[¶ 1] Shane Keith Duncan appeals the district court’s judgment entered after a jury convicted him of terrorizing, interference with a telephone during an emergency phone call and simple assault-domestic violence. He argues the judgment should be reversed and an acquittal be entered because of prosecutorial misconduct. We affirm.
I
[¶ 2] Shane Duncan was charged with simple assault-domestic violence for willfully causing bodily injury to his wife Barbara Duncan on February 4, 2010, with terrorizing for threatening Barbara Duncan with a gun on February 6, 2010, and with intentionally interfering with Barbara Duncan’s emergency telephone call on February 6, 2010.
[¶ 3] Shane Duncan pled not guilty to the three charges, and a jury trial was held on July 14, 2010. The State called Barbara Duncan to testify. Barbarа Duncan testified she is Shane Duncan’s wife and has been married to Shane Duncan for almost three years. Barbara Duncan refused to testify about the events occurring on February 6, 2010. The district court instructed Barbara Duncan to answer the questions, but she still refused. The district court informed Barbara Duncan she would be held in contempt of court if she persisted in her refusal to answer questions and could be sent to jail and charged with a misdemeanor. Barbara Duncan still refused to testify, and the district court jailed her fоr contempt after informing her she could get out if she testified.
[¶ 4] Prior to jailing Barbara Duncan for contempt, the district court asked Shane Duncan’s counsel if he wanted to comment regarding Barbara Duncan’s refusal to testify. Shane Duncan’s counsel responded, “I guess I’d just advise her to seek counsel. I have no comment on that.”
[¶ 5] After ascertaining Barbara Duncan was not going to testify, the district court ruled an audio tape recording of the 911 call Barbara Duncan made was admissible under the exсited utterance and the present sense impression exceptions to the hearsay rules. The district court stated that even though the call was made two hours after the events occurred, it was admissible because Barbara Duncan was under strеss due to the event, evidenced by her driving to town and buying another cellular telephone to make the telephone call. The district court also ruled the law enforcement officers could not testify about what Barbara Duncan told them.
[¶ 6] The аudio recording of the 911 call was admitted and played for the jury. Barbara Duncan made the call around 7:30 p.m. on February 6, 2010. During the call, Barbara Duncan told the 911 operator that the events of a domestic situation occurred at 4:00 p.m. that day аnd that Shane Duncan had left the scene, their residence, around 5:00 p.m.
[¶ 7] Barbara Duncan told the 911 operator Shane Duncan had pointed a .300 Ultra Mag rifle at her. She also stated that Shane Duncan broke her cell phone
[¶ 8] Barbara Duncan stated during the 911 call that she had not planned to call 911, but that after she bought her new сell phone, she and Shane Duncan were exchanging text messages and Shane Duncan threatened a divorce. Twice she told the 911 operator she was fíne and stated she was not hurt. She indicated Shane Duncan’s parents were present during the incident and they would not let Shane Duncan hurt her. However, a lamp was broken.
[¶ 9] The jury found Shane Duncan guilty of terrorizing, interference with a telephone during an emergency call and simple assault-domestic violence. Judgment was entered based on the jury’s verdict. Shane Duncan appeals.
II
[¶ 10] Shane Duncan presents three issues, all framed as prosecutorial misconduct that denied his due process right to a fair trial. This Court applies “a de novo standard of review to a claim of a constitutional violation.” State v. Aguero,
[¶ 11] Shane Duncan alleges his due process rights were violated when the State sought admission of the 911 telephone call recording because the call violated his confrontation clause rights. He does not argue the district court erred admitting the 911 call recording. The State responds that use of the 911 call was not misconduct because the confrontation clause’s availability requirement only requires a witness to appear at trial and Barbara Duncan appeared.
