                                                                  FILED BY CLERK
                                                                      SEP 29 2006
                            IN THE COURT OF APPEALS                   COURT OF APPEALS
                                STATE OF ARIZONA                        DIVISION TWO
                                  DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )       2 CA-CR 2002-0084
                                Appellee,    )       DEPARTMENT A
                                             )
                  v.                         )       SUPPLEMENTAL
                                             )       OPINION
ISRAEL JOAQUIN ALVAREZ,                      )
                                             )
                                Appellant.   )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20013408

                       Honorable Howard Fell, Judge Pro Tempore

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Joseph T. Maziarz                                    Phoenix
                                                              Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By John Seamon                                                              Tucson
                                                             Attorneys for Appellant


P E L A N D E R, Chief Judge.
¶1            After a jury trial, appellant Israel Joaquin Alvarez was convicted of first-degree

murder based on felony murder and aggravated robbery and was sentenced to concurrent

prison terms of life and 6.5 years. In our prior opinion on his appeal, we affirmed those

convictions and sentences. State v. Alvarez, 210 Ariz. 24, ¶¶ 1, 24, 107 P.3d 350, 352, 356

(App. 2005). We concluded, inter alia, a statement the victim (S.) had made to Pima County

Sheriff’s Deputy Othic “was nontestimonial hearsay outside the scope of Crawford [v.

Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)]” and, therefore, “[t]he trial court’s

admission of S.’s statement did not violate Alvarez’s confrontation rights” under the Sixth

Amendment to the United States Constitution. Alvarez, 210 Ariz. 24, ¶ 22, 107 P.3d at

356.

¶2            This case returns to us from our supreme court, which previously granted

Alvarez’s petition for review and, after holding oral argument, remanded the case to this

court for reconsideration in light of Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266

(2006). State v. Alvarez, No. CR-05-0104-PR, 2006 WL 2089243 (Ariz. July 10, 2006).1

Having reconsidered this matter in light of Davis and having reviewed the parties’

supplemental briefs filed after remand, we now vacate that portion of our prior opinion

relating to the Confrontation Clause issue, 210 Ariz. 24, ¶¶ 18-22, 107 P.3d at 355-56,


       1
        We infer from our supreme court’s order of remand and its reference solely to the
Davis case that our reconsideration now is limited to only that portion of our prior opinion
that addressed the Confrontation Clause issue. See State v. Alvarez, 210 Ariz. 24, ¶¶ 18-22,
107 P.3d 350, 355-56 (App. 2005). Therefore, we do not address any other issues raised
in Alvarez’s petition for review or argued on review in the supreme court.

                                              2
replace it with this supplemental opinion, and again affirm Alvarez’s convictions and

sentences.

                                                I

¶3            We briefly review the facts bearing on the Confrontation Clause issue. In so

doing, we view the evidence in the light most favorable to upholding the convictions, see

State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111 (1998), and in the light most

favorable to the proponent of the challenged evidence, here the state. See State v. Petzoldt,

172 Ariz. 272, 276, 836 P.2d 982, 986 (App. 1991).

¶4            In the mid-afternoon of June 10, 2001, Deputy Othic was on routine patrol in

“a low-traffic area,” driving westbound on Irvington Road. As he approached Butts Road,

Othic saw a man (the victim, S.) “staggering back and forth” in the northbound lane of Butts

Road. Believing that S. might be intoxicated, Othic made a U-turn and then drove down

Butts Road toward him. As Othic approached, he noticed that S. was “bleeding badly from

the face.” The blood covered “a majority of his face” and also was “all in his hair.” Othic

immediately requested medical assistance on his radio, and as he exited his patrol car, S.

“collapsed on the back of [the car’s] trunk.”

¶5            Othic testified that during his approximate one-minute encounter with S.,

Othic “basically asked him two questions, his name and what happened.” Because at first

S. “wasn’t responding” at all, Othic “kept asking him his name.” S. eventually gave his first

name and, when Othic asked him what had happened, S. stated three men had “jumped him”


                                             3
and had taken his 1995 white Suzuki.2 According to Othic, S. “was in pain,” “kept going

in and out of consciousness,” “kept asking for a doctor” and was “talking real low.” S. then

“lost consciousness” shortly before medical personnel arrived, and Othic had no further

contact with him. S. died two days later. An autopsy revealed that his death was caused by

multiple blunt force injuries to his head and brain damage.

