Opinion
No. 2 CA-CR 2019-0052
11-24-2020
THE STATE OF ARIZONA, Appellee, v. TOMMY GONZALES NAJAR, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Michael T. O'Toole, Acting Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20175140001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Michael T. O'Toole, Acting Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Tommy Najar appeals from his convictions after a jury trial for two counts of continuous sexual abuse of a child and two counts of kidnapping. The trial court sentenced Najar to presumptive, consecutive prison terms totaling seventy-four years. On appeal, Najar contends that the trial court abused its discretion in admitting other-act evidence and permitting the state's expert to testify about the "process of victimization." We affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Najar. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). At trial, the victims in this case, Carl and Jane, Najar's wife's grandchildren, testified to numerous incidents of sexual abuse by Najar, including both oral sexual conduct and sexual intercourse, over a number of years. Both Jane and Carl testified that the sexual abuse had begun when they were eight or nine years old. Carl testified that the abuse had occurred until 2004 when he was thirteen years old, and he did not tell anyone about the abuse or report it to law enforcement until 2017. After Carl told his family about the abuse, Jane revealed that she had also been abused by Najar. Jane testified that before that, she had not told anyone. A witness, April, an adult at the time of trial, testified Najar had sexually abused her when she was a child in the 1980s.
In this decision, we refer to the victims by the pseudonyms used in the state's answering brief. See Ariz. R. Crim. P. 31.10(f) (allowing the use of pseudonyms for victims in briefs).
April is the pseudonym used in the state's answering brief.
¶3 The state also called Dr. Wendy Dutton, a forensic interviewer who works with children who report abuse. Dutton testified to what she called the "process of victimization" and explained why child victims of sexual abuse either do not report, or significantly delay reporting such abuse, and why their memories are often compromised.
¶4 Najar was convicted and sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Analysis
Other Act Evidence
¶5 On appeal, Najar contends that the trial court abused its discretion when it admitted "other act" evidence under Rule 404(b) and (c), Ariz. R. Evid. Specifically, he argues the court should have precluded April's testimony relating to Najar sexually abusing her and Carl's testimony as to sexual abuse by Najar in Maricopa County predating the charged offenses. The state argues that this evidence was properly admitted. We review the admission of Rule 404(b) and (c) other-acts evidence for abuse of discretion. State v. Yonkman, 233 Ariz. 369, ¶ 10 (App. 2013).
¶6 The state filed a notice before trial of its intent to introduce the contested testimony. It claimed that both Carl's and April's testimony was admissible for proper purposes under Rule 404(b) and (c), specifically to prove "aberrant sexual propensity, motive, identity, and absence of mistake." Najar countered that because his defense was that "he didn't do it," identity and mistake were not at issue in this case.
¶7 The trial court determined that the evidence of other acts was sufficient to show, by clear and convincing evidence, that Najar had the aberrant sexual propensity to commit the charged crimes. It found that "all the other acts involve children between six and [thirteen]; all have familial relationships with [Najar], that is that he has access to them, they're a daughter or stepchildren." The court further determined "that the evidentiary value of the other acts is not substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." It then added "for clarity," that the other-acts evidence would also be admissible under Rule 404(b), Ariz. R. Evid., to show identity and motive.
¶8 At the time of trial, April was forty-four years old. She testified that Najar had married her mother when she was five or six years old and Najar then began sexually touching her. April recalled that, when she was nine years old, Najar had exposed his penis and asked her to "lick it like a lollipop." Najar proceeded to touch April's genitals and then, she testified, he put his penis inside her vagina. April said that "these things" happened more than once. April eventually reported the abuse years after it ended and spoke with a detective when she was around thirteen years old.
¶9 During trial, Najar drew attention to the differences between April's recollection of the details of the abuse in her report to law enforcement in 1988, to a detective in 2017, and in her testimony at trial. For instance, in her initial report and in 2017, she did not mention that Najar had told her how to perform oral sex and in the original report she had told the detective she was abused every day for two years after school.
¶10 Carl testified that, when he was eight or nine years old, he had been helping Najar clean an office building in Phoenix when Najar pulled his own pants down and showed him how to "do it" "like it was a lollipop." He went on to testify to the charged offenses—numerous instances of sexual abuse—that occurred in Pima County. Jane also testified that the first time Najar had her perform oral sex he told her to "lick[] [his penis] like it was a lollipop."
