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March 25, 2026 Get Citation Alerts Download PDF Add Note

State v. Johnson

Court of Appeals of Arizona

• Citations: None known

• Docket Number: 1 CA-CR 24-0642

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (72.9K)

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Syllabus

Did the superior court violate the Confrontation Clause when it admitted the victim's hearsay statements to a forensic nurse examiner? Did the superior court violate Johnson's Sixth Amendment rights by empaneling an eight-person jury?

Combined Opinion

                        by David B. Gass

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

XAVIER JOHNSON, Appellant.

No. 1 CA-CR 24-0642
FILED 03-25-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-109729-001
The Honorable Margaret LaBianca, Judge

VACATED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee

Law Office of Randal B. McDonald, Phoenix
By Randal McDonald
Counsel for Appellant

OPINION

Presiding Judge David B. Gass delivered the opinion of the court, in which
Judge Michael J. Brown and Judge Andrew J. Becke joined.
STATE v. JOHNSON
Opinion of the Court

G A S S, Judge:

¶1 Defendant Xavier Johnson appeals his three convictions and
sentences for aggravated assault, unlawful imprisonment, and assault. All
three were alleged as domestic violence offenses. He seeks reversal on three
grounds. First, Johnson argues the superior court erred when it admitted
hearsay statements from an emergency room doctor, a forensic nurse
examiner, and the case agent in violation of Rule 803(4), Arizona Rules of
Evidence (“Statement Made for Medical Diagnosis or Treatment”) and the
Confrontation Clause. See State v. Rushton, 172 Ariz. 454, 456 (App. 1992).
Second, Johnson argues the superior court should have empaneled a
twelve-person jury. Third, Johnson argues insufficient evidence supports
his convictions.

¶2 Because the admission of the forensic examiner’s testimony
about the alleged offenses based on the victim’s statements violated
Johnson’s Confrontation Clause rights, the court vacates all three
convictions and sentences and remands to the superior court for further
proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶3 The court views the facts in the light most favorable to
upholding the jury’s verdict, resolving all inferences against Johnson. See
State v. Reaves, 252 Ariz. 553, 558 ¶ 2 (App. 2022). Because the victim did not
testify, all the testimony and evidence came from other witnesses.

¶4 The victim was Johnson’s girlfriend. For several days, the
victim stayed at Johnson’s extended-stay motel residence. The victim’s
daughters became concerned when the victim did not respond to calls and
texts. One of them went to where Johnson was staying and knocked on the
door. Before Johnson opened the door, the daughter heard what sounded
like someone wrestling to turn the doorknob. When Johnson finally opened
the door, he prevented the victim from leaving for several minutes.
Eventually, the victim pushed past Johnson and left with her daughter, who
took the victim to the hospital.

I. The victim made statements to a doctor at the hospital for medical
treatment.

¶5 The victim told the examining doctor, who later testified at
trial, she was there because she had a cut above her left eye near her
eyebrow. During the physical examination, the doctor also noted her left
eye was swollen and bruised.

2
STATE v. JOHNSON
Opinion of the Court

¶6 The doctor asked the victim how her injuries occurred. She
told the doctor “she had been struck by her boyfriend a couple of days
before and that he wouldn’t let her get medical care until that time.” The
victim told the doctor she had contacted the police and was at the hospital
“seeking medical care.” During his testimony, the doctor mentioned
nothing about strangulation.

¶7 Based on the examination, the doctor did not order any
testing or imaging. Because the cut was more than 24 hours old, the doctor
provided primary direct wound care, saying the wound would heal
without further intervention. At that point, the doctor discharged her.

II. The victim also made statements during police questioning at the
hospital and during a forensic examination at a family advocacy
center located in a police station.

¶8 Two investigating police officers met the victim at the
hospital. While talking with her, the victim told the officers the address
where the assault occurred.

¶9 The case agent did not go to the hospital. Instead, he called
the victim’s phone later and arranged for a forensic examination at a family
advocacy center in a City of Phoenix police station. This type of forensic
examination specifically assists the police in gathering evidence. These
forensic examiners only perform the forensic examinations if the police
request them. And they only perform forensic examinations if they can
complete them within five days of the alleged offense.

