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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND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

                  JULIO CESAR GARCIA-MEZA, Appellant.

                              No. 1 CA-CR 13-0672
                                FILED 3-5-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR2012-007431-001
                 The Honorable Teresa A. Sanders, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

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



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined.


T H O M P S O N, Judge:

¶1             Defendant Julio Cesar Garcia-Meza appeals from his
convictions and sentences for twenty-five sex offenses committed against a
minor victim. He argues the court fundamentally erred in permitting the
state’s expert to testify generally about child victims’ different reactions to
sexual abuse. Defendant also asserts the form of verdict for count 5
improperly reflected a crime for which he was not charged. Defendant
further contends the court abused its discretion in giving the jury access to
transcripts of his police interview and his confrontation call with the victim.
Finally, defendant argues the court should have granted his motion for
judgment of acquittal regarding the charge of furnishing obscene or
harmful items to minors. For the following reasons, we affirm defendant’s
convictions and sentences.

                              BACKGROUND

¶2            By an indictment filed June 21, 2012, the grand jury charged
defendant with twenty-five sex-related offenses committed over
approximately ten years beginning when the victim was six years old. Five
of the charges were for molestation of a child, a class two felony and
dangerous crime against children, and four of the charges were for sexual
abuse, a class three felony and dangerous crime against children. See Ariz.
Rev. Stat. (A.R.S.) §§ 13-1404 (2010) (sexual abuse), -1410
(2010)(molestation).

¶3           At the time of the alleged crimes, defendant’s wife, the
victim’s nanny, lived with the victim’s family. When defendant and his
wife were first married, he would visit the victim and her family, and
beginning when the victim was eight or nine years old, defendant spent
every weeknight at the victim’s home.

¶4           At some point after December 7, 2012 but before trial, the
indictment was amended to renumber certain charges, including two that
related to another minor victim. The amended indictment’s caption also



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                        STATE v. GARCIA-MEZA
                          Decision of the Court

changed the allegation of count 5 from sexual abuse to molestation of a
child. The statutory violation and factual description of the allegation,
however, remained unchanged:

      COUNT 5:

      JULIO CESAR GARCIA-MEZA, on or between the 19th day
      of June, 2002 and the 19th day of June, 2005, intentionally or
      knowingly engaged in any direct or indirect touching,
      fondling, or manipulating of any part of the female breast of
      [the victim], a minor under fifteen years of age, (to-wit: same
      incident as Count 4) in violation of A.R.S. §§ 13-1404, 13-1401,
      13-3821, 31-281, 13-604.01, 13-702, 13-702.01, and 13-801.1

The record is silent as to both the rationale for amending the count and
precisely when the amendment occurred.

¶5            On the first day of trial, the state moved to dismiss the two
allegations regarding the other victim. Defendant consented to the
dismissal, and the indictment was amended accordingly. The date range
for count 5 was also changed from “on or between the 19th day of June,
2002 and the 19th day of June, 2005” to “on or between the 19th day of June,
2002 and the 19th day of June, 2004” but otherwise remained unchanged
from its previous amendment. As reflected in the clerk’s reading of the
second amended indictment to the jury, count 5 cited to and tracked the
language of A.R.S. § 13-1404, the sex abuse statute, while referring to
molestation of a child in the caption. Defendant was tried on six counts of
molestation of a child and three counts of sexual abuse in addition to the
remaining counts.

¶6            Wendy Dutton, a forensic interviewer at Phoenix Children’s
Hospital, testified on behalf of the state regarding research of child sexual
abuse and her experience working in the field. Knowing nothing about the
circumstances of this case, Dutton provided expert testimony explaining
such topics as the behavior patterns of child victims’ and their diverse
reactions to sexual abuse.

¶7            The state also introduced into evidence translated transcripts
of defendant’s police interview and a confrontation call between defendant
and the victim (transcripts). Over defendant’s objection, the court admitted

1  Count 4 remained unchanged and alleged molestation that occurred at
the victim’s home between June 19, 2002 and June 19, 2004.



