from the District Court of Carbon County The Honorable Wade
E. Waldrip, Judge
Representing Appellant Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; David E. Westling, Senior Assistant
Appellate Counsel. Argument by Mr. Westling.
Representing Appellee Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
Benjamin E. Fischer, Assistant Attorney General. Argument by
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Frank Villarreal challenges convictions for battery and
aggravated assault and battery which stemmed from his
punching and running over Robert Flores, who did not testify
at trial. He claims that the trial court denied his Sixth
Amendment right to confront witnesses against him when it
allowed the emergency medical technician (EMT) and the
physician who treated Mr. Flores to testify regarding several
statements Mr. Flores made to them. He also argues that his
battery conviction is not supported by sufficient evidence.
We conclude that the Confrontation Clause was not violated
because the statements made by Mr. Flores to his medical care
providers were not testimonial; however, the battery
conviction is not supported by sufficient evidence. We affirm
Mr. Villarreal's aggravated assault and battery
conviction, and reverse and remand for acquittal on the
We rephrase the issues as:
the victim's failure to testify and the subsequent
admission of statements he made to medical providers violate
the Confrontation Clause?
sufficient evidence support the battery conviction when there
was no evidence regarding the victim's bodily injury?
Ian Campos and Robert Flores were driving from Denver to
Rawlins in Mr. Campos' vehicle when Mr. Campos realized
that he might run out of gas. He called Mr. Villarreal, who
met them with gas at a truck stop in Sinclair. At the truck
stop, Mr. Villarreal and Mr. Flores began to argue, and Mr.
Villarreal punched Mr. Flores in the face. They decided to
take their dispute south of Rawlins and fight.
Mr. Campos and Mr. Flores followed Mr. Villarreal's truck
to Rawlins, where they left the interstate and headed south.
Mr. Villarreal saw Mr. Flores jump out of Mr. Campos' car
in his rearview mirror, turned his truck around, and drove
into the sagebrush field where Mr. Flores had headed. Mr.
Campos testified that he then left the area because he did
not want to get into trouble. Mr. Villarreal drove after Mr.
Flores and ran over his leg. A short time later, Mr.
Villarreal drove Mr. Flores, who had a broken leg, to meet
Mr. Campos. Mr. Campos put Mr. Flores, who was screaming in
pain and saying "all kinds of stuff, " in his car
and took him to the hospital. At the hospital, Mr. Flores was
seen by Mr. Wheat, an EMT, and later, by Dr. Cesko. Dr. Cesko
testified that when he saw Mr. Flores, approximately three
hours after his admission, Mr. Flores was in
"substantial pain" from his broken leg.
Mr. Flores refused to cooperate with the State during its
trial preparation and did not testify at trial despite the
State's efforts and the district court's order for
detention and arrest warrant for him. A jury convicted Mr.
Villarreal of eight statutory violations, two of which are
the subject of this appeal: battery and aggravated assault
Mr. Villarreal argues that the district court violated his
Sixth Amendment right to confront witnesses at trial because
Mr. Flores did not testify. Instead, the State established
the identity of the victim, the identity of his assailant,
and the injuries to Mr. Flores, partially through the
testimony of medical personnel, who described some of the
statements Mr. Flores made to them while they treated ...