2020 UT App 67

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JUSTIN DAVID WILLIAMS,

Appellant.

Opinion

No. 20180649-CA

Filed April 23, 2020

Third District Court, West Jordan Department

The Honorable William K. Kendall

No. 181400273

Wendy Brown and Kimberly A. Clark, Attorneys

for Appellant

Sean D. Reyes and Marian Decker, Attorneys

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 

concurred.

HAGEN, Judge:

¶1 A jury convicted Justin David Williams of aggravated 

burglary, criminal mischief, and assault after he broke down the 

door to his father’s motor home, entered, and attacked his father 

and brother. Williams appeals his conviction, arguing that the 

district court erred in admitting a nine-minute 911 call his father 

made after the assault. We conclude that the admission of the 

911 call did not violate Williams’s Sixth Amendment right under 

the Confrontation Clause because the call was not testimonial in 

nature. We further conclude that the district court properly 

relied on the excited utterance exception to the hearsay rule in 

admitting the statements made by the father at the outset of the 
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call and that Williams waived any error when he abandoned his 

request to redact the remainder of the recording. Accordingly, 

we affirm.

BACKGROUND1

¶2 On the night of January 10, 2018, Williams spotted his 

father’s motor home parked outside a business in Midvale, Utah.

He broke down the door, entered, and assaulted his father and 

brother. After Williams fled, the father called 911 and reported

the assault.

¶3 At the outset of the call, the father’s tone was distressed 

and his breathing labored:

Q. This is 911. What is [inaudible]

A. All right. Like, 72 South State, in a motor home 

parked in a parking lot.

Q. In what city?

A. Uh, Magna. I mean, not -- Midvale.

Q. Okay. I’m sorry. Did you say this was a house, 

apartment or business?

 

1. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly. 

We present conflicting evidence only as necessary to understand 

issues raised on appeal.” State v. Ramirez, 2019 UT App 196, n.2, 

455 P.3d 1082 (cleaned up), petition for cert. filed, Jan. 16, 2020 

(No. 20200055).
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A. No, it’s -- it’s a -- it’s a motor home that’s parked 

on State Street. We just got assaulted --

Q. Okay.

A. -- by my son. I mean, we’re -- we’re hurting 

man. He tore the door down. He -- he’s a fucking 

danger. Wow, fuck.

Q. And it’s the parking lot of -- of what, sorry?

A. Po Boyz Karpet. It’s right across from 

[inaudible] State Street and 70 -- 76 [inaudible] 

right by Pablo’s Auto.

Q. [inaudible] phone number you’re calling from?

A. Uh, [redacted]. Fuck. Oh, man.

Q. [inaudible] what’s your name?

A. [redacted]. Oh, man.

Q. Did you say it was -- you said it was Pablo’s 

Auto Loan that you’re in the parking lot of?

A. No, no, no. I’m in the parking lot at Po Boyz 

Karpet. Okay? I’m in a motor home parked in the 

parking lot. [inaudible] the landlord said I could 

stay here for a couple more days. And the motor 

home is parked on the side in a parking lot. We’ve 

just been assaulted. Oh, fuck.

Q. [redacted], tell me exactly what happened.

A. He just -- he broke down the door and broke in. 

I guess he must have seen our motor home on the 
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side of the road. He got in the door [inaudible] tore 

the door right off. Fuck.

Q. Do you need medical attention?

A. Yes, I do. I got injuries. He kicked the shit out of 

both of us. Man [inaudible] is there somebody on 

their way?

Q. [inaudible] stay on the line while I update the 

officers.

¶4 At this point, a Unified Police dispatcher (the second 

dispatcher) joined the call and the first dispatcher explained the 

nature of the emergency. When the father spoke again, his voice 

had calmed. The second dispatcher asked the father a series of 

questions about the father’s age and injuries, details of the 

assault, Williams’s name and birthdate, Williams’s physical 

description, the direction Williams was going when he left the 

scene, and whether drugs or alcohol were involved. By the end 

of the nearly nine-minute call, officers had arrived at the scene.