¶10 Advocacy centers are dedicated spaces where victim
advocates help victims with any services they need. Advocacy centers often
are in a police station, which is the case here, and the police often have a
dedicated office within the advocacy center. The one in this case included
an area made to look like a doctor’s office for forensic examiners to use for
police-requested forensic examinations.

¶11 Before the forensic examiner begins, the victim must consent
to a forensic examination. As part of that consent, the forensic examiner
discloses to the victim the forensic examination will be part of the police
investigation and any criminal case the police pursue. With that
understanding, the victim here consented to the examination.

¶12 The forensic examiner explained at trial how she regularly
conducts the forensic examinations to ensure her “practice is done the same
way with every single patient . . . every single time.” The forensic examiner

3
STATE v. JOHNSON
Opinion of the Court

said the process she followed with the victim here was consistent with the
forensic examiner’s regular practice.

¶13 The case agent asked the forensic examiner to conduct a
forensic examination of the victim. Before the meeting, the case agent (who
is not a medical professional) provided the forensic examiner with the
victim’s personal information. After meeting with the case agent, the
forensic examiner met the victim in the family advocacy center’s “medical
room,” obtained the victim’s consent as described above, and then asked
the victim “basic medical . . . questions that you would ask in a medical
exam with your doctor or . . . nurse.”

¶14 The forensic examiner then thoroughly examined the victim,
documented all injuries in the victim’s injury log, and asked clarifying
questions. The forensic examiner provided the case agent with all the
documentation from the victim’s forensic examination. The forensic
examiner testified about what the victim said verbatim by reading one of
the quotes from the victim’s injury log:

He just -- before I knew it, he hit me like I was a guy. He
punched me in my eyebrow right here. [points to left eye].
And I felt like I was going to pass out. And I said I need to go
to the emergency room. And he said you’re not going
anywhere. And I just sat down and closed my eyes for two
seconds. And he said get up, get up. Even if I went to the
restroom, he was there. When I was in the shower, he was
there. And when I got calls, I had to have it on speaker phone.
During the day before he punched me, he got me in a choke
hold. He came up from behind me and wrapped his arm
around my neck. I was on my tippy toes. He is 6’1 or 6’2. And
he had me good. I was about to pass out, but I didn’t. I
couldn’t breathe at all.

The forensic examiner was the only witness who discussed strangulation.

III. Defendant’s objections to testimony by the doctor, the forensic
examiner, and the police officer.

¶15 Just after jury selection, the State disclosed the victim would
not testify. At that point, Johnson’s counsel made a hearsay and
Confrontation Clause objection to the doctor and forensic examiner
testifying, arguing they could not testify about the victim identifying
Johnson during her medical examination and her forensic examination. The

4
STATE v. JOHNSON
Opinion of the Court

State countered the statements were admissible hearsay, as the victim made
the statements for medical diagnosis or treatment.

¶16 After briefing, the superior court ruled “the victim’s
statements . . . appear to have been made by the victim out of motivation to
give the provider information for purposes of her medical care.” The
superior court thus ruled they were admissible under Rule 803(4), the
exception to the rule against hearsay for statements made for the purpose
of medical diagnosis or treatment.

¶17 During the police officer’s testimony, the defendant made a
hearsay objection to the police officer testifying about the victim’s
statements about the address where the assault took place.

IV. An eight-person jury convicted Johnson on all three counts.

¶18 The State indicted Johnson on three counts: (1) aggravated
assault, a class 4 felony under A.R.S. §§ 13-1203, -1204, -3601, -701, and -801;
(2) unlawful imprisonment, a class 6 felony under A.R.S. §§ 13-1301, -1303,
-701, -702, -3601, and -801; and (3) assault, a class 1 misdemeanor under
A.R.S. §§ 13-1203.A.1, -1203.B, -707, -3601, and -802.

¶19 The aggravated assault offense was based on Johnson
allegedly strangling the victim in his residence the day before the daughter
arrived:

XAVIER JOHNSON, on or between February 16, 2024 and
February 19, 2024, assaulted [the victim] and XAVIER
JOHNSON intentionally or knowingly impeded the normal
breathing or circulation of blood of [the victim] by applying
pressure to the throat or neck or by obstructing the nose and
mouth either manually or through the use of an instrument
and the relationship between them is one of persons who
currently are or were previously in a romantic or sexual
relationship.

¶20 The unlawful imprisonment offense was based on Johnson
allegedly not allowing the victim to leave his residence. And the
misdemeanor assault was based on Johnson allegedly causing the victim
physical injury while she was at his residence.

