State v. Lee

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA, Appellee,

v.

ROBERT ALLEN LEE, Appellant.

No. 1 CA-CR 24-0687
FILED 05-22-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-006141-001
The Honorable Pamela Hearn Dunne, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph E. Begun
Counsel for Appellee

Bain & Lauritano PLC, Glendale
By Amy E. Bain
Counsel for Appellant
STATE v. LEE
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge James B. Morse Jr. joined.

F U R U Y A, Judge:

¶1 Robert Allen Lee appeals from his convictions and sentences.
Lee contends the superior court violated the Sixth Amendment by
admitting pretrial statements through testimony at trial and erred in failing
to sever several of his charges. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the evidence in the light most favorable to
sustaining the jury’s verdict and resolve all reasonable inferences against
the defendant.” State v. Fierro, 254 Ariz. 35, 38 ¶ 2 (2022).

¶3 Lee was married to his wife in 2017 and lived with her and
her stepdaughter Amanda1 until 2021. When Amanda was nine years old,
Lee began sexually assaulting her. The abuse continued until Amanda was
fifteen years old.

¶4 Amanda and Gabby2 were friends and Lee provided the two
girls with marijuana for their personal use. In October 2021, Gabby was
visiting Amanda at her house when Lee sexually assaulted Gabby. Gabby
shared the details of her assault with another friend, whose mother then
reported the assault to the Peoria Police Department. An officer responded
and recommended Gabby participate in a forensic nurse examination
(“FNE”) at the Glendale Advocacy Center, which Gabby agreed to do. At
the advocacy center, a forensic nurse asked Gabby about the assault,
performed an FNE, and prescribed oral antibiotics. During her exam,
Gabby explained the events of the assault to the nurse.

¶5 Lee was arrested in December 2021. The following month,
while Lee was incarcerated, Gabby contacted Lee for a “confrontation call”
to elicit an admission of the events of her assault.

1 We use the pseudonym “Amanda” to protect the victim’s privacy.
See Ariz. R. Sup. Ct. 111(i).
2 We use “Gabby” as a pseudonym to protect the friend’s privacy. Id.

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¶6 Lee was later charged in a sixteen-count indictment. Counts 1
through 7 charged Lee with sexual conduct relating to his stepdaughter
Amanda. Count 8 charged Lee with transferring marijuana to Amanda and
Count 9 charged him with transferring marijuana to Gabby. Counts 10 and
11 charged Lee with sexual conduct relating to Gabby. Lastly, Counts 12
through 16 charged Lee with various instances of witness tampering
involving Amanda or her mother, thereby affecting proceedings on the first
seven counts. All sixteen counts were charged and tried together in the
same proceeding. Lee did not move to sever any of the counts.

¶7 Before trial, the State disclosed its intent to use the statements
Gabby made to the forensic nurse at the advocacy center. The court held an
evidentiary hearing on the matter, during which Lee objected on hearsay
and Confrontation Clause grounds. The court held that the State was
permitted to introduce Gabby’s statements through the nurse’s testimony
because although the statements were hearsay, they were admissible under
the “medical diagnosis or treatment” exception. See Ariz. R. Evid. 803(4).
And because the statements were admitted as medical diagnosis or
treatment, they were not testimonial, so their admission did not violate the
Confrontation Clause.3

¶8 At trial, Lee did not renew his objection to admission of
Gabby’s statements to the nurse. Thus, the nurse related those statements
verbatim in her own testimony. Gabby did not testify.

¶9 The State also moved to admit Gabby’s confrontation call
with Lee and argued Gabby’s statements made during the call were not
hearsay because they were not being offered for the truth of the matter
asserted. Lee objected to admission of the call under the Confrontation
Clause. The court found Gabby’s confrontation call statements admissible
and that admitting them did not violate the Confrontation Clause.
However, the court proposed giving a limiting instruction to clarify that
what Gabby said was not being offered for the truth of the matter asserted.
The State agreed to this instruction and Lee did not object. The court then
gave this limiting instruction twice.

¶10 Lee was found guilty on all sixteen counts and sentenced to
various consecutive and concurrent sentences, the greatest of which
included three life sentences. Lee timely appealed. We have jurisdiction

3 The court excluded a portion of Gabby’s statement related to how
Lee was “much bigger than me” and the nurse did not testify as to this
portion of her statement during trial.