                                             II

¶6            The Confrontation Clause issue first arose in this case in September 2004,

several months after Alvarez’s appeal came at issue and after the United States Supreme

Court issued its opinion in Crawford.3 At that time, Alvarez merely filed with this court a

notice of supplemental authority, citing Crawford. In our first opinion, we addressed and

rejected any Confrontation Clause argument on the merits, without discussing whether

Alvarez had properly preserved that issue below. 210 Ariz. 24, ¶¶ 18-22, 107 P.3d at 355-

56. As the state points out, however, at trial Alvarez objected to admission of Deputy

Othic’s testimony “regarding the victim’s out-of-court statements solely on the evidentiary


       2
        Police ultimately learned that on the date in question, S. actually had been driving
a white Chevrolet Cavalier rental vehicle, not a Suzuki, and previously had reported his
registered vehicle, a Suzuki, stolen in May 2001. On the same day that Deputy Othic found
S. staggering on the road, Alvarez and two other men were found in the Cavalier, detained
in Nogales at the port of entry to Mexico, and later arrested and charged with the crimes
committed against S.
       3
         Both Crawford and Davis apply to this case because Alvarez’s convictions were not
yet final when those decisions were issued. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6,
107 S. Ct. 708, 712 n.6 (1987); State v. King, 212 Ariz. 372, n.2, 132 P.3d 311, 313 n.2
(App. 2006).

                                             4
ground that it was ‘hearsay’ and did not qualify as an ‘excited utterance.’” Neither at trial

nor in his appellate briefs filed in this court did Alvarez raise any Sixth Amendment

objection to admission of that evidence. See State v. Rankovich, 159 Ariz. 116, 122 n.3,

765 P.2d 518, 524 n.3 (1988) (failure to raise or argue claim in opening brief “constitutes

abandonment and waiver of that issue”); cf. State v. King, 212 Ariz. 372, ¶ 14, 132 P.3d

311, 314 (App. 2006) (defendant’s objection below that “he would not be able to cross-

examine” unavailable witness whose hearsay statements to 911 operator were admitted at

trial “were sufficient to avoid waiver of his Confrontation Clause argument”).

¶7            A “hearsay” objection does not preserve for appellate review a claim that

admission of the evidence violated the Confrontation Clause. See State v. Hernandez, 170

Ariz. 301, 306-07, 823 P.2d 1309, 1314-15 (App. 1991); see also State v. Huerstel, 206

Ariz. 93, ¶ 29, 75 P.3d 698, 707 (2003) (hearsay rule and Confrontation Clause are not the

same and serve different purposes). By failing to object below on Sixth Amendment

grounds, Alvarez “forfeit[ed] the right to obtain appellate relief unless [he] prove[s] that

fundamental error occurred.” State v. Martinez, 210 Ariz. 578, n.2, 115 P.3d 618, 620 n.2

(2005); see also State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005)

(“Fundamental error review . . . applies when a defendant fails to object to alleged trial

error.”); State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987) (doctrine of waiver

“applies to constitutional error”). Fundamental error is “‘error going to the foundation of

the case, error that takes from the defendant a right essential to his defense, and error of such


                                               5
magnitude that the defendant could not possibly have received a fair trial.’” Henderson,

210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d

980, 982 (1984).

¶8            As the appellant, Alvarez bears “the burden of persuasion in fundamental error

review” and “must first prove error.” Id. ¶¶ 19, 23; see also State v. Lavers, 168 Ariz. 376,

385, 814 P.2d 333, 342 (1991) (“Before we may engage in a fundamental error analysis, . . .

we must first find that the trial court committed some error.”). And, assuming any error is

established, “[i]n order to obtain reversal based on unobjected-to trial error, a defendant

must show ‘both that fundamental error exists and that the error in [his or her] case caused

. . . prejudice.’” State v. Ruggiero, 211 Ariz. 262, ¶ 25, 120 P.3d 690, 696 (App. 2005),

quoting Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (alteration in Ruggiero); see

also State v. Munninger, No. CR-03-0328, ¶¶ 4, 10, 2006 WL 2328566 (Ariz. Ct. App.