¶21 Based on the potential sentence Johnson faced, the parties
agreed to an eight-person jury with two alternates. The State called eight
witnesses, including the victim’s two daughters, the two investigating

5
STATE v. JOHNSON
Opinion of the Court

police officers who spoke with the victim at the hospital, the assigned case
agent, the doctor, and the forensic examiner.

¶22 The jury convicted Johnson on all three counts. The superior
court sentenced Johnson to prison for a slightly mitigated nine years on the
aggravated assault conviction and for a slightly mitigated three years on
the unlawful imprisonment conviction. The superior court imposed a six-
month jail term on the misdemeanor assault conviction. The superior court
ordered Johnson to serve the sentences concurrently and credited Johnson
with 269 days of presentence incarceration credit.

¶23 The court has jurisdiction over Johnson’s timely appeal under
Article VI, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and
-4033.A.1.

DISCUSSION

I. The doctor’s testimony falls within the Rule 803(4) hearsay
exception, but the forensic examiner’s testimony does not.

¶24 Johnson argues the victim’s statements to the doctor and the
forensic examiner were “testimonial” for purposes of the Confrontation
Clause. See State v. Hill, 236 Ariz. 162, 165–66 ¶¶ 11–14 (App. 2014). Those
statements include the victim identifying Johnson as the perpetrator and
discussing other events between Johnson and the victim in Johnson’s
residence, including the allegation Johnson strangled the victim from
behind.

¶25 Johnson’s counsel raised Rule 803(4) and Confrontation
Clause issues at trial. Because Johnson raised the issue at trial, the court
reviews the Confrontation Clause argument for harmless error. See State v.
Bocharski, 218 Ariz. 476, 486 ¶¶ 38–41 (2008) (analyzing evidence admitted
in violation of the Confrontation Clause for harmless error). In a harmless
error review, the State bears the burden to show beyond a reasonable doubt
that if an error occurred, it did not contribute to the verdict. State v. Dunbar,
257 Ariz. 421, 426 ¶ 14 (2024).

A. Johnson challenges the admission of the doctor’s and the
forensic examiner’s testimony under both Rule 803(4) and
the Confrontation Clause.

¶26 The court reviews the superior court’s “evidentiary rulings
involving hearsay and related exceptions for an abuse of discretion.” State
v. Giannotta, 248 Ariz. 82, 83 ¶ 8 (App. 2019). “Generally, an abuse of

6
STATE v. JOHNSON
Opinion of the Court

discretion ‘is discretion manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, 83 ¶ 19 (App. 2005) (quoting Quigley v. Tucson City Ct., 132
Ariz. 35, 37 (1982)).

¶27 Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement,” and is inadmissible unless it
falls within at least one exception to the rule against hearsay. See Ariz. R.
Evid. 801(c); Ariz. R. Evid. 802. Rule 803(4) is an exception to the rule against
hearsay for statements made for medical diagnosis or treatment, regardless
of whether the declarant is available as a witness. Under that exception, the
superior court may admit, over a hearsay objection, an out-of-court
statement “made for—and is reasonably pertinent to—medical diagnosis or
treatment; and . . . describes medical history; past or present symptoms or
sensations; their inception; or their general cause.” Ariz. R. Evid. 803(4).
This exception to the rule against hearsay is not an excuse to admit every
statement made to a medical professional.

¶28 When a court admits a hearsay statement, it may present a
Confrontation Clause issue under the Sixth Amendment to the United
States Constitution and Article II, Section 24 of the Arizona Constitution.
The Sixth Amendment guarantees the right of defendants in criminal
prosecutions “to be confronted with the witnesses against” them. U.S.
Const. amend. VI. It protects criminal defendants’ right to a fair trial by
ensuring they can cross-examine witnesses who testify against them. Smith
v. Arizona, 602 U.S. 779, 783–84 (2024); State v. Oliver, 158 Ariz. 22, 30 (1988).
Consistent with the Sixth Amendment, Arizona’s Constitution says, “[T]he
accused shall have the right . . . to meet the witnesses against him face to
face . . . .” Ariz. Const. art. II, § 24. Arizona’s Confrontation Clause
essentially provides the same confrontation rights as the Sixth Amendment.
State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 195 ¶ 76 n.10 (App. 2010)
(citing State v. Carr, 216 Ariz. 444, 447 ¶ 9 n.2 (App. 2007)).

