Filed Washington State Court of Appeals Division Two
May 16, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56682-6-II
Respondent,
v. UNPUBLISHED OPINION
RICK ALAN JOHNSON,
Appellant.
MAXA, J. – Rick Johnson appeals his convictions for residential burglary and harassment
(bodily injury). The convictions arose out of an incident where Johnson climbed through his
former girlfriend’s window and threatened her. The former girlfriend called 911. The trial court
admitted a recording of the 911 call into evidence even though the former girlfriend was not
available to testify at trial.
We hold that (1) the statements in the 911 call were admissible under the excited
utterance exception to the hearsay rule, and (2) admitting the 911 call did not violate Johnson’s
right to confront witnesses against him because the statements made in the call were not
testimonial. Accordingly, we affirm Johnson’s convictions.
FACTS
Johnson and Marla Jackson had been in a relationship, but they recently had broken up.
Johnson did not live with Jackson in her apartment. No. 56682-6-II
In July 2021 at approximately 10:00 PM, Johnson knocked on Jackson’s front door.
When Jackson did not answer, Johnson opened and started to crawl through her bedroom
window. This startled Jackson and woke her up. Jackson told Johnson not to enter, but he did
anyway. Jackson ran upstairs and went inside her neighbor’s apartment. Johnson also went up
the stairs and started knocking on the neighbor’s door.
Jackson’s neighbor called 911. The 911 operator asked to speak with Jackson. Jackson
told the operator, “I was asleep and [Johnson] just jumped in my window, and he’s standing
outside of her door trying to open her door and he wants to hurt me. He’s knocking on my door
– knocking on her door. He’s outside the door and he’s got his hand on the door knob.” Ex. 5C
at 00:59 to 1:20. In response to the operator’s questions, Jackson told the operator Johnson’s
name, physical description, and a description of Johnson’s vehicle. Jackson told the operator
that Johnson said “I’m gonna f**k you up” when he entered through her window. Ex. 5C at 3:20
to 3:31.
The operator asked Jackson if Johnson was still standing outside the door and Jackson
looked through her neighbor’s peep hole. In a hushed voice, Jackson told the operator that she
thought that Johnson had covered the peep hole because she could not see anything out of it.
Jackson then corrected herself, saying she could not see through the peep hole because the
outdoor light was out.
The operator told Jackson that officers were arriving in the area and that she would stay
on the phone with her until they arrived. The operator then told Jackson that the officers arrived.
When the officers knocked on the door, Jackson gasped and said, “He’s knocking! Or is that the
officers?” Ex. 5C at 5:48 to 5:50.
2 No. 56682-6-II
As police officers approached Jackson’s apartment, they observed that the front door was
open. They observed Johnson walking out of Jackson’s apartment and detained him. Johnson
was arrested, and the State charged him with residential burglary and harassment (bodily injury).
Trial Court Proceedings
The prosecutor filed a motion in limine to admit the 911 call. The State argued that the
911 call was admissible under either the excited utterance or the present sense impression
exceptions to the hearsay rule and that admission of the 911 call would not violate Johnson’s
right to confront witnesses against him because the statements were not testimonial. Johnson
argued that the excited utterance exception should not apply because Jackson was not under the
stress of the exciting event and that admission of the 911 call would violate his right to confront
witnesses against him because it was testimonial.
After making some redactions, the trial court suggested without expressly ruling that the
statements in the redacted 911 call were admissible under the excited utterance exception
because Jackson’s hushed voice and startled reaction to the knock on the door indicated that she
was still under the stress of the exciting event during the call. The trial court ruled that the
statements in the 911 call were nontestimonial and did not violate Johnson’s right to confront
witnesses against him because they were made to aid in an ongoing emergency.
Jackson was not present at trial. The trial court admitted the 911 call into evidence. The
State also presented testimony and body camera footage from the police officers who arrived on
the scene. This included testimony from officer Peter Taing that Jackson was distraught, crying,
scared, and physically shaking when he arrived at the scene.
3 No. 56682-6-II
The trial court admitted a letter Jackson wrote to the court recanting her statements to the
911 operator. At trial, Johnson’s counsel read the redacted letter to the jury to impeach
Jackson’s credibility.
The jury convicted Johnson of residential burglary and harassment (bodily injury).