¶11 On appeal, Najar argues that the trial court abused its discretion in admitting April's testimony, as well as Carl's testimony about the incident that occurred in Maricopa County because "the probative value of the uncharged acts was substantially outweighed by the risk of unfair prejudice and confusion of the issues." He further argues that April's testimony was inadmissible under Rule 404(c) because it involved "inconsistent allegations" and involved an "extremely remote" incident. He does not, however, identify any inconsistencies in April's testimony. And, other than his conclusory claim of unfair prejudice and issue confusion as to Carl's testimony, Najar does not provide any substantive argument against its admission. See State v. Moody, 208 Ariz. 424, n.11 (2004) (failure to develop argument may constitute waiver).
¶12 As to Najar's remoteness argument challenging April's testimony, Rule 404(c), Ariz. R. Evid., provides that, when a defendant is charged with having committed a sexual offense, "evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to aberrant sexual propensity to commit the offense charged." Such evidence may only be admitted if the court finds that "[t]he evidence is sufficient to permit the trier of fact to find that the defendant committed the other act," "the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged," and "[t]he evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues," or other Rule 403, Ariz. R. Evid., factors. Ariz. R. Evid. 404(c)(1)(A)-(C).
¶13 In balancing the probative and prejudicial nature of the other act, Rule 404(c)(1)(C) instructs the trial court to consider several factors, including remoteness and similarity. See Ariz. R. Evid. 404 cmt. to 1997 amend. (remoteness and similarity are "solely factors to be considered" under Rule 404(c)(1)(C)). The rule does not create a "bright line test of remoteness or similarity." Id. We have held that remote, prior acts are admissible when those acts are similar to the charged acts. See State v. Salazar, 181 Ariz. 87, n.5 (App. 1994) (prior act that occurred twenty years before charged offense admissible when similar in setting, age of victim, and mode of operation); State v. Weatherbee, 158 Ariz. 303, 304-05 (App. 1988) (prior act that occurred twenty years before admissible when similar in type of victim involved, type of sex act, and parental authority exercised).
¶14 The abusive acts in the 1970s to which April testified are indeed remote in time. But, Najar's prior acts with April were sufficiently similar to the charged offenses to infer an aberrant sexual propensity. Najar's prior acts and the charged offenses involved children between the ages of six and thirteen and all the children had a familial relationship with Najar. As to Carl's testimony regarding the non-charged Maricopa County acts, those acts were also sufficiently similar to the acts reported by both Jane and April to infer an aberrant sexual propensity. The prior acts to which Carl and April testified involved Najar instructing a child how to perform oral sex in the same way Jane was instructed and each victim and April described specific oral and sexual incidents. The evidentiary value of this evidence is not substantially outweighed by any danger of unfair prejudice that resulted from the mere remoteness of the prior acts. Thus, the trial court did not abuse its discretion in admitting Carl's and April's testimony pursuant to Rule 404(c).
Expert Testimony
¶15 Najar argues the trial court erred when it admitted Dr. Dutton's testimony as a "cold" expert on sexual abuse. He asserts that her testimony amounted to impermissible profile evidence. "We review a trial court's admission of expert testimony for an abuse of discretion." State v. Salazar-Mercado, 234 Ariz. 590, ¶ 13 (2014).
A "cold" expert refers to an expert that has no knowledge about the victims or facts in this case but educates the fact-finder on general principles. State v. Salazar-Mercado, 234 Ariz. 590, ¶ 14 (2014).
¶16 Najar filed a pretrial motion to preclude Dr. Dutton from testifying about "the process of victimization" or "offender profiling." The state opposed the motion. The trial court denied the motion, reasoning that Arizona courts have ruled on the issue and allowed Dutton's similar testimony in other cases.
¶17 Dr. Dutton ultimately testified as to how, why, and when child abuse victims report abuse; why children delay disclosure of sexual abuse; and how children's memories work. She also testified to the general process by which sex offenders target, approach, and engage with their child victims. Dutton referred to this as "the process of victimization" and explained that it includes "[v]ictim selection, engagement, grooming, assault and concealment." Dutton noted that her testimony was based on interviews with child victims and their descriptions of sexual abuse.
¶18 Dr. Dutton described a number of circumstances that constitute "engagement"—including that a perpetrator may enter into the family and "establish a relationship of power and control" by physically or emotionally abusing the child's primary caretaker or taking over discipline of the child and becoming physically or verbally abusive. Additionally, Dutton testified that other children report that they have a familial relationship with the perpetrator before the abuse begins, and other times, when the perpetrator is outside the family, the perpetrator may develop a relationship of trust with the parents and establish a "special relationship" with the child by giving gifts. Dutton clarified that she had no opinion as to whether the alleged victims in this case were telling the truth and that she did not know any of the facts or allegations in this case. She did not compare Najar's acts to that of a typical child abuser or discuss any facts or evidence presented at trial.
