Martinez-Arias v. State ( 2022 )

In the Supreme Court of Georgia
Decided: February 15, 2022
S21G0150. MARTINEZ-ARIAS v. THE STATE.
WARREN, Justice.
Alejandro Martinez-Arias was tried by a Hall County jury and
convicted of aggravated child molestation, aggravated sexual
battery, and child molestation. In his appeal to the Court of
Appeals, Martinez-Arias contended, among other things, that the
trial court erred when it allowed the State to present opinion
testimony about certain purported aspects of Mexican or Latino
culture from a school counselor who had worked with M.J., the child
victim. The Court of Appeals affirmed, concluding that the trial
court did not abuse its discretion in admitting the disputed
testimony. See Martinez-Arias v. State, 356 Ga. App. 423 (846 SE2d
448) (2020). We granted certiorari and asked the following question:
“Did the trial court commit reversible error when it admitted opinion
testimony about cultural characteristics of an ethnic group?” For
the reasons that follow, we conclude that the trial court abused its
discretion when it admitted this testimony, but we nonetheless
affirm because the error was harmless based on the record in this
case.
1. Background
(a) The evidence presented at trial showed that Martinez-
Arias—who was the boyfriend of M.J.’s aunt, Maria Cruz—sexually
abused M.J. over the span of approximately three years. M.J.
testified that, when she was nine years old, she began living in
Illinois with Cruz, Martinez-Arias, and M.J.’s two brothers.
Previously, M.J. had lived for a year in Mexico with her father, and
before that, she had lived with her grandfather in Illinois. About six
months after she began living with Cruz, M.J. moved to Georgia
with Cruz, Martinez-Arias, and her two brothers.
At first, the five lived in a small house in Gainesville. There,
M.J. shared a room with her brothers, with a makeshift barrier
providing some privacy. M.J. testified that she was in fifth grade at
2
the time, and when she came home from school, Martinez-Arias
would come into her room and touch her “private area,” including
her chest. According to M.J., this happened multiple times per day.
After several months, M.J.’s family (including Martinez-Arias)
moved into a bigger house, where they remained for about two years.
There, M.J. had her own room, but it adjoined the bedroom Cruz
shared with Martinez-Arias, and only a curtain separated the two
rooms. Moreover, because of the house’s layout, M.J. had to walk
through Cruz’s bedroom to get to the rest of the house. M.J.’s
brothers shared a room in another part of the house, and M.J.
testified that Cruz and Martinez-Arias would not let her spend time
with her brothers in that room.
M.J. testified that, during the time she lived in the second
house, Martinez-Arias would come into her room at night and do
things she “didn’t like.” Specifically, Martinez-Arias would take off
her clothes, including her underwear, and touch her “private areas”
with his hands and mouth, and he would touch her not “just on the
outside of [her] private parts.” Sometimes when he did that,
3
Martinez-Arias would be wearing just a towel. He did this to her
“[a]lmost” every day, a “couple times a day,” throughout the two
years that M.J. lived there.
M.J. testified that she did not tell anyone about the abuse at
the time because her aunt was “happy” with Martinez-Arias, and
M.J. “didn’t want him to leave [her] aunt.” Moreover, M.J. “didn’t
know if anyone would believe [her],” and she was “scared” that if she
disclosed the abuse to her brothers, she “would lose them too.” To
cope with the abuse over the years, M.J. would cut herself on her
arms and legs with a razor.
In late January 2015, M.J. finally disclosed the abuse to her
older brother, A.J., who was 14 years old at the time. In response,
A.J. gave M.J. a cell phone to use in an attempt to record an
encounter with Martinez-Arias, and she did so that night. 1 A short
1At trial, A.J. testified for the State, and when asked how he found out
about M.J.’s abuse, he responded: “My little sister came to me with cuts all
over her body, basically, to her thighs and arms, they were cut. And she said
she couldn’t take it anymore.” A.J. testified that he initially “got mad” at M.J.
because of the cuts, but then she told him that Martinez-Arias “had been
touching her for the past two years.” A.J. testified that he had first noticed
4
audio clip from the cell phone was played for the jury at trial; it
appears undisputed that the clip contains the voices of Martinez-
Arias and M.J., with Martinez-Arias saying something
indistinguishable and M.J. saying “stop.” M.J. testified that the
recording revealed her telling Martinez-Arias to “stop” touching
her. 2
The same night that she made the recording, M.J. and her
brothers packed up some of their belongings, contacted their
grandmother, Brenda Pizano—who lived in Illinois—and left their
house on foot. Pizano started a 12-hour drive to Georgia and
eventually found the children “out on the street hiding,” picked them
up, and contacted law enforcement. The children were placed in
foster care for about a week and then released into the custody of
Pizano, who took them back to Illinois.
cuts on M.J.’s body four or five months after they moved to Georgia, and the
cutting “ended up getting worse and worse day by day.” When A.J. asked M.J.
to record an abusive encounter on his cell phone, he said she was “very
hesitant,” but, A.J. testified, “the evidence was needed.”
A cell phone forensic investigator later testified that the recording was
2
made at 10:27 p.m. on January 29, 2015.
5
Pizano testified that when she picked up the children on the
night they left their house, M.J. told her that Martinez-Arias “was
trying to molest her, he was feeling all over her and touching her
bottom parts.” When Pizano asked M.J. whether that “really had
happened,” M.J. “thought [Pizano] wasn’t believing her and she was
upset at first and she said she’s not lying, that it happened.”
According to Pizano, when M.J. and her brothers moved back
to Illinois, M.J. “was happy to be back” at first, “but she also had a
lot of anger issues, a lot of sadness,” and she “shut[] herself up in her
bedroom a lot.” Asked about her discussions with M.J., Pizano
testified:
I have asked [M.J.] to tell me everything that had
happened, what he did, where he touched her, and she
would get upset all the time and run[ ]away. And one
time she got really upset and she says, Are you satisfied
now? This is what you wanted me to show, my emotions?
