State v. Salazar ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTHONY ALBERT SALAZAR, Appellant.
No. 1 CA-CR 20-0097
FILED 7-8-2021
Appeal from the Superior Court in Maricopa County
No. CR2016-149931-001
The Honorable Warren J. Granville, Judge Retired
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
STATE v. SALAZAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Anthony Albert Salazar appeals his convictions and sentences
for kidnapping, aggravated assault, and violent sexual assault. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In May 2012, two men wielding knives pulled A.F. and N.C.
(collectively “victims”) into a vehicle. One of the men sexually assaulted
A.F. in the back seat, while the other sexually assaulted N.C. in the front
seat. The victims eventually broke away from the men and ran home.
¶3 A.F. contacted police the next day. The responding officer
interviewed the victims and took them to an advocacy center shared by law
enforcement and forensic medical staff. Forensic nurses examined the
victims, checked for injuries, and collected swabs for DNA testing. A.F.
sustained an injury on her neck and complained of genital and pelvic pain.
N.C. sustained injuries on her anus, abdomen, thigh, and ankle.
¶4 In March 2013, forensic analysts tested swabs collected from
the victims. The analysts located spermatozoa with a full DNA profile on
A.F.’s external genital swab.
¶5 In 2015, technical advances in the federal DNA database
enabled analysts to match the DNA profile with Salazar. A cold case
detective learned of the DNA match and began investigating. The detective
spoke with the victims, but N.C. could not remember details of the assault.
The detective noted that Salazar’s appearance fit A.F.’s description of her
perpetrator. Further investigation revealed Salazar’s criminal history,
including prior convictions for sexual assault. And additional testing
confirmed Salazar’s DNA profile matched the profile located on A.F.’s
external genital swab.
¶6 A grand jury indicted Salazar for one count of kidnapping,
one count of aggravated assault, and three counts of violent sexual assault
2
STATE v. SALAZAR
Decision of the Court
related to A.F. The grand jury also indicted Salazar for two counts of
aggravated assault, one count of kidnapping, and one count of violent
sexual assault related to N.C. As to the unidentified man’s conduct, the
grand jury indicted Salazar as an accomplice to one aggravated assault
count and one violent sexual assault count.
¶7 At trial, A.F. testified that a man pointed a knife at her, forced
her into the backseat of a vehicle, and penetrated her vagina with his penis
and fingers. She contacted police officers, traveled to the advocacy center,
and provided truthful statements to the responding officer and nurse. A.F.
did not remember any other sexual acts or the involvement of a second
perpetrator.
¶8 N.C. testified that one of the two men pulled her into the front
seat of a vehicle, penetrated her vagina with his fingers, and touched her
anus. N.C. described her perpetrator as a Hispanic male and she vaguely
remembered him holding a knife, but she could not remember details of
what happened to A.F. or how they escaped.
¶9 Salazar cross-examined the victims, emphasizing forgotten
details and any inconsistencies between their testimony and pretrial
statements. Salazar also cross-examined the victims about their mental
illnesses, including prior diagnoses, medications, and auditory
hallucinations.
¶10 The nurses testified their primary role is to examine victims
for injuries, complete a physical and neurological assessment, determine
whether a higher level of care is needed, and provide medication or
treatment. The nurses’ secondary role is collecting swabs for DNA testing.
Examinations are conducted in rooms outside the presence of law
enforcement.
¶11 The nurses testified they examined the victims using all
standard protocols and offered them venereal disease treatment, pregnancy
testing, and pregnancy prophylaxis. The nurses gathered the victims’
statements about the assault and provided those statements to the jury. The
victims gave a more detailed account of the assault to the nurses, including
A.F.’s report of oral sexual contact. The superior court permitted this
testimony over Salazar’s objection. But the court instructed the jury that it
admitted the pretrial statements for the limited purpose of explaining the
medical examinations.
¶12 After the victims testified, the State called the responding
officer to provide details from his initial interview. The officer testified
3
STATE v. SALAZAR
Decision of the Court
about the victims’ description of the assault, noting that A.F. never
mentioned oral sexual contact and N.C. never mentioned touching of the
anus. Salazar failed to object to this testimony.
¶13 The superior court acquitted Salazar on one count of
aggravated assault and the kidnapping count, and the jury found Salazar
not guilty of two counts of violent sexual assault. The jury found Salazar
guilty of all remaining counts.
¶14 The superior court found Salazar had at least three prior
felony convictions. The court sentenced Salazar to various terms of
imprisonment, including two consecutive terms of natural life in prison.
Salazar timely appealed. We have jurisdiction under Article 6, Section 9, of
the Arizona Constitution and A.R.S. §§ 13-4031 and -4033(A).
DISCUSSION
¶15 Salazar raises three issues on appeal. He argues: (1) the
victims’ memory loss prevented him from effective cross-examination
guaranteed by the Confrontation Clause; (2) the admission of the victims’
pretrial statements to the responding officer violated the Confrontation
Clause; and (3) the admission of the victims’ pretrial statements to the
responding officer violated the Confrontation Clause.
