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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                RUSSELL LAWRENCE GARCIA, Appellant.

                             No. 1 CA-CR 16-0106
                               FILED 9-14-2017


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201400677
             The Honorable Cathleen Brown Nichols, Judge

                                  AFFIRMED


                                   COUNSEL

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

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



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1            Russell Garcia (“Garcia”) appeals his conviction and sentence
for sexual conduct with a minor under 12 years of age, a class 2 felony and
dangerous crime against children. In light of our supreme court’s recent
opinion in State v. Haskie, 399 P.3d 657 (2017), we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            The evidence at trial, viewed in the light most favorable to
sustaining the conviction,1 demonstrated that when the victim was nine
years old, Garcia, who lived with the family, offered her one dollar if she
would follow him to an upstairs bedroom. She testified that after they
reached the bedroom, Garcia asked her if she knew what “d—k” meant,
and then lay her on the bed, pulled down her pants and underwear, and
licked her private parts. Afterward, Garcia gave her one dollar and told her
not to tell anyone. She testified that Garcia had given her money before,
but this was the first and only time that he had touched her inappropriately.

¶3           Immediately afterward, the victim tried to call her mother at
work, but was unable to reach her. When her mother arrived home, the
victim told her what happened. Her mother took the victim to a hospital
emergency room, and she was sent across the street to the Safe Child
Center, where she was examined by a sexual assault nurse examiner. A
swab of the victim’s mons pubis, showed a Y-STR profile that matched
Garcia and all his paternally-related male relatives. The amount of DNA
present on the swab was indicative of saliva.

¶4             The jury convicted Garcia of the charged offense of sexual
conduct with a minor, and found that the victim was under 12 years of age.
The court sentenced Garcia to life in prison without the possibility of release
until after he served 35 years. Garcia filed a timely notice of appeal. We


1      State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).



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                            Decision of the Court

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A) (2017).2

                               DISCUSSION

     I.       Asserted Improper Profiling

¶5           Garcia argues the superior court erred by admitting Dr.
Wendy Dutton’s expert testimony as a “blind” or “cold” expert on typical
perpetrator characteristics exhibited during the grooming, victimization,
and concealment stages of child sexual abuse. He contends Dr. Dutton’s
testimony constituted impermissible offender profiling.

¶6           Garcia did not object to Dr. Dutton’s testimony at trial, but
argues we should review for harmless error because he filed a pretrial
motion to preclude her testimony as a cold expert on the behavioral
patterns and conduct of child sexual abuse victims. We disagree.

¶7            Garcia filed a motion in limine to preclude Dr. Dutton’s
testimony under Arizona Rules of Evidence (“Rule”) 401, 403, and 702(a)-
(d).3 His motion did not argue that Dr. Dutton’s testimony might include
improper offender profiling. After an evidentiary hearing, the court ruled
Dr. Dutton would be allowed to testify on the behavioral patterns and
conduct of child sexual assault victims, concluding the testimony would be
more probative than prejudicial under Rule 403. As noted, Garcia did not
object at trial to any of the testimony that he now argues constituted
improper profiling. On cross-examination of Dr. Dutton, Garcia in fact
elicited testimony clarifying her testimony on a typical perpetrator’s
selection of victim, engagement, grooming, assault, and concealment,
apparently in an attempt to highlight distinctions between the usual
circumstances that Dr. Dutton described, and the circumstances in this case.

¶8             Because Garcia failed to object to Dr. Dutton’s testimony on
the ground he urges on appeal, we review his claim of error for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22
(2005); State v. Bolton, 182 Ariz. 290, 304 (1995) (holding that an objection on
one ground does not preserve an issue on another ground). On
fundamental error review, the defendant has the burden of proving that the

2      Absent material revision after the date of an alleged offense, we cite
a statute’s current version.

3     On appeal, Garcia does not challenge Dr. Dutton’s testimony on the
behavioral patterns and conduct of sexual abuse victims.


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court erred, that the error was fundamental in nature, and that he was
prejudiced thereby. Henderson, 210 Ariz. at 567, ¶ 20. Because we find no
error, much less fundamental error, Garcia has failed to meet his burden.

¶9             As stated above, Garcia contends that Dr. Dutton’s testimony
was impermissible offender profiling. Profile evidence is evidence that
“tends to show that a defendant possesses one or more of an informal
compilation of characteristics or an abstract of characteristics typically
displayed by persons engaged in a particular kind of activity.” State v.
Ketchner, 236 Ariz. 262, 264, ¶ 15 (2014) (citations and internal quotations
omitted). “Although there may be legitimate uses for profile evidence . . .
profile evidence may not be used as substantive proof of guilt because of
the risk that a defendant will be convicted not for what he did but for what
others are doing.” Id. at 264-65, ¶ 15 (citations and internal quotations
omitted).

