State v. Stuebe

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JERRY L. STUEBE, Appellant.

No. 1 CA-CR 19-0032
FILED 6-30-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-108628-002
The Honorable Dewain D. Fox, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General's Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Jennifer Roach
Counsel for Appellant

OPINION

Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

STATE v. STUEBE
Opinion of the Court

M O R S E, Judge:

¶1 Jerry L. Stuebe appeals his convictions and sentences for
burglary in the third degree and possession of burglary tools. In this
opinion, we hold that an automated email and a "machine-produced" video
recording attached to the email are not hearsay because they were not made
by a "person." For the reasons that follow, and the reasons stated in a
separately filed memorandum decision, we affirm Stuebe's convictions and
sentences but vacate the portion of the superior court's sentencing order
requiring Stuebe to pay the costs of deoxyribonucleic acid ("DNA") testing
and the assessment fees imposed on count two.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
jury verdicts and resolve all reasonable inferences against Stuebe. State v.
Payne, 233 Ariz. 484, 509, ¶ 93 (2013). Before dawn one morning in February
2018, law enforcement responded to a 911 call from a security company
concerning a silent alarm at a mostly vacant commercial property called
Zanjero Falls West. Upon arrival, a law enforcement officer saw two
individuals running toward an SUV. The officer stopped the vehicle as
someone started to drive it away. Stuebe was a passenger in the SUV.
Afterwards, officers retraced the SUV's path and discovered two large bags
containing copper wire. The officers also found a two-way radio, bolt
cutters, a hacksaw, a flashlight, and other burglary tools. Triggered by a
motion detector, a security camera at the property recorded the burglary.

¶3 The State charged Stuebe with burglary in the third degree, a
class 4 felony, and possession of burglary tools, a class 6 felony. Following
an eight-day trial, a jury convicted Stuebe as charged. The superior court
sentenced Stuebe as a repetitive offender to concurrent terms of 10 years in
prison for burglary in the third degree and 3.75 years for possession of
burglary tools. Stuebe timely filed a notice of appeal. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶4 Stuebe argues that the superior court erred by admitting in
evidence an email1 and attached video, generated and sent by the

1 Stuebe generally alludes to other purported hearsay statements by
the property manager, but fails to identify the contested statements or assert

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STATE v. STUEBE
Opinion of the Court

surveillance system. Stuebe contends that the email and video were
inadmissible hearsay and introducing that evidence violated the
Confrontation Clause of the Sixth Amendment. We generally review the
superior court's evidentiary rulings for abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). "Evidentiary rulings that implicate the
Confrontation Clause, however, are reviewed de novo." Id.

¶5 Before trial, Stuebe moved to preclude testimony concerning
ownership and security monitoring of the property. The State opposed the
motion, arguing that the property manager had "personal knowledge" of
the disputed evidence and his anticipated testimony would not involve
hearsay. The superior court denied the motion, ruling that the testimony
was not hearsay under Arizona Rules of Evidence ("Rules") 801(d)(2)(D).
The email and video were not specifically discussed in the motion or during
oral argument on the motion.

¶6 At trial, the Zanjero Falls West property manager testified
that he received an automated, computer-generated, email from the
security company after a motion-sensor security camera was activated. A
video file was attached to the email and the email specified the date and
time that the video was recorded. The property manager relied solely upon
the email in identifying the date and time of the video. Over Stuebe's
hearsay objection, the superior court admitted the email and the video in
evidence.

¶7 As the State concedes, the superior court incorrectly applied
Rule 801(d)(2)(D). That rule addresses statements made by an opposing
party's agent or employee and offered against the opposing party. Because
the property manager was not Stuebe's agent or employee, the manager's
statements do not fall with within Rule 801(d)(2)(D). See Shuck v. Texaco
Refining & Marketing Inc., 178 Ariz. 295, 298 (App. 1994) (describing
requirements of Rule 801(d)(2)(D)). Additionally, the property manager
testified as a representative of the business victim, and a victim is not a
party to criminal proceedings in Arizona. Lynn v. Reinstein, 205 Ariz. 186,
191, ¶ 15 (2003). The disputed evidence, therefore, was not admissible
under Rule 801(d)(2)(D).

