                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 ODECE DEMPSEAN HILL, Appellant.

                         No. 1 CA-CR 12-0627
                          FILED 11-04-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-143399-001
                 The Honorable Connie Contes, Judge

                      AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                               STATE v. HILL
                             Opinion of the Court



                                  OPINION

Chief Judge Diane M. Johnsen delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.


J O H N S E N, Judge:

¶1             Odece Dempsean Hill was convicted of sexually assaulting a
teenage girl, based in part on the testimony of a forensic nurse who related
what the victim had told her in the emergency room three hours after the
attack. The victim died before Hill was brought to trial, and he argued the
nurse's testimony violated his rights under the Confrontation Clause of the
United States Constitution. Guided by recent United States Supreme Court
cases, we conclude the superior court did not err by admitting the
testimony because the victim's statement was not testimonial.

                 FACTS AND PROCEDURAL HISTORY

¶2            Three assailants forced their way into a Mesa apartment early
one morning in 2001, and one or more of them sexually assaulted a
pregnant teenage girl.1 Shortly after the assailants departed, the victim was
taken to an emergency room in premature labor. There a registered nurse
trained to perform forensic medical examinations examined her. The nurse
provided medical care and also collected samples of biological evidence
using a rape kit. The biological evidence collected from the victim matched
DNA samples taken from the crime scene, leading to Hill's arrest ten years
later.

¶3             Before Hill was brought to trial, the victim died from causes
unrelated to the assault, and the State moved in limine to allow the nurse to
testify about her examination of the victim and a statement the victim made
to her at the outset of the examination. Over Hill's objection that the
testimony would violate the Confrontation Clause, the superior court
granted the State's motion.




1      We view the facts in the light most favorable to sustaining the jury's
verdicts and resolve all inferences against Hill. State v. Fontes, 195 Ariz. 229,
230, ¶ 2, 986 P.2d 897, 898 (App. 1998).


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                             Opinion of the Court

¶4            At trial, the nurse testified that forensic nurses are registered
nurses specially trained to perform forensic medical examinations of crime
victims. She testified her examination of the victim had two components –
providing medical care and collecting DNA evidence and other evidence of
the assault. Before seeing the victim, the nurse spoke with a law
enforcement officer to obtain basic demographic information about the
victim and to learn why a forensic examination was called for, but no officer
was present during the examination. The nurse documented the results of
the examination on a form titled "Sexual Assault Examination Report" that
provided step-by-step instructions for collecting evidence and required her
to record the victim's medical and "assault history" and where on the
victim's body she collected evidence. The nurse identified herself on the
form as the "examiner" and the Mesa Police Department as the "agency
involved." According to the form, the assault occurred at 2 a.m.; the
examination began at 5 a.m. In addition to noting the manner and location
of the various assaults the victim identified, the nurse recorded the victim's
vital signs and the nature and location of pain she described. The nurse
also recorded other elements of her physical examination of the victim,
including, for example, neurological signs (the victim was "oriented"), and
her breath and bowel sounds.

¶5             The nurse testified she began the examination by asking the
victim about her medical history and any sexual assault that had occurred.
Obtaining an assault history, she explained, is "part of normal nursing care
and it guides my treatment. It tells me what I'm going to do or not do." She
further testified that, although part of her job as a forensic nurse is to collect
evidence from the victim, "my job is to be a nurse first." She stated:

       I start out by explaining the process to my patient and getting
       consent from him or her in order to perform the exam. And
       the process is I obtain a history from my patient for the
       purpose of diagnosis and treatment. . . . And then I do a head
       to toe exam. And I do that looking for injury or trauma. And
       depending on what they told me in history, or detail, I do a
       genital exam looking for injury or trauma. And throughout
       the entire process I collect evidence using generally swabs off
       their bodies.