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under Article 6, Section 9 of the Arizona Constitution and A.R.S. Sections
13-4031 and -4033(A).

DISCUSSION

¶11 Lee raises two issues: (1) the admission of Gabby’s pretrial
statements through the nurse’s testimony and Gabby’s statements made
during the confrontation call violated the Confrontation Clause; and (2) the
trial court denied him a fair trial by failing to sever the charges related to
Gabby from all other charges, where the physical evidence and witnesses
differed and the charges were unrelated. We address each argument in
turn.

I. The Superior Court Did Not Violate Lee’s Rights Under the
Confrontation Clause in Admitting Gabby’s Pretrial Statements
During the Forensic Examination and Confrontation Call.

¶12 Lee argues admitting Gabby’s pretrial statements violated his
Sixth Amendment right to confrontation. “We review evidentiary rulings
that implicate the Confrontation Clause de novo.” State v. Bocharski, 218
Ariz. 476, 485–86 ¶ 33 (2008). Upon finding a violation of the Confrontation
Clause, such violations are subject to a harmless error analysis, id. at 486
¶ 38, when the defendant objected to the violation at trial, State v. Henderson,
210 Ariz. 561, 564 ¶ 8 (2005). Because Lee objected at trial, we review his
constitutional argument for harmless error.

¶13 The Confrontation Clause of the Sixth Amendment provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him[.]” U.S. Const. amend. VI; see
also Ariz. Const. art. 2, § 24 (granting defendant the right “to meet the
witnesses against him face to face”). Further, the Confrontation Clause bars
the admission of out-of-court testimonial evidence unless the defendant has
a chance to cross-examine the declarant. Crawford v. Washington, 541 U.S.
36, 68 (2004). However, the Confrontation Clause only applies to statements
that are both hearsay and testimonial. Smith v. Arizona, 602 U.S. 779, 800
(2024). It does not exclude non-testimonial evidence. Crawford, 541 U.S. at
68.

¶14 Here, Lee presents two challenges to the admissions of
evidence, and we address each in turn.

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A. Gabby’s Pretrial Statements to the Nurse During Her
Examination Are Non-Testimonial, and Thus Do Not
Implicate, or Violate, the Confrontation Clause.

¶15 Under the Confrontation Clause, Lee challenges the
admission of Gabby’s pretrial statements describing her assault, which
were made during her forensic medical examination and offered through
the testimony of the nurse who performed the examination. A victim’s
pretrial statements may be considered nontestimonial if made for the
primary purpose of obtaining medical care. See State v. Hill, 236 Ariz. 162,
167–68 ¶ 22 (App. 2014); see also Ariz. R. Evid. 803(4).

¶16 A forensic medical examination often has two purposes: “to
gather evidence for a criminal investigation and to provide medical care to
the victim[.]” Hill, 236 Ariz. at 167 ¶ 19. Therefore, whether a victim’s
statements in response to a question by an examiner are testimonial under
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.” Id.
The focus lies in the purpose of the particular exchange between the declarant
and the testifying witness during which the statement was made. See State
v. Alvarez, 213 Ariz. 467, 471 ¶ 15 (App. 2006). When the primary purpose
of the encounter is to provide and receive medical care, the statement is
non-testimonial. Hill, 236 Ariz. at 167–68 ¶ 22.

¶17 Here, Lee challenges statements Gabby made describing the
assault in response to the nurse’s question “What happened?” But the
surrounding conversation is determinative. At this point in her
examination, the nurse had asked Gabby about her medical history,
allergies, and current medications to inform Gabby’s treatment plan. The
context in which the nurse asked Gabby “What happened?” reveals that it
was the starting point of a medical examination, which the nurse testified
she asked to “guide my exam.”

¶18 Moreover, following Gabby’s answer, the nurse performed a
standard medical assessment, including taking her vital signs, and recorded
the results. After the examination, the nurse prescribed Gabby an oral
antibiotic for chlamydia and recommended a shot to protect against
gonorrhea but opted not to prescribe “plan B” or “medication for
trichomonas” based on the specifics attendant to Gabby’s account of the
assault.

