               IN THE SUPREME COURT OF IOWA
                               No. 05–0559

                        Filed November 21, 2008


STATE OF IOWA,

      Appellee,

vs.

DAVID CHARLES SCHAER,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Cerro Gordo County,

Jon Stuart Scoles, Judge.



      Further review of court of appeals’ decision finding no error in trial

court’s admission of hearsay statements made by victim of defendant’s

alleged assault over defendant’s contention testimony violated his rights

under the Confrontation Clause. DECISION OF COURT OF APPEALS
VACATED. DISTRICT COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant

Attorney General, Paul L. Martin, County Attorney, and Sandra L.

Murphy, Assistant County Attorney, for appellee.
                                    2

TERNUS, Chief Justice.

      The appellant, David Schaer, appeals his conviction of domestic

assault with intent to commit serious injury and of willful injury. On

appeal, he claims the trial court’s admission of hearsay testimony

identifying him as the perpetrator of the assault violated his rights under

the Confrontation Clauses of the United States and Iowa Constitutions.

On a divided vote, the court of appeals affirmed his conviction,
preserving one of his claims for a possible postconviction-relief action.

Upon our review, we conclude all of the defendant’s claims lack merit.

Therefore, we vacate the court of appeals’ decision and affirm the district

court’s judgment of conviction.

      I. Background Facts and Proceedings.

      Evidence introduced at trial revealed the defendant and Teresa

Bergan had been in a romantic relationship for about four years prior to

the events at issue in this case. On June 3, 2004, Bergan spent the day

with her stepsister, Sarah Reckner. Between 9 p.m. and 10 p.m. that

evening, Reckner dropped off Bergan at the home Bergan shared with the

defendant.   Approximately fifteen minutes later, Reckner received a

phone call from a hysterical Bergan, asking Reckner to pick her up.
According to Reckner’s trial testimony, Bergan told her “they had gotten

into a fight” and that Bergan had left the house.

      Reckner proceeded to pick up Bergan at a church located a few

blocks from the residence where Bergan had been dropped off.         Upon

seeing that Bergan was bloody and badly beaten, Reckner took Bergan to

the emergency room where she was treated. Eventually, a police officer

arrived at the hospital and interviewed Bergan regarding the nature and

source of her injuries.    During Bergan’s conversations with medical
                                     3

personnel and the police officer, she identified the defendant as her

assailant.

      Schaer was arrested and charged with domestic abuse assault with

intent to cause serious injury and with willful injury causing serious

injury.   See Iowa Code §§ 708.1, .2A(2)(c), .4(1) (2003).     He pled not

guilty, and the case proceeded to a jury trial.

      By the time of trial, Bergan had recanted her original statements
identifying the defendant as the perpetrator; she asserted an unnamed

female had assaulted her. Due to this recantation, the State did not call

Bergan to testify at trial. To prove Schaer inflicted Bergan’s injuries, the

State relied on the testimony of Reckner, the nurse and doctor who

treated Bergan, and the police officer who interviewed Bergan at the

hospital, Officer Blake.    Reckner testified Bergan told her “they had

gotten into a fight” and that she overheard Bergan tell the police officer

“that her [Bergan] and David got into a fight and he beat her up.” The

nurse testified that Bergan told her she “had been beaten by [her] ex-

boyfriend.” The doctor testified similarly that Bergan told him “she had

been punched and bitten several times by her significant other,” and she

named that person as “David Schaer.”        Finally, Officer Blake testified
that, after interviewing Bergan, he went to the residence Bergan “shared

. . . with the David Schaer who she identified as her assailant.” The jury

returned a verdict of guilty to the charges of domestic assault with intent

to commit serious injury and willful injury.

