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State v. Ortiz

Court of Appeals of Arizona, Second Division

October 16, 2015

THE STATE OF ARIZONA, Appellee,
v.
RICHARD PORTUGAL ORTIZ, Appellant

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[Copyrighted Material Omitted]

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Appeal from the Superior Court in Pima County. No. CR20122655001. The Honorable Javier Chon-Lopez, Judge.

AFFIRMED.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.

Steven R. Sonenberg, Pima County Public Defender, By Michael J. Miller and David J. Euchner, Assistant Public Defenders, Tucson, Counsel for Appellant.

Judge Howard authored the opinion of the Court in which Presiding Judge Vá squez and Judge Kelly[1] concurred.

OPINION

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HOWARD, Judge.

[¶1] Following a jury trial, appellant Richard Ortiz was convicted of four counts of sexual conduct with a minor and sentenced to enhanced prison terms. On appeal, he argues the trial court erred by allowing unfairly prejudicial expert testimony on the characteristics of child victims of sexual abuse and violated his Confrontation Clause rights by ruling the state did not need to call as witnesses the technicians who handled Ortiz's deoxyribonucleic acid (DNA) sample during the preliminary testing process. He additionally argues the court illegally enhanced his sentences because the jury, and not the

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court, should have determined whether they had been committed on the same occasion. Because the court did not err in admitting any evidence, and the sentencing error was harmless beyond a reasonable doubt, we affirm Ortiz's convictions and sentences.

Factual and Procedural Background

[¶2] We view the evidence in the light most favorable to affirming the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). At the start of her freshman year of high school, J.V. joined the wrestling team and Ortiz was her coach. The following summer, in June 2012, J.V. was fifteen years old and she and Ortiz, who was fifty-three, engaged in a series of sexual encounters. The first occurred in mid-June, when J.V. was exercising in the school gym. Ortiz approached her, kissed her, and placed his hands inside J.V.'s pants and inserted his fingers into her vagina. Later that month, Ortiz drove J.V. to a park, and they engaged in sexual intercourse.

[¶3] On June 30, Ortiz drove J.V. home in his mother's minivan from a martial arts event. At some point, Ortiz parked the minivan and began kissing J.V. The two then moved into the backseat, where they engaged in sexual intercourse and, afterwards, J.V. began masturbating Ortiz. Meanwhile, a Pima County Sheriff's deputy, responding to a suspicious vehicle report, parked in front of Ortiz's vehicle and shined his lights into the minivan. When the deputy approached the minivan, Ortiz was in the driver's seat and J.V. was in the back seat getting dressed. Ortiz's DNA and sperm were found on J.V.'s underwear and J.V.'s DNA was found on Ortiz's penis and underwear.

[¶4] Ortiz was charged with seven counts of sexual conduct with a minor, and a jury found him guilty of four of those counts.[2] The trial court determined some of the offenses had not occurred on the same occasion and sentenced him to enhanced, presumptive, concurrent and consecutive prison terms totaling 3.75 years. We have jurisdiction over Ortiz's appeal pursuant to A.R.S. § § 12-120.21(A)(1) and 13-4033(A)(1).

Expert Abused Child Testimony

[¶5] Ortiz first argues the trial court improperly allowed the expert testimony of Dr. Wendy Dutton on the general characteristics of child sexual abuse victims. He contends the probative value of several areas of Dutton's testimony was outweighed by the potential for unfair prejudice. We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion, State v. Salazar-Mercado, 234 Ariz. 590, ¶ 13, 325 P.3d 996, 1000 (2014), viewing " the evidence in the 'light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect,'" State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App. 1998), quoting State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App. 1989).

[¶6] After a Daubert [3] hearing, the trial court concluded that Dutton was qualified as an expert under Rule 702, Ariz. R. Evid., and that the probative value of her testimony was not outweighed by the potential for unfair prejudice. Dutton testified at trial as a " blind" or " cold" expert, meaning she had no knowledge about the facts of this case and would not offer any opinions specific to it. As relevant here, Dutton testified that children often disclose abuse in a " piecemeal" fashion, disclosing the least embarrassing or shameful details first, and, depending on the reaction they receive, will later reveal more details. And, Dutton testified studies have shown children often " under report" the abusive acts that have occurred.

[¶7] Dutton also explained that children typically disclose information either purposefully--taking the initiative to report the abuse to someone else--or are prompted--when someone else asks the child a direct question after, for example, the abuse is

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somehow discovered. She further stated, based on her " experience and the current research and literature," children " are more likely to be abused by somebody they know." She went on to describe the " grooming" process, which is how the abuser will " acquaint [the child] with physical contact or sexuality."

[¶8] Rule 702, which governs the admissibility of expert witness testimony, " does not bar 'cold' experts from offering general, educative testimony to help the trier of fact understand evidence or resolve fact issues." Salazar--Mercado, 234 Ariz. 590, ¶ 6, 325 P.3d at 998. " When the facts of the case raise questions of credibility or accuracy that might not be explained by experiences common to jurors--like the reactions of child victims of sexual abuse--expert testimony on the general behavioral characteristics of such victims should be admitted." State v. Lujan, 192 Ariz. 448, ¶ 12, 967 P.2d 123, 127 (1998); see also State v. Tucker, 165 Ariz. 340, 346, 798 P.2d 1349, 1355 (App. 1990) (" [A]n expert witness may testify about the general characteristics and behavior of sex offenders and victims if the information imparted is not likely to be within the knowledge of most lay persons" so long as the expert does not " quantify nor express an opinion about the veracity of a particular witness or type of witness." ).

