* This Order and Judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 26 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AMOS MARTINEZ, Defendant-Appellant. No. 00-2054 (D.C. No. CR-98-556-MV) (Dist. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.

Amos Martinez appeals his conviction for aggravatedsexual assault. He challenges the admission of expert testimony on two grounds: First, he asserts the district court did not make an adequate finding of the reliability of the expert’s methodology; and second, he argues the testimony wa s more prejudicial than probative. He also contends the prosecution’s closi ng statements appealed to the sympathy of the jury. We find no plain error and th erefore affirm.1 The alleged victim’s full name does appear in unsea led parts of the record.

However, to the extent it may assist her in preserv ing her privacy, we refer to her by an initial. See United States v. Charley , 189 F.3d 1251, 1256 n.1 (10th Cir. 1999). - 2 - BACKGROUND Amos Martinez was prosecuted for sexually assaultin g C. 1 on an Indian reservation on May 4, 1998, in violation of 18 U.S. C. § 2241(c). At the time, C. was ten years old. She is the daughter of Martinez’ s ex-wife and calls Martinez (to whom she is not related) “grandpa.” A. Evidence of C.’s Sexual Abuse There was physical evidence that at some point C. h ad been raped, since she was diagnosed with a sexually transmitted disea se and had a torn hymen. No physical evidence, however, directly implicated Martinez. For example, in spite of C.’s report to several people that Martinez had eja culated on her and that she had bled from the encounter, no semen or blood was foun d on the clothes C. wore that day. In addition, the trauma to her hymen likely oc curred weeks or months before the alleged incident. C. exhibited antisocial behav iors consistent with sexual abuse, but at least some of these predated the alle ged assault. B. Evidence of Martinez’s Guilt In May 1998 C. told a nurse practitioner that Marti nez “stuck [his penis] in her”, but later stated in an interview with defense counsel and her family present- 3 -

that Martinez had not done anything. At trial, she testified via closed-circuit television and was extremely reticent. Through lead ing questions, the prosecution elicited testimony that Martinez had touched her be tween her legs and on her chest, although C. said nothing about penile-vagina l contact. She stated that the incident made her feel “[a]wful.” Her therapist at the time of the incident testified that on May 6, 1998, C. had reported that Martinez touched her bosom and pelvic area two days before. Martinez, who speaks little English, was questionedby the FBI and consented to a polygraph examination. After being t old that he had failed the polygraph, Martinez signed a written statement in w hich he confessed to penilevaginal penetration, admitted he knew it was wrong and illegal to have sex with an eleven-year-old girl, and took responsibility fo r his actions. The confession further stated that Martinez had not received any t hreats or promises to induce the confession. He later recanted and asserted that he was coerced into confessing by the agents’ aggressive questioning.2 Tyler also testified at a hearing on the government ’s motion to present C.’s

testimony via closed-circuit television. At that he aring, the court recognized Tyler as an expert in the field of clinical psychology an d granted the motion. - 4 - C. Tyler’s Testimony At trial, the prosecution presented testimony from Judith Tyler, who became C.’s mental health counselor shortly after t he alleged sexual assault. 2 Tyler has a clinical master’s degree, a doctorate i n clinical psychology, and a license as a professional clinical counselor. She h as attended a week-long seminar on sexual trauma. She was a counselor for Child Pro tective Services and has seen 50-100 cases of childhood trauma over the years. The court accepted Tyler as a licensed professional clinical counselor with a specialty in the field of trauma. Martinez object ed that “trauma” was too broad a field to describe her expertise. There was no speci fic testimony about the reliability of her methodologies, other than the ge neral testimony as to her background. Tyler testified as to C.’s emotional state, noting that she had become increasingly withdrawn and had threatened suicide at one point. Tyler indicated that C.’s symptoms – sleeping and eating problems –were consistent with trauma. When the prosecutor asked her what trauma she was r eferring to, Tyler answered, “I’m talking about her allegations of the – of sexu al abuse.” Tyler made no reference to Martinez in her direct testimony; she did note, however, “As is- 5 -

typical with a family in which there’s been a discl osure like this, the family seemed to be taking sides, and I knew that C. was g etting a lot of criticism and rejection by various family members as a result of having disclosed.” On cross-examination, Tyler conceded that C. had “v ery disturbing symptoms” dating back to before the alleged inciden t. These included incidents of C. stealing, lying, taking off her clothes, and “ta lk[ing] dirty” with other children. These pre-incident symptoms were consistent with tr auma. Moreover, defense counsel noted that when Tyler was describing C.’s s ymptoms to the jury, she was reading them out of the DSM-IV definition of post-traumatic stress disorder (until counsel noticed and objected). Tyler also conceded that her clinical record did not note C.’s sleeping problem, which Tyler asserted sh e had learned about only in the previous few days, or her eating problem. Final ly, Tyler admitted that some of the observed symptoms may have been related to the stress that C. was experiencing in anticipation of testifying, but was adamant that “that’s not the majority” of her problem. On redirect, Tyler noted that C. had expressed fearof Martinez, who was still coming to her house to visit her siblings (hi s children). Over defense counsel’s objection, Tyler testified that C. had to ld her about a more recent incident with Martinez, in which C. had been washin g dishes when Martinez approached her from behind and began fondling her. Tyler also discussed a- 6 -