      On appeal, the defendant claimed the testimony from Reckner, the

medical personnel, and the police officer regarding the statements made

by Bergan after she was assaulted were impermissibly admitted in

violation of his Sixth Amendment right to confront the witnesses against

him, as well as his comparable right under the Iowa Constitution. See
                                            4

U.S. Const. amend. 6; Iowa Const. art. I, § 10.1                   To the extent his

attorney failed to preserve error on this issue, Schaer asserted his

counsel rendered ineffective assistance. The defendant also claimed his

counsel was ineffective for failing to move for judgment of acquittal on

the basis the State failed to prove the victim and the defendant lived

together, an element of domestic abuse assault. Finally, he contended

the district court abused its discretion by improperly considering, for

sentencing purposes, Schaer’s not-guilty plea as evidence of his lack of

remorse.

       The defendant’s appeal was transferred to the court of appeals,

where a divided panel determined, with one exception, that his claims

were without merit. With respect to the defendant’s challenge to Officer

Blake’s testimony, the court concluded error had not been preserved.

Although Schaer asserted counsel was ineffective in this regard, the

court of appeals found the record insufficient to permit it to address the

ineffective-assistance-of-counsel claim, preserving it for a possible

postconviction action. The court of appeals affirmed Schaer’s conviction

and sentence.

       This court granted the defendant’s application for further review to

consider his claims based upon the Confrontation Clause.2                           After

       1Because    the defendant has offered no basis upon which to hold the state
provision is different in scope and meaning from the federal provision, we will review the
defendant’s federal and state claims using the same principles. See State v. Shipley, ___
N.W.2d ___, ___ (Iowa 2008).        For simplicity, we will refer only to the Federal
Confrontation Clause in the remainder of our opinion, but our discussion applies
equally to the state guarantee of the defendant’s right to confront the witnesses against
him.
       2
        We have also examined the other issues raised by the defendant on appeal, but
conclude they have no merit. For the reasons stated in the court of appeals’ decision,
we reject the defendant’s claim his counsel was ineffective for failing to move for
judgment of acquittal on the basis the State failed to prove the defendant and the victim
lived together, as well as his claim the district court abused its discretion by relying
upon an improper factor in sentencing him.
                                           5

considering the parties’ arguments and relevant legal authorities, we

conclude the admission of hearsay testimony by Reckner and the

medical personnel as to Bergan’s statements to them did not violate the

defendant’s right to confront the witnesses against him.3 We find trial
counsel failed to preserve error on the admission of testimony by Reckner

and Officer Blake as to what Bergan told the officer. Considering this

claim under an ineffective-assistance-of-counsel analysis, we conclude

that,   even    if   the   admission     of    this    evidence   violated   Schaer’s

confrontation rights, reversal is not required because the defendant

suffered no prejudice from this testimony:               it was cumulative to the

properly admitted testimony of Reckner and the medical personnel.

        II. Standard of Review.

        We review the defendant’s claims based on the Confrontation

Clause de novo. State v. Musser, 721 N.W.2d 734, 741 (Iowa 2006).

        III. Error Preservation.

        Prior to trial, the defendant’s counsel filed a motion in limine to

exclude evidence of the statements made by the victim that the State

proposed to admit through the testimony of the victim’s stepsister, her

treatment providers, and Officer Blake.               Counsel claimed the victim’s

statements were testimonial in nature and therefore their admission was

prohibited by the Confrontation Clause under the United States Supreme




        3The State argued in its brief and the court of appeals addressed in its opinion
whether the witnesses’ hearsay testimony concerning what Bergan said was admissible
under Iowa Rule of Evidence 5.803 as excited utterances or as statements for purposes
of medical diagnosis or treatment. See Iowa R. Evid. 5.803(2), (4). Although the
defendant in his brief refers to this evidence as “improper hearsay,” he does not argue
the admission of this testimony violated our rules of evidence. The defendant’s brief
point and entire argument is focused on a violation of the Confrontation Clause.
Therefore, we do not consider whether the trial court erred in ruling the challenged
testimony fell within an exception to the rule prohibiting the admission of hearsay.
                                      6

Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004).

