IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ODECE DEMPSEAN HILL, Appellant.

No. 1 CA-CR 12-0627

Appeal from the Superior Court in Maricopa County

No. CR2011-143399-001

The Honorable Connie Contes, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Craig W. Soland

Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Appellant
STATE v. HILL

Opinion of the Court

2

OPINION

Chief Judge Diane M. Johnsen delivered the opinion of the Court, in which 

Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.

J O H N S E N, Judge:

¶1 Odece Dempsean Hill was convicted of sexually assaulting a 

teenage girl, based in part on the testimony of a forensic nurse who related

what the victim had told her in the emergency room three hours after the 

attack. The victim died before Hill was brought to trial, and he argued the 

nurse's testimony violated his rights under the Confrontation Clause of the 

United States Constitution. Guided by recent United States Supreme Court 

cases, we conclude the superior court did not err by admitting the 

testimony because the victim's statement was not testimonial.

FACTS AND PROCEDURAL HISTORY

¶2 Three assailants forced their way into a Mesa apartment early 

one morning in 2001, and one or more of them sexually assaulted a 

pregnant teenage girl.1 Shortly after the assailants departed, the victim was 

taken to an emergency room in premature labor. There a registered nurse 

trained to perform forensic medical examinations examined her. The nurse 

provided medical care and also collected samples of biological evidence 

using a rape kit. The biological evidence collected from the victim matched 

DNA samples taken from the crime scene, leading to Hill's arrest ten years 

later.

¶3 Before Hill was brought to trial, the victim died from causes 

unrelated to the assault, and the State moved in limine to allow the nurse to 

testify about her examination of the victim and a statement the victim made 

to her at the outset of the examination. Over Hill's objection that the 

testimony would violate the Confrontation Clause, the superior court 

granted the State's motion.

 

1 We view the facts in the light most favorable to sustaining the jury's 

verdicts and resolve all inferences against Hill. State v. Fontes, 195 Ariz. 229, 

230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
STATE v. HILL

Opinion of the Court

3

¶4 At trial, the nurse testified that forensic nurses are registered 

nurses specially trained to perform forensic medical examinations of crime 

victims. She testified her examination of the victim had two components –

providing medical care and collecting DNA evidence and other evidence of 

the assault. Before seeing the victim, the nurse spoke with a law 

enforcement officer to obtain basic demographic information about the

victim and to learn why a forensic examination was called for, but no officer 

was present during the examination. The nurse documented the results of 

the examination on a form titled "Sexual Assault Examination Report" that

provided step-by-step instructions for collecting evidence and required her

to record the victim's medical and "assault history" and where on the 

victim's body she collected evidence. The nurse identified herself on the 

form as the "examiner" and the Mesa Police Department as the "agency 

involved." According to the form, the assault occurred at 2 a.m.; the 

examination began at 5 a.m. In addition to noting the manner and location 

of the various assaults the victim identified, the nurse recorded the victim's 

vital signs and the nature and location of pain she described. The nurse 

also recorded other elements of her physical examination of the victim, 

including, for example, neurological signs (the victim was "oriented"), and 

her breath and bowel sounds. 

¶5 The nurse testified she began the examination by asking the 

victim about her medical history and any sexual assault that had occurred. 

Obtaining an assault history, she explained, is "part of normal nursing care 

and it guides my treatment. It tells me what I'm going to do or not do." She 

further testified that, although part of her job as a forensic nurse is to collect 

evidence from the victim, "my job is to be a nurse first." She stated:

I start out by explaining the process to my patient and getting 

consent from him or her in order to perform the exam. And 

the process is I obtain a history from my patient for the 

purpose of diagnosis and treatment. . . . And then I do a head 

to toe exam. And I do that looking for injury or trauma. And 

depending on what they told me in history, or detail, I do a 

genital exam looking for injury or trauma. And throughout 

the entire process I collect evidence using generally swabs off 

their bodies.

¶6 Asked how she obtained an assault history from the victim, 

the nurse replied that she asked a "completely open-ended question. . . . I 

say tell me why you're here." In response to that question, the victim 

provided a graphic account of several assaults, which the nurse wrote down 

and read at trial:
STATE v. HILL

Opinion of the Court

4

[H]e held a gun to my head, shoved his hand into me, then he 

put his D in my mouth, his dick. The other guy tried to [p]ut 

his D in my buttocks, pulled my legs apart trying to put his D 

in me the other way. I sucked him off but he ha[d] sex with 

me, put his dick in my vagina. Then the other guy too had me 

suck him off; had sex with me in the bathtub. The third guy 

stuck his fingers in me to clean me out and then he made me 

suck him off.

