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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE ISMAEL N.

No. 1 CA-JV 16-0331

Appeal from the Superior Court in Maricopa County

No. JV200684

The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Preciado Law Firm PLC, Phoenix

By Stephanie Preciado

Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Kenton D. Jones and Judge Donn Kessler joined.
IN RE ISMAEL N.

Decision of the Court

2

D O W N I E, Judge:

¶1 Ismael N. appeals from an order adjudicating him 

delinquent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Officer Jensen responded to a 911 call about “a reckless 

driver for a red Honda vehicle.” He saw a red Honda Accord, with five 

juveniles standing nearby. The Honda was running, the hood was up, 

and the juveniles were pouring water from a hose over the engine. The 

vehicle had extensive damage. The juveniles began walking away when 

the officer exited his patrol vehicle but returned after he gave “two to 

three” commands. Meanwhile, Officer Jensen received confirmation that 

the Honda had been reported stolen. He directed the juveniles to sit on 

the curb, and they were individually interviewed when additional officers

arrived. Photos of the Honda’s interior depicted a flat-head screwdriver 

and a metal file in the front console, as well as a gash in the ignition where 

the key slot would normally be. 

¶3 In a recorded interview, Ismael stated that the Honda was a 

“G-rip” — a stolen vehicle — and that his friend had picked him up in it a 

few days earlier. Ismael also admitted driving the vehicle and seeing 

another juvenile start it with a flat-head screwdriver. None of the 

juveniles possessed a key to the Honda. 

¶4 Ismael was charged with theft of means of transportation, in 

violation of Arizona Revised Statutes (“A.R.S.”) section 13-1814. After an

adjudication hearing, the juvenile court found that the State had proven 

the charge beyond a reasonable doubt and adjudicated Ismael delinquent. 

This timely appeal followed. We have jurisdiction pursuant to A.R.S. 

§§ 12-120.21(A)(1) and 13-4033(A)(1).

DISCUSSION

¶5 Ismael contends the court erred by admitting certain 

evidence, and he also raises a Confrontation Clause challenge to 

admission of the recorded 911 call. We review the admission of evidence 

for an abuse of discretion, but we consider Confrontation Clause 

challenges de novo. State v. King, 212 Ariz. 372, 375, ¶ 16 (App. 2006).
IN RE ISMAEL N.

Decision of the Court

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I. Preclusion of Evidence

¶6 Ismael contends the juvenile court should have granted his 

oral motion to preclude his recorded statement, photographs taken by the 

police, and the 911 call based on the State’s purported violation of 

disclosure obligations imposed by Arizona Rule of Criminal Procedure 

15.8(a). We disagree. 

¶7 On June 8, 2016, the State filed a disclosure statement, listing 

as exhibits “Recorded Interviews,” “Photos,” and “911 radio calls,” as well 

as eight other generic categories of exhibits to be used at trial.1 The 

disclosure statement advised that “[t]his evidence is available for your 

review upon your request.” At the adjudication hearing, defense counsel 

asserted he was unable to review the evidence until the preceding day, 

though he acknowledged receiving an email from the prosecutor on July 

22 stating that the evidence was available. Counsel explained “it was part 

of my failure to pick it up,” but nevertheless contended the State had 

violated its disclosure obligations. 

¶8 Rule 16 of the Rules of Procedure for the Juvenile Court 

governs discovery and disclosure in delinquency proceedings. Pursuant 

to Rule 16(B)(1), within 10 days of the advisory hearing, the State is 

required to make available, as relevant here, a “list of all papers, 

documents, photographs or tangible objects which the prosecutor will use 

at the adjudication hearing, and upon further written request shall make 

available to the juvenile for examination, testing and reproduction any 

specified items contained in the list.” The State complied with Rule 16, 

and Ismael cites no legal authority applying Rule 15.8’s materially 

different provisions for adult criminal prosecutions to this delinquency 

proceeding. See Ariz. R.P. Juv. Ct. 1 (“These rules govern the procedure 

for all matters in the juvenile court, including delinquency . . . .”). 

