MEMORANDUM OPINION

MANNHEIMER, Judge.

Michael Springer was convicted of second-degree assault upon his former girlfriend, Sandra Nelson. In this appeal, Springer argues that the trial court violated his constitutional right to confront the witnesses against him when the court allowed the State to introduce portions of an out-of-court conversation between Nelson and a police officer who arrived at the scene in response to the reported assault.

Springer also claims that the trial court committed error by refusing to allow Springer to introduce certain of Nelson's medical records. These records showed that Nelson suffered from seizures, and Springer claimed that Nelson's injuries might have been the result of a seizure.

For the reasons explained here, we conclude that the introduction of the out-of-court conversation did not violate Springer's right of confrontation, and that Springer did not preserve his claim of error pertaining to Nelson's medical records. We therefore affirm Springer's conviction.

Underlying facts

On February 7, 2006, Springer and his girlfriend, Nelson, moved into an apartment building in Spenard. A woman named Lyla Ritter lived in the same building. That night, just as Ritter drove into the parking lot of the apartment complex, Nelson approached her truck. Ritter had not yet met Nelson, but Nelson appeared to be intoxicated, so Ritter helped Nelson walk back to her ( i.e., Springer's and Nelson's) apartment.

A few minutes later, Ritter heard "a whole bunch of screaming and yelling". Ritter wanted to call the police, but her boyfriend did not want the call to be made from their apartment, so Ritter went to the apartment of a neighbor, Michael Phillips, to seek his assistance. At Ritter's behest, Phillips called 911. While Phillips was making this call, he heard a woman screaming, "Help me! Help me!". Phillips commented to the 911 operator that "[it sounded like] someone [was] beating the hell out of [a] woman in there".

While Phillips was talking to the 911 operator, Ritter went to Springer's and Nelson's apartment and banged on the door. Springer opened the door; he was naked and intoxicated. He yelled at Ritter to leave. While the door was open, Ritter was able to observe Nelson inside the apartment. According to Ritter, Nelson's face was "very messed up"; she looked "terrible".

After Phillips concluded his call to 911, he too went to check on Nelson. Phillips found Nelson standing outside the door to her apartment, barefoot in the snow, wearing a bloody sweatshirt; she looked "beat up". Phillips urged Nelson to go somewhere safe, and then he led her to a nearby utility room. (At Springer's trial, witnesses alternatively described this utility room as a "boiler room" or a "laundry room"; it was located next door to Springer's and Nelson's apartment.)

An Anchorage Fire Department paramedic, John Baumeister, responded to the 911 call. According to Baumeister, Nelson told him that "[she had] been kicked in the face several times by a gentleman." When Baumeister examined Nelson, he found that her throat was constricted and that she was having difficulty swallowing.

Two Anchorage police officers, John Bolen and Tiffany Carlson, also responded to the 911 call. Upon their arrival, Carlson and Bolen spoke to Nelson in the utility room. According to Bolen, Nelson had been "beaten up pretty bad"; her face appeared to be "almost deformed" by her injuries, and she made a "wheezing-type noise" when she attempted to speak. Although Nelson was barely able to communicate, she did manage to tell Carlson and Bolen that her boyfriend had beaten her up, and that her boyfriend was in the apartment next door.

Bolen and Carlson then went next door to Springer's and Nelson's apartment. They found Springer nude except for a jacket. Springer had a cut on his hand, and he smelled of alcoholic beverages. When the officers asked Springer how he had cut his hand, Springer replied that he did not know. Bolen and Carlson arrested Springer.

Dr. Tanya Leinicke treated Nelson at the Providence Hospital emergency room that night. Nelson told Dr. Leinicke she had been assaulted by her boyfriend. Nelson's jaw was broken in two places, and her neck was swollen, causing her respiratory distress. Nelson also had a fractured wrist — a fracture which Dr. Leinicke described as consistent with Nelson's having fallen with her hand outstretched.

Dr. Thomas W ells, an oral surgeon, treated Nelson's jaw fractures. Nelson told Dr. Wells that she sustained these fractures as a result of being kicked in the face several times.

Springer testified in his own defense at trial. He stated that he and Nelson were drinking to celebrate their new apartment, when Nelson suddenly had a seizure and fell onto the kitchen floor. Springer said that Nelson was unconscious but "seemed to be all right". Then, Springer testified, Nelson awoke from her seizure and attacked him with a serrated steak knife. Springer said that this was how he sustained the cut on his hand.

According to Springer, he defended himself by slapping Nelson, backhanding her, and kicking her in an attempt to get the knife away from her. Springer was not sure if he kicked Nelson in the jaw; he conceded that he "could have" done this. Springer said that Nelson eventually let go of the knife and stopped attacking him.

