                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                    CARLOS JUAN ORONA, Appellant.

                             No. 1 CA-CR 16-0699
                               FILED 10-5-2017


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400974
             The Honorable Steven F. Conn, Judge, Retired

                                  AFFIRMED


                                   COUNSEL

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

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant



                       MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie joined.
                            STATE v. ORONA
                           Decision of the Court

B R O W N, Judge:

¶1             Carlos Juan Orona appeals the superior court's order granting
the State's petition to revoke his probation. He argues the court improperly
relied on unreliable hearsay testimony. For the following reasons, we
affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           In October 2014, Orona pled guilty to possession of drug
paraphernalia, a Class 6 felony, and was sentenced to three years'
supervised probation. Condition one of the uniform probation conditions
stated that Orona would "maintain a crime-free lifestyle by obeying all
laws, and not engaging or participating in any criminal activity."

¶3            In November 2015, the State filed a petition to revoke Orona's
probation, alleging he violated five conditions. In March 2016, the State
supplemented the petition, alleging that Orona violated three additional
probation conditions, including condition one, based on an alleged assault
committed in February 2016. Orona denied the allegations.

¶4            At the outset of the probation violation hearing, and at the
State's request, the superior court dismissed one of the alleged violations.
The prosecutor then explained that the victim of the alleged assault had
been contacted that morning but would not be present to testify due to "car
trouble."

¶5             Deputy Williams testified that according to a sheriff's report,
Deputy Martin responded to a delayed assault call around 9:05 a.m. on
February 11, 2016, and spoke with the victim of the alleged assault. The
victim described a verbal dispute that occurred between himself and his
neighbor (Orona) over a "damaged fence line" the previous day at about
5:00 p.m. The victim also explained that the dispute ended when the victim
and his child retreated to their home after Orona punched the victim, giving
him a bloody nose and some scratches.

¶6            Williams further testified that Martin observed two small
scratches on the victim's face, one to the right of his nose and the other
above his right eye. Martin did not observe any swelling or bleeding.
Martin also took pictures of the victim's injuries but they were not
presented to the court.

¶7          Orona did not object to any portion of Williams's testimony.
Orona's counsel cross-examined Williams, but Orona did not testify at the


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                            Decision of the Court

hearing or present any additional evidence. During closing arguments,
Orona's counsel argued that the State did not meet its burden of proof, but
made no mention of the reliability of the double hearsay testimony.

¶8           Noting that Williams's double hearsay testimony was reliable
pursuant to Arizona Rule of Criminal Procedure 27.8(b)(3), the superior
court found that the State "just barely got over the bar" for proving that
Orona violated condition one.1 The court also found that the State failed to
prove any of the other alleged probation violations. The court then
reinstated Orona's supervised probation, extending his probation to
September 2018, and this timely appeal followed.

                               DISCUSSION

¶9            Orona argues that Williams's double hearsay testimony was
unreliable because Williams did not hear the victim's statement, and the
victim was Orona's accuser. Orona, however, failed to object to Williams's
testimony in the superior court and therefore waived this argument unless
he can show the court committed fundamental error by failing to disregard
the evidence. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) ("[W]e place
the burden of persuasion in fundamental error review on the defendant.").
An error is fundamental if it goes to the foundation of the case, takes from
the defendant a right essential to his defense, or is of such magnitude that
the defendant could not possibly have received a fair trial. Id. at ¶ 20
(citations omitted). Additionally, the defendant must show that the error
was prejudicial. Id.

¶10            In a probation violation hearing, "[t]he court may receive any
reliable evidence not legally privileged, including hearsay." Ariz. R. Crim.
P. 27.8(b)(3). Hearsay is reliable when it is "trustworthy," and is permitted
in probation violation hearings "where, in the sound discretion of the trial
court, the circumstances are such as to afford a reasonable assurance of the
truthfulness of the hearsay." State v. Stotts, 144 Ariz. 72, 82 (1985) (citation
omitted). The hearsay declarant's identity and level on the hearsay ladder
are relevant factors in determining trustworthiness. State v. Portis, 187 Ariz.


1       Hearsay is an out-of-court statement offered to "prove the truth of
the matter asserted in the statement." Ariz. R. Evid. 801(c). Williams
testified about the contents of a sheriff's report, which contained statements
from the alleged assault victim. The victim's statements, which accused
Orona of assault, were offered to prove that Orona committed the assault.
Both the report and statements constitute hearsay and therefore, we refer to
Williams's testimony as "double hearsay."


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                             STATE v. ORONA
                            Decision of the Court

336, 339 (App. 1996). And "[w]hen the reliability of such hearsay evidence
goes unchallenged at a probation revocation hearing, the evidence is
normally considered reliable." Stotts, 144 Ariz. at 82.

¶11          In State v. Salinas, 23 Ariz. App. 232 (1975), the superior court
revoked the defendant's probation based solely on a probation officer's
hearsay testimony. 23 Ariz. App. at 232-34. The officer testified that
another probation officer told him the defendant admitted to violating the
probation conditions. Id. at 233. On appeal, we explained that the officer's
unchallenged testimony regarding "communications and records within
the probation department would normally be considered reliable
information." Id. at 234. Instead of challenging the hearsay by testifying,
cross-examining the probation officer, or calling any witnesses, the
defendant relied only on his hearsay objection to the probation officer's
testimony. Id. We therefore affirmed the court's order revoking the
defendant's probation. Id.

¶12           Like the internal communications and records of the
probation department in Salinas, the sheriff's report (the first level of
hearsay in this case) was reliable as an internal communication and record
within the sheriff's office. Although Orona cross-examined Williams,
nothing in that exchange suggests the sheriff's report was unreliable
communication.2 Thus, the superior court did not commit error, much less
fundamental error, in finding the sheriff's report reliable.

