State v. Aguilar
In State v. Aguilar, 209 Ariz. 40, 42, 9, 97 P.3d 865, 867 (2004), the Rule 404(c) issue arose because the superior court had denied the defendant's pretrial motion to sever sexual assault charges against him arising from separate incidents involving four women. 209 Ariz. at 41, 2-3, 97 P.3d at 866.
The defendant sought separate trials on the charges involving each victim. Id. at 3.
Pursuant to Arizona Rule of Criminal Procedure 13.4(b), the defendant was entitled to severance "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." See Aguilar, 209 Ariz. at 41, 3, 97 P.3d at 866.
After oral argument, the superior court denied the motion to sever because it concluded the evidence as to each victim would be admissible on the other charges pursuant to Arizona Rule of Evidence 404(c). Id. at 4.
The supreme court held the superior court erred in finding pursuant to Rule 404(c)(1)(A) that the evidence offered at the hearing on the motion was "sufficient to permit the trier of fact to find that the defendant committed" each of the acts. Id. at 49-50, 33, 97 P.3d at 874-75.
The victims did not testify at the hearing; the only evidence the State offered was a transcript of the grand jury proceedings in which a police officer described the victims' statements. Id.
The Court held that an excited utterance heard and testified to by a lay witness did not fit within Crawford's definition of testimonial. Id. at P1.
In so holding, we examined cases from other jurisdictions that analyzed the applicability of Crawford to such an excited utterance. Id. at 53, PP11-12, 107 P.3d at 379.
The Court noted that these cases had found that Crawford was not applicable because the declarants had no reason to expect their statements would be used in a prosecutorial manner. Id.
The Court also noted that the statements had not been made to establish or prove a fact or in response to police questioning. Id.
Although we did not decide the issue, we recognized Crawford might be implicated if the excited utterance was made in response to a "police officer's query." Id. at 53, P12, 107 P.3d at 379.