       The trial court ruled the victim’s statements made to Reckner and

to the medical providers were not testimonial in nature, and therefore,

the Confrontation Clause did not apply to them. The court specifically

ruled that “the motion in limine with respect to the stepsister and the

two medical providers will be overruled and denied.”
       As for the statement made to the police officer, the court

acknowledged it was “probably a little closer question.”              The court

concluded it would “have to hear what the circumstances were

surrounding the statements made by the alleged victim to the officer.”

The court decided it would wait to hear that evidence and “then make a

ruling as to whether . . . it’s a so-called testimonial statement.”

       As the State proposed prior to trial, it presented the hearsay

testimony of Reckner, the medical personnel, and Officer Blake in its

case in chief. Defense counsel did not object on confrontation grounds to

the testimony now challenged on appeal.         Therefore, we must decide

whether Schaer waived error in the admission of this testimony by failing

to object to it at trial.
       We have previously considered whether a ruling on a motion in

limine preserves error in the admission of evidence:

       “Ordinarily, error claimed in a court’s ruling on a motion in
       limine is waived unless a timely objection is made when the
       evidence is offered at trial. However, ‘where a motion in
       limine is resolved in such a way it is beyond question
       whether or not the challenged evidence will be admitted
       during trial, there is no reason to voice objection at such
       time during trial. In such a situation, the decision on the
       motion has the effect of a ruling.’ ”

State v. Daly, 623 N.W.2d 799, 800 (Iowa 2001) (quoting State v. Tangie,

616 N.W.2d 564, 568–69 (Iowa 2000)).
                                     7

      Under the record made on the motion in limine, we are confident

the trial judge conclusively resolved the defendant’s objections to the

hearsay testimony regarding the victim’s statements to Reckner and the

medical personnel prior to trial. The judge made it clear that evidence

would be admitted notwithstanding the defendant’s assertion it would

violate his constitutional right to confront the witnesses against him.

Therefore, any error in the admission of Reckner’s testimony and that of
the medical providers that Bergan told them Schaer was her assailant

was preserved.

      We do not reach the same conclusion with respect to the testimony

of Reckner and Officer Blake as to the statement Bergan made to the

officer. The trial court did not rule on the admissibility of this testimony

at the hearing on the motion in limine. Rather, the court delayed ruling

until it heard the context of the challenged statement at the time of trial.

When Reckner testified to this statement at trial, defense counsel

objected on hearsay grounds, but did not renew a confrontation

objection. Officer Blake later responded to questions from the prosecutor

in the following exchange:

             Q. After you took the photographs and finished your
      conversation with Ms. Bergan, what did you do, Officer?
      A. . . . I asked final questions. She had already identified
      her assailant, and I asked questions where I could find this
      person.
           Q. And so where did you go?           A.   I went to her
      address. . . .
             Q. Do you recall whose home was that? A. That was
      her shared residence along with the David Schaer who she
      identified as her assailant.

Defense counsel did not object to the final question, or to the officer’s

answer, so Bergan’s hearsay statement to the officer that Schaer

assaulted her was admitted without objection.
                                       8

      Under these circumstances, we conclude error was not preserved

with respect to the witnesses’ testimony regarding the victim’s statement

to the officer. Consequently, we will consider the defendant’s challenge

to this evidence as an ineffective-assistance-of-counsel claim.

      IV. Guiding Principles for Confrontation-Clause Analysis.

      The   Sixth   Amendment     to       the   United   States   Constitution

guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”         U.S.

Const. amend. VI. The Supreme Court has held that only “testimonial

statements” of the sort that “cause the declarant to be a ‘witness’ within

the meaning of the Confrontation Clause” are subject to the constraints

of this constitutional provision. Davis v. Washington, 547 U.S. 813, 822,

126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006).              If a hearsay

statement made by a declarant who does not appear at trial is

testimonial, evidence of that statement is not admissible under the

Confrontation Clause unless the declarant is unavailable to testify at

trial and the defendant had a prior opportunity for cross-examination.

