State v. Kamara

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ELIJAH JOSEPH KAMARA, Appellant.

No. 1 CA-CR 18-0856
FILED 5-21-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-148650-001
The Honorable Dean M. Fink, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

The Poster Law Firm, PLLC, Glendale
By Rick Poster
Counsel for Appellant
 STATE v. KAMARA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Elijah Joseph Kamara appeals his convictions and sentences
for child abuse and aggravated assault. A jury found Kamara guilty of
striking and injuring an eight-month-old family member (“the child”)
residing in Kamara’s home. Kamara argues (1) the trial court erred in
permitting the State to introduce at trial recorded excerpts of police
interviews conducted without interpreters, (2) trial counsel was ineffective,
and (3) insufficient evidence supports the jury’s finding that Kamara
committed the offenses in the presence of a child. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 Kamara and his wife lived in a household with an extensive
family unit that included several children, a niece, and a family friend
(“Hassan”). Most of the family is originally from Sierra Leone, Africa. In
May 2015, the niece gave birth to the child, which led to tension between
Kamara and the niece, and the household subsequently moved to a larger
home. The tension between Kamara and the niece continued to escalate,
however, especially after Kamara asked the niece to pay rent and otherwise
contribute to the household, and the niece balked at the request.

¶3 On February 6, 2016, while the niece was at work, Hassan
brought the child home from daycare. After waking up Kamara’s wife’s
fourteen-year-old daughter (“the daughter”), who often cared for the child
while the niece worked, Hassan placed the child in a highchair, which was
next to a partial wall on the second floor of the family’s home. Hassan left
the house, and the daughter played with and cared for the child until

1 We view the evidence in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Kamara. See State v.
Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).

2
 STATE v. KAMARA
Decision of the Court

Kamara told her to go downstairs, eat, and take some medication. She went
downstairs, and Kamara was eventually upstairs alone with the child.

¶4 Shortly after the daughter went downstairs, she heard the
child begin crying loudly. The daughter went back upstairs to check on the
child. She noticed what appeared to be a significant “bump” on the side of
his head. She asked Kamara for help with the child, but instead of helping,
Kamara left, saying the child was not his concern. The daughter then called
the niece, her mother (Kamara’s wife), and Hassan for help. The niece came
home from work and took the child to the hospital.

¶5 Because of the nature and severity of the child’s injuries,
medical personnel immediately transferred him to Phoenix Children’s
Hospital. The child had a life-threatening complex partial skull fracture to
the left side of his head, substantial bleeding under and around the fracture,
and “some contusions to the brain tissue itself.” He also had a contusion to
the right side of his brain, bruising on the right side of his face, and swelling
over both sides of his head. The injuries appeared to be the result of
extreme force “far in excess of what you would see in a child who has a
typical fall,” and were consistent with the child being hit with such force to
the right side of his head that it caused the left side of his head to smash
into a wall.2 The child remained hospitalized for more than a month and
has physical, behavioral, and developmental disabilities as a result of his
injuries.

¶6 Glendale police officers interviewed various family members,
medical personnel, and other persons who might have knowledge of the
events and audio-recorded some of these interviews. In the interviews, the
daughter said Kamara had been upstairs alone with the child when the
child was injured. Kamara initially told a detective he had not been at the
home when the child was injured, but later stated he had been at the home
and heard the child crying.

¶7 A grand jury issued an indictment charging Kamara with
Count I, child abuse, a class two felony, dangerous crime against children,
and domestic violence offense; and Count II, aggravated assault, a class
four felony and domestic violence offense. See Ariz. Rev. Stat. (“A.R.S.”)
§§ 13-705, -1203, -1204, -3601, -3623.

2 At the time of his injuries, the child could not yet walk or get out of
the highchair by himself.

3
 STATE v. KAMARA
Decision of the Court

¶8 The jury found Kamara guilty as charged on both counts. As
aggravating circumstances, the jury found Count I was a dangerous crime
against a child and that, as to both counts, (1) the victim suffered physical,
emotional, or financial harm and (2) Kamara had committed the offenses in
the presence of a child. The trial court later found Kamara had committed
the offenses while on probation for a prior misdemeanor offense of
vulnerable adult abuse, to which he had pled guilty. The court sentenced
Kamara to an aggravated term of 18.5 years’ imprisonment for Count I and
four years’ probation upon his release from prison for Count II.

¶9 We have jurisdiction over Kamara’s timely appeal. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A).

ANALYSIS

I. Introduction of Police Interviews

¶10 As previously noted, during their investigation, police
officers interviewed and obtained recorded statements from numerous
persons. Several of the interviewees appeared as witnesses at trial, and
excerpts of their previously recorded interviews were admitted into
evidence and played at trial.