¶5 At trial, the State presented limited evidence. The State

relied primarily on the 911 call to establish the course of events 

and the elements of the crimes charged. Neither the father nor 

the brother was available to testify at trial. In addition to the 911 

recording, the State presented three witnesses: the second

dispatcher, a dispatch records custodian, and a responding

police officer. The State also presented photographs taken at the 

scene that showed the motor home and the father’s injuries,

along with the birth certificates of the father, brother, and 

Williams, which were used to establish their identities.

¶6 Before trial, the State filed a motion to admit the 911 

phone call. Williams opposed the motion, arguing first, that it 

was inadmissible hearsay and second, that its admission would 

violate the Sixth Amendment’s Confrontation Clause if the 
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father did not testify at trial. The State responded that the 

statements made during the phone call were nontestimonial, and

that the call’s admission therefore did not violate the 

Confrontation Clause. Further, it argued that although the call 

was hearsay, it fell under the excited utterance exception found 

in rule 803(2) of the Utah Rules of Evidence.

¶7 Before the start of trial, the district court heard arguments 

on the 911 call’s admissibility. The court ruled that the entirety 

of the call was nontestimonial because the statements were 

elicited for the purpose of ending an emergency situation, and 

therefore its admission did not violate Williams’s Sixth 

Amendment confrontation right. The court appeared less certain, 

however, as to whether the entirety of the call qualified as an 

excited utterance. During the court’s discussion of the 

Confrontation Clause issue, it acknowledged that there was a 

point in the call where the father’s breathing slowed down and 

the type of information being relayed was not “of the nature and

character of the initial information.” When defense counsel 

argued that parts of the call should be redacted because of 

this, the court responded, “I think we can cross that bridge if we 

get there.”

¶8 And the district court did eventually get there, ruling that 

the call was admissible as an excited utterance under rule 803(2)

of the Utah Rules of Evidence. At that point, defense counsel 

stated, “Your Honor, the redaction portions.” The court 

responded, asking, “[S]o you’re . . . asking to stop the call, I 

guess, at the further questioning, in terms of the description of 

the son and where he went?” But defense counsel replied, “No, 

more [that] he’s . . . dangerous when he’s on drugs.” The court 

noted that the father never made this statement during the 

phone call, and moved on.

¶9 At trial, the State played the entire phone call for the jury.

The jury convicted Williams of aggravated burglary, a first 
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degree felony; criminal mischief, a class B misdemeanor; and 

assault, a class B misdemeanor. Williams appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Williams argues that the admission of the 911 call 

constitutes reversible error for two reasons. First, he contends 

that its admission violated his right to confrontation under the 

Sixth Amendment. “Whether a defendant’s confrontation rights 

have been violated is a question of law, reviewed for 

correctness.” State v. Garrido, 2013 UT App 245, ¶ 9, 314 P.3d 

1014. Second, he contends that the 911 call was not admissible 

under the excited utterance exception to the hearsay rule. “In 

reviewing the admissibility of hearsay, legal conclusions are 

reviewed for correctness, factual determinations are reviewed 

for clear error, and the ultimate question of admissibility is 

reviewed for abuse of discretion.” State v. C.D.L., 2011 UT App 

55, ¶ 29, 250 P.3d 69.

ANALYSIS

¶11 For a hearsay statement to be admissible in a criminal 

trial, it must clear two hurdles. First, its admission must not 

violate the defendant’s Sixth Amendment right to confrontation. 

Second, it must be admissible under an exception to the rule 

against hearsay. We address both points, beginning with the 

Confrontation Clause.

I. The Confrontation Clause

¶12 The Sixth Amendment states that “the accused shall enjoy 

the right . . . to be confronted with the witnesses against him.” 

U.S. Const. amend. VI. “When out-of-court testimonial 

statements . . . are offered against a defendant at trial, the 

Confrontation Clause demands what the common law required: 
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unavailability and a prior opportunity for cross-examination.” 

West Valley City v. Kent, 2016 UT App 8, ¶ 13, 366 P.3d 415 

(quoting Crawford v. Washington, 541 U.S. 36, 68 (2004) (cleaned 

up)). On the other hand, hearsay statements that are 

nontestimonial do not implicate the Confrontation Clause. See

State v. Griffin, 2016 UT 33, ¶ 35, 384 P.3d 186.

