                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0680

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                   Edward Antonio Zappa,
                                        Appellant

                                  Filed February 21, 2017
                                         Affirmed
                                       Worke, Judge

                               Hennepin County District Court
                                 File No. 27-CR-15-27249

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and Jesson,

Judge.

                           UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his domestic-assault conviction, arguing that the district court

abused its discretion by admitting a 911 call under the excited-utterance exception to the
hearsay rule and violated his rights under the Confrontation Clause by allowing two police

officers to testify to the victim’s statement that he assaulted her. We affirm.

                                          FACTS

       At approximately 8:00 p.m. on September 17, 2015, O.E. pounded on J.J.’s door.

O.E. and her boyfriend, appellant Edward Antonio Zappa, lived near J.J. in the same mobile

home complex. O.E. said that she had been in a fight with Zappa and asked J.J. to call the

police. J.J. noticed blood on O.E.’s lip. O.E. was crying and talking very quickly. J.J.

called 911 and said, among other things, “I am the neighbor over here, and the girlfriend

just ran over here saying that her boyfriend beat the sh-t out of her.” O.E. briefly got on

the phone and identified Zappa as her boyfriend. Within five or ten minutes of O.E.

knocking on J.J.’s door, police were on the scene.

       Seconds prior to J.J.’s call, B.W. called 911.        B.W. made the call from a

condominium building next to the mobile home complex. He told the 911 operator to send

police “quick.” He was so insistent that police be sent immediately that at one point the

911 operator had to ask him to refocus, saying, “Sir, answer my question, okay. There is a

reason I am asking. It’s not to annoy you.” He said that he could see and hear “[a] guy

beating the living hell out of a woman.” He described the male as wearing a blue shirt and

jeans and the woman as wearing a white shirt. He said he heard the woman screaming

“help me” and “quit hitting me.” He also said that he heard children saying “stop hitting

mommy.”

       Zappa’s mother also lived in the mobile home complex. That night around 8:00

p.m., she heard a woman yelling. She went outside to investigate and saw Zappa, who said


                                              2
that he and O.E. had been yelling at each other and then asked her to check on O.E. Zappa

told his mother that he was going for a walk, and she did not see him again that night.

       When police arrived, they spoke with O.E. She was crying and screaming. She had

a bloody lip, blood on her face, a swollen eye, and scratches around her neck. O.E. told

officers that her boyfriend had assaulted her. At this point, police had not apprehended

Zappa and did not know his whereabouts. O.E. said that Zappa walked away and headed

east with another male. Police searched unsuccessfully for Zappa in his mobile home and

in his mother’s mobile home. They also gave O.E. information on a domestic-violence

center. O.E. was taken to the hospital. Police alerted other officers in the area that they

were looking for Zappa, but it was several weeks before he was located and arrested.

       Zappa was charged with one count of felony domestic assault.1 Neither B.W. nor

O.E. testified at Zappa’s jury trial. The state began its case-in-chief by playing the

recording of B.W.’s 911 call. Zappa objected to the call. The district court admitted the

call as an excited utterance.

       O.E.’s statement to police that Zappa had assaulted her was admitted through the

testimony of two police officers. Zappa objected to the officers’ testimony on the grounds

that it violated his rights under the Confrontation Clause. The district court overruled the

objections, determining that O.E.’s statement was not testimonial because the officers

questioned O.E. in order to respond to an ongoing emergency.




1
  Zappa was also charged with one count of domestic assault by strangulation. This count,
however, was dismissed by the state on the first day of trial.

                                             3
       Zappa testified in his own defense. He claimed that he and O.E. had agreed to stop

using heroin and were suffering from withdrawal symptoms on September 17, 2015. O.E.

left their home that evening and came back with heroin. Zappa confronted O.E. and told

her that they had to get clean. He tried to take a syringe full of heroin from O.E. They

struggled over it and both fell to the floor. Zappa pulled the syringe away from O.E. O.E.

started hitting herself and saying that if he did not give it back she was going to call the

police. Zappa ran outside and discharged the heroin from the syringe onto the ground.