Springer admitted that he did not inform the police about Nelson's seizure, nor did he tell the police that Nelson had attacked him. According to Springer, he decided not to tell the police about these things because he did not want Nelson to get in trouble. Springer said that he believed that Nelson did not know what she was doing.

To support his claim that Nelson had a seizure, and that he acted in self-defense after Nelson attacked him, Springer offered Nelson's medical records which indicated (among other things) that she suffered from a seizure disorder, that she had frequent seizures, and that she had suffered fractures in seizure-related falls in the past.

Nelson did not testify at Springer's trial; she died in May 2007 (approximately one year before the trial) from cirrhosis of the liver, a result of her chronic alcoholism.

Springer's argument that his right of confrontation was violated when the trial judge allowed the State to introduce portions of Nelson's conversation with the officers who responded to the scene

Just before Springer's trial was to begin, Springer's defense attorney filed a motion in limine, asking the trial court to preclude the State from offering any portion of the conversation that took place in the utility room between Nelson and Officers Carlson and Bolen. In this motion, Springer's counsel argued that Nelson's statements to Carlson and Bolen were "testimonial hearsay" for purposes of the confrontation clause of the Sixth Amendment as construed by the United States Supreme Court in Crawford v. Washington. Based on this characterization, the defense attorney argued that Nelson's statements were inadmissible because (1) Nelson had died and was therefore unavailable for cross-examination, and (2) Springer had had no previous opportunity to cross-examine Nelson concerning these statements.

W hen Superior Court Judge Michael R. Spaan ruled on Springer's motion, he asked the prosecutor (as a preliminary matter) whether Nelson's out-of-court statements to Carlson and Bolen were admissible under the hearsay rule. The prosecutor replied that Nelson's statements appeared to be excited utterances. The defense attorney voiced no objection to this characterization of Nelson's out-of-court statements, and Judge Spaan agreed that Nelson's statements were excited utterances — and were therefore not barred by the hearsay rule. This left the question of whether Nelson's statements were barred by the confrontation clause.

With regard to the confrontation clause issue, Judge Spaan concluded that Nelson's initial statements to the officers described an ongoing emergency — both Nelson's immediate need for medical treatment, and the police officers' immediate need to identify and locate a criminal suspect. For this reason, Judge Spaan concluded that Nelson's statements were not "testimonial hearsay" for purposes of the Sixth Amendment, and the judge rejected Springer's confrontation clause argument. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

In this appeal, Springer argues that Nelson's out-of-court statements were barred both by the hearsay rule and by the confrontation clause of the Sixth Amendment.

Springer's hearsay argument is not preserved for appeal. Springer's motion in limine made no mention of the hearsay rule; his sole argument was that Nelson's out-of-court statements were barred by the confrontation clause of the Sixth Amendment.

It is true that, when Judge Spaan considered Springer's motion, he inquired whether Nelson's statements were admissible under the hearsay rule. If Nelson's out-of-court statements had been inadmissible under the hearsay rule, there would have been no need for Judge Spaan to reach Springer's constitutional claim that these statements were barred by the confrontation clause. But when the prosecutor asserted that Nelson's statements were admissible under the hearsay rule (because they qualified as excited utterances), Springer's attorney offered no objection to the prosecutor's characterization of Nelson's statements. Nor did Springer's attorney object when Judge Spaan adopted the prosecutor's view of this matter and ruled that Nelson's statements were excited utterances.

Because Springer's attorney never informed Judge Spaan that she disagreed with the characterization of Nelson's statements as excited utterances (much less offered any argument as to why that characterization might be wrong), Springer failed to preserve his hearsay argument for appeal. And because hearsay evidence is admissible in the absence of an objection, Springer can not assert plain error on this point.

We now turn to Springer's constitutional claim: his argument that the admission of Nelson's out-of-court statements to Officers Carlson and Bolen violated his right of confrontation under the Sixth Amendment. To explain our analysis of this point, we must describe the portion of the conversation between Nelson and the two officers that was introduced at Springer's trial. Here is the portion of the conversation that was played for the jury:

Carlson: Hey. What's going on? What's going on?

Nelson: (indiscernible) beat over this. All of a sudden, he started (indiscernible). He started (indiscernible).

Carlson: He started hitting you in the face? Do you need medics?

Nelson: I don't know. (indiscernible) or not.

Carlson: You what? Nelson: I don't know if I (indiscernible) welcome or not.

Bolen: Who is he to you?

Nelson: He's my (indiscernible). Well, he was.

Bolen: He's your what?

Nelson: He was (indiscernible).

Bolen: I — I — he's your . . . ?

Nelson: My (indiscernible).

Bolen: Is he your boyfriend?

Nelson: Yeah.

Bolen: He is your boyfriend?

Nelson: Yeah.

Bolen: Okay. How'd you — how long have you guys lived together?

Nelson: Several months.