¶7 The nurse's examination of the victim took 75 minutes, after 

which she released the victim back to the care of the emergency room staff, 

recommending that she be given medication to prevent sexually 

transmitted infections and that she make an appointment to return for 

another check in a few weeks.

¶8 The jury convicted Hill of one count of first-degree burglary, 

a Class 2 felony; four counts of kidnapping, Class 2 felonies; seven counts 

of sexual assault, Class 2 felonies; one count of attempted sexual assault, a 

Class 3 felony; and four counts of aggravated assault, Class 3 felonies. The 

court sentenced him to consecutive and concurrent sentences of 

imprisonment totaling 91.5 years. 

¶9 Hill timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes sections 12-120.21(A)(1) (2014), 13-4031 (2014) and -4033 (2014).2

DISCUSSION

¶10 Although several of Hill's convictions were supported by 

substantial other evidence at trial, the nurse's account of the victim's 

statement recited supra ¶ 6 was the only evidence establishing the 

particulars of a few of the charges against him. Hill argues the superior 

court violated his Sixth Amendment right to confront witnesses when it 

admitted the victim's statement to the forensic nurse.

3 We review the 

 

2 Absent material revision after the date of the alleged offense, we cite 

a statute's current version.

3 Hill's counsel filed a brief pursuant to Anders v. California, 386 U.S. 

738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), saying she 

could identify no arguable question of law that was not frivolous. In a 

separate supplemental brief, Hill argued, inter alia, that the forensic nurse's 
STATE v. HILL

Opinion of the Court

5

superior court's decision under the Confrontation Clause de novo. State v. 

Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007). 

¶11 The Confrontation Clause provides, "In all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington,

541 U.S. 36, 53-54 (2004), the Supreme Court held that a "testimonial"

statement by a witness who does not appear at trial must be excluded under 

the Confrontation Clause unless the witness is unavailable to testify and the 

defendant had a prior opportunity for cross-examination. The Court did 

not comprehensively define "testimonial," but described a "core class of 

'testimonial' statements" as including affidavits, custodial examinations, 

depositions, prior testimony, confessions, "[s]tatements taken by police 

officers in the course of interrogations," and any other "statements that were 

made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later 

trial." Id. at 51-52. 

¶12 In Davis v. Washington, 547 U.S. 813, 817 (2006), the Supreme 

Court analyzed whether statements made to a 911 operator were 

"testimonial" for purposes of the Confrontation Clause. There the Court 

held that "[s]tatements are nontestimonial when made in the course of 

police interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to meet 

an ongoing emergency." Id. at 822. On the other hand, statements "are 

testimonial when the circumstances objectively indicate that there is no 

such ongoing emergency, and that the primary purpose of the interrogation 

is to establish or prove past events potentially relevant to later criminal 

prosecution." Id. Thus, in Davis the Supreme Court shifted the focus under

the Confrontation Clause to the "primary purpose" of an interrogation. See 

State v. Alvarez, 213 Ariz. 467, 471, ¶ 15, 143 P.3d 668, 672 (App. 2006). The 

Court observed that "a 911 call[] is ordinarily not designed primarily to 

'establis[h] or prov[e]' some past fact, but to describe current circumstances 

requiring police assistance." Davis, 547 U.S. at 827; see also id. ("the elicited 

statements were necessary to be able to resolve the present emergency, 

 

testimony violated his Confrontation Clause rights. Pursuant to Penson v. 

Ohio, 488 U.S. 75, 86-88 (1988), we ordered supplemental briefs addressing 

this issue. In a separate memorandum decision, we resolve other issues Hill 

raised in his supplemental brief, see Ariz. R. Crim. P. 31.26, and order the 

judgment of conviction modified to delete the requirement that Hill pay for 

DNA testing, see State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 

2013).
STATE v. HILL

Opinion of the Court

6

rather than simply to learn (as in Crawford) what had happened in the 

past"). 

