State v. Weber ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LANCE WEBER, Appellant.
No. 1 CA-CR 16-0548
FILED 12-26-2017
Appeal from the Superior Court in Maricopa County
No. CR2015-000856-001
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Adele G. Ponce
Counsel for Appellee
Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant
STATE v. WEBER
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.
M O R S E, Judge:
¶1 Lance Weber appeals his convictions and sentences on two
counts of sexual assault, a class 2 felony; one count of attempted sexual
assault, a class 3 felony; and two counts of assault, a class 1 misdemeanor.
For reasons that follow, we affirm.
DISCUSSION
A. Voir Dire Questions
¶2 Weber argues the prosecutor engaged in improper conduct
during jury voir dire by asking stakeout questions. At issue are questions
posed by the prosecutor that inquired how jurors felt about: (1) advice that
women should not be afraid to be impolite when necessary to protect
themselves because this advice is not always easy to follow when the
woman knows a potential assailant; and (2) what physical injuries the jurors
might expect to see on a rape victim. Because Weber failed to object to the
prosecutor's questions, he has forfeited all but fundamental error review.
State v. Henderson, 210 Ariz. 561, 568, ¶ 22 (2005). Under this standard of
review, the defendant has the burden of proving that error occurred, that it
was fundamental, and that he was prejudiced thereby. Id. at 567, ¶ 20.
¶3 In State v. Prince, our supreme court defined impermissible
"stakeout questions" as questions that "'ask a juror to speculate or
precommit to how that juror might vote based on any particular facts.'" 226
Ariz. 516, 529, ¶ 35 (2011) (quoting U.S. v. Fell, 372 F. Supp. 2d. 766, 770 (D.
Vt. 2005)). The questions here did neither. The questions simply sought to
determine whether potential jurors could keep an open mind when
listening to and weighing the victim's testimony. Because the inquiries did
not "seek to precommit the juror[s] to a specific result," id., they did not
constitute error, let alone fundamental error. See State v. Lavers, 168 Ariz.
376, 385 (1991) (before engaging in fundamental error review, this court
must first find that error occurred).
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Decision of the Court
B. Prosecutorial Vouching
¶4 Weber also argues the prosecutor committed prosecutorial
misconduct by engaging in impermissible vouching while questioning a
witness and during closing argument. It is improper for the prosecution to
vouch for the credibility of the state's witnesses. State v. Bible, 175 Ariz. 549,
601 (1993). There are two forms of prosecutorial vouching: where the
prosecutor places the prestige of the government behind its witness; and
where the prosecutor suggests that information not presented to the jury
supports a witness's testimony. State v. Doerr, 193 Ariz. 56, 62, ¶ 24 (1998).
Because Weber failed to object to the alleged vouching, our review is again
limited to fundamental error. Henderson, 210 Ariz. at 568, ¶ 22.
¶5 Weber first points to testimony from a police detective that
because the victim's bar tab matched up with the victim's statement, the
victim was "honest about what she drank." Contrary to Weber's contention,
the challenged testimony was not intentionally elicited by the prosecutor.
Rather, the statement was unexpectedly volunteered by the witness,
without objection from Weber, in response to a question asking what
actions the detective took in investigating the case. Accordingly, there was
no prosecutorial misconduct on the part of the prosecutor with respect to
the challenged testimony. See Pool v. Superior Court, 139 Ariz. 98, 108–09
(1984) (holding prosecutorial misconduct is not merely error, negligence, or
mistake, but "intentional conduct which the prosecutor knows to be
improper and prejudicial" (emphasis added)).
¶6 Second, Weber contends the prosecutor improperly offered
his personal opinion regarding credibility during closing argument by
arguing the victim was truthful in her testimony and that Weber, in
contrast, was a liar.
¶7 Prosecutors have wide latitude in closing arguments and are
permitted to suggest reasonable inferences from the evidence presented,
including ultimate conclusions for the jury's consideration. Bible, 175 Ariz.
at 602. A prosecutor thus may characterize a witness as truthful if the
argument is grounded in the evidence presented at trial. State v. Corona,
188 Ariz. 85, 91 (App. 1997). Given that other evidence presented at trial
corroborated the victim's testimony, it was not improper for the prosecutor
to argue that the victim was truthful in her testimony. Nor did the
prosecutor's argument that Weber was a liar amount to an expression of
personal opinion regarding Weber's credibility because it was likewise a
permissible argument linked to the evidence presented. See State v. Schrock,
149 Ariz. 433, 438-39 (1986) (characterizing argument that a defendant's
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STATE v. WEBER
Decision of the Court
statement was a lie as "a proper attack on defendant's statement"). The
prosecutor merely urged the jury to draw reasonable inferences from the
evidence regarding the credibility of the victim and Weber. Accordingly,
the prosecutor's arguments were not improper.
C. Cumulative Error
¶8 Weber additionally argues that the prosecutor's actions of
asking stakeout questions and engaging in vouching require reversal when
considered cumulatively. We note that Arizona considers claims of
cumulative error only with respect to "a claim that prosecutorial
misconduct deprived a defendant of a fair trial." State v. Hughes, 193 Ariz.
72, 78-79, ¶ 25 (1998). Because we have found no prosecutorial misconduct,
there is no merit to the claim of cumulative error. See State v. Bocharski, 218
Ariz. 476, 492, ¶ 75 (2008) ("Absent any finding of misconduct, there can be
no cumulative effect of misconduct sufficient to permeate the entire
atmosphere of the trial with unfairness.").
D. Victim's Statement
¶9 Finally, Weber contends the trial court erred in allowing a
forensic nurse who examined the victim to testify to the victim's statement
about the assault, arguing the statement was inadmissible hearsay. We
review a trial court's ruling on the admissibility of hearsay evidence for
abuse of discretion. State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003).
¶10 Hearsay is generally inadmissible at trial to prove the truth of
the matter asserted. Ariz. R. Evid. 801(c), 802. Pursuant to Rule 803(4),
however, otherwise inadmissible hearsay may be admitted if the statement
"(A) is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and (B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause." The rationale behind
this hearsay exception is that medical practitioners "will seek and patients
will give reliable information to further necessary medical treatment." State
v. Robinson, 153 Ariz. 191, 199 (1987). Weber argues the victim's statements
to the forensic nurse were not admissible pursuant to Rule 803(4) because
the examination was not for medical purposes. We disagree.
¶11 We apply a two-part test in determining whether hearsay
statements are "reasonably pertinent to diagnosis or treatment: (1) was the
declarant's apparent 'motive . . . consistent with receiving medical care;' and
(2) was it 'reasonable for the physician to rely on the information in
diagnosis or treatment.'" Id. (quoting U.S. v. Iron Shell, 633 F.2d 77, 84 (8th
Cir. 1980)). Applying this test, the trial court could reasonably find that the
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STATE v. WEBER
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victim's statements to the forensic nurse qualified for admission under the
medical diagnosis or treatment exception to the rule against hearsay.
¶12 Although the forensic nurse swabbed the victim for DNA and
documented her injuries during the examination for potential use in a
future prosecution, there was also testimony that the exam was performed
for the dual purposes of treating the victim and gathering evidence.
Further, the nurse who performed the exam testified that as a forens