                                                              ij I D on-, i ! i.   I •••>   *-" *-• '

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CITY OF BOTHELL,
                                                  No. 70241-6-1
                     Respondent,
       v.                                         DIVISION ONE


ERIC SCOTT LEVINE,                                UNPUBLISHED OPINION


                     Petitioner.                  FILED: January 12, 2015


       Leach, J. — We granted discretionary review of the superior court's order

affirming Eric Levine's municipal court conviction for fourth degree assault. The

superior and municipal courts rejected Levine's argument, which he reasserts in

this court, that admission of the victim's initial statements to police violated his

right to confrontation.    Because those statements were not testimonial and

therefore did not violate the confrontation clause, we affirm.

                                       FACTS


       Based on allegations that Levine choked, assaulted, and threatened his

former girlfriend, Giovanna Bustos, the city of Bothell (City) charged him with

fourth degree assault.1

       Before trial, the City informed the municipal court that Bustos had not

responded to a subpoena and it would proceed without her.                 The court then

considered the admissibility of Bustos's hearsay statements to Carol Cornelius

and the police.




       1 Levine's first trial ended in a dismissal without prejudice.
No. 70241-6-1/2




       In its offer of proof, the City said Cornelius would testify that a hysterical

woman, later identified as Bustos, appeared at her door on August 4, 2008.

Bustos was "scared," "crying and panicky," and holding her ear.            She told

Cornelius that Levine "attacked her in the [truck]" and that she was "smacked in

the ear." Bustos had either jumped or been pushed from the truck. Cornelius

reported this information to 911. Based on this offer of proof, the court ruled that

Bustos's statements to Cornelius came within the excited utterance exception to

the hearsay rule. The defense then stipulated that the statements did not violate

Levine's right to confrontation.

       The court next considered Bustos's two statements to police—a brief initial

statement made moments after police arrived and a subsequent, lengthier

statement. The parties agreed that Bustos's second statement was testimonial

and could not be admitted in her absence.              They disagreed about the

admissibility of her initial statement.

       The City told the court that Bustos made her initial statement within

minutes of Cornelius's 911 call. Bothell Police Officer John Lawson would testify

that he arrived on the scene within six minutes of a police dispatch report and

made "immediate contact" with Bustos. Officer Rogers arrived moments later.

Bustos was crying, "very traumatized," and had red marks on her neck. Officer

Lawson "had to . . . ask her to sort of slow down and calm down so he could

even get a statement from her to determine what had happened, and if any
No. 70241-6-1/3




action needed to be taken." She said "her boyfriend had assaulted her at their

residence, that he had hit her, choked her, and threatened to kill her. He drove

her away and then threw her out of the vehicle a short distance away." Bustos

"believed the threat to kill was real."

       Defense counsel argued that some of the proffered evidence was not in

Officer Lawson's police report and that Bustos was not, in fact, in an excited state

when she talked to him. The City countered that Officer Rogers was also present

during Bustos's statements and that his report contained the challenged facts.
The court ruled that Bustos's initial statements to Officer Lawson satisfied the

excited utterance exception.

       The court then considered whether Bustos's initial statements were

testimonial and therefore inadmissible under the confrontation clause. The court

framed the issue as whether the "circumstances objectively indicate that the

primary purpose [of the interrogation] is to enable police assistance to meet an
ongoing emergency." The City argued that an ongoing emergency existed
because Bustos had a fresh injury, Levine had threatened to kill her, Bustos was

"asking the officers for help," and the incident had "occurred . . . within the last 10
minutes." The City noted that Officer Lawson observed scratches on both sides
of Bustos's neck. The City also represented that the responding officers received

the following information in a police dispatch report:
No. 70241-6-1/4



      Giovanna Bustos saying her boyfriend hit her, saying he was going
      to kill her, and that he tried to choke her    This occurred at the
      residence and in the [truck]. She jumped out of the vehicle and ran
      to listed address, . . . occurred five ago. Neck hurts, put finger in
      her arm. He has guns, . . . suspect driving, . . . and [she] thinks he
      probably went back home.121
      The City argued that the primary purpose of Officer's Lawson's questions

to Bustos was "to ascertain the nature of the call, the nature of the emergency,

and then to effectuate an arrest." The emergency "was a threat to kill, her being

afraid, and Officer Lawson passing on that information to fellow officers to go

make an arrest."

