State v. Montgomery ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CURTIS MONTGOMERY, Appellant.
No. 1 CA-CR 15-0386
FILED 7-5-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-155696-001
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
STATE v. MONTGOMERY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Maurice Portley and Judge John C. Gemmill joined.
T H U M M A, Judge:
¶1 A jury convicted Curtis Montgomery of sexual abuse,
molestation of a child and ten counts of sexual conduct with a minor, all
dangerous crimes against children. The superior court sentenced
Montgomery to consecutive life sentences with the possibility of parole
after 35 years for the sexual conduct with a minor convictions and to lesser
prison terms for the other convictions. From Montgomery’s timely appeal
challenging the admissibility of expert testimony from Wendy Dutton, this
court has jurisdiction pursuant to the Arizona Constitution, Article 6,
Section 9 and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)
(2016), 1 13-4031 and -4033. Because Montgomery has shown no error, his
convictions and resulting sentences are affirmed.
FACTS2 AND PROCEDURAL HISTORY
¶2 The State alleged Montgomery committed the offenses from
2010 to 2012 and that the victim was eight to ten years of age at the time.
The State disclosed Dutton as a “cold” expert to testify at trial about general
characteristics of child sexual abuse victims. Dutton was a forensic
interviewer who had interviewed children who were victims of crime
and/or witnesses to crime for many years. Dutton’s opinions were based
on research and her experience, but not on her interaction with the victim.
¶3 Montgomery moved in limine to preclude Dutton’s testimony
and requested an evidentiary hearing. Montgomery conceded that Dutton
had testified about the characteristics of child sexual abuse victims for
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
2On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
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STATE v. MONTGOMERY
Decision of the Court
decades.3 Montgomery argued, however, that the court was required to
reassess Dutton’s qualifications and the reliability of her testimony,
particularly given amendments to the Arizona Rules of Evidence effective
January 1, 2012. State v. Salazar-Mercado, 234 Ariz. 590, 591 ¶ 1 (2014).
¶4 Without holding an evidentiary hearing, the superior court
denied Montgomery’s motion in limine. The court held Arizona Rule of
Evidence Rule 702 did not bar “cold” expert testimony so long as the
witness was qualified, the testimony would properly assist the trier of fact
and the testimony fit the facts of the case. Noting the court had heard
Dutton testify previously and was familiar with her testimony, as well as
case law addressing her testimony and that Montgomery failed to show an
evidentiary hearing was needed, the court denied the request for a hearing.
¶5 At trial, Dutton testified about her education, training, and
experience, including how she had forensically interviewed more than
8,500 children. She testified she knew nothing about the case, but was there
to testify about the general characteristics of child victims of sexual abuse
and about forensic interviews. She did not express any opinion on whether
anyone was sexually abused.
¶6 Dutton addressed the types of problems a child can develop
as a result of sexual abuse and explained the presence or absence of those
problems does not mean a child was sexually abused. Dutton discussed
what she called misconceptions people may have about how children
respond to sexual abuse and the wide range of reactions children have
when they discuss sexual abuse. Dutton also explained how perpetrators of
child sex crimes engage in the “process of victimization.” At the end of her
testimony, Dutton reiterated the information she provided was based on
research, that she did not know whether any of the information applied to
the facts of this case and that she was a “blind” expert.4
3Dutton’s testimony has been the subject of several appellate opinions. See,
e.g., State v. Salazar-Mercado, 234 Ariz. 590 (2014); State v. Ortiz, 238 Ariz. 329
(App. 2015); State v. Buccheri-Bianca, 233 Ariz. 324 (App. 2013); State v. Curry,
187 Ariz. 623 (App. 1996).
4 Dutton did not reference Child Sexual Abuse Accommodation Syndrome
(“CSAAS”). See Salazar-Mercado, 234 Ariz. at 591 ¶ 2.
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STATE v. MONTGOMERY
Decision of the Court
DISCUSSION
¶7 This court reviews the admission of expert testimony for an
abuse of discretion. State v. Hyde, 186 Ariz. 252, 276 (1996) (citing cases). As
applicable here,
[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: (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; [and] (c) the
testimony is the product of reliable principles
and methods.
Ariz. R. Evid. 702(a)-(c).5 “[W]hen applying rule 702, ‘trial courts should
serve as gatekeepers in assuring that proposed expert testimony is reliable
and thus helpful to the jury’s determination of facts at issue.’” Preston v.
Amadei, 238 Ariz. 124, 134 ¶ 36 (App. 2015) (quoting Ariz. R. Evid. 702 cmt.
to 2012 amend.). “The court’s role as gatekeeper, however, does not
supplant ‘traditional jury determinations of credibility and the weight to be
afforded otherwise admissible testimony.’” Id. “[T]he essential inquiry
under the rule is ‘whether particular expert testimony is reliable[,]’ and trial
courts should consider the Rule 702 factors when ‘they are reasonable
measures of the reliability of expert testimony.’” Preston, 238 Ariz. at 134 ¶
35 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999)).
Applying these directives, the court did not abuse its discretion by
admitting Dutton’s testimony without an evidentiary hearing.
¶8 Arizona has long held that expert testimony regarding the
characteristics of child victims of sexual offenses may be admissible. See
Salazar-Mercado, 234 Ariz. at 594 ¶ 15; State v. Lopez, 170 Ariz. 112, 118 (App.
1991); State v. Tucker, 165 Ariz. 340, 346 (App. 1990). Where the proper
showing is made under Rule 702, the superior court has substantial
discretion to admit such evidence. See Salazar-Mercado, 234 Ariz. at 594 ¶ 15.
Although expert witnesses may not testify to the credibility of another
witness or the type of witness under consideration, State v. Lindsey, 149
5Ariz. R. Evid. 702(d) does not apply to “cold” or “blind” experts who do
not apply their principals and methods to the facts of the case. Salazar-
Mercado, 234 Ariz. at 592 ¶ 6.
4
STATE v. MONTGOMERY
Decision of the Court
Ariz. 472, 475 (1986), Dutton did not do so here. Moreover, the 2012
amendments to Rule 702 do not make Dutton’s testimony inadmissible. See
generally Salazar-Mercado, 234 Ariz. at 592-95 ¶¶ 5-20.
¶9 Contrary to Montgomery’s argument on appeal, the superior
court was not required to hold a pretrial evidentiary hearing. Whether to
hold such a hearing is within the superior court’s discretion. State v. Perez,
233 Ariz. 38, 43 ¶ 19 (App. 2013); Glazer v. State, 234 Ariz. 305, 315 ¶ 28 (App.
2014), vacated in part on other grounds, 237 Ariz. 160, 168 ¶ 36 (2015). Based
on the parties’ submissions, the court’s familiarity with Dutton’s testimony
and appellate decisions addressing the admissibility of her testimony,
Montgomery has not shown the court abused its discretion in denying the
request for an evidentiary hearing. And the fact that Dutton’s testimony
was largely based on her own experience does not alter this conclusion;
“Rule 702 does not prohibit ‘the testimony of experience-based experts.’”
Preston, 238 Ariz. at 134 ¶ 36 (quoting Ariz. R. Evid. 702 cmt. to 2012
amend.).
CONCLUSION
¶10 Montgomery’s convictions and resulting sentences are
affirmed.
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