                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 28 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 10-10511

              Plaintiff - Appellee,             D.C. No. CR 09-01247-PHX-SRB

  v.
                                                MEMORANDUM*
PHILLIP GOMEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                           Submitted March 14, 2012**
                              Pasadena, California

Before: CALLAHAN and BEA, Circuit Judges, and BENNETT, District
Judge.***


____________________

*     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

**     The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Mark W. Bennett, District Judge for the U.S. District Court
for Northern Iowa, sitting by designation.
      Phillip Gomez (“Gomez”) appeals his jury trial convictions for assault and

kidnapping. Gomez physically assaulted his then-girlfriend, Maria Marrietta

(“Marrietta”), for a period of two to three hours, ending only when his mother

arrived home and called 911. Gomez argues that the trial court erred in admitting

into evidence the 911 transcript and recording and argues that there was

insufficient evidence to convict him of kidnapping. We affirm.1

1.     The Confrontation Clause (U.S. CONST. amend. VI.) forbids “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.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In Davis v.

Washington, 547 U.S. 813 (2006), the Supreme Court held that “[s]tatements 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.” Id. at 822. In

examining the “circumstances” of the interrogation, the Court considers (1)

whether an ongoing emergency existed, and (2) the formality of the encounter;




      1
       Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                       2
additionally, the nature of what was asked and answered is indicative of the

purpose of the interrogation. Michigan v. Bryant, 131 S.Ct. 1143, 1162 (2011).

      Here, Riggins called 911 when she walked into her home to find her son’s

pregnant girlfriend badly beaten and very bloody. She provided information to the

dispatcher on Marrietta’s current condition and Gomez’s current whereabouts.2

She was not describing an event in the past but rather seeking help to alleviate an

ongoing emergency. Marrietta required air evacuation to a hospital where she

remained for treatment for a week. Moreover, the dispatcher’s questions were

aimed at soliciting information on Marrietta’s condition, providing directions on

how to help her, and identifying the name and possible location of the assailant.

Thus, the admission of these nontestimonial statements was proper.3



      2
         Gomez fled shortly after Riggins called 911. He is heard at the beginning
of the tape, but left soon after.
      3
        In addition, the court’s admission of any statements and failure to redact
any portions of the 911 call in violation of the Confrontation Clause was harmless
beyond a reasonable doubt under United States v. Nielsen, 371 F.3d 574, 581 (9th
Cir. 2004); see also United States v. Holland, 880 F.2d 1091, 1094 (9th Cir. 1989).
Marrietta testified to every detail of the assault and identified Gomez as the
assailant. A police officer testified that he found Marrietta, beaten and bloody, in
the back bedroom of Gomez’s mother’s house. An Emergency Medical
Technician (“EMT”) testified that Gomez told him that he had “hurt [a friend]
pretty bad,” and then later admitted that the “friend” was his girlfriend. Given the
weight of this combined evidence against Gomez, any error in admitting or failing
to redact portions of the 911 call was harmless beyond a reasonable doubt.
                                       3
2.    Gomez also argues that Riggins’s statements are nonadmissible hearsay that

do not fall within an exception to the rule against hearsay. Riggins’s

nontestimonial statements to the 911 dispatcher, made almost immediately after

Riggins first saw Marrietta in a beaten and bloody state, were properly admitted

under the excited utterance exception. See Fed. R. Evid. 803(2). Although Riggins

did not witness the assault, the “event” continued until Marrietta received

emergency care, and Marrietta’s “condition” no doubt caused Riggins great stress

as reflected in her 911 call. Accordingly, admitting her statements under Rule

803(2) was not an abuse of discretion.

3.    Gomez argues that the only evidence of a kidnapping was also evidence of

the assault, and that the two charges thus “merged.” Under Missouri v. Hunter,

459 U.S. 359, 366 (1983), the relevant inquiry is “whether each provision requires

proof of a fact that the other does not.” In applying this analysis, this court in

United States v. Etsitty, 130 F.3d 420, 427 (9th Cir. 1997) stated:

      Based on the Supreme Court’s test, the kidnapping and assault
      charges are not the same offense because each requires proof of facts
      the other does not. Kidnapping requires proof of seizure . . . [t]he
      assault charges require proof . . . that the defendant intentionally
      struck or wounded the victim, acted with specific intent to do bodily
      harm, and used a dangerous weapon. The proofs of these charges are
      not co-extensive. . . . Charges, convictions and sentences on each of
      these offenses at the same trial are permissible.



                                         4
Here, Gomez is charged with assault and kidnapping under the same statutes

considered in Etsitty. Convictions on both offenses were thus appropriate in this

case.

        Alternatively, Gomez argues that the evidence was insufficient as to the

element of seizure or confinement required under the kidnapping statute. See 18

U.S.C. § 1201(a). Evidence at trial established that Gomez blocked one exit with

a refrigerator, pulled Marrietta around by her hair, pushed her down, threw her,

and trapped her on the floor just inside the door. Viewing this evidence “in the

light most favorable to the prosecution,” it was sufficient for a jury to find that the

government established the element of confinement or seizure. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

        AFFIRMED.




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