¶29 The Confrontation Clause generally bars “testimonial”
statements. See Crawford v. Washington, 541 U.S. 36, 51–52 (2004). The United
States Supreme Court has said statements are “testimonial” (and thus
barred by the Confrontation Clause) “when the circumstances objectively
indicate that there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813,
822 (2006). The “primary purpose” test requires a “combined inquiry that
accounts for both the declarant and the interrogator.” Michigan v. Bryant,
562 U.S. 344, 367 (2011). “[T]he relevant inquiry is not the subjective or

7
STATE v. JOHNSON
Opinion of the Court

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 360.

¶30 The court recently addressed the “primary purpose” test for
assessing whether statements are testimonial in this context in State v.
Trinidad:

The test for testimonial evidence is whether it was created for
the primary purpose of creating an out-of-court substitute for
trial testimony. On the other hand, evidence is not testimonial
if created primarily to provide medical care. To determine the
primary purpose of creating a medical report, Arizona courts
assess where the examination took place, the victim’s medical
condition, whether law enforcement officers were present
and the formality of the exchange.

257 Ariz. 485, 488 ¶ 11 (App. 2024) (internal citations and quotations
omitted). The court reviews Confrontation Clause challenges de novo.

¶31 Based on the above, when analyzing Rule 803(4) and
Confrontation Clause issues in this context, the court must make the
following inquiry: Was the out-of-court statement “made for—and [was]
reasonably pertinent to—medical diagnosis or treatment,” or was it made
for a testimonial purpose? The two options generally represent two sides of
the same coin. As the United States Supreme Court explained, statements
admissible under Rule 803(4) rarely trigger Confrontation Clause analysis
because they are not testimonial. See Giles v. California, 554 U.S. 353, 376
(2008) (recognizing “statements to physicians in the course of receiving
treatment would be excluded, if at all, only by hearsay rules”). The
differences between the doctor’s and the forensic examiner’s testimony
highlight this distinction. On one side, if the statement was “made for—and
is reasonably pertinent to—medical diagnosis or treatment,” then it is not
testimonial and does not trigger Confrontation Clause analysis and passes
Rule 803(4)’s test. Ariz. R. Evid. 803(4)(A). On the other side, if the witness
mainly made the statement for a testimonial purpose, it fails under Rule
803(4)’s test and triggers a Confrontation Clause analysis.

8
STATE v. JOHNSON
Opinion of the Court

B. The superior court did not err when it allowed the doctor to
testify about the victim’s statements at the hospital
emergency room.

¶32 The superior court’s admission of the victim’s statements to
the doctor complies with Rule 803(4)’s hearsay exception because they were
“made for—and [were] reasonably pertinent to—medical diagnosis or
treatment.” Consistent with a medical examination, the doctor’s initial
question was, “[H]ow did this injury occur?” That kind of open-ended,
“what happened” type of question generally is pertinent to diagnosis and
treatment. See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980). The
same is not true of a “who assaulted” you type of question, which seldom,
if ever, would be sufficiently related. See id.

¶33 The doctor’s testimony is not barred by the Confrontation
Clause as identified in dicta in Giles: “statements to physicians in the course
of receiving treatment would be excluded, if at all, only by hearsay rules.”
Giles, 554 U.S. at 376. The logic behind that reasoning is statements made to
secure medical treatment are not “testimonial,” so they do not trigger a
Confrontation Clause analysis. Id.

¶34 The evidence shows the victim’s primary purpose in making
the statements to the doctor was to secure medical treatment. See id. The
victim went directly to the hospital the same night after leaving Johnson’s
residence. The doctor met with the victim in a hospital examination room.
No police or other state actors were present. When asked, the victim told
the doctor she was at the hospital to secure medical treatment.

¶35 The doctor’s examination proceeded as one would expect.
The doctor said he immediately noticed the victim had swelling and
bruising. The injuries prompted the doctor to ask the victim, “[H]ow did
this injury occur?” The doctor said the victim responded by saying “she had
been struck by her boyfriend a couple of days before and that he wouldn’t
let her get medical care until that time.” When the doctor asked the victim
if she called the police, the victim told him yes and she was at the hospital
for medical treatment. The doctor then treated the cut above the victim’s
left eye and discharged her.

¶36 The doctor also said he regularly takes direct quotes from
patients, explaining the importance in noting a patient’s reasons, causes, or
injuries sustained, in their own words rather than merely summarizing
them. That explanation also tracks with providing medical treatment
because doctors often rely on such details to determine what is best for their

9
STATE v. JOHNSON
Opinion of the Court

patient. See State v. Strickland, 1 CA-CR 24-0358, 2025 WL 2220035, at *5 ¶ 37
(Ariz. App. Aug. 5, 2025) (mem. decision) (“The doctor testified the note
provided background information on the patient, the safeness of a patient’s
situation, especially if they are children, which would help the doctor treat
the patient and then decide the patient’s care plan after treatment, including
post-discharge care.”).

¶37 The superior court thus did not abuse its discretion by
admitting the victim’s statements to the doctor. “Courts routinely admit
victims’ statements made in response to questions necessary for medical
treatment.” Hill, 236 Ariz. at 166 ¶ 16 (citations omitted). Similarly, “the
question that prompted the statement at issue—‘Why are you here?’—is the
starting point of any ordinary medical examination.” Id. at 168 ¶ 24.

C. The forensic examiner’s testimony violates the
Confrontation Clause for Johnson’s aggravated assault and
domestic violence conviction and is inadmissible under
Rule 803(4)’s hearsay objection.

1. The victim made the out-of-court statements to the forensic examiner for the primary purpose of “creating an out-of-court substitute for trial testimony.”

¶38 The court considers whether the primary purpose of the
forensic examination was creating testimonial evidence or was “made for—
and is reasonably pertinent to—medical diagnosis or treatment; and
describes medical history; past or present symptoms or sensations; their
inception; or their general cause” under Rule 803(4). See Trinidad, 257 Ariz.
at 488 ¶ 11. The court thus analyzes “whether it was created for the primary
purpose of creating an out-of-court substitute for trial testimony.” Id. That
analysis requires the court to consider “where the examination took place,
the victim’s medical condition, whether law enforcement officers were
present and the formality of the exchange.” Id.

¶39 As reflected at trial, the forensic examiner met the victim at a
family advocacy center located in a police station, not at a hospital or
medical office, even though the forensic examiner is employed by
HonorHealth and HonorHealth contracts with Maricopa County to
perform these police-initiated forensic examinations. The police, not a
healthcare provider, control whether the forensic examiner will conduct an
examination even if the victim requests it. And the forensic examiner will
examine a victim only if the forensic examination can happen within five
days of the alleged offense, regardless of the victim’s need for treatment. In

10
STATE v. JOHNSON
Opinion of the Court

short, though the forensic examiner is employed by a healthcare provider,
the police control the forensic examination process.

¶40 The forensic examiner meets with the police before meeting
with the victim. And the victim must agree to waive any medical privilege
so the forensic examiner can share the results of the forensic examination
with the police and prosecutors as part of a criminal prosecution. The
forensic examiner tells the victim all information will be shared if the victim
agrees to proceed. Though the police were not in the room for the forensic
examination, the court cannot ignore the reality of their nearby presence,
their role in securing the forensic examination, and their purpose in
facilitating the forensic examination.

¶41 The record does not suggest the victim met with the forensic
examiner to secure additional medical treatment. The victim had been to
the emergency room where the doctor treated and discharged her. Nothing
in the record suggests she needed further medical care after her discharge
from the emergency room. And nothing in the record suggests the doctor
recommended she secure any further medical treatment. The victim did not
ask to meet with the forensic examiner to secure medical treatment. She met
with the forensic examiner at the case agent’s request. And the forensic
examiner’s testimony is silent on administering any medical treatment or
recommending any course of treatment based on the forensic examination.

¶42 Though not a medical office or hospital, the police try to make
the forensic examination section of the family advocacy center look “like a
real doctor’s office.” But the family advocacy center sits in a police station,
an environment with heightened police involvement. And the forensic
examiner’s final report specifically referenced the Phoenix Police DR
number associated with the victim’s case.

¶43 Arizona courts have described two potential purposes for a
forensic nurse examination: “to gather evidence for a criminal investigation
and to provide medical care to the victim.” Hill, 236 Ariz. at 167 ¶ 19. Under
the facts here, the primary purpose was gathering evidence for the criminal
investigation. And the forensic examiner described her role as such: “[T]he
forensic part . . . is the collection of evidence off of the patient’s body or
clothing, blood, urine, things of that nature. . . . And this is the medical
evaluation of the patient that has been a victim of . . . strangulation.”