nightmare that C. had in which the police were bein g “mean” to Martinez. Tyler saw this as indicating “on the surface a concern an d a caring about the alleged perpetrator.” She referred in the abstract several times to a child victim’s mixed feelings towards the “perpetrator” and concluded, “ [T]o me the dream was a very clear expression of that dilemma that a child who m ay have been incested is feeling.” D. Trial Martinez had been indicted on two counts of aggravated sexual assault, one for “contact between the penis of the defendant and the vulva of” C., and the other for “the intentional touching, not through th e clothing, of the genitalia of [C.], with an intent to abuse, humiliate, harass, d egrade and arouse and gratify the sexual desire of the defendant.” The jury acquitted him of penile-vaginal contact, but found him guilty of touching C.’s genitalia. Ma rtinez was sentenced to 135 months’ imprisonment. On appeal, Martinez challenges only the district co urt’s decision to admit Tyler’s expert testimony. He raises two objections: first, that Tyler was not qualified to give the testimony, and second, that t he probative value of the testimony was substantially outweighed by its dange r of unfair prejudice. He also asserts that the prejudice was compounded by the pr osecutor’s closing statements, which he alleges appealed to the jury’s sympathy.- 7 - DISCUSSION I. Jurisdiction and Standard of Review The district court had jurisdiction over this crimi nal prosecution under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We granted Martinez’s motion to waive oral argument in a priororder. Martinez concedes that he did not raise the objecti ons asserted on appeal in the trial court. We therefore review for plain erro r. See Fed. R. Crim. P. 52(b). To reverse, we must find (1) error that is (2) plain and (3) affects substantial rights.
See Johnson v. United States , 520 U.S. 461, 467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). For the third prong, “[i]t is the defen dant rather than the Government who bears the burden of persuasion with respect to prejudice.” United States v. Olano , 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). If all three preconditions are met, we may consider whether to e xercise our discretion to reverse, but only if the error “seriously affects t he fairness, integrity, or public reputation of judicial proceedings.” Johnson , 520 U.S. at 467. II. Tyler’s Qualification To Testify Federal Rule of Evidence 702 requires the trial cou rt to ensure that expert testimony is reliable. See United States v. Velarde , 214 F.3d 1204, 1208 (10th Cir. 2000). The court has broad discretion both in deciding how to assess reliability and in making the ultimate determinatio n. See id. at 1208-09.- 8 -

In this case, the trial court made no explicit find ing on reliability, but Martinez did not call Tyler’s methodology or princi ples into question. Although the district court should nevertheless have made re liability findings, under these circumstances we will look to the record to discernsupport for the district court’s decision to allow the testimony. Here, it is eviden t the trial court had a sufficient basis to admit the vast majority of Tyler’s testimo ny. First, as C.’s clinical therapist, Tyler was able to testify as to her pers onal observations of C. “A treating physician is not considered an expert witn ess if he or she testifies about observations based on personal knowledge, including the treatment of the party.” Davoll v. Webb , 194 F.3d 1116, 1138 (10th Cir. 1999). Second, the court had considerable evidence of Tyler’s training and profe ssional experience. Martinez’s counsel conducted voir dire on these qualifications . When Tyler did offer testimony that went beyond her treatment, this back ground generally sufficed to substantiate her opinions. For example, Tyler compared C.’s behavior to those of other children who have experienced trauma. Martinez objects specifically to two aspects of Tyl er’s testimony. First, as noted above, she discussed typical behaviors of traumatized children. Second, she identified Martinez’s alleged assault of C. as the cause of the trauma in this case. We hold that the district court did not commit plai n error in admitting these

statements.- 9 -

Even if we were to assume these statements should h ave been excluded, Martinez has not demonstrated that they affected hi s substantial rights. “The substantiality requirement of the plain error rule embodies a requirement that the defendant prove prejudice attributable to the error .” United States v. Williamson , 53 F.3d 1500, 1521 (10th Cir. 1995). To satisfy thi s prong, Martinez must show a reasonable probability that (1) if the district cou rt had inquired into reliability, it would not have accepted Tyler as an expert witness, and (2) if her testimony had been limited thus, Martinez would have been acquitt ed on the second count. Cf. United States v. Hanif