Aug. 8, 2006).

                                             III

¶9            Applying those principles here, we begin our analysis by examining whether,

in light of Davis, the trial court committed constitutional error in admitting Deputy Othic’s

testimony about what the victim had told him at the scene.4 Alvarez argues the victim’s


       4
       We do not revisit our prior ruling that the trial court did not err in overruling
Alvarez’s hearsay objection and admitting as an excited utterance the victim’s statement to
Deputy Othic. Alvarez, 210 Ariz. 24, ¶¶ 13-17, 107 P.3d at 354-55. That ruling, however,
does not resolve the Confrontation Clause issue. See State v. Parks, 211 Ariz. 19, ¶¶ 35,
41, 116 P.3d 631, 638, 640 (App. 2005) (rejecting state’s argument that an excited utterance

                                             6
“can never be testimonial” under Crawford ); see also King, 212 Ariz. 372, ¶ 22, 132 P.3d
at 316 (“[T]he mere fact that statements may be considered excited utterances does not
automatically remove them from Confrontation Clause analysis.”). Rather, “[w]hether an

                                           7
“statement about three persons attacking him and taking his car was testimonial in nature

and was unduly prejudicial.” According to Alvarez, Davis requires reversal and preclusion

of that evidence. In contrast, the state argues no error occurred “because the victim’s

statements to Deputy Othic are clearly ‘nontestimonial’ under Crawford and Davis.” In

addition, the state argues, any alleged error in the admission of that evidence was neither

fundamental nor prejudicial. We agree with the state on all points.

¶10           In Crawford, the Supreme Court held the Sixth Amendment’s Confrontation

Clause bars “admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify and the defendant had had a prior opportunity for cross-

examination.” 541 U.S. at 53-54, 124 S. Ct. at 1355; see also Davis, ___ U.S. at ___, 126

S. Ct. at 2273. Although the Court in Crawford decided to “leave for another day any effort

to spell out a comprehensive definition of ‘testimonial,’” 541 U.S. at 68, 124 S. Ct. at 1374,

it described a “core class of ‘testimonial’ statements” that included, inter alia, “‘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,’ . . . [and] [s]tatements

taken by police officers in the course of interrogations.” Id. at 51-52, 124 S. Ct. at 1364,

quoting brief in case; see also State v. Parks, 211 Ariz. 19, ¶¶ 28, 50, 116 P.3d 631, 637,

642 (App. 2005).




excited utterance will be testimonial . . . depends on the circumstances existing when the
statement was made.” Parks, 211 Ariz. 19, ¶ 40, 116 P.3d at 639.

                                               8
¶11           In Davis, the Supreme Court attempted to clarify the distinction between

testimonial and nontestimonial statements for purposes of the Confrontation Clause. ___

U.S. ___, 126 S. Ct. at 2273. In reviewing the two companion cases before it, the Court

concluded in one (Davis) that a domestic violence victim’s “frantic,” telephonic statements

in response to a 911 emergency operator’s questions were not testimonial and, therefore, not

subject to the Confrontation Clause, id. at ___, 126 S. Ct. at 2277, whereas in the second

case (Hammon) the Court characterized as testimonial a domestic battery victim’s written

statements in an affidavit given to a police officer during a post-incident, investigative

interrogation. Id. at ___, 126 S. Ct. at 2277-78. In Davis, the Court observed, the victim

“was speaking about events as they were actually happening, rather than ‘describ[ing] past

events,’” and, viewed objectively, the “primary purpose [of the victim’s interrogation] was

to enable police assistance to meet an ongoing emergency.” Id. at ___, ___, 126 S. Ct. at

2276, 2277, quoting Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 1900 (1999)

(plurality opinion) (alteration in Davis). The Court contrasted that situation with that

presented in Hammon, in which “the interrogation was part of investigation into possibly

criminal past conduct,” “[t]here was no emergency in progress,” and “[o]bjectively viewed,

the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible

crime.” Id. at ___, 126 S. Ct. at 2278.