       The jury found Zappa guilty of felony domestic assault. This appeal followed.

                                      DECISION

B.W.’s 911 call

       Zappa first argues that the district court abused its discretion by admitting B.W.’s

911 call as an excited utterance. He claims that the exception does not apply because B.W.

was not sufficiently excited at the time that he made the statement and because the

statement is not trustworthy.

       Generally, hearsay is inadmissible at trial unless an exception applies. Minn. R.

Evid. 802. The excited-utterance exception allows for the admission of hearsay if it

“relat[es] to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” Minn. R. Evid. 803(2). “The rationale [for

this exception] stems from the belief that the excitement caused by the event eliminates the

possibility of conscious fabrication, and insures the trustworthiness of the statement.” State

v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986) (quotation omitted). “While there are no

strict temporal guidelines for admitting an excited utterance, the statement must be made


                                              4
while the declarant is under the stress of excitement from the startling event.” State v.

Davis, 820 N.W.2d 525, 536 (Minn. 2012) (quotation omitted). The factors used to

determine if a “statement qualifies as an excited utterance include the length of time

elapsed, the nature of the event, the physical condition of the declarant, and any possible

motive to falsify.” State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001) (quotation

omitted), review denied (Minn. May 29, 2001). Evidentiary rulings are left to the district

court’s discretion, and we will only reverse for a clear abuse of that discretion. Davis, 820

N.W.2d at 536.

       Zappa first argues that B.W. was not sufficiently excited at the time of the 911 call

for the statement to qualify as an excited utterance. The fact that the declarant is upset or

agitated indicates that the individual is still experiencing the stress caused by the startling

event. See State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (admitting statement as

excited utterance because declarant was “very upset,” “extremely agitated,” and “very

afraid”). While B.W.’s voice was not raised during the 911 call and he was not speaking

particularly quickly, he does appear to have been excited or agitated by the assault he

witnessed. He insisted that police be sent immediately and used strong language, saying,

“A guy is beating the living hell out of a woman.” Because of his agitation and insistence

that the operator send police to the scene, he, at times, failed to respond to the 911

operator’s questions. The operator felt the need to forcefully interrupt him and say, “Sir,

answer my question, okay. There is a reason I am asking. It’s not to annoy you.” The fact

that B.W., a bystander, felt the need to call 911 and insist on immediate police assistance

indicates that he was excited by the event.


                                              5
       Other factors also indicate that B.W.’s 911 call is admissible as an excited utterance.

See Hogetvedt, 623 N.W.2d at 913 (listing factors that should be considered). First, the

call occurred immediately following the assault and while B.W. could still see the

participants in the assault. At least initially, B.W. actually used the present tense to

describe the assault. B.W. called 911 at 8:16 p.m., seconds before J.J. called 911. J.J.

testified that O.E. knocked on his door around 8:00 p.m. that night, and Zappa’s mother

similarly testified that she heard yelling at about 8:00 p.m.

       Second, an assault qualifies as a “startling event” for the purposes of the excited-

utterance exception. Id. Nevertheless, Zappa claims that because B.W. was a bystander,

not the victim, and was not in close proximity to the assault, he was unlikely to fall within

the “aura of excitement” of the startling event. See Minn. R. Evid. 803(2) 1989 comm.

cmt. The supreme court, however, has stated that the mere fact that the declarant is a

bystander does not render the statement inadmissible. Daniels, 380 N.W.2d at 783.

       Third, B.W. had no reason to fabricate his statement. He did not know Zappa and

had no apparent relationship to O.E. Despite this, Zappa claims that B.W.’s statement is

untrustworthy. He argues that B.W. may not have seen the assault at all because the assault

occurred inside his home. But the evidence does not clearly indicate that the assault

occurred solely inside the home. Although Zappa testified that the assault took place

inside, no other testifying witness actually saw the assault. And a police officer testified

that “the uninvolved witnesses observed [the assault] occurring outside.”