He touched me down there. He licked me, he fingered me.
Is that what you wanted me to tell you guys? I have a
hard time talking about this. She said, I don’t want
nobody to know what happened to me.
Pizano also testified that M.J. suffered from nightmares and
had trouble sleeping and that she had “tried to commit suicide, she
6
has done razor cuts on herself.” The suicide attempt, Pizano
testified, occurred when M.J. found out she might have to come to
Georgia to testify at Martinez-Arias’s trial.
(b) After disclosing the abuse to law enforcement officials,
M.J. underwent a forensic interview and a forensic physical
examination. The nurse practitioner who examined M.J. testified
that, when she asked M.J. if she knew the purpose of the
examination, M.J. replied, “To get checked because [Martinez-Arias]
has been putting his fingers and mouth inside me for a long time.”
The physical examination did not show conclusively whether M.J.
was sexually abused, but it did reveal “linear” abrasions “on certain
places on [M.J.’s] body . . . on her left wrist as well as her right hip,
outer thigh area, that were indicative of former or previous
lacerations that had healed and scarred.” A video recording of the
forensic interview was introduced into evidence and played for the
jury at trial.
(c) In addition to evidence specifically concerning M.J., the
State presented the testimony of Dr. Julie Battle—a licensed
7
psychologist and the chair of the psychology department at Brenau
University who also had experience at a Hall County child advocacy
center conducting forensic interviews of children who alleged to have
suffered abuse. After Dr. Battle detailed her educational and
professional qualifications, and without objection from the defense,
the trial court permitted her to testify as an “expert in the area of
child psychology and forensic interviewing.” Dr. Battle then
testified generally about the behavior of child sex-abuse victims,
without referring specifically to M.J. Among other things, Dr. Battle
testified that there are “so many reasons why kids are afraid” to tell
someone about sexual abuse that
[t]he better question might be why does anybody ever tell.
It’s really hard to tell somebody these things, particularly
if the perpetrator is somebody that the child knows, and
almost always the perpetrator is somebody the child
knows and somebody the family trusts.
Dr. Battle explained that, in such cases, child victims “don’t love the
abuse,” but “[a]lmost always they love the perpetrator,” they “don’t
want to get the perpetrator in trouble,” and they “feel huge
responsibility for keeping the family together.” For example, “if the
8
perpetrator’s a dad or step-dad, [the victims] know if I tell mom,
she’s either not going to believe me or she’s going to be really upset
and it’s going to be my fault that mom’s upset and I don’t want to
make her upset.” Indeed, Dr. Battle testified, older children
“typically have an understanding of what might happen after a
disclosure,” and they find it “a lot easier to deal” with the abuse than
creating discord within the family, having the police involved, or
potentially going to court and testifying. Furthermore, child victims
often feel “really uncomfortable” talking about the abuse: “It’s really
uncomfortable to talk about sexual stuff, even consensual sexual
stuff. And when we talk about non-consensual stuff and with
children[—]stuff they don’t understand or have the words for[—]
that’s really, really uncomfortable to them.”
(d) The State’s last witness, Betsy Escamilla, was a counselor
at the middle school M.J. had attended in Hall County. Although
Escamilla was not tendered as an expert witness and was not
qualified as such by the trial court, she testified that she had
associate’s degrees in criminal justice and “early childhood
9
[education],” a bachelor’s degree in psychology, and a “master’s of
science with a specialization in school counseling.” She also testified
that a “majority of the student population” at the school where she
worked was “of Latino background,” that she came from a “Latino”
“cultural background,” having been “born in Mexico but raised in
Hall County,” and that one of her “passions [was] to work with
Latino at-risk students and students in poverty.” To that end, she
attended conferences and obtained certifications and, as part of
earning her degree in psychology, wrote a “senior research paper” on
the “prevalence [of incest] among Latino families,” with a focus on
Hall County.
The prosecutor first asked Escamilla to opine on “Latino
culture” about sexual abuse as follows:
[PROSECUTOR:] Now, through your research and your
work as a school counselor, have you noticed any attitudes
in the Latino culture regarding sexual abuse?
[ESCAMILLA:] Yes, I have. Besides just growing up in
the Latino—the scholarly articles I’ve read and research
in my professional experience working with Latino
children who have been exposed or have been victims of
sexual abuse, one—there are several factors that are
10
common factors that deal with working—that Latino
children experience, and one of them is working—is the
Latino culture is a collectivistic family—they value
collectivism a lot.
And a lot of factor is the machismo. And . . . another
common trend or factor, is the lack of sexual education.
Often many of the students that either disclosed or had
been victims of sexual abuse say that or have told me—
At that point, Martinez-Arias’s counsel lodged hearsay and
relevance objections, but the trial court allowed the prosecutor to
continue, and the following exchange occurred:
[PROSECUTOR:] So without saying what other students
have told you, I’m asking you about some attitudes you’ve
noticed with the Latino culture and sexual abuse.
I think you spoke about a machismo culture. Can
you explain that to the jury?
[ESCAMILLA:] The machismo culture means—or what
children have expressed to me—not expressed, but what
I have experienced is in the machismo culture in the
traditional Hispanic and more in the Mexican traditional
culture, the father in the home is the breadwinner or the
man—whoever the role model, it may not be the father, it
could be an uncle or grandparent or even the older
brother, there is—if there’s not a father in the home, is
seen as a—as the leader of the home, the one that you
have to serve; that many times the mothers or the females
are supposed to be submissive to the—to the role—to the
male role and the male figure in the home.
11
Defense counsel again raised a relevance objection, and the
prosecutor responded that defense counsel earlier had “explored the
traditional roles in the home” with a different witness and that the
State was “attempting to develop some of the attitudes that may
have been prevalent in the home in which the victim resided.”3 The
trial court overruled the relevance objection and stated that “the
jury can use the evidence for whatever value, if any, the jury finds
in this case.”
