State v. Figueroa

Decision Date14 May 2015
Docket NumberNo. 2 CA-CR 2014-0128,2 CA-CR 2014-0128
PartiesTHE STATE OF ARIZONA, Appellee, v. MARIO ORDONO FIGUEROA, Appellant.
CourtArizona Court of Appeals

THE STATE OF ARIZONA, Appellee,
v.
MARIO ORDONO FIGUEROA, Appellant.

No. 2 CA-CR 2014-0128

ARIZONA COURT OF APPEALS DIVISION TWO

May 14, 2015


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz.
R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pima County
No.
CR20123572001
The Honorable Richard D. Nichols, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Richard C. Bock, Tucson
Counsel for Appellant

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MEMORANDUM DECISION

Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.

KELLY, Presiding Judge:

¶1 Mario Figueroa appeals from his convictions and sentences for attempted molestation of a child and sexual abuse of a minor under the age of fifteen. He argues the trial court erred by denying his motions to preclude evidence, for mistrial, and for a directed verdict. He further contends that the court erred by refusing to instruct the jury regarding a lesser-included offense and that prosecutorial misconduct violated his right to a fair trial. For the following reasons, we affirm Figueroa's convictions and sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Figueroa's convictions and sentences. See State v. Welch, 236 Ariz. 308, ¶ 2, 340 P.3d 387, 389 (App. 2014). In September 2012, fourteen-year-old A.H. stopped at Figueroa's ice cream truck while walking home from school with her friend T.B. Figueroa had operated the truck in A.H.'s neighborhood for many years and often talked to A.H. about her personal life. A.H. told Figueroa—whom she called "Uncle Mario"—that she was in trouble with her parents over a large cellular telephone bill and "needed to find a job." Figueroa told A.H. she could work at his ice cream truck on weekends to earn money.

¶3 Over the next two weeks, A.H. twice stopped at Figueroa's truck when she was walking home with T.B. The first time, Figueroa slipped $100 into her jacket sleeve, saying they would "work it out later" but A.H. should "not tell people because they might get the wrong impression." A.H. told her stepfather she "had babysat and pulled weeds around the corner with [T.B.]" to earn the money. The following week, Figueroa slipped an additional $200

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into A.H.'s jacket sleeve when she was walking past his truck. He told A.H. they would "meet the next day and discuss . . . what [A.H.] was going to do to pay him back for the money that he had given [her]."

¶4 Early the next morning, A.H. met Figueroa in a parking lot and got into his truck; he drove to a hardware store and parked in the back. After telling A.H. "that it was going to be okay," Figueroa kissed her on the cheek, lips, neck, and chest with his mouth and tongue and kissed and licked her breast. He also squeezed A.H.'s breast "really hard" and grabbed her inner thigh "really close to [her] crotch area" in a "moving motion" while "nibbling on [her] neck."

¶5 Figueroa then "started to play with [her] button which was under [her] belt," trying to unbutton her pants. He repeatedly asked A.H. to kiss him and asked her "why [she] didn't wear shorts that day." When A.H. told Figueroa school was starting in a few minutes, he stopped and took her to school.

¶6 As soon as she arrived at school, A.H. told T.B. what had happened in Figueroa's truck. Then, before her first class, A.H. "patted" her face and chest area with a tissue and water. Shortly thereafter, T.B. told the school principal what A.H. had told her. A.H. was called to the principal's office, where she spoke with the school counselor and a law enforcement officer. The officer then took A.H. to the Child Advocacy Center for a forensic interview. Further investigation matched Figueroa's DNA1 with DNA found on A.H.'s left breast.

¶7 Figueroa was charged with sexual abuse of a minor under fifteen and attempted molestation of a child, both dangerous crimes against children. He was convicted on both counts and placed on concurrent ten-year terms of probation. Figueroa timely appealed.

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Admission of Expert Testimony

¶8 Figueroa argues that his convictions should be reversed because the trial court improperly allowed the state to introduce profile evidence of child sexual abusers through a "cold" expert witness. Such evidence, he claims, "is not admissible for determining guilt" and was "inherently prejudicial." We review a trial court's admission of expert testimony for an abuse of discretion. State v. Boyston, 231 Ariz. 539, ¶ 14, 298 P.3d 887, 892 (2013).