, 1 F.3d 998, 1002 (10th Cir. 1993) (noting that th e defendant “must allege prejudice – i.e. , that the district court admitted inadmissible evidence – to allege” a violation of F ed. R. Evid. 103(c)). We find nothing in the record to support Martinez’s allegation that Tyler’s testimony would have been excluded had the court ma de an explicit reliability determination. Martinez had an opportunity to ask about the foundations of Tyler’s testimony on cross-examination and recross, but declined to do so. Indeed, when she started to testify on redirect that the th ird phase of trauma reaction has “been written extensively about by experts in the f ield of child trauma,” defense counsel successfully objected that this was hearsay . It thus appears that Martinez himself prevented Tyler from establishing the reliability of her expert opinions.- 10 -

On this record, Martinez has not met his burden to show that Tyler’s testimony would have been limited. Moreover, even if it had been limited, we do not fi nd a reasonable possibility the outcome would have differed. Many o f the statements Martinez objects to, such as those characterizing the typica l behaviors of traumatized children, were too general and abstract to prejudic e Martinez in this case. The other statements, such as Tyler’s reference to “herallegations of the – of sexual abuse,” constituted only a small part of the testim ony, and Tyler qualified this reference to sexual abuse as an “allegation” ratherthan as a “fact.” Nearly all of Tyler’s testimony was unobjectionable, and on appea l Martinez has not objected to the testimony of any other witnesses. Cf. United States v. Charley , 189 F.3d 1251, 1271 (10th Cir. 1999) (“[O]nly a small, albei t important, portion of the testimony admitted at trial was erroneously admitte d.”). On this record, we cannot say Martinez has shown that his substantial rights were affected by the admission of Tyler’s testimony. III. Rule 403 Martinez also objects to Tyler’s testimony under Fe deral Rule of Evidence 403, which states that relevant evidence may be exc luded “if its probative value is substantially outweighed by the danger of unfair pr ejudice.” “Rule 403 is an extraordinary remedy and should be used sparingly.” United States v. Rodriguez ,- 11 -

192 F.3d 946, 949 (10th Cir. 1999). Tyler’s testimo ny helped the jury understand C.’s behavior both before and after the alleged ass ault. Even if it could have been somewhat prejudicial to Martinez, it was within the district court’s discretion to find its danger of unfair prejudice did not substantially outweigh its probative value. Under the circumstances, it was not plain er ror for the court to admit Tyler’s testimony. IV. Closing Statements Martinez objects to several statements in the prose cution’s closing arguments that highlighted C.’s trauma. In particul ar, the prosecution closed with these words: And certainly this kid was trashed as any victim of sexual assault is always trashed. And yes, she had behavioral problem s, but I ask you, who is the thief in this case? Who stole [C.]’s chi ldhood? Who violated this child and told you how awful she feel s, and she can’t even tell you exactly what he did to her. I ask you, ladies and gentlemen, to convict that ma n of both counts of aggravated sexual abuse of [C.] Martinez argues that these and other similar statem ents were inflammatory and appealed to the jury’s sympathy. “We do not condone comments encouraging the jury to allow sympathy, sentiment, or prejudice to influence its decision.” Duvall v. Reynolds , 139 F.3d 768, 795 (10th Cir. 1998). Nonetheless, if “it [is] probable that the nature of the crime produced sympathy for the victim long before the prosecutor gave his- 12 -

closing remarks,” the remarks may not be prejudicia l. Id. The trauma to C. was hideous no matter who was responsible, and it was l ikely to produce sympathy. The prosecution’s remarks did not add to the jury’s sympathy in any significant way. The defense counsel cautioned the jury not to be swayed by sympathy, and the prosecution disclaimed any intention to inject sympathy into the deliberations. The jury instructions stated that the verdict had t o be based “solely upon the evidence, without prejudice or sympathy.” Neither of the cases that Martinez relies upon is r elevant. In United States v. Lowder , 5 F.3d 467, 473-74 (10th Cir. 1993), we noted that it was improper for the prosecution to state that the victims had nobody to speak for them, but we found the judge’s curative instruction (given aftera contemporaneous objection) to be sufficient. Thus, we found no reversible erro r. In United States v. Payne , 2 F.3d 706, 712 (6th Cir. 1993), the court found misc onduct when the prosecution repeatedly referred to facts not in evidence during the trial. The court noted that these remarks went “beyond anything in the evidence or anything invited by the defense.” Id. at 715. Here, by contrast, there was no reference made to facts not in evidence. Under the circumstances, we find no plain error in the prosecution’s closing

statements.- 13 - CONCLUSION We find no plain error and therefore AFFIRM.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge