                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

                    ODECE DEMPSEAN HILL, Appellant.

                              No. 1 CA-CR 12-0627
                               FILED 11-04-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-143399-001
                  The Honorable Connie Contes, Judge

                 JUDGMENT AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant

Odece Dempsean Hill, Florence
Appellant
                              STATE v. HILL
                            Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Diane M. Johnsen authored the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.


J O H N S E N, Chief Judge:

¶1             This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), following Odece Dempsean Hill's conviction of one count of first-
degree burglary, a Class 2 felony; four counts of kidnapping, Class 2
felonies; seven counts of sexual assault, Class 2 felonies; one count of
attempted sexual assault, a Class 3 felony; and four counts of aggravated
assault, Class 3 felonies. The court sentenced Hill to consecutive and
concurrent sentences of imprisonment totaling 91.5 years. Hill's counsel
searched the record on appeal and found no arguable question of law that
is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S.
738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel now asks
this court to search the record for fundamental error. Hill has filed a
supplemental brief identifying certain issues, which we address below.
After reviewing the entire record, we affirm Hill's convictions and
sentences, but modify the judgment of conviction to omit the requirement
that Hill pay for the cost of DNA testing.1

                               DISCUSSION

A.     Hill's Supplemental Brief.

       1.     Hearsay.

¶2           Hill argues a statement the now-deceased victim made to a
forensic nurse who testified at trial was hearsay admitted in violation of
Arizona Rules of Evidence 802 and 803. Because Hill objected to the


1      We directed counsel for Hill and for the State to file briefs concerning
whether his rights under the Confrontation Clause were violated by the
testimony of a forensic nurse who examined the victim of the sexual
assaults. See Penson v. Ohio, 488 U.S. 75, 86-88 (1988). We address that issue
in a separate opinion. See Ariz. R. Crim. P. 31.26.



                                      2
                              STATE v. HILL
                            Decision of the Court

statement's admission at trial and in limine, we review the superior court's
hearsay ruling for an abuse of discretion. See State v. Tucker, 205 Ariz. 157,
165, ¶ 41, 68 P.3d 110, 118 (2003).

¶3              Before trial, the State moved in limine to admit the victim's
statement to the nurse, arguing it fell within the exceptions to the rule
against hearsay applicable to an excited utterance, present sense impression
and statement made for medical diagnosis or treatment. See Ariz. R. Evid.
803(1), (2), (4). The court concluded the statement fell within "one or both
or all three" of the cited exceptions. On appeal, Hill argues only that the
excited-utterance exception did not apply, and therefore waives any
argument that the statement was admissible under the exception to the rule
against hearsay applicable to statements made for medical diagnosis or
treatment. Ariz. R. Evid. 803(4); see State v. Robinson, 153 Ariz. 191, 199, 735
P.2d 801, 809 (1987) (sexual assault victim's statements to practitioner
describing assault admissible under Rule 803(4)); State v. Lopez, 217 Ariz.
433, 436, ¶ 12, 175 P.3d 682, 685 (App. 2008) (victim's statements to nurse
performing a sexual assault examination admissible under same rule).

       2.     Best evidence rule.

¶4            Hill argues the superior court improperly admitted a
handwritten diagram of the mattress from which DNA samples were taken.
The diagram documented where biological evidence was located on the
mattress. The diagram, Hill contends, violates Arizona Rule of Evidence
1002, the best evidence rule, "because the original was available." There is
no merit to this contention. The best evidence rule applies only to situations
in which a party seeks to prove the terms of a writing, such as a contract,
and does not apply in this context. See State v. Smith, 122 Ariz. 58, 62, 593
P.2d 281, 285 (1979).

       3.     DNA evidence.

¶5              Hill raises various challenges to the DNA evidence admitted
at trial. First, he asserts the jury was improperly allowed to hear that the
DNA from his buccal swab was a perfect match to the DNA sample from
the mattress cuttings found at the scene. The DNA samples collected from
the cuttings, he argues, were degraded, making it impossible to get a perfect
match.

¶6             Hill, however, points to no evidence, scientific or otherwise,
to support his assertion that a perfect match cannot be obtained from a
degraded DNA sample. Indeed, some biochemical techniques are used
specifically to enable analysis of degraded DNA samples. See, e.g., State v.


                                       3
                              STATE v. HILL
                            Decision of the Court

Tankersley, 191 Ariz. 359, 362, ¶ 7, 956 P.2d 486, 489 (1998) ("[Polymerase
chain reaction] is a process for reproducing a short segment of DNA
millions of times, making it possible to analyze minute or degraded
samples."), abrogated on other grounds by State v. Machado, 226 Ariz. 281, 283,
¶¶ 11-13, 246 P.3d 632, 634 (2011). Moreover, the forensic analyst who
testified at trial told the jury that the sample that was tested was degraded
and that, sometimes, with degraded samples, a full DNA profile may not
be obtained. The analyst testified she was able to obtain a profile from three
out of the seven mattress samples, but that testimony did not amount to
providing the jury with misinformation. See State v. Gulbrandson, 184 Ariz.
46, 65, 906 P.2d 579, 598 (1995) (reviewing court does not substitute its
judgment for that of the jury and does not reweigh evidence).