¶13 In Michigan v. Bryant, the Court sought to clarify the "primary 

purpose" analysis. 562 U.S. __, 131 S. Ct. 1143, 1156 (2011). The Court held 

the determination requires an objective evaluation of the facts relating to 

the exchange:

An objective analysis of the circumstances of an encounter 

and the statements and actions of the parties to it provides the 

most accurate assessment of the "primary purpose of the 

interrogation." The circumstances in which an encounter 

occurs – e.g., at or near the scene of the crime versus at a police 

station, during an ongoing emergency or afterwards – are 

clearly matters of objective fact. The statements and actions 

of the parties must also be objectively evaluated. That is, the 

relevant inquiry is not the subjective or actual purpose of the 

individuals involved in a particular encounter, but rather the 

purpose that reasonable participants would have had, as 

ascertained from the individuals' statements and actions and 

the circumstances in which the encounter occurred.

Id. at __, 131 S. Ct. at 1156. 

¶14 Under these authorities, in determining whether the superior 

court here erred in allowing the nurse to recount the victim's statement, we 

must evaluate objectively all the facts concerning the exchange that 

produced the statement to determine the "primary purpose" of the nurse's 

question to the victim and the victim's response. See id.; see also State v. 

Mendez, 242 P.3d 328, 339-40 (N.M. 2010).4

 

4 In considering whether a forensic nurse's testimony was admissible 

under the hearsay exception for statements made for medical diagnosis, the 

Mendez court commented, "[Forensic] nurses fill a void in our medical 

system, providing critical treatment to patients at a time of great physical, 

emotional, and psychological vulnerability . . . . But they also have special 

expertise in gathering evidence for subsequent prosecution of the offender, 

which raises appropriate concerns about whether the statement was made 

for the purposes of seeking medical care or whether a medical provider 

could have reasonably relied upon the statement for diagnosis or treatment 

of the declarant." 242 P.3d at 339-40; see Bryant, 562 U.S. at __, 131 S. Ct. at 

1155.
STATE v. HILL

Opinion of the Court

7

¶15 Other courts examining similar exchanges under the 

Confrontation Clause have looked to where the examination took place, the 

victim's medical condition, whether law enforcement officers were present

and the formality of the exchange. 

¶16 Courts routinely admit victims' statements made in response 

to questions necessary for medical treatment. See, e.g., People v. Vigil, 127 

P.3d 916 (Colo. 2006) (child victim's statements to physician at hospital 

helped physician discern what treatment child required; examination was 

not functional equivalent of police interrogation); Commonwealth v. 

DeOliveira, 849 N.E.2d 218, 224-25 (Mass. 2006) (child victim's statements to 

physician at hospital admissible because a reasonable declarant would have 

understood that question "what had happened" was a medical query). 

Accordingly, a victim's statement to a medical professional is more likely to 

be non-testimonial when the victim is examined in a hospital emergency 

room, where the medical necessity of the examination presumably is more 

pronounced. See, e.g., State v. Slater, 939 A.2d 1105, 1119 (Conn. 2008)

("When such a victim is brought to a hospital, even by the police, we expect 

that his or her most pressing concern is getting medical attention and not 

providing a record of facts."); State v. Harper, 770 N.W.2d 316, 322-23 (Iowa 

2009) (statements by burn victim to emergency room staff were to assist in 

diagnosis and emergency treatment); State v. Vaught, 682 N.W.2d 284, 286, 

291-92 (Neb. 2004) (child victim's statement to emergency room physician

was not testimonial). 

¶17 When the testifying witness is a trained forensic medical 

professional, the issue may be more difficult. In Hartsfield v. Commonwealth, 

277 S.W.3d 239, 241, 244-45 (Ky. 2009), the court held a rape victim's 

statements to a trained "sexual assault nurse examiner" ("SANE") at a 

hospital were testimonial because the nurse was an "active participant in 

the formal criminal investigation." The court found significant that the 

"nurse's questioning involved past events, was not related to an ongoing 

emergency, and took on the nature of a formal interview." Id. at 245. The 

court concluded that SANE nurses' "function of evidence gathering, 

combined with their close relationships with law enforcement, renders 

[their] interviews the functional equivalent of police questioning." Id. at 

244.