¶13 The United States Supreme Court in Davis v. Washington, 

547 U.S. 813 (2006), described the difference between testimonial 

and nontestimonial statements in the context of questioning by 

police officers:

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.

Id. at 822.

¶14 In Davis, a victim of domestic violence called 911 to report 

that her former boyfriend had assaulted her and then fled from 

her house. Id. at 817–18. The conversation between the 

emergency operator and the victim included the following 

statements:

911 Operator: What’s going on?

Complainant: He’s here jumpin’ on me again.

911 Operator: Okay . . . Are you in a house or an 

apartment?
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Complainant: I’m in a house.

911 Operator: Are there any weapons?

Complainant: No. He’s usin’ his fists.

911 Operator: Okay. Has he been drinking?

Complainant: No.

. . . .

911 Operator: Listen to me carefully. Do you know 

his last name?

Complainant: It’s Davis.

911 Operator: Davis? Okay, what’s his first name?

Complainant: Adrian.

. . . .

911 Operator: Okay. What’s his middle initial?

Complainant: Martell. He’s runnin’ now.”

Id. at 817–18.

¶15 The Court held that the victim’s statements on the 911 

recording were nontestimonial and therefore their admission did 

not violate the Sixth Amendment even though the defendant 

was unable to confront the victim declarant. Id. at 828. 

Specifically, the Court noted that the questions and answers 

heard in the call were “necessary to be able to resolve the present 

emergency, rather than simply to learn . . . what had happened 

in the past.” Id. at 827. The Court held that even the statements 

identifying the assailant were nontestimonial because the 
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dispatcher asked for the assailant’s full name “so that the 

dispatched officers might know whether they would be 

encountering a violent felon.” Id.

¶16 Here, the district court correctly held that the primary 

purpose of the father’s phone call was to enable police assistance 

to meet the ongoing emergency and that the questions from 

dispatch were “designed to resolve the ongoing situation, to 

allow police and paramedics to respond.” The father called to 

report that he and the brother had “been assaulted,” and were 

“hurting.” Other information provided to the dispatchers, such 

as Williams’s birthdate, his description, the direction he was 

heading, and whether he had a weapon, all provided the police 

with information necessary to provide assistance to the father 

and to locate the suspected assailant. As the district court 

recognized, “in order to end the threatening situation, police 

need to know who they’re looking for.” These statements are 

precisely the type of statements the Davis Court held were 

nontestimonial.

¶17 The father’s statements are distinguishable from 

testimonial statements given to police for the primary purpose of 

investigating a crime. For example, in Hammon v. Indiana, 547 

U.S. 813 (2006) (the companion case to Davis v. Washington),

where the victim declarant’s statements were made during a 

police interview after the violent situation had subsided and the 

attacker had been located, the Court held that the interview’s 

primary purpose was gathering information, rather than 

responding to an ongoing situation. Id. at 829–30. The declarant 

in Hammon “deliberately recounted, in response to police 

questioning, how potentially criminal past events began and 

progressed,” and the questioning “took place some time after the 

events described were over.” Id. at 830. Further, the officer 

questioned the declarant in a separate room, away from her 

attacker. Id. Under these circumstances, the Court held that the 

statements were testimonial because their primary purpose was 
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to provide information relevant to the investigation, rather 

than information needed to respond to an ongoing situation. 

Id. at 829–30.

¶18 In contrast, the father’s statements in this case were not 

made for the primary purpose of facilitating an investigation of a 

crime, but instead to enable the police to adequately respond to 

the scene. The father did not call 911 to report information about 

a completed crime after the situation was resolved. Rather, he 

was in an unsafe environment and seeking medical attention 

and protection. Unlike in Hammon, nothing separated the father 

from Williams. According to the father, Williams was still at 

large and potentially carrying a weapon, and the injured father 

remained in a public parking lot at night in a motor home 

without a door.

¶19 For these reasons, we agree with the district court that the 

primary purpose of the 911 call was to enable police assistance to 

meet an ongoing emergency. Therefore, Williams’s Sixth 

Amendment right to confrontation was not violated when the 

call was admitted into evidence.