¶13            On the other hand, the reliability of the second level of
hearsay—the victim's statements regarding the alleged assault—was
challenged during cross-examination. Orona's counsel focused on the fact
that Deputy Martin responded to the delayed assault call at a different
location than where the alleged assault occurred. It is also apparent from
Williams's direct testimony that the victim had a dispute with Orona, his
neighbor, over a damaged fence line, and the victim may thus have had a
motive to falsely accuse Orona of punching him. Williams also testified that
Martin did not observe any swelling or remnants of a bloody nose, and that
the victim did not give his statement to Martin until about sixteen hours
after the alleged assault occurred. Without any other evidence, and given
that the victim was second on the hearsay ladder, the circumstances

2       The only issues raised on cross-examination related to the location
of the alleged assault, the fact that the deputy testifying was not involved
in the investigation of the assault, observations of the victim's injuries, the
victim's statements regarding his injuries, and the pictures showing the
victim's injuries.


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                            STATE v. ORONA
                           Decision of the Court

surrounding the victim's statement to the deputy suggest that the victim's
statements may lack a reasonable assurance of truthfulness. See Stotts, 144
Ariz. at 82.

¶14           Other evidence, however, supports a finding of reliability.
Williams testified that the police report noted there were two small
scratches on the victim's face, one to the right of his nose and the other
above his right eye. Because the superior court did not err in finding the
sheriff's report reliable, as explained above, Martin's observations in his
report about the scratches on the victim's face corroborate the victim's
statement that he was punched in the face. With this corroborating
evidence, we conclude there is a reasonable assurance that the hearsay was
truthful. Thus, although the better practice would have been to postpone
the hearing to a time when the victim could testify, the court did not
fundamentally err in finding the victim's statements reliable.

¶15          Orona also argues the superior court based its finding that he
violated condition one on insufficient evidence. Essentially, he argues the
evidence is insufficient because the only evidence of the violation was
Williams's double hearsay testimony.

¶16          In a probation violation hearing, the State is required to prove
a probation violation occurred "by a preponderance of the evidence." Ariz.
R. Crim. P. 27.8(b)(3). On review, we will uphold the finding that Orona
violated condition one "unless that finding is arbitrary and unsupported by
any theory of the evidence." Stotts, 144 Ariz. at 79.

¶17          The superior court found that Orona violated condition one
by a preponderance of the evidence based on Williams's uncontradicted
testimony, albeit based solely on hearsay. A court may revoke probation
"based exclusively on hearsay testimony." State v. Belcher, 111 Ariz. 580, 582
(1975). Because Williams's testimony provided sufficient evidence that
Orona committed an assault against the victim, the court's finding that he
violated condition one is supported by the evidence.

¶18            Finally, Orona argues the superior court (1) violated his due
process right under the Fourteenth Amendment to confront adverse
witnesses by allowing the State to rely on double hearsay testimony; and
(2) "improperly held the assertion of his privilege against self-incrimination
against him, and shifted the burden of proof to [Orona], in violation of
Appellant's Fifth and Fourteenth Amendment[] rights." Because Orona did
not raise these issues in the superior court, we review for fundamental
error. State v. Lowery, 230 Ariz. 536, 540, ¶ 11 (App. 2012).



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                             STATE v. ORONA
                            Decision of the Court

¶19           In a probation violation hearing, a defendant has a right to
"due process of law, including the right to confront and examine one's
accusers." State v. Brown, 23 Ariz. App. 225, 230 (1975). But the right to
confrontation in that setting is not "of the same scope as afforded in the trial
stage of the prosecution." Id. Indeed, our supreme court has held that
allowing reliable hearsay in probation violation hearings complies with the
due process right to confront and examine one's accusers. Belcher, 111 Ariz.
at 581.

¶20           Here, Williams's double hearsay testimony was reliable and
therefore in compliance with Belcher. To the extent Orona argues his right
to confrontation was violated because the court did not specifically find
good cause for not allowing confrontation, that argument was put to rest in
Brown: "[A] full reading of [U.S. Supreme Court precedent] reveal[s] that
the parenthetical limitation of finding of 'good cause' was not meant to
require a specific recitation thereof by the trial court." 23 Ariz. App. at 230.
Thus, Orona's right to confront and examine his accusers was not violated.

¶21            Second, Orona cites State v. Eccles, 179 Ariz. 226 (1994), for the
proposition that defendants have Fifth and Fourteenth Amendment
privileges against self-incrimination in probation violation proceedings. In
Eccles, our supreme court held unconstitutional a probation condition that
required the defendant to waive his Fifth Amendment privilege against
self-incrimination. Eccles, 179 Ariz. at 228. The court also explained that
the State is "prohibited from revoking probation for a legitimate invocation
of the privilege against self-incrimination." Id.

¶22          Eccles does not help Orona here. Although Orona denied all
the alleged probation violations, nothing in the record indicates he was
required to answer questions, let alone incriminating questions. His
probation conditions did not require him to waive the privilege against self-
incrimination, and the superior court did not revoke his probation based on
him invoking the privilege. Instead, the court found that because there was
no evidence—Orona's testimony or otherwise—to rebut the State's
evidence that Orona violated condition one by committing an assault, the
State proved by a preponderance of the evidence that Orona violated
condition one. Thus, Orona failed to show he was denied any constitutional
rights.




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                           STATE v. ORONA
                          Decision of the Court

                             CONCLUSION

¶23           Based on the foregoing, we affirm the superior court's order
finding that Orona violated his probation.




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




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