¶6            Asked how she obtained an assault history from the victim,
the nurse replied that she asked a "completely open-ended question. . . . I
say tell me why you're here." In response to that question, the victim
provided a graphic account of several assaults, which the nurse wrote down
and read at trial:


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                              STATE v. HILL
                            Opinion of the Court

       [H]e held a gun to my head, shoved his hand into me, then he
       put his D in my mouth, his dick. The other guy tried to [p]ut
       his D in my buttocks, pulled my legs apart trying to put his D
       in me the other way. I sucked him off but he ha[d] sex with
       me, put his dick in my vagina. Then the other guy too had me
       suck him off; had sex with me in the bathtub. The third guy
       stuck his fingers in me to clean me out and then he made me
       suck him off.

¶7           The nurse's examination of the victim took 75 minutes, after
which she released the victim back to the care of the emergency room staff,
recommending that she be given medication to prevent sexually
transmitted infections and that she make an appointment to return for
another check in a few weeks.

¶8            The jury convicted Hill of one count of first-degree burglary,
a Class 2 felony; four counts of kidnapping, Class 2 felonies; seven counts
of sexual assault, Class 2 felonies; one count of attempted sexual assault, a
Class 3 felony; and four counts of aggravated assault, Class 3 felonies. The
court sentenced him to consecutive and concurrent sentences of
imprisonment totaling 91.5 years.

¶9             Hill timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2014), 13-4031 (2014) and -4033 (2014).2

                               DISCUSSION

¶10           Although several of Hill's convictions were supported by
substantial other evidence at trial, the nurse's account of the victim's
statement recited supra ¶ 6 was the only evidence establishing the
particulars of a few of the charges against him. Hill argues the superior
court violated his Sixth Amendment right to confront witnesses when it
admitted the victim's statement to the forensic nurse.3 We review the


2      Absent material revision after the date of the alleged offense, we cite
a statute's current version.

3      Hill's counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), saying she
could identify no arguable question of law that was not frivolous. In a
separate supplemental brief, Hill argued, inter alia, that the forensic nurse's



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                               STATE v. HILL
                             Opinion of the Court

superior court's decision under the Confrontation Clause de novo. State v.
Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007).

¶11             The Confrontation Clause provides, "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington,
541 U.S. 36, 53-54 (2004), the Supreme Court held that a "testimonial"
statement by a witness who does not appear at trial must be excluded under
the Confrontation Clause unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination. The Court did
not comprehensively define "testimonial," but described a "core class of
'testimonial' statements" as including affidavits, custodial examinations,
depositions, prior testimony, confessions, "[s]tatements taken by police
officers in the course of interrogations," and any other "statements that were
made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial." Id. at 51-52.

¶12            In Davis v. Washington, 547 U.S. 813, 817 (2006), the Supreme
Court analyzed whether statements made to a 911 operator were
"testimonial" for purposes of the Confrontation Clause. There the Court
held that "[s]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet
an ongoing emergency." Id. at 822. On the other hand, statements "are
testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal
prosecution." Id. Thus, in Davis the Supreme Court shifted the focus under
the Confrontation Clause to the "primary purpose" of an interrogation. See
State v. Alvarez, 213 Ariz. 467, 471, ¶ 15, 143 P.3d 668, 672 (App. 2006). The
Court observed that "a 911 call[] is ordinarily not designed primarily to
'establis[h] or prov[e]' some past fact, but to describe current circumstances
requiring police assistance." Davis, 547 U.S. at 827; see also id. ("the elicited
statements were necessary to be able to resolve the present emergency,

testimony violated his Confrontation Clause rights. Pursuant to Penson v.
Ohio, 488 U.S. 75, 86-88 (1988), we ordered supplemental briefs addressing
this issue. In a separate memorandum decision, we resolve other issues Hill
raised in his supplemental brief, see Ariz. R. Crim. P. 31.26, and order the
judgment of conviction modified to delete the requirement that Hill pay for
DNA testing, see State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App.
2013).


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                                   STATE v. HILL
                                 Opinion of the Court

rather than simply to learn (as in Crawford) what had happened in the
past").

