State v. Lopez

• Decision Date: 22 January 2008
• Docket Number: No. 2 CA-CR 2006-0036.,2 CA-CR 2006-0036.
• Citation: 175 P.3d 682,217 Ariz. 433
• Parties: The STATE of Arizona, Appellee, v. Daniel Aaron LOPEZ, Appellant.
• Court: Arizona Court of Appeals

175 P.3d 682

217 Ariz. 433

The STATE of Arizona, Appellee, v. Daniel Aaron LOPEZ, Appellant.

No. 2 CA-CR 2006-0036.

Court of Appeals of Arizona, Division 2, Department A.

January 22, 2008.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Jessica L. Quickle, Phoenix, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender By Kristine Maish, Tucson, Attorneys for Appellant.

HOWARD, Presiding Judge.

¶ 1 After a jury trial, appellant Daniel Lopez was convicted of numerous offenses arising out of a series of attacks on women in Tucson in 2004 and 2005. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 119.5 years. In this opinion, we address Lopez's argument that the court abused its discretion by admitting hearsay statements of one of the victims, Desiree. In a separate, contemporaneously filed memorandum decision, we address other issues that do not meet the criteria for publication. See Ariz. R. Sup.Ct. 111(b), (h); Ariz. R.Crim. P. 31.26. For the reasons stated in our memorandum decision, we reduce one aggravated assault conviction to simple assault and remand for resentencing on that conviction only. We otherwise affirm the convictions and sentences.

¶ 2 After she was sexually assaulted, Desiree was transported to a hospital and examined by a registered nurse, Toni Y. Toni testified that she is also certified as an inpatient obstetrics nurse, a forensic nurse, and a sexual assault nurse examiner. She testified that "looking for injury is the main purpose" of the sexual assault examination and collecting evidence for police is another purpose. She also testified that, during the examination, she asks the person what happened during the assault to determine "where to look for injury."

¶ 3 In response to the state's question regarding "the history of the assault," Toni read Desiree's graphic description of the attacker's physical contact with her, including penetration, and the physical effect of the contact on Desiree. Then, Toni read the questions she had asked and Desiree's responses, which again detailed the attacker's physical contact with Desiree and its effect.

¶ 4 Lopez argues the trial court erred by admitting Desiree's statements into evidence because they were inadmissible hearsay. But, in order to preserve a challenge to the admission of evidence, a party must make "a timely objection or motion to strike..., stating the specific ground of objection, if the specific ground was not apparent from the context." Ariz. R. Evid. 103(a)(1). This gives the court an opportunity to correct any error and allows opposing counsel a chance to "`obviate the objection.'" State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003), quoting State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955). Thus, a general objection is insufficient to preserve an issue for appeal. See State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App.1995). And an objection on one ground does not preserve the issue on another ground. State v. Hamilton, 177 Ariz. 403 408, 868 P.2d 986, 991 (App.1993). When a party fails to object properly, we review solely for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); Walker, 181 Ariz. at 481, 891 P.2d at 948.

¶ 5 When the state asked Toni to read Desiree's statements regarding the history of the assault, Lopez objected "to the, history." He did not state the grounds for this objection, nor were they apparent from the context. The trial court overruled the objection. The state then elicited the statements Lopez now challenges. Lopez did not object again until redirect examination, when the state asked Toni her opinion whether Desiree's injuries were consistent with anal penetration. In discussions that followed, Lopez stated that the history had been hearsay. But Lopez did not renew his previous objection and ask that the testimony be stricken. And the transcript shows that the court and the parties understood that Lopez was, at that point, objecting to the state's attempt to elicit Toni's opinion about the injuries. As the court stated twice, the basis for this objection was lack of foundation. Lopez also stated that he objected based on lack of foundation. The court sustained the objection and struck Toni's answer that, in her opinion, Desiree's injuries were consistent with anal penetration.¹

¶ 6 Because the attention of the court and the parties was on foundation for Toni's opinion, not hearsay, the court had no opportunity to correct any error in admitting the statements and the state did not have the opportunity to discuss any hearsay issue. See Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d at 56; cf. State v. Petrak, 198 Ariz. 260, ¶ 27, 8 P.3d 1174, 1182 (App.2000) (issue properly preserved where counsel's "comments provided the trial judge with an opportunity to provide a remedy"). And the objection to foundation could not have preserved the hearsay issue. See Hamilton, 177 Ariz. at 408, 868 P.2d at 991. Accordingly, we conclude Lopez failed to preserve this issue and consequently forfeited review of the issue, absent fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607.