3 Specifically, A.J. earlier had been asked about his household’s dynamic
and testified that, while living in Georgia, Cruz and Martinez-Arias were
“[s]omewhat strict,” but that he and his brother had “more freedoms” than M.J.
in the sense of “[g]oing out, hanging out with friends, typical teenage
freedoms.” On cross-examination, A.J. further testified that his aunt, Cruz,
was the primary disciplinarian in the household and that she was more strict
with M.J. than with him and his brother, in part because M.J. “was a girl.”
Asked whether Cruz “differentiated between boys and girls,” A.J. responded,
“Yes, that’s correct, because I seen [sic] how my grandfather raised his kids;
girls are girls and boys are boys.” Further, A.J. testified that Cruz was
“somewhat” the “boss of the house” and that there was a gender divide between
the household duties performed by Martinez-Arias and Cruz; for example,
Cruz would do most of the grocery shopping, whereas “clean[ing] the outside
was mainly the men’s job.” But, A.J. testified, he and the other children’s
household duties were divided such that “everyone had a turn at dishes,
everyone was responsible for their room, their clothes.” A.J. also testified that
he often helped Martinez-Arias with side jobs, such as landscaping or fixing
cars, while M.J. helped with “traditional female” duties, such as cleaning and
cooking. Notably, A.J.’s testimony made no references to ethnicity, and neither
party objected to his testimony about household dynamics.
12
The prosecutor again asked Escamilla: “Have you, in your
research with Latino victims of sexual abuse, noticed any cultural
norms regarding sexual abuse in the Latino culture?” Escamilla
responded:
There’s guilt, shame, lack of family support and lack of
reporting among the children. And also the support from
the family members because of the fear of shame, that is
contributing—I stated at the beginning, the values in the
Latino Mexican culture—I’m going to continue with the
Mexican culture because that’s what I have the most
experience working with, and that is personally what I
have a passion for—but it’s the fear of—because of the
collectivistic and the family structures, it’s really difficult
for children to express or even disclose, and when they do
disclose, often the times the lack of support from the
family for—it’s kind of seen as if it happens—and no way
am I saying that this is acceptable norm, but it happens—
but if it happens, it’s something that you don’t share, that
you keep it quiet, that it is the girl’s fault for opening her
legs and the boys are just supposed to be that way, they
just have urges.
And many of the times when I’ve worked with girls, that
is the guilt and the shame, like it’s their fault that they
opened their legs, it’s their fault they never reported it,
it’s their fault that it’s happening. Because, again, the
Mexican culture, in particular, it’s taboo—sexual
education is a taboo topic among Latinos and a lot more
in the Mexican structure, because it’s based on religious
foundations, as well.
13
Escamilla then offered extensive testimony about her personal
interactions with M.J. As a school counselor, Escamilla met with
M.J. “frequently” and “followed up” about “previous counseling
sessions” that M.J. had attended with a different counselor,
including in one-on-one meetings with M.J. In describing her
personal observations of M.J.’s personality and demeanor, Escamilla
testified, among other things, that M.J. made good grades and was
an “extraordinary student,” that she “stood out” among other
students, and that she “always carried a book in her hand.” But,
Escamilla said, M.J. was “having a difficult time not being with
family, and not growing up with a mom.” Moreover, M.J. was
“[q]uiet,” “different than a lot of the other seventh grade girls that
were trying to get attention,” and not the type of student who “would
tell you everything immediately.”
Escamilla testified that M.J. did not tell her about being
sexually abused until after the abuse was reported to law
enforcement officials. When M.J. did talk to Escamilla about the
abuse, M.J. was “very emotional, she was crying.” M.J. told
14
Escamilla that Martinez-Arias had been “touching her and doing
things to her at night”—that “he had touched her without her
permission and it was hurting.” Escamilla further testified that
M.J. expressed to her that M.J.’s father was dismissive about the
abuse: “her father dismissed the fact that it was sexual molestation
because there—there had not been any penetration.” And M.J. had
a “hard time coping” with her father’s attitude in that regard. The
State concluded its case-in-chief after Escamilla’s testimony.
(e) Martinez-Arias’s counsel cross-examined M.J. and
elicited testimony to support the defense theory that M.J. had a
motive to fabricate her story of abuse. Among other things, M.J.
acknowledged that, not long before she made the cell-phone
recording of the abuse, her brothers got into a “fairly heated”
argument with Martinez-Arias. M.J. could not recall the specifics of
the argument, but testified that “it started out something small and
it blew out of proportion pretty easily.” She further testified that
Cruz and Martinez-Arias previously had “threatened” to send M.J.
15
and her brothers to Mexico, although they had never followed
through on that threat.
The defense also presented several of its own witnesses—
including Cruz, who had married Martinez-Arias after M.J.
disclosed the abuse. In sum, Cruz testified that, during the time
M.J. lived with them, Cruz did not observe any behavior on the part
of M.J. or Martinez-Arias that would cause her to believe that M.J.
was sexually abused; for example, Cruz never heard anything in
M.J.’s bedroom “that caused [her] concern,” and Cruz never saw
Martinez-Arias “running out” of M.J.’s bedroom “or seeming like he
was trying to hide something.” Cruz also testified that she heard
the cell phone recording in which M.J. said, “Stop,” and that she
recalled an occasion where she heard “something like that between
[Martinez-Arias] and [M.J.]” In describing this event, however,
Cruz testified that Martinez-Arias was trying to confiscate the cell
phone from M.J., and again, Cruz did not observe anything
inappropriate or unusual at the time; for example, Cruz testified
that she saw Martinez-Arias walking out of M.J.’s room with his
16
clothes on and that M.J. was lying on her bed, “fully clothed,” with
“her hand under the pillow with the cell phone.” Several other
witnesses, including members of the church that M.J. frequented
with her family, testified that they did not observe anything unusual
about M.J.’s behavior around Martinez-Arias and that she in fact
called him “Papi” or “Dad.”