Johnson appeals his convictions.
ANALYSIS
A. APPLICABILITY OF EXCITED UTTERANCE EXCEPTION
Johnson argues that Jackson’s statements to the 911 operator were hearsay and that the
excited utterance exception to the hearsay rule was inapplicable. We disagree.
1. Legal Principles
Under ER 801(c), “hearsay” is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hearsay evidence generally is inadmissible unless it falls within a recognized exception to the
hearsay rule. ER 802; State v. Alvarez-Abrego, 154 Wn. App. 351, 366, 225 P.3d 396 (2010).
ER 803(a)(2) provides a hearsay exception for statements “relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” The exception is based on the idea that statements made while a person is under the
stress of an exciting event will be spontaneous rather than based on reflection or self-interest, and
therefore are more likely to be true. See State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194
(1992). “[T]he key determination is whether the statement was made while the declarant was
still under the influence of the event to the extent that the statement could not be the result of
4 No. 56682-6-II
fabrication, intervening actions, or the exercise of choice or judgment.” State v. Woods, 143
Wn.2d 561, 597, 23 P.3d 1046 (2001).
For the excited utterance exception to apply, the declarant’s statement must meet three
requirements: “(1) a startling event or condition occurred, (2) the declarant made the statement
while under the stress of excitement of the startling event or condition, and (3) the statement
related to the startling event or condition.” State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273
(2007). The first two elements may be established by evidence extrinsic to the declarant’s plain
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Filed Washington State Court of Appeals Division Two
May 16, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56682-6-II
Respondent,
v. UNPUBLISHED OPINION
RICK ALAN JOHNSON,
Appellant.
MAXA, J. – Rick Johnson appeals his convictions for residential burglary and harassment
(bodily injury). The convictions arose out of an incident where Johnson climbed through his
former girlfriend’s window and threatened her. The former girlfriend called 911. The trial court
admitted a recording of the 911 call into evidence even though the former girlfriend was not
available to testify at trial.
We hold that (1) the statements in the 911 call were admissible under the excited
utterance exception to the hearsay rule, and (2) admitting the 911 call did not violate Johnson’s
right to confront witnesses against him because the statements made in the call were not
testimonial. Accordingly, we affirm Johnson’s convictions.
FACTS
Johnson and Marla Jackson had been in a relationship, but they recently had broken up.
Johnson did not live with Jackson in her apartment. No. 56682-6-II
In July 2021 at approximately 10:00 PM, Johnson knocked on Jackson’s front door.
When Jackson did not answer, Johnson opened and started to crawl through her bedroom
window. This startled Jackson and woke her up. Jackson told Johnson not to enter, but he did
anyway. Jackson ran upstairs and went inside her neighbor’s apartment. Johnson also went up
the stairs and started knocking on the neighbor’s door.
Jackson’s neighbor called 911. The 911 operator asked to speak with Jackson. Jackson
told the operator, “I was asleep and [Johnson] just jumped in my window, and he’s standing
outside of her door trying to open her door and he wants to hurt me. He’s knocking on my door
– knocking on her door. He’s outside the door and he’s got his hand on the door knob.” Ex. 5C
at 00:59 to 1:20. In response to the operator’s questions, Jackson told the operator Johnson’s
name, physical description, and a description of Johnson’s vehicle. Jackson told the operator
that Johnson said “I’m gonna f**k you up” when he entered through her window. Ex. 5C at 3:20
to 3:31.
The operator asked Jackson if Johnson was still standing outside the door and Jackson
looked through her neighbor’s peep hole. In a hushed voice, Jackson told the operator that she
thought that Johnson had covered the peep hole because she could not see anything out of it.
Jackson then corrected herself, saying she could not see through the peep hole because the
outdoor light was out.
The operator told Jackson that officers were arriving in the area and that she would stay
on the phone with her until they arrived. The operator then told Jackson that the officers arrived.
When the officers knocked on the door, Jackson gasped and said, “He’s knocking! Or is that the
officers?” Ex. 5C at 5:48 to 5:50.
2 No. 56682-6-II
As police officers approached Jackson’s apartment, they observed that the front door was
open. They observed Johnson walking out of Jackson’s apartment and detained him. Johnson
was arrested, and the State charged him with residential burglary and harassment (bodily injury).
