                                                                 FILED BY CLERK
                           IN THE COURT OF APPEALS                   JUN 29 2007
                               STATE OF ARIZONA                      COURT OF APPEALS
                                 DIVISION TWO                          DIVISION TWO


THE STATE OF ARIZONA,                      )
                                           )
                              Appellee,    )        2 CA-CR 2006-0324
                                           )        DEPARTMENT A
                   v.                      )
                                           )        OPINION
MICAH S. BENNETT,                          )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20060152

                          Honorable Edgar B. Acuña, Judge

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Eric J. Olsson                                     Tucson
                                                            Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Robb P. Holmes                                                         Tucson
                                                            Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            A jury found appellant Micah S. Bennett guilty of aggravated driving under

the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol

concentration of .08 or more, both while his driver’s license was suspended and revoked,1

and fleeing from a law enforcement vehicle. After finding that Bennett had two prior

aggravated DUI convictions, the trial court sentenced him to enhanced, concurrent,

presumptive prison terms, the longest of which were ten-year terms. The sole issue Bennett

raises in this appeal is whether the admission of records of his prior convictions without

testimony from the person who had prepared them and signed the attached authenticating

affidavit2 violated his rights under the Confrontation Clause of the Sixth Amendment3 as

explained in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Finding no

violation of Bennett’s Confrontation Clause rights, we affirm.

¶2            The facts underlying Bennett’s convictions are not relevant to the issue raised

in this appeal. Thus, we do not set them out here. The state alleged at the commencement

of the case, pursuant to A.R.S. § 13-604, that Bennett had two prior felony convictions for

sentence enhancement purposes. “In order to prove a prior conviction, the state must submit

       1
        The parties stipulated that Bennett’s license was both suspended and revoked on the
date of the offenses.
       2
       It appears that one person, a correctional records clerk, prepared at least some of the
records, while a different person, a correctional records supervisor, signed the affidavit
attached to all the records.

       The Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the
       3

accused shall enjoy the right to . . . be confronted with the witnesses against him.” U.S.
Const. amend. VI.

                                              2
positive identification establishing that the accused is the same person who previously was

convicted, as well as evidence of the conviction itself.” State v. Cons, 208 Ariz. 409, ¶ 16,

94 P.3d 609, 615 (App. 2004).

¶3            At the bench trial on the allegations of Bennett’s prior convictions, the state

offered into evidence an exhibit comprised of an “automated summary report,” which

contained identifying information about Bennett and reflected convictions in two different

Pima County cause numbers; Bennett’s photographs; and his fingerprint record, all attached

to an affidavit from a correctional records supervisor attesting the documents were true and

correct copies of documents contained in the Arizona Department of Corrections (DOC)

master record file. 4 Bennett objected, arguing the affidavit attached to the records was

inadmissible because it was testimonial and, thus, “violates Crawford.” The trial court

overruled the objection and admitted the exhibit.5 Bennett argues on appeal this ruling was

erroneous.




       4
       Certified copies of public records are self-authenticating under Rule 902(4), Ariz.
R. Evid., 17A A.R.S., as long as they bear the required certification. Bennett does not
challenge the affidavit or the records on authenticity grounds.
       5
        In conjunction with this exhibit, which the state used to establish Bennett’s identity
as the same person with the prior convictions, the state also offered into evidence certified
copies of court records as evidence of Bennett’s prior convictions themselves. Bennett
objected to the court records on the ground “the validation of the seal itself [w]as not
complete” and, therefore, the certifying deputy clerk “should be called in to testify” that he
had indeed certified the records. The trial court overruled that objection and admitted the
exhibit comprised of the court records. Bennett does not reurge that argument on appeal,
and he did not challenge those documents on Confrontation Clause grounds.

                                              3
¶4            We generally review a trial court’s ruling on the admissibility of evidence for

a clear abuse of discretion. State v. King, 213 Ariz. 632, ¶ 15, 146 P.3d 1274, 1278 (App.

2006). However, we review de novo challenges to admissibility based on the Confrontation

Clause. Id. As this court recently noted in King, the Supreme Court in Crawford “held that

the Confrontation Clause prohibits the admission of testimonial evidence from a declarant

who does not appear at trial unless the declarant is unavailable and the defendant had a

prior opportunity to cross-examine the declarant.” 213 Ariz. 632, ¶ 17, 146 P.3d at 1279,

citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.

