State v. Starks

• Decision Date: 27 May 2021
• Docket Number: No. 2 CA-CR 2019-0288,2 CA-CR 2019-0288
• Court: Arizona Court of Appeals
• Parties: The STATE of Arizona, Appellee, v. Gary E. STARKS, Appellant.

251 Ariz. 383

492 P.3d 326

The STATE of Arizona, Appellee,

v.Gary E. STARKS, Appellant.

No. 2 CA-CR 2019-0288

Court of Appeals of Arizona, Division 2.

Filed May 27, 2021

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee

Rosenstein Law Group PLLC, Scottsdale, By Craig Jacob Rosenstein, David Joseph Maletta, and Steven George Scharboneau, Counsel for Appellant

Chief Judge Vásquez authored the opinion of the Court, in which Presiding Judge Eppich concurred and Judge Brearcliffe concurred in part and dissented in part.

VÁSQUEZ, Chief Judge:

¶1 After a jury trial, Gary Starks was convicted of child molestation and indecent exposure to a minor under fifteen. The trial court sentenced him to a fifteen-year term of imprisonment followed by lifetime probation. On appeal, Starks contends (1) the state improperly elicited testimony from a "cold" expert that quantified the likelihood that a victim would falsely report abuse; (2) the state improperly elicited profile evidence from the cold expert; (3) the court erred by granting the state's motion to amend the indictment to conform to the evidence; and (4) the prosecutor engaged in improper vouching. Although we conclude there was no improper vouching or improper amendment of the indictment and any error regarding the likelihood of false reports by the victim was waived, Starks's convictions must be reversed because the expert's profiling testimony constitutes reversible error.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the convictions. See State v. Tamplin , 195 Ariz. 246, ¶ 2, 986 P.2d 914 (App. 1999). Starks, a friend of A.W.’s mother since childhood, first entered A.W.’s life when she was about eight years old. A.W. lived with her mother and siblings at the time, and Starks would visit their apartment two or three times a week. A.W. and her siblings called him "Uncle Gary." When A.W. was nearing the end of fourth grade, the family moved into Starks's mother's house and Starks continued to visit A.W. and her family frequently. When A.W. was in sixth grade, the family moved to another apartment and Starks did not see A.W. for about a year because she and her siblings had been placed in a group home. Starks resumed frequent contact with the children once the family was reunited. A.W.’s mother was in poor health, and Starks served as a "parental figure" to A.W.

¶3 When A.W. was in eighth grade, she told a friend at school that Starks had engaged in sexual acts with her. The friend reported the account to a school counselor, who reported it to police. A grand jury indicted Starks for sexual abuse, sexual conduct with a minor, sexual assault, indecent exposure, and child molestation, all of a child under fifteen.

¶4 Starks's first trial ended in a mistrial when the jury was unable to reach unanimous verdicts. In his second trial, Starks was tried for sexual conduct, sexual abuse, and indecent exposure. The jury found Starks guilty of indecent exposure, the lesser-included offense of child molestation on the sexual conduct count, and not guilty of sexual abuse. He was sentenced as described above. Starks timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Cold Expert Testimony

¶5 Starks argues the trial court erred by admitting the state's cold expert testimony, which he contends improperly quantified the likelihood of a victim falsely reporting sexual abuse and provided a profile of an offender that "invite[d] the jury to find that Appellant's actions matched those of a typical perpetrator of child sexual abuse." We review a trial court's decision to admit evidence for abuse of discretion. State v. Haskie , 242 Ariz. 582, ¶ 11, 399 P.3d 657 (2017).

