State v. Z. Maas

09/15/2026 DA 23-0273 Case Number: DA 23-0273 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 217 STATE OF MONTANA, Plaintiff and Appellee, v. ZACKARY MATTHEW MAAS, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-2022-81 Honorable Dan Wilson, Presiding Judge COUNSEL OF RECORD: For Appellant: David M. Maldonado, Maldonado Law, PLLC, Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Travis R. Ahner, Flathead County Attorney, Ashley S. Frechette, Alison E. Howard, Deputy Attorneys General, Kalispell, Montana Submitted on Briefs: December 24, 2025 Decided: September 15, 2026 Filed: __________________________________________ Clerk Chief Justice Cory J. Swanson delivered the Opinion of the Court. ¶1 Zackary Matthew Maas (Maas) appeals a conviction in the Eleventh Judicial District Court in Flathead County. Following a jury trial, Maas was found guilty of Deliberate Homicide after he shot and killed Gabriel Wagoner (Wagoner). The court sentenced Maas to 80 years at the Montana State Prison with no time suspended. We affirm. ¶2 We restate the issues on appeal as follows: Issue One: Whether Maas was denied his right to confront witnesses under the United States and Montana Constitutions when the District Court admitted statements made by Wagoner before his death. Issue Two: Whether the State demonstrated the error was harmless as to the justifiable use of force defense and the deliberate homicide conviction. Issue Three: Whether the District Court erred when it allowed questioning regarding a juvenile prior bad act. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Maas and Jerum Auclaire (Auclaire) were best friends for about six years and regularly used methamphetamine together. The two had a falling out after Maas accused Auclaire of stealing property from his dad’s shop. Maas threatened Auclaire, stating, “you better have [your new .338] Lapua sighted in because I’m gonna shoot you with it.” Soon after Maas’s threats, Auclaire ostracized Maas to improve himself. ¶4 On March 12, 2022, Maas apologized to Auclaire and sought to restore their friendship. Auclaire acquiesced and invited Maas to join him at his hotel in Kalispell where Maas, Auclaire, and Auclaire’s girlfriend, Shayna Caldwell (Caldwell) drank Twisted Teas 2 while their children swam in the pool. While they were visiting, Maas told Auclaire that he now suspected Wagoner had stolen the property rather than Auclaire. ¶5 Later that night, Maas, Auclaire, and Caldwell migrated to their hotel room where the children fell asleep. Maas suggested they go to the bar while his fiancé, Anna Kirchner (Kirchner), watched the kids. Auclaire and Caldwell agreed. Maas texted Kirchner and asked if she could watch his daughter while he went out to the bar. Kirchner did not want to go to the hotel and replied that Maas could bring his daughter home for her to watch. Instead, Maas picked Kirchner up against her wishes and drove her to the hotel to watch Auclaire and Caldwell’s children along with Maas’s daughter. ¶6 Maas, Auclaire, and Caldwell first had a drink at a bar in Columbia Falls, and then went to a bar in Whitefish, staying until closing. While driving back to the hotel, Maas again accused Auclaire of stealing the property from his dad’s shop. Maas then asserted Wagoner had something to do with the stolen property and asked Auclaire if he would go to Wagoner’s house with him. Auclaire reluctantly agreed under the condition that Maas would not bring a gun. Meanwhile, Kirchner was getting tired and texted Maas saying, “I want to go home” “Now.” In response, Maas texted her saying, “I’m just gonna get revenge then I’ll be back please try to sleep til then.” ¶7 Maas directed Auclaire to Wagoner’s house where the two of them approached the residence. Wagoner lived in the basement apartment of a triplex. The outside entrance to the triplex was a screen door that opened into a small square landing. On each side of the square landing was a door, each leading into an apartment. Wagoner’s door opened to a staircase which led directly down into his apartment. Wagoner had a prior affiliation with 3 Maas and had previously dated Maas’s mother. Therefore, Maas knew the location of the spare key to Wagoner’s apartment. Maas entered the screen door into the landing, opened Wagoner’s door, and went down the stairway into Wagoner’s apartment ahead of Auclaire. When Maas was halfway down the stairs, Auclaire heard a gun being cocked. Auclaire testified that once he reached the