2. Procedural History
The jury found Martinez-Arias guilty of all three counts; he
received a total sentence of life in prison, with 25 years to serve in
custody and the remainder on probation. He then filed a motion for
new trial, contending (among other things) that the trial court erred
when it failed to exclude Escamilla’s “expert” testimony about
Latino cultural attitudes or norms. He argued that this testimony
was irrelevant and that the State failed to disclose Escamilla before
trial as an expert witness. The trial court denied Martinez-Arias’s
motion for new trial, finding that Escamilla was not tendered as an
expert witness and that her testimony was “relevant and helpful to
understanding the victim-child’s behavior in the context of her
17
Latino family,” and in particular, her “behavior in failing to disclose
for some period of time and the family’s negative reaction to her
disclosure.” Martinez-Arias then appealed.
The Court of Appeals affirmed the trial court’s judgment. See
Martinez-Arias, 356 Ga. App. 423. With regard to relevance, the
Court of Appeals determined that Escamilla’s testimony “provided
context for the several-year delay in the victim’s outcry, a relevant
issue given the defense’s theory that the allegations of abuse were
fabricated,” and that the “trial court was authorized to conclude that
the testimony related to the victim’s fear and failure to immediately
disclose the abuse, rather than Martinez-Arias’s ethnicity.” Id. at
425 (citation and punctuation omitted). The Court of Appeals also
concluded that “the trial court did not err in finding that
[Escamilla’s] testimony was admissible as lay opinion evidence,
rather than expert testimony.” Id. at 426. We granted certiorari to
determine whether the admission of Escamilla’s testimony about
“cultural characteristics of an ethnic group” constituted reversible
error.
18
3. Escamilla’s Generalized Testimony About Mexican and
Latino Culture Was Not Relevant 4
Under our Evidence Code, “the term ‘relevant evidence’ means
evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” OCGA § 24-
4-401 (“Rule 401”). Although this relevance standard is a “liberal
one,” it is “not meaningless or without boundaries.” State v.
Stephens, 310 Ga. 57, 60 (849 SE2d 459) (2020). Any evidence that
fails to meet this standard will be barred by OCGA § 24-4-402 (“Rule
4 We note at the outset that the State (represented by the District
Attorney’s office) argued at trial and in the motion for new trial proceedings
that Escamilla’s testimony about generalized ethnic and cultural
characteristics was relevant, and that the State maintained that position
throughout the proceedings before the Court of Appeals, in its response to
Martinez-Arias’s certiorari petition, and again in its appellate brief to this
Court. However, during oral argument (which occurred more than four months
after the District Attorney’s brief was filed in this Court), and with no prior
notice to this Court or to Martinez-Arias’s counsel, the District Attorney—
appearing on behalf of the State—changed position on the relevance of
Escamilla’s testimony. To that end, the State at oral argument conceded that
Escamilla’s generalized testimony was not relevant, but argued that the trial
court’s error in admitting it was harmless. We understand that circumstances
may arise that necessitate or otherwise lead to a change in a party’s legal
position, and we appreciate the State’s forthrightness in this regard. We
remind litigants, however, that in such circumstances, parties should notify
the Court and the opposing counsel as soon as possible to provide adequate
time to prepare for, or respond to, new or changed positions.
19
402”), which provides, without exception, that “[e]vidence which is
not relevant shall not be admissible.” See State v. Mondor, 306 Ga.
338, 350 (830 SE2d 206) (2019). A trial court’s decision whether to
admit or exclude evidence is reviewed on appeal for an abuse of
discretion. Lyons v. State, 309 Ga. 15, 21 (843 SE2d 825) (2020).
As an initial matter, it bears noting that the majority of
Escamilla’s testimony pertained to her personal interactions with
M.J. in Escamilla’s role as M.J.’s school counselor—both before and
after M.J. disclosed the abuse she suffered—and to the rational
inferences Escamilla perceived from those interactions. See OCGA
§ 24-7-701 (stating that lay witness testimony “in the form of
opinions or inferences” must, among other things, be “[r]ationally
based on the perception of the witness”). Although the trial court
made no express findings on the relevance of this aspect of
Escamilla’s testimony, we have no trouble concluding that the
testimony was provided as a lay opinion and that it was relevant to
corroborating the State’s theory about M.J.’s actions both before and
after her outcry.
20
We cannot say the same about Escamilla’s generalized
testimony about Mexican and Latino culture. 5 Putting aside the
question of whether Escamilla purported to testify as an expert
witness when she opined on Mexican and Latino culture, 6 we
conclude that her generalized testimony in this regard was not
relevant and was thus inadmissible.
We begin our analysis of this testimony by identifying the “fact
that is of consequence” under Rule 401. Both the trial court and the
Court of Appeals concluded that Escamilla’s testimony was intended
to explain M.J.’s delayed outcry—that is, to show that her years-long
5 Escamilla was asked specifically about “Latino culture,” and she
expressly mentioned “Latino culture.” Escamilla also referred to “traditional
Hispanic” culture and “Mexican traditional culture,” and she appeared to focus
on “Mexican culture because that’s what [she had] the most experience
working with” and had “a passion for.” For ease of reference, unless expressly
stated otherwise, any further mention of “Escamilla’s testimony” in this
opinion refers to her generalized testimony about Mexican and Latino
culture—not to her testimony about her personal interactions with M.J.
6 Given our conclusion that follows in Division 3, we need not decide
whether Escamilla’s testimony was properly admitted as lay opinion. Suffice
it to say, however, that some of us have concerns about whether the type of
generalized testimony Escamilla offered about Mexican and Latino culture—
even if it were relevant—could be offered properly by a lay person, as opposed
to by an expert who is qualified to opine on such topics.