¶8 We may, however, affirm the superior court's ruling if it is
legally correct for any reason based upon the record before us. State v. Perez,

why they were improper. Therefore, Stuebe has waived the argument. See
State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually
constitutes abandonment and waiver of that claim.").

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STATE v. STUEBE
Opinion of the Court

141 Ariz. 459, 464 (1984). In doing so, we first determine whether the
contested evidence—the automatically generated email and attached
video—constitutes hearsay. We must also determine whether admission of
the evidence violates the Confrontation Clause. As noted by the State, these
precise issues have not been directly resolved by Arizona's courts. See State
v. Gomez, 226 Ariz. 165, 167, ¶ 12 (2010) (assuming, without deciding, that
machine-generated DNA profiles were hearsay statements).

A. Hearsay.

¶9 In general, hearsay evidence is inadmissible unless an
exception applies. Ariz. R. Evid. 801, 802. Hearsay is "a statement that: (1)
the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement." Ariz. R. Evid. 801(c). A "statement" is "a person's oral
assertion, written assertion, or nonverbal conduct, if the person intended it
as an assertion." Ariz. R. Evid. 801(a). A "declarant" is "the person who
made the statement." Ariz. R. Evid. 801(b).

¶10 Because the rule against hearsay applies to "a person's"
statements and "the person who made the statement," Ariz. R. Evid. 801(a)
and (b), we must determine whether a machine that generates information
may qualify as a "person" under the Rules. The Rules do not define
"person." See Ariz. R. Evid. 101. Therefore, we may interpret the word
according to its common definition. A.R.S. § 1-213 (2002) ("Words and
phrases shall be construed according to the common and approved use of
the language."); State v. Wise, 137 Ariz. 468, 470 n.3 (1983) (stating that unless
the legislature expressly defines a statutory term, courts give the word its
plain and ordinary meaning, which may be taken from the dictionary). "In
interpreting rules, we apply the same principles we use in interpreting
statutes." State v. Harden, 228 Ariz. 131, 132, ¶ 6 (App. 2011) (quoting State
v. Petty, 225 Ariz. 369, 372, ¶ 7 (App. 2010)); see also Sheridan v. Superior
Court, 91 Ariz. 211, 214 n.7 (1962) (citing statutory definition section when
interpreting rules of criminal procedure). Our aim is to "determine and give
effect to our supreme court's intent in promulgating the rule . . . keeping in
mind that the best reflection of that intent is the plain language of the rule."
Id. (citing Osterkamp v. Browning, 226 Ariz. 485, 489, ¶ 14 (App. 2011)).

¶11 Arizona's "Dictionary Act" defines "person" as "a corporation,
company, partnership, firm, association or society, as well as a natural
person." A.R.S. § 1-215(28); see also Person, Black's Law Dictionary (11th ed.
2019) (defining "person" as "a human being"). Similarly, the Arizona
Criminal Code defines "person" to include "a human being," and, "as the

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STATE v. STUEBE
Opinion of the Court

context requires," associations, societies, business formations, and
government entities. A.R.S. § 13-105(30). Neither statute supports the
proposition that a machine can legally be considered a "person."
Additionally, because "Arizona's evidentiary rules were modeled on the
federal rules[,]" we may consider federal precedent to interpret them. State
v. Winegardner, 243 Ariz. 482, 485, ¶ 8 (2018). The federal circuit courts have
repeatedly held that a "person" referenced in the rules of evidence does not
include a "machine" or "machine-produced" content. See United States v.
Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015) ("[W]e join other circuits
that have held that machine statements aren't hearsay.") (collecting federal
circuit court cases); United States v. Washington, 498 F.3d 225, 231 (4th Cir.
2007) (holding that for hearsay purposes "raw data generated by the
machines were not the statements of technicians" who operated the
machines); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003)
(holding that neither header nor date and time information automatically
generated by a facsimile machine was hearsay because they were not
statements made by a person).

