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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND 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.

JULIO CESAR GARCIA-MEZA, Appellant.

No. 1 CA-CR 13-0672

Appeal from the Superior Court in Maricopa County

No. CR2012-007431-001

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eliza Ybarra

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Margaret M. Green

Counsel for Appellant
STATE v. GARCIA-MEZA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in 

which Judge Donn Kessler and Judge Kent E. Cattani joined.

T H O M P S O N, Judge:

¶1 Defendant Julio Cesar Garcia-Meza appeals from his 

convictions and sentences for twenty-five sex offenses committed against a 

minor victim. He argues the court fundamentally erred in permitting the 

state’s expert to testify generally about child victims’ different reactions to 

sexual abuse. Defendant also asserts the form of verdict for count 5

improperly reflected a crime for which he was not charged. Defendant 

further contends the court abused its discretion in giving the jury access to 

transcripts of his police interview and his confrontation call with the victim. 

Finally, defendant argues the court should have granted his motion for 

judgment of acquittal regarding the charge of furnishing obscene or 

harmful items to minors. For the following reasons, we affirm defendant’s 

convictions and sentences.

BACKGROUND

¶2 By an indictment filed June 21, 2012, the grand jury charged 

defendant with twenty-five sex-related offenses committed over 

approximately ten years beginning when the victim was six years old. Five 

of the charges were for molestation of a child, a class two felony and 

dangerous crime against children, and four of the charges were for sexual 

abuse, a class three felony and dangerous crime against children. See Ariz. 

Rev. Stat. (A.R.S.) §§ 13-1404 (2010) (sexual abuse), -1410 

(2010)(molestation).

¶3 At the time of the alleged crimes, defendant’s wife, the 

victim’s nanny, lived with the victim’s family. When defendant and his 

wife were first married, he would visit the victim and her family, and 

beginning when the victim was eight or nine years old, defendant spent 

every weeknight at the victim’s home. 

¶4 At some point after December 7, 2012 but before trial, the 

indictment was amended to renumber certain charges, including two that 

related to another minor victim. The amended indictment’s caption also 
STATE v. GARCIA-MEZA

Decision of the Court

3

changed the allegation of count 5 from sexual abuse to molestation of a 

child. The statutory violation and factual description of the allegation, 

however, remained unchanged: 

COUNT 5:

JULIO CESAR GARCIA-MEZA, on or between the 19th day 

of June, 2002 and the 19th day of June, 2005, intentionally or 

knowingly engaged in any direct or indirect touching, 

fondling, or manipulating of any part of the female breast of 

[the victim], a minor under fifteen years of age, (to-wit: same 

incident as Count 4) in violation of A.R.S. §§ 13-1404, 13-1401, 

13-3821, 31-281, 13-604.01, 13-702, 13-702.01, and 13-801.1

The record is silent as to both the rationale for amending the count and 

precisely when the amendment occurred.

¶5 On the first day of trial, the state moved to dismiss the two 

allegations regarding the other victim. Defendant consented to the 

dismissal, and the indictment was amended accordingly. The date range 

for count 5 was also changed from “on or between the 19th day of June, 

2002 and the 19th day of June, 2005” to “on or between the 19th day of June, 

2002 and the 19th day of June, 2004” but otherwise remained unchanged 

from its previous amendment. As reflected in the clerk’s reading of the 

second amended indictment to the jury, count 5 cited to and tracked the 

language of A.R.S. § 13-1404, the sex abuse statute, while referring to 

molestation of a child in the caption. Defendant was tried on six counts of 

molestation of a child and three counts of sexual abuse in addition to the 

remaining counts. 

¶6 Wendy Dutton, a forensic interviewer at Phoenix Children’s 

Hospital, testified on behalf of the state regarding research of child sexual 

abuse and her experience working in the field. Knowing nothing about the 

circumstances of this case, Dutton provided expert testimony explaining 

such topics as the behavior patterns of child victims’ and their diverse

reactions to sexual abuse.