       Defense counsel disagreed. He maintained any emergency had ended

because Levine was no longer at the scene, Bustos was protected by several

police officers, and her statements were about past events, not current risks of
harm. The court asked whether Officer Lawson had asked Bustos questions or

whether she "blurted out" her initial statement.      The City responded that it

"assumed" Officer Lawson asked questions and offered to bring him in to lay a

foundation. The court elected to rule on the existing record, stating,

       The officer was there to try to figure out what the emergency was,
       what the officers need to do, if there was arrests that needed to be
       made. So I do believe that the statements that Officer Lawson can
       testify to, it did also happen approximately six minutes after the
       alleged assault, and so at this time I will find those to be
       nontestimonial.

Following additional argument, the court added,

       2 (Emphasis added.)        The defense did not object to the court's
consideration ofthe dispatch report or dispute that the officers received it.

                                          4-
No. 70241-6-1/5




      [T]he critical consideration is not whether the perpetrator is ... at
      the scene, but rather whether the perpetrator poses a threat of
      harm, thereby contributing to an ongoing emergency.
             [Bustos] stated: ["]l think he went home.["] But they don't
       know where he is.


             .... [J]ust because you're surrounded by police officers
       doesn't mean somebody doesn't act inappropriately.

      At trial, Cornelius and Officer Lawson testified consistent with the City's

offers of proof.3 Cornelius testified that Bustos ran up to her door, screaming

"Help me, help me," and had blood on her neck and ear. Officer Lawson testified

that when he arrived at the scene, he immediately noticed redness and cuts and

scratches around Bustos's neck.       She was hysterical and had a difficult time

catching her breath to speak.       Officer Lawson kept medical personnel from

entering the area until the scene "was actually clear of any danger." He asked

Bustos "if she could tell me what had happened."         Bustos then described the

entire incident without intervening questions from Officer Lawson. Bustos said

Levine had assaulted her and threatened to kill her.      She also said that "if she


called the police, he would most certainly kill her."         Once Officer Lawson

determined that Levine was not in the immediate area, he cleared medical

personnel to enter the area and examine Bustos for any "injuries that needed

immediate medical attention." He then notified other officers that probable cause




      3 Although Levine did not renew his motion to exclude Bustos's initial
statements to police at trial, both parties rely largely on the testimony at trial. We
have considered both the pretrial offers of proof and the testimony at trial.

                                        -5-
No. 70241-6-1/6




existed to arrest Levine for domestic violence.      Officer Lawson stayed with

Bustos because she was still "very afraid."

      Levine testified and denied assaulting Bustos. He claimed that on the day

of his arrest, Bustos left him a phone message accusing him of "following her

breath" and "cheating with the girl with the green eyes on the computer." After

taking a shower, Levine emerged to find Bustos inside his residence. He told her

to leave and offered to drive her wherever she wanted to go. When they entered

his truck, she started screaming so loud that he "couldn't even think straight." He

quickly pulled the truck to the side of the road, got out, and turned the alarm on.

Bustos left the truck and ran to a nearby home. Levine then drove his truck to his

residence, which was a quarter mile away. Police arrested him a short time later.

       The jury convicted Levine as charged. He appealed to the superior court,

which affirmed. We granted discretionary review.

                                    DECISION


       The Sixth Amendment's confrontation clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right... to be confronted with the

witnesses against him."4 The confrontation clause bars "admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for cross-examination."5

       4 U.S. Const, amend. VI.
       5 Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed.
2d 177(2004).
No. 70241-6-1/7




Whether statements made to police are testimonial turns on whether the primary

purpose of the interrogation was to determine past facts or to address an

emergency or other circumstances.6 "When ... the primary purpose of an

interrogation is to respond to an 'ongoing emergency,' its purpose is not to create

a record for trial and thus is not within the scope of the Clause."7 A court

determines the primary purpose of an interrogation by objectively evaluating the

circumstances of the encounter and the statements and actions of the parties.8 It

focuses on the purpose reasonable participants would have had, not the

subjective or actual purpose of the participants.9 The State has the burden of

establishing that witness statements were nontestimonial.10 We review alleged

violations of the confrontation clause de novo.11

       Under the primary purpose test, "[w]e first examine the circumstances in

which the interrogation occurred."12 These include "the timing of the statements

relative to when the described events occurred."13           When a victim makes

statements      within   minutes   of an   assault,   they    may   be   considered