       Zappa also points to other problems with B.W.’s statement. B.W. said that O.E.

was wearing a white shirt. Photographs of O.E. taken that night show her wearing a blue


                                              6
shirt. B.W. also said that he heard a child say “stop hitting mommy.” O.E. does not have

any children. Zappa also argues that B.W.’s view may have been obscured by trees,

darkness, and distance.     While these are all valid points, they go to weight, not

admissibility. The defense argued these issues at trial, and it was for the jury to decide

whether to credit B.W.’s statement. See State v. Buckingham, 772 N.W.2d 64, 71 (Minn.

2009) (“[D]etermining the credibility or reliability of a witness lies with the jury alone.”).

Zappa cites no authority indicating that an otherwise admissible excited utterance must be

excluded if there are some questions about its accuracy.

       Moreover, the trustworthiness of B.W.’s 911 call is supported by other evidence.

J.J.’s testimony and his 911 call, Zappa’s mother’s testimony, and even Zappa’s own

testimony, all indicate that some sort of struggle went on between Zappa and O.E.

immediately before B.W. called 911.

       B.W. was excited during the 911 call, he made the call immediately after witnessing

a startling event, and he had no reason to fabricate his statement. The district court did not

abuse its discretion by admitting B.W.’s 911 call as an excited utterance.

Police officers’ testimony about victim’s on-scene statement

       Zappa next argues that the district court erred by allowing two police officers to

testify that O.E. said that Zappa assaulted her. Zappa argues that O.E.’s statement was

testimonial and that its admission violated his rights under the Confrontation Clause.

Whether the admission of evidence violated the defendant’s rights under the Confrontation

Clause is a question of law that this court reviews de novo. Hawes v. State, 826 N.W.2d

775, 786 (Minn. 2013).


                                              7
       The Confrontation Clause of the United States Constitution provides a criminal

defendant with the right “to be confronted with the witnesses against him.” U.S. Const.

amend. VI; see also Minn. Const. art. I, § 6; State v. Hull, 788 N.W.2d 91, 100 (Minn.

2010) (stating that the analysis of a Confrontation Clause claim is the same whether it is

brought under the federal or Minnesota constitution). The Confrontation Clause prohibits

the admission of testimonial out-of-court statements unless the declarant is unavailable to

testify and the defendant had a previous opportunity to cross-examine the declarant.

Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford v. Washington, 541

U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)).

       Whether a statement to police is testimonial depends on the primary purpose of

police questioning:

              “Statements are nontestimonial when made in the course of
              police interrogation under circumstances objectively
              indicating that the primary purpose of the interrogation is to
              enable police assistance to meet an ongoing emergency. They
              are testimonial when the circumstances objectively indicate
              that there is no such ongoing emergency, and that the primary
              purpose of the interrogation is to establish or prove past events
              potentially relevant to later criminal prosecution.”

State v. Wright, 726 N.W.2d 464, 472 (Minn. 2007) (quoting Davis v. Washington

(Davis/Hammon), 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006)). In order to be

nontestimonial, “the interrogation must relate directly to addressing the emergency.” State

v. Warsame, 735 N.W.2d 684, 694 (Minn. 2007). It is the state’s burden to prove that a

statement is not testimonial. Andersen, 830 N.W.2d at 9.




                                              8
       Zappa argues that when O.E. spoke with police, there was no ongoing emergency

because the assault had ended, police were with O.E., and Zappa had left the scene. He

cites Davis/Hammon as support for his position. In that opinion, the Supreme Court

addressed two separate cases that both involved domestic violence. Davis/Hammon, 547

U.S. at 813, 126 S. Ct. at 2268. In Davis, the victim described an assault in a 911 call as

the assault was occurring. Id. at 817-18, 126 S. Ct. at 2271. The Supreme Court held that

this statement was not testimonial. Id. at 828, 126 S. Ct. at 2277.

       In Hammon, police responded to a call about a domestic disturbance and found a

woman standing on her porch. Id. at 819, 126 S. Ct. at 2272. The woman looked frightened

but told police that “nothing was the matter.” Id. Police entered the house and saw the

woman’s husband. Id. He told the officers that the couple had an argument but that

everything was “fine.” Id. One officer stayed with the husband while the other interviewed

the woman. Id. After hearing the woman’s account, the officer had her write down what

happened and sign an affidavit. Id. at 820, 126 S. Ct. at 2272. The woman’s written

statement described how her husband assaulted her. Id. The Supreme Court held that there

was no ongoing emergency and that the interrogation of the woman was an investigation

into past criminal conduct. Id. at 829, 126 S. Ct. at 2278.

