                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   SARAH ISABEL ROMNEY, Appellant.

                             No. 1 CA-CR 16-0326
                               FILED 6-15-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR 2014-132330-001
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                           STATE v. ROMNEY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1          Sarah Romney appeals her conviction and sentence for
manslaughter. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             While responding to a 911 call about a vehicle rollover,
Officers Buckwalter and Aldridge received conflicting reports about the
number of passengers involved, with some information suggesting two
people might still be trapped in the vehicle. Upon arriving at the scene,
the officers saw a car off the roadway on its roof; Romney and D.H. were
outside the vehicle. After a brief search for other occupants, Aldridge
asked D.H. several questions, including who had been driving and
whether D.H. was wearing his seat belt. D.H. stated that Romney was
driving and that he had been wearing his seat belt. In a separate
interview, though, Romney told Buckwalter that she was not driving.2
Romney and D.H. were transported to the hospital.

¶3             Officers determined that the driver’s seat belt “was locked in
an unused position and the passenger’s was locked in a used position.”
This indicated that, at the time of the collision, the driver’s seat belt was
not in use, while the passenger was wearing the seat belt. D.H. had marks
indicative of wearing a seat belt, including a “distinct mark across his
abdomen” that “was consistent with the size, width, [and] direction of a
lap belt of a seat belt.”




1      We view the facts in the light most favorable to upholding the
jury’s verdict. State v. Alvarez, 213 Ariz. 467, 468, ¶ 3 (App. 2006).

2     Romney later told Aldridge and a detective she did not know who
was driving.



                                     2
                           STATE v. ROMNEY
                           Decision of the Court

¶4           At the hospital, officers learned that both Romney and D.H.
had alcohol in their systems and decided at that point “to determine who
the driver was and who it wasn’t because we have a crime involved.”
Officers could not speak with D.H. because he was intubated. Romney
was uncooperative. A search warrant was obtained to draw Romney’s
blood. Testing revealed a blood alcohol content (“BAC”) of .229.3

¶5          D.H. died several days later. Romney was charged with
manslaughter.

¶6            Romney moved to preclude the admission of D.H.’s
statements to Aldridge. The court deferred ruling on the motion until
trial. During trial, outside the jury’s presence, Aldridge testified about his
conversation with D.H. The court ruled that D.H. was “very upset and in
pain and appeared to be very affected by what had just occurred” and that
his statements qualified as excited utterances. The court further found
that a short period of time elapsed between the accident and the
questioning, that the incident “was not subject to a criminal investigation”
when Aldridge spoke with D.H., that the officer needed “to investigate
and find out what happened,” and that D.H.’s statements were not
testimonial. Aldridge thereafter testified before the jury about his
conversation with D.H.

¶7            The jury found Romney guilty of manslaughter. We have
jurisdiction over her timely appeal pursuant to Arizona Revised Statutes
section 13-4033(A)(1).

                               DISCUSSION

¶8             Romney contends the admission of D.H.’s statements at trial
violated her rights under the Confrontation Clause of the Sixth
Amendment. We review alleged Confrontation Clause violations de novo.
State v. King, 212 Ariz. 372, 375, ¶ 16 (App. 2006).

¶9            The Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004).
Nontestimonial statements include those “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

3      D.H.’s BAC was .045.



                                      3
                          STATE v. ROMNEY
                          Decision of the Court

ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006). A
statement is 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.

¶10           When officers arrived at the scene, there was “a lot of
activity,” with medical personnel and concerned citizens present, as well
as emergency vehicles and traffic control issues. The officers’ “first
concern” was to determine who was involved in the rollover. Aldridge
spoke with D.H. within five minutes of his arrival. The conversation
occurred on an embankment where D.H. was receiving medical attention.
Aldridge had no indication at that point that alcohol was a factor in the
accident. He was attempting to determine what happened, who might
need help, and whether others were involved or injured. Aldridge
testified:

      Well, initially I asked [D.H.] kind of a general question. I
      always ask when you come upon a collision, you know,
      what happened. He said that they had gone off the road.

      And then I started asking him some specific questions. I
      asked him who was driving the car. He said that Miss
      Romney was driving the vehicle.

      I asked him if he remembered why the vehicle left the
      roadway. He said he didn’t remember why the vehicle left
      the roadway.

      I asked him if he was wearing a seat belt. He said he was
      wearing his seat belt.

      ...

      I asked him what the purpose of their trip was for coming
      down south, and he said that they were coming down from
      Snowflake or Taylor area to celebrate.

      And I asked what his relation was to the woman occupant.
      He said that she was his girlfriend. I asked him how long
      they’d been dating. He said they’d been dating about three
      years.




                                    4
                          STATE v. ROMNEY
                          Decision of the Court

      These questions were asked intermittently because medical
      was attending to him at the same time because he was
      complaining of pain in his midsection and also difficulty
      breathing. So, as I would ask him a question, medical would
      ask him a question. We never step on each other’s toes, but
      that way I can still conduct my investigation, try to figure
      out what happened, and they can still get the pertinent
      information.

Aldridge testified that when he spoke with D.H., he had “no indication he
might have been DUI or there might have been some mitigating criminal
circumstances in the collision.”

¶11           Based on the evidence presented, the superior court properly
ruled that D.H.’s statements at the scene were nontestimonial. Aldridge
was not aware of any criminal implications associated with the accident
and did not know that either D.H. or Romney had been drinking. The
court could reasonably conclude that the officer’s primary purpose in
questioning D.H. was to determine the proper law enforcement response
to the ongoing emergency situation, not to gain information aimed at
criminal prosecution. Cf. Davis, 547 U.S. at 832 (Various exigencies at the
scene “may often mean that ‘initial inquiries’ produce nontestimonial
statements.”).

                             CONCLUSION

¶12           For the foregoing reasons, we affirm Romney’s conviction
and sentence.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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