apartment, Wagoner was out of bed, and Maas was holding him at gunpoint. ¶8 Auclaire further testified that Wagoner walked towards Maas saying, “You have a gun pointed at me? Shoot me. Shoot me, shoot me.” Auclaire grabbed Wagoner around the arms to prevent him from being shot. While Auclaire was holding Wagoner, he believed Maas hit Wagoner, so he let him go. Maas maintained he never hit Wagoner. Wagoner denied knowing anything about the stolen property and volunteered to take Maas and Auclaire to a man named Luke’s house to find out more information. After hearing this, Auclaire turned around and started walking up the stairs to leave. Once he reached the top of the stairs, Auclaire heard a gunshot and ran from the apartment. Maas and Auclaire fled the scene. Maas claimed Wagoner went after Auclaire with a bat and was right behind Auclaire about to swing when Maas shot him. Auclaire initially told detectives he had seen Wagoner behind him on the stairs with a baseball bat resting on his shoulder. Auclaire later admitted he had lied to the detectives to cover for Maas, and that he had not actually seen Wagoner behind him with a bat. Auclaire told detectives he had not felt threatened and did not think Wagoner was going to hit him with the bat. ¶9 Maas and Auclaire returned to the hotel where Maas picked up Kirchner and his daughter. On the way home, Maas told Kirchner he had pulled a gun out during his 4 interaction with Wagoner, Auclaire had grabbed Wagoner, and he thought he had shot someone. Maas then told Kirchner he had been upset about the stolen property and that he shot Wagoner to protect Auclaire because he swung a baseball bat at Auclaire’s head. In the months leading up to these events, Maas had texted Wagoner accusing him of stealing and making multiple statements threatening to harm or kill Wagoner, which will be discussed in more detail later. ¶10 In the early morning of March 13, 2022, Wagoner’s neighbor, Richard Paulson (Paulson), had been sleeping on his couch when he awoke to loud voices coming from the basement apartment. After hearing a loud bang, Paulson went to his door and heard Wagoner yelling “I’ve been shot, I’ve been shot.” Paulson called 911. He then found Wagoner lying with the upper part of his body on the landing of the stairs and a baseball bat by his head. Wagoner’s other neighbor, Jack Weis (Weis), also awoke to the sound of arguing, heard the shot, and heard Wagoner yell that Zack Maas had shot him. ¶11 When police officers arrived at Wagoner’s apartment in response to the 911 calls, Wagoner had been shot in the back and was laying on the landing of the stairs. Deputy Matthews of the Flathead County Sheriff’s Office made sure the suspect was not in the apartment and then assisted paramedics in caring for Wagoner. While Deputy Matthews was attending to Wagoner, he heard Wagoner say Zackary Maas had shot him. ¶12 Officer Struble of the Kalispell Police Department also responded to the shooting. As he approached the scene, Officer Struble saw Wagoner face down on the landing with a bat next to his right hand and heard Wagoner yelling. He heard Wagoner identify Maas as the person who shot him. At this point, responding officers were still unsure of the 5 location of the shooter. Officer Struble accompanied Wagoner in the ambulance on the way to the emergency room. In the ambulance, Wagoner, who was screaming in pain and sometimes lost consciousness, again identified Maas as his shooter. ¶13 Detective Webster of the Kalispell Police Department and Officer Struble briefly spoke with Wagoner once he arrived at the Logan Health emergency room. Wagoner told them Maas and Auclaire had stormed his house, pointed a gun at him, punched him, and wanted him to go to Luke’s house to get information about stolen property. Wagoner said he tried to get the men out of his apartment and was shot in the back. Wagoner was then life-flighted to Harborview Medical Center in Seattle, Washington. ¶14 That same day, Wagoner’s brother, Wade Wagoner (Wade), received a phone call from a trauma surgeon at Harborview informing him Wagoner was in critical condition, and it was questionable whether Wagoner would survive. Wade traveled to Washington to visit Wagoner after his first surgery. While speaking with his brother, Wagoner explained he had awakened to someone choking him and another person beating him, there was a dispute about a car title, Maas and Auclaire made him go with them, and as they were headed up the stairs to leave, Wagoner