from the Superior Court in Pima County No. CR20122219001 The
Honorable Christopher C. Browning, Judge
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
HOWARD, Presiding Judge.
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
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.
and Procedural Background
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.
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
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.
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).
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).
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 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.
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).
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
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,