Trial Court Proceedings
The prosecutor filed a motion in limine to admit the 911 call. The State argued that the
911 call was admissible under either the excited utterance or the present sense impression
exceptions to the hearsay rule and that admission of the 911 call would not violate Johnson’s
right to confront witnesses against him because the statements were not testimonial. Johnson
argued that the excited utterance exception should not apply because Jackson was not under the
stress of the exciting event and that admission of the 911 call would violate his right to confront
witnesses against him because it was testimonial.
After making some redactions, the trial court suggested without expressly ruling that the
statements in the redacted 911 call were admissible under the excited utterance exception
because Jackson’s hushed voice and startled reaction to the knock on the door indicated that she
was still under the stress of the exciting event during the call. The trial court ruled that the
statements in the 911 call were nontestimonial and did not violate Johnson’s right to confront
witnesses against him because they were made to aid in an ongoing emergency.
Jackson was not present at trial. The trial court admitted the 911 call into evidence. The
State also presented testimony and body camera footage from the police officers who arrived on
the scene. This included testimony from officer Peter Taing that Jackson was distraught, crying,
scared, and physically shaking when he arrived at the scene.
3 No. 56682-6-II
The trial court admitted a letter Jackson wrote to the court recanting her statements to the
911 operator. At trial, Johnson’s counsel read the redacted letter to the jury to impeach
Jackson’s credibility.
The jury convicted Johnson of residential burglary and harassment (bodily injury).
Johnson appeals his convictions.
ANALYSIS
A. APPLICABILITY OF EXCITED UTTERANCE EXCEPTION
Johnson argues that Jackson’s statements to the 911 operator were hearsay and that the
excited utterance exception to the hearsay rule was inapplicable. We disagree.
1. Legal Principles
Under ER 801(c), “hearsay” is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hearsay evidence generally is inadmissible unless it falls within a recognized exception to the
hearsay rule. ER 802; State v. Alvarez-Abrego, 154 Wn. App. 351, 366, 225 P.3d 396 (2010).
ER 803(a)(2) provides a hearsay exception for statements “relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” The exception is based on the idea that statements made while a person is under the
stress of an exciting event will be spontaneous rather than based on reflection or self-interest, and
therefore are more likely to be true. See State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194
(1992). “[T]he key determination is whether the statement was made while the declarant was
still under the influence of the event to the extent that the statement could not be the result of
4 No. 56682-6-II
fabrication, intervening actions, or the exercise of choice or judgment.” State v. Woods, 143
Wn.2d 561, 597, 23 P.3d 1046 (2001).
For the excited utterance exception to apply, the declarant’s statement must meet three
requirements: “(1) a startling event or condition occurred, (2) the declarant made the statement
while under the stress of excitement of the startling event or condition, and (3) the statement
related to the startling event or condition.” State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273
(2007). The first two elements may be established by evidence extrinsic to the declarant’s plain
words “such as the declarant’s behavior, appearance, and condition; appraisals of the declarant
by others; and the circumstances under which the statement is made.” State v. Young, 160
Wn.2d 799, 809-10, 161 P.3d 967 (2007).
When assessing whether a statement qualifies as an excited utterance, we may refer to
relevant factors such as the statement’s spontaneity, the passage of time, the declarant’s
emotional state, and the declarant’s opportunity to reflect or fabricate a story. State v.
Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000). An excited utterance can be made in
response to a question. Id.
We review a trial court’s ruling on the applicability of the excited utterance hearsay
exception for an abuse of discretion. State v. Rodriquez, 187 Wn. App. 922, 939, 352 P.3d 200
(2015). A trial court abuses its discretion if its decision is “manifestly unreasonable or based on
untenable grounds or reasons.” Id.
5 No. 56682-6-II
2. Analysis
First, Jackson experienced a startling event. Jackson woke up to find Johnson at her
window, and he then climbed through the window. Johnson told her, “I’m gonna f**k you up”
when he entered through the window. Ex. 5C at 3:20 to 3:31.