Bolen: A couple months?

Nelson: No, several months. I hurt actually. I'm sorry.

Carlson: Okay. And we're going to have medics come down and look at you. Where is he? Bolen: What does he look like?

Nelson: (indiscernible) he's tall and (indiscernible).

Bolen: Black? White? Native?

Nelson: Uh, um (indiscernible).

Bolen: He's a what?

Nelson: Indian. (indiscernible).

Bolen: About how tall is he?

Nelson: He's about 6' 10".

Bolen: He fat? Skinny?

Nelson: No, skinny.

Bolen: And what was he wearing?

Nelson: Uh, last time I saw him, nothing.

Bolen: What's that, ma'am?

Nelson: Last time I saw him, (indiscernible). He started hitting me and (indiscernible).

Bolen: Okay. What — what's his name?

Nelson: Michael Nelson. Michael Springer. I'm sorry.

Bolen: Is there any weapons inside the house? Nelson: No.

Bolen: Other than kitchen knives and stuff; there's no guns?

Nelson: No, there's not even any knives in there.

Bolen: What's Michael's date of birth?

Nelson: Uh, 5 — I don't know. (indiscernible)

Carlson: What's his name?

Bolen: [to Carlson] Michael Springer.

Carlson: Okay. (indiscernible)

Bolen: Okay.

Nelson: I'm really cold.

Our task is to decide whether Nelson's above-quoted statements are "testimonial hearsay" for confrontation clause purposes. Our analysis begins with the United States Supreme Court's decision in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and our own prior decision in Anderson v. State, 163 P.3d 1000 (Alaska App. 2007), cert. denied 552 U.S. 1249 (2008).

In Davis, a woman called 911 to report that her boyfriend, Davis, was assaulting her. The 911 operator (whom the Supreme Court assumed to be a police agent) asked the victim, "What's going on?" — to which the woman replied, "He's here jumpin' on me again." The 911 operator then asked if Davis had any weapons, and the woman replied, "No. He's usin' his fists." At that point, Davis ran out the door. When the 911 operator was apprised of this, the 911 operator asked the woman further questions designed to help the police locate and identify Davis.

The woman did not testify at Davis's trial. Over Davis's objection (based on the confrontation clause) the trial judge allowed the government to introduce the audio recording of the victim's conversation with the 911 operator. The Supreme Court held that the introduction of the woman's out-of-court statements did not violate Davis's right of confrontation because the woman's statements were not "testimonial" hearsay.

The Supreme Court explained that even though a witness's statements are elicited during a police interrogation, those statements may be "non-testimonial" for confrontation clause purposes if "circumstances objectively indicat[e] that the primary purpose of the [police] interrogation [was] to enable police assistance to meet an ongoing emergency", as opposed to an interrogation "[whose] primary purpose . . . [was] to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.

Applying this test, the Supreme Court concluded that the victim's statements to the 911 operator were non-testimonial. The Supreme Court emphasized that the victim "was speaking about events as they were actually happening, rather than describing past events", and that the victim "was facing an ongoing emergency": she called the 911 operator "for help against [a] bona fide physical threat." The Supreme Court further noted that, viewing the 911 operator's questions and the victim's responses objectively, "the [victim's] elicited statements were necessary [for the police] to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past." Finally, the Supreme Court noted that the victim's statements were made during an informal, hurried, on-the-scene interview — not a formal interview at a police station or prosecutor's office.

In Anderson, a police officer was dispatched to the scene of a reported assault. When the officer arrived, a witness informed her that there was an injured man in a building across the street. The witness then led the police officer across the street to an apartment. In the apartment, the officer saw a man lying on the floor, covered with what appeared to be a piece of carpet. When the officer asked the man, "What happened?", the man replied that Anderson had hit him with a pipe.

The victim did not testify at Anderson's trial, but the trial judge allowed the prosecutor to elicit the above-described testimony from the police officer who responded to the scene. On appeal, we held that the victim's statement to the officer was not testimonial hearsay. Using the analysis that the Supreme Court adopted in Davis v. Washington, w e concluded that the officer's question ("W hat happened? ") was primarily motivated by the need to "to sort out an ongoing emergency situation rather than to investigate a past crime".

In his brief to this Court, Springer concedes that Sandra Nelson's description of her current medical condition was admissible. But Springer argues that there was no ongoing emergency to justify the admission of the remainder of Nelson's statements to Officers Carlson and Bolen — in particular, Nelson's statements identifying Springer by name and identifying him as her boyfriend, her assertions about what Springer had done to her, and her descriptions of Springer's physical characteristics.

We disagree. Here, as in Davis, an incident of domestic violence had just ended, and the perpetrator of that violence was at large and still in the vicinity. The police had an immediate and ongoing need to identify, locate, and apprehend that perpetrator. Viewing Carlson's and Bolen's questions objectively, those questions were designed to meet that immediate, ongoing need.