II. Excited Utterance

¶20 Although the statements in the 911 call did not implicate 

Williams’s Sixth Amendment right to confrontation, the 

recording must still be admissible under the Utah Rules of 

Evidence. See Salt Lake City v. Williams, 2005 UT App 493, ¶¶ 25–

26, 128 P.3d 47. Williams raised a hearsay objection below, but 

the district court ruled that the call was admissible under the 

excited utterance exception in rule 803(2) of the Utah Rules of 

Evidence. We agree that at least some of the statements during 

the call were admissible as excited utterances.

¶21 Rule 803(2) defines an excited utterance as a “statement 

relating to a startling event or condition, made while the 
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declarant was under the stress of excitement that it caused.” 

Utah R. Evid. 803(2). To be admissible under the excited 

utterance exception, three factors must be met: “(1) a startling 

event or condition occurred, (2) the statement was made while 

the declarant was under the stress of excitement caused by the 

event or condition, and (3) the statement relates to the startling 

event or condition.” West Valley City v. Hutto, 2000 UT App 188, 

¶ 15, 5 P.3d 1 (cleaned up).

¶22 The district court found that all three factors were met. As 

to the first and third factors, the court explained that Williams 

appearing at his father’s motor home unexpectedly, breaking 

down the door, and assaulting the father and brother constituted

“a startling event or condition” and that “all the information 

given related to the startling event or condition.” Because we

review the district court’s factual findings for clear error, we will

set aside those findings only if they are “against the clear weight 

of the evidence, or if we otherwise reach a definite and firm 

conviction that a mistake has been made.” Brown v. State, 2013 

UT 42, ¶ 37, 308 P.3d 486 (cleaned up).

¶23 The district court’s factual findings on the first factor—

that a startling event occurred—were fully supported by the 

evidence. In the phone call, the father explained that Williams 

must have spotted his parked motor home from the road. 

Williams then “got in the door . . . tore the door right off,” 

“kicked the shit out of” the father and brother, and that they 

were “just trying to survive.” The father stated he was injured 

and bleeding. Photographs admitted into evidence, along with 

testimony from one of the responding officers, confirm that the 

father was bleeding from injuries on his face and head. This 

evidence also supports the court’s finding that the father’s 

statements related to the startling event or condition, satisfying 

the third factor. All the information relayed during the phone 

call related to the reported assault, including the location and 

nature of the assault and the description of the fleeing assailant.
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Given these supported factual findings, the district court did 

not exceed its discretion in ruling that the first and third 

factors were met.

¶24 The second factor, however, is typically “the most 

difficult issue in determining the admissibility of an excited 

utterance.” State v. Smith, 909 P.2d 236, 240 (Utah 1995). This 

factor requires that the declarant be under the stress of the 

startling event when the statement is made. Hutto, 2000 UT App 

188, ¶ 15. “The generally accepted rationale for the exception is 

that declarations made during a state of excitement temporarily 

still a declarant’s capacity to reflect and thereby produce 

utterances free of conscious fabrication.” State v. Fahina, 2017 UT 

App 111, ¶ 25, 400 P.3d 1177. For this factor to be met, the 

statement “must be a spontaneous reaction to the event or 

condition, not the result of reflective thought.” Smith, 909 P.2d at 

239. The ultimate determination is “whether the state of the 

declarant’s mind was such that because of a high degree of 

emotional arousal, the declaration was spontaneous in the sense 

that the declarant’s emotional arousal or excitement at the time 

of the statement strongly suggested that the statement came 

purely from the declarant’s memory, unchanged or distorted by 

a consideration of the consequences of the statement.” Id. at 240.

¶25 The district court found that “based upon the statements, 

the specific words that were given, as well as the tone of the 

declarant’s voice . . . the declarant was still under the stress . . . or

excitement caused by the event or condition.” However, “not 

every statement made by an excited person is an excited 

utterance for purposes of the hearsay rule.” Hutto, 2000 UT App 

188, ¶ 22. The court appears to have considered the phone call as 

a whole instead of examining the admissibility of “particularized 

utterances.” Id. ¶ 14. The court focused on the tone of the father’s 

voice and the words he used to determine that the father 

remained under the stress of the event during the entire call, 

instead of considering each statement individually. 
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¶26 Looking at each discrete statement in the call, we agree 

that the father’s statements to the first dispatcher at the outset of 

the call were a “spontaneous reaction to the event or condition, 

not the result of reflective thought.” See Smith, 909 P.2d at 239. In 

making this assessment, we look to a variety of factors, 

including:

the declarant’s age, elapse of time between event 

and statement, the nature of the event, the 

apparent emotional state and intensity of 

emotional reaction, hospitalization, whether the 

statement was spontaneous or in response to a 

question, and the declarant’s familiarity with his or 

her surroundings.