¶19 Najar claims Dr. Dutton's testimony "created a profile of abusers that was meant to fit [Najar]." He contends that the admission of Dutton's testimony "as substantive proof of guilt, as in this case, is error because its probative value is far outweighed by the risk of unfair prejudice in violation of Rule 403." The state asserts that Dutton's testimony was not profile evidence, but "concerned the general process of sexual abuse from the victim's perspective and did not focus on or only describe the characteristics of an offender."
¶20 "Profile evidence" is evidence that "tends to show that a defendant possesses one or more of an 'informal compilation of characteristics or an abstract of characteristics typically displayed by persons' engaged in a particular activity." State v. Ketchner, 236 Ariz. 262, ¶ 15 (2014) (quoting State v. Lee, 191 Ariz. 542, ¶ 10 (1998)). Such evidence can lead to 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." Lee, 191 Ariz. 542, ¶ 14. "Although there may be legitimate uses for profile evidence, . . . profile evidence may not be used as substantive proof of guilt because of the 'risk that a defendant will be convicted not for what he did but for what others are doing.'" Ketchner, 236 Ariz. 262, ¶ 15 (quoting Lee, 191 Ariz. 542, ¶ 12).
¶21 Evidence of a perpetrator's characteristics may be admissible if "relevant for a reason other than to suggest that the defendant possesses some of those characteristics and therefore may have committed the charged crimes" and if its probative value is not substantially outweighed by unfair prejudice. State v. Haskie, 242 Ariz. 582, ¶ 17 (2017); Ariz. R. Evid. 403. For instance, expert testimony on offender characteristics may be admissible if it also "explains a victim's seemingly inconsistent behavior . . . to aid jurors in evaluating the victim's credibility." Haskie, 242 Ariz. 582, ¶ 16. "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 (1998). We must decide each case based on the specific testimony presented and "consider the prejudicial effect of the expert's testimony as a whole, as well as that of each individual statement offered." See Haskie, 242 Ariz. 582, ¶¶ 18, 24.
¶22 The Arizona Supreme Court has held, specifically as to Dr. Dutton's testimony as a cold expert on child sexual abuse, that her testimony satisfies Rule 702, Ariz. R. Evid., which governs the admissibility of expert testimony. Salazar-Mercado, 234 Ariz. 590, ¶ 15; see also State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 29 (App. 2013) (holding Dutton's testimony about how and when child sex-abuse victims disclose abuse was helpful to jury and admissible); State v. Curry, 187 Ariz. 623, 628 (App. 1996) (Dutton's testimony on behavioral characteristics common to child sex-abuse victims admissible). In Salazar-Mercado, as in the present case, the child victims exhibited behaviors affecting credibility in that they had "delayed reporting alleged sexual abuse by a relative and had trouble pinpointing when events occurred." Salazar-Mercado, 234 Ariz. 590, ¶ 15. And one victim "changed her version of events between the time of reporting and trial." Id. Dutton testified as a cold expert "explaining generally how children perceive sexual abuse, describing behaviors involving disclosure of abuse, and relating circumstances in which children may make false allegations." Id. ¶ 2. Our supreme court held that "[b]ecause Dutton's testimony might have helped the jury to understand possible reasons for the delayed and inconsistent reporting in the case, her testimony satisfied Rule 702(a)." Id. ¶ 15.
¶23 Dr. Dutton's testimony here about the process of victimization generally concerned the victim's behavior and characteristics rather than the perpetrator's characteristics and, as in Salazar-Mercado, provided further context as to why a victim may have delayed disclosure and acquiesced to abuse. We thus agree with the state that Dutton's testimony gave appropriate context to the testimony of Carl, Jane, and April, helping the jury understand why their reports were not closer in time to their abuse or wholly consistent over time. Even though her testimony discussed the conduct of abusers, albeit from the reporting victim's perspective, it did not become impermissible profile evidence. And, given the probative value of Dutton's testimony in explaining the context and actions of child sexual abuse victims, its value was not outweighed by any concerns of unfair prejudice, and thus the trial court did not abuse its discretion in admitting it.
Disposition
¶24 For the foregoing reasons, we affirm Najar's convictions and sentences.