Crawford, 541 U.S. at 53–54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194;

accord State v. Bentley, 739 N.W.2d 296, 298 (Iowa 2007). Thus, as we
have recently noted, “the fighting Confrontation Clause issue with

respect to admission of hearsay is whether the underlying statements

should be considered ‘testimonial’ or ‘nontestimonial.’ ” State v. Shipley,

___ N.W.2d ___, ___ (Iowa 2008). The State bears the burden of proving

by a preponderance of the evidence that a challenged hearsay statement

is nontestimonial. Bentley, 739 N.W.2d at 298.

      Although the Supreme Court has stated the Confrontation Clause

“applies to ‘witnesses’ against the accused—in other words, those who

‘bear testimony,’ ” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, 158
                                        9

L. Ed. 2d at 192, it has not provided a comprehensive definition of what

constitutes   “testimony”    or   of   what   statements   are   “testimonial.”

Nonetheless, in Shipley, we gleaned the following guidance from the

Court’s Crawford decision:

      [T]he Court indicated that, at a minimum, there were four
      types of evidence that met the definition of testimonial:
      grand jury testimony, preliminary hearing testimony, former
      trial testimony, and statements resulting from police
      interrogation. These are the types of evidence with the
      “closest kinship” to historical “abuses at which the
      Confrontation Clause was directed.”
             In addition to these four categories of evidence, the
      Supreme Court provided three “formulations” to aid courts in
      determining whether other types of statements are
      testimonial. The first formulation involved ex parte in-court
      testimony or its functional equivalent where the declarant
      would reasonably expect the statements to be used at trial
      and where the defendant was unable to cross-examine the
      declarant.    The second formulation involved formalized
      testimonial materials such as confessions and depositions.
      The third and most open-ended formulation included
      statements made under circumstances that would lead
      witnesses to objectively believe the statements might be used
      at trial.

Shipley, ___ N.W.2d at ___ (quoting Crawford, 541 U.S. at 51–52, 68, 124

S. Ct. at 1364, 1374, 158 L. Ed. 2d at 193, 203).

      V. Statements Made to Stepsister and Medical Providers.

      Upon our review of the record, we conclude the State has met its

burden to show the statements made by Bergan to her stepsister and to

her medical providers were nontestimonial. Reckner testified that, when

Bergan called her, Bergan was hysterical and crying. Bergan told her

stepsister “they had gotten into a fight and that she left and [Reckner]

needed to come pick her up.” When Reckner picked up Bergan in the

church parking lot a few minutes later, Bergan was still “hysterical,

crying, . . . freaking out.” Bergan was covered in blood, so Reckner took

Bergan to the hospital.
                                      10

      The nurse who examined Bergan upon her arrival at the

emergency room testified Bergan was upset, tearful, and anxious.         In

assessing Bergan’s condition, the nurse noticed Bergan’s face and eye

were swollen, she had blood in her hair, and she appeared to be injured.

The nurse asked Bergan what happened, and Bergan told her “she had

been beaten by [her] ex-boyfriend.”

      Within a few minutes, the emergency room physician arrived. The
doctor testified Bergan was extremely distressed and in quite a bit of

pain from her injuries. (Bergan suffered a blowout orbital fracture of her

eye, bruises, bite marks, and other injuries.) In taking a history from

her, the physician asked Bergan how she sustained her injuries. Bergan

replied that “she had been punched and bitten several times by her

significant other,” and identified that person as David Schaer.

      Upon our de novo review, we find Bergan’s statements to her

stepsister and treatment providers were nontestimonial.      See People v.