¶5            The Court in Crawford declined “to spell out a comprehensive definition of

‘testimonial.’” 541 U.S. at 68, 124 S. Ct. at 1374. However, the Court described testimony

as “typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or

proving some fact.’” Id. at 51, 124 S. Ct. at 1364, quoting 2 Noah Webster, An American

Dictionary of the English Language (1828). Crawford further described the “core class

of ‘testimonial’ statements” as those “pretrial statements that declarants would reasonably

expect to be used prosecutorially.” Id. We held in King that prior conviction records are

not testimonial because “[c]onvictions are not recorded exclusively in anticipation of future

litigation for the purpose of establishing facts contained in those records.” 213 Ariz. 632,

¶ 24, 146 P.3d at 1280. To the extent Bennett suggests that King was wrongly decided, we

decline to revisit our holding in that case.




                                               4
¶6            This does not end our inquiry however, because Bennett also asserts that his

case is distinguishable from King because “the affidavit authenticating his prior conviction

documents was testimonial in nature.” He points to the language in Crawford describing

testimony as “‘extrajudicial statements . . . contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or confessions.’” 541 U.S. at 51-52, 124 S.

Ct. at 1364, quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747 (1992)

(Thomas, J., concurring in part and concurring in judgment). Although we did not address

this argument in King, there we did cite with approval the finding in People v. Shreck, 107

P.3d 1048, 1060-61 (Colo. Ct. App. 2004), that affidavits accompanying documents

showing a defendant’s prior convictions are not testimonial statements. 213 Ariz. 632, ¶ 20,

146 P.3d at 1279. The court in Shreck noted:

              Crawford applies to out-of-court statements by witnesses who
              would have testified at trial to past events or facts, but are
              attempting to testify ex parte through an affidavit in lieu of live
              testimony. In contrast, the affidavits at issue here were provided
              solely to verify the chain of custody and authenticity of the
              underlying documentary evidence. It is the underlying
              documentary evidence, and not the authenticating affidavits,
              that reference (and are thus used to prove) the facts material to
              habitual criminal proceedings, namely, a defendant’s prior
              convictions.

107 P.3d at 1060-61 (citation omitted).

¶7            Similarly, the affidavit at issue here, which contained the preparer’s attestation

that the attached documents were “true and correct copies of original and/or original

certified documents now contained in the master record file” of the DOC merely “verif[ies]

                                              5
the chain of custody and authenticity of the underlying documentary evidence.” Id. at 1061.

The attached documents, not the affidavit, are what prove Bennett’s prior convictions. In

Bohsancurt v. Eisenberg, 212 Ariz. 182, ¶¶ 32-34, 129 P.3d 471, 480 (App. 2006), we

rejected a similar argument about whether the affidavits attached to maintenance and

calibration records for a breath-testing machine rendered the records testimonial. We found

they did not, noting the affidavits with which Crawford seemed to be concerned were those

that “resemble[d] a sworn memorialization of statements elicited ex parte to inculpate a

defendant.” 212 Ariz. 182, ¶ 33, 129 P.3d at 480. Like the affidavits in Bohsancurt, the

affidavit here was not “created to formalize statements made at the behest of a party to

document specific facts of a case. Rather, [it was] signed and completed in the ordinary

course of business, solely in connection with the [underlying documents] themselves.”6 Id.

¶ 34. Under these circumstances the affidavit accompanying the documents showing

Bennett’s prior convictions is not testimonial under Crawford.

¶8            And, the fact that the documents proving Bennett’s prior convictions were

attached to an affidavit attesting to their authenticity does not render the documents

themselves testimonial. Because the records and affidavit were not testimonial, Bennett’s

rights under the Confrontation Clause were not violated by their admission without the


       6
        We acknowledge that the affidavit at issue here, unlike the ones in Bohsancurt v.
Eisenberg, 212 Ariz. 182, ¶ 34, 129 P.3d 471, 480 (App. 2006), does “have a relationship
to [a] specific case or defendant.” However, as we noted in State v. King, 213 Ariz. 632,
¶ 23, 146 P.3d 1274, 1280 (App. 2006), “not every record pertaining to a specific individual
is necessarily testimonial.”

                                             6
testimony of the persons who had prepared the records and signed the affidavit. Bennett’s

convictions and sentences are therefore affirmed.




                                            ____________________________________
                                            GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
JOSEPH W. HOWARD, Presiding Judge




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