Villarreal v. State

• Decision Date: 06 July 2017
• Docket Number: S-16-0261
• Citation: 398 P.3d 512
• Parties: Frank Eugene VILLARREAL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

398 P.3d 512

Frank Eugene VILLARREAL, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-16-0261

Supreme Court of Wyoming.

July 6, 2017

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General. Argument by Mr. Fischer.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1] Frank Villarreal challenges convictions for battery and aggravated assault and battery which stemmed from his punching and running over Robert Flores, who did not testify at trial. He claims that the trial court denied his Sixth Amendment right to confront witnesses against him when it allowed the emergency medical technician (EMT) and the physician who treated Mr. Flores to testify regarding several statements Mr. Flores made to them. He also argues that his battery conviction is not supported by sufficient evidence. We conclude that the Confrontation Clause was not violated because the statements made by Mr. Flores to his medical care providers were not testimonial; however, the battery conviction is not supported by sufficient evidence. We affirm Mr. Villarreal's aggravated assault and battery conviction, and reverse and remand for acquittal on the battery charge.

ISSUES

[¶2] We rephrase the issues as:

1. Did the victim's failure to testify and the subsequent admission of statements he made to medical providers violate the Confrontation Clause?

2. Did sufficient evidence support the battery conviction when there was no evidence regarding the victim's bodily injury?

FACTS

[¶3] Ian Campos and Robert Flores were driving from Denver to Rawlins in Mr. Campos' vehicle when Mr. Campos realized that he might run out of gas. He called Mr. Villarreal, who met them with gas at a truck stop in Sinclair. At the truck stop, Mr. Villarreal and Mr. Flores began to argue, and Mr. Villarreal punched Mr. Flores in the face. They decided to take their dispute south of Rawlins and fight.

[¶4] Mr. Campos and Mr. Flores followed Mr. Villarreal's truck to Rawlins, where they left the interstate and headed south. Mr. Villarreal saw Mr. Flores jump out of Mr. Campos' car in his rearview mirror, turned his truck around, and drove into the sagebrush field where Mr. Flores had headed. Mr. Campos testified that he then left the area because he did not want to get into trouble. Mr. Villarreal drove after Mr. Flores and ran over his leg. A short time later, Mr. Villarreal drove Mr. Flores, who had a broken leg, to meet Mr. Campos. Mr. Campos put Mr. Flores, who was screaming in pain and saying "all kinds of stuff," in his car and took him to the hospital. At the hospital, Mr. Flores was seen by Mr. Wheat, an EMT, and later, by Dr. Cesko. Dr. Cesko testified that when he saw Mr. Flores, approximately three hours after his admission, Mr. Flores was in "substantial pain" from his broken leg.

[¶5] Mr. Flores refused to cooperate with the State during its trial preparation and did not testify at trial despite the State's efforts and the district court's order for detention and arrest warrant for him. A jury convicted Mr. Villarreal of eight statutory violations, two of which are the subject of this appeal: battery and aggravated assault and battery.

DISCUSSION

[¶6] Mr. Villarreal argues that the district court violated his Sixth Amendment right to confront witnesses at trial because Mr. Flores did not testify. Instead, the State established the identity of the victim, the identity of his assailant, and the injuries to Mr. Flores, partially through the testimony of medical personnel, who described some of the statements Mr. Flores made to them while they treated him for his broken leg. Mr. Villarreal also claims that there was insufficient evidence for his battery conviction.

I. Did the victim's failure to testify and the subsequent admission of statements he made to medical providers violate the Confrontation Clause?

[¶7] Mr. Villarreal contends that his right to confront witnesses against him was denied when the EMT and treating physician were allowed to testify regarding Mr. Flores' identity and what he said when they treated him, and because the State did not establish that Mr. Flores was unavailable.

A. Standard of Review

[¶8] Mr. Villarreal argues that issues arising under the constitution, such as those implicating the Confrontation Clause of the Sixth Amendment, are questions of law and are therefore reviewed de novo. The State contends that Mr. Villarreal did not object to the challenged testimony on the ground that it violated his right to confrontation and thus the proper standard of review is for plain error.