Cage, 155 P.3d 205, 207–08 (Cal. 2007) (holding victim’s identification of

his assailant to treating physician who asked victim “what happened”

was nontestimonial statement); Compan v. People, 121 P.3d 876, 880–81

(Colo. 2005) (holding victim’s account of assault, including identity of
perpetrator, to her friend was not testimonial statement). Her statements

as to what happened were not solemn declarations made for the purpose

of proving some fact. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364,

158 L. Ed. 2d at 192 (stating “ ‘[t]estimony’ . . . is typically ‘[a] solemn

declaration or affirmation made for the purpose of establishing or proving

some fact’ ” (quoting 2 Noah Webster, An American Dictionary of the

English Language (1828))).    They were made to obtain assistance and

treatment for her injuries.   Furthermore, Bergan’s statements did not

occur during a deposition, while under oath, or during a police
                                    11

interrogation. Nor were her statements made under circumstances that

would lead an objective person to reasonably believe the statements

would be available for use at a later trial.   As the California Supreme

Court observed in concluding a victim’s statement to his doctor under

very similar conditions was nontestimonial, “the victim’s statement

lacked those attributes of testimony by a witness that are the concern of

the confrontation clause.” Cage, 155 P.3d at 208.
      The circumstances surrounding Bergan’s statements to her

treatment providers are distinguishable from those present in Bentley,

where we held statements identifying the perpetrator made by the victim

to her counselor were testimonial. 739 N.W.2d at 299. In Bentley, the

interview of the minor victim was conducted with the participation of

representatives of the police department and the department of human

services, and the questions posed to the victim were calculated to elicit

factual details of the past criminal acts perpetrated against her. Id. “The

participants in the interview . . . acknowledged . . . the interview served

an investigative function for the State.” Id. The victim was informed a

police officer was listening to the interview, and it was important for the

police to know everything that happened. Id. at 300. After the interview,
a tape of the interview was provided to the police, marked as “evidence,”

and retained by the police department. Id. Under these circumstances,

we concluded “the interview of [the minor victim] was essentially a

substitute for police interrogation at the station house.” Id. at 299.

      The present case lacks the indicia of formality that characterized

the interview in Bentley. Although hospital personnel informed the police

of Bergan’s assault, there is no indication in the record of any

relationship   between    the   emergency    room    personnel    and    law

enforcement authorities that would support a finding the medical
                                      12

providers’ questioning of Bergan as to the cause of her injuries was “a

substitute for police interrogation at the station house.”        Id.; see also

State v. Her, 750 N.W.2d 258, 265 (Minn. 2008) (holding “statements

made to non-government questioners who are not acting in concert with

or as agents of the government are considered nontestimonial”); State v.

Sandoval, 154 P.3d 271, 273–74 (Wash. Ct. App. 2007) (holding

statements made by victim to treating physician identifying her attacker
were nontestimonial where “made for diagnosis and treatment purposes,”

no indication “witness expected the statements to be used at trial,” and

“doctor [was] not employed by or working with the State”).

      Because Bergan’s statements identifying her attacker to her

stepsister and medical personnel were nontestimonial in character,

hearsay testimony regarding these statements is not prohibited by the

Confrontation Clause.     The trial court did not err in admitting this

testimony.

      VI. Statements Made to Police Officer.

      As discussed above, error was not preserved with respect to the

witnesses’ testimony regarding Bergan’s identification of Schaer as her

assailant to the police officer. Therefore, we will analyze the defendant’s
claim that this testimony violated the defendant’s right to confront the

witnesses    against   him   under    an    ineffective-assistance-of-counsel

framework.

      The    principles   governing   our    consideration   of    ineffective-

assistance-of-counsel claims are well established:

             To establish a claim of ineffective assistance of
      counsel, the defendant must show: (1) trial counsel failed to
      perform an essential duty; and (2) prejudice resulted from
      this failure. Counsel has no duty to raise an issue or make
      an objection that has no merit.
                                     13
             “ ‘Generally, ineffective-assistance claims are preserved
      for postconviction relief proceedings to afford the defendant
      an evidentiary hearing and thereby permit the development
      of a more complete record.’ ” If the record on appeal shows,
      however, that the defendant cannot prevail on such a claim
      as a matter of law, we will “ ‘affirm the defendant’s conviction
      without preserving the ineffective-assistance-of-counsel
      claims.’ ” Conversely, if the record on appeal establishes
      both elements of an ineffective-assistance claim and an
      evidentiary hearing would not alter this conclusion, we will
      reverse the defendant’s conviction and remand for a new
      trial.