¶13          In Michigan v. Bryant, the Court sought to clarify the "primary
purpose" analysis. 562 U.S. __, 131 S. Ct. 1143, 1156 (2011). The Court held
the determination requires an objective evaluation of the facts relating to
the exchange:

       An objective analysis of the circumstances of an encounter
       and the statements and actions of the parties to it provides the
       most accurate assessment of the "primary purpose of the
       interrogation." The circumstances in which an encounter
       occurs – e.g., at or near the scene of the crime versus at a police
       station, during an ongoing emergency or afterwards – are
       clearly matters of objective fact. The statements and actions
       of the parties must also be objectively evaluated. That is, the
       relevant inquiry is not the subjective or actual purpose of the
       individuals involved in a particular encounter, but rather the
       purpose that reasonable participants would have had, as
       ascertained from the individuals' statements and actions and
       the circumstances in which the encounter occurred.

Id. at __, 131 S. Ct. at 1156.

¶14           Under these authorities, in determining whether the superior
court here erred in allowing the nurse to recount the victim's statement, we
must evaluate objectively all the facts concerning the exchange that
produced the statement to determine the "primary purpose" of the nurse's
question to the victim and the victim's response. See id.; see also State v.
Mendez, 242 P.3d 328, 339-40 (N.M. 2010).4



4      In considering whether a forensic nurse's testimony was admissible
under the hearsay exception for statements made for medical diagnosis, the
Mendez court commented, "[Forensic] nurses fill a void in our medical
system, providing critical treatment to patients at a time of great physical,
emotional, and psychological vulnerability . . . . But they also have special
expertise in gathering evidence for subsequent prosecution of the offender,
which raises appropriate concerns about whether the statement was made
for the purposes of seeking medical care or whether a medical provider
could have reasonably relied upon the statement for diagnosis or treatment
of the declarant." 242 P.3d at 339-40; see Bryant, 562 U.S. at __, 131 S. Ct. at
1155.


                                          6
                             STATE v. HILL
                           Opinion of the Court

¶15          Other courts examining similar exchanges under the
Confrontation Clause have looked to where the examination took place, the
victim's medical condition, whether law enforcement officers were present
and the formality of the exchange.

¶16           Courts routinely admit victims' statements made in response
to questions necessary for medical treatment. See, e.g., People v. Vigil, 127
P.3d 916 (Colo. 2006) (child victim's statements to physician at hospital
helped physician discern what treatment child required; examination was
not functional equivalent of police interrogation); Commonwealth v.
DeOliveira, 849 N.E.2d 218, 224-25 (Mass. 2006) (child victim's statements to
physician at hospital admissible because a reasonable declarant would have
understood that question "what had happened" was a medical query).
Accordingly, a victim's statement to a medical professional is more likely to
be non-testimonial when the victim is examined in a hospital emergency
room, where the medical necessity of the examination presumably is more
pronounced. See, e.g., State v. Slater, 939 A.2d 1105, 1119 (Conn. 2008)
("When such a victim is brought to a hospital, even by the police, we expect
that his or her most pressing concern is getting medical attention and not
providing a record of facts."); State v. Harper, 770 N.W.2d 316, 322-23 (Iowa
2009) (statements by burn victim to emergency room staff were to assist in
diagnosis and emergency treatment); State v. Vaught, 682 N.W.2d 284, 286,
291-92 (Neb. 2004) (child victim's statement to emergency room physician
was not testimonial).

¶17            When the testifying witness is a trained forensic medical
professional, the issue may be more difficult. In Hartsfield v. Commonwealth,
277 S.W.3d 239, 241, 244-45 (Ky. 2009), the court held a rape victim's
statements to a trained "sexual assault nurse examiner" ("SANE") at a
hospital were testimonial because the nurse was an "active participant in
the formal criminal investigation." The court found significant that the
"nurse's questioning involved past events, was not related to an ongoing
emergency, and took on the nature of a formal interview." Id. at 245. The
court concluded that SANE nurses' "function of evidence gathering,
combined with their close relationships with law enforcement, renders
[their] interviews the functional equivalent of police questioning." Id. at
244.

¶18           Like the witness in Hartsfield, the forensic nurse in this case
followed a law enforcement protocol by using a rape kit to gather evidence.
But unlike in Hartsfield, where the nurse only interviewed the victim about
her assault and collected biological samples, see id. at 241-42, 244-45, the
forensic nurse in this case also provided medical care to the victim.


