State v. Bussey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EMORY PAUL BUSSEY, JR., Appellant.

Nos. 1 CA-CR 23-0362 and 1 CA-CR 23-0390
(Consolidated)
FILED 08-08-2024

Appeal from the Superior Court in Maricopa County
Nos. CR2022-115250-001, CR2023-107444-001
The Honorable Timothy J. Thomason, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. BUSSEY
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Emory Bussey appeals his convictions and sentences for
aggravated assault and preventing use of a telephone in emergency.
Because he shows no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 This criminal appeal stems from an episode of domestic
violence. Bussey strangled his mother (“Mother”) three times during an
evening fight and then confiscated her cell phone to prevent her from
calling the police. Mother retrieved her phone after Bussey fell asleep and
she called police. Police responded, along with the paramedics, who found
bruises on Mother’s neck and rushed her to a Chandler hospital.

¶3 Police asked a registered nurse who works for a hospital to
forensically examine Mother at the hospital. The nurse later testified that
forensic examinations are done to assess a patient’s injuries, provide
medical assistance and collect evidence for law enforcement. Mother told
the nurse what Bussey had done.

¶4 Bussey was arrested. He was charged with aggravated
assault and preventing use of a telephone in emergency. The nurse testified
at trial. She read her report from the forensic examination and detailed
what Mother told her. The jury also heard testimony from Bussey and
Mother. Bussey was found guilty of both charges and sentenced to
concurrent prison terms of 7.5 years for aggravated assault and four months
for preventing the use of a telephone in emergency.

¶5 Bussey timely appealed. We have jurisdiction. See Ariz.
Const. art. VI, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A).

1 We view and thus recount the facts in the light most favorable to
sustaining the jury’s verdict here with all reasonable inferences resolved
against Bussey. State v. Nelson, 214 Ariz. 196, ¶ 2 (App. 2007).

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Decision of the Court

DISCUSSION

¶6 Bussey argues the superior court erred when it allowed the
nurse to read and recount hearsay evidence into the record. Because Bussey
never raised the issue at trial, we review for fundamental error, which
requires an error that is both fundamental and prejudicial. See State v.
Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).

¶7 Hearsay is an out of court statement which “a party offers 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. 802–804. One applies to statements made for purposes of
medical diagnosis or treatment and for describing medical history pertinent
to diagnosis or treatment. Ariz. R. Evid. 803(4). This exception assumes
that a patient provides reliable information to medical practitioners when
seeking treatment. State v. Lopez, 217 Ariz. 433, 435, ¶ 8 (App. 2008).

¶8 To determine whether hearsay evidence is admissible under
this exception, Arizona courts ask two questions: (1) whether the
declarant’s apparent motivation was consistent with receiving medical
care, and (2) whether it would be reasonable for a physician to rely on the
information in diagnosis or treatment. State v. Robinson, 153 Ariz 191, 199
(1987). A statement need not be made to a physician to be admissible. State
v. Rushton, 172 Ariz. 454, 457 (App. 1992).

¶9 Bussey argues the exception does not apply here because
“[n]o evidence was offered that the nurse was present at least in part, to
offer medical treatment or to rely on the declarant’s statements for
diagnosis or treatment.” Not so.

¶10 The record has substantial evidence that Mother saw the
nurse for a medical diagnosis or treatment. The hospital nurse asked
Mother about her injuries and medical history and offered medical advice
on how to treat those injuries. The nurse testified (more than once) that she
conducted the forensic exam to “provide treatment” and evaluate Mother’s
medical needs. And the record has substantial evidence that a physician
could have reasonably relied on the challenged evidence. See Lopez, 217
Ariz. at 437, ¶ 13 (“it [is] important to get an accurate history of what
happened in order to know where to look for injury”).

¶11 We are mindful that the hospital nurse had dual purposes to
treat the patient and collect evidence. But Lopez controls. There, the police
provided a sexual assault kit to a medical practitioner with specific
questions to ask during the exam. Id. at ¶ 14. Our court held that

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Decision of the Court

“statements relevant to diagnosis or treatment can be admissible even when
the recipient of the statements engages in the dual purposes of medical
examination and evidence collection.” Id. at ¶ 15.

¶12 Bussey also argues the statements do not qualify for the
exception because police officers asked the hospital nurse to conduct a
forensic exam and the nurse would not have otherwise conducted the exam.
But that misses the mark, too. What matters is the declarant’s intent,
Robinson, 153 Ariz. at 199; Lopez, 217 Ariz. at 436–37, ¶ 12, and the evidence
in the record shows that Mother made statements to the hospital nurse for
purposes of medical treatment.

¶13 Lastly, even if it was error for the court to admit this evidence,
it does not rise to fundamental error. Bussey argues the admission of the
evidence was prejudicial because it “unfairly bolstered [Mother’s]
testimony.” We are not persuaded. Here, there was other testimony from
Mother and the police officer giving almost an identical description of what
happened as what was read to the jury from the forensic exam. The
erroneous admission of cumulative evidence does not rise to fundamental
error. State v. Moody, 208 Ariz. 424, 455, ¶ 121 (2004) (“Thus even if
admission of the [] records were error, those records were merely
cumulative and did not deprive [the defendant] of a fair trial.”).

CONCLUSION

¶14 Finding no error, we affirm Bussey’s convictions and
sentences.

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

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