¶11 Kamara argues these recorded excerpts were possibly not
relevant and should not have been admitted for several reasons related to
reliability: (1) many of those persons interviewed, including Kamara, were
“foreigners with wholly different ideas and concepts about
communication” who “had minimal English communicative abilities”; (2)
interviewing police officers presumably had difficulty communicating with
the witnesses during the investigation; and (3) “[t]here was no evidence that
any interpreter was used” during the interviews. 3 Imbedded within his
argument is an additional argument we also address—that the interpreter
provided for Kamara’s wife at a pretrial interview and at trial was

3 Kamara purports to quote the Phoenix Police Department’s
operations manual for the requirement that qualified interpreters be used
when officers are otherwise unable to communicate with
hearing/speaking-impaired individuals. We note, however, that the
Glendale Police Department investigated this case, not the Phoenix Police
Department. Kamara does not argue, and the record does not indicate, that
the Glendale Police Department’s operations manual, interview process,
and procedures are the same as or similar to those of the Phoenix Police
Department.

4
 STATE v. KAMARA
Decision of the Court

inadequately qualified. Kamara argues his fair trial and due process rights
were violated when the trial court permitted the recordings to be
introduced at trial.

¶12 Although Kamara argues the trial court violated his
constitutional rights to a fair trial and due process, he did not raise any
purported constitutional violation regarding these issues to the trial court.
Further, Kamara does not dispute the State’s contention that he never
specifically objected at trial to the apparent lack of interpreters during the
interviews.

¶13 We will not disturb a trial court’s ruling on the admissibility
of evidence absent an abuse of discretion. State v. Davolt, 207 Ariz. 191, 208,
¶ 60 (2004). When a defendant fails to assert constitutional or other error in
the trial court, we review for fundamental error only. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); State v. Williams, 220 Ariz. 331, 334, ¶ 8 (App.
2008) (citing cases).

¶14 As to Kamara’s argument the recorded interview excerpts
were generally not relevant, we disagree. Evidence that tends to make a
fact of consequence more or less probable is relevant, Ariz. R. Evid. 401, and
“[a]ll relevant evidence is admissible unless otherwise prohibited by law.”
State v. Kiper, 181 Ariz. 62, 65 (App. 1994) (citing Ariz. R. Evid. 402). Here,
the recorded excerpts taken together indicated Kamara was alone upstairs
with the child at the time the child was injured, and they properly and
clearly demonstrated the inconsistencies in his statements to the police.
Thus, the excerpts were relevant because they made it more probable that
Kamara caused the child’s injuries. See Ariz. R. Evid. 401.

¶15 Next, as to Kamara’s argument the interpreters were needed
throughout the pretrial interviews, we again disagree. We have carefully
read the trial transcripts and listened to the recorded interview excerpts
admitted at trial. There is no indication the interviewees whose audio
recordings were used at trial requested an interpreter, either during their
interviews or at trial. Further, the record indicates the interviewees,
including Kamara, generally understood and communicated well in
English.4 Their statements were suitably responsive to the questions asked,
and they clarified the officers’ questions and their responses as appropriate.
Moreover, the record provides no indication the police were “unable to

4 The parties agree English is the official language of Sierra Leone, but
Kamara argues most people in that country speak Krio, an English-based
Creole language.

5
 STATE v. KAMARA
Decision of the Court

communicate” with the interviewees, as Kamara now claims. On this
record, we find no error, much less fundamental error, based on a lack of
interpreters at the pretrial interviews.5

¶16 Citing State v. Natividad, 111 Ariz. 191 (1974), and State v.
Hansen, 146 Ariz. 226 (App. 1985), Kamara implies his due process and fair
trial rights were violated because he was not afforded a competent
interpreter both before and at trial. Kamara’s reliance on Natividad and
Hansen is inapposite because the record makes clear that, unlike the
defendants in those cases, Kamara was not simply a passive observer who
did not understand the proceedings, as he now suggests. See Natividad, 111
Ariz. at 194; Hansen, 146 Ariz. at 232. The record demonstrates Kamara was
engaged throughout the proceedings and understood and communicated
well in English. Consequently, the absence of an interpreter for Kamara
either before or at trial neither violated his due process rights nor
constituted fundamental error.

¶17 Kamara also argues the interpreter provided for his wife at a
pretrial interview and at trial was unqualified. But the State did not
introduce any recorded excerpts from the police interview of Kamara’s
wife. Additionally, at trial, before Kamara’s wife testified, Kamara’s
counsel brought up the subject of the interpreter’s qualifications and said
Kamara’s wife “might have some difficulty with the translation.” The
prosecutor then avowed as follows:

I can tell you, Judge, that we had an interview, I guess
it was mainly my interview, but [defense counsel] was there.
And using this interpreter back in I think it was February.
And we did an interview for over an hour and 15 minutes
with this interpreter. The whole time -- Ms. Kamara would
speak some English and some in another language. She
appeared to understand the questions that were being asked.
She answered in a responsive way. And when she would say

5 Moreover, after reviewing the record, we agree with the State that,
in this case, any inconsistencies in testimony caused by witnesses’ language
issues simply affected the weight of the evidence garnered from their
interviews and testimony, rather than its admissibility. See, e.g., State v.
Lehr, 201 Ariz. 509, 517, ¶ 24 (2002) (“It is a basic maxim that judges
determine admissibility of evidence and juries decide what weight to give
it.”).