grabbed a bat to defend himself since they were going somewhere. Wagoner said when he got to the top of the stairs there was a “crack,” and it felt like a hot poker. On or around March 17, 2022, another one of Wagoner’s brothers, Braidy Yargus (Yargus), visited him at Harborview. Wagoner explained what had happened the night he was shot, recounting information akin to what he told Wade with the addition that Maas was the one who shot him. 6 ¶15 On March 14, 2022, while Wagoner was at Harborview, Detective Webster spoke with him again over the phone. During this call, Wagoner was frustrated and emotional as he told the detective Maas and Auclaire had come into his house while he was on his bed, Maas pointed a gun at his head, and Auclaire put him in a choke hold while Maas punched him. Wagoner volunteered to take them to Luke’s house to prove he did not steal the property at issue, and he grabbed a bat for protection. Wagoner stated he was walking up the stairs when Maas shot him. ¶16 On March 14, 2022, Detective Webster also interviewed Maas, who admitted he took his gun into Wagoner’s house to confront him about the stolen property. Maas also admitted he immediately pointed his gun at Wagoner, but claimed he put the gun away once Auclaire grabbed Wagoner. Maas claimed he took his gun out again because Wagoner had a bat and ran after Auclaire. Maas then admitted to shooting Wagoner with his Glock 48 and fleeing the scene with Auclaire. ¶17 Maas discussed the conflict with Timberli Veyna (Veyna), his daughter’s mother, shortly after bonding out of jail on the initial charges in this case. Maas told Veyna that Wagoner had run after Auclaire with a bat but had not hit him with the bat. Maas stated he planned to “claim” self-defense. Maas also told Veyna he was mad at Wagoner and Wagoner “deserved it.” ¶18 Maas’s bullet entered Wagoner’s back, fractured his spine, damaged his spinal cord, and came to rest near his aorta. The bullet caused considerable damage to Wagoner’s lower extremities, paralyzing Wagoner’s legs and causing a blood infection. Wagoner died on April 14, 2022. 7  STANDARD OF REVIEW ¶19 This Court exercises plenary review of constitutional questions, and it reviews a district court’s interpretation of the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution de novo. State v. Mercier, 2021 MT 12, ¶ 11, 403 Mont. 34, 479 P.3d 967 (internal citations omitted). A district court has broad discretion when determining admissibility of evidence; however, this discretion must be guided by the Rules of Evidence, applicable statutes, and principles of law. State v. Zimmerman, 2018 MT 94, ¶ 13, 391 Mont. 210, 417 P.3d 289 (internal citations omitted). Evidentiary rulings by the district court are reviewed for abuse of discretion. Mercier, ¶ 12 (internal citations omitted). The district court abuses its discretion if it acts arbitrarily and without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. Mercier, ¶ 12 (internal citations omitted). However, to the extent the district court’s ruling is based on its interpretation of an evidentiary rule, we review de novo. State v. Donahue, 2025 MT 144, ¶ 9, 423 Mont. 1, 571 P.3d 1068. An erroneous evidentiary ruling only constitutes reversible error if a party’s substantial rights are affected. M. R. Evid. 103. DISCUSSION ¶20 Issue One: Whether Maas was denied his right to confront witnesses under the United States and Montana Constitutions when the District Court admitted statements made by Wagoner before his death. ¶21 The Sixth Amendment’s Confrontation Clause is binding on the states through the Fourteenth Amendment and provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amends. VI, 8 XIV. Similarly, Article II, Section 24, of the Montana Constitution protects a criminal defendant’s right to “meet the witnesses against him face to face.” “There are two founding era exceptions to the Confrontation Clause: dying declarations and forfeiture by wrongdoing.” State v. Martinez, 2023 MT 251, ¶ 35, 414 Mont. 340, 545 P.3d 652 (McGrath, C.J., specially concurring) (citing Giles v. California, 554 U.S. 353, 358-59, 128 S. Ct. 2678, 2682-83 (2008)); see also State v. Hogues, 2024 MT 304, ¶ 28, 419 Mont. 322, 561 P.3d 1 (citing Ohio v. Clark, 576 U.S. 237, 243, 245-46, 135 S. Ct. 2173, 2179-80 (2015); Crawford v. Washington, 541 U.S. 36, 56 n.6, 124 S. Ct. 1354, 1367 (2004) (noting “dying declarations” as an example of a Framers-era exception to the common law principle embodied in Sixth