¶9 The record supports the juvenile court’s finding that the 

defense knew of the State’s intent to use the challenged evidence but did 

not take steps to promptly obtain it. Under these circumstances, the court 

did not abuse its discretion by permitting the State to use the evidence at 

the adjudication hearing. 

 

1 Contrary to the assertion in the opening brief, the State’s 

disclosure statement is part of the record on appeal. 
IN RE ISMAEL N.

Decision of the Court

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II. Confrontation Clause

¶10 The Confrontation Clause bars admission of testimonial 

statements unless the declarant is unavailable to testify and the defendant 

has had a prior opportunity to cross-examine the declarant. Crawford v. 

Washington, 541 U.S. 36, 53–54 (2004). In Davis v. Washington, 547 U.S. 813

(2006), the Court reviewed two companion cases, concluding in one 

(Davis) that a domestic violence victim’s “frantic” statements in response 

to a 911 operator’s questions were not testimonial, whereas in the second 

case (Hammon), a domestic battery victim’s written statements given 

during a post-incident investigation were testimonial. In Davis, the Court 

observed, the victim was speaking about events as they were occurring, 

rather than describing past events. Id. at 827. The purpose of the victim’s 

statements “was to enable police assistance to meet an ongoing 

emergency.” Id. at 828. The Court contrasted Hammon, where the 

challenged statements were “part of an investigation into possibly 

criminal past conduct,” no emergency was in progress, and “the primary, 

if not indeed the sole, purpose of the interrogation was to investigate a 

possible crime.” Id. at 829–30. The Court concluded:

Statements 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. 

They 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. at 822; see also King, 212 Ariz. at 378, ¶ 30 (911 calls made “for the

primary purpose of identifying a suspect or reporting evidence in an 

alleged crime that has already occurred will usually be testimonial.”). 

¶11 Here, the 911 caller reported ongoing criminal activity that 

arguably did not rise to the level of an emergency. The caller stated that 

“some kids” were acting suspiciously, banging on and kicking a vehicle, 

and “burning rubber.” But even assuming arguendo that the 911 call was 

testimonial because the caller was not describing an ongoing emergency, 

its admission was harmless beyond a reasonable doubt. See State v. 

Armstrong, 218 Ariz. 451, 460, ¶ 33 (2008) (harmless error analysis applies 

to Confrontation Clause violations); State v. Moody, 208 Ariz. 424, 457, 
IN RE ISMAEL N.

Decision of the Court

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¶ 132 (2004) (error is harmless beyond a reasonable doubt if appellate 

court concludes error did not affect verdict).

¶12 The 911 caller neither identified Ismael nor provided 

information relevant to the charge before the court: theft of means of 

transportation. The caller instead reported conduct amounting to reckless 

driving and criminal damage. More fundamentally, during his recorded 

police interview, Ismael admitted being in the Honda and driving it with 

knowledge it had been stolen. He said “they took the car” from an 

apartment complex and had it for “three days straight.” He also admitted 

witnessing the vehicle being started with a flat-head screwdriver. Ismael’s 

admissions established the elements of the charged offense, see A.R.S. 

§ 13-1814(A)(5) (“A person commits theft of means of transportation if, 

without lawful authority, the person . . . [c]ontrols another person’s means 

of transportation knowing or having reason to know that the property is 

stolen.”), rendering any arguable error in admitting the 911 call harmless 

as a matter of law.

¶13 As for Ismael’s hearsay objection to the 911 call, the State 

argued at the adjudication hearing that the caller was reporting a “present 

sense impression” — an exception to the hearsay rule. Ariz. R. Evid. 

803(1). The court did not abuse its discretion in overruling the hearsay 

objection on this basis. See State v. Damper, 223 Ariz. 572, 576, ¶ 16 (App. 

2010) (a statement falls within present sense impression exception if it 

describes or explains an event and is “made while the declarant was 

perceiving the event”). Moreover, as with the Confrontation Clause 

argument addressed supra, any arguable error in the evidentiary ruling 

would be harmless beyond a reasonable doubt.

CONCLUSION

¶14 For the foregoing reasons, we affirm Ismael’s delinquency

adjudication.