                                                                  FILED BY CLERK
                           IN THE COURT OF APPEALS                    NOV 21 2006
                               STATE OF ARIZONA                       COURT OF APPEALS
                                 DIVISION TWO                           DIVISION TWO


THE STATE OF ARIZONA,                     )
                                          )         2 CA-CR 2005-0256
                              Appellee,   )         DEPARTMENT A
                                          )
                  v.                      )         OPINION
                                          )
STEVEN JAMES KING,                        )
                                          )
                             Appellant.   )
                                          )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                             Cause No. CR-20044522

                        Honorable Michael Cruikshank, Judge

                                   AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Cassie Bray Woo                                      Phoenix
                                                              Attorneys for Appellee

Daniel F. Davis                                                              Tucson
                                                              Attorney for Appellant


V Á S Q U E Z, Judge.
¶1            Steven James King appeals from his convictions for aggravated driving under

the influence of an intoxicant (DUI) on a suspended license, aggravated driving with an

alcohol concentration of .08 or more on a suspended license, aggravated DUI with two or

more prior DUI convictions, and aggravated driving with an alcohol concentration of .08 or

more with two or more prior DUI convictions.

¶2            The central issue on appeal is whether the admission of records of King’s prior

convictions without testimony and Motor Vehicle Department (MVD) records of his license

suspension violated his rights under the Confrontation Clause of the Sixth Amendment1 as

explained in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). We hold that

the records are nontestimonial under Crawford and are admissible under the public and

business records exceptions to the hearsay rule. Their admission, therefore, did not violate

King’s Confrontation Clause rights. This court has jurisdiction pursuant to A.R.S. § 12-

120.21(A)(1).

                           Facts and Procedural Background

¶3            The facts are not in dispute. King was stopped after a police officer saw him

driving erratically. During the stop, officers observed his eyes were watery and bloodshot,

his face was flushed, he swayed as he stood, he staggered as he walked and smelled of




       The Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the
       1

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

                                             2
intoxicants, and his speech was slurred. An officer administered two breath tests; the first

showed King had a breath alcohol concentration of .209, and the second .211.

¶4            Prior to trial, King moved to suppress the evidence of his prior convictions and

the MVD records of his license suspension on the ground their admission would violate his

rights under the Confrontation Clause. The trial court denied the motion following an

evidentiary hearing. At trial, the court admitted records of King’s two prior DUI convictions

over his additional objection that one set of records was not properly authenticated and the

other did not identify the offense of which he had been convicted. The trial court also

denied King’s motion to strike the testimony about the results of his breath tests, made on

the ground the tests had not been properly administered. The jury returned guilty verdicts

on all counts. The trial court suspended the imposition of sentence and placed King on a

ten-year term of probation conditioned on a four-month term of imprisonment.

                                        Discussion

I. Authenticity of Prior Conviction Records

¶5            King argues the trial court erred by admitting over his objection records of his

prior DUI convictions, one from the Marana Municipal Court and the other from the

Cochise County Justice Court. The records were admitted without testimony as certified

copies of public records, see Rule 902(4), Ariz. R. Evid., 17A A.R.S., and constituted the

sole evidence of King’s two prior DUI convictions—an essential element of both counts

three and four of the indictment. See A.R.S. § 28-1383(A)(2).


                                              3
¶6            We first address King’s contention the Marana conviction records were not

self-authenticating because they did not include an attestation2 or certification “[c]ommon

to all forms of authentication under Rule 902 of the Arizona Rules of Evidence.”3 King

asserts the records were admitted as certified public records “presumably under Rule

902(4),” but they do not bear the certification required under that rule. Rule 902(4)

provides:

                     Extrinsic evidence of authenticity as a condition
              precedent to admissibility is not required with respect to the
              following:

                     ....

                      (4) Certified copies of public records. A copy of an
              official record or report or entry therein, or of a document
              authorized by law to be recorded or filed and actually recorded
              or filed in a public office, including data compilations in any
              form, certified as correct by the custodian or other person
              authorized to make the certification, by certificate complying
              with paragraph (1), (2), or (3) of this rule or complying with any
              applicable statute or rule.