¶7 The state also introduced into evidence translated transcripts 

of defendant’s police interview and a confrontation call between defendant 

and the victim (transcripts). Over defendant’s objection, the court admitted 

 

1 Count 4 remained unchanged and alleged molestation that occurred at 

the victim’s home between June 19, 2002 and June 19, 2004.
STATE v. GARCIA-MEZA

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4

the transcripts into evidence. A prosecutor read them aloud to the jury, and 

the court allowed the jury to have access to the exhibits during 

deliberations.2

¶8 Based on the evidence presented, including the victim’s 

testimony, the court denied defendant’s motion for judgment of acquittal. 

See Ariz. R. Crim. P. 20. Thereafter, the jury found defendant guilty on all 

counts. With respect to Count 5, the jury found defendant guilty of 

molestation of a child as reflected in the verdict form. The court imposed 

presumptive consecutive sentences, including three life terms. Defendant 

timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) 

(20003), 13-4031 (2010), and -4033(A) (2010).

DISCUSSION

I. Dutton’s Testimony

¶9 Defendant argues the court committed fundamental error in 

permitting Dutton to testify. Specifically, defendant contends the 

testimony was unhelpful to the jury because Dutton stated that not all 

minor victims respond to sexual abuse in the same manner, and there are 

“no certainties . . . about this type of situation.”3 

¶10 To obtain relief under fundamental error review, defendant 

has the burden to show that error occurred, the error was fundamental and 

he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 

20-22, 115 P.3d 601, 607-08 (2005). “Before we may engage in a fundamental 

error analysis, however, we must first find that the trial court committed 

some error.” State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342, (1991).

¶11 Arizona Rule of Evidence 702(a) provides:

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 . . . 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[.]

 

2 A recording of the confrontation call was also played for the jury at 

trial.

3 Defendant does not challenge Dutton’s qualifications as an expert in 

child sex abuse.
STATE v. GARCIA-MEZA

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¶12 Here, as noted, Dutton did not have any knowledge 

regarding the victim or as to the circumstances of the allegations against 

defendant. Defendant is correct that Dutton testified that almost any 

behavior could be consistent with being a child sexual abuse victim, but this 

assertion explains why such testimony was relevant. The victim’s 

credibility here was a key issue at trial, and the state offered Dutton’s 

testimony to dispel common misconceptions that child sexual abuse victims 

will always act or respond to abuse in the same manner. 

¶13 For example, Dutton testified that child victims may have 

difficulty recalling specific details of abuse incidents if they dissociate 

themselves from the sexual acts as the abuse is occurring. Dutton also 

explained that child victims may experience learned helplessness causing 

them to not “recognize avenues of escape,” and they may delay disclosing 

the abuse out of fear the “family will fall apart” or the perpetrator “will be 

put in jail.” The victim testified “it’s kind of hard to pinpoint [specific 

instances of abuse].” Also, the victim testified that she did not begin 

disclosing the ongoing abuse until she was sixteen years old because she 

“felt trapped” and wanted to protect defendant and his wife, both of whom 

she considered to be members of the family. 

¶14 Therefore, Dutton’s opinions were properly admitted to help 

the jury understand the victim’s testimony and evaluate her credibility. 

Accordingly, Dutton’s expert testimony satisfied Rule 702(a), and no error, 

fundamental or otherwise, occurred. See State v. Salazar-Mercado, 234 Ariz. 

590, 594, ¶ 15, 325 P.3d 996, 1000 (2014) (holding Dutton’s “cold expert” 

testimony satisfied Rule 702(a) because it “might have helped the jury to 

understand possible reasons for the delayed and inconsistent reporting”). 

