                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                   MICHAEL ANTHONY FAVELA,
                          Appellant.

                     No. 2 CA-CR 2013-0440
                       Filed April 8, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20123420001
            The Honorable Jane L. Eikleberry, Judge

                          AFFIRMED


                           COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Simpson, Assistant Attorney General, Phoenix
Counsel for Appellee

Nicole Farnum, Phoenix
Counsel for Appellant


                           OPINION

Chief Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.
                        STATE v. FAVELA
                        Opinion of the Court


H O W A R D, Chief Judge:

¶1           After a jury trial, Michael Favela was convicted of
aggravated robbery and kidnapping. On appeal, he argues the court
erred in admitting expert testimony about a palm print found at the
scene of the crime. For the following reasons, we affirm Favela’s
convictions and sentences.

                Factual and Procedural Background

¶2            We view the facts in the light most favorable to
upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3,
150 P.3d 252, 253 (App. 2007). After Favela and an accomplice
entered L.F.’s apartment, they demanded to know where he kept
drugs and money, restrained him, hit him in the face, and choked
him. When Favela and his accomplice realized they could not find
what they were looking for, they locked L.F. in his bedroom and
threatened to shoot him if he tried to leave. They then left with
L.F.’s television, car keys, jewelry, and wallet. When police arrived
later, they searched for DNA1 or fingerprint evidence. They did not
find any usable DNA evidence but did find a “latent” palm print on
the front door. The police later determined that the palm print
matched Favela’s hand.

¶3          Favela was charged and convicted as noted above and
was sentenced to concurrent terms of imprisonment, the longest of
which was 15.75 years. We have jurisdiction over his appeal
pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

           Admissibility of Latent Palm Print Evidence

¶4           Favela argues the trial court erred in admitting expert
testimony about the latent palm print the police found at the scene
because it did not comply with the requirements of Rule 702, Ariz.
R. Evid. We review a trial court’s ruling to admit expert testimony
for an abuse of discretion. State v. Boyston, 231 Ariz. 539, ¶ 14, 298
P.3d 887, 892 (2013).

      1Deoxyribonucleic   acid.


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                        STATE v. FAVELA
                        Opinion of the Court

¶5          Rule 702 allows an expert to provide opinion testimony
if:

            (a)    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;
            (b)    the testimony is based on sufficient
            facts or data;
            (c)    the testimony is the product of
            reliable principles and methods; and
            (d)    the expert has reliably applied the
            principles and methods to the facts of the
            case.

The recent change of the rule in 2012 reflects a shift in Arizona to
adopting the federal standard of admissibility of expert testimony
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). See State v. Perez, 233 Ariz. 38, ¶¶ 15-16, 308 P.3d 1189, 1193
(App. 2013). Before the rule changed in 2012, the admissibility of
qualified expert testimony on fingerprint evidence had been settled
since 1921. See Moon v. State, 22 Ariz. 418, 423-24, 198 P. 288, 290
(1921). In Moon, our supreme court stated that “‘[s]cientific
authority declares that finger prints are reliable as a means of
identification,’” concluded evidence of matching fingerprints was
admissible, but ultimately left the “weight and value of such
testimony” to the jury. Id. at 423-24, 198 P. at 290, quoting People v.
Sallow, 165 N.Y.S. 915, 918 (Crim. Ct. 1917). Since that time, it does
not appear that the general reliability of expert testimony about
fingerprint evidence has been seriously questioned in this state, nor
has Favela directed us to any authority to that effect. To the
contrary, our supreme court has sustained convictions based solely
on expert testimony about fingerprint or palm print evidence
because the evidence is sufficiently reliable. See, e.g., State v.
Rodriguez, 192 Ariz. 58, ¶¶ 11-13 & n.4, 961 P.2d 1006, 1008-09 & n.4
(1998) (“At trial, uncontroverted expert testimony established that
palm prints are identical to fingerprints with respect to their power
to match and identify members of the population.”).




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                         STATE v. FAVELA
                         Opinion of the Court

¶6            Because our new standard of admissibility is based on
federal law, we look to federal authority for guidance on whether
Daubert has changed the landscape on the admissibility of expert
testimony regarding latent fingerprint or palm print evidence. See
Perez, 233 Ariz. 38, ¶ 17, 308 P.3d at 1194; Ariz. R. Evid. Prefatory
Comment to 2012 Amendments (“Where the language of an Arizona
rule parallels that of a federal rule, federal court decisions
interpreting the federal rule are persuasive but not binding with
respect to interpreting the Arizona rule.”). The overwhelming
consensus from federal jurisdictions is that, even when considered
“[i]n terms of specific Daubert factors, the reliability of the technique
has been tested in the adversarial system for over a century and has
been routinely subject to peer review,” and that “absent novel
challenges, [expert testimony regarding] fingerprint evidence is
sufficiently reliable to satisfy Rule 702 and Daubert.” United States v.
John, 597 F.3d 263, 274-75 (5th Cir. 2010); see also United States v.
Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005) (holding that expert
testimony regarding fingerprint evidence satisfies Daubert); United
States v. Crisp, 324 F.3d 261, 267-70 (4th Cir. 2003) (expert testimony
on palm prints satisfies Daubert and equating palm print and
fingerprint analysis); United States v. Collins, 340 F.3d 672, 682-83 (8th
Cir. 2003) (expert testimony on fingerprint evidence satisfies
Daubert); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001)
(same); United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996)
(same).

