State of Arizona v. Gabriela Aragon

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

GABRIELA ARAGON,
Appellant.

No. 2 CA-CR 2023-0008
Filed August 13, 2024

Appeal from the Superior Court in Pima County
No. CR20200013001
The Honorable D. Douglas Metcalf, Judge

AFFIRMED IN PART; REVERSED IN PART

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee

James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
 STATE v. ARAGON
Opinion of the Court

OPINION

Presiding Judge Sklar authored the opinion of the Court, in which Vice
Chief Judge Eppich and Judge Brearcliffe concurred.

S K L A R, Presiding Judge:

¶1 This appeal of convictions arising out of a fatal car crash
concerns the United States Constitution’s Confrontation Clause. The clause
entitles defendants to confront witnesses who have provided testimonial
hearsay. Smith v. Arizona, 602 U.S. __, 144 S. Ct. 1785, 1791 (2024). Gabriela
Aragon argues that under the Confrontation Clause, the state was required
to call as a witness the technician who downloaded data from her car’s
event data recorder (EDR).

¶2 We conclude that the download involved no testimonial
statements. Thus, the Confrontation Clause did not require the state to call
the technician as a witness. The trial court instead satisfied Aragon’s
confrontation rights by allowing her to cross-examine the detective who
relied on the EDR data in reconstructing the crash. We therefore affirm
Aragon’s convictions and sentences for negligent homicide, aggravated
assault, criminal damage, and driving while under the influence. However,
we reverse her conviction for assault, which is multiplicitous.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Aragon. See
State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In December 2019, Aragon spent
several hours consuming alcohol at a bar. She then drove through a red
light, striking and killing a pedestrian in the crosswalk. She also struck
another vehicle and injured its driver.

¶4 Data retrieved from her car’s EDR revealed that the car had
been traveling nearly double the speed limit when Aragon pressed the
brakes, one second before impact. Aragon’s blood-alcohol concentration
(BAC) was .184 when her blood was drawn almost three hours later.

¶5 Aragon was charged with manslaughter, two counts of
aggravated assault, criminal damage, driving under the influence, and
driving under the extreme influence of liquor with a BAC of .20 or more.

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Opinion of the Court

After a seven-day trial, the jury found her not guilty of manslaughter but
guilty of the lesser-included offense of negligent homicide. It also found
her guilty of one count of aggravated assault, the lesser-included offense of
assault, criminal damage, and driving under the influence. It did not find
her guilty of driving under the extreme influence. The trial court sentenced
her to concurrent prison terms, the longest sentence being seven-and-a-half
years. This appeal followed.

CONFRONTATION CLAUSE

¶6 Aragon’s Confrontation Clause argument concerns the trial
court’s denial of a motion to preclude testimony relating to the EDR data.
She argues that the testimony should have been precluded unless she could
confront the technician who extracted the data. The state did not call the
technician to testify. We review challenges to the admissibility of evidence
based on the Confrontation Clause de novo. State v. Bennett, 216 Ariz. 15,
¶ 4 (App. 2007).

I. Relevant facts

¶7 An EDR, often referred to as the “black box,” records a
vehicle’s speed and other information for the few seconds preceding a crash
in which the airbags are deployed. Vehicle manufacturers use different
EDRs, which require their own equipment and proprietary software to
access. Downloading the data involves following protocols that require
specialized training. Once the data is downloaded, the software generates
a report of the information.

¶8 After the accident, police hired a technician to download the
EDR data from Aragon’s car. That download was observed by a detective
who later performed a collision reconstruction. That detective had
specialized training to retrieve and analyze EDR data. He did not perform
the download himself because police lacked the cable that was compatible
with the EDR in Aragon’s car. The detective testified that the technician
attached a cord to the EDR unit, downloaded the data, placed it on an
external drive, and departed. The technician performed no analysis of his
own.

¶9 The speed limit at the accident site was forty miles per hour.
The EDR data revealed that the brakes were pressed one second before
impact, when the car was traveling seventy-eight miles per hour. At
impact, its speed was sixty-two miles per hour. In performing the

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Opinion of the Court

reconstruction, the detective relied on this information. He also testified
about it to the jury.