¶9 Before trial, Figueroa filed a motion in limine to preclude the state from calling Dr. Wendy Dutton, a forensic interviewer, as an expert on general principles pertaining to child sexual abuse victims and forensic interviewing. Dutton was to testify as a "cold" or "blind" expert, meaning she had no knowledge about the victim in this case and would offer no opinions specific to the case. See State v. Salazar-Mercado, 234 Ariz. 590, ¶ 1, 325 P.3d 996, 997 (2014). Figueroa asserted that "typical behavior and characteristics of sex offenders constitutes profile evidence that is generally inadmissible to prove [a defendant's] guilt." The trial court, noting that "the Court of Appeals has repeatedly affirmed cases in which Wendy Dutton has testified and has generally approved of her testimony as an expert witness who is not familiar with the facts of the case," denied Figueroa's motion.

¶10 At trial, Dutton stated that as a forensic interviewer, her job was to conduct "investigative or fact-finding interviews of alleged child victims of abuse or children who have witnessed other types of crimes." She explained that her testimony was intended to educate the jurors "about the general characteristics of child sexual abuse victims and the issues related to forensic interviewing." Dutton then testified about the process of victimization, how a child may disclose sexual abuse, a child's emotional response to abuse, and common characteristics of child sexual abuse victims.

¶11 With respect to the process of victimization, Dutton stated that it is "not uncommon for children to report that perpetrators will do things or say things to gain their trust or make them feel special like giving gifts or offering money." Figueroa's objection to this testimony was overruled. After the close of

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evidence, Figueroa moved for a mistrial based on Dutton's testimony, claiming she was "profiling the case." The court concluded Dutton's testimony was "sufficiently generic to be admissible" and denied the motion.

¶12 On appeal, Figueroa maintains the trial court erred by allowing the state to introduce Dutton's testimony. He claims that "[t]estimony describing the behavioral patterns of sex offenders invites the faulty assumption or inference of guilt based on characteristics that are not probative of the defendant's actual guilt or innocence." He insists Dutton's testimony "was designed to and did impermissibly match evidence against [Figueroa] with the profile" established by her testimony. Figueroa argues that Dutton's testimony "was inadmissible and deprived [him] of a fair trial."

¶13 Rule 702, Ariz. R. Evid., which governs the admissibility of expert witness testimony, "does not bar 'cold' experts from offering general, educative testimony to help the trier of fact understand evidence or resolve fact issues." Salazar-Mercado, 234 Ariz. 590, ¶ 6, 325 P.3d at 998. "When the facts of the case raise questions of credibility or accuracy that might not be explained by experiences common to jurors—like the reactions of child victims of sexual abuse—expert testimony on the general behavioral characteristics of such victims should be admitted." State v. Lujan, 192 Ariz. 448, ¶ 12, 967 P.2d 123, 127 (1998); see also State v. Tucker, 165 Ariz. 340, 346, 798 P.2d 1349, 1355 (App. 1990) ("[A]n expert witness may testify about the general characteristics and behavior of sex offenders and victims if the information imparted is not likely to be within the knowledge of most lay persons" so long as expert does not "quantify nor express an opinion about the veracity of a particular witness or type of witness.").

¶14 When determining whether to admit such evidence, a trial court nonetheless may "conclude that proffered expert testimony . . . should be excluded under Rule 403." Salazar-Mercado, 234 Ariz. 590, ¶ 20, 325 P.3d at 1001. Rule 403, Ariz. R. Evid., states that evidence may be excluded if its "probative value is substantially outweighed by a danger of . . . unfair prejudice."

Page 6

¶15 Figueroa does not challenge the admissibility of Dutton's testimony under Rule 702. Instead, he maintains that Dutton's testimony was inherently prejudicial because it risked the jury finding him guilty based on the conduct and common characteristics of other criminal defendants. In support of his argument, Figueroa relies in part on State v. Lee, 191 Ariz. 542, 959 P.2d 799 (1998), where our supreme court reversed a conviction for possession and transportation of marijuana because drug courier profile evidence had been used to prove the defendant knew he was transporting marijuana. The court criticized the assumption that "because someone shares characteristics—many of them innocent and commonplace—with a certain type of offender, that individual must also possess the same criminal culpability." Id. ¶ 14. The court concluded the profile evidence should not have been admitted because its only purpose was "to suggest that because the accuseds' behavior was consistent with that of known drug couriers, they likewise must have been couriers." Id. ¶ 18. The court stated the evidence had permeated the trial and the jurors had been encouraged "to mentally compare the defendant's actions with the profile being discussed." Id...

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