                                              9
¶12           Although the Court in Davis again did not “attempt[] to produce an exhaustive

classification of all conceivable statements—or even all conceivable statements in response

to police interrogation—as either testimonial or nontestimonial,” the Court held:

              Statements 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. They 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. at ___, 126 S. Ct. at 2273-74. The Court also noted that it did not “imply . . . that

statements made in the absence of any interrogation are necessarily nontestimonial.” Id. at

___ n.1, 126 S. Ct. at 2274 n.1. And the Court rejected any “implication that virtually any

‘initial inquiries’ at the crime scene will not be testimonial,” but expressly “d[id] not hold

the opposite—that no questions at the scene will yield nontestimonial answers.” Id. at ___,

126 S. Ct. at 2279. Indeed, the Court observed, various exigencies at the scene “may often

mean that ‘initial inquiries’ produce nontestimonial statements.” Id.

                                             IV

¶13           According to Alvarez, this case is closer to Hammon and Crawford than to

Davis. Unlike the situation in Davis, Alvarez argues, the victim’s statement here was not

made during an ongoing crime or crisis, but rather, Othic’s “questioning occurred hours after




                                             10
the emergency.”5 “Viewed objectively,” Alvarez further asserts, “the officer’s questions were

designed to produce information useful in a prosecution” and were solely “geared to

discover what had happened in the past.” According to Alvarez, the victim’s “inculpatory

answer in response to [Othic’s] open-ended questioning” constituted “a brief but

nonetheless narrative report of a past crime.” Therefore, Alvarez argues, the statement must

be considered testimonial because, viewed objectively, the brief exchange between Othic and

the victim “related only to past events” and “had nothing to do with medical treatment or

injuries.”

¶14           The question of whether a statement is testimonial “is a factually driven

inquiry and must be determined on a case-by-case basis.” State v. Parks, 211 Ariz. 19, ¶ 43,

116 P.3d 631, 640 (App. 2005).6 That determination “depends on the circumstances

       5
        Alvarez does not point to any evidence in the record that reflects either the amount
of time that had elapsed between the assault and the victim’s statement to Othic, or the
distance between the two locations where those events occurred. The record reflects,
however, that the assault on the victim occurred approximately 1100 feet from where Othic
had contacted him.
       6
        After granting the state’s petition for review in Parks, our supreme court remanded
the case to Division One of this court for reconsideration in light of Davis, as it did in this
case. On remand, Division One reaffirmed its reversal of the defendant’s manslaughter
conviction after again concluding the deceased witness’s post-incident statements to police
officers were testimonial and had been improperly admitted at trial over defendant’s
objection on both hearsay and Confrontation Clause grounds. State v. Parks, supp. op.,
2006 WL 2624080 (Ariz. Ct. App. Sept. 14, 2006); see also Parks, 211 Ariz. 19, ¶ 16, 116
P.3d at 635. Although Alvarez does not cite or rely on Parks, it is readily distinguishable
from this case based on the nature, timing, and surrounding circumstances of the hearsay
statements involved. In addition, as the court in Parks observed in its original opinion,
“[s]tatements made by witnesses to police so the police may secure their own or the
witnesses’ safety, render emergency aid, or protect the security of the crime scene may not

                                              11
existing when the statement was made” and takes into account “the totality of the

circumstances surrounding [the statement].” Id. ¶¶ 40, 52. Viewing all the surrounding

circumstances in context here, we are not persuaded by Alvarez’s argument that the victim’s

statement to Othic was testimonial and, therefore, subject to the Confrontation Clause. See

Davis, ___ U.S. at ___, 126 S. Ct. at 2273 (nontestimonial hearsay evidence “is not subject

to the Confrontation Clause”).