¶6 As an initial matter, we agree with the state that Starks has waived any claim of error regarding testimony that quantified the likelihood of a false report by a victim. In ruling on Starks's pretrial motion to preclude the expert's testimony, the trial court ruled that the expert must testify "consistent with the ruling in State v. Lindsey ," the case that Starks now argues precludes the challenged testimony. See State v. Lindsey , 149 Ariz. 472, 474, 720 P.2d 73, 75 (1986) (expert may not "give specific opinions with regard to her view of credibility" of a victim). The court therefore effectively granted Starks's motion as to any testimony violating Lindsey , even though it had generally denied it otherwise. Because the trial court's ruling expressly allowed only testimony "consistent with ... Lindsey "—and thus the court likely would have granted relief from testimony violating Lindsey —Starks was required to contemporaneously object to the testimony to preserve a claim of error under Lindsey . See State v. Tovar , 128 Ariz. 551, 554, 627 P.2d 702, 705 (App. 1980) (objection to evidence waived where motion in limine granted but no objection raised at trial); see also State v. Briggs , 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975) (objectionable matter must be "brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived"); State v. Lichon , 163 Ariz. 186, 189, 786 P.2d 1037, 1040 (App. 1989) ("Counsel may not sit back and allow error to occur when a prompt objection might have allowed the court to cure the problem."). Although motions in limine generally preserve issues for appellate review, Starks's pretrial motion did not specifically urge the preclusion of testimony quantifying the likelihood of a false accusation. He therefore was required to contemporaneously object if he wished to preserve that claim. The issue has thus been forfeited for all but fundamental error review. See State v. Escalante , 245 Ariz. 135, ¶¶ 12, 21, 425 P.3d 1078 (2018). And because Starks has not meaningfully argued fundamental error on appeal, he has waived all review. See State v. Moreno-Medrano , 218 Ariz. 349, ¶ 17, 185 P.3d 135 (App. 2008).¹

¶7 As the state concedes, however, Starks preserved a claim of error regarding profile evidence. In his motion in limine filings, Starks expressly sought to preclude the state's expert, Dr. Wendy Dutton, from testifying about "the process of victimization" and "the behaviors of perpetrators" to "create a profile of a perpetrator," which could then be used to "implicitly show that [Starks] has the character of a child abuse perpetrator."² In support of his contention that such testimony should be precluded, he cited Haskie , 242 Ariz. 582, 399 P.3d 657, and State v. Ketchner , 236 Ariz. 262, 339 P.3d 645 (2014), the same cases he relies upon in his appeal. Because the trial court denied the motion in limine, Starks did not need to renew his objection at trial to preserve this issue for appeal. See Briggs , 112 Ariz. at 382, 542 P.2d at 807 ("A properly made motion in limine will preserve appellant's objection on appeal without need for further objection if it contains specific grounds for the objection."). We thus address the challenged "profile" evidence.

¶8 Dutton testified as a cold expert, meaning she had not reviewed the case or talked to anyone about its details. During its direct examination, the state asked her, "Do you know based on your research what strategies perpetrators use to build a relationship with a victim?" Dutton replied that some victims reported that their abusers would "do or say things to gain power and control over them and over their primary caretakers," such as "enter[ing] into the family," "tak[ing] over discipline of the children," and "becoming overly harsh or abusive," including toward the parent.

¶9 Later, the state asked Dutton, "How common is it that a perpetrator may try to commit a sexual act on a sleeping child?" Dutton replied that children "fairly commonly" reported that abuse occurred at night while asleep in their bed, and that perpetrators do this to take advantage of the child's confusion upon awakening—including possible uncertainty about whether the abuse occurred in a dream—to conceal the abuse.

¶10 The state then asked, "Is it common for abuse to happen in a home where other family members are?" Dutton replied that children "quite often" reported that abuse occurred "with someone else in the same house, sometimes in the same room or even the same bed." She explained the other people present "don't necessarily realize what's going on" because "[t]hey may be sleeping" or distracted by other activities.

¶11 Testimony by a cold expert—an expert who testifies "to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case"—is generally permitted under Rule 702, Ariz. R. Evid. State v. Salazar-Mercado , 234 Ariz. 590, ¶¶ 9, 11, 325 P.3d 996 (2014) (quoting Fed. R. Evid. 702, Advisory Committee Notes, 2000 amend.). A cold expert may testify about "general patterns of behavior" of child sexual abuse victims. Lindsey , 149 Ariz. at 473, 720 P.2d at 74. Thus, testimony by a cold expert about "how children perceive sexual abuse," "behaviors involving disclosure of abuse," and "circumstances in which children may make false allegations" is generally admissible, subject to the trial court's discretion to exclude it under Rules 702 and 403. See Salazar-Mercado , 234 Ariz. 590, ¶¶ 2, 20, 325 P.3d 996 (rejecting challenge to Dutton's testimony about "Child Sexual Abuse Accommodation Syndrome" to "explain[ ] behaviors commonly exhibited by child sexual abuse victims"). Such testimony may "help[ ] the jury to understand possible reasons for ... delayed and inconsistent reporting." Id. ¶ 15 ; see Haskie , 242 Ariz. 582, ¶ 16, 399 P.3d 657 ("[E]xpert testimony that explains a victim's seemingly inconsistent behavior is admissible ....").

¶12 However, our supreme court has concluded that "[t]he state may not...