I. Victims’ Memory Loss
¶16 Salazar first argues the victims’ memory loss prevented him
from effective cross-examination. We review claims of Confrontation
Clause violations de novo. State v. Shivers, 230 Ariz. 91, 92, ¶ 6 (App. 2012).
¶17 The Confrontation Clause guarantees a defendant the right to
confront witnesses against him. See U.S. Const. amend. VI; see also Ariz.
Const. art. 2, § 24. But that right does not guarantee a perfect witness, free
of forgetfulness or confusion. See State v. Salazar, 216 Ariz. 316, 318, ¶ 9
(App. 2007). “[R]ather, it affords the defense a full and fair opportunity to
probe and expose these infirmities through cross-examination.” Id. (internal
quotations omitted) (quoting Delaware v. Fensterer, 474 U.S. 15, 21–22
(1985)). Memory loss therefore does not render a testifying witness
unavailable for purposes of the Confrontation Clause. See id. at 318–19, ¶¶
9–10 (victim did not remember details of the offense); see also State v. Real,
214 Ariz. 232, 234–36, ¶¶ 5–13 (App. 2007) (officer did not remember the
investigation). We will find no violation when a defendant had the
opportunity to present the jury with “information which bears either on the
issues in the case or on the credibility of the witness.” State v. Lehr, 201 Ariz.
4STATE v. SALAZAR
Decision of the Court
509, 518, ¶ 30 (2002) (internal quotations omitted) (quoting State v. Fleming,
117 Ariz. 122, 125 (1977)).
¶18 Salazar questioned the victims about their memory loss,
inconsistencies in their testimony, and mental health diagnoses and
medications potentially impacting their cognitive abilities. The victims had
issues remembering details of the offenses, but Salazar had the opportunity
to undermine their version of events and attack their credibility. See
Fensterer, 474 U.S. at 20 (testimony need not conform “in whatever way, and
to whatever extent” the defense wishes). Because Salazar received the
opportunity to cross-examine the victims without restriction, the
protections of the Confrontation Clause were neither implicated, nor
violated.
II. Victims’ Pretrial Statements to Nurses
¶19 Salazar next argues the admission of the victims’ pretrial
statements to the nurses violated the Confrontation Clause. We review
challenges to the admissibility of evidence based on the Confrontation
Clause de novo. See State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).
¶20 The Confrontation Clause is not implicated by the admission
of nontestimonial pretrial statements. See State v. Tucker, 215 Ariz. 298, 315,
¶ 61 (2007). A victim’s pretrial statements to a nurse may be considered
nontestimonial if made for the primary purpose of obtaining medical care.
See State v. Hill, 236 Ariz. 162, 167–68, ¶ 22 (App. 2014); see also Ariz. R. Evid.
803(4). We consider “whether the surrounding circumstances, objectively
viewed, show that the primary purpose of the exchange at issue was to
provide medical care or gather evidence.” Hill, 236 Ariz. at 167, ¶ 19.
Medical examinations with an investigative component do not
automatically render a victim’s statements testimonial. Id. at 168-69, ¶¶ 25–
26.
¶21 The nurses examined the victims, assessed their injuries,
performed testing and treatment, and asked about their medical history.
The nurses and law enforcement share the advocacy center, but the nurses
collected DNA swabs for testing and performed the examinations outside
of any monitoring or recording by law enforcement. The nurses asked the
victims for their assault histories, noted their statements on a standard
form, and provided medical care accordingly. Based on this record, the
primary purpose of the exchange at issue was to provide medical care. See
id. at 167, ¶ 19. Again, the protections of the Confrontation Clause were
neither implicated, nor violated.
5
STATE v. SALAZAR
Decision of the Court
III. Victims’ Pretrial Statements to Responding Officer
¶22 Finally, Salazar argues the admission of the victims’ pretrial
statements to the responding officer violated the Confrontation Clause.
Because Salazar did not object to the admission of the statements at trial,
we review only for fundamental, prejudicial error. See State v. Escalante, 245
Ariz. 135, 140, ¶ 12 (2018).
¶23 The Confrontation Clause prohibits the use of testimonial
pretrial statements unless the defendant had a prior opportunity to cross-
examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)
(“[W]hen the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior
testimonial statements.”). The Confrontation Clause is not violated when
the declarant “testified at trial and was subjected to unrestricted cross-
examination,” even if the declarant struggles to remember details of the
offenses. State v. King, 180 Ariz. 268, 276 (1994); see also U.S. v. Owens, 484
U.S. 554, 557–60 (1988) (pretrial identification of defendant is admissible
despite victim’s issues remembering the offense).
¶24 The victims testified at trial and Salazar subjected them to
unrestricted cross-examination. The State then called the responding officer
to provide the victims’ statements from the initial interview. Salazar’s
opportunity to cross-examine the victims before the admission of their
pretrial statements satisfies the requirements of the Confrontation Clause.
See Crawford, 541 U.S. at 59 n.9. The court did not err by admitting pretrial
statements made to the responding officer.
CONCLUSION
¶25 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6