21
delay in disclosing the abuse she suffered was not the result of
fabrication, but rather was “related to the victim’s fear.” Martinez-
Arias, 356 Ga. App. at 425. To that limited extent, we agree with
the trial court and the Court of Appeals that, if Escamilla’s
testimony were relevant at all, it would be for the limited purpose of
“provid[ing] context for the several-year delay in the victim’s
outcry.” Id.7
But we reach a different conclusion about whether Escamilla’s
testimony about Mexican and Latino culture was actually relevant,
and conclude that it was not because it had no tendency to make the
“fact of consequence”—the State’s theory that M.J.’s delayed outcry
was not the result of fabrication—any more probable or less probable
than it would have been without the testimony. See OCGA § 24-4-
7 The State did not argue, either in the trial court or on appeal, that
Escamilla’s testimony was relevant to explain Martinez-Arias’s behavior—to
show, for example, that the prevalence of “machismo” in Latino culture made
it more likely that Martinez-Arias sexually abused M.J., or that he had a
propensity to sexually abuse children because of his ethnicity. And, as
explained below in Division 4, we do not believe that Escamilla’s testimony
reasonably could be interpreted as such. Were it otherwise, Escamilla’s
testimony could be problematic for a host of other reasons beyond just lack of
relevance. We need not enumerate those reasons today, however, because that
situation is not presented here.
22
401. In other words, it indicated nothing at all about M.J.’s specific
motivations about when and why she reported her abuse and
provided no basis for the jury to make any reasonable inferences
about M.J.’s behavior; the testimony bore no relationship to M.J. or
her specific actions. See Fed. R. Evid. 401, Advisory Committee
Notes (“Relevancy is not an inherent characteristic of any item of
evidence but exists only as a relation between an item of evidence
and a matter properly provable in the case. . . . Whether the
relationship exists depends upon principles evolved by experience or
science, applied logically to the situation at hand.”). See also, e.g.,
Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 932 F3d 1303,
1320 (11th Cir. 2019) (concluding that certain evidence was relevant
because “the jury reasonably could have inferred” a consequential
fact from that evidence).8
8 Because OCGA § 24-4-401 is materially identical to Federal Rule of
Evidence 401, in interpreting OCGA § 24-4-401, “we properly look to the
decisions of the federal appellate courts—particularly the United States
Supreme Court and the Eleventh Circuit—interpreting [federal Rule 401],
rather than to cases discussing relevance under the old [Georgia] Evidence
Code.” Smith v. State, 299 Ga. 424, 429-430 (788 SE2d 433) (2016). Moreover,
23
To begin, Escamilla’s testimony about the ethnic and cultural
attitudes she had experienced was so broad and generalized that we
cannot say it would indicate to the jury whether those attitudes—
even assuming for the sake of argument their accuracy—applied to
the members of M.J.’s household. That is particularly true with
respect to Escamilla’s testimony about “collectivism” (“Latino
culture is a collectivistic family”) and “machismo” (“a lot of factor
[sic] is the machismo”) in Latino culture. Likewise, Escamilla’s
generalized comments such as “many times the mothers or the
females are supposed to be submissive” and “another common trend
or factor[] is the lack of sexual education” provided no basis for the
jury to be able to determine the prevalence of those attitudes and
whether the members of M.J.’s household shared them, again
assuming only for the sake of argument that Escamilla’s testimony
was even accurate.
“although Advisory Committee Notes are not binding precedent and cannot
change the plain meaning of the law or rules, they are highly persuasive.” State
v. Almanza, 304 Ga. 553, 559 n.3 (820 SE2d 1) (2018).
24
What is more, neither M.J. nor any member of her household
testified about their own ethnic or cultural identity, and it is not
clear to us that, just because M.J. and at least some members of her
household had lived in Mexico at some point or had family living in
Mexico, the jury reasonably could infer that the generalized
characterizations Escamilla offered about Mexican or Latino culture
applied to M.J. or the members of her household living in Georgia. 9
Given this lack of foundation, we do not see how a jury reasonably
could infer from Escamilla’s testimony that M.J.’s decision about the
timing of her outcry—including that she allegedly suffered nearly
three years of abuse before revealing it—was affected (let alone
motivated) by the cultural attitudes Escamilla testified to having
observed and studied. See United States v. Street, 548 F3d 618, 631-
633 (8th Cir. 2008) (detective’s testimony about general gang culture
and attitudes, including a purported “tradition of misogynistic,
9 The State also argued at trial that Escamilla’s testimony was relevant
because it related to defense counsel’s cross-examination of A.J. about “the
traditional roles in [M.J.’s] home.” But A.J.’s testimony in that regard—as
summarized above in footnote 3—was about his household’s dynamic and made
no reference to ethnicity.
25
hardened outlaws,” was not relevant, in part because this evidence
had “no discernible connection to the murder charges [the
defendant] faced, and [the defendant] was not a gang member nor
ever had been”); United States v. Hall, 653 F2d 1002, 1006 (5th Cir.
1981) (testimony from a “quasi-expert” about general investigative
procedures of the Drug Enforcement Administration was not
relevant because he “testified to no facts bearing on any manner on
the prosecution of [the defendant] or on the investigation leading to
that prosecution”). See also Jinro America Inc. v. Secure
Investments, Inc., 266 F3d 993, 1011 (9th Cir. 2001) (Wallace, J.,
concurring) (in civil case, testimony about the behavior and
attitudes of “Korean businessmen” in general was not relevant “to
show that this particular Korean businessman (or company) is that
type of a businessman or acted that way in this specific contractual
arrangement”; “it shed[] no light on [the defendant company’s]
activities in this case”). 10
We acknowledge that federal courts have reached different conclusions
10
when analyzing the often-complex question of whether evidence about culture
26
In sum, Escamilla’s testimony about Mexican and Latino
culture was not relevant to explain M.J.’s behavior because
Escamilla’s testimony shed no light on whether such generalized
or ethnicity is relevant under Federal Rule of Evidence 401. Compare, e.g.,
United States v. Cabrera, 222 F3d 590, 596 (9th Cir. 2000) (holding that, in a
drug prosecution, “[m]ost of [the investigating officer]’s references to Cubans
were not relevant under Rules 401 and 402,” that his “testimony about how
Cubans package their drugs may have been relevant to other aspects of the
case,” and that the packaging evidence was in any event inadmissible under
Federal Rule of Evidence 403); United States v. Doe, 903 F2d 16, 20 (D.C. Cir.
