                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2718
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   William Clifford

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                              Submitted: May 15, 2015
                                Filed: June 30, 2015
                                  ____________

Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
                              ____________

MURPHY, Circuit Judge.

      William Clifford was charged with assault with a dangerous weapon and
assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(3), (6),
1153, and 2. At trial the district court1 admitted an out of court statement by the

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       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
victim's three year old son that "Will and King hurt mama." Clifford objected to this
evidence based on the Confrontation Clause of the Sixth Amendment. A jury
convicted Clifford of simple assault and assault resulting in serious bodily injury, and
he appeals. We affirm.

       During the evening of October 16, 2012, a group of people including William
Clifford, King Martinez, Kealey Twiss, Twiss's boyfriend Sean Davis, Marvin "Joe"
Brave, Craig Chase, and Gary Rowland, Jr. were drinking alcohol together in the
basement of a home on the Pine Ridge Indian Reservation. J.W.W., Twiss's three
year old son, was also present. Around 7:00 p.m., Twiss asked Davis to get a
transmitter so they could listen to some music. When Davis left to get the transmitter,
Twiss and J.W.W. were sitting on a bed, Rowland was sleeping on a couch, Brave,
Chase, and Clifford were sitting on folding chairs, and Martinez was standing off to
the side by the radio.

      Davis was gone for approximately five minutes. On his return he saw Clifford,
Martinez, Brave, and Chase walking up the stairs from the basement. Davis heard
J.W.W. crying as he entered the basement which was divided into four spaces by
hanging sheets. J.W.W. had a sheet "wrapped around him like a blanket[,] hiding"
and ran to Davis in tears and held onto his leg. When Davis asked him, "What's
wrong?", J.W.W. said, "Mama's hurt." Davis asked, "Where?", and J.W.W. pulled
back one of the sheets to show Twiss lying "face first on the ground . . . unconscious
in a pool of blood." The floor of the basement was uncarpeted concrete. Davis
asked, "What happened?" and J.W.W. replied, "Will and King hurt mama." At the
time he made this statement, J.W.W. was "hysterically crying," "shaking," and
"latched onto [Davis's] leg; he didn't want to let go. He was scared."

      Twiss was still unconscious, and Davis carried her out of the basement and to
her home. As Twiss regained consciousness, she began crying and said that her head
hurt. Davis and her relatives took her to the emergency room at the Pine Ridge

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Hospital, but she insisted on leaving because "other patients in the waiting room were
staring at her laughing because she was basically all bloody and looked pretty rough."
Her face was bruised, scraped, and badly swollen, with "purple raccoon eyes," one
of which was bleeding. They took her home but when she "scream[ed]" from head
pain after resting for about 30 minutes, they "rushed her back to the [Pine Ridge]
hospital." Twiss was later transported by airplane to Rapid City Regional Hospital
where she was diagnosed with a skull fracture and a subdural hematoma, a type of
traumatic brain injury.

       At trial Twiss testified about what had happened to her in the basement.
Martinez had approached her and pulled on her shirt, apparently trying to expose her
breasts. When she asked him to stop, he hit her. Twiss tried to light a cigarette but
dropped her lighter. When she bent down to pick it up, a small pocket knife from her
father's car fell from her shirt onto the floor. Clifford picked up the knife and asked
her, "what [she] was going to do with it." Twiss thought he was joking, so she
giggled and said, "Whatever." Clifford then struck her face, and she ended up on the
floor covering her head. Before she lost consciousness, Clifford and Martinez kicked
her "in the head" and she "hear[d] [her] son screaming."

       Davis later testified that Martinez had remarked earlier that day about "how
pretty [Twiss] was and . . . how she should be treated by a real Native man, and what
he would like to do to her." Clifford also had said, "they should take [Davis] out
somewhere and kidnap [him] and beat [him] up and take [his] girlfriend from [him]."
At the time Davis thought Clifford and Martinez were joking.

       A grand jury indicted Clifford and Martinez on one count of assault with a
dangerous weapon and one count of assault resulting in serious bodily injury in
violation of 18 U.S.C. §§ 113(a)(3), (6), 1153, and 2. Clifford filed a motion in
limine to exclude J.W.W.'s statements about "Will and King" hurting his mother. The
district court held a motion hearing just before trial at which Davis described the

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scene around the time of J.W.W.'s comments, including that J.W.W. was "crying, in
shock, in tears . . . scared . . . shaking." Davis testified that their entire conversation
took less than two minutes. The district court then ruled that the statements "Mama's
hurt" and "Will and King hurt mama," as well as J.W.W.'s nonverbal statement
showing where Twiss was lying on the floor, were admissible as nontestimonial
excited utterances made during an ongoing emergency.

       At trial Davis testified about J.W.W.'s statements. Other evidence included
testimony by Twiss describing the assault on her and identifying Martinez and
Clifford as her assailants, as well as from her treating physician. Clifford testified
and admitted that he had kicked Twiss multiple times, but he claimed he had acted
in self defense because Twiss had been holding a knife. Brave, who was called as a
defense witness, similarly testified that while Clifford had shoved, kicked, and
stomped on Twiss, he had appeared to be defending himself. The jury acquitted
Martinez of both charges against him, but it convicted Clifford of simple assault, a
lesser included offense of assault with a dangerous weapon, and of assault resulting
in serious bodily injury. The district court subsequently sentenced Clifford to 46
months imprisonment.

