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Evidence—Statement Not an “Assertion” is not Hearsay

State v. Palmer, 628 Ariz. Adv. Rep. 8 (App. Div. II, February 17, 2012) (J. Brammer)

STATEMENT MADE BY FRIEND OF CRMINAL DEFENDANT “WHERE IS YOUR BACKPACK?” NOT BEING AN ASSERTION IS NOT HEARSAY

The defendant crashed his motorcycle and was taken to the hospital. A hospital employee found a bag of white rocks which turned out to be methamphetamine in a back pack that was brought into defendant's hospital room from the ambulance. Later two women friends of the defendant came into the hospital room and said, “where is your backpack?” to the defendant then left the room with the same backpack that had contained the meth. At trial the defendant claimed he never possessed meth and that the state failed to prove the backpack where meth was found belonged to him. He appealed his conviction on the basis the court wrongfully let the statement “where is your backpack?” into evidence in violation of the hearsay rule. The Arizona Court of Appeals affirmed.

The court held: “The statement the women made was not intended as an assertion and thus was not inadmissible hearsay. 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." Ariz. R. Evid. 801(c). A "statement" is further defined as either "an oral or written assertion" or "nonverbal conduct of a person, if it is intended by the person as an assertion." Ariz. R. Evid. 801(a).2 "[W]ords or conduct not intended as assertions are not hearsay even when offered as evidence of the declarant's implicit belief of a fact."

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