1990) (expert testimony that “the retail [drug] market has been taken over
basically by Jamaicans” and that local drug dealers “in many cases” were
replaced by “Jamaicans” was irrelevant because this testimony “hardly
described for the jury the modus operandi of drug dealers, Jamaican or
otherwise,” and could not have “provided legitimate assistance to the jurors in
determining whether appellants committed the offenses charged”; and
although other aspects of his testimony that referenced ethnicity were
“arguably relevant,” a Rule 403 analysis should have been conducted before
the trial court admitted it) with Dang Vang v. Vang Xiong X. Toyed, 944 F2d
476, 481-482 (9th Cir. 1991) (in case brought under 42 USC § 1983, trial court
did not abuse its discretion in deciding that an expert witness’s “general
explanation of Hmong culture and the role of women in that culture” was
relevant “to assist the trier of fact to understand certain behavior of the parties
[] that might otherwise be confusing”); United States v. Khan, 787 F2d 28, 34
(2d Cir. 1986) (expert testimony about “the price of heroin in Pakistan,” the
practice of “Pakistani [drug] dealers” of “advancing heroin without cost,” and
“the nature of dress favored by Pakistani dealers” was relevant to rebut
defendant’s arguments to the jury and to show that the defendant “did not need
a large sum of money to deal in large amounts of heroin in Pakistan” and that,
even if the defendant “had made a great deal of money in the heroin trade, it
would not necessarily show from the manner of his dress”). See also, e.g.,
Commonwealth v. Tirado, 375 A2d 336, 337-338 (Pa. 1977) (holding that a
police officer’s generalized testimony about purported “machismo” values
among “Puerto Rican males” introduced “irrelevant material [that] prejudiced
[the defendant]” and granting a new trial, but doing so without conducting a
harmless-error analysis).
27
characterizations applied to M.J. or members of her household, and
did not make it more or less probable that M.J.’s delay in disclosing
her abuse was a sign of fabrication. Accordingly, Escamilla’s
testimony did not meet the Rule 401 standard for relevance and was
therefore inadmissible. See OCGA §§ 24-4-401, 24-4-402; State v.
Stephens, 310 Ga. 57, 60 (849 SE2d 459) (2020) (“[T]he trial court
did not abuse its discretion in determining that the [evidence in
question] would require the jury to stack too many increasingly
strained inferences to find it relevant to the issue for which it was
offered.”); Roberts v. State, 305 Ga. 257, 262 (824 SE2d 326) (2019)
(certain evidence was irrelevant under Rule 401 because “nothing
more than speculation and conjecture” connected that evidence to
the fact at issue); United States v. Reagan, 725 F3d 471, 489 (5) (F)
(2) (5th Cir. 2013) (trial court did not err in determining that
connection between the evidence and the purpose for which it was
offered was “far too tenuous” to establish relevance).11
11 We note that in some cases, federal courts have decided the
admissibility of cultural or ethnic evidence under Federal Rule of Evidence
28
Finally, we caution that Georgia courts should assess the
relevance of cultural or ethnic evidence based on the specific
testimony in question and on the fact that such evidence is supposed
to make more (or less) probable, viewing such evidence in the context
of the record before the court in that particular case. See
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (128 SCt
1140, 170 LE2d 1) (2008) (explaining that relevance under Rule 401
403, which allows courts to “exclude relevant evidence if its probative value is
substantially outweighed” by “a danger of . . . unfair prejudice.” See, e.g.,
United States v. Ramirez-Fuentes, 703 F3d 1038, 1046 (7th Cir. 2013)
(suggesting that federal agent’s testimony about “Mexican methamphetamine”
was not relevant, but even if it were “at all relevant under [Federal Rule of
Evidence] 401, it should have been excluded under Rule 403 because of the
danger of unfair prejudice inherent in its admission” and denying defendant’s
request for a new trial because the agent’s testimony did not constitute plain
error); United States v. Nobari, 574 F3d 1065, 1075 (9th Cir. 2009) (holding
that “ethnic generalization testimony” about “Middle Easterners” and
“Mexicans” was “relevant under Federal Rule of Evidence 401, if only to a small
degree,” to explain a certain conversation, but should have been excluded
because “the minimal probative value of the evidence was substantially
outweighed by the danger of unfair prejudice,” and also concluding that the
error was harmless beyond a reasonable doubt); Jinro America Inc., 266 F3d
at 1002, 1006 (in civil case, holding, without ruling on relevance, that a private
investigator’s generalized testimony “about Korean business attitudes and
behavior” was inadmissible under Federal Rule of Evidence 403).
Because we have determined that Escamilla’s testimony in this case was
not relevant, we need not engage in a Rule 403 analysis. See OCGA § 24-4-403
(“Relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .”).