¶44 Based on the above, the victim made the statements “for the
primary purpose of creating an out-of-court substitute for trial testimony.”
Trinidad, 257 Ariz. at 488 ¶ 11. And because the victim did not testify, the

11
STATE v. JOHNSON
Opinion of the Court

State used it for that very purpose. For that reason, those statements cannot
fall within the Rule 803(4) exception allowing the admission of hearsay
statements “made for—and . . . reasonably pertinent to—medical diagnosis
or treatment; and describes medical history; past or present symptoms or
sensations; their inception; or their general cause.” It thus was error to
admit the hearsay statements the victim made to the forensic examiner
under the Confrontation Clause.

1. Admission of the victim’s statements to the forensic examiner was not harmless error for Johnson’s aggravated assault conviction.

¶45 Though the court identifies a Confrontation Clause violation,
constitutional error can be harmless. See Dunbar, 257 Ariz. at 426 ¶ 14.
Under the harmless error standard, the State has the burden to prove
beyond a reasonable doubt that the error did not contribute to the verdict.
See id. The harmless error standard does not depend on whether “a guilty
verdict would surely have been rendered” absent the error. State v. Leteve,
237 Ariz. 516, 524 ¶ 25 (2015) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279
(1993)). The question, instead, is “whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” Id. (quoting
Sullivan, 508 U.S. at 279).

¶46 The State argues any error was harmless because (1)
testimony by the forensic examiner about the injury-related statements
“was cumulative to [the doctor’s] testimony”; and (2) “the jurors could
reasonably infer that Johnson was the assailant and committed all three
offenses based on evidence outside of the testimony from the doctor and
the forensic examiner. But these arguments do not demonstrate how the
error did not “contribute to or affect” the jury’s verdict. See State v. Yazzie,
232 Ariz. 615, 618 ¶ 11 (App. 2013) (concluding the State failed to carry its
burden under harmless error review when it did not explain why the jury’s
verdict did not result from error).

¶47 For the aggravated assault offense, the superior court
instructed the jury it could convict Johnson only if the jury found he
“intentionally or knowingly impeded the normal breathing or circulation
of blood of [the victim] by applying pressure to the throat or neck or by
obstructing the nose and mouth.”

¶48 The forensic examiner was the sole witness who said Johnson
strangled the victim. The forensic examiner first explained strangulation.
Her explanation tracks the jury instruction, saying strangulation occurs

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STATE v. JOHNSON
Opinion of the Court

“when the blood supply to the brain is disrupted and/or the breathing is
disrupted.” The forensic examiner next testified the victim was in a
relationship with the individual who strangled her.

Q. And did [the victim] tell you the name of the person who
hurt her?

A. We do ask what the association is, again, to establish that
it is a domestic violence. And a lot of times we don’t get the
name. I’m going to have to find it here. Dating relationship.

Q. So she didn’t give you a name of an individual. She just
said the person who caused her harm she was dating or was
boyfriend/girlfriend with?

A. Correct.

¶49 Statements identifying an individual who attacked a victim
generally are inadmissible. See Iron Shell, 633 F.2d at 84 (saying victims’
answers to “who hurt you” types of question seldom, if ever, are
sufficiently related). One exception is when those statements “are made
for—and [are] reasonably pertinent to—medical diagnosis or treatment.”
Ariz. R. Evid. 803(4); see State v. Lopez, 217 Ariz. 433, 436 ¶¶ 10–11. The
forensic examiner’s line of questioning here primarily focused on law
enforcement purposes, not medical treatment. The forensic examiner asked
for the association between the victim and the alleged perpetrator “to
establish that it is a domestic violence,” not to assess the victim’s injuries.

¶50 Though the forensic examiner testified about the process she
used for identifying and documenting injuries, she did not testify about any
diagnosis or treatment she provided. And the forensic examiner provided
“a copy of that report” to the case agent for the investigation but did not
say she gave the victim the report for any further treatment.

