State v. Neal

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. THEODORE NEAL, Appellant. 1 CA-CR 10-0471 DEPARTMENT E DIVISION ONE FILED: 06/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-145495-001 SE The Honorable George H. Foster, Jr., Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Sharmila Roy, Attorney at Law by Sharmila Roy Attorney for Appellant Phoenix Laveen P O R T L E Y, Judge ¶1 Defendant, Theodore Neal, for aggravated domestic violence. challenges his conviction He contends that the trial court erred when it admitted hearsay evidence. We disagree. FACTUAL BACKGROUND ¶2 Mesa Police responded to a 9-1-1 call on July 11, 2009 that Neal had assaulted his wife. Although Neal was not at the apartment when police arrived, he was arrested when he returned home. ¶3 Neal was charged and convicted of aggravated domestic violence. Because of his two prior felony convictions, Neal was sentenced to 3.5 years in prison, and given credit for 254 days of presentence incarceration. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031 and -4033(A)(4) (2010). DISCUSSION ¶4 Neal first argues admitted hearsay statements. that the trial court improperly Specifically, he contends that his wife s prior inconsistent statements were the only evidence of the crime and that the court erred statements without making findings. when admitted the We review the admission of evidence for an abuse of discretion. State v. Sucharew, 205 Ariz. 16, 23, ¶ 19, 66 P.3d 59, 66 (App. 2003). 2 it ¶5 At trial, the victim, Neal s wife, was called by the State as a witness. She testified that she had no memory of calling 9-1-1 or speaking to police, and did not remember what happened that evening. ¶6 In addition to listening to the 9-1-1 recording, the jury first heard from Officer O Sullivan. He testified that he spoke to the victim at the apartment and noticed that she was crying and had red marks on her back. Before he could relate what the victim told him, there was a hearsay objection. The trial court overruled the objection because the statement was being used to show a recent fabrication. O Sullivan then told the jury what the victim had described to him, which resulted in her 9-1-1 call. ¶7 Although Neal contends that his wife s prior statements were inadmissible hearsay, 1 there is an exception to the general rule. Specifically, Arizona Rule of Evidence 801(d)(1)(A) provides that a prior inconsistent statement is not hearsay, so long as the statement was made by a witness who is subject to cross examination. See Sucharew, 205 Ariz. at 23, ¶ 20, 66 P.3d at 66; State v. Thompson, 167 Ariz. 230, 231, 805 P.2d 1051, 1052 (App. 1990). 1 In fact, [a] statement s Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted, and is generally inadmissible. Ariz. R. Evid. 801(c) & 802. 3 inconsistency . . . is not limited to cases diametrically opposite assertions have been made. in which A claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements. State v. King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994) (alteration in original) (citations & because the Consequently, internal quotation victim was marks subject omitted). to cross examination, her statements to police were admissible. 2 ¶8 trial Neal, court statements. however, make In argues findings King, a that before King allowing first-degree requires prior murder that the inconsistent case, a witness claimed a lack of memory, and the State wanted to introduce his prior statements. 31. Id. at 270, 274-75, 883 P.2d at 1026, 1030- The trial court concluded that the witness was feigning his lack of memory and admitted the statements pursuant to Rule 2 Neal also claims that the trial court erred when it admitted the statements pursuant to Rule 801(d)(1)(B). The Rule provides that an out-of-court statement is not hearsay if the declarant testifies at trial, is available for cross examination, and the statement is consistent with the declarant s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . . Even if the Rule was inapplicable, because we agree that the court properly admitted the statements pursuant to Rule 801(d)(1)(A), we find no error. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (holding that the appellate court can affirm a ruling even though the trial judge reached the right conclusion for the wrong reason). 4 801(d)(1). 3 found Id. at 275, 883 P.2d at 1031. that admission of the statements Our supreme court was not an discretion and affirmed the conviction and sentence. ¶9 abuse of Id. King does not require the trial court to make findings about the credibility of inconsistent statements. the witness before admitting prior See State v. Robinson, 165 Ariz. 51, 58-59, 796 P.2d 853, 860-61 (1990) (finding no error when prior inconsistent did not merely statements know whether typical Consequently, of the admitted the even witness though the was being many people with trial court did evasive poor learned trial court or was recollection ). not abuse its discretion. ¶10 Neal next contends that O Sullivan should not have been allowed to repeat the victim s statements at trial pursuant to Rule 403. Neal, however, did not make the objection at trial, so we only review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error that goes to the foundation of his case, takes away a right that is essential to his defense, and is of such a magnitude that he could not have received a fair trial. Id. at 568, ¶ 24, 115 P.3d at 608. 3 Fundamental error The court also admitted the statements pursuant to Rule 803(5). That Rule is not at issue here. 5 also requires proof of prejudice. Id. at 567, ¶ 20, 115 P.3d at 607. ¶11 We find no error. The victim s prior statements were relevant to prove the substantive offense and to impeach her testimony. Moreover, because there was other evidence of the crime, Neal has not demonstrated any prejudice. CONCLUSION ¶12 For the foregoing reasons, we affirm Neal's conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ LAWRENCE F. WINTHROP, Judge /s/ ____________________________ SHELDON H. WEISBERG, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.