¶18 Like the witness in Hartsfield, the forensic nurse in this case 

followed a law enforcement protocol by using a rape kit to gather evidence. 

But unlike in Hartsfield, where the nurse only interviewed the victim about 

her assault and collected biological samples, see id. at 241-42, 244-45, the 

forensic nurse in this case also provided medical care to the victim.
STATE v. HILL

Opinion of the Court

8

¶19 Because forensic medical examinations often have two 

purposes – to gather evidence for a criminal investigation and to provide

medical care to the victim – whether a victim's statement in response to a 

question by the examiner is testimonial for purposes of the Confrontation 

Clause turns on whether the surrounding circumstances, objectively 

viewed, show that the primary purpose of the exchange at issue was to 

provide medical care or to gather evidence. See Perry v. State, 956 N.E.2d 

41, 56-57 (Ind. App. 2011) (investigative component of forensic medical 

examination "was at best secondary to the principal objective of providing 

and receiving medical attention"); State v. Miller, 264 P.3d 461, 486-490 (Kan. 

2011) (whether statements to a SANE nurse are testimonial is a "highly 

context-dependent inquiry" requiring analysis of the totality of the 

circumstances). For this reason, we part with Hartsfield and other cases, 

including Medina v. State, 143 P.3d 471 (Nev. 2006), to the extent they hold 

that rape victims' statements to forensic medical professionals are 

testimonial as a matter of law.

¶20 The Hartsfield court also found it significant that there was no 

"emergency" by the time the victim in that case was examined at the 

hospital. 277 S.W.3d at 245. A statement to police is more likely to be nontestimonial if it is made during an emergency, while the witness still may 

be in danger or criminal activity may remain afoot. See Bryant, 562 U.S. at 

__, 131 S. Ct. at 1166-67; Davis, 547 U.S. at 822. That does not mean, 

however, that a statement is testimonial unless it is made during an 

emergency. See Bryant, 562 U.S. at __, 131 S. Ct. at 1155 ("But there may be 

other circumstances, aside from ongoing emergencies, when a statement is 

not procured with a primary purpose of creating an out-of-court substitute 

for trial testimony.").

¶21 The focus always must be on the purpose of the particular 

exchange between the declarant and the testifying witness in which the 

statement was made. See Alvarez, 213 Ariz. at 471, ¶ 15, 143 P.3d at 672. 

Under that analysis, when the objective circumstances indicate a statement 

was made in connection with the provision of emergency medical care, the 

statement is likely to be non-testimonial. See, e.g., Ward v. State, 15 N.E.3d

114, 117, 121 (Ind. App. 2014) (victim's statements in emergency room were

made primarily for the provision of emergency medical care where victim 

had been severely beaten and there were concerns she suffered internal 

injuries to kidneys and lungs). In such a case, the emergent nature of the

exchange makes it more likely that its purpose is medically related. See id. 

at 121.
STATE v. HILL

Opinion of the Court

9

¶22 We cannot say, however, that a statement made in response 

to a question by a medical provider in connection with non-emergent

medical care necessarily is testimonial simply because the victim does not 

require urgent medical attention. See Miller, 264 P.3d at 489 ("[I]f statements 

are made in a medical emergency, there would be a strong indication the 

objective purpose was medical diagnosis and treatment. On the other hand, 

where there are injuries or concerns of injury, the lack of a medical 

emergency does not negate the purpose of seeking medical treatment."). If 

the primary purpose of the encounter is the provision and receipt of 

medical care, the statement is non-testimonial, regardless of whether the 

care sought is for an emergent condition. See id.; see also United States v. 

DeLeon, 678 F.3d 317, 323-26 (4th Cir. 2012), vacated on other grounds, 133 S. 

Ct. 2850 (2013) (statements to social worker months before alleged criminal 

act were non-testimonial because they were made for treatment purposes, 

not for law enforcement purposes).5

¶23 Courts also have refused to admit statements made by a 

victim during a forensic medical examination when there is evidence of

heightened police involvement – when, for example, an officer was present 

during the examination, or the examination was recorded for law 

enforcement purposes. See, e.g., United States v. Bordeaux, 400 F.3d 548, 556 

(8th Cir. 2005) (examination videotaped); State v. Hooper, 176 P.3d 911, 917-

18 (Idaho 2007) (law enforcement officers present during the examination;

videotape was made; and nurse did not ask any questions related to 

victim's medical condition); State v. Bennington, 264 P.3d 440, 455 (Kan. 

