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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            ANTHONY WINDFIELD ANDERSON, Appellant.

                             No. 1 CA-CR 14-0506
                                FILED 5-5-2015


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201200646
                   The Honorable Dan Slayton, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Misty D. Guille
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                          STATE v. ANDERSON
                           Decision of the Court



                      MEMORANDUM DECISION

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


G O U L D, Judge:

¶1           Defendant appeals from his conviction and sentence for one
count of sexual conduct with a minor. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             In 2005, while Defendant was 23 years old, he engaged in a
sexual relationship with the victim, his 15-year-old cousin. As a result of
the sexual relationship, the victim became pregnant and gave birth to a son.
Six years later, the victim reported the relationship to the police and
Defendant was indicted for one count of sexual conduct with a minor, a
class six felony.

¶3             At trial, the victim testified that Defendant knew she was a
minor and that he told her he wanted to impregnate her so that she would
be undesirable to anyone else. The victim also testified that Defendant was
her only sexual partner prior to the birth of her son and that Defendant
admitted to her that he was the father of her son. The State also presented
DNA evidence showing a complete match between Defendant’s DNA and
that of the victim’s son.

¶4           Defendant was convicted; the court suspended imposition of
sentence and placed Defendant on probation. Defendant timely appealed.

                               DISCUSSION

¶5              In the trial court, Defendant did not object to either of the
claimed errors from which he now appeals; accordingly, we review for
fundamental error. State v. Smith, 219 Ariz. 132, 136, ¶ 21 (2008). To prevail
under fundamental error review, Defendant must establish that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him prejudice.”
Id.




                                      2
                           STATE v. ANDERSON
                            Decision of the Court

¶6            Defendant claims that the detective offered improper expert
profile evidence when he testified that sexual abuse victims typically delay
reporting the crime.

¶7             Defendant has failed to establish error. Here, the detective
did not testify that the victim’s delay in reporting indicated she was, in fact,
a victim of sexual abuse; rather, he was explaining why he did not ask for
an explanation of the six-year delay in reporting.

¶8            Even if the detective’s testimony is viewed as expert
testimony, “[t]estimony describing behavioral characteristics or conduct
outside jurors’ common experience is permitted.” State v. Moran, 151 Ariz.
378, 384 (1986). Because the detective generally explained the behavior
displayed by child sexual-abuse victims without opining as to whether the
present victim’s behavior indicated she in fact suffered sexual abuse, it was
permissible expert testimony. Id.

¶9            Defendant has also failed to show prejudice. The victim’s
testimony, coupled with DNA evidence showing that Defendant is the
father of her son, are overwhelming evidence of guilt. See State v. Lindsey,
149 Ariz. 472, 477-78 (1986) (affirming convictions on counts supported by
overwhelming evidence even though improper expert testimony was
admitted).

¶10           Defendant next argues the prosecutor improperly sought to
inflame the jury’s passion during closing argument.

¶11            “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.’” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). To determine if a prosecutor’s
comments during closing argument constitute misconduct, the court will
consider whether the “statements called to the jury’s attention matters it
should not have considered in reaching its decision” and “the probability
that the jurors were in fact influenced by the remarks.” State v. Newell, 212
Ariz. 389, 402, ¶ 60 (2006).

¶12            There is no error. The prosecutor’s statements that Defendant
should have considered the impact his actions would have on the victim
sought to highlight the fact that Defendant was 23, an adult, and the victim
was 15, a minor. The ages of Defendant and the victim were material issues
for the jury to consider in reaching its verdict.



                                       3
                          STATE v. ANDERSON
                           Decision of the Court

¶13           Furthermore, Defendant has not shown prejudice. Given the
overwhelming evidence of Defendant’s guilt, there is no reasonable
likelihood that these statements affected the jury’s verdict. The victim gave
birth to the child when she was a minor, the child’s DNA was a complete
match to Defendant’s DNA, and the victim testified that Defendant was the
only person with whom she had a sexual relationship during the time in
question. Based on the evidence presented at trial, Defendant cannot show
his conviction resulted from anything other than direct evidence of his
guilt.

                              CONCLUSION

¶14           For the reasons above, Defendant’s conviction and resulting
sentence are affirmed.




                                  :ama




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