¶7            Next, Hill argues that his due process rights were violated
because he was not allowed an independent "secondary DNA analysis."
The record does not support this assertion. At trial, the investigating officer
testified that samples of DNA evidence were forwarded to Hill to
independently test; the record demonstrates that Hill, in fact, did
independently test such evidence.

¶8             Finally, Hill contends that "the impound record of evidence
collected at the crime scene was forged." Specifically, he points to the fact
that the detective's name is listed as the officer who submitted all evidence
collected from the apartment, despite the fact that she testified at trial that
she did not submit or impound any evidence from the crime scene. Hill's
argument is not entirely clear; he does not identify a ruling by the superior
court he intends to challenge. He does argue, however, that the evidence
was "unreliabl[e]" and may not have been "true and correct." We interpret
this argument as a challenge to the admissibility of all evidence collected
from the crime scene - including the mattress cuttings from which Hill's
DNA was extracted - due to a deficiency in the chain of custody or a lack of
adequate foundation.

¶9            Normally, "[a] trial court's conclusion that evidence has an
adequate foundation is reviewed for an abuse of discretion." State v.
McCray, 218 Ariz. 252, 256, ¶ 8, 183 P.3d 503, 507 (2008). In this case,
however, Hill did not object to the evidence, and we therefore review its
admission for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005).

¶10          Whether sufficient foundation exists is governed by Arizona
Rule of Evidence 901(a). State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343
(1991). The rule provides: "To satisfy the requirement of authenticating or


                                      4
                              STATE v. HILL
                            Decision of the Court

identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it
is." Ariz. R. Evid. 901(a). Authentication based on a chain of custody only
requires "continuity of possession"; the proponent of the evidence need not
disprove every possibility of tampering. McCray, 218 Ariz. at 256, ¶ 9, 183
P.3d at 507 (internal quotations omitted); see also Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 336 (2009) (law does not require in-court
testimony from each human link in chain of custody). Evidence may be
admitted "notwithstanding the inability of the state to show a continuous
chain of custody . . . unless a defendant can offer proof of actual change in
the evidence, or show that the evidence has, indeed, been tampered with."
State v. Ritchey, 107 Ariz. 552, 557, 490 P.2d 558, 563 (1971).

¶11             Hill has not presented any information suggesting a
likelihood the evidence was tampered with. In fact, Hill stipulated at trial
that "the items tested at the lab [were] the same items taken from the crime
scene . . . ." Even apart from the stipulation, the record contains evidence
of an adequate chain of custody. The detective testified the scene was
secured prior to the investigation and that all evidence collected there was
recorded. A forensic investigator testified she collected the mattress cover
from the apartment, which was later cut, and a DNA analyst confirmed that
these cuttings were properly sealed, labeled and initialed when she
retrieved the items to test. Moreover, to the extent evidence of this chain of
custody conflicts with other evidence, such "concerns go to the weight
rather than the admissibility of the evidence." McCray, 218 Ariz. at 257, ¶
15, 183 P.3d at 508; see also State v. Morales, 170 Ariz. 360, 365, 824 P.2d 756,
761 (App. 1991). We therefore find no error, much less fundamental error,
in the superior court's decision to admit evidence that Hill's DNA was
found on material collected from the apartment.

B.     Due Process Review.

¶12            The record reflects Hill received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages, with the exception of the first day of voir dire,
for which his counsel waived his presence. Pursuant to Arizona Rule of
Evidence 609, the court held a hearing on Hill's prior convictions and
allowed him to be impeached with sanitized evidence of his prior felony
conviction. The court did not conduct a voluntariness hearing, but the
record did not suggest a question about the voluntariness of Hill's
statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743
(1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974).



                                       5
                             STATE v. HILL
                           Decision of the Court

¶13            The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
12 members. The court properly instructed the jury on the elements of the
charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict which was confirmed by
juror polling. The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed legal
sentences for the crimes of which Hill was convicted.

¶14           Our review reveals that in sentencing Hill, the superior court
ordered Hill to "submit to DNA testing for law enforcement identification
purposes and pay the applicable fee for the cost of that testing." In State v.
Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held
that Arizona Revised Statutes section 13-610 (2013), which authorizes the
collection of DNA samples for certain law enforcement purposes, does not
authorize the court to impose a DNA testing fee on a convicted defendant.
We therefore hold that pursuant to Reyes, which was issued after Hill was
sentenced, the court erred by imposing the fee, and we modify the
judgment of conviction to omit the requirement that Hill pay for the cost of
DNA testing.

                              CONCLUSION

¶15          We have reviewed the entire record for reversible error, and,
with the exception of the requirement that Hill pay for DNA testing, we
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.

¶16          After the filing of this decision, defense counsel's obligations
pertaining to Hill's representation in this appeal have ended. Defense
counsel need do no more than inform Hill of the outcome of this appeal and




                                      6
                             STATE v. HILL
                           Decision of the Court

his future options, unless, upon review, counsel finds "an issue appropriate
for submission" to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the
court's own motion, Hill has 30 days from the date of this decision to
proceed, if he wishes, with a pro per motion for reconsideration. Hill has 30
days from the date of this decision to proceed, with a pro per petition for
review.




                                :gsh




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