II. Applicable case law concerning testimonial statements

¶10 The Confrontation Clause mandates that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .” U.S. Const. amend. VI. The Arizona
Constitution contains a similar provision, which our courts have
interpreted as coextensive with the Confrontation Clause. Ariz. Const. art.
II, § 24 (guaranteeing the right “to meet the witnesses against” criminal
defendants “face to face”); see also State v. Carr, 216 Ariz. 444, n.2 (App. 2007)
(“[O]ur supreme court has determined that Arizona’s constitution provides
substantially the same right to confrontation as the Sixth Amendment and
requires no different analysis.”) (citing State v. Vincent, 159 Ariz. 418, 432-33
(1989)). The Confrontation Clause “prohibit[s] the introduction of
testimonial statements by a nontestifying witness, unless the witness is
‘unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.’” Ohio v. Clark, 576 U.S. 237, 243 (2015) (quoting
Crawford v. Washington, 541 U.S. 36, 54 (2004)).

¶11 As the United States Supreme Court recently explained, the
Confrontation Clause “‘applies only to testimonial hearsay’—and in that
two-word phrase are two limits.” Smith v. Arizona, 602 U.S. __, 144 S. Ct.
1785, 1792 (2024) (quoting Davis v. Washington, 547 U.S. 813, 823 (2006)).
First, the clause applies only to testimonial statements. Davis, 547 U.S. at
822. Second, it applies only to hearsay. Smith, 144 S. Ct. at 1792.

¶12 We first address whether the technician’s download of the
EDR data involved any testimonial statements. In this analysis, we assess
whether a statement has the primary purpose of “establish[ing] or
prov[ing] past events potentially relevant to later criminal prosecution.”
Davis, 547 U.S. at 822. Documents are testimonial statements when “created
solely for an ‘evidentiary purpose,’” such as when they are “made in aid of
a police investigation.” Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011)
(quoting Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)).

¶13 In an analogous case, this court held in State v. Ortiz, 238 Ariz.
329, ¶ 59 (App. 2015), that the “work and notes” of non-testifying
technicians who prepared a DNA profile were not testimonial. The DNA
analyst who testified had relied on the technicians’ work to prepare a
report, which concluded that the victim had contributed to DNA found on
the defendant’s body and clothes. Id. ¶ 28. This court explained that the

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analyst’s report was testimonial because it formed the basis for her opinion.
Id. ¶ 59. But the data prepared by the technicians “had no evidentiary
value” until the analyst had completed her work. Id.

¶14 Ortiz relied on the Arizona Supreme Court’s decision in State
v. Gomez, 226 Ariz. 165 (2010). That case reached the same result, also in the
DNA-profile context, without precisely identifying what material was
testimonial. Gomez concluded that a DNA analyst’s testimony “did not
offend the Confrontation Clause” because she had reviewed the work of the
technicians who had processed the DNA samples. Id. ¶ 21. The analyst also
testified from her own knowledge as to the procedures used, and she
answered questions during cross-examination about the accuracy of the
end results. Id.

III. Whether the EDR data involves testimonial statements

¶15 This case requires us to apply Ortiz and Gomez to EDR data
rather than DNA profiles. Like the defendants in those cases, Aragon
argues that the technician was required to testify even though he simply
gathered information that a testifying witness relied upon in his analysis.
And like the courts in those cases, we disagree. The EDR data was not
testimonial. When it was created, it was not done so solely for an
evidentiary purpose. See State v. King, 213 Ariz. 632, ¶ 25 (App. 2006)
(concluding that MVD records were not testimonial because they “are
required to be kept by statute and exist independently of any criminal
prosecution”). Rather, the data, which was maintained by the EDR itself,
was simply a record of the car’s speed, brake application, seatbelt usage,
and related information during the incident and just before.

¶16 Similarly, the technician’s retrieval of the EDR data involved
no testimonial statements. As we explained in Ortiz, courts have generally
concluded that the “failure to call a technician from the preliminary steps”
of a process does not violate the Confrontation Clause. 238 Ariz. 329, ¶ 57;
see also Gomez, 226 Ariz. 165, ¶ 21 (“The technicians at most could have
testified about the mechanical steps they took to process the DNA
samples.”). Although Aragon argues that the technician undertook more
than preliminary steps and instead “generated a report,” that report was
simply the record of the EDR data, which came from the EDR itself. No
evidence suggests that the technician manipulated or analyzed the data, or
that he made any statements about it. It follows that none of his work was
testimonial.