¶10            In Ketchner, our supreme court held that the testimony of a
domestic violence expert on separation violence, lethality factors, and
characteristics common to domestic abusers was improper profile evidence,
because “[t]here was no reason to elicit this testimony except to invite the
jury to find that Ketchner‘s character matched that of a domestic abuser
who intended to kill or otherwise harm his partner in reaction to a loss of
control over the relationship.” 236 Ariz. at 265, ¶ 19. Although offender
profiling is not allowed, “cold” experts are allowed to testify about the
general characteristics of victims of sex offenses. State v. Salazar-Mercado,
234 Ariz. 590, 594, ¶ 15 (2014) (“expert testimony about general behavior
patterns of child sexual-abuse victims is permitted when helpful for a jury
to understand the evidence”); see also Haskie, 399 P.3d at ___, ¶ 12 (noting
that in cases involving child victims, “admission of ‘cold’ expert testimony
that educates the fact-finder about general principles without applying
those principles to the particular facts of the case” is admissible).

¶11            Whether expert testimony constitutes impermissible offender
profiling is necessarily a fact-intensive inquiry into the purpose of the
specific testimony. In general, expert testimony that focuses the jury on
whether the evidence against a defendant matches the evidence in the usual
case will constitute impermissible profile evidence. See Ketchner, 236 Ariz.
at 265, ¶ 18 (citing other jurisdictions holding it was reversible error to
admit testimony of a “cold” expert in child sexual abuse cases which tended
to focus jury’s attention upon whether evidence against defendant matched
evidence in usual case or was offered as substantive evidence of
defendant’s guilt).



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                            STATE v. GARCIA
                           Decision of the Court

¶12           “Although expert testimony about victim behavior that also
describes or refers to a perpetrator’s characteristics has the potential to be
‘profile’ evidence, it is not categorically inadmissible.         Rather, its
admissibility is determined by the rules of evidence.” Haskie, 399 P.3d at
___, ¶ 16. “Thus, evidence of offender characteristics may be admissible,
subject to a Rule 403 analysis, if it is relevant for a reason other than to
suggest that the defendant possesses some of those characteristics and
therefore may have committed the charged crimes.” Id. at ¶ 17.

¶13            In this case, Dr. Dutton identified the five stages of
victimization as victim selection, engagement, grooming, assault, and
concealment, and clarified that “the process of victimization is the child’s
reaction to the perpetrator’s behavior.” She testified that it is more common
for children to be abused by someone they know, in part because they are
warned to be afraid of strangers, and in part because greater access
provides more opportunity. This testimony and her testimony on the five
stages of victimization linked victims’ delays in reporting the abuse, their
acceptance of the abuse as normal, and their parents’ unwillingness to
accept their claims of abuse to common practices employed by offenders.
In context, Dr. Dutton’s testimony on the common practices employed by
perpetrators, such as selecting vulnerable victims, gaining their trust,
grooming them, engaging them in physical horseplay as a prelude to
assault disguised as accident, and ordering them not to tell about the assault
was designed not to profile the typical offender, but rather to explain why
abuse often continues undetected, and to explain why victims do not
immediately report the abuse. This type of testimony is permissible,
provided it is not offered as substantive evidence of the defendant’s guilt.
Cf. State v. Garcia-Quintana, 234 Ariz. 267, 270-74, ¶¶ 11-29 (2014) (holding
that expert testimony on the methods used by drug trafficking
organizations to smuggle drugs across the desert was permissible modus
operandi testimony, not impermissible drug courier profile evidence).