Amendment)). ¶22 Whether the admission of a hearsay statement implicates the right to confrontation depends on whether the statement is nontestimonial or testimonial. State v. Johnson, 2024 MT 306, ¶ 21, 419 Mont. 366, 560 P.3d 1219 (internal citations omitted). Admission of a testimonial hearsay statement implicates a defendant’s confrontation rights and is only proper if the defendant had a prior opportunity to cross-examine the declarant who is now unavailable to appear at trial. Johnson, ¶ 21 (internal citations omitted). If the hearsay statement is nontestimonial, it is subject to regulation by hearsay laws, but the Confrontation Clause does not apply. State v. Tome, 2021 MT 229, ¶ 28, 405 Mont. 292, 495 P.3d 54 (citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374). ¶23 To determine whether statements are testimonial or nontestimonial, we apply the “primary purpose test” which asks if “in light of all the circumstances, viewed objectively, the primary purpose of the statement was to create an out-of-court substitute for trial 9 testimony.” State v. Hillious, 2025 MT 53, ¶ 55, 421 Mont. 72, 565 P.3d 1218 (internal citations omitted; internal quotations omitted). We have followed United States Supreme Court holdings that a statement is presumed nontestimonial if it is “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.” Hillious, ¶ 57 (citing Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006)); accord State v. Mizenko, 2006 MT 11, ¶ 23, 330 Mont. 299, 127 P.3d 458 (holding statements to police officers or government agents are presumed nontestimonial if the declarant had an objective reason to believe the “statement would serve only to avert or mitigate an imminent or immediate danger and the agent who received the statement had no intent to create evidence”). A statement made to a non-government agent is generally nontestimonial unless the declarant had “clear reason to believe that the statement would be used in court as substantive evidence against the defendant . . . .” Mizenko, ¶ 23. We address each statement at issue in this case in turn. 1. Statements immediately following the shooting ¶24 Maas seemingly asserts on appeal that the admission of all statements by Wagoner violated his confrontation rights stating, “Gabriel Wagoner’s out-of-court statements were testimonial hearsay and should have been excluded from evidence,” but only specifically addresses a few of those statements in his argument. Maas failed to specifically object to the admissibility of any statements made by Wagoner between the shooting and his 10 transportation to the hospital.1 The State correctly argues this Court will not place “a district court in error for an action in which the appealing party acquiesced or actively participated.” Donahue, ¶ 31 (citing State v. Favel, 2015 MT 336, 381 Mont. 472, 362 P.3d 1126 (quoting State v. Reim, 2014 MT 108, ¶ 28, 374 Mont. 487, 323 P.3d 880)). However, each statement’s admissibility is relevant for analyzing harmless error under the “cumulative evidence test” discussed below. ¶25 Wagoner made a series of statements offering generally the same information immediately following the shooting. First, Weis, Wagoner’s neighbor who called 911 after the shooting, testified to Wagoner making the following statement while lying on the floor: STATE: And did you hear him say anything? WEIS: He shouted out the name of who had shot. STATE: Do you recall that name? WEIS: I believe it was Zack Maas. Second, Deputy Matthews testified to the following after responding to the shooting: STATE: Did the victim make any statements when he was laying there in the landing and you were attending to him? DEPUTY MATTHEWS: I believe he said Zackary Maas shot him. 1 In a Motion In Limine to the District Court, Maas moved the court to “prohibit the State from introducing any evidence, inquiring, referring to, or alluding to any statements made by the deceased, [] Wagoner.” Maas then conceded to admissibility of some of Wagoner’s statements in a notice to the court stating, “after further review, the Defendant concedes that the statements made by the deceased, [] Wagoner, immediately after the shooting at his residence on March 13, 2022, are admissible under Rule 803(1),(2) or (3) M.R. Evid. as a present sense impression, excited utterance or then existing state of mind. The Defendant does not object to testimony regarding these statements by the deceased’s neighbors, responding law enforcement personnel and responding medical personnel. The Defendant restates that all other statements made by Wagoner to law enforcement, hospital personnel, family members, friends, and other lay persons are testimonial in nature and therefore inadmissible.” 