Hutto, 2000 UT App 188, ¶ 16.

¶27 Although the declarant’s age is not relevant in this case, 

each of the remaining factors supports the conclusion that each 

of the father’s statements at the outset of the call were made 

under the stress of the startling event. First, minimal time had 

elapsed between the startling event and the statements made at 

the beginning of the call. The father reported that they had “just” 

been assaulted and the responding officer observed fresh injuries 

when he arrived at the scene minutes later. The record fully 

supported the district court’s factual finding that the assault was 

“clearly a fresh event.”

¶28 Next, the nature of the event was unexpected and 

traumatic. Based on the father’s statements to dispatch, Williams 

arrived uninvited, having spotted his father’s motor home 

parked outside a business on a busy street. Williams “tore the 

door right off” the motor home to get to his father and brother 

and “kicked the shit” out of both of them. According to the 

father, Williams “wrecked the place” and had been “kicking, 

slapping, [and] hitting [him] with stuff.” The father reported that 
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he was “just trying to survive” and that he had injuries requiring

medical attention. The responding officers documented the 

father’s injuries and the father was later treated at the hospital.

¶29 In addition, the father’s tone of voice, labored breathing, 

and spontaneous exclamations such as “we’re hurting man” and 

“he’s a fucking danger” reflect his “apparent emotional state and 

intensity of emotional reaction.” Id. Many of the father’s 

statements were spontaneous and not responsive to the 

dispatcher’s questions. Even those that were responsive were 

“spontaneous in the sense that the declarant’s emotional arousal 

or excitement at the time of the statement strongly suggested 

that the statement came purely from the declarant’s memory, 

unchanged or distorted by a consideration of the consequences 

of the statement.” Smith, 909 P.2d at 240.

¶30 Finally, although the father was in familiar surroundings, 

Williams had “wrecked” the place, he was still at large, and the 

father and brother had no protection from Williams if he had 

chosen to return. All of these factors support the conclusion that 

the father’s statements at the outset of the call were a 

spontaneous reaction to the event or condition, rather than the 

result of reflective thought processes.

¶31 But once the second dispatcher joined the call, the father’s 

voice calmed, his breathing slowed, and his answers to the 

dispatcher’s questions became less spontaneous. He was able to 

respond appropriately to the dispatcher’s questions and provide 

Williams’s name, birthdate, ethnicity, and build, along with the 

direction Williams was heading and what he was wearing, 

evidencing reflective thought. Indeed, the district court 

recognized as much. While discussing the Confrontation Clause, 

the court stated that it thought “once they start giving some 

more information, you know, he left on foot. He left east. . . what 

was he wearing, what were his clothes, what’s his . . . height, 

weight, those kinds of things . . . it certainly seems that . . . the 
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alleged victim’s voice has calmed down at that point, and that’s 

additional information that . . . maybe isn’t of the nature and 

character of the initial information.” Because the father’s 

statements during the second part of the call do not qualify as 

excited utterances, those statements should have been excluded. 

However, we conclude that Williams waived his right to appeal 

this issue by deliberately abandoning any request to stop the call 

at that point.

¶32 Although “the terms ‘waiver’ and ‘forfeiture’ ‘are often 

used interchangeably’” in Utah case law, “the two concepts are 

fundamentally different.” State v. Fuller, 2014 UT 29 ¶ 28 n.21, 

332 P.3d 937 (quoting In re Adoption of Baby E.Z., 2011 UT 38, ¶ 51 

n.1, 266 P.3d 702 (Lee, J., concurring)). “Whereas forfeiture is the 

failure to make the timely assertion of a right, waiver is the 

intentional relinquishment or abandonment of a known right.” 

