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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        FILBERTO GIRON, Appellant.

                             No. 1 CA-CR 13-0360
                               FILED 3-31-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-126886-001
                  The Honorable Cynthia Bailey, Judge

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Margaret M. Green
Counsel for Appellant
                            STATE v. GIRON
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.


P O R T L E Y, Judge:

¶1            Defendant Filberto Giron appeals his convictions for
molestation of a child, sexual conduct with a minor, and kidnapping. He
challenges the trial court’s admission of blind expert testimony regarding
child victims’ reactions to sexual abuse. He also contends the prosecutor
engaged in misconduct during closing arguments. Finally, he argues the
court erred in directing him to pay for DNA testing. For the following
reasons, we affirm Giron’s convictions and sentences, but modify the
sentences by vacating the order that he pay the DNA testing fee.

                             BACKGROUND

¶2           Giron and his girlfriend, N.B., had been living together, with
their two daughters and N.B.’s five daughters from previous relationships.
One of N.B’s daughters is the victim in this case.

¶3            In 2010, the then four-year-old victim told N.B. that Giron
“had touched her.” N.B. and Giron transported the victim to a local
hospital where she was physically examined. Although N.B. declined to
allow her child to be examined for rape, four days later she took the victim
to the Child Help Children’s Advocacy Center (“Child Help”) at the request
of a detective.

¶4             During a forensic interview conducted at Child Help, the
victim was reluctant to discuss the inappropriate touching because N.B.
had told her not to “tell,” and that she, N.B., would go to jail if the victim
told anyone about the incident. The victim eventually disclosed to the
interviewer that Giron had touched her sexually. However, because there
was a lack of physical evidence, no further investigation ensued. The victim
continued to reside with her mother and Giron.

¶5             On May 21, 2012, N.B. called home from work and asked the
victim whether “anybody tried to touch” her. The victim hesitated before
telling N.B. “something about [Giron].” N.B. returned home and took the
victim to the hospital. Police officers subsequently arrived and escorted the


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                              STATE v. GIRON
                             Decision of the Court

victim and N.B. to Child Help where the victim was again physically
examined and interviewed. The victim explained during the interview that
Giron had anally penetrated her with his penis in the bathroom. The victim
further explained that she tried to scream and get away during the incident,
but he covered her mouth and restrained her by gripping her arms. The
physical examination revealed the victim’s anus had localized swelling,
and male DNA was discovered in epithelial cells around the victim’s
external genitalia and anal area. Although a detective instructed her not to
do so, N.B. spoke with Giron about the victim’s allegations before the
detective could initiate a confrontation call.

¶6              Based on the 2010 and 2012 incidents, the State charged Giron
with molestation of a child, sexual conduct with a minor, and kidnapping,
all dangerous crimes against children. At trial, the victim testified that she
did not recall the incidents, and she denied Giron had ever sexually abused
her. N.B. testified that the victim “is constantly lying to me” and “[s]he
sticks to her lies.” N.B. also testified the victim “is a very sneaky little girl.”
Giron testified on his own behalf and denied the allegations. Two of N.B.’s
other daughters also testified in support of Giron.

¶7           Without objection, Dr. Wendy Dutton testified for the State as
a “blind expert,” meaning she had no information about the facts of the
case. Dutton described the general behavioral traits of child victims of
alleged sexual abuse based on research in the field and her own extensive
experience as a forensic interviewer.

¶8           In the State’s rebuttal closing argument, the prosecutor stated
“it happens all the time” in reference to child sex abuse victims’ family
members wanting to “handle it themselves” without involvement of the
State. Giron did not object to this statement.

¶9            The jury found Giron guilty of the charged offenses, and he
was subsequently sentenced to consecutive prison sentences. Giron was
also ordered to pay for DNA testing. Giron appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).1




1   We cite to the current version of a statute unless otherwise noted.


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                            STATE v. GIRON
                           Decision of the Court

                               DISCUSSION

I.    Expert Testimony

¶10            Giron does not challenge Dutton’s qualifications to testify as
an expert in child sexual abuse cases. Instead, he argues the court
committed fundamental prejudicial error by permitting Dutton to testify
because “[h]er testimony was so broad that it was useless.” In support of
his argument, Defendant points to examples of Dutton’s testimony where
she explained that child victims of sexual crimes may immediately disclose
the abuse or delay the disclosure, and that victims may have positive
feelings for the alleged perpetrator whether the abuse actually occurred or
not. Thus, according to Giron, Dutton’s “testimony formed a basis for the
prosecutor to argue that any behavior displayed by a child who alleged
sexual abuse was, in fact, consistent with being abused.”