11 Lastly, Officer Struble testified to the following upon arriving at the scene: STATE: Did Gabe [Wagoner] make any statements while he was laying in that entryway landing? OFFICER STRUBLE: He stated that his stepson shot him in the back. STATE: Did he make any statements about believing he was dead? OFFICER STRUBLE: Yes, he did. STATE: Did you ask Gabe what happened? OFFICER STRUBLE: I did. STATE: And do you recall what he said? OFFICER STRUBLE: Something to the effect of they busted into my house or they broke into my house, and then Zack Maas, he was trying to get him out of his house, and he said, That’s when Zack Maas shot me in the back. The State offered into evidence and played Officer Struble’s body camera video capturing his response to Wagoner’s residence. The video captured the following exchange: WAGONER: They stormed into my house. OFFICER STRUBLE: Did you have the bat? WAGONER: I chased them out with the bat, and they shot me in the back. These statements, made while Wagoner was still at his residence, are nontestimonial statements made to mitigate imminent or immediate danger and their admissibility was conceded by Maas. Therefore, these statements were properly admitted by the District Court. 12  2. Statement made while in the ambulance ¶26 Next, we turn to the statement made by Wagoner while he was being transported to the hospital. Officer Struble accompanied Wagoner in the ambulance to “record any spontaneous statements he made, [such as a] dying declaration” and to “gather any more information that [he] could possibly get to identify a suspect.” Once in the ambulance, Officer Struble testified that Wagoner “blurt[ed] out ‘M-a-a-s is his last name,’” in response to the officers having trouble identifying the suspect’s last name. It is unclear whether Maas included this statement in his concession of admissibility to the District Court because it was not made at Wagoner’s residence. Yet Maas did not object to Officer Struble’s body camera video being admitted and played to the jury, so long as the admissible portion was limited to the time from Officer Struble’s arrival at the residence to the ambulance’s arrival at Logan Health. Regardless, this statement was made during an ongoing emergency.2 Although Officer Struble had left the scene, his intent to identify the suspect was likely still an attempt to mitigate imminent danger. Because the shooter was still at large, it was critical for the officers to attempt to bring him into custody as soon as possible to protect the public. For these reasons, this statement is nontestimonial and properly admitted by the District Court. 3. Statements made to Officer Struble and Detective Webster at Logan Health 2 The Confrontation Clause is not implicated by this statement because it was made during an ongoing emergency and was, therefore, nontestimonial. Accordingly, we do not reach the issue of whether this statement qualifies under the dying declaration exception to the Confrontation Clause. 13 ¶27 Once Wagoner arrived at Logan Health emergency room, Officer Struble and Detective Webster spoke with him further regarding the shooting. Maas asserts Officer Struble and Detective Webster’s testimony related to Wagoner’s statements are presumed testimonial by law under Mizenko. The State asserts these statements were made at a time when law enforcement officers had not yet apprehended the shooter, and therefore, there was still an ongoing emergency. ¶28 Officer Struble’s stated purpose of conversing with Wagoner after arrival at Logan Health was to “gather more information about where the suspect may go or may be” and “try to comfort him as much as [he] possibly could.” The substance of these conversations, in pertinent part, were as follows: STATE: And can you [Officer Struble] summarize what [Wagoner] said happened at his home? OFFICER STRUBLE: [Maas] and – he called him Jeremy or – didn’t know his last name, didn’t know much about him – stormed into his house. Jeremy, I think, grabbed him and [Maas] punched him up a few times, [Maas] had a gun. [Wagoner] chased them out of his house, and that’s when they shot him in the back. DEFENSE COUNSEL: And I believe [Wagoner] said that he chased them out with a baseball bat. OFFICER STRUBLE: I recall him saying that, yes. . . . STATE: And when you [Detective Webster] - - you briefly spoke to [Wagoner] for a couple minutes. Does that sound accurate? DETECTIVE WEBSTER: Yes. Just a few minutes. He was hard to understand and he was in a lot of pain. STATE: And what did he say? 14  DETECTIVE WEBSTER: He said that [Maas] and a kid named Jerum stormed his house, pointed a gun at him, and wanted him to go to a Luke’s house. STATE: Did [Wagoner] tell you why they wanted to go to this Luke’s house? DETECTIVE WEBSTER: To try to determine what happened with stolen property that [Maas] was accusing [Wagoner] of doing. STATE: Did [Wagoner] state that [Maas] had punched him? DETECTIVE WEBSTER: Yes. ¶29 Similarly to Wagoner’s statements in the ambulance, the statements made by Wagoner at the hospital were imperative to the officers’ ongoing pursuit of the shooter. These facts call for a different conclusion than in Martinez. There, we echoed our conclusion in Tome that statements made to SANE, police, and DPHHS child protection specialist were testimonial because “they were conducted as part of a police investigation where there was no ongoing emergency. . . .” Martinez, ¶ 26 (citing Tome, ¶ 35 (internal quotations omitted)). In the instant case, there was a clear ongoing emergency; a shooter was still at large after shooting a man in the back. Therefore, these statements were nontestimonial and properly admitted by the District Court.3 3 In its response to Maas’ Motion In Limine No. 3, the State conceded these statements were testimonial, but argued Maas had forfeited his right to confront Wagoner pursuant to Sanchez I where we held the forfeiture by wrongdoing doctrine did not require intent to silence the witness. State v. Sanchez, 2008 MT 27, 341 Mont. 240, 177 P.3d 444 (Sanchez I). The District Court relied on the State’s argument and admitted these statements under the forfeiture by wrongdoing doctrine. However, after this Court decided Sanchez I, the United States Supreme Court decided Giles which held the doctrine applies “only when the defendant engaged in conduct designed to prevent the witness from testifying” thereby making intent a required element. Giles, 554 U.S. at 359, 128 S. Ct. at 2683 (emphasis in original). The State now concedes this doctrine does not apply because there is no assertion that Maas shot Wagoner specifically to prevent him from testifying. During the motions hearing on this issue, the court refers to Gomez, but we presume 15  4. Statements to Wagoner’s brother, Braidy Yargus ¶30 After being life flighted to the Seattle hospital, Wagoner spoke with his brother, Yargus, on the phone and in person. Maas argues that Wagoner’s statements to Yargus are presumed testimonial because Yargus was in law enforcement. Yargus testified to the following: STATE: While at Harborview, did you have a conversation with [Wagoner] about the shooting? YARGUS: Yes. STATE: And what did he tell you? YARGUS: More than once, he would try and explain to me how it played out. More or less, he said that some people came into his house at four in the morning, give or take, roughing him up, beating him up, whatever the term was that he used, being aggressive with him. And he kind of came to and realized who it was and what was going on, and he fought back and kind of gained his control, or whatever, and then he said that he was presented with a firearm. And so he had a baseball bat somewhere on his wall behind him that he said that he grabbed, more or less. There was some kind of conversation about either a vehicle or a motorcycle, don’t know, some kind of transaction that happened between him and one of the individuals, and they wanted him to go somewhere with them. Then they want [sic] up the stairs. And he said somewhere along the stairs, before he got to the top of the stairs, he just heard a loud crack, and that was obviously when he got shot. Whoever was behind him, below him, had to walk over him to get out of there and leave. Then one of the neighbors in the adjoining apartments opened the door, called 911 and, obviously, EMS came. STATE: Did [Wagoner] ever tell you who shot him? YARGUS: Yes. An individual, Zack, I’m not sure if it’s Maas or Moss. STATE: And did you recognize that name? the court meant Sanchez as it later states at trial. Regardless, the District Court reached the correct result for the other reasons discussed. 