United States v. Olano, 507 U.S. 725, 733 (1993) (cleaned up). “This 

distinction is important because a defendant is generally 

precluded from obtaining appellate review when he waives a 

right, but he may still obtain review for plain error when the 

right has only been forfeited.” Fuller, 2014 UT 29, ¶ 28 n.21.

¶33 Invited error is “a species of waiver because it requires 

intentional relinquishment of a right.” United States v. Thornton, 

846 F.3d 1110, 1117 n.3 (10th Cir. 2017) (cleaned up); see also

Vaught v. State, 366 P.3d 512, 520 (Wyo. 2016). Under wellestablished Utah case law, when a party invites an error in the 

district court, “we will not review it even for plain error.” State v.

Popp, 2019 UT App. 173, ¶ 23, 453 P.3d 657 (cleaned up); see also

State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (noting that 

“under the doctrine of invited error, we have declined to engage 

in even plain error review when counsel, either by statement or 

act, affirmatively represented to the trial court that he or she had 

no objection to the proceedings” (cleaned up)). The “invited 

error doctrine arises from the principle that a party cannot take 

advantage of an error committed at trial when that party led the 
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trial court into committing the error.” Pratt v. Nelson, 2007 UT 41, 

¶ 17, 164 P.3d 336 (cleaned up). It “discourages parties from 

intentionally misleading the trial court so as to preserve a hidden 

ground for reversal on appeal and gives the trial court the first 

opportunity to address the claim of error.” State v. McNeil, 2016 

UT 3, ¶ 17, 365 P.3d 699 (cleaned up).

¶34 Here, the State argues that any error in admitting the 

entire phone call was invited because defense counsel 

encouraged the court to make the erroneous ruling. The court 

specifically asked whether the defense was “asking to stop the 

call . . . at the further questioning, in terms of the description of 

the son and where he went?” But defense counsel replied, “No, 

more [that] he’s . . . dangerous when he’s on drugs.” (Emphasis 

added.) The court found that it could not make that redaction 

because the father never made such a statement during the call.

Williams contends that, at most, he failed to properly preserve 

this issue by not asking for further redactions at that time and

that we should still review this forfeited issue for plain error.

¶35 Unlike a typical case involving invited error, the record 

does not demonstrate “that counsel independently made a clear 

affirmative representation of the erroneous principle.” Id. ¶ 18. 

That is, defense counsel never affirmatively proposed that the 

entire call be played for the jury. Nor did defense counsel 

suggest that if some of the statements constituted excited 

utterances the entire call was admissible. Instead, defense 

counsel originally objected to the admission of the entire call and 

argued, in the alternative, that parts of the call needed to be 

redacted. But when the district court asked if Williams wanted to 

“stop the call . . . at the further questioning,” defense counsel 

responded, “No.”

¶36 Even if Williams’s response does not qualify as invited 

error, it constitutes something more than “mere silence,” which 

would render the issue merely unpreserved and subject to plain 
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error review. See id. ¶ 21 n.2. Nor can it be characterized as 

“affirmative acquiescence” to the district court’s ruling, as the 

court was inviting the very argument that Williams disavowed. 

See id. ¶ 21. In fact, the court appeared inclined to agree that the 

statements made after the second dispatcher joined the call were 

not admissible as excited utterances, but Williams repudiated 

the court’s suggestion that he was asking to “stop the call . . . at 

the further questioning.” At minimum, Williams intentionally 

relinquished or abandoned any request to redact the statements 

made after the second dispatcher joined the call. See United States 

v. Carrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007)

(joining other courts that “have uniformly held that an 

abandoned objection is waived”).

¶37 Although Williams initially objected to the admission of 

the entire call, when the court gave him the opportunity to argue 

for redaction, he abandoned that objection. Because Williams 

waived this error, he is now precluded from challenging it on 

appeal. See Fuller, 2014 UT 29, ¶ 28 n.21.

CONCLUSION

¶38 We conclude that the admission of the 911 call did not 

violate Williams’s Sixth Amendment right to confrontation 

because the call was nontestimonial in nature. We also conclude 

that the first part of the call was properly admitted as an excited 

utterance and that Williams waived any error in admitting the 

entire call. Accordingly, we affirm.