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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     WALI SALAH WILSON, Appellant.

                             No. 1 CA-CR 15-0848
                               FILED 1-5-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-432083-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
                            STATE v. WILSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel E. Vederman1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


V E D E R M A N, Judge:

¶1           Wali Salah Wilson appeals his convictions and sentences for
attempted aggravated assault and disorderly conduct, both of which were
domestic violence offenses.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The evidence at trial showed that Wilson argued with his
girlfriend, punched her, threw a brick at her and missed, and choked her
with both hands until she felt dizzy and short of breath. 2

¶3            The girlfriend, who had five children with Wilson (four of
whom were living with Wilson’s family at the time of trial), testified that
she remembered arguing with Wilson, but did not remember him
assaulting her. She testified that she had tried to get the charges against
Wilson dropped before trial because “[she] just didn’t want to be involved
with the case.” She acknowledged, however, that she spoke with a police
officer and a nurse the day of the incident, but stated that because she did
not remember what had happened, she could not say whether she had been
truthful with them.

¶4             A police officer and a forensic nurse examiner testified that
the victim had reported, on the day of the incident, that Wilson threw a
brick at her, punched her, and choked her until she could not breathe. The
police officer testified that the victim’s oldest daughter, who also claimed
loss of memory at trial, had told him that day that Wilson had pushed her
mother to the ground and got on top of her and choked her. The forensic


1      The Honorable Samuel E. Vederman, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article VI,
Section 3 of the Arizona Constitution.

2      We view the evidence at trial in the light most favorable to sustaining
the convictions. State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).


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                             STATE v. WILSON
                            Decision of the Court

nurse relayed the details of her report to the jury, and the victim’s recorded
statement to police describing the assault was played to the jury; both were
admitted as exhibits. The nurse testified that the victim’s injuries were
consistent with the victim’s initial description of the assault.

¶5            The jury convicted Wilson of the charged crimes of attempted
aggravated assault and disorderly conduct, and found both to be domestic
violence offenses. The jury found as aggravating circumstances on the
attempted aggravated assault offense that defendant was on felony
probation at the time, the victim suffered physical or emotional harm, the
offense involved the infliction or threatened infliction of serious physical
injury, and the offense was a domestic violence offense committed in the
presence of a child.

¶6            The court revoked probation in a prior case and sentenced
Wilson to 2.5 years in that case, to be served consecutively to a 2.25-year
sentence for the attempted aggravated assault conviction (Count 1), with a
3-year probation term to follow for Wilson’s disorderly conduct conviction
(Count 2). Wilson filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and 13-4033(A).

                               DISCUSSION

I.     Confrontation Violation.

¶7           Wilson argues that the police officer’s testimony, regarding
what the victim’s six-year-old and eight-year-old children told the officer
the day of the incident, violated his confrontation rights because the
children did not appear as witnesses at trial and he had no opportunity to
cross-examine them.3 Although we ordinarily review evidentiary rulings
for abuse of discretion, we review evidentiary rulings that implicate a
defendant’s constitutional rights de novo. See State v. Ellison, 213 Ariz. 116,
120, ¶ 42 (2006). Because Wilson did not object to the testimony at trial,
however, he has waived all but fundamental error review. See State v.
Henderson, 210 Ariz. 561, 568, ¶ 22 (2005); State v. Goudeau, 239 Ariz. 421,
458, ¶ 148 (2016). On fundamental error review, the defendant has the
burden of proving that the court erred, that the error was fundamental in



3     The officer testified that the children told him they heard their
mother yelling for help, and that Wilson threw a brick at her and tried to
choke her.


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                            STATE v. WILSON
                           Decision of the Court

nature, and that he was prejudiced thereby. Henderson, 210 Ariz. at 567, ¶
20.

¶8            Wilson has failed to meet his burden. The Confrontation
Clause generally prohibits the admission of testimonial hearsay statements
at a criminal trial unless the declarant is available at trial for
cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004).
Statements made by a witness during police questioning are considered
testimonial “when the circumstances objectively indicate that there is no . .
. ongoing emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). Insofar as the
record reveals, the children’s statements were testimonial hearsay
statements, obtained not to handle any ongoing emergency, but rather to
establish what had occurred for a later criminal prosecution. The admission
of these testimonial statements through the officer, in the absence of the
children’s appearance at trial as witnesses, thus appears to have violated
Wilson’s confrontation rights.