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                            STATE v. GARCIA-MEZA
                              Decision of the Court

the transcripts into evidence. A prosecutor read them aloud to the jury, and
the court allowed the jury to have access to the exhibits during
deliberations.2

¶8            Based on the evidence presented, including the victim’s
testimony, the court denied defendant’s motion for judgment of acquittal.
See Ariz. R. Crim. P. 20. Thereafter, the jury found defendant guilty on all
counts. With respect to Count 5, the jury found defendant guilty of
molestation of a child as reflected in the verdict form. The court imposed
presumptive consecutive sentences, including three life terms. Defendant
timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
(20003), 13-4031 (2010), and -4033(A) (2010).

                                  DISCUSSION

I.       Dutton’s Testimony

¶9            Defendant argues the court committed fundamental error in
permitting Dutton to testify.          Specifically, defendant contends the
testimony was unhelpful to the jury because Dutton stated that not all
minor victims respond to sexual abuse in the same manner, and there are
“no certainties . . . about this type of situation.”3

¶10           To obtain relief under fundamental error review, defendant
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).

¶11             Arizona Rule of Evidence 702(a) 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[.]


2        A recording of the confrontation call was also played for the jury at
trial.

3      Defendant does not challenge Dutton’s qualifications as an expert in
child sex abuse.


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                         STATE v. GARCIA-MEZA
                           Decision of the Court

¶12           Here, as noted, Dutton did not have any knowledge
regarding the victim or as to the circumstances of the allegations against
defendant. Defendant is correct that Dutton testified that almost any
behavior could be consistent with being a child sexual abuse victim, but this
assertion explains why such testimony was relevant. The victim’s
credibility here was a key issue at trial, and the state offered Dutton’s
testimony to dispel common misconceptions that child sexual abuse victims
will always act or respond to abuse in the same manner.

¶13           For example, Dutton testified that child victims may have
difficulty recalling specific details of abuse incidents if they dissociate
themselves from the sexual acts as the abuse is occurring. Dutton also
explained that child victims may experience learned helplessness causing
them to not “recognize avenues of escape,” and they may delay disclosing
the abuse out of fear the “family will fall apart” or the perpetrator “will be
put in jail.” The victim testified “it’s kind of hard to pinpoint [specific
instances of abuse].” Also, the victim testified that she did not begin
disclosing the ongoing abuse until she was sixteen years old because she
“felt trapped” and wanted to protect defendant and his wife, both of whom
she considered to be members of the family.

¶14           Therefore, Dutton’s opinions were properly admitted to help
the jury understand the victim’s testimony and evaluate her credibility.
Accordingly, Dutton’s expert testimony satisfied Rule 702(a), and no error,
fundamental or otherwise, occurred. 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 delayed and inconsistent reporting”).

II.    Conviction on Count 5

¶15            Defendant contends he was improperly convicted for
molestation on count 5 because the second amended indictment’s narrative
factual statement describes that count as sexual abuse, not molestation of a
child. See A.R.S. § 13-1404(A) (“A person commits sexual abuse by
intentionally or knowingly engaging in sexual contact . . . with any person
who is under fifteen years of age if the sexual contact involves only the
female breast.”); compare A.R.S. § 13-1410 (“A person commits molestation
of a child by intentionally or knowingly engaging in or causing a person to
engage in sexual contact, except sexual contact with the female breast, with
a child who is under fifteen years of age.”). In response, the state argues
the conviction was proper because the amended indictments list count 5 as
molestation of a child in the captions, defendant and counsel were aware of


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                         STATE v. GARCIA-MEZA
                           Decision of the Court

the amended charge, and defendant consented to the amendment. Further,
the state argues defendant is precluded from challenging the amended
indictment on appeal because he did not raise the issue in superior court as
required by Arizona Rule of Criminal Procedure 13.5 (Rule 13.5).
Defendant did not object to the amendment, thus we review for
fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; compare
State v. Freeney, 223 Ariz. 110, 115-16, ¶ 31, 219 P.3d 1039, 1044-45 (2009)
(holding harmless error review applies when defendant objects to
amendments to an indictment).