29
is “determined in the context of the facts and arguments in a
particular case, and thus [is] generally not amenable to broad per se
rules”) (italics in original); United States v. Bradley, 644 F3d 1213,
1271 (11th Cir. 2011) (“[The] determination of whether the evidence
is relevant under Federal Rule of Evidence 401 . . . must turn on the
facts of each specific case.”). Accordingly, we express no opinion as
to whether testimony referencing culture or ethnicity—including
testimony that potentially could invoke cultural or ethnic
stereotypes (whether positive or negative)—ever could be relevant
or admissible in other cases; we conclude only that Escamilla’s
testimony about Mexican or Latino culture, when considered in the
context of the other evidence presented at Martinez-Arias’s trial,
was not relevant and that the trial court abused its discretion by
admitting it here.12
12 In Nguyen v. State, 271 Ga. 475 (520 SE2d 907) (1999), we held that
the trial court did not abuse its discretion under Georgia’s old Evidence Code
when it ruled that certain cultural evidence—expert testimony about a
criminal defendant’s “Vietnamese religious beliefs, values[,] and cultural
traditions in support of her justification defense”—was not admissible, but we
disapproved the Court of Appeals’s opinion “to the extent it h[eld] that evidence
30
4. The Admission of Escamilla’s Testimony Was Harmless
Although the trial court abused its discretion when it admitted
Escamilla’s generalized testimony about Mexican and Latino
culture, our inquiry does not end there; we must also evaluate
whether the evidentiary error was harmless. To that end, “even
where an abuse of discretion is shown, there are no grounds for
reversal if the error did not affect a substantial right, and thus
harm, the defendant.” Neuman v. State, 311 Ga. 83, 91 (856 SE2d
of a criminal defendant’s cultural background is never relevant.” Id. at 476-
477. In that case, this Court noted that it could “envision rare situations in
which such evidence might be relevant to assist the jury in understanding why
an accused acted in the way he or she did” and cited as a hypothetical example
“a situation in which an accused, based on the cultural beliefs, value and
traditions of his or her family, friends and associates, might reasonably believe
imminent physical harm would be inflicted on the accused by the others
consistent with that cultural background.” Id. at 476 & n.1. Like the Court
today, however, this Court in Nguyen concluded “that situation [was] not
present in [that] case.” Id. at 476. See also Lee v. State, 262 Ga. 593, 594 (423
SE2d 249) (1992) (under old Evidence Code, holding that the trial court did not
err by “refusing to allow an expert in Chinese culture to testify” in a case where
the “defendant maintained that he fired the first shot [that killed the victim]
accidentally, while the second shot was in self-defense” because the proffered
expert testimony was not relevant; the defenses raised “were matters the jury
was able to resolve,” and “evidence of the effects of Chinese culture on the
defendant in firing the shots would not have aided the jury in its search for
truth,” but noting that “the defendant was permitted to testify to many aspects
of Chinese culture” even apart from the testimony he sought to elicit from his
expert).
31
289) (2021) (citation and punctuation omitted). See also OCGA § 24-
1-103 (a) (“Error shall not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the party is
affected[.]”). “The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did not
contribute to the verdict.” Cook v. State, 862 SE2d 510, 512-513
(2021) (citation and punctuation omitted). “In determining whether
the error was harmless, we review the record de novo and weigh the
evidence as we would expect reasonable jurors to have done so.”
Kirby v. State, 304 Ga. 472, 478 (819 SE2d 468) (2018) (citation and
punctuation omitted). Applying that standard, we conclude that the
erroneous admission of Escamilla’s irrelevant testimony in violation
of Rule 402 was harmless, and as a result, the error does not warrant
reversal.
Martinez-Arias essentially contends that Escamilla’s
testimony was harmful because it provoked “ethnic bias” against
Martinez-Arias in the jurors’ minds. Specifically, he argues on
appeal that the portion of Escamilla’s testimony in which she stated
32
that “boys are just supposed to be that way” and that they “have
urges” invoked “negative ethnic stereotypes” about males of Mexican
descent, implying that they are “possessed of prurient urges toward
their servile children” and are “just supposed to be that way.”
We disagree with Martinez-Arias’s characterization of
Escamilla’s testimony. Viewed appropriately in context as a
reasonable juror would, it is evident that Escamilla was describing
her personal observations about cultural attitudes within a subset
of families in which sexual abuse has occurred—and that she was
not describing characteristics of Latino men more generally:
[PROSECUTOR:] Have you, in your research with Latino
victims of sexual abuse, noticed any cultural norms
regarding sexual abuse in the Latino culture?
[ESCAMILLA:] . . . no way am I saying that [child abuse]
is acceptable norm, but it happens—but if it happens, it’s
something that you don’t share, that you keep it quiet,
that it is the girl’s fault for opening her legs and the boys
are just supposed to be that way, they just have urges.
(Emphasis supplied.) And Escamilla’s other statements—including
those about alleged “common” attitudes or “trend[s]” within Mexican
or Latino culture—did not imply to the jury that Mexican or Latino
33
males were more likely to sexually abuse children than non-Latino
males, or that Martinez-Arias’s background made it more likely that
he sexually abused M.J. Nor, as discussed further below, did the
State ever argue that the jury should infer such a conclusion from
Escamilla’s testimony. In short, the evidence does not support
Martinez-Arias’s argument that Escamilla’s testimony seeded in the
minds of the jurors the bias that he alleges. See Kirby, 304 Ga. at
478. 13
Martinez-Arias also contends that the evidence presented
against him at trial was not overwhelming and “hinged on M.J.’s
13 As mentioned above in Division 1 (d), in overruling the defense’s
relevance objection to Escamilla’s testimony, the trial court stated in the
presence of the jury that “the jury can use the evidence for whatever value, if
any, the jury finds in this case.” Martinez-Arias contends that this statement
amplified the harm he suffered from Escamilla’s testimony. But even if the
trial court erred in making this statement (and we express no opinion on this
point), we conclude that it is highly unlikely that the statement contributed to
the jury’s verdict. The trial court’s statement did not tell the jury that it must
assign value to Escamilla’s testimony; to the contrary, it contemplated that the
jury might not deem the testimony valuable at all (“the evidence for whatever
value, if any”) (emphasis supplied). Moreover, in its final instructions to the
jury, the trial court stated, among other things: “You are not required to accept
the testimony of any witnesses, expert or otherwise. Testimony of an expert,
like that of all witnesses, is to be given only such weight and credit as you think
it is properly entitled to receive.”