       6 Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 1154-55, 179 L. Ed.
2d 93 (2011).
       7 Bryant, 131 S. Ct. at 1155.
       8 Bryant, 131 S. Ct. at 1156.
       9 Bryant, 131 S. Ct. at 1156.
       10 State v. Koslowski, 166 Wn.2d 409, 417 n.3, 209 P.3d 479 (2009).
       11 Koslowski, 166 Wn.2d at 417.
       12 Bryant, 131 S. Ct. at 1163.
       13 State v. Reed, 168 Wn. App. 553, 563, 278 P.3d 203 (2012) (citing
Davis v. Washington, 547 U.S. 813, 827, 126 S. Ct. 2266, 165 L. Ed. 2d 224
(2006)).
No. 70241-6-1/8




contemporaneous with the described events.14 Here, Officer Lawson arrived on

the scene within six minutes of receiving the dispatch and made "immediate

contact" with Bustos. While the time between the assault at Levine's residence


and Bustos's statements to Officer Lawson is less clear, the assault was

essentially ongoing in nature, having begun only a few blocks away at the

residence and continued in the truck.15 And Bustos's hysterical state and fresh

injuries objectively manifested a recent assault and/or threat. Viewed objectively,

the record supports the inference, drawn by the City below, that Bustos made her

first statement within minutes of her being thrown out of or forced to jump from a

vehicle in which she had been assaulted.


       In addition to the surrounding circumstances, we assess the statements

and actions of the parties, including the nature of what was asked and answered

during the interrogation.16 Officer Lawson asked Bustos "what. .. happened."

Bustos's answer described both past events and an ongoing threat to her safety.

She also showed Officer Lawson the injuries to her neck and expressed her

belief that Levine would make good on his threat to kill her.      Officer Lawson

asked her to "slow down and calm down so he could even get a statement from

her to determine what had happened, and if any action needed to be taken."



       14 Reed, 168 Wn. App. at 566.
       15 Bustos told Officer Lawson that Levine's residence was only "a few
blocks away."
       16 Bryant. 131 S. Ct. at 1160-61; Reed, 168 Wn. App. at 563-64.

                                       -8-
No. 70241-6-1/9




(Emphasis added.) An objective view of these facts supports a conclusion that

the interrogation was not merely an investigation of past facts but also a

response to an ongoing threat.

       We also consider the level of formality of the interrogation.17 "The greater

the formality of the encounter, the more likely it is that a statement elicited during

that encounter is testimonial.      In contrast, disorganized questioning in an

exposed, public area that is neither tranquil nor safe" indicates the opposite.18

The initial questioning in this case "lacked any formality that would have alerted

[Bustos] to or focused [her] on the possible future prosecutorial use of [her]

statements."19 Officer Lawson simply asked Bustos what happened, and she

recited the essential facts.     This type of encounter is more indicative of a

response to an emergency than evidence gathering for future prosecution.20 And

while it appears that the questioning occurred on private property, it occurred in

the open and close to the spot where Levine was last seen.

       Finally, we assess the threat of harm posed by the situation.21 We do so

by considering whether a reasonable listener would conclude that the speaker

was facing an ongoing emergency that required help.22            As noted above, a



       17 Reed, 168 Wn. App. at 564; Bryant, 131 S. Ct. at 1160.
       18 Reed, 168 Wn. App. at 564.
       19 Bryant, 131 S. Ct. at 1166.
       20 See Bryant, 131 S. Ct. at 1165-67.
       21 Reed, 168 Wn. App. at 564.
       22 Koslowski, 166 Wn.2d at 419.
No. 70241-6-1/10




scared and injured Bustos ran to Cornelius's home for assistance.            Within

minutes of either jumping or being forced from Levine's truck, she told Cornelius

and Officer Lawson that Levine had assaulted and choked her at his residence,

attacked her in the truck, and threatened to kill her if she contacted police. She

told Lawson that she believed he would carry out the threat. The dispatch report

indicated Levine had guns.23 Bustos thought Levine had gone to his residence a

few blocks away, but his precise whereabouts were unknown. Because he left in

a vehicle, he was "highly mobile and could potentially return to the scene."24 A

reasonable listener would conclude from these facts that Bustos was facing a

continuing threat.