      The sole issue on Clifford's appeal is whether the admission of J.W.W.'s
statement that "Will and King hurt mama" violated his rights under the Confrontation
Clause of the Sixth Amendment. We review de novo the admission of evidence over
such an objection. United States v. Williams, 720 F.3d 674, 698 (8th Cir. 2013).

      The Confrontation Clause bars the admission of testimonial hearsay unless the
declarant is unavailable and the defendant has had a prior opportunity for cross
examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). The Supreme Court
has not "attempt[ed] to produce an exhaustive classification of all conceivable
statements . . . as either testimonial or nontestimonial." Davis v. Washington, 547
U.S. 813, 822 (2006); see also Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011).

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The Court has previously instructed that a statement made in response to questioning
by law enforcement requires that a court "objectively evaluate the circumstances in
which the encounter occurs and the statements and actions of the parties" to
determine "the primary purpose of the interrogation." Bryant, 131 S. Ct. at 1156.
Statements made in response to a police interrogation intended to "creat[e] an out-of-
court substitute for trial testimony" are testimonial. Id. at 1155. Witness statements
are nontestimonial, however, when "the primary purpose of an interrogation is to
respond to an 'ongoing emergency.'" Id.

       Here, no law enforcement officials or other agents of the state were involved
in asking questions that elicited J.W.W.'s statement, "Will and King hurt mama."
Clifford claims that Davis's relationship with J.W.W. was like that of a parent and
argues that therefore his questions to a very young child had the same effect as
questions from a police officer, but he identifies no case in which questions from a
private individual acting without any direction from state officials were determined
to be equivalent to police interrogation. To the contrary, we have previously
determined that a foster parent's questions to a child about visible injuries did not
produce testimonial statements because the foster parent was not an agent of the state.
United States v. Peneaux, 432 F.3d 882, 896 (8th Cir. 2005).

       The record further shows that the primary purpose of Davis's questions was not
to collect information for future prosecution. After having been briefly absent, Davis
returned to the basement to find J.W.W. "hysterically crying" and "scared" and Twiss
lying on the floor "unconscious in a pool of blood." Given this context, his simple
question, "What happened?" sought to determine how to respond to an obvious
emergency rather than to solicit prosecutorial information. His inquiry "lacked the
'formality of . . . questioning,' the substantial 'government involvement,' and 'the law
enforcement purpose'" which may produce testimonial statements. Peneaux, 432 F.3d
at 896, quoting United States v. Bordeaux, 400 F.3d 548, 555-56 (8th Cir. 2005).



                                          -5-
Under these circumstances the admission of J.W.W.'s statement did not violate
Clifford's rights under the Confrontation Clause.

       After Clifford's appeal was briefed, the Supreme Court issued a significant
decision on June 18, 2015 which applied the Confrontation Clause in a private
setting. Ohio v. Clark, 576 U.S. ___, 2015 WL 2473372 (2015). In Clark, a three
year old child arrived at a day care facility with visible injuries and identified his
abuser in response to questions from a teacher. Id. at *2. The child's hearsay
statements were admitted at a criminal trial. Id. at *3. Addressing the defendant's
Confrontation Clause challenge, the Court "decline[d] to adopt a categorical rule" to
the effect that statements made to private individuals do not raise confrontation
concerns while noting that "such statements are much less likely to be testimonial
than statements to law enforcement officers." Id. at *6. The Court identified several
circumstances contributing to its determination that the evidence had not implicated
the Confrontation Clause. These include that the questions and answers "were
primarily aimed at identifying and ending the threat" and protecting the victim, that
the "conversation . . . was informal and spontaneous," that the hearsay declarant was
a very young child, and that the teachers asking the questions were not "principally
charged with uncovering and prosecuting criminal behavior." Id. at *6-*8.

        Clark further supports our conclusion that there was no Confrontation Clause
violation here. As in Clark, the record here shows an informal, spontaneous
conversation between a very young child and a private individual to determine how
the victim had just been injured. J.W.W.'s age is significant since "[s]tatements by
very young children will rarely, if ever, implicate the Confrontation Clause" because
"it is extremely unlikely that a 3-year-old child . . . would intend his statements to be
a substitute for trial testimony." Clark, 2015 WL 2473372 at *7.

      The statement "Will and King hurt mama" was also properly admitted under
the hearsay exception for an excited utterance, defined as "[a] statement relating to

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a startling event or condition, made while the declarant was under the stress of
excitement that it caused." Fed. R. Evid. 803(2). The record here clearly established
that J.W.W. was under great stress caused by witnessing a serious assault on his
mother. He was crying, shaking, and scared. His answer to Davis's question was
directly related to the assault that had startled him. The district court therefore did
not err in admitting his statement through Davis's testimony.

      The judgment of the district court is affirmed.
                     ______________________________




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