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¶19 The examination the nurse performed did have an
investigative component. During the examination, the nurse took
photographs and collected various DNA swabs to forward to law
enforcement. However, the statements at issue here were made at the outset
of her encounter with the nurse and commenced with the nurse’s
assessment of the injuries Gabby had suffered. This context suggests the
nurse’s open-ended question of “What happened?” was not aimed at
collecting evidence, but rather at gathering information about Gabby’s
assault and subsequent medical condition to inform the nurse’s treatment
plan for Gabby.

¶20 Lee also argues that the facts of this case are similar to the facts
in State v. Johnson, ___ Ariz. ___, ___, 2026 WL 820411 (App. 2026). In
Johnson, the victim of a strangulation received medical care at a hospital and
following this, the police took the victim to an advocacy center located in a
police station to receive a forensic examination. Id. at *6 ¶¶ 35, 39. While
receiving a forensic examination, the victim made statements related to the
strangulation to the nurse performing her exam. Id. at *2 ¶ 14. The nurse
later testified at trial as to these statements, while the victim herself did not
testify. Id. We held in Johnson that admission of the victim’s statements to
the forensic examiner violated the Confrontation Clause because “the
victim made the statements for the primary purpose of creating an out-of-
court substitute for trial testimony.” Id. at *7 ¶ 44.

¶21 However, Johnson presents two key differences from the facts
of this case. First, in Johnson, the victim had previously gone to the hospital
to seek out medical care, had been attended by a doctor, and was
discharged with no need to receive any further medical treatment. Id. at *3
¶ 15, *7 ¶ 41. Here, by contrast, the forensic examination was the first time
Gabby sought or received medical treatment. Second, the victim in Johnson
did not receive any medical treatment, or recommendations for treatment,
during the forensic examination because the victim had already been
treated at the hospital. Id. at *7 ¶ 41. Unlike in Johnson, the nurse here
developed a treatment plan for Gabby that was informed specifically by
Gabby’s relation of the events. And the nurse, in fact, provided medical
treatment to Gabby by recommending and administering certain
prophylactic antibiotics, while eschewing other treatments that were
unnecessary because of the specific facts of the assault. Given these
significant differences in case facts, our decision in Johnson is
distinguishable.

¶22 As a result, the objective circumstances of the exchange at
issue indicate that the primary purpose of Gabby’s recounting of the assault

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was medical treatment, not collecting of evidence of a crime, making it
non-testimonial. Id. Therefore, admitting this statement does not implicate,
and necessarily does not violate, the Confrontation Clause.

B. The Superior Court Did Not Err by Admitting Gabby’s
Statements During the Confrontation Call.

¶23 Lee further claims the court erred by admitting Gabby’s
statements made during the confrontation call because the statements were
testimonial hearsay. As a detective explained during trial, a confrontation
call is an “investigative tool” where “[t]he victim talks to the suspect, talks
about the allegation, the incident, what happened and . . . see[s] where that
conversation goes.”

¶24 The Confrontation Clause generally prohibits the
introduction of testimonial hearsay of a non-testifying declarant. Smith, 602
U.S. at 784. Hearsay is a statement that “the declarant does not make while
testifying at the current trial or hearing” and is offered into evidence “to
prove the truth of the matter asserted in the statement.” Ariz. R. Evid.
801(c). Generally, hearsay is inadmissible unless an exception applies. See
Ariz. R. Evid. 802.

¶25 However, “[s]tatements offered for a purpose other than
proving the truth of the matter asserted are not hearsay.” State v. Allen, 253
Ariz. 306, 327 ¶ 27 (2022) (citation modified). Specifically, “the court may
admit out-of-court statements offered to prove the effect on the listener or
to provide context for a defendant’s responses.” State v. Fordson, 258 Ariz.
167, 173 ¶ 27 (App. 2024) (citing State v. Forde, 233 Ariz. 543, 563–64 ¶¶ 73,
78 (2014) (“A text message stating, ‘cops on scene, lay low’ was not hearsay
because the message was offered not to show the cops were on scene, but
that the declarant was communicating concerns about police activity to
someone he thought would share his concerns, suggesting the person’s
involvement.”)).

¶26 In Allen, the defendant challenged two different pieces of
evidence as violative of the Confrontation Clause. 253 Ariz. at 327–30 ¶¶
25–37. The first piece of evidence was the defendant’s husband’s statements
from a taped conversation in the interview room. Id. at 327 ¶ 26. Our
supreme court held that these statements were not admitted in violation of
the Confrontation Clause because the husband’s statements were not
introduced for hearsay purposes, but instead to provide context. Id. at 328
¶ 29.