¶16           Rule 13.5 provides, in relevant part:

              b. Altering the Charges; Amendment to
              Conform to the Evidence. The preliminary
              hearing or grand jury indictment limits the trial
              to the specific charge or charges stated in the
              magistrate’s order or grand jury indictment.
              The charge may be amended only to correct
              mistakes of fact or remedy formal or technical
              defects, unless the defendant consents to the
              amendment. The charging document shall be
              deemed to conform to the evidence adduced at
              the court proceeding.

              ...

              e. Defects in Charging Document. No issue
              concerning a defect in the charging document
              shall be raised other than by a motion filed
              pursuant to Rule 16.

(Emphasis added). Defendant failed to object to the amendment pursuant
to Rules 13.5(e) and Rule 16, but furthermore, Rule 13.5 allowed the trial to
proceed on the molestation charge based on the agreement of the parties,
including defendant. During a discussion about the verdict forms, the
following exchange took place between the judge and the attorneys:

              THE COURT: Count 5 is a Child Molest. We
              don’t have to make any special findings
              regarding that.

              [THE PROSECUTOR]:           Count 5 is Sexual
              Abuse.



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                         STATE v. GARCIA-MEZA
                           Decision of the Court

              THE COURT: I have got [count] 5 as Child
              Molestation.

              [DEFENSE ATTORNEY]:              On the newer
              indictment.

Because defendant consented to the amendment and the jurors were
correctly instructed on the elements of molestation, we find no error,
fundamental or otherwise.

III.   Jury’s Access to Transcripts

¶17           Defendant argues the court abused its discretion by allowing
the jury access to the transcripts during deliberations because the
transcripts were read to the jury at trial. He further asserts the court should
have admonished the jury not to place undue emphasis on this evidence.
We disagree.

¶18           Defendant cites no authority for the proposition that a court
should be prohibited from admitting into evidence, and allowing a jury to
consider, exhibits of recorded statements made outside of trial. Instead, he
relies on an Arizona case that prohibits recordings of trial testimony from
being available to the jury during deliberations. See State v. Jovenal, 117
Ariz. 441, 444, 573 P.2d 515, 518 (App. 1977) (holding submission to jury of
trial testimony transcript violates Ariz. R. Crim. P. 22.3).

¶19           Subject to the trial court’s discretion, jurors are required to
take with them to deliberations tangible evidence admitted at trial. Ariz. R.
Crim. P. 22.2(d). State v. Ferreira, 152 Ariz. 289, 294, 731 P.2d 1233,
1238 (App. 1986) (“If the jurors are to accomplish their function of
evaluating evidence properly admitted they ought not be prohibited from
scrutinizing exhibits, even if their inquiry is more critical than that
conducted in open court. So long as the inquiry does not differ in character
from that made when the evidence was offered, the jury’s examination does
not subject defendant to any risks of inculpation against which he has not
already had opportunity to protect himself.”) (citation omitted); State v.
Snowden, 138 Ariz. 402, 404-05, 675 P.2d 289, 291-92 (App. 1983) (“The trial
judge is given the discretion to determine which exhibits shall go with the
jury for good reasons. The judge has seen and heard the witnesses and is
familiar with all the exhibits. In such instances, we will not substitute our
judgment for that of the trial court since the decision involves consideration
of all these matters.”) (citation omitted).