¶11          To obtain relief under fundamental error review, Giron has
the burden to show that error occurred, the error was fundamental and he
was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68,
¶¶ 20-22, 115 P.3d 601, 607-08 (2005). “Before we may engage in a
fundamental error analysis, however, we must first find that the trial court
committed some error.” State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342,
(1991).

¶12           Arizona Rule of Evidence (“Rule”) 702 provides:

              A witness who is qualified as an expert by
              knowledge, skill, experience, training, or
              education may testify in the form of an opinion
              or otherwise if . . . 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[.]

Ariz. R. Evid. 702(a).

¶13            Here, Dutton did not have any knowledge regarding the
victim or the circumstances of the allegations. And we agree that Dutton
testified that almost any behavior could be consistent with being a child
sexual abuse victim, but Giron’s assertion explains precisely why the
testimony was relevant. The State offered Dutton’s testimony to dispel
common misconceptions that child sexual abuse victims will always act or
respond to the abuse in the same manner. Testimony about general social
and behavioral science principles is admissible to “assist the jury in


                                      4
                             STATE v. GIRON
                            Decision of the Court

deciding a contested issue, including issues pertaining to accuracy or
credibility of a witness’ recollection or testimony.” State v. Lindsey, 149 Ariz.
472, 473, 720 P.2d 73, 74 (1986).

¶14           In this case, the jury had to resolve the credibility of the
victim, especially at trial when she testified that nothing happened, along
with her mother’s interference with the investigations of the alleged sexual
incidents by Giron. Dutton testified that child victims may have difficulty
recalling details of abuse incidents because they may dissociate themselves
from the sexual acts as the abuse is occurring. Dutton also testified that “if
the child is feeling pressure from family members to keep the family
together,” the child “may be reluctant to talk about what happened.”

¶15           Based on the totality of the trial evidence, we conclude that
Dutton’s testimony was properly admitted and likely helpful for the jury to
properly understand the victim’s testimony and evaluate her credibility at
trial. Accordingly, Dutton’s expert testimony satisfied Rule 702(a), and the
court did not err by not sua sponte precluding the testimony. See State v.
Salazar-Mercado, 234 Ariz. 590, 594, ¶ 15, 325 P.3d 996, 1000 (2014) (holding
Dutton’s “cold expert” testimony satisfied Rule 702(a) because it “might
have helped the jury to understand possible reasons for the . . . inconsistent
reporting”).

¶16            We also reject Giron’s apparent argument that Dutton’s
testimony was unfairly prejudicial under Rule 403. Pursuant to Rule 403,
relevant evidence is subject to exclusion “if its probative value is
substantially outweighed by the danger of . . . unfair prejudice [or]
confusing the issues . . . .” Ariz. R. Evid. 403. “Evidence is unfairly
prejudicial only when it has an undue tendency to suggest a decision on an
improper basis such as emotion, sympathy or horror.” State v. Connor, 215
Ariz. 553, 564, ¶ 39, 161 P.3d 596, 607 (App. 2007) (citation omitted).
Dutton’s blind expert testimony was not unfairly prejudicial under this
standard, nor was it confusing. As explained, Dutton’s testimony helped
clarify for the jury why the victim either did not remember the sexual
incidents with Giron or untruthfully denied that they occurred. Moreover,
the trial court instructed the jury that it was not bound by any expert
opinion and should give such an opinion only the weight the jurors
believed it deserved. We presume the jury followed this instruction. See
State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Consequently,
Dutton’s testimony was not unfairly prejudicial.




                                       5
                             STATE v. GIRON
                            Decision of the Court

II.   Prosecutorial Misconduct

¶17          Giron next argues the prosecutor improperly referred to facts
not in evidence during closing arguments. We review for fundamental
error because Giron, as he concedes, did not object to the argument at trial.

¶18           In her rebuttal closing argument, the prosecutor argued:

              The State was presented with an investigation
              that was started by [N.B.]. She came forward to
              the hospitals, not to the police, and said, “I need
              my daughter checked out,” on these two
              occasions. And the hospitals did what they’re
              required to do and what they should do: report
              to the police.