¶51 And contrary to the State’s argument, the forensic examiner’s
testimony about strangulation was not cumulative. No other witness said
the victim was strangled or identified Johnson as the perpetrator. The
forensic examiner was the sole witness who discussed the victim’s
strangulation. Without that testimony, the jury could not have convicted
Johnson of aggravated assault and domestic violence because that
conviction required the State to prove Johnson strangled the victim. The
State thus cannot show beyond a reasonable doubt admission of the
forensic examiner’s testimony “did not contribute to the verdict or
sentence” for that count. See Dunbar, 257 Ariz. at 426 ¶ 14.

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STATE v. JOHNSON
Opinion of the Court

1. Admission of the victim’s statements to the forensic examiner also was not harmless error for Johnson’s unlawful imprisonment and misdemeanor assault offenses.

¶52 Admission of the victim’s statements to the forensic examiner
related to the unlawful imprisonment and assault also was not harmless.
Though the victim’s two daughters and the doctor provided statements
related to these offenses, the forensic examiner’s statement set forth in
Paragraph 14 above concisely and cohesively explained all three
convictions in the victim’s words. Those statements addressed Johnson
strangling the victim, Johnson refusing to allow the victim to leave his
residence, and Johnson punching the victim in the face. Because of the
importance of victim testimony, the victim’s hearsay description of the
events will affect a trial, especially if a victim does not testify. Cf. S.A. v.
Superior Ct., 171 Ariz. 529, 532 (App. 1992) (discussing the importance of
victim testimony in criminal prosecutions).

¶53 The State argues one of the victim’s daughters testified to
seeing “strangulation marks” around the victim’s neck. But the State did
not qualify that daughter as a strangulation expert, and nothing in the
record suggests she is one. The daughter’s limited basis for the statement
was her work as a caregiver and her familiarity with wound care. But she
offered no foundational testimony about her experience diagnosing or
treating strangulation wounds or marks.

¶54 The State also argues the photographs show the victim had
marks on her neck, but that evidence would not support a conviction
without more. That more here was the forensic examiner’s concise and
cohesive statement that the victim said: “[H]e got me in a choke hold. He
came up from behind me and wrapped his arm around my neck. I was on
my tippy toes. He is 6’1 or 6’2. And he had me good. I was about to pass
out, but I didn’t. I couldn’t breathe at all.”

¶55 The State thus cannot show beyond a reasonable doubt
admission of the forensic examiner’s testimony “did not contribute to the
verdict[s] . . . or sentence[s]” for these counts. See Dunbar, 257 Ariz. at 426
¶ 14. It thus was not harmless error to admit the forensic examiner’s
testimony on the unlawful imprisonment and assault convictions. See id.

II. It was harmless error to allow the police officer to testify the victim
told him where Johnson assaulted her.

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STATE v. JOHNSON
Opinion of the Court

¶56 It was error to allow the police officer to say what the victim
told him about the address where the alleged assault took place. The
victim’s statement to the officer was hearsay. Crime scene locations do not
fall under any exception to the rule against hearsay, and the State offers no
other justification for its admission.

¶57 Still, the officer’s testimony about the victim explaining the
location of her injuries was cumulative to the two daughters’ and the
doctor’s testimony about where the victim sustained her facial injuries. See
State v. Williams, 133 Ariz. 220, 226 (1982). The State thus met its burden of
showing “the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Leteve, 237 Ariz. at 524 ¶ 25 (quoting Sullivan,
508 U.S. at 279). So though the court admitted the officer’s testimony in
error, the error was harmless beyond a reasonable doubt. See Dunbar, 257
Ariz. at 426 ¶ 14.

III. The superior court did not commit fundamental error when it
empaneled an eight-person jury.

¶58 Because Johnson did not object to the empanelment of an
eight-person jury in the superior court, the court reviews for fundamental
error. See State v. Melendez, 259 Ariz. 282, 289 ¶ 16 (2025). If the court’s
review shows error occurred, the court must “evaluate whether the error
was fundamental and prejudicial.” Id. To show fundamental error, Johnson
must establish (1) an error going to the foundation of his case, (2) error
depriving him of a right essential to his defense, or (3) error of such
magnitude he could not possibly have received a fair trial. See State v.
Escalante, 245 Ariz. 135, 142 ¶ 22 (2018). To prove prejudice, Johnson must
show “that without the error, a reasonable jury could have plausibly and
intelligently returned a different verdict.” Id. at 144 ¶ 31. The defendant
bears the burden of proving fundamental error resulting in prejudice. See
Melendez, 259 Ariz. at 289 ¶ 16.

