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State v. Salazar-Mercado

Court of Appeals of Arizona, Second Division, Department B

June 20, 2013

THE STATE OF ARIZONA, Appellee,
v.
MARTIN DAVID SALAZAR-MERCADO, Appellant.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20110221001 Honorable Christopher C. Browning, Judge

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass Tucson Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise Tucson Attorneys for Appellant

OPINION

VIRGINIA C. KELLY, Judge

¶1 Martin Salazar-Mercado appeals from his convictions and sentences for one count of sexual conduct with a minor and five counts of molestation of a child. He argues the trial court erred in denying his motion to preclude expert testimony pursuant to Rule 702, Ariz. R. Evid. He also contends the court erred in admitting a victim's prior inconsistent statement as substantive evidence of his guilt. We affirm.

Background

¶2 We view the facts in the light most favorable to sustaining the verdicts. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). In October 2010 Salazar-Mercado's niece, V.S., and her brother, H.B., disclosed to family members that Salazar-Mercado had molested them on several occasions in the past. The police were called and Salazar-Mercado was arrested.

¶3 Before trial, Salazar-Mercado moved to preclude the state's proposed expert witness, Dr. Wendy Dutton, a forensic interviewer, from presenting testimony on the general characteristics of child victims of sexual abuse, arguing her testimony would not satisfy the requirements of Rule 702, Ariz. R. Evid. The trial court denied the motion, and Dutton testified at trial. Salazar-Mercado was convicted as stated above. [1] He was sentenced to a combination of concurrent and consecutive sentences, the longest of which was life imprisonment, and this appeal followed.

Discussion

I. Expert Witness Testimony

¶4 Salazar-Mercado claims the trial court erred in denying his motion to preclude Dutton from presenting expert testimony. Generally, we review the court's admission of expert testimony for an abuse of discretion. State v. Wright, 214 Ariz. 540, ¶ 5, 155 P.3d 1064, 1066 (App. 2007). However, to the extent the admissibility of the testimony is a question of law, our review is de novo. Id.; see also Cranmer v. State, 204 Ariz. 299, ¶ 8, 63 P.3d 1036, 1038 (App. 2003) ("We review the interpretation of . . . court rules de novo.").

a. Rule 702(d), Ariz. R. Evid.

¶5 The admission of expert testimony is governed by Rule 702, Ariz. R. Evid. McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 10, 293 P.3d 520, 525 (App. 2013). The Arizona Supreme Court amended Rule 702 in September 2011, effective January 1, 2012, to "adopt[] Federal Rule of Evidence 702, as restyled" and to reflect the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Ariz. R. Evid. 702 cmt.; Ariz. Sup. Ct. Order No. R-10-0035 (Sept. 8, 2011). In doing so, the court departed from the general-acceptance test detailed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000).

¶6 Rule 702, Fed. R. Evid., codifies the "reliability" test for the admissibility of expert testimony that was announced in Daubert and clarified in Kumho Tire Co., Ltdv. Carmichael, 526 U.S. 137 (1999).[2]See Fed. R. Evid. 702 advisory comm. notes. The amended version of Rule 702, Ariz. R. ...


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