[¶ 12] We have explained,
“prosecutorial misconduct may ‘so infect!] the trial with unfairness as to make the resulting conviction a denial of due process.’ However, we have also recognized that not every assertion of prosecutorial miscоnduct, followed by an argument the conduct denied the defendant his constitutional right to a fair trial, automatically rises to an error of constitutional dimension. ‘To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ To determine whether a prosecutor’s misconduct rises to a level of a due process violation, we decide if the conduct, in the context of the entire trial, was sufficiently prejudicial to violate a defendant’s due process rights.”
State v. Kruckenberg,
[¶ 13] Shane Duncan contends the State committed prosecutorial misconduct by seeking the introduction of the 911 call, which he claims was “clearly inadmissible” evidence violating the confrontation clause under Davis v. Washington,
[¶ 14] Shane Duncan correctly observes the United States Supreme Court reversed a conviction based on introduction of a 911 call in Davis because the declarant was unavailable and because Davis had no opportunity to cross-examine the declarant.
[¶ 15] This large and highly uncertain body of confrontation clause law makes resolution of the underlying issue difficult. However, Shane Duncan framed his issue as prosecutorial misconduct, requiring that we look at the prosecutor’s conduct and not, ultimately, that we resolve whether Shane Duncan’s cоnfrontation right was violated under Sixth Amendment jurisprudence.
[¶ 16] We conclude the State did not engage in prosecutorial misconduct resulting in a denial of Shane Duncan’s due process right to a fair trial. The law surrounding the confrontation clause generally is in flux. In fact, one day prior to oral argument in this case, the United States Supreme Court issued its decision in Michigan v. Bryant, and neither counsel nor this Court could determine at argument whether that case materially affected the respective positions advanced in this case. — U.S.-,
[¶ 17] Shane Duncan argues prosecuto-rial misconduct ocсurred when the prosecution elicited testimony from law enforcement officers about statements made to them by Barbara Duncan, when the State made improper comments during its opening and closing statements and when the State used languagе calculated to inflame the jury.
[¶ 18] Shane Duncan did not object to these alleged errors at trial; “thus our review is limited to determining if the prosecutor’s conduct prejudicially affected [Shane Duncan’s] substantial rights, so as to deprive him of a fair trial.” State v. Burke,
A
[¶ 19] Shane Duncan argues the State committed prosecutorial misconduct by eliciting testimony revealing statements Barbara Duncan made to law enforcement in violation of the district court’s ruling on the statement’s admissibility. The State asserts it did not elicit inadmissible testimony.
[¶ 20] While reviewing the transcript, we found two places where a witness testified about Barbara Duncan’s statements. In the first, the district court stopped the witness from relаying Barbara Duncan’s statement, and in the second, Shane Duncan’s attorney solicited the statement through his questioning. These two instances do not lead us to the conclusion that Shane Duncan was deprived of a fair trial.
B
[¶ 21] Shane Duncan argues the Statе committed misconduct of a constitutional magnitude when the prosecutor made inappropriate comments in her opening and closing statements and when she used words calculated to inflame the jurors. The State argues no prosecutorial misconduct occurred.
[¶ 22] “A prosecutor’s ‘improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.’ ” Evans,
[¶ 23] Shane Duncan asserts it was prosecutorial misconduct for the State to call the gun an “assault rifle” and refer to it as “[t]he big, big gun used to assault or kill, I should say, large game,” to call Shane Duncan a “suspect” and an “abuser” and to use the term “domestic violence.” Shane Duncan also asserts the prosecutor made improper arguments about her opinion of the evidence in her closing argument. We must consider these comments in light of the entire proceeding. State v. Paulson,
[¶ 24] Here, testimony from three law enforcement officеrs, testimony from Shane Duncan’s mother, and photographic and physical evidence supports the jury’s verdict. That evidence was accumulated
IV
[¶ 25] The district court’s judgment entered after the jury’s verdict finding Shane Duncan guilty of terrorizing, interference with a telephone during an emergency phone call and simple assault-domestic violence is affirmed.