¶59 Johnson challenges the constitutionality of Arizona’s eight-
person jury provision. Johnson faced a maximum cumulative sentence of
less than 30 years. For that reason, Johnson was entitled to an eight-person,
not a twelve-person, jury under the Arizona Constitution and section 21-
102. See Ariz. Const. art. II, § 23; A.R.S. § 21-102.

¶60 Arizona adopted the eight-person jury model after the 1970
case in which the United States Supreme Court said the Sixth Amendment
does not require a twelve-person jury for criminal trials in Williams v.
Florida, 399 U.S. 78, 86–103 (1970). After Williams, the people of Arizona

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STATE v. JOHNSON
Opinion of the Court

amended the Arizona Constitution to permit eight-person juries in criminal
cases when a defendant faces a prison sentence of less than 30 years. See
Ariz. Const. art. II, § 23 (amended 1972); A.R.S. § 21-102.B. Under Arizona
law, a defendant is entitled to a twelve-person jury only if the defendant
faces “a sentence of death or imprisonment for thirty years or more.” See
Ariz. Const. art. II, § 23 (amended 1972); A.R.S. § 21-102.A.

¶61 Johnson concedes “there is no evidence Williams has been
expressly overruled” on the size of criminal jury. Johnson instead argues
the United States Supreme Court implicitly overruled Williams through
both Giles v. California, 554 U.S. 353 (2008) and Ramos v. Louisiana, 590 U.S.
83 (2020). See United States v. Rice, 719 F. Supp. 3d 618, 630 (W.D. Tex. 2024)
(“One situation in which an implicit overruling may occur is where an
intervening Supreme Court decision fundamentally changes the focus of
the relevant analysis . . . .” (internal quotes omitted)). Because the United
States Supreme Court “does not normally overturn, or so dramatically
limit, earlier authority sub silentio,” Johnson’s arguments do not carry the
day. See Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000).

¶62 As discussed above, in Giles, the United States Supreme Court
considered whether the defendant forfeited his Sixth Amendment right to
confront a witness against the defendant when a judge determines a
wrongful act by the defendant made the witness unavailable to testify at
trial. See Giles, 554 U.S. at 375. Giles was silent on jury size, and Johnson does
not explain how the reasoning in Giles “vitiates” the analysis of jury size in
Williams despite the silence. Id.

¶63 In Ramos, the United States Supreme Court decided the Sixth
Amendment requires criminal jury trials to have a unanimous vote but was
also silent on jury size. See Ramos, 590 U.S. at 87. Johnson cites the dissenting
opinion in Ramos to argue Williams was implicitly overruled. See id. at 158
(Alito, J., dissenting) (“Repudiating the reasoning of Apodaca will almost
certainly prompt calls to overrule Williams.”). But a dissenting justice’s
mere suggestion the United States Supreme Court might overturn Williams
is not enough for the court to conclude Williams has been implicitly
overruled.

¶64 Consistent with that reasoning and showing the United States
Supreme Court has not implicitly overruled Williams, the court considered
this issue a few years ago and also ruled Ramos did not overrule Williams
because it does not address jury size. State v. Khorrami, 1 CA-CR 20-0088,
2021 WL 3197499, at *8 ¶ 53 (Ariz. App. July 29, 2021), cert. denied sub nom
Khorrami v. Arizona, 143 S. Ct. 22, 23–27 (2022). When the United States

16
STATE v. JOHNSON
Opinion of the Court

Supreme Court denied Khorrami’s certiorari petition, Justice Gorsuch
dissented, explaining:

Khorrami asks us to reconsider Williams. Regrettably, the
Court today declines to take up that task. Williams was wrong
the day it was decided, it remains wrong today, and it impairs
both the integrity of the American criminal justice system and
the liberties of those who come before our Nation’s courts.

Id. at 23 (2022) (Gorsuch, J., dissenting).

¶65 The court thus cannot conclude the United States Supreme
Court silently changed a fundamental feature of its Sixth Amendment
jurisprudence, particularly given the issue was neither raised nor litigated
in Giles or Ramos. The court thus declines Johnson’s invitation to reconsider
the constitutionality of eight-person juries in Arizona.

CONCLUSION

¶66 The court vacates Johnson’s convictions and remands to the
superior court for further proceedings.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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