Second, Jackson’s conversation with the 911 operator was made under the stress of
excitement of that event. Jackson ran to her upstairs neighbor’s apartment to call 911
immediately after Johnson entered through her window. Johnson followed Jackson to her
neighbor’s apartment. Johnson was standing outside the door, knocking and trying to open the
door during the 911 call. Jackson said that Johnson wanted to hurt her. This means that the
“event” still was ongoing when Jackson talked with the 911 operator. The circumstances
surrounding the call support the conclusion that Jackson still was under the stress of excitement
when she made her statements to the 911 operator.
Johnson argues that there is no indication that Jackson was excited during the call. She
spoke in the past tense, her demeanor was calm throughout the call, and she did not cry or
scream. However, Jackson spoke in a hushed voice, and whispered when she approached the
door where Johnson was standing outside. And Jackson was audibly startled when law
enforcement knocked on the door and exclaimed “He’s knocking!” even though the operator had
just informed Jackson that law enforcement had arrived. Jackson’s quiet tone of voice and
heightened reaction to the knock at the door are consistent with someone hiding from a perceived
threat. These facts indicate that Jackson still was under the stress of excitement when she made
her statements to the 911 operator.
6 No. 56682-6-II
Officer Taing’s trial testimony supports a conclusion that Jackson was still under the
stress of the event. Taing testified that when he spoke to Jackson in the moments immediately
after she made the 911 call, “[s]he appeared highly distraught. She was crying. She appeared
scared to me. She was physically shaking.” Report of Proceedings (Dec. 7, 2021) at 16.
Because Jackson was distressed immediately after the 911 call, it is reasonable to conclude that
she also was distressed during the 911 call.
Third, Jackson’s statements related to the startling event. Jackson told the 911 operator
what had happened. And her description of Johnson and other details were directly related to the
event.
Accordingly, we hold that the trial court did not abuse its discretion by admitting the 911
call into evidence under the excited utterance exception to the hearsay rule.1
B. CONFRONTATION CLAUSE
Johnson argues that the trial court violated his right to confront witnesses against him
when the trial court admitted the 911 call because the statements in the 911 call were testimonial.
We disagree.2
Under the Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution, accused persons have the right to confront witnesses against them.
1 Because we hold that the excited utterance exception applies, we do not address the exception for present sense impressions under ER 803(a)(1). 2 Johnson also argues that the confrontation clause was violated because Jackson was not “unavailable” to testify. Because we conclude that the 911 call was not testimonial, we need not address this issue.
7 No. 56682-6-II
We review confrontation clause challenges de novo. State v. Burke, 196 Wn.2d 712, 725, 478
P.3d 1096, cert. denied, 142 S. Ct. 182 (2021).
The confrontation clause prohibits the admission of “testimonial statements” made by an
unavailable declarant when the defendant has not had a prior opportunity to cross-examine the
declarant. Id. We use the primary purpose test to determine whether an out-of-court statement is
testimonial. Id. at 725-26. We consider the circumstances under which the statement was made
in determining the primary purpose of a statement. Id. at 726.
“Statements are testimonial when they are made to establish past facts in order to
investigate or prosecute a crime.” Id. However, statements made for another primary purpose
are nontestimonial. Id. at 727. The Supreme Court in Burke stated,
Statements made to assist police in addressing an ongoing emergency is a well- established nontestimonial purpose. For example, frantic statements to a 911 emergency operator describing the identity of an assailant in a domestic disturbance in progress were nontestimonial because the declarant was seeking help in the face of immediate danger.
Id. In addition, statements made to persons other than law enforcement officers are less likely to
be deemed testimonial. Id. at 728.
The recording and circumstances of the 911 call support a conclusion that Jackson made
her statements to the 911 operator during an ongoing emergency for the purpose of receiving
help. Jackson was not merely providing information to assist in the investigation of a crime.
She was urgently seeking assistance in an ongoing situation. As Jackson spoke with the 911
operator, Johnson was knocking and trying to open the door. Jackson stated that “he wants to
hurt me.” Ex. 5C at 1:10-1:12. All of Jackson’s statements were made for the purpose of
enabling law enforcement to respond to an ongoing emergency.
8 No. 56682-6-II
We conclude that the trial court did not err in determining that Jackson’s statements were
nontestimonial. Accordingly, we hold that admission of the 911 call did not violate Johnson’s
right to confront witnesses against him.
CONCLUSION
We affirm Johnson’s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J. We concur:
GLASGOW, C.J.
VELJACIC, J.