34
credibility.” But even if we accept for purposes of argument
Martinez-Arias’s assessment of the evidence, none of Escamilla’s
generalized testimony about cultural attitudes, when viewed in
context, either bolstered M.J.’s credibility or incriminated Martinez-
Arias. See Kirby, 304 Ga. at 478; Adkins v. State, 301 Ga. 153, 158
(800 SE2d 341) (2017) (“We consider the context of the testimony in
evaluating whether its admission was harmless.”).
To that end, the main substantive point of the testimony
Escamilla offered to explain M.J.’s behavior as it related to her
abuse—i.e., her delayed outcry—largely overlapped with the
testimony of Dr. Battle, a licensed psychologist who had experience
conducting forensic interviews of abused children and who (unlike
Escamilla) was tendered and qualified to provide expert testimony
at trial. As summarized above, Dr. Battle provided a comprehensive
and detailed explanation of why child victims of sexual abuse might
have difficulty disclosing their abuse. Indeed, Dr. Battle’s expert
testimony—which was based on extensive education and experience
and devoid of references to ethnicity or cultural stereotypes—
35
provided the same substantive information about child sex-abuse
victims that Escamilla attempted to explain through generalized
characterizations of ethnicity and cultural attitudes. Escamilla’s
testimony was therefore largely cumulative of Dr. Battle’s in this
regard. See Puckett v. State, 303 Ga. 719, 722 (814 SE2d 726) (2018)
(error in the admission of certain testimony was harmless, in part
because the testimony was “largely cumulative” of other
“unobjected-to testimony”).
Furthermore, apart from Escamilla’s testimony, the State did
not otherwise rely on or refer to culture or ethnicity to support its
case against Martinez-Arias. Indeed, M.J. did not reference her
ethnic or cultural background when the prosecutor asked why she
did not disclose her abuse earlier; she instead testified that she did
not want Martinez-Arias and Cruz to be separated, that she “didn’t
know if anyone would believe [her],” and that she was “scared” of
losing her brothers—sentiments similar to the ones Dr. Battle
explained as common among child sex-abuse victims and which
could result in delayed reports of abuse.
36
Finally, neither the substance nor the effect of Escamilla’s
irrelevant testimony was amplified during the trial. Escamilla was
the last witness to testify on behalf of the State, and none of the
State’s earlier witnesses were questioned about or repeated
Escamilla’s testimony; Martinez-Arias’s counsel likewise did not ask
any of the defense witnesses about Escamilla’s testimony or about
cultural characteristics more generally. Moreover, in closing
arguments, the prosecutor did not reference Mexican or Latino
culture or ethnicity and did not mention Escamilla’s testimony at
all—though the prosecutor did mention Dr. Battle’s. Instead, the
prosecutor heavily emphasized the evidence presented at trial that
supported M.J.’s credibility, telling the jury, among other things,
that M.J. “sobbed for two hours in front of you, trying, trying to tell
you what happened to her” and that she had no motive to lie: “Why
would she lie? What does she stand to gain? She stands to gain
nothing but embarrassment[,] upset, depression.” See Taylor v.
State, 306 Ga. 277, 283 (830 SE2d 90) (2019) (error in admitting
certain evidence was harmless, in part because there was “no
37
contention that the State mentioned or relied upon the [evidence]
during its closing argument to the jury”).
For these reasons, it is highly unlikely that—based on the
record in this case—Escamilla’s erroneously admitted testimony
contributed to the jury’s verdict. See Kirby, 304 Ga. at 487 (error in
admitting certain evidence was harmless because it was “easily
offset by the other compelling evidence” against defendant); Morgan
v. State, 307 Ga. 889, 898 (838 SE2d 878) (2020) (erroneously
admitted evidence was harmless where it “played a minor role in
both the State’s case and [defendant]’s theory of defense” and there
was “no likelihood that the jury would have weighed the case
differently had the trial court excluded” the evidence in question).
To conclude, the trial court and the Court of Appeals erred
when they held that Escamilla’s testimony was relevant. But
because the Court of Appeals’s ultimate judgment affirming
Martinez-Arias’s convictions was correct, we affirm. See Nordahl v.
State, 306 Ga. 15, 27 (829 SE2d 99) (2019) (affirming the judgment
of the Court of Appeals under the “right-for-any-reason doctrine”).
38
Judgment affirmed. All the Justices concur, except Ellington
and LaGrua, JJ., who concur specially. Peterson, J., not
participating.
39
S21G0150. MARTINEZ-ARIAS v. THE STATE.
LAGRUA, Justice, concurring specially.
With regard to Footnote 4 of the majority opinion, I concur that
when circumstances arise that necessitate a change in a party’s legal
position, parties should notify the Court and opposing counsel as
soon as possible to allow time for preparation and response to these
new or changed positions. And, here, the State should have advised
opposing counsel that the State was changing its position before oral
argument, particularly because opposing counsel utilized the
entirety of his allotted time without the benefit of that information.
Consequently, the State was admonished by the Court on more than
one occasion, and the State was contrite in apologizing to the Court
and acknowledging its error. However, I am concerned that the
inclusion of this footnote in the majority opinion may result in
unintended consequences.
Litigants may occasionally realize that their position has
become tenuous – either because they have retained new counsel or
40
because the law or other circumstances have changed – and they
may fail to timely notify the Court and opposing counsel before the
commencement of oral argument. But, emphasizing their mistake
again in an opinion may discourage future litigants who recognize,
too late, that they need to change their position or concede an issue
on appeal. Instead, I want to empower litigants to exercise candor
and professionalism with the Court when necessity warrants it.
I am authorized to state that Justice Ellington joins in this
special concurrence.
41