¶7            We review a trial court’s ruling on the admissibility of evidence for a clear

abuse of discretion. State v. Tankersley, 191 Ariz. 359, ¶ 37, 956 P.2d 486, 496 (1998).



       2
        At trial, King implicitly acknowledged that the first page of the Marana records
contained the clerk’s signature. But he argued Rule 902 “speaks of . . . attestation of
specific documents and not . . . simply a whole collection of documents that are stapled
together.” The trial court concluded that the records contained a proper attestation.

      If King’s Rule 902 argument is correct, there is no need to address his constitutional
       3

argument. See State v. Korzuch, 186 Ariz. 190, 195, 920 P.2d 312, 317 (1996).

                                              4
But “[w]e review de novo the interpretation of statutes and rules.” State v. Williams, 209

Ariz. 228, ¶ 30, 99 P.3d 43, 50 (App. 2004).

¶8            The Marana conviction records were attached to a cover letter from the Clerk

of the Marana Municipal Court in which she stated that she had searched the court’s

computer records under the name the deputy county attorney had given her and had found

the attached documents. Because the records produced by the clerk did not include the

certification required by Rule 902(4), we agree they were not self-authenticating under that

rule. But they were properly authenticated under Rule 901(b)(7), Ariz. R. Evid., 17A

A.R.S. And we will uphold a trial court’s ruling if the court reached the correct result even

though based on an incorrect reason. State v. Thompson, 166 Ariz. 526, 527, 803 P.2d 937,

938 (App. 1990) (“The trial court’s ruling, even though based incorrectly on another rule,

will be affirmed if the trial court has reached a correct result.”).

¶9            “[A]n authenticity objection questions the form in which the evidence is

presented.” State v. Stotts, 144 Ariz. 72, 81-82, 695 P.2d 1110, 1119-20 (1985). “The

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Ariz. R. Evid. 901(a), 17A A.R.S.; see also State v. Lavers, 168 Ariz.

376, 386, 814 P.2d 333, 343 (1991). Rule 901(b) provides illustrations of authentications

which conform with the requirements of the rule. Illustration 7 states:

                     (7) Public records or reports. Evidence that a writing
              authorized by law to be recorded or filed and in fact recorded

                                               5
               or filed in a public office, or a purported public record, report,
               statement, or data compilation, in any form, is from the public
               office where items of this nature are kept.

¶10            In her cover letter responding to the deputy county attorney’s written request

for King’s conviction records, the Marana clerk stated she had searched the court’s records

under the name provided to her, Steven James King, and the records she produced were the

court’s records for that individual. The records produced by the clerk consisted of a copy

of an Arizona traffic ticket and complaint, a plea agreement, a signed waiver of jury trial

form, and the minute entries from the change-of-plea proceeding and sentencing. See Ariz.

R. Crim. P. 26.16(b), 17 A.R.S. (The court or person authorized by the court is required to

enter the exact terms of judgment and sentence in court’s minutes.).

¶11            The trial court could have reasonably concluded that the records were what

the state said they were, that is, a record of King’s prior conviction in the Marana Municipal

Court. Thompson, 166 Ariz. at 527, 803 P.2d at 938 (prison “pen pack” properly admitted

under Rule 901 as evidence of what state said it was—a record of appellant’s prior

conviction).

               The judge does not determine whether the document is
               authentic, only whether there is some evidence from which the
               trier of fact could reasonably conclude that it is authentic.
               Once admitted, the opponent is still free to contest the
               genuineness or authenticity of the document, and the weight to
               be given the document becomes a question for the trier of fact.




                                               6
State v. Irving, 165 Ariz. 219, 223, 797 P.2d 1237, 1241 (App. 1990).4 We find no abuse

of discretion in the trial court’s admission of the Marana conviction records. See Stotts, 144

Ariz. at 82, 695 P.2d at 1120; State v. Wooten, 193 Ariz. 357, ¶¶ 57-58, 972 P.2d 993,

1004 (App. 1998).