Carlson's initial question to Nelson — "What's going on?" — mirrors the question that the police officer asked the victim in Anderson, and that the 911 operator asked the victim in Davis. Similarly, Nelson's response — that her boyfriend had hit her in the face — mirrors the responses of the victims in Anderson and Davis. After Carlson and Bolen heard Nelson's initial response, their questions dealt almost exclusively with (1) discovering the extent of Nelson's need for medical assistance, (2) eliciting information that the officers would need to identify and locate the man who had just assaulted Nelson, and (3) finding out whether this man was armed.

Accordingly, we conclude that Nelson's statements to the officers were not testimonial hearsay, and therefore the admission of those statements did not violate Springer's right of confrontation.

In addition, we note that any error in the admission of those statements was harmless beyond a reasonable doubt. We have already described the testimony given by the two neighbors, the paramedic, the emergency room doctor, and the oral surgeon. These witnesses testified (without objection) concerning Nelson's descriptions of what had happened to her, and her assertions about who had done it. Nelson's out-of-court statements to these witnesses essentially recapitulated her statements to Officers Carlson and Bolen. Moreover, the personal observations of the two neighbors

(Ritter and Phillips) substantially corroborated Nelson's account. Thus, if it was constitutional error to admit Nelson's statements to the officers, that error was harmless.

Springer's argument that the trial judge improperly redacted Nelson's medical records, excising portions of these records indicating that Nelson was an alcoholic and that she suffered from seizures

As we have already explained, Springer's theory of defense at trial was that Nelson suffered a seizure and then, when she regained consciousness, she attacked Springer without cause — forcing him to defend himself. To support this theory, Springer sought to introduce medical records indicating that Nelson was an alcoholic and that she suffered from a seizure disorder. These medical records referred to several occasions in the months following the incident in which Nelson experienced seizures, fell down, and sometimes suffered fractures.

The prosecutor objected that the records were not relevant because they dealt with occurrences after the incident being litigated. The prosecutor also argued that much of the information in the records would be incomprehensible to a jury without a doctor to explain it. Finally, the prosecutor argued that many portions of the records dealt with aspects of Nelson's medical history that had no relevance to Springer's theory of defense.

Judge Spaan concluded that the medical records were relevant to Springer's defense and were admissible. However, the judge agreed with the prosecutor that certain portions of the records were irrelevant or would be confusing to the jury. For this reason, Judge Spaan announced that he would redact the records before submitting them to the jury. Judge Spaan then proceeded to go through the documents line by line, making decisions about which portions to redact, after receiving input from the prosecutor and the defense attorney.

Springer's attorney objected to only one of Judge Spaan's redactions. This objection occurred when the judge and the parties were discussing a medical record from March 16, 2006. Judge Spaan indicated that he planned to excise the portion of the record referring to Nelson's alcohol consumption because he believed that Nelson's alcoholism was not the main issue. Springer's attorney responded that information about Nelson's alcoholism was a valid part of her medical history, and that this information would not be unfairly prejudicial to the State's case, nor would it be an unwarranted attack on Nelson's character. In response, Judge Spaan noted that the jury was already going to be apprised of Nelson's alcoholism because that information "[was] coming in through [her] death certificate. It's not going to be a surprise to anybody. I'm just not going to allow it on this medical record."

(Nelson's death certificate listed "chronic alcoholism", along with cirrhosis of the liver, respiratory distress / multi-organ failure, and urinary tract infection with septic shock, as the causes of Nelson's death.)

Following Judge Spaan's explanation, the defense attorney did not renew her objection; in particular, the defense attorney did not argue that the March 16 medical record contained information that the death certificate did not. And, as we have indicated, this was the sole objection raised by the defense attorney to any of Judge Spaan's decisions regarding the redaction of Nelson's medical records. Indeed, immediately before the records were to be admitted, Springer's attorney stated that "[the court's] redactions are appropriate."

On appeal, Springer argues that the medical records were redacted in ways that prevented him from presenting important information to the jury. In his brief, Springer points to information contained in the original ( i.e., unredacted) documents that arguably was pertinent to his defense and that should have been admitted. These arguments were never presented to Judge Spaan, and they are therefore not preserved for appeal.

Nor do we find plain error. The testimony of several trial witnesses supported Springer's position that Nelson was an inebriate with a history of seizures, and that she was intoxicated on the night of the incident. Moreover, the State did not dispute that Nelson had a history of alcoholism and seizures; the prosecutor openly acknowledged Springer's history of seizures in his closing argument to the jury.

For these reasons, we reject Springer's argument that Judge Spaan improperly redacted Nelson's medical records.

Conclusion

The judgement of the superior court is AFFIRMED.