¶7           Favela has presented no novel challenge or argument to
suggest a change in fingerprint technology or circumstance between
Moon and this case would justify a change in Arizona’s rule because
of the shift to the Daubert standard. 2 Accordingly, our supreme
court’s conclusion in Moon about fingerprint evidence still applies:
given the proper foundation, expert testimony on matching
fingerprint evidence is admissible because it is reliable. Moon, 22


      2Favela    does not argue that there is a distinction between the
reliability of fingerprint and palm print evidence, and both Arizona
and federal case law have equated the two. See Rodriguez, 192 Ariz.
58, ¶ 11 & n.4, 961 P.2d at 1008 & n.4; Crisp, 324 F.3d at 265, 267-70.


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                        STATE v. FAVELA
                        Opinion of the Court

Ariz. at 423-24, 198 P. at 290; see also John, 597 F.3d at 274-75;
Rodriguez, 192 Ariz. 58, ¶ 11 & n.4, 961 P.2d at 1008 & n.4. That
conclusion renders the testimony admissible under Daubert. We will
therefore continue to apply the longstanding Arizona rule that
expert testimony regarding fingerprint evidence is admissible.
Moon, 22 Ariz. at 423-24, 198 P. at 290.

¶8            Favela complains however that the state “never
established that the [holistic] method that the latent print examiner
used in [Favela’s] case is generally accepted in the scientific
community” and that she did not “look[] for a minimum number of
Galton points that matched.” First, the rigid “general acceptance”
standard for the admissibility of expert testimony, as a necessary
prerequisite to admissibility, was explicitly rejected by Daubert
because it was “at odds with the ‘liberal thrust’ of the Federal Rules
and their ‘general approach of relaxing the traditional barriers to
opinion testimony.’” 509 U.S. at 588-89, quoting Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 169 (1988). Instead, the Court “set out a
number of non-exclusive factors for determining whether scientific
evidence is admissible, including whether the scientific
methodology has been tested and subjected to peer review, the
‘known or potential rate of error,’ and whether the methodology has
‘general acceptance.’” Ariz. State Hosp./Ariz. Cmty. Prot. & Treatment
Ctr. v. Klein, 231 Ariz. 467, ¶ 27, 296 P.3d 1003, 1009 (App. 2013),
quoting Daubert, 509 U.S. at 593-94.

¶9           The examiner testified the current best practice, based
on her experience, training, and certification with the International
Association for Identification, is to look at the entire print rather
than to focus exclusively on individual points. She stated that points
of a print are a “very small piece of the puzzle,” and that to reach a
conclusion an examiner must look at those points in the context of
the entire print, including three different levels of detail and the
quality of the latent print. She also testified that a second examiner
was required to review her finding before she reported it, and that
the second examiner agreed with her conclusion. And she testified
that the error rate for false positives was “0.1 percent.” This
testimony was sufficient, for purposes of Rule 702(c), for the trial
court to find that “the testimony [was] the product of reliable


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                        STATE v. FAVELA
                        Opinion of the Court

principles and methods.” If Favela wished to present a competing
viewpoint on print analysis, he could have done so.

¶10          Favela also appears to argue that the expert’s testimony
here implied that the match she found “meant a 100% match” and
its admission misled the jury. Although unclear, we presume this
argument is rooted in Rule 702(d), regarding the reliable application
of the methods to the facts of the case. Whatever problems might
exist with actual testimony of a “certain” match, the expert here
made no such claim. Instead, she testified—in response to questions
from the jury—that mistakes are possible, including false positive
matches which she conceded had been made in past cases, and that
“whenever you have people involved in a process” there is a chance
of error. The jury was free to weigh this testimony against the
expert’s claim that she had found a match. See Moon, 22 Ariz. at 423,
198 P. at 290.

¶11           Favela finally argues the trial court should have held a
hearing “[b]efore admitting the testimony” in order for the state to
establish the method used “actually met the scientific basis required
by the evidentiary standards of Rule 702 and Daubert.” But as we
recently stated, “the trial court has broad discretion to determine the
reliability of evidence and need not conduct a hearing to make a
Daubert decision.” Perez, 233 Ariz. 38, ¶ 19, 308 P.3d at 1194; accord
John, 597 F.3d at 274-75 (absent novel challenge, trial court need not
conduct Daubert hearing on fingerprint evidence).

¶12           Furthermore, despite criticism of the lack of scientific
rigor that underlies fingerprint matching, “errors in fingerprint
matching by expert examiners appear to be very rare. Of the first
194 prisoners in the United States exonerated by DNA evidence,
none had been convicted on the basis of erroneous fingerprint
matches, whereas 75 percent had been convicted on the basis of
mistaken eyewitness identification.” United States v. Herrera, 704
F.3d 480, 487 (7th Cir. 2013). Thus, Favela’s attack on the scientific
validity of fingerprint examination did not reasonably draw into
question the reliability of the method’s results. Accordingly, the
trial court did not abuse its discretion in declining to hold a Daubert
hearing.



                                  6
                     STATE v. FAVELA
                     Opinion of the Court

                         Disposition

¶13         For the foregoing reasons, Favela’s convictions and
sentences are affirmed.




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