[¶9] Even if admissible under Rule 702, expert testimony still must undergo a Rule 403, Ariz. R. Evid., analysis. Salazar-Mercado, 234 Ariz. 590, ¶ 20, 325 P.3d at 1001. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Ariz. R. Evid. 403. " Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). " Deciding whether expert testimony will aid the jury and balancing the usefulness of expert testimony against the danger of unfair prejudice are generally fact-bound inquiries uniquely within the competence of the trial court." State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986).

[¶10] Ortiz argues that Dutton is not qualified as an expert under Rule 702(a), which requires that " the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." He argues Dutton's testimony is within the common knowledge of a juror, and is therefore not helpful.

[¶11] At oral argument, Ortiz acknowledged our case law finding that " the average juror is [not] familiar with the behavioral characteristics of victims of child molesting," thus making Dutton's testimony proper under Rule 702(a). State v. Lindsey, 149 Ariz. 472, 473-74, 720 P.2d 73, 75 (1986); see also Moran, 151 Ariz. at 382, 728 P.2d at 251. He argued, however, that in today's society, much of Dutton's testimony is within the common knowledge of jurors. But Ortiz conceded the record in this case does not contain anything that allows this court to revisit the conclusion reached in Lindsey. See Salazar-Mercado, 234 Ariz. 590, ¶ ¶ 17, 19, 325 P.3d at 1000-01 (absent " studies, testimony, or other evidence casting doubt on" continued value of Dutton's testimony on Child Sexual Abuse Accommodation Syndrome, court would not reconsider whether testimony still admissible under Rule 702(a)). Ortiz's argument on Dutton's qualifications under Rule 702(a) accordingly fails.

[¶12] The main thrust of Ortiz's argument is that the prejudicial effect of several areas of Dutton's testimony outweighed any probative value. He first argues her testimony that most child abusers know their victims is " not a 'behavioral characteristic'" and was irrelevant because " there was no claim here that [J.V.] was being abused by a stranger." But J.V.'s credibility was a central issue in this case and, as Dutton explained during the Daubert hearing, " there are some myths out there which tend to suggest that rape is predominately perpetrated by somebody unknown to the victim." Ortiz did not contest this assertion with any evidence. This testimony therefore was helpful to the jurors in assessing the credibility of the witnesses and determining the facts. See Lujan, 192 Ariz. 448, ¶ 12, 967 P.2d at 127.

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¶13 Ortiz further argues this testimony was unfairly prejudicial because it " implied that [Ortiz] committed other offenses as well." He does not, however, explain, and we fail to see, how this testimony would have given rise to such an implication. Dutton provided only generalized testimony, stated she did not know any of the underlying facts of this case, and did not opine as to J.V.'s credibility or Ortiz's guilt or innocence. And Ortiz was able to cross-examine Dutton. Thus, " the 'good common sense of jurors [could] discern that which is true from that which is false'" and the trial court did not abuse its discretion in finding the probative value of the testimony was not substantially outweighed by the risk of unfair prejudice. Moran, 151 Ariz. at 384, 728 P.2d at 254, quoting State v. Moran, 151 Ariz. 373, 377, 728 P.2d 243, 247 (App. 1985).

[¶14] Ortiz next argues Dutton's testimony regarding " piecemeal disclosure . . . was not probative of the actual situation" in this case because J.V.'s disclosures were not made to a " neutral supportive forensic interviewer." But Ortiz mischaracterizes Dutton's testimony. She stated " [p]iecemeal disclosure refers to" children disclosing the " least embarrassing or the least shameful" aspects of the abuse, and then waiting to see how people react before revealing more details. Although she noted that children may be more likely to disclose additional details to a trained interviewer, she did not state that was a requirement.

[¶15] After the deputy found J.V. and Ortiz in the minivan on June 30, J.V. was handcuffed, read the Miranda [4] warning, and interrogated by detectives. She initially told detectives that night was the only time any sexual conduct between herself and Ortiz had occurred. One week later, however, she disclosed several other acts of sexual conduct between herself and Ortiz to that same detective.

[¶16] This scenario fits precisely into what Dutton described. Thus, her testimony aided the jury in understanding the reasons for J.V.'s delayed disclosure and in assessing J.V.'s credibility. See Salazar-Mercado, 234 Ariz. 590, ¶ 15, 325 P.3d at 1000; see also Lujan, 192 Ariz. 448, ¶ 12, 967 P.2d at 127 (" When the facts of the case raise questions of credibility or accuracy that might not be explained by experiences common to jurors--like the reactions of child victims of sexual abuse--expert testimony on the general behavioral characteristics of such victims should be admitted." ).

[¶17] Ortiz contends, however, he " was prejudiced by the implication that this was a normal situation." He does not explain that assertion, and we fail to see how he was prejudiced. The jury was informed that J.V. disclosed the incidents after she was handcuffed, read the Miranda warning, and interrogated by the detectives. The detective who questioned J.V. testified about his reasons for not using a forensic interviewer. The jury was therefore able to assess the credibility of the witnesses and weigh their testimony accordingly. See State v. Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d 526, 528 (App. 2012).

[¶18] Additionally, the fact that Dutton's description of how children disclose abuse was consistent with the evidence presented at trial does not render her testimony unfairly prejudicial. See State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) ( " not all harmful evidence is unfairly prejudicial" because " relevant and material [evidence] will generally be adverse to the opponent" ). Nor does the testimony " suggest decision on an improper basis, such as emotion, sympathy, or horror." Mott, 187 Ariz. at 545, 931 P.2d at 1055. The trial court did not abuse its discretion by admitting it. See Moran, 151 Ariz. at 381, 384, 728 P.2d at 251, 254.

[¶19] Next, Ortiz argues Dutton's testimony regarding children's tendency to under report was not probative and, instead, " implied other acts [occurred] that were not raised at trial." But Dutton's testimony actually was that children tend to under report what happened during a particular incident, not that other incidents occurred. ...


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