¶15            Although not entirely clear, the Court in Davis apparently shifted the focus

from the motivations or reasonable expectations of the declarant to the primary purpose of

the interrogation. See ___ U.S. at ___, ___, 126 S. Ct. at 2273-74, 2274 n.1 (Court’s

holding in Davis emphasized “the primary purpose of the interrogation” as the lynchpin

differentiating testimonial from nontestimonial statements, but Court also stated, “even when

interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s

questions, that the Confrontation Clause requires us to evaluate”); see also State v. Hooper,

No. 31025, 2006 WL 2328233, at *5 (Idaho Ct. App. 2006) (Davis “focuses not at all on

the expectations of the declarant but on the content of the statement, the circumstances

under which it was made, and the interrogator’s purpose in asking questions.”); Ariana J.

Torchin, A Multidimensional Framework for the Analysis of Testimonial Hearsay Under

Crawford v. Washington, 94 Geo. L.J. 581, 589 (2006) (“[I]t is clear that testimonial




be testimonial.” Id. ¶ 48. And the Parks court found our original opinion in this case
consistent with “[t]he conclusions [Division One] dr[e]w from Crawford.” Id. ¶ 51.

                                                12
hearsay embraces both the perspective of the declarant and the government.”). But, under

either construct, the statement at issue here is nontestimonial.

¶16           First, assuming Othic’s brief questioning of the victim during his one-minute

encounter with him constituted “interrogation,”7 nothing in the record suggests the victim

“would [have] reasonably expect[ed] [his statement] to be used prosecutorially or . . . made

[it] under circumstances that would lead an objective witness reasonably to believe the

statement would be available for use at a later trial.” Parks, 211 Ariz. 19, ¶ 36, 116 P.3d

at 639; see also Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364; King, 212 Ariz. 372,

¶¶ 19-21, 132 P.3d at 315-16; State v. Rodriguez, No. 2005AP1265-CR, 2006 WL

2088161 (Wis. Ct. App. July 28, 2006) (domestic violence victim’s excited utterances to

investigating officer, in which she described incident in detail and identified assailant,

deemed nontestimonial). The record does not reflect that the semi-conscious victim was

even aware that the person to whom he spoke was a law enforcement officer. As the state



       7
         “[A]n interrogation, as that term is used in Crawford, does not turn on whether
police questioning occurred during a field investigation or can be labeled formal or
structured.” Parks, 211 Ariz. 19, ¶ 46, 116 P.3d at 641; see also id. ¶ 49; King, 212 Ariz.
372, ¶ 34, 132 P.3d at 318. The Court in Crawford used the term “interrogation” in its
“colloquial, rather than any technical legal, sense.” 541 U.S. at 53 n.4, 124 S. Ct. at 1365
n.4. But when the Court stated in Crawford that “‘interrogations by law enforcement
officers fall squarely within [the] class’ of testimonial hearsay, [the Court] had immediately
in mind . . . interrogations solely directed at establishing the facts of a past crime, in order
to identify (or provide evidence to convict) the perpetrator.” Davis, ___ U.S. at ___, 126
S. Ct. at 2276, quoting Crawford, 541 U.S. at 53, 124 S. Ct. at 1365 (alteration and
omission in Davis). Deputy Othic’s brief questioning of the victim does not seem to fall
within that category.

                                              13
correctly points out, S. “did not identify any of the persons who ‘jumped’ him and took his

vehicle,” “provided no details concerning what those persons did to him,” and “never

mentioned, nor implicated, [Alvarez].” Nor did Deputy Othic ask for any such information.



¶17           As the Wisconsin court in Rodriguez noted, “[v]ictims’ excited utterances to

law-enforcement officers responding to either an on-going or recently completed crime,

serve, as with the 911-call, a dual role—the dichotomy between finding out what is

happening as opposed to recording what had happened.” Id. ¶ 23. The court in that case

concluded, “given [the victims’] contemporaneously endured trauma, it cannot be said that

objectively they said what they said to the officers with a conscious expectation that their

words would somehow have the potential for use in court against Rodriguez.” Id. ¶ 27. The

same can be said with respect to S.’s statement to Deputy Othic in this case. As in

Rodriguez, neither the statement itself nor the circumstances surrounding it suggests that S.

“overtly or covertly intended . . . to implicate an accused at a later judicial proceeding,” but

rather merely spoke in “a burst of stress-generated words whose main function [was] to get

help and succor, or to secure safety.” Id. ¶ 26.