                                     7
                              STATE v. HILL
                            Opinion of the Court

¶19           Because forensic medical examinations often have two
purposes – to gather evidence for a criminal investigation and to provide
medical care to the victim – whether a victim's statement in response to a
question by the examiner is testimonial for purposes of the Confrontation
Clause turns on whether the surrounding circumstances, objectively
viewed, show that the primary purpose of the exchange at issue was to
provide medical care or to gather evidence. See Perry v. State, 956 N.E.2d
41, 56-57 (Ind. App. 2011) (investigative component of forensic medical
examination "was at best secondary to the principal objective of providing
and receiving medical attention"); State v. Miller, 264 P.3d 461, 486-490 (Kan.
2011) (whether statements to a SANE nurse are testimonial is a "highly
context-dependent inquiry" requiring analysis of the totality of the
circumstances). For this reason, we part with Hartsfield and other cases,
including Medina v. State, 143 P.3d 471 (Nev. 2006), to the extent they hold
that rape victims' statements to forensic medical professionals are
testimonial as a matter of law.

¶20             The Hartsfield court also found it significant that there was no
"emergency" by the time the victim in that case was examined at the
hospital. 277 S.W.3d at 245. A statement to police is more likely to be non-
testimonial if it is made during an emergency, while the witness still may
be in danger or criminal activity may remain afoot. See Bryant, 562 U.S. at
__, 131 S. Ct. at 1166-67; Davis, 547 U.S. at 822. That does not mean,
however, that a statement is testimonial unless it is made during an
emergency. See Bryant, 562 U.S. at __, 131 S. Ct. at 1155 ("But there may be
other circumstances, aside from ongoing emergencies, when a statement is
not procured with a primary purpose of creating an out-of-court substitute
for trial testimony.").

¶21            The focus always must be on the purpose of the particular
exchange between the declarant and the testifying witness in which the
statement was made. See Alvarez, 213 Ariz. at 471, ¶ 15, 143 P.3d at 672.
Under that analysis, when the objective circumstances indicate a statement
was made in connection with the provision of emergency medical care, the
statement is likely to be non-testimonial. See, e.g., Ward v. State, 15 N.E.3d
114, 117, 121 (Ind. App. 2014) (victim's statements in emergency room were
made primarily for the provision of emergency medical care where victim
had been severely beaten and there were concerns she suffered internal
injuries to kidneys and lungs). In such a case, the emergent nature of the
exchange makes it more likely that its purpose is medically related. See id.
at 121.




                                       8
                              STATE v. HILL
                            Opinion of the Court

¶22           We cannot say, however, that a statement made in response
to a question by a medical provider in connection with non-emergent
medical care necessarily is testimonial simply because the victim does not
require urgent medical attention. See Miller, 264 P.3d at 489 ("[I]f statements
are made in a medical emergency, there would be a strong indication the
objective purpose was medical diagnosis and treatment. On the other hand,
where there are injuries or concerns of injury, the lack of a medical
emergency does not negate the purpose of seeking medical treatment."). If
the primary purpose of the encounter is the provision and receipt of
medical care, the statement is non-testimonial, regardless of whether the
care sought is for an emergent condition. See id.; see also United States v.
DeLeon, 678 F.3d 317, 323-26 (4th Cir. 2012), vacated on other grounds, 133 S.
Ct. 2850 (2013) (statements to social worker months before alleged criminal
act were non-testimonial because they were made for treatment purposes,
not for law enforcement purposes).5

¶23            Courts also have refused to admit statements made by a
victim during a forensic medical examination when there is evidence of
heightened police involvement – when, for example, an officer was present
during the examination, or the examination was recorded for law
enforcement purposes. See, e.g., United States v. Bordeaux, 400 F.3d 548, 556
(8th Cir. 2005) (examination videotaped); State v. Hooper, 176 P.3d 911, 917-
18 (Idaho 2007) (law enforcement officers present during the examination;
videotape was made; and nurse did not ask any questions related to
victim's medical condition); State v. Bennington, 264 P.3d 440, 455 (Kan.
2011) (law enforcement officer present and asked questions during
examination); State v. Snowden, 867 A.2d 314, 325-27 (Md. 2005) (police
officer present and social worker began the interview with a police report
in hand); Green v. State, 22 A.3d 941, 951, 953 (Md. Spec. App. 2011) (forensic
report was "prepared at the specific request of the police" and victim had
"already received the needed medical assessment and treatment" at the
hospital); State v. Hurtado, 294 P.3d 838, 845, ¶ 29 (Wash. App. 2013) (law

