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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RODERICK WAGONER, Appellant.

                             No. 1 CA-CR 14-0625
                                FILED 12-31-15

           Appeal from the Superior Court in Maricopa County
                        No. CR2012-135119-001
                The Honorable Alfred M. Fenzel, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
                            STATE v. WAGONER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


C A T T A N I, Judge:

¶1            Roderick Wagoner appeals his conviction of second-degree
murder and the resulting sentence. Wagoner’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she
found no arguable question of law that was not frivolous. Wagoner was
given the opportunity to file a supplemental brief, but did not do so.
Counsel asks this court to search the record for reversible error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we
affirm Wagoner’s conviction and sentence.

              FACTS AND PROCEDURAL BACKGROUND

¶2            One evening in July 2012, Wagoner chased the victim across
the third floor of a parking structure and stabbed him repeatedly. The
victim tried to get away and climbed over the edge of the structure and
hung from a ledge, but Wagoner continued to stab the victim’s hands and
head until he fell from the third floor. Wagoner then rode away on a
bicycle. A witness who was later shown a photo-line up identified
Wagoner as the attacker.

¶3           The victim survived the fall and told a police officer that
“Deshan” (Wagoner’s middle name), who he described as a black man with
only one arm, was the person who had stabbed him. The victim died from
the stab wounds several hours later.

¶4            Meanwhile, another officer heard the victim’s report and
thought it described Wagoner, with whom the officer had interacted earlier
that day. Officers went to Wagoner’s home to serve a search warrant, and
they found him there, along with a stack of papers and clothing, both of
which were stained with the victim’s blood. The officers arrested Wagoner
and he was charged with second-degree murder.

¶5           After an eight-day trial, a jury found Wagoner guilty as
charged, and further found three aggravating factors and that the offense


                                       2
                           STATE v. WAGONER
                           Decision of the Court

was dangerous. The superior court noted that Wagoner’s two prior felony
convictions, which he had admitted while testifying, were an additional
aggravating factor, and sentenced him to an aggravated prison term of 20
years, with credit for 795 days of presentence incarceration. Wagoner
timely appealed.

                               DISCUSSION

¶6           We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.

¶7            We note that the admission of the victim’s statements to
police identifying Wagoner as his assailant, see supra ¶ 3, presents an
arguable confrontation clause issue under Michigan v. Bryant, 562 U.S. 344
(2011). Because the victim died, he was not available to testify at trial, and
he had not been subject to prior cross-examination by Wagoner. See id. at
354. Under these circumstances, admissibility under the Confrontation
Clause hinges on whether the primary purpose of victim’s statements was
testimonial (that is, intended for use at trial or as a substitute for trial
testimony) or nontestimonial. See id. at 357–59. The primary purpose is
assessed objectively, in the context of the then-existing circumstances and
in light of the statements and actions of both the interrogator and the
declarant. Id. at 367. A key circumstance suggesting a nontestimonial
purpose is the existence of an ongoing emergency, with the statements
intended and/or used to assist in ending a threatening situation. Id. at 361.
Similarly, informal questioning (as opposed to formal interrogation at the
police station) suggests the statements are likely not intended as
testimonial. Id. at 366.

¶8            Here, the interrogation was short and informal, conducted
where the victim was lying on the ground at the base of the parking
structure. See id. at 366, 377 (“The informality suggests that the
interrogators’ primary purpose was simply to address what they perceived
to be an ongoing emergency, and the circumstances lacked any formality
that would have alerted [the victim] to or focused him on the possible future
prosecutorial use of his statements.”). Moreover, the officer asked only
questions relevant to searching for a man in the area with a knife: a potential
threat to public safety. See id. at 376 (what/who/where questions relevant
to address threat). The victim did not indicate that the stabbing was part of
a purely private dispute or that Wagoner would not pose a broader threat
to the public. See id. at 365, 372–73. Similarly, the victim did not say (or
perhaps even know) if Wagoner remained in the area or had run away


                                      3
                           STATE v. WAGONER
                           Decision of the Court

(which might have suggested that he was no longer a threat to the public).
See id. at 365. The officer’s actions following the victim’s statements—
looking into cars in the parking structure to ensure the assailant was not
hiding there, potentially to stab another person—were also consistent with
a response to a perceived ongoing threat to public safety. See id. at 363–64.
In this factual context, the statements are best understood as
nontestimonial, and their admission at trial was thus not barred by the
Confrontation Clause.

¶9           Wagoner was present and represented by counsel at all stages
of the proceedings against him. The record reflects that the superior court
afforded Wagoner all of his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdict. Wagoner’s sentence falls within the range
prescribed by law, with proper credit given for presentence incarceration.

                              CONCLUSION

¶10           Wagoner’s conviction and sentence are affirmed.

¶11           After the filing of this decision, defense counsel’s obligations
pertaining to Wagoner’s representation will end after informing Wagoner
of the outcome of this appeal and his future options, unless counsel’s
review reveals an issue appropriate for submission to the Arizona Supreme
Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85
(1984). On the court’s own motion, Wagoner shall have 30 days from the
date of this decision to proceed, if he desires, with a pro se motion for
reconsideration or petition for review.




                                    :jt


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