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State v. Smith

Court of Appeals of Arizona, Second Division

March 13, 2017

The State of Arizona, Appellee,
Fuller Wayne Smith, Appellant.

         Appeal from the Superior Court in Pima County No. CR20122219001 The Honorable Christopher C. Browning, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee.

          Piccarreta Davis Keenan Fidel, PC, Tucson By Michael L. Piccarreta and Jefferson Keenan Counsel for Appellant

          Presiding Judge Howard authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred.


          HOWARD, Presiding Judge.

         ¶1 Following a jury trial, Fuller Smith was convicted of two counts of molestation of a child and two counts of sexual conduct with a minor under fifteen. On appeal, Smith argues a DNA[1] expert's testimony as to the results of a saliva test violated his Confrontation Clause rights, the trial court violated his due process rights by denying his motion to dismiss with prejudice after two previous trials resulted in mistrials, and that insufficient evidence supported the jury's verdicts. Because Smith's Confrontation Clause rights were violated, we vacate Smith's convictions and sentences and remand.

         Factual and Procedural Background

         ¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). N.S. is Smith's granddaughter and was eight years old at the time of these incidents. In October 2011, she was staying at his house and, after she went to bed, Smith removed her pants and underwear, rubbed her genitals with his fingers, and licked her genitals. He then put her pants and underwear back on and left the room. Although N.S. was awake during this encounter, she pretended to be asleep.

         ¶3 The following afternoon, Smith told N.S. to take a nap even though she did not typically take naps in the afternoon. Shortly thereafter, Smith entered N.S.'s room, removed her pants and underwear, rubbed and licked her genitals, put her pants and underwear back on and left the room. She again pretended to remain asleep. Approximately two weeks later, N.S. told her parents what Smith had done. Smith's DNA was found on the inner and outer crotch areas of the underwear N.S. had been wearing while she stayed at Smith's house.

         ¶4 The state charged Smith with two counts each of sexual conduct with a minor under fifteen and molestation of a child under fifteen. During Smith's first trial, the trial court declared a mistrial after N.S.'s mother testified to other acts of sexual misconduct that Smith had not been charged with and which had been precluded. Smith's second trial also resulted in a mistrial after the jury was unable to reach a verdict. The jury in Smith's third trial found him guilty on all four counts as described above.

         ¶5 As to the molestation of a child charges, the trial court sentenced Smith to consecutive terms totaling twenty years. On each of the sexual conduct with a minor charges, the court sentenced Smith to a term of life imprisonment without the possibility of release for thirty-five years, to be run consecutively to each other and the molestation charges. We have jurisdiction over Smith's timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

         Confrontation Clause

         ¶6 Smith argues the trial court erred by refusing to preclude a portion of the state's DNA expert's testimony because it violated his Confrontation Clause rights under the United States and Arizona constitutions. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. "[W]e review de novo challenges to admissibility based on the Confrontation Clause." State v. Bennett, 216 Ariz. 15, ¶ 4, 162 P.3d 654, 656 (App. 2007).

         ¶7 At trial, the state introduced the testimony and written reports of DNA analyst Brianna Smalling. Smith contends the portion of her report and testimony involving the "RSID saliva test, " which her laboratory conducted on a portion of N.S.'s underwear, was impermissible testimonial hearsay. The test indicates the presence of alpha amylase, which is a protein found in certain bodily fluids, including saliva. Kim Lang, another technician at the same laboratory, conducted the saliva test[2] on the inner and outer crotch areas of N.S.'s underwear and submitted the results to Smalling. Smalling included those results in her report, but did not participate in the testing and did not conduct any independent analysis of the results.

         ¶8 The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Ariz. Const. art. II, § 24 ("In criminal prosecutions, the accused shall have the right . . . to meet the witnesses against him face to face .....). "[Testimonial hearsay, " although not the sole concern of the Confrontation Clause, is nonetheless its "primary object." Crawford v. Washington, 541 U.S. 36, 53 (2004). Testimonial hearsay is "out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct" and which involves "formalized statements such as affidavits, depositions, prior testimony, or confessions." Williams v. Illinois, ___U.S. ___, ___, 132 S.Ct. 2221, 2242 (2012). Documents "created solely for an 'evidentiary purpose' . . . made in the aid of a police investigation, rank[] as testimonial." Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011), quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009).

         ¶9 In Bullcoming, the Court discussed the type of forensic evidence that falls within the Confrontation Clause purview. In that case, the state had introduced a forensic report certifying the defendant's blood-alcohol concentration "through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." 564 U.S. at 651-52. The Court found such "surrogate testimony" violated the Confrontation Clause, and the defendant had a right to confront the scientist who had conducted the test and authored the report. Id. at 652.

         ¶10 We agree with Smith that this case is analogous to Bullcoming and that Smalling acted only as a "conduit for another non-testifying expert's opinion." State v. Gomez,226 Ariz. 165, ¶ 22, 244 P.3d 1163, 1168 (2010), quoting State v. Snelling,225 Ariz. 182, ¶ 19, 236 P.3d 409, 414 (2010). Like the testifying expert in Bullcoming, Smalling "played no role in producing the [test results, ] . . . did not observe any portion of [Lang's] conduct of the testing" and did not offer an "independent, expert ...

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