¶12 Applied to the facts here, the motion-activated security
camera automatically recorded the video after a sensor was triggered. The
automated security system then produced an email and immediately sent
it to the property manager. No "person" was involved in the creation or
dissemination of either. The email only contained the date, time, client ID,
serial number, camera location code, and language that read "Automated
message – please do not reply to this address." Because the email and video
were "machine produced," they were not made by a "person" and are not
hearsay.

¶13 Machine-produced statements may present other evidentiary
concerns. See Washington, 498 F.3d at 231 (noting that concerns about
machine-generated statements should be "addressed through the process
of authentication not by hearsay or Confrontation Clause analysis"). At
trial, the court denied Stuebe's authentication objection to the video, see
Ariz. R. Evid. 901, but Stuebe has not raised this issue on appeal.

B. Confrontation Challenge.

¶14 The Sixth Amendment's Confrontation Clause states, "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him." U.S. Const. amend. VI. In general,
testimonial evidence from a declarant who does not appear at trial may be
admitted only when the declarant is unavailable and the defendant has had
a prior opportunity to cross-examine the declarant. Crawford v. Washington,

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STATE v. STUEBE
Opinion of the Court

541 U.S. 36, 68-69 (2004); State v. Forde, 233 Ariz. 543, 564, ¶ 80 (2014) (citing
Crawford, 541 U.S. at 68). "[A] statement cannot fall within the
Confrontation Clause unless its primary purpose was testimonial." Ohio v.
Clark, 576 U.S. 237, 245 (2015). "Testimony" means "[a] solemn declaration
or affirmation made for the purpose of establishing or proving some fact."
Crawford, 541 U.S. at 51. Statements are testimonial when the primary
purpose is to "establish or prove past events potentially relevant to later
criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006); see
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009) (holding forensic
reports on substances alleged to be drugs, prepared in anticipation of
prosecution, are testimonial statements). But statements are not testimonial
if made to law enforcement during an ongoing emergency, see Davis, 547
U.S. at 827, and are "much less likely to be testimonial" if made to someone
other than law enforcement, Clark, 576 U.S. at 246.

¶15 Considering all the circumstances we cannot conclude that
the "primary purpose" of the email and video was to "creat[e] an out-of-
court substitute for trial testimony." Id. at 245 (alteration in original)
(quoting Bryant, 562 U.S. at 358). And Stuebe does not argue otherwise.
The email was sent to the property manager, not law enforcement, and was
not made in anticipation of criminal prosecution. Thus, it was not
testimonial. See Davis, 547 U.S. at 827-28 (finding recording of a 911 call
seeking police assistance was not testimonial); State v. Damper, 223 Ariz.
572, 575, ¶ 12 (App. 2010) (finding text message from murder victim seeking
help not testimonial); Bohsancurt v. Eisenberg, 212 Ariz. 182, 191, ¶ 35 (App.
2006) (holding breathalyzer calibration reports not testimonial). The
property manager testified and was cross-examined about the email and
the video, and the admission of the email and video did not implicate the
Confrontation Clause. State v. Fischer, 219 Ariz. 408, 418, ¶ 37 (App. 2008)
("Non-testimonial statements are not subject to a confrontation challenge.");
cf. United States v. Waguespack, 935 F.3d 322, 334 (5th Cir. 2019) (holding that
machine-generated images were not "statements" in the context of the
Confrontation Clause).

¶16 The evidence was admissible, and the superior court did not
err in admitting it.

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STATE v. STUEBE
Opinion of the Court

CONCLUSION

¶17 For the foregoing reasons, and the reasons stated in the
separate memorandum decision, we affirm Stuebe's convictions and
sentences but vacate the portion of the sentencing order requiring Stuebe to
pay the costs of DNA testing and the assessment fees imposed on count
two.

AMY M. WOOD • Clerk of the Court
FILED: AA

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