[¶9] Mr. Villarreal objected to the EMT's testimony twice. The first was a hearsay objection to the EMT's testimony regarding statements made to him by Mr. Flores. When the State's counsel asked the EMT what Mr. Flores told him, Mr. Villarreal's attorney stated: "Your Honor, I am going to object unless there's adequate foundation for a 803(4) exception, [t]his would be hearsay." The second objection occurred during a bench conference when the State's attorney indicated that he was "going to follow with asking him to identify the possible assailant." Mr. Villarreal's counsel again objected: "Same objection [hearsay, W.R.E. 803(4) ]. The identity of the assailant is not going to be relevant to this [medical treatment]. Now, sometimes in a domestic where they are planning on sending someone home to that person, but...." Both objections were overruled.

Mr. Villarreal did not object to the treating physician's testimony.

[¶10] "While the Confrontation Clause and hearsay may overlap, ... they are distinct concepts and objections grounded upon these principles incorporate separate analyses." Vigil v. State , 2004 WY 110, ¶ 15, 98 P.3d 172, 177 (Wyo. 2004). Therefore, "separate objections should be made for hearsay violations and confrontation clause violations in order to fairly alert the trial court so it can make an informed decision based upon the specific legal issues involved." Id . In Vigil , we determined that an objection to police testimony regarding statements made by a witness was sufficient to place the trial court on notice that concerns were grounded in the Confrontation Clause—when objecting, the defendant's attorney specifically referred to the fact that the witness was not present and that there was nothing in the interview indicating he was under oath. Id . at ¶ 16, 98 P.3d at 177. By contrast, the objections raised by Mr. Villarreal were based exclusively upon hearsay and do not reflect a concern regarding confrontation. They were not sufficient to raise confrontation clause concerns to the trial court. See Anderson v. State , 2014 WY 13, ¶ 20, 317 P.3d 1108, 1115 (Wyo. 2014) (Confrontation Clause was not raised by "indistinct" objection). Moreover, there were no objections to the testimony of the treating physician. When claims for violation of the Confrontation Clause are not raised below, our "only avenue for review is under the doctrine of plain error." McClure v. State , 2010 WY 112, ¶ 7, 236 P.3d 1019, 1021 (Wyo. 2010) ; see also Anderson , 2014 WY 13, ¶ 20, 317 P.3d at 1115 ("[E]ven though the appellant claims constitutional error, without an appropriate objection, we will review his claim under a plain error standard.").

[¶11] To establish plain error, Mr. Villarreal must prove "(1) the record clearly reflects the alleged error; (2) the existence of a clear and unequivocal rule of law; (3) a clear and obvious transgression of that rule of law; and (4) the error adversely affected a substantial right resulting in material prejudice to him." Anderson , 2014 WY 13, ¶ 20, 317 P.3d at 1115 (citations omitted). The record reflects the alleged errors, thus we turn to the second and third prongs of the plain error analysis and determine whether there was a clear and obvious transgression of a clear and unequivocal rule of law.

B. The Confrontation Clause

[¶12] The Sixth Amendment protects a defendant's right to confront witnesses against him. Bruce v. State , 2015 WY 46, ¶ 21, 346 P.3d 909, 918 (Wyo. 2015). In Crawford v. Washington , the Supreme Court recognized that the "principal evil at which the [Confrontation] Clause was directed was the ... use of ex parte examinations as evidence against the accused." 541 U.S. 36, 50, 124 S.Ct. 1354, 1363, 158 L.Ed.2d 177 (2004). The clause does not allow the "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." Id . at 53-54, 124 S.Ct. at 1365 ; Bruce , 2015 WY 46, ¶ 21, 346 P.3d at 918 (recognizing Crawford applies in Wyoming). We first address the question of whether Mr. Flores was unavailable. We then turn to whether his statements were testimonial in nature.

[¶13] We apply the same analysis to determine unavailability under the Confrontation Clause as we use to determine unavailability under the Wyoming Rules of Evidence. Grable v. State , 649 P.2d 663, 672-73 (Wyo. 1982), overruled on other grounds by Vlahos v. State , 2003 WY 103, ¶ 35, 75 P.3d 628, 637 (Wyo. 2003). Rule 804(a)(5) of the Wyoming Rules of Evidence provides that a witness is unavailable when he "[i]s absent from the hearing and the proponent of his statement is unable to procure his attendance by process or other reasonable means." The "burden of proof is on the prosecution to establish that the witness is unavailable to testify at trial despite its good faith efforts to obtain his presence." Farmer v. State , 2005 WY 162, ¶ 10, 124 P.3d 699, 704 (Wyo. 2005). In order to meet this burden, the State must show...