¶9            Even assuming arguendo that the court fundamentally erred
in admitting these statements, Wilson has failed to show that he was
prejudiced by this testimony. To prove prejudice, the defendant must show
that a reasonable jury could have reached a different verdict absent the
error. Henderson, 210 Ariz. at 569, ¶ 27. The victim’s recorded statement to
police and her report to the forensic nurse examiner offered compelling
evidence that choking had occurred. Her oldest daughter’s statement to
police on the date of the incident supplied further support for the
conviction. Any probative value that the younger children’s statements
might have had was undermined by the officer’s admissions on cross-
examination that he did not initially remember interviewing them, and it
appeared that he had not separated them when questioning them, as would
be his normal practice. The brief reference in the officer’s testimony and in
the prosecutor’s closing arguments to the younger children’s statements
that Wilson had choked their mother was cumulative of other more
compelling evidence and did not prejudice Wilson. See State v. Martin, 225
Ariz. 162, 166, ¶ 15 (App. 2010). Wilson has accordingly failed to show the
necessary prejudice for reversal on fundamental error review.

II.   Jury Instruction.

¶10          Wilson next argues that the court violated his right to a
unanimous verdict, see Ariz. Const. art. 2, § 23, by instructing the jury on
two ways of committing attempted assault: (1) “Intentionally or knowingly


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                             STATE v. WILSON
                            Decision of the Court

caus[ing] physical injury to another person”; or (2) “Knowingly touch[ing]
another person with the intent to injure, insult, or provoke another person.”

¶11          Because Wilson failed to object to the instruction, he has
waived all but fundamental error review. See Henderson, 210 Ariz. at 568,
¶ 22.

¶12          The indictment charged Wilson with attempted aggravated
assault pursuant to A.R.S. § 13-1204(B), which defines the offense as
follows:

       B. A person commits aggravated assault if the person
       commits assault by either intentionally, knowingly or
       recklessly causing any physical injury to another person,
       intentionally placing another person in reasonable
       apprehension of imminent physical injury or knowingly
       touching another person with the intent to injure the person,
       and both of the following occur:

             1. The person intentionally or knowingly impedes the
       normal breathing or circulation of blood of another person by
       applying pressure to the throat or neck or by obstructing the
       nose and mouth either manually or through the use of an
       instrument.

              2. Any of the circumstances exists that are set forth in
       section 13-3601, subsection A, paragraph 1, 2, 3, 4, 5 or 6.

Section 13-3601(A)(1)-(6) identifies the relationships that make an offense
one of “domestic violence.” The court’s instruction generally tracked the
elements of the offense.

¶13            Wilson argues that because the instruction given defined two
distinct offenses, he was deprived of a unanimous verdict on the charged
offense. But the offense defined by A.R.S. § 13-1204(B) is one offense,
whether it is committed by intentionally, knowingly, or recklessly causing
physical injury to another person, or by knowingly touching another person
with the intent to cause physical injury. This is because, unlike the offenses
defined in A.R.S. § 13-1203(A)(1)-(3), which define “distinctly different
conduct causing different kinds of harm,” the offense defined in A.R.S. §
13-1204(B) requires proof of a particular harm: that the defendant
“impede[d] the normal breathing or circulation of blood of another person.”
See State v. Delgado, 232 Ariz. 182, 189, ¶ 24 (App. 2013). “Therefore, the jury



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                            STATE v. WILSON
                           Decision of the Court

was not required to agree which underlying ‘form’ of assault [Wilson] had
committed.” Delgado, 232 Ariz. at 189, ¶ 24.

¶14            Wilson relies on speculation, without support from the
record, for his claim that the jury could have disagreed on the nature of the
assault and reached a non-unanimous verdict by disregarding a key
element of the offense, that is, that the defendant “intentionally or
knowingly impeded the normal breathing or circulation of blood of another
person by applying pressure to the throat or neck . . . .” The jury is
presumed to have followed the jury instructions. State v. Newell, 212 Ariz.
389, 403, ¶ 68 (2006). Although the prosecutor referred to the brick-
throwing in closing argument, the prosecutor argued, consistent with the
jury instruction, that to convict Wilson of the attempted aggravated assault
the jury was required to find that he “[i]mpeded the normal breathing or
circulation of blood.” In other words, that he attempted to strangle the
victim. Defense counsel, for his part, simply argued that the evidence failed
to demonstrate that Wilson threw a brick, punched the victim, or attempted
to strangle her. Nothing in the record supports Wilson’s claim on appeal
that the jury disregarded the element of attempted aggravated assault
requiring some form of choking or strangling, and instead found him guilty
of simple assault for throwing a brick at her, pushing her, or grabbing her
arm.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm Wilson’s convictions and
sentences.




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




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