5      Cases holding that statements are testimonial when made under
circumstances that do not show the victim required or was seeking medical
care are not inconsistent. See Hernandez v. State, 946 So. 2d 1270, 1280-86
(Fla. App. 2007) (child victim's statements to a "Child Protection Team"
nurse one week after sexual attack were inadmissible); State v. Cannon, 254
S.W.3d 287, 305 (Tenn. 2008) (statement during structured examination and
interview with forensic nurse after victim had received medical treatment
was testimonial); United States v. Gardinier, 65 M.J. 60, 65-66 (C.A.A.F. 2007)
(SANE nurse's account of interview of child victim conducted several days
after child reported assault was testimonial).


                                      9
                              STATE v. HILL
                            Opinion of the Court

enforcement officer present and gathered evidence during examination); cf.
State v. Stahl, 855 N.E.2d 834, 837, ¶ 7, 846, ¶ 48 (Ohio 2006) (statements by
victim were non-testimonial even though police officer was present).

¶24           Guided by these authorities, we conclude the nurse's
recounting of the victim's statement did not violate Hill's rights under the
Confrontation Clause. The nurse's medical examination of the victim took
place in the emergency room of a hospital, where the victim had been taken
because she was in premature labor. Significantly, the question that
prompted the statement at issue – "Why are you here?" – is the starting
point of any ordinary medical examination. As the nurse testified:

       [I]f you go to a physician and you have a sore throat, you
       actually have to tell the physician or physician assistant or the
       nurse why you're there. You don't just go in a room and sit
       and they have to wonder why you're there . . . . It is the same
       thing with my patients, they come in and tell me why they are
       there, so that I can treat them.

Moreover, the nurse performed a standard medical assessment of the
victim and recorded the results. No law enforcement officer was present
during any part of the examination, which was not recorded. After
examining the victim, the nurse recommended prophylactic preventative
treatment for sexually transmitted infections and a follow-up appointment
for medical care. The victim remained in the emergency room for
observation after the examination was completed. These circumstances,
objectively viewed together, demonstrate that the primary purpose of the
exchange that produced the statement at issue was to provide medical
treatment.

¶25           To be sure, the examination the nurse performed had an
investigative component. The nurse was specially trained to conduct
forensic examinations of sexual assault victims. She collected DNA
samples to forward to law enforcement, and she recorded the results of her
examination, including the victim's statement, on a form issued by the state.
The statement recounted above, however, came at the outset of the victim's
encounter with the nurse and before the nurse commenced her assessment
of the injuries the victim had suffered and before she had collected any
biological evidence of those injuries. The open-ended question ("Tell me
why you are here"), posed to the victim in the emergency room, was not
aimed at collecting evidence but at gathering information about the victim's
medical condition. The objective circumstances of the exchange that
produced the statement thus indicate that its primary purpose was medical


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                             STATE v. HILL
                           Opinion of the Court

treatment, not the collection of evidence of a crime. See Slater, 939 A.2d at
1118 (collecting evidence during examination of a sexual assault victim
"does not eviscerate the medical treatment purpose of the exam"); Perry, 956
N.E.2d at 56-57; State v. Bobadilla, 709 N.W.2d 243, 255 (Minn. 2006).

                              CONCLUSION

¶26           Because the victim's statement to the forensic nurse was not
testimonial, Hill's rights under the Confrontation Clause were not violated
when the superior court allowed the nurse to recount the statement. For
the reasons set forth above and in our accompanying memorandum
decision, we affirm Hill's convictions and sentences.




                                    :gsh




                                     11