                                      7
                         STATE v. GARCIA-MEZA
                           Decision of the Court

¶20            Applying this rule, Arizona courts have repeatedly upheld
the right of deliberating jurors to review videotapes, audiotapes, and
transcripts of recordings admitted into evidence. See State v. Lichon, 163
Ariz. 186, 193, 786 P.2d 1037, 1044 (App. 1989) (videotapes); Snowden, 138
Ariz. at 404, 675 P.2d at 291 (audiotape); State v. Kennedy, 122 Ariz. 22, 27,
592 P.2d 1288, 1293 (App. 1979) (transcripts of taped confession). Because
defendant made inculpatory statements during the police interview and the
confrontation call, the transcripts were properly admitted into evidence as
an admission by a party-opponent. See Ariz. R. Evid. 801(d)(2).
Accordingly, the trial court did not abuse its discretion in allowing the
transcripts go to the deliberating jurors. Snowden, 138 Ariz. at 404-05, 675
P.2d at 291-92.

¶21            We do not address whether the court reversibly erred in
failing to admonish the jury regarding the appropriate weight to afford the
transcripts. Defendant did not request such an instruction, and he does not
argue the court committed fundamental error. See Ariz. R. Crim. P. 21.3(c)
(“No party may assign as error on appeal the court’s . . . failing to give any
instruction . . . unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the party objects
and the grounds of his or her objection.”); See State v. Moreno-Medrano, 218
Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008) (declining to review
for fundamental error when appellant failed to raise claim in trial court and
failed on appeal to address whether alleged error was fundamental).

IV.    Rule 20 Motion

¶22           Defendant argues the court erred in denying his Rule 20
motion on the charge for furnishing harmful items to minors because the
state presented no evidence of harmfulness. We review de novo a trial
court’s denial of a Rule 20 motion. State v. Bible, 175 Ariz. 549, 595, 858 P.2d
1152, 1198 (1993).

¶23            A motion for judgment of acquittal must be granted when
“there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P.
20(a). “‘Substantial evidence’ is evidence that reasonable persons could
accept as adequate and sufficient to support a conclusion of defendant’s
guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419, 610 P.2d
51, 53 (1980). We will not reverse the superior court’s denial of a motion for
a judgment of acquittal or a jury’s guilty verdict unless there is a complete
absence of probative facts supporting the defendant’s conviction. State v.
Johnson, 215 Ariz. 28, 29, ¶ 2, 156 P.3d 445, 446 (App. 2007); State v. Miles,
211 Ariz. 475, 481, ¶ 23, 123 P.3d 669, 675 (App. 2005).


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                         STATE v. GARCIA-MEZA
                           Decision of the Court

¶24             The offense of furnishing harmful items to minors prohibits
“any person, with knowledge of the character of the item involved, to . . .
show . . . to minors any item that is harmful to minors.” A.R.S. § 13–3506
(2010). “Harmful to minors” is defined to include items that appeal to the
prurient interest in a patently offensive way without having any serious
literary, artistic, political or scientific value for minors and includes
depictions of sexual activity or conduct. A.R.S. § 13–3501 (2010). “Finding
an item to be harmful to minors calls for a particular examination applying
the standard of an ‘average adult’ regarding what is appropriate for minors.
It is not the same as finding an item to be ‘obscene’ and entirely undeserving
of the protection of the First Amendment.” State v. Grainge, 186 Ariz. 55, 59,
918 P.2d 1073, 1077 (App. 1996). In making this determination, the fact
finder applies “contemporary state standards with respect to what is
suitable for minors.” State v. Hummer, 184 Ariz. 603, 607, 911 P.2d 609, 613
(App. 1995) (citing A.R.S. § 13–3501(1)(a)).

¶25            Here, the victim testified defendant showed her a video
depicting “a man sitting there and the girl kneeling in front of him giving
oral sex to his penis.” Defendant admitted in his police interview that he
showed the victim a pornographic video before throwing the video away.
A reasonable juror could conclude from this testimony that the video
defendant showed to the victim was inappropriate for children. Thus, the
evidence was sufficient to withstand defendant’s Rule 20 motion. See
Grainge, 186 Ariz. at 59, 918 P.2d at 1077. And, contrary to defendant’s
assertion, the video’s unavailability at trial does not change this result. See
id.

                              CONCLUSION

¶26           Defendant’s convictions and sentences are affirmed.




                                  :ama




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