19. The trial court here did not make these findings.
We find nonetheless that the existence of a conspiracy is amply supported by substantial evidence. State v. Guloy, 104 Wash. 2d 412, 420, 705 P.2d 1182 (1985) (finding coconspirator exception to hearsay rule applicable based on substantial evidence in record despite trial court's failure to make an independent determination of conspiracy).
At trial, Mrs. Molina testified about statements made to her by Mr. Ortiz:
Q Okay. What happened after that?
A [Mr. Ortiz] told me, "Diego *fn1 has your husband in Tacoma."
Q And after he told you that Diego had your husband in Tacoma, what's the next ...