16  YARGUS: Yeah. He kind of filled me in and said, “Remember Renae? It’s her son.” Maas’s assertion that these statements are presumed testimonial simply because Yargus was in law enforcement is misplaced. The reason statements may be presumed testimonial when the declarant is speaking to government agents is such that “a declarant should reasonably expect that the government will seek to use those statements at trial.” This is juxtaposed with statements made to non-government agents where there is “much less of an expectation that the government will make prosecutorial use of those statements.” Mizenko, ¶ 18. ¶31 Yargus is a supervisory border patrol agent who is responsible for teaching new agents at the academy. Yargus’s visit to his brother in the hospital was unrelated to his employment. Likewise, the nature of Yargus’s government employment was not related to potential prosecutorial use of the statements under the facts of this case. Therefore, we analyze this conversation as though Yargus was a non-government agent under the primary purpose test. The primary purpose of a conversation with a family member while the declarant is fighting for his life in a hospital bed is not likely to be creation of an out-of-court substitute for trial testimony. Here, Wagoner’s injuries were so severe that his brother traveled to Seattle to visit him in what came to be his last days. Wagoner’s statements to Yargus were nontestimonial. 5. Statement to Wagoner’s brother, Wade Wagoner 17 ¶32 After receiving a phone call from a trauma surgeon who stated Wagoner was in critical condition, Wagoner’s brother, Wade, came to visit him in the Seattle hospital. Wade provided the following testimony: STATE: Did [Wagoner] ever tell you how he became injured? WADE: Yes, ma’am. STATE: And what did he say? WADE: So, he said that there was a dispute, and he said -- he initially said that he woke up to somebody choking him and the other one beating him -- he couldn't recall which was which -- or something of that nature. And after some yelling and screaming, he -- they were taking him from there, is what he said, to go work out the issues of a title of a car or something of that nature. And he said [Auclaire] was in front of him, went up the stairs, and on his way out he grabbed a little tee ball bat and said, “If we’re going somewhere, I’m taking this with me for defense.” And then he said he got to the top of the stairs and he felt the hot poker and heard a crack, or vice versa, heard a crack and it felt like a hot poker. And he said then he heard a bunch of footsteps, and somebody kicked him in the head and they went running out. And that was the only time he spoke of it in my three and a half days. ¶33 Maas asserts that since Wagoner was familiar with the criminal justice system and Maas had been apprehended and charged with a crime while Wagoner was still alive, the statements were made with the knowledge they would be used against Maas. The State asserts the conversations with Wagoner’s brothers were personal, and there is no evidence to suggest they were made with the purpose of using them in the pending criminal case against Maas. Similarly to Wagoner’s statements to his brother Yargus, Wagoner’s statements to Wade were made after major surgery, and Wagoner expressed the fear that he was going to die. Wagoner “felt judged” and Wade told him, “he didn’t have to worry about that . . . he was safe, and [they] prayed.” These statements were personal statements 18 made to a family member in a time of crisis, and not with the intent of creating testimony. Accordingly, these statements were nontestimonial. 6. Statements made to Detective Webster at Harborview ¶34 Detective Webster spoke to Wagoner again over the phone while he was at Harborview in Seattle and testified to the following: STATE: And what did [Wagoner] tell you? DETECTIVE WEBSTER: He said - - he reiterated what happened. That [Maas] and [Auclaire] had come into his house, that he was on his bed, I believe, at first. That [Maas] pointed a gun at his head, that [Auclaire] put him in a choke hold, that [Maas] punched him. Then he wanted to take them to Luke’s house or show them -- show [Maas] that he didn’t have a part in this theft. And that he wanted to get a bat for protection at Luke’s house. And so [Auclaire] went up the stairs, then he went up the stairs, and then [Maas] shot him. STATE: When [Wagoner] -- when [Wagoner] was describing this choke hold that you just mentioned, did [Wagoner] state he was in the middle of [Auclaire] and [Maas]? DETECTIVE WEBSTER: Yes. STATE: Did [Wagoner] state he was not running up the stairs? DETECTIVE WEBSTER: He said he was walking. STATE: And with regards to grabbing the bat, did [Wagoner] give you the impression that the Defendant was present when [Wagoner] grabbed the bat in his room? DETECTIVE WEBSTER: Yes. These statements were made to a government agent the day after the shooting and the same day Maas was arrested. Therefore, there was no longer an ongoing emergency. In Johnson, we found a 911 caller’s opinion statement regarding the defendant’s intoxication and belief 19 she was about to drive under the influence of alcohol “functionally identical to any live, in-court testimony the State would have elicited from him on direct examination should he have been called to testify.” Johnson, ¶ 24 (internal citations omitted; internal quotations omitted). Here, the statements made to Detective Webster were similar to testimony that would have been elicited from Wagoner on direct examination had he survived to testify. Unlike statements made to his brothers, Wagoner’s statements to Detective Webster, an investigating law enforcement officer, were likely to be used in court. Since these statements do not fall under the ongoing emergency exception, they are presumed testimonial. The District Court erred in admitting these statements. ¶35 Issue Two: Whether the State demonstrated the error was harmless as to the justifiable use of force defense and the deliberate homicide conviction. ¶36 This Court will not reverse a conviction “unless the record shows that the defendant suffered prejudice by the improper admission of evidence.” State v. Henderson, 2026 MT 17, ¶ 24, 426 Mont. 200, 588 P.3d 1236 (internal citations omitted; internal quotations omitted). To determine whether the defendant’s right to a fair trial was prejudiced, this Court conducts a two-step analysis. Henderson, ¶ 24 (citing State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, 32 P.3d 735). We review errors by first determining if the error was a “structural” or “trial” error. State v. Mercier, 2021 MT 12, ¶ 30, 403 Mont. 34, 479 P.3d 967 (internal citations omitted). “Structural errors are those that affect the framework within which the trial proceeds, rather than simply an error in the trial process itself” whereas trial errors are those that “typically occur during the presentation of the case to the jury.” Mercier, ¶ 30 (internal citations omitted; internal quotations omitted). 20 “Structural errors are reversible and require no additional analysis for prejudice.” Mercier, ¶ 30 (internal citations omitted; internal quotations omitted). Trial errors are “amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial” and are subject to harmless error review. Van Kirk, ¶ 40 (citing Montana’s harmless error statute, § 46-20-701(1), MCA)). A deprivation of the right to confrontation is a trial error and is therefore subject to harmless error review. Mercier, ¶ 31 (internal citations omitted). ¶37 Our second necessary determination is whether the error was harmless under the circumstances. Henderson, ¶ 24 (citing Van Kirk, ¶¶ 40-43). The State must prove the error was harmless by demonstrating “there is no reasonable possibility that the inadmissible evidence might have contributed to the conviction.” Van Kirk, ¶ 47. Harmlessness must “be determined on the basis of the remaining evidence.” Mercier, ¶ 31 (internal citations omitted; internal quotations omitted). If the wrongly-admitted evidence was admitted to prove an element of the offense, the state must “direct us to the cumulative admissible evidence that proves the same facts as the tainted evidence and demonstrate that the quality of the tainted evidence was such that there was no reasonable possibility it might have contributed to the conviction.” State v. Santillan, 2017 MT 314, ¶ 35, 390 Mont. 25, 408 P.3d 130 (internal citations omitted). If the tainted evidence was not admitted to prove an element of the offense, the State need not demonstrate cumulative admissible evidence to prove the erroneous admission was harmless. Rather it must show “the quality of the tainted evidence was such that there was no reasonable possibility it might have contributed to the conviction.” State v. Derbyshire, 2009 MT 27, ¶ 47, 349 Mont. 114, 201 P.3d 811; 21 State v. Strizich, 2021 MT 306, ¶ 40, 406 Mont. 391, 499 P.3d 575. We consider ‘the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, [and] the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points[.]” Mercier, ¶ 31 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986).