Musser, 721 N.W.2d at 752–53 (quoting State v. Graves, 668 N.W.2d 860,
869 (Iowa 2003)).

      We begin our discussion with the prejudice element of the

defendant’s ineffective-assistance claim, since “[i]f sufficient prejudice is

not shown, we need not address whether counsel breached an essential

duty.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). Prejudice is

shown when it is “reasonably probable that the result of the proceeding

would have been different.” State v. Henderson, 537 N.W.2d 763, 765

(Iowa 1995). The probability of a different result must be “ ‘sufficient to

undermine confidence in the outcome.’ ” State v. Reynolds, 746 N.W.2d

837, 845 (Iowa 2008) (quoting Strickland v. Washington, 466 U.S. 668,

694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). Even if the
admission of Reckner’s and Officer Blake’s hearsay testimony violated

the Confrontation Clause and counsel had a duty to object to its

admission, we conclude there is no reasonable probability the outcome of

the trial would have been different if the jury had not heard the

objectionable evidence.

      As we have previously discussed, there was admissible testimony

from Reckner and the medical personnel that Bergan had identified

Schaer as the perpetrator to them. Bergan’s treating physician testified

that Bergan had identified Schaer by name as her assailant. In addition,
                                   14

the emergency room nurse and Reckner testified to Bergan’s indirect, yet

clear, identification to them of Schaer as the person who had assaulted

her.   Thus, Reckner’s and Officer Blake’s testimony as to Bergan’s

statement to the officer was cumulative of other properly admitted

testimony. See In re Moore, 34 Cal. Rptr. 605, 613 (Cal. Ct. App. 2005)

(holding counsel’s failure to object to admission of 911 tape on

confrontation grounds did not result in prejudice where evidence was
cumulative of other testimony in record).

       In addition, the prosecution’s case was strong. The circumstances

surrounding the event pointed exclusively to the defendant as the

perpetrator, since Bergan had been dropped off at the home she shared

with Schaer just fifteen minutes before Reckner picked up Bergan a few

blocks from her home, bloodied and beaten.       Moreover, there was no

credible alternative explanation for Bergan’s injuries.   See Haywood v.

State, 656 S.E.2d 541, 546 (Ga. Ct. App. 2008) (concluding in light of

other evidence of guilt in the record, outcome of proceeding would likely

not have been different had admission of DNA evidence been denied on

confrontation grounds).    We think any testimony regarding Bergan’s

identification of the defendant as her assailant to Officer Blake was
merely cumulative, and its admission does not undermine our confidence

in the outcome of the defendant’s trial.    Therefore, we conclude, as a

matter of law, the defendant cannot establish the necessary prejudice to

support an ineffective-assistance claim.     Accordingly, we affirm his

conviction without preserving this claim for a possible postconviction-

relief action.

       VII. Conclusion and Disposition.

       Statements made by the victim of the defendant’s assault to the

victim’s stepsister and to her treatment providers were not testimonial,
                                    15

and therefore, the admission of hearsay testimony regarding these

statements did not violate the defendant’s rights under the Confrontation

Clause. Any error in the admission of testimony of similar statements

made to the police officer was not preserved.          Although we have

considered the defendant’s contention his counsel rendered ineffective

assistance in failing to preserve this potential error, we are convinced

this claim has no merit because the defendant was not prejudiced by
counsel’s allegedly deficient performance.    The testimony of the police

officer and stepsister with regard to the victim’s statements to the officer

was cumulative of other properly admitted evidence on the same issue

and the case against the defendant was strong.

      Finding no basis for reversal in the other challenges made by the

defendant on appeal, we affirm the district court’s judgment of

conviction.

      DECISION OF COURT OF APPEALS VACATED.                      DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Baker, J., who takes no part.