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STATE v. LEE
Decision of the Court

¶27 As in Allen, here, Gabby’s statements from this confrontation
call were not admitted to prove the truth of the matter asserted. Rather, the
court admitted Gabby’s statements as context to show that Lee’s reactions
were incongruent with his claims of innocence, just as the State highlighted
the wife’s reactions to her husband’s statements in Allen. Id. at 329 ¶ 30.
Specifically, during the call, Gabby made a number of extremely explicit
remarks concerning the nature of Lee’s sexual behavior and technique and
her pleasure at Lee’s performance of a particular sex act, and the State
argued that Lee’s subdued and atypical reactions did not resemble how one
would expect an innocent person to respond to such allegations. In its
closing argument, the State argued, “If your 16-year-old neighbor was
having the conversation with you that she was having with him and it
didn’t happen, you’re going to react and respond in a much bigger way, no
matter how distracted you are.”

¶28 Further, in Allen, the defendant asserted that the admission of
the detective’s final interrogation constituted fundamental error because
the detective’s “statements and questions contained inadmissible hearsay
in violation of the Confrontation Clause . . . .” Id. at 329 ¶ 34. The detective
used “statements made by non-testifying witnesses, each implicating [wife]
in [her daughter’s] death, to elicit a response or confession during the
videotaped interview.” Id. at 330 ¶ 36. But statements used as part of a
“valid interrogation technique” are admissible when not admitted for their
truth. Id. at 330 ¶ 35. In admitting recordings of the detective’s statements,
the Confrontation Clause was not violated “when the statements [were]
used merely as a method of interrogation and the jury understands they are
not intended to prove the truth of the matters asserted.” Id. at 329–30 ¶ 35
(citation modified).

¶29 As in Allen, it was clear that Gabby’s statements from this
confrontation call were merely a permissible interrogation method. While
testifying, the detective described a confrontation call as “an investigative
tool” where “[t]he victim talks to the suspect, talks about the allegation, the
incident, what happened” with the goal of eliciting “response[s] from the
defendant.” Therefore, like the detective in Allen, the State introduced
Gabby’s statements as part of an interrogation technique, not to prove the
truth of what she said during the call, and the court did not err in admitting
the recording of the confrontation call.

¶30 Admission of Gabby’s statements did not violate the
Confrontation Clause because they were used (1) for the non-hearsay
purpose of providing context to, and highlighting, Lee’s reactions to her
statements; and (2) as a valid interrogation method that the jury understood

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STATE v. LEE
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was not intended to prove the truth of the matters asserted. Neither of these
uses depended upon the truth of what Gabby said in the confrontation call.
Therefore, the statements were neither hearsay nor even testimonial in
nature and cannot support Lee’s Confrontation Clause challenge. Fordson,
258 Ariz. at 174 ¶ 30.

¶31 And even assuming, arguendo, that the court erred in
admitting Gabby’s confrontation call statements, the court twice provided
a limiting instruction to the jury to consider Gabby’s statements not for their
truth, but for the context they provided to Lee’s statements and reactions
on the call. “We presume that jurors follow the court’s instructions.” State
v. Pandeli, 242 Ariz. 175, 189 ¶ 58 (2017). Thus, any potential error was
rendered harmless beyond a reasonable doubt by the court’s limiting
instruction to the jury. See State v. Carlson, 237 Ariz. 381, 397 ¶ 61 (2015)
(holding that where a statement made in error was immediately preceded
by the court’s instruction it was assumed that the jurors followed the
instructions and therefore any error was harmless).

¶32 The court did not violate Lee’s Confrontation Clause rights by
admitting Gabby’s confrontation call statements.

II. The Superior Court Did Not Fundamentally Err in Failing to Sua
Sponte Sever Counts 9, 10, and 11 From Lee’s Remaining Counts.

¶33 Lee claims the court should have severed Counts 9, 10, and
11—those related to Gabby’s assault—from all other counts. He argues the
court’s failure to sever these counts was fundamental error because they
allegedly cross-contaminated the jury’s deliberation of the other counts,
thereby depriving Lee “of the opportunity for the jury to render verdicts
free of the taint of highly emotionally charged evidence of sexual abuse of
other minors and acts to tamper with witnesses.” Without the jury’s
impermissible consideration of evidence related to other charges, he argues,
a reasonable jury would have reached a different verdict, and therefore, the
jury’s determination of his guilt was unfair.