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¶17 The EDR data did not become relevant to any testimony until
after the detective analyzed and interpreted it in his reconstruction.
See Ortiz, 238 Ariz. 329, ¶ 59 (“The DNA profiles had no evidentiary value
until they were compared and matched by [the analyst].”). That
reconstruction was testimonial. But just as in Ortiz and Gomez, that
detective testified at trial and was subject to extensive cross-examination.
Because he observed the technician’s download, he was also able to testify
about that process, with which he was generally familiar due to his training
and experience. In that regard, the cross-examination closely resembled
that which Gomez found sufficient. Aragon’s confrontation rights were
therefore satisfied.

IV. Addressing Aragon’s counter-arguments

¶18 Aragon, however, argues that Bullcoming, 564 U.S. 647, and
State v. Smith, 242 Ariz. 98 (App. 2017), compel a different result. Both those
cases found Confrontation Clause violations where analysts who
participated in testing did not testify. Bullcoming, 564 U.S. at 657-58; Smith,
242 Ariz. 98, ¶ 1. In Bullcoming, the non-testifying analyst had recorded the
defendant’s blood-alcohol content. 564 U.S. at 654-55. He had also certified
that the seal of the sample was received intact, the statements in the report
were correct, and he had followed the procedures listed in the report. Id. at
655, 660.

¶19 In Smith, the non-testifying analyst had conducted a test and
concluded that saliva had been found on the victim’s underwear. Smith,
242 Ariz. 98, ¶¶ 7, 13. Although a different analyst testified, we concluded
that her testimony was insufficient because she “acted only as a ‘conduit for
another non-testifying expert’s opinion.’” Id. ¶ 10 (quoting Gomez, 226 Ariz.
165, ¶ 22).

¶20 We are unpersuaded by Aragon’s analogies to Bullcoming and
Smith. In those cases, the non-testifying analysts had provided statements
of their own. See Bullcoming, 564 U.S. at 655, 660; see also Smith, 242 Ariz. 98,
¶¶ 7, 13. By contrast, in this case—like in Gomez and Ortiz—the
non-testifying technician made no statements. Gomez, 226 Ariz. 165, ¶ 21;
Ortiz, 238 Ariz. 329, ¶¶ 58-59. For this reason, we concluded in Ortiz that
Bullcoming did not invalidate Gomez. Ortiz, 238 Ariz. 329, ¶ 58. Aragon has
provided us with no basis for departing from this conclusion.

¶21 Aragon also argues that the detective lacked sufficient
knowledge of the protocols used by the technician. Although she frames
this issue as a Confrontation Clause argument, she has cited no authority

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suggesting that the Confrontation Clause requires the testifying witness to
possess certain credentials or knowledge. The detective was subject to
cross-examination, and Aragon was free to argue to the jury that his
testimony was unreliable. Nor has Aragon pointed to a rule of evidence
that would preclude his testimony.

¶22 Thus, we conclude that the technician’s work did not
implicate the Confrontation Clause because it involved no testimonial
statements. We need not address the second portion of the Confrontation
Clause analysis, which is whether any such statements were offered for the
truth of the matter asserted.

MULTIPLICITOUS CONVICTIONS

¶23 Aragon also argues that her conviction for assault must be
vacated because it is multiplicitous with her conviction for aggravated
assault and violates double jeopardy. See State v. Ortega, 220 Ariz. 320, ¶ 9
(App. 2008) (“[A] defendant may not be convicted for both an offense and
its lesser included offense because they are considered the ‘same offense’
for double jeopardy purposes.”); see also State v. Erivez, 236 Ariz. 472, ¶ 17
(App. 2015) (assault is lesser-included offense of aggravated assault). The
state concedes error. We agree and reverse Aragon’s conviction for assault.

DISPOSITION

¶24 For the foregoing reasons, we reverse Aragon’s conviction for
assault but affirm all other convictions and sentences.

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