       Zappa argues that O.E.’s statement resembles Hammon. But in Hammon, the

declarant initially told the officers that “nothing was the matter.” Id. at 819, 126 S. Ct. at

2272. Also, in that case, the defendant and the declarant were both with police when the

declarant made her statement. Id. At the time O.E. was interviewed by police, she was

visibly injured, crying, and Zappa’s whereabouts were unknown. As the Supreme Court


                                              9
recognized in Davis/Hammon, in this type of domestic-violence context, officers “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.” Id. at 832, 126 S. Ct. at 2279 (quotation

omitted).    This often means that initial police inquiries “produce nontestimonial

statements.” Id.

       Contrary to Zappa’s contention, the mere fact that the victim is with police and the

assailant is not in the immediate area does not mean that there is no ongoing emergency.

In Warsame, the Minnesota Supreme Court stated that “ongoing emergencies may exist

beyond the declarant’s geographic proximity, even when police are with the declarant and

particularly when a dangerous suspect remains at large.” 735 N.W.2d at 694. In that case,

while responding to a 911 call, police found a woman walking in the middle of the street.

Id. at 687. The woman was upset, crying, and had injuries to her head. Id. Before police

asked any questions, she said, “My boyfriend just beat me up.” Id. The officer treated the

woman’s injuries and asked her what happened. Id. The woman said that her boyfriend

hit her and choked her and that when her sisters tried to intervene, the boyfriend grabbed a

knife and threatened to kill her. Id. The woman also said that her boyfriend had left in a

vehicle with one of her sisters. Id. The supreme court held that the woman’s statements

were not testimonial because the primary purpose of the interrogation was to address three

ongoing emergencies: the woman’s medical condition, the defendant’s flight from the

scene, and an injury to one of the woman’s sisters. Id. at 695.

       In Michigan v. Bryant, police responded to a report of a shooting. 562 U.S. 344,

349, 131 S. Ct. 1143, 1150 (2011). They found the victim lying on the ground with a


                                              10
gunshot wound. Id. The police asked him “what had happened, who had shot him, and

where the shooting had occurred.” Id. In a five-to-ten-minute conversation, the victim

gave police the assailant’s name and told them when, where, and how he had been shot.

Id. The victim was then taken to the hospital where he died within hours. Id. The Supreme

Court determined that the informality of the interrogation and the potential threat the at-

large assailant posed to the victim, the police, and the general public objectively indicated

that the “primary purpose of the interrogation was to enable police assistance to meet an

ongoing emergency.” Id. at 375-78, 131 S. Ct. at 1165-67 (quotation omitted).

       Here, police spoke with O.E. within minutes of the assault. O.E. was crying,

hysterical, and had visible injuries. At the time, Zappa was not in custody and police were

not aware of his location. In a short conversation, O.E. explained that Zappa had assaulted

her and fled on foot. The officer who questioned O.E. testified that he was trying to

determine what happened so that he could locate Zappa. He also testified that he believed

that O.E. was in need of medical attention. After speaking with O.E., police checked to

see if Zappa was hiding in his mobile home or in his mother’s mobile home and put an

alert out to other officers in the area. Police also provided O.E. with information on a

domestic-violence center and had O.E. taken to the hospital.

       As in Warsame and Bryant, the circumstances of the interrogation objectively

indicate that its primary purpose was to assess O.E.’s injuries and locate Zappa, rather than

to prove past events that might be relevant to later prosecution. The interrogation was

directly related to the ongoing emergencies because it led to information about how O.E.

received her injuries and about Zappa’s possible whereabouts. Because O.E.’s statement


                                             11
was not testimonial, the district court did not violate Zappa’s right to confrontation by

admitting the statement through the officers’ testimony.

      Affirmed.




                                           12