¶34 Lee did not move at any time to sever the charges.
Accordingly, we review for fundamental error only. State v. Escalante, 245
Ariz. 135, 138 ¶ 1 (2018) (“When a defendant fails to object to trial error, he
forfeits appellate relief absent a showing of fundamental error.”); accord
Ariz. R. Evid. 103(e).

¶35 Two or more offenses may be joined in an indictment if they:
“(1) are of the same or similar character; (2) are based on the same conduct
or are otherwise connected together in their commission; or (3) are alleged

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to have been part of a common scheme or plan.” Ariz. R. Crim. P. 13.3(a).
The trial court may sever trial of counts that have been joined, either on
motion or on its own initiative, “if necessary to promote a fair
determination of any defendant’s guilt or innocence of any offense[.]” Ariz.
R. Crim. P. 13.4(a).

¶36 Here, the trial court did not fundamentally err by not sua
sponte severing the charges. We have previously held that Rule 13.4 “does
not require the court to order a severance; it only gives it the discretion to
do so on its own initiative.” State v. Longoria, 123 Ariz. 7, 10 (App. 1979). The
concerns alleged by Lee are far from certain or even patent. Thus, it was not
error—let alone fundamental error—for the court to not order a severance
that Lee did not request.

¶37 Moreover, even if Lee could demonstrate error, he has not
established the requisite prejudice. “When a defendant challenges a denial
of severance on appeal, he ‘must demonstrate compelling prejudice against
which the trial court was unable to protect.’” State v. Murray, 184 Ariz. 9, 25
(1995) (quoting State v. Cruz, 137 Ariz. 541, 544 (1983)). “A defendant is not
prejudiced by a denial of severance where the jury is instructed to consider
each offense separately and advised that each must be proven beyond a
reasonable doubt.” State v. Johnson, 212 Ariz. 425, 430 ¶ 13 (2006) (citation
modified). The jury was so instructed here.

¶38 Because the court properly instructed the jury on the
requirement to consider each offense separately and the burden of proof of
each offense, any risk of cross-contamination was mitigated by the court’s
instruction, which we presume the jury followed. See Pandeli, 242 Ariz. at
189 ¶ 58 (“We presume that jurors follow the court’s instructions.”). Lee did
not provide evidence to refute this presumption but instead speculated as
to the jury’s deliberation. As such, Lee fails to establish error or prejudice.

¶39 The court did not err in admitting Gabby’s pretrial statements
because they did not violate the Confrontation Clause. Nor did the court
err in not acting sua sponte to sever the charges.

III. We Amend the Sentencing Order to Comport with the Trial
Court’s Oral Pronouncement.

¶40 In its answering brief, the State observes that the trial court’s
order does not match its oral pronouncement of sentence in two ways. First,
during oral pronouncement, the trial court explained that Count 10 was to
run consecutively to Count 8, but the sentencing order shows Count 10 is
to run consecutively to Count 9. Because Lee’s five-year sentence for Count

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9 runs concurrently with his twenty-year sentence for Count 8, this raises
confusion as to whether the sentence for Count 10 begins during or after
the twenty-year sentence for Count 8. Second, during oral pronouncement,
the trial court explained that Count 15 was to run concurrently with Count
14, but in the sentencing order it listed Count 15 as running consecutively
to Count 14.

¶41 When a discrepancy exists between the trial court’s oral
pronouncement of a sentence and a written minute entry, the “[o]ral
pronouncement in open court controls over the minute entry.” State v.
Whitney, 159 Ariz. 476, 487 (1989). We can order the minute entry corrected
if the record clearly identifies the intended sentence. Id. at 487.

¶42 Here, the trial court clearly stated its intent that the sentence
for Count 10 run consecutively to Count 8 and the sentence for Count 15
run concurrently with Count 14. As such, the oral pronouncement controls
and we order that the court’s written sentencing order be amended to
comport with that oral pronouncement.

CONCLUSION

¶43 We vacate the superior court’s sentencing minute entry. We
order that it be corrected to reflect the following: Count 10 is to run
consecutively to Count 8 and Count 15 is to run concurrently with Count
14. We affirm Lee’s convictions and sentences in all other respects.

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

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