6
 STATE v. KAMARA
Decision of the Court

things back, we understood what the interpreter was telling
us and to be responsive to our questions.

So to the extent the defendant is claiming that this
interpreter is inadequate, we seem to have a history that
would tend to say otherwise. I guess he’s not really making a
request not to use the interpreter, but I just wanted to make
that record.

Defense counsel did not dispute this avowal, and the trial court later
discussed the matter with Kamara’s wife before proceeding. Kamara’s wife
affirmed she knew “some English,” and she agreed that if she did not
understand the interpreter, she would inform the court. The interpreter at
issue was then used throughout the wife’s testimony, including cross-
examination and redirect examination.

¶18 During her testimony, Kamara’s wife testified she understood
English well but that speaking it sometimes gave her a “problem,” and the
trial court later noted she appeared to understand both sides’ questions and
her answers were responsive.6 We have read the transcripts of her
testimony and agree with the trial court. The record provides no indication
that Kamara’s rights to due process or a fair trial were violated or that error
occurred because of either the admission of the excerpts of the recorded
police interviews or the use of the translator at issue.

II. Ineffective Assistance of Counsel Claim

¶19 Kamara also argues his trial counsel was ineffective.
Ineffective assistance of counsel claims are properly raised in Rule 32 post-
conviction relief proceedings. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). “Any
such claims improvidently raised in a direct appeal . . . will not be addressed
by appellate courts regardless of merit.” Id. Therefore, we do not address
Kamara’s ineffective assistance of counsel claim.

III. Presence of a Child as an Aggravator in Sentencing

¶20 Kamara also maintains “no child present in the home knew of
or was aware of the underlying offense” when it happened. Relying on that

6 At one point, the trial court even interrupted Kamara’s wife’s
testimony to ask her to slow down because, although she appeared to
understand the prosecutor’s questions, the court needed her to “please wait
until the interpreter says the question again and then you can give your
answer. Okay?”

7
 STATE v. KAMARA
Decision of the Court

premise and State v. Hancock, 240 Ariz. 393, 399-400, ¶¶ 20-24 (App. 2016),
he argues insufficient evidence supported the jury’s finding of the
“presence of a child” aggravating circumstance and the trial court erred in
considering that aggravator at sentencing.

¶21 An aggravating circumstance exists when (1) a defendant
commits an offense in the presence of a child and (2) the offense satisfies
the statutory elements of a domestic violence offense. 7 See A.R.S. § 13-
701(D)(18) (citing A.R.S. § 13-3601(A)). However, “the § 13-701(D)(18)
aggravator cannot be sustained where the only evidence presented
indicates the child was entirely unaware of the offense.” Hancock, 240 Ariz.
at 399, ¶ 22 (citations omitted).

¶22 Generally, we review de novo a question of sufficiency of the
evidence. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). Remand is only
necessary, however, when it is unclear whether the trial court would have
imposed the same sentence absent the inappropriate factor. See State v.
Johnson, 229 Ariz. 475, 482, ¶ 20 (App. 2012) (remanding for resentencing
because the trial court relied on improper aggravating factors and the record
did not demonstrate the court would necessarily impose the same sentence
absent the improper factors); State v. Pena, 209 Ariz. 503, 509, ¶ 24 (App.
2005) (“When it is ‘unclear whether the judge would have imposed the
same sentences absent the inappropriate factor, the case must be remanded
for resentencing.’” (quoting State v. Alvarez, 205 Ariz. 110, 116, ¶ 19 (App.
2003))).

¶23 Here, even assuming arguendo that insufficient evidence
supported the jury’s finding of the aggravating circumstance at issue, such
an error would not require that we remand for resentencing. As Kamara
acknowledges, the jury found three aggravating circumstances for Count I
and two for Count II, including that Kamara had committed the offenses in
the presence of a child, and the trial court found Kamara had committed
the offenses while on probation for a prior misdemeanor offense of
vulnerable adult abuse. At sentencing, the trial court found “any one of the
aggravating factors alone is sufficiently substantial to warrant an
aggravated sentence.” And Kamara does not contest the trial court’s use of
the jury’s other findings—that the victim suffered physical, emotional, or
financial harm, and that Count I was a dangerous crime against a child—or
the trial court’s finding that Kamara committed the offenses while on
probation. As a result, we can say beyond a reasonable doubt the trial court

7 Kamara does not contend his offenses failed to satisfy the statutory
elements of a domestic violence offense.

8
 STATE v. KAMARA
Decision of the Court

would have imposed the same sentence even if it had not considered the
“presence of a child” aggravator. Accordingly, any possible error is
harmless, and Kamara is not entitled to resentencing. See Pena, 209 Ariz. at
509, ¶ 24.

CONCLUSION

¶24 Kamara’s convictions and sentences are affirmed.

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

9