¶14           Moreover, Dr. Dutton’s testimony on the common methods
perpetrators employ to ensure a victim does not report the sexual abuse did
not apply in large part to the circumstances here, in which the victim
immediately reported the sexual abuse after a single occurrence. Nor did
the prosecutor use Dr. Dutton’s testimony as substantive evidence of
Garcia’s guilt. In opening statement, the prosecutor only briefly mentioned
that the jury was “going to hear from an expert who deals with the
victimization process in child sex abuse cases.” In closing argument, the
prosecutor did not compare the conduct of a typical perpetrator to Garcia’s
conduct. Rather, the prosecutor briefly described each of the five stages of
victimization, and told the jury that it could give this testimony whatever


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                            STATE v. GARCIA
                           Decision of the Court

weight it concluded it deserved. The only argument the prosecutor made
in rebuttal closing argument with respect to Dr. Dutton’s testimony was in
response to defense counsel’s argument that there was no evidence of
grooming in this case. Even then, the prosecutor simply argued that
Garcia’s conduct in frequently giving the victim money, and his question
as to what the word “d—k” meant immediately before pulling her pants
down, was evidence of grooming. Finally, as instructed by our supreme
court, see Haskie, 399 P.3d at ___, ¶ 26, the court gave the jury a limiting
instruction explaining the narrow purpose and scope of Dr. Dutton’s
testimony.

¶15          On this record, Dr. Dutton’s testimony did not constitute
impermissible offender profiling, and accordingly, the court did not err,
much less fundamentally err to Garcia’s prejudice, in admitting it.

    II.       Evidence of the Victim’s Truthful Character

¶16           Garcia argues that the court fundamentally erred in allowing
four of the victim’s family members to testify as to her character for
truthfulness in the absence of a direct attack on her truthfulness.

¶17           As Garcia acknowledges, because he did not object to any of
this testimony at trial, we review for fundamental error only. Henderson,
210 Ariz. at 568, ¶ 22. On fundamental error review, the defendant has the
burden of proving that the court erred, that the error was fundamental in
nature, and that he was prejudiced thereby. Id. at 567, ¶ 20.

¶18           Garcia has failed to meet his burden. Opinion evidence of a
witness’s truthful character “is admissible only after the witness’s character
for truthfulness has been attacked.” Ariz. R. Evid. 608(a). Garcia, however,
attacked the victim’s character for truthfulness in his opening statement:

       What the State does not tell you in their opening is that the
       alleged victim, the accuser, admitted that she made parts of
       the story up. The accuser changed her story. And that will
       come out at trial.

                                    ***

       And if Ms. Dutton says, well, sometimes, you know, a nine
       year old might say one thing and then change the story – but
       don’t worry, she’s not lying. Well, sometimes they are.
       Sometimes they are.



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                            STATE v. GARCIA
                           Decision of the Court

       And drawing the connection just between an expert who
       knows nothing about this case and trying to smooth over or
       fill in the gaps where there were lies or where there was a
       change in story or where that was an admission that, I made
       some things up, don’t let it fill that gap. Think about it
       critically. Keep the open mind, and I look forward to closing
       argument.

       Thank you.

¶19           Further, although defense counsel did not directly attack the
victim’s truthfulness when she was on the witness stand, he indirectly
attacked her version of events by eliciting testimony that she met with the
prosecutor three times before trial, and had talked about the case
beforehand with the prosecutor, the detective, the victim-witness advocate,
and her mother.

¶20             On direct examination of the next witness, one of the victim’s
uncles, the prosecutor elicited testimony that the victim told “little lies,”
“just little kid stuff,” but no more than any other of the children staying at
the house. On cross-examination, defense counsel prompted an additional
admission from this witness that he had told the police officer who
interviewed him after the incident that the victim “likes to lie a lot.” The
prosecutor subsequently elicited testimony from three additional relatives
that the victim had told “little kid lies” before, but not any more than other
children had told, and she had not ever lied to them about something big.

¶21           The testimony was not improper, because an attack on a
witness’s character for truthfulness in opening statement by itself may be a
sufficient prerequisite to introduce evidence of truthfulness under Rule
608(a). See United States v. Jones, 763 F.2d 518, 522 (2d Cir. 1985); Ariz. R.
Evid. 608(a), Comment to 2012 Amendment (amended to conform to
Federal Rule of Evidence 608); Salazar-Mercado, 234 Ariz. at 592-93, ¶ 7
(application by federal courts of rules of evidence amended to conform to
the federal rules sheds light on the meaning of the Arizona rules).
Moreover, there is no doubt that the uncle’s testimony on cross-
examination about the victim’s “lies” was a direct attack on the victim’s
truthfulness, which rendered the testimony of the other relatives admissible
under Rule 608(a). To the extent that the prosecutor’s question on direct
examination of the uncle about the victim’s truthfulness was premature, it
was not fundamental, prejudicial error.




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                         STATE v. GARCIA
                        Decision of the Court

                           CONCLUSION

¶22         For the foregoing reasons, we affirm Garcia’s conviction and
sentence.




                       AMY M. WOOD • Clerk of the Court
                        FILED: AA




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