¶ 7 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 magnitude that the defendant could not possibly have received a fair trial.'" Id.,quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. ¶ 20. Thus, to show fundamental error, Lopez must first show error. See id. ¶ 23.

¶ 18 "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ariz. R. Evid. 801(c). Hearsay is generally inadmissible, but there are several exceptions. See Ariz. R. Evid. 802, 803, 804. One exception applies to "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Ariz. R. Evid. 803(4). The rationale behind this exception is that "practitioners will seek and patients will give reliable information to further necessary treatment." State v. Rushton, 172 Ariz. 454, 457, 837 P.2d 1189, 1192 (App.1992). Courts apply a two-part test in determining admissibility under this exception: (1) whether "the declarant's apparent `motive... [was] consistent with receiving medical care'"; and (2) whether it was "`reasonable for the physician to rely on the information in diagnosis or treatment.'" State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987), quoting State v. Jeffers, 135 Ariz. 404, 420-21, 661 P.2d 1105, 1121-22 (1983). The statement need not be made to a physician. See Rushton, 172 Ariz. at 457, 837 P.2d at 1192.

¶ 9 Although we are unaware of any Arizona case specifically addressing whether statements made to a nurse performing a sexual assault examination are admissible under Rule 803(4), courts in other jurisdictions have held the statements admissible when they are relevant to diagnosis or treatment. In Torres v. State, 807 S.W.2d 884, 886-87 (Tex.App.1991), the victim made statements to an emergency room nurse who "engaged in a dual role of collecting evidence and providing medical service." The Texas Court of Appeals upheld the admission of the statements through the nurse's testimony, noting that the nurse had "checked the victim for bruises, collected bodily fluids, examined the vaginal canal, and asked various questions related to the victim's medical condition." Id. at 887.

¶ 10 Similarly, in State v. Janda, 397 N.W.2d 59, 62 (N.D.1986), the victim was brought to a hospital after being sexually assaulted. She related the circumstances of the assault to the nurse on duty. Id. The North Dakota Supreme Court noted that "[t]he purpose of an examination of the kind involved here is not just the preservation of evidence, but diagnosis and treatment as well." Id. at 63. The court also recognized that "health care providers examining one claiming to be the victim of a sexual assault must [also] diagnose whether or not the alleged victim has suffered psychological trauma and, if so, its nature and extent, and treat that as well." Id. It thus held that, at least to the extent the statements do not identify the attacker, they are admissible. Id.; see also Opio v. State, 283 Ga.App. 894, 642 S.E.2d 906, 911 (2007) (sexual assault victim's statements to nurse who treated her after assault admissible as statements made for medical diagnosis or treatment); Miles v. State, 777 N.E.2d 767, 771 (Ind.Ct.App.2002) (victim's statements to "sexual assault nurse" admissible as statements for purpose of medical diagnosis or treatment); People v. Matuszak, 263 Mich.App. 42, 687 N.W.2d 342, 349-50 (2004) (sexual assault victim's statements to emergency room nurse about circumstances of attack admissible as statements for purpose of medical diagnosis or treatment).

¶ 11 In those cases in which courts have found statements made under similar circumstances inadmissible, the decision was not based on the fact that the nurse was performing a sexual assault examination. Instead, the courts based their decisions on the nature of the statements. Thus, in State v. Williams, 920 S.W.2d 247, 255-56 (Tenn. Crim.App.1995), the court held that statements of a rape victim to a nurse practitioner at a hospital were admissible if they were relevant to diagnosis or treatment. But the court also held that statements recounting events before the rape had occurred and describing the assailant were inadmissible. Id. at...