          We reject Levine's contention that any threat had been neutralized

because Levine appeared to have left the scene and Bustos was protected by

police.     Neither the departure of an assailant nor the presence of police

automatically neutralizes a threat or ends an emergency.25 In this case, the offer

of proof indicated that while Levine had departed in his truck, he lived only a few


       23 We emphasize that the primary purpose test is concerned with the
perspectives of all participants, including the declarant. Bryant, 131 S. Ct. at
1160-61. The dispatch report was thus relevant not only to the purpose of Officer
Lawson's questions but also to the purpose of Bustos's statements.
       24 Reed, 168 Wn. App. at 568.
       25 Reed, 168 Wn. App. at 567-70; Davis. 547 U.S. at 832 (officers
investigating domestic disputes "need to know whom they are dealing with in
order to assess the situation, the threat to their own safety, and possible danger
to the potential victim. . . . Such exigencies may often mean that initial inquiries
produce nontestimonial statements." (emphasis omitted) (citation omitted)
(internal quotation marks omitted)).

                                       -10-
No. 70241-6-1/11




blocks away, was very mobile, and had guns. He had threatened to kill Bustos if
she contacted police. She had done just that and was interviewed outside in the
open. In these circumstances, Levine still posed a potential threat to both Bustos
and the officers. And to the extent the officers' presence provided Bustos some

protection, "this protection was contingent upon [the officers'] continued presence

at the scene."26

        We also reject Levine's assertion that Bustos's initial statement was

testimonial because she spoke primarily of past facts. As noted above, when

statements are made within minutes of the described incident, they may be

considered to be statements of contemporaneous, not past, facts. In addition, "it

is not inconsistent to speak of past events in conjunction with an ongoing

emergency and . . . the fact that some statements are made with regard to recent
past events does not cast them in testimonial stone."27           Thus, while the
information provided by Bustos involved past events, those events were

contemporaneous with the continuing assault and included an ongoing threat to

kill.

        Contrary to Levine's assertions, State v. Koslowski28 does not dictate a
different result. In that case, an armed robbery victim gave police a statement

 minutes after calling 911. In holding that the statement was testimonial and not

        26 Reed, 168 Wn. App. at 570.
        27 Koslowski, 166 Wn.2d at 423 n.8.
        28 166 Wn.2d 409, 209 P.3d 479 (2009).

                                       -11 -
No. 70241-6-1/12




part of an ongoing emergency, the Koslowski court emphasized that nothing in

the record indicated the robbers might return to the scene or had "any ongoing

situation or relationship with [the victim] that might suggest she was still in danger

from them."29 There was no "bona fide physical threat" or any "reason to think

that she faced any further threat after the robbers left."30 In that context, the

court found it significant that the victim was also protected by police when she

made her statements. Here, by contrast, there was a relationship between the

victim and the assailant and an "ongoing situation" and "bona fide threat." Thus,

unlike the victim in Koslowski, the victim in this case faced an ongoing threat

despite the presence of police.

       In conclusion, an objective view of the record indicates that the primary

purpose of Officer Lawson's initial questions, and Bustos'sinitial answers, was to

address an ongoing threat to Bustos.31

       29 Koslowski, 166 Wn.2d at 422.
      30 Koslowski. 166 Wn.2d at 423, 425.
      31 See Koslowski, 166 Wn.2d at 428 (citing United States v. Arnold. 486
F.3d 177, 179-80 (6th Cir. 2007) for the proposition that "statements were
nontestimonial where the witness [told police at the scene] that the armed
defendant had threatened to kill her and he was still in the vicinity"). The Arnold
court's reasoning reveals several factual and analytical parallels to this case:

       While it may often be the case that on-the-scene statements in
       response to officers' questions will be testimonial because the
       presence of the officers will alleviate the emergency, this is not one
       of those cases.   Neither the brief interval of time after the 911 call
       nor the arrival of the officers ended the emergency. Arnold
       remained at large; . . . and for all Gordon (or the officers) knew
       Arnold remained armed and in the residence immediately in front of
       them or at least in the nearby vicinity.

                                        -12-
No. 70241-6-1/13




        Levine's statement of additional grounds fails to adequately inform this

court of the nature and occurrence of any alleged errors.32

        Affirmed.




                                                        jU*teJ<,
WE CONCUR:




   \htcji»>+~; IxvV
    t




                . . . [T]he distress that the officers described in her voice, the
        present tense of the emergency, the officers' efforts to calm her and
        the targeted questioning of the officers as to the nature of the
        threat, all . . . suggested that the engagement had not reached the
        stage of a retrospective inquiry into an emergency gone by. No
        reasonable officer could arrive at a scene while the victim was still
        "screaming" and "crying" about a recent threat to her life by an
        individual who had a gun and who was likely still in the vicinity
        without perceiving that an emergency still existed.

Arnold. 486 F.3d at 190 (emphasis added).
        32 RAP 10.10(c).

                                           13