              Because these things happen every day, where
              mothers, sisters, family members report crimes,
              and then later feel bad about it and don’t do
              anything further. Or they don’t want the State
              involved.

              They want to handle it themselves. And it
              doesn’t — it might not make sense to you. It
              might not make sense to you that if someone
              was in your home perpetrating on your child
              [sic] that you would want them back in the
              home. But it happens all the time, and that’s
              what’s happening here. (Emphasis added.)

¶19          Giron contends the statement “it happens all the time” was
not supported by the evidence and amounted to fundamental error because
it “explained away important defense testimony provided by [N.B.], the
mother of the victim.” We disagree.

¶20            Although trial counsel are generally not permitted to refer to
matters that are not in the record, they may argue all reasonable inferences
from the evidence. State v. Hill, 174 Ariz. 313, 322, 848 P.2d 1375, 1384
(1993); State v. Bailey, 132 Ariz. 472, 477, 647 P.2d 170, 175 (1982). Here, the
trial witness who forensically interviewed the victim in 2010 testified that
the victim told her “she wasn’t allowed to talk about” Giron’s improper
touching. The witness further affirmed, that is “something [I have]
encountered before in interviews.” Thus, in conjunction with the evidence
that Giron continued living with the victim and N.B. after the 2010 incident,


                                       6
                             STATE v. GIRON
                            Decision of the Court

the prosecutor could properly argue that, when sexual abuse occurs
between family members, “it happens all the time” that other members of
the family want the perpetrator “back in the home.”

¶21          Furthermore, the challenged statement was made in response
to defense counsel’s following argument in closing:

              This is the question I want you to think about as
              you go through your deliberations. If this man
              was angrily raping this child, would his whole
              family really take the stand and want him back
              in the home? This is the girls’ baby sister. Her
              older sister. It’s her sister.

              So under the State’s theory, they’re all lying to
              get him to come home, because they’d rather
              have him home raping their little sister than not
              have him at home.

              What’s the most logical answer? Stepdaughters
              don’t want him to go away because it’s never
              happened. [The victim] lied, and [Giron] is now
              here before you people on the jury hoping his
              nightmare is going to end.

¶22           The prosecutor could permissibly rebut this argument by
exaggerating that “all the time” other family members want the perpetrator
back in the home. See State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360
(2000) (“[E]xcessive and emotional language is the bread and butter
weapon of counsel’s forensic arsenal, limited by the principle that attorneys
are not permitted to introduce or comment upon evidence which has not
previously been offered and placed before the jury.”).

¶23           Finally, were we to conclude otherwise and determine the
prosecutor’s “all the time” comment amounted to misconduct, Giron
nonetheless fails to persuade us that fundamental error occurred. To
prevail on a claim of prosecutorial misconduct, a defendant must
demonstrate that the prosecutor’s misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “Reversal on the basis of
prosecutorial misconduct requires that the conduct be ‘so pronounced and
persistent that it permeates the entire atmosphere of the trial.’” State v.
Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992) (quoting United States v.
Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quoting United States v.


                                      7
                              STATE v. GIRON
                             Decision of the Court

Blevins, 555 F.2d 1236, 1240 (5th Cir. 1977)); see also State v. Lee, 189 Ariz. 608,
616, 944 P.2d 1222, 1230 (1997).

¶24           Here, the prosecutor’s limited statement after five days of
evidence did not so infect the trial with unfairness as to deny Giron due
process, nor did the statement permeate the trial’s entire atmosphere. As a
result, Giron has not satisfied his burden of establishing fundamental error.

III. DNA Testing

¶25           Giron next contends that the court fundamentally erred by
ordering him to pay for DNA testing pursuant to A.R.S. § 13–610. The State
confesses error, relying in part on State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307
P.3d 35, 39 (App. 2013) where we held that § 13–610 does not authorize the
court to impose a DNA collection fee on a convicted defendant. As a result,
the court erred by imposing the collection fee. Consequently, we affirm
Giron’s sentence, but vacate the order that he pay a DNA testing fee.

                                CONCLUSION

¶26         We affirm Giron’s convictions and sentences, but modify the
sentence by vacating the order that Giron has to pay the cost of DNA
testing.




                                     :ama




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