¶12           King challenges the admission of the Cochise County conviction records on

different grounds. He asserts that, “[t]hough . . . properly authenticated,” the Cochise

County records cannot be considered a judgment because they “did not identify the offense

for which [he] suffered a conviction.” He also claims that deficiency violates Rule 26.16(b),

Ariz. R. Crim. P. We disagree.

¶13           Rule 26.16(b) merely requires a trial court or authorized person to “enter the

exact terms of the judgment and sentence in the court’s minutes.” It does not dictate the

form of a written judgment or provide rules on the admissibility of conviction records.

Therefore, we find no violation of Rule 26.16(b) and no impediment based on that rule to

the admission of the Cochise County conviction records.

¶14           Moreover, contrary to King’s assertion, the judgment does identify the offense

for which King was convicted. Immediately below the words “Judgment and Sentence” are

the following: “Offense: 28-1381 A1,” and “Classification: DUI.” We find immaterial the



       King did not challenge the reliability of the Marana records on hearsay grounds. “A
       4

hearsay objection concerns the reliability of evidence itself; an authenticity objection
questions the form in which the evidence is presented.” State v. Stotts, 144 Ariz. 72, 81-82,
695 P.2d 1110, 1119-20 (1985).

                                              7
fact this information was not restated in the lower portion of the form after the words: “IT

IS THE JUDGMENT of the Court that the Defendant is guilty of the following crime(s).”

Despite that omission, the judgment clearly identifies King’s offense. We find no abuse of

discretion in the trial court’s admission of the Cochise County judgment.

II. Confrontation Clause

¶15           King next argues the trial court violated his Sixth Amendment right to confront

witnesses against him by admitting, without testimony, the records of his prior convictions

and, with testimony by the custodian of records, MVD records showing his driver’s license

had been suspended.5      Although we ordinarily review a trial court’s ruling on the

admissibility of evidence for an abuse of discretion, “we conduct a de novo review of

challenges to admissibility under the Confrontation Clause.” State v. King, 212 Ariz. 372,

¶ 16, 132 P.3d 311, 314 (App. 2006).

¶16           The state asserts that King’s “objection at trial did not include an objection

based on the Confrontation Clause.” But, “[b]ecause defense counsel filed a pre-trial

motion to suppress the evidence [based on the Confrontation Clause], which the trial court


       5
         Even though the MVD custodian of records testified, King argues that his
confrontation rights were violated because he did not have the ability to cross-examine the
persons who had actually gathered and prepared his suspension records and sent the notice
of his license suspension. His argument is directed at the statutes authorizing the admission
of driving records without further foundation or proof of authenticity. See A.R.S. §§ 28-
442, 28-444, and 28-445. We note the trial court inexplicably “admitted” the MVD records
“for purposes of the record,” but it chose not to give them to the jury during its
deliberations. We nonetheless address King’s Confrontation Clause argument about the
records because they formed the entire substance of the custodian’s testimony.

                                             8
denied, [King] did not waive his objection.” State v. Sharp, 193 Ariz. 414, ¶ 22, 973 P.2d

1171, 1178 (1999). We therefore address King’s Confrontation Clause argument.

¶17           In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004),

the Supreme Court 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. Relying on

Crawford, King argues the records in question were testimonial in nature.

¶18           The Crawford Court defined “testimony” as “‘[a] solemn declaration or

affirmation made for the purpose of establishing or proving some fact.’” Id. at 51, 124 S.