¶18           Second, viewed objectively, the circumstances under which S. made his

statement “indicat[e] that the primary purpose of the interrogation [was] to enable police

assistance to meet an ongoing emergency,” rather than “to establish or prove past events

potentially relevant to later criminal prosecution.” Davis, ___ U.S. at ___, 126 S. Ct. at


                                              14
2273-74. Without question, an investigating officer’s asking a victim at the scene “what

happened” might often lead to testimonial answers, depending on all the circumstances. See

State v. Mechling, 633 S.E.2d 311, 323 (W.Va. 2006) (victim’s statements in response to

deputies’ interrogation deemed testimonial when “[t]here was no emergency in progress

when the deputies arrived” and “the purpose of the deputies’ interrogation was to investigate

a possible crime”). But it certainly cannot be said that such a question always seeks and

results in a testimonial response. See Vinson v. State, Nos. 01-05-00784-CR, 01-05-00785-

CR, 2006 WL 2291000, at *7 (Tex. Crim. App. Aug. 10, 2006) (statements by domestic

assault victim, including her identification of assailant, in response to investigating officer’s

question, “what happened,” deemed nontestimonial; “the deputy’s asking only what had

happened was tantamount to his having asked whether an emergency existed or whether [the

victim] needed assistance”); see also United States v. Clemmons, No. 05-4235, 2006 WL

2472758, at *3 (8th Cir. Aug. 29, 2006) (victim’s statements to investigating officer who

responded to scene nontestimonial when “[t]he circumstances, viewed objectively, indicate

that the primary purpose of [the officer’s] questions was to enable him to assess the situation

and to meet the needs of the victim”); cf. Torchin, supra, at 606 (“If it is clear that the law

enforcement officer is gathering evidence or building leads to further investigate the case, any

incriminating information that the officer elicits from the declarant should be considered

testimonial, whether the agent casually asked ‘what happened,’ or chimed in with leading

questions.”).


                                               15
¶19           Here, S. was found staggering in a roadway, bleeding profusely from his head,

and slipping in and out of consciousness, prompting Deputy Othic to immediately summon

medical assistance. S.’s injuries obviously were serious; indeed, they resulted in his death

within forty-eight hours. We disagree with Alvarez’s contentions that these facts do not

reflect any “ongoing emergency,” Davis, ___ U.S. at ___, 126 S. Ct. at 2273, and that

Othic’s asking S. “what happened” bore no relation to that emergency or S.’s injuries.

Although the criminal activity that resulted in S.’s injuries and the ensuing charges against

Alvarez had ended, the emergency that those events set in motion was very much ongoing.

Under these circumstances, “[a]ny reasonable observer would understand that [the victim]

was facing an ongoing emergency and that the purpose of the interrogation was to enable

police assistance to meet that emergency.” Clemmons, 2006 WL 2472758, at *3. “The

Confrontation Clause does not prohibit questioning when, as here, its purpose, viewed

objectively, is to ascertain if there is an ongoing emergency.” Vinson, 2006 WL 2291000,

at *7, citing Davis, ___ U.S. at ___, 126 S. Ct. at 2276.

¶20           In sum, the trial court’s admission of Othic’s testimony about the victim’s

statement at the scene did not violate Alvarez’s Confrontation Clause rights. Finding no

error in the court’s evidentiary ruling, we need not address whether any alleged error was

fundamental and prejudicial.8


       We note, however, that Alvarez claims he was prejudiced because S.’s statement was
       8

the only evidence that “made [him] a participant in the assault and defeated his defense of
mere presence.” But as the state correctly notes, it is just as likely Alvarez “was convicted

                                             16
                                              V

¶21           Alvarez’s convictions and sentences are affirmed.



                                               ____________________________________
                                               JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
JOSEPH W. HOWARD, Presiding Judge



____________________________________
PHILIP G. ESPINOSA, Judge




because he and his two accomplices were found inside [S.’s] stolen rental car within a few
hours after [S.] was attacked, [Alvarez] repeatedly lied about how they came into possession
of the car, told [a detective] that he had never seen [S.], subsequently admitted being present
during the robbery and beating, and [S.’s] blood was found on [Alvarez’s] shoes.”

                                              17