2011) (law enforcement officer present and asked questions during 

examination); State v. Snowden, 867 A.2d 314, 325-27 (Md. 2005) (police 

officer present and social worker began the interview with a police report 

in hand); Green v. State, 22 A.3d 941, 951, 953 (Md. Spec. App. 2011) (forensic 

report was "prepared at the specific request of the police" and victim had 

"already received the needed medical assessment and treatment" at the 

hospital); State v. Hurtado, 294 P.3d 838, 845, ¶ 29 (Wash. App. 2013) (law 

 

5 Cases holding that statements are testimonial when made under

circumstances that do not show the victim required or was seeking medical 

care are not inconsistent. See Hernandez v. State, 946 So. 2d 1270, 1280-86 

(Fla. App. 2007) (child victim's statements to a "Child Protection Team" 

nurse one week after sexual attack were inadmissible); State v. Cannon, 254 

S.W.3d 287, 305 (Tenn. 2008) (statement during structured examination and 

interview with forensic nurse after victim had received medical treatment 

was testimonial); United States v. Gardinier, 65 M.J. 60, 65-66 (C.A.A.F. 2007) 

(SANE nurse's account of interview of child victim conducted several days 

after child reported assault was testimonial).
STATE v. HILL

Opinion of the Court

10

enforcement officer present and gathered evidence during examination); cf.

State v. Stahl, 855 N.E.2d 834, 837, ¶ 7, 846, ¶ 48 (Ohio 2006) (statements by 

victim were non-testimonial even though police officer was present).

¶24 Guided by these authorities, we conclude the nurse's 

recounting of the victim's statement did not violate Hill's rights under the 

Confrontation Clause. The nurse's medical examination of the victim took 

place in the emergency room of a hospital, where the victim had been taken 

because she was in premature labor. Significantly, the question that 

prompted the statement at issue – "Why are you here?" – is the starting 

point of any ordinary medical examination. As the nurse testified:

[I]f you go to a physician and you have a sore throat, you 

actually have to tell the physician or physician assistant or the 

nurse why you're there. You don't just go in a room and sit 

and they have to wonder why you're there . . . . It is the same 

thing with my patients, they come in and tell me why they are 

there, so that I can treat them.

Moreover, the nurse performed a standard medical assessment of the 

victim and recorded the results. No law enforcement officer was present 

during any part of the examination, which was not recorded. After 

examining the victim, the nurse recommended prophylactic preventative 

treatment for sexually transmitted infections and a follow-up appointment

for medical care. The victim remained in the emergency room for 

observation after the examination was completed. These circumstances, 

objectively viewed together, demonstrate that the primary purpose of the

exchange that produced the statement at issue was to provide medical 

treatment. 

¶25 To be sure, the examination the nurse performed had an 

investigative component. The nurse was specially trained to conduct 

forensic examinations of sexual assault victims. She collected DNA 

samples to forward to law enforcement, and she recorded the results of her 

examination, including the victim's statement, on a form issued by the state. 

The statement recounted above, however, came at the outset of the victim's 

encounter with the nurse and before the nurse commenced her assessment 

of the injuries the victim had suffered and before she had collected any

biological evidence of those injuries. The open-ended question ("Tell me 

why you are here"), posed to the victim in the emergency room, was not 

aimed at collecting evidence but at gathering information about the victim's 

medical condition. The objective circumstances of the exchange that 

produced the statement thus indicate that its primary purpose was medical 
STATE v. HILL

Opinion of the Court

11

treatment, not the collection of evidence of a crime. See Slater, 939 A.2d at 

1118 (collecting evidence during examination of a sexual assault victim 

"does not eviscerate the medical treatment purpose of the exam"); Perry, 956 

N.E.2d at 56-57; State v. Bobadilla, 709 N.W.2d 243, 255 (Minn. 2006). 

CONCLUSION

¶26 Because the victim's statement to the forensic nurse was not 

testimonial, Hill's rights under the Confrontation Clause were not violated 

when the superior court allowed the nurse to recount the statement. For 

the reasons set forth above and in our accompanying memorandum 

decision, we affirm Hill's convictions and sentences.