Ct. at 1364, quoting 1 Noah Webster, An American Dictionary of the English Language

(1828). But the Court said it would “leave for another day any effort to spell out a

comprehensive definition of ‘testimonial.’” Id. at 68, 124 S. Ct. at 1374. “[I]t applies at a

minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;

and to police interrogations. These are the modern practices with closest kinship to the

abuses at which the Confrontation Clause was directed.” Id.; see also Davis v. Washington,

___ U.S. ___, 126 S. Ct. 2266, 2274 (2006).

¶19           However, Crawford made clear that, “[w]here nontestimonial hearsay is at

issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their

development of hearsay law.” 541 U.S. at 68, 124 S. Ct. at 1374. The Court noted that

“[m]ost of the hearsay exceptions covered statements that by their nature were not


                                               9
testimonial—for example, business records or statements in furtherance of a conspiracy.”

Id. at 56, 124 S. Ct. at 1367. The issue here is whether the evidence concerning the prior

convictions and MVD records is testimonial hearsay such that its admission violated King’s

confrontation rights under the Sixth Amendment.

¶20           Other jurisdictions that have addressed this issue have concluded that records

of prior convictions are nontestimonial and, therefore, are “beyond the prohibition of

Crawford.” Commonwealth v. Crapps, 835 N.E.2d 275, 276 (Mass. App. Ct. 2005); see

also People v. Taulton, 29 Cal. Rptr. 3d 203, 204 (Ct. App. 2005) (“Records of prior

convictions are not ‘testimonial’ and therefore are not subject to Crawford’s confrontation

requirement.”); People v. Shreck, 107 P.3d 1048, 1060-61 (Colo. Ct. App. 2004)

(attestation of conviction records’ veracity not testimonial because authors of prior

conviction records are not witnesses against criminal defendants); State v. Benefiel, 128

P.3d 1251, 1253 (Wash. Ct. App. 2006) (record of judgment and sentence not testimonial).

¶21           King points to language in Crawford that testimonial evidence includes those

statements that a declarant “would reasonably expect to be used prosecutorially,” 541 U.S.

at 51, 124 S. Ct. at 1364, and that a reasonable person would believe “would be available

for use at a later trial,” id. at 52, 124 S. Ct. at 1364. King thus asserts that “[o]ne preparing

records of prior convictions must certainly understand that those records are being prepared

for use in a criminal prosecution” and that the MVD records were created, kept, and

retrieved by government agents “for the purpose of establishing elements of offenses.”


                                              10
¶22           In Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471 (App. 2006), we

rejected a similar argument about the admission of maintenance and calibration records for

a breath-testing machine. That such records “may subsequently be used in DUI

prosecutions,” we found, “does not preclude [them from] qualifying as business records.”

Id. ¶ 18. We were “not persuaded by Bohsancurt’s arguments that the seminal issue under

Crawford is whether the declarant can reasonably anticipate that his or her statement will

likely be used at trial.” 212 Ariz. 182, ¶ 28, 129 P.3d at 479.

¶23           We acknowledge one difference between the prior conviction records here and

the calibration records in Bohsancurt. In this case, the records relate specifically to King

rather than a piece of machinery as in Bohsancurt. This difference standing alone, however,

does not warrant a different conclusion about their admissibility.         As we noted in

Bohsancurt, other courts have found certain types of records associated with a particular

defendant and linked to a specific case to be nontestimonial because they “do not fall within

the Crawford Court’s description of evils the Confrontation Clause was intended to avoid.”

212 Ariz. 182, ¶ 27, 129 P.3d at 478-79. We agree that not every record pertaining to a

specific individual is necessarily testimonial. “The Court in Crawford did not specifically

emphasize any of its stated ‘formulations’ as determinative.” 212 Ariz. 182, ¶ 29, 129 P.3d

at 479. We must look at the nature and content of the record and the circumstances

surrounding the creation of the record as a whole.




                                             11
¶24            Records of prior convictions are public records, which are created and

maintained regardless of possible future criminal activity by the defendants. See Ariz. R.

Crim. P. 26.16(b); see also Mathews v. Pyle, 75 Ariz. 76, 78-79, 251 P.2d 893, 895 (1952)

(record required by law is a public record). Convictions are not recorded exclusively in

anticipation of future litigation for the purpose of establishing facts contained in those

records.   See Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364 (listing “[v]arious

formulations of [the] core class of ‘testimonial’ statements”). Rather, the records merely

document facts already established through the judicial process. Thus, the individuals

entering the information in the records cannot be considered witnesses against the subject

of the records, see Davis, ___ U.S. at ___, 126 S. Ct. at 2274, and their statements are not

testimonial.

¶25            The same reasoning applies to King’s MVD records about which the MVD

custodian of records testified.      They are required to be kept by statute and exist

independently of any criminal prosecution. The director of the department of transportation

must “[m]ake and maintain records containing adequate and proper documentation of the

. . . essential transactions of the agency designed to furnish information to protect the rights

of the state and of persons directly affected by the agency’s activities.” A.R.S. § 41-

1346(A)(2); see also A.R.S. § 28-3004 (department required to keep records pertaining to

driver’s licenses). The MVD records, therefore, are prepared in the regular course of

business by individuals “who are not proxies of police investigators.” Bohsancurt, 212 Ariz.


                                              12
182, ¶ 20, 129 P.3d at 476. Like the records of his prior convictions, King’s MVD records

bear “little resemblance to the civil-law abuses the Confrontation Clause targeted.”

Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; see also State v. Sproule, 927 So. 2d 46, 47-

48 (Fla. Dist. Ct. App. 2006).

¶26           Because the public records at issue here are akin to business records, and are

prepared and maintained regardless of their possible use in a criminal prosecution, we

conclude they are not testimonial under Crawford. See State v. Kronich, 128 P.3d 119, 123

(Wash. Ct. App.) (collecting cases and holding “public records, like business records, should

not be considered ‘testimonial’ statements for purposes of applying Crawford”), review

granted, 139 P.3d 349 (Wash. 2006); Taulton, 29 Cal. Rptr. 3d at 206 (same analysis

should apply to public records as business records for purpose of Confrontation Clause

analysis); see also Bohsancurt, 212 Ariz. 182, ¶ 21, 129 P.3d at 477 (“The essence of a

public record is that it is created by a public agency. But, when a public agent keeps records

in the ordinary course of business of his or her employer, the records may still constitute

business records.”) (citation omitted).

¶27           We hold that the evidence of King’s prior convictions and MVD records is not

testimonial and its admission did not violate his right to confront witnesses against him.

III. Reliability of MVD Records




                                             13
¶28           In a related argument, King contends the MVD records were “improperly

admitted under [Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980),]6 because the

testimony regarding [MVD’s] record-keeping did not establish sufficient indicia of reliability

to meet any hearsay exception.” He contends that, “in the context of an essential element

of a felony offense, the record-keeping at the Department of Motor Vehicles certainly fails

to meet reasonable standards.” We interpret his argument to be that the source of

information in the records or the method or circumstances of their preparation indicate a

lack of trustworthiness and, therefore, do not meet the foundational requirements of the

exceptions to the rule against hearsay for business and/or public records. See Ariz. R. Evid.

803(6) and (8), 17A A.R.S.

¶29           In support of his argument, King relies exclusively on the testimony of the

MVD’s custodian of records, in which she stated she did not know who had retrieved King’s

MVD records or the qualifications and training of the person who might have retrieved them.

She also testified that she did not know how many people have input access to the MVD

computers and that she did not believe there was any one person responsible for determining

the accuracy of the records. This testimony is insufficient, standing alone, to support King’s

conclusion that MVD’s record-keeping “fails to meet reasonable standards.”



       6
       Roberts was effectively overruled by Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354 (2004). However, King is correct that, to be admissible records under the business
or public records exceptions to the hearsay rule, the MVD records must be reliable. See
Ariz. R. Evid. 803(6) and (8), 17A A.R.S.

                                             14
¶30           The custodian of records also testified that she had been employed by MVD

for seventeen years and had been the department’s custodian of records for ten years. Her

duties include working with and interpreting records and giving testimony in courts. She

identified the MVD records as being King’s records because they included his name, date

of birth, address, driver’s license number, and photograph. She testified that King matched

the person depicted in the photograph, and she was “[one] hundred percent confident” that

the information in the records about King’s license suspension and notice of suspension was

accurate.

¶31           King does not dispute that all the statutory requirements for the admission of

the MVD records were met. They were, in fact, certified and authenticated and, therefore,

were “admissible in evidence without further foundation,” A.R.S. § 28-442, and “without

further proof of their authenticity,” A.R.S. § 28-445(C). And, as the state points out, King

did not challenge the constitutionality of the statutes below, nor has he on appeal. We

conclude the trial court did not abuse its discretion in admitting evidence of the MVD

records.

IV. Intoxilyzer Test Results

¶32           Finally, King contends the trial court abused its discretion in denying his

motion to strike the Intoxilyzer results, asserting that the “statutory requirements for

admission of the [I]ntoxilyzer test results were not met.” Section 28-1323(A), A.R.S.,

provides that the “results of a breath test administered for the purpose of determining a


                                            15
person’s alcohol concentration are admissible as evidence in any trial” when certain

conditions are met. One of those conditions is that “[t]he operator who conducted the test

followed an operational checklist approved by the department of health services or the

department of public safety for the operation of the device used to conduct the test.” § 28-

1323(A)(4). That checklist required the officer in this case to have King undergo a fifteen-

minute “deprivation period” immediately before the test. See Ariz. Admin. Code R9-14-404

and R9-14-401(11) and (8).7 Section 28-1323(A)(4) further provides that “[t]he testimony

of the operator is sufficient to establish this requirement.”

¶33           The operators here were Officers Rhind and Bonnano. They testified that

Rhind had observed King during the fifteen-minute deprivation period immediately before

Bonnano administered the tests, but King claims the test results were inadmissible for failure

to meet this requirement. King bases his argument on what he claims is a discrepancy in the

testimony. Although the officers testified that Rhind had witnessed the deprivation period

from 11:39 p.m. to 12:04 a.m. before the first test was conducted, Rhind also testified that

he had used the mobile data terminal in Bonnano’s car to gather information about King.

And a print-out from that terminal showed an inquiry had been made at 11:47 p.m. King




       7
        As Division One of this court has noted: “A deprivation period is ‘a 15-minute
period immediately prior to a quantitative duplicate breath test during which period the
subject has not ingested any alcoholic beverages or other fluids, vomited, eaten, smoked or
placed any foreign object in the mouth.’” Ricard v. Ariz. Dep’t of Transp., 187 Ariz. 633,
637, 931 P.2d 1143, 1147 (App. 1997), quoting Ariz. Admin. Code R9-14-401(8).

                                              16
contends that, given these times, Rhind could not have witnessed the required deprivation

period despite the officers’ testimony to the contrary.

¶34             We find no merit to this argument. Under § 28-1323, the officers’ testimony

was sufficient to establish compliance with the operational checklist, including the

observation of the deprivation period. The state thus fulfilled the statutory requirements for

admission of the test results. Further, King’s argument is essentially an attack on the

officers’ credibility. But discrepancies in the evidence affect the weight of evidence, not its

admissibility. See State v. Roscoe, 145 Ariz. 212, 221, 700 P.2d 1312, 1321 (1984). And

the officers’ credibility was for the jury to determine. See State v. Roberts, 139 Ariz. 117,

121, 677 P.2d 280, 284 (App. 1983). We find no abuse of discretion in the trial court’s

denial of King’s motion to strike the Intoxilyzer results. See State v. Williams, 209 Ariz.

228, ¶ 47, 99 P.3d 43, 54 (App. 2004).

                                        Disposition

¶35             For the foregoing reasons, King’s convictions and his placement on probation

are affirmed.



                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________

                                              17
JOHN PELANDER, Chief Judge



____________________________________
JOSEPH W. HOWARD, Presiding Judge




                                 18