II. Conviction on Count 5

¶15 Defendant contends he was improperly convicted for 

molestation on count 5 because the second amended indictment’s narrative

factual statement describes that count as sexual abuse, not molestation of a 

child. See A.R.S. § 13-1404(A) (“A person commits sexual abuse by 

intentionally or knowingly engaging in sexual contact . . . with any person 

who is under fifteen years of age if the sexual contact involves only the 

female breast.”); compare A.R.S. § 13-1410 (“A person commits molestation 

of a child by intentionally or knowingly engaging in or causing a person to 

engage in sexual contact, except sexual contact with the female breast, with 

a child who is under fifteen years of age.”). In response, the state argues 

the conviction was proper because the amended indictments list count 5 as 

molestation of a child in the captions, defendant and counsel were aware of 
STATE v. GARCIA-MEZA

Decision of the Court

6

the amended charge, and defendant consented to the amendment. Further, 

the state argues defendant is precluded from challenging the amended 

indictment on appeal because he did not raise the issue in superior court as 

required by Arizona Rule of Criminal Procedure 13.5 (Rule 13.5). 

Defendant did not object to the amendment, thus we review for 

fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; compare 

State v. Freeney, 223 Ariz. 110, 115-16, ¶ 31, 219 P.3d 1039, 1044-45 (2009) 

(holding harmless error review applies when defendant objects to 

amendments to an indictment).

¶16 Rule 13.5 provides, in relevant part:

b. Altering the Charges; Amendment to 

Conform to the Evidence. The preliminary 

hearing or grand jury indictment limits the trial 

to the specific charge or charges stated in the 

magistrate’s order or grand jury indictment. 

The charge may be amended only to correct 

mistakes of fact or remedy formal or technical 

defects, unless the defendant consents to the 

amendment. The charging document shall be 

deemed to conform to the evidence adduced at 

the court proceeding.

. . .

e. Defects in Charging Document. No issue 

concerning a defect in the charging document 

shall be raised other than by a motion filed 

pursuant to Rule 16.

(Emphasis added). Defendant failed to object to the amendment pursuant 

to Rules 13.5(e) and Rule 16, but furthermore, Rule 13.5 allowed the trial to 

proceed on the molestation charge based on the agreement of the parties, 

including defendant. During a discussion about the verdict forms, the 

following exchange took place between the judge and the attorneys:

THE COURT: Count 5 is a Child Molest. We 

don’t have to make any special findings 

regarding that.

[THE PROSECUTOR]: Count 5 is Sexual 

Abuse.
STATE v. GARCIA-MEZA

Decision of the Court

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THE COURT: I have got [count] 5 as Child 

Molestation.

[DEFENSE ATTORNEY]: On the newer 

indictment.

Because defendant consented to the amendment and the jurors were 

correctly instructed on the elements of molestation, we find no error, 

fundamental or otherwise.

III. Jury’s Access to Transcripts

¶17 Defendant argues the court abused its discretion by allowing 

the jury access to the transcripts during deliberations because the 

transcripts were read to the jury at trial. He further asserts the court should 

have admonished the jury not to place undue emphasis on this evidence. 

We disagree.

¶18 Defendant cites no authority for the proposition that a court 

should be prohibited from admitting into evidence, and allowing a jury to 

consider, exhibits of recorded statements made outside of trial. Instead, he 

relies on an Arizona case that prohibits recordings of trial testimony from 

being available to the jury during deliberations. See State v. Jovenal, 117 

Ariz. 441, 444, 573 P.2d 515, 518 (App. 1977) (holding submission to jury of 

trial testimony transcript violates Ariz. R. Crim. P. 22.3).

¶19 Subject to the trial court’s discretion, jurors are required to 

take with them to deliberations tangible evidence admitted at trial. Ariz. R. 

Crim. P. 22.2(d). State v. Ferreira, 152 Ariz. 289, 294, 731 P.2d 1233, 

1238 (App. 1986) (“If the jurors are to accomplish their function of 

evaluating evidence properly admitted they ought not be prohibited from 

scrutinizing exhibits, even if their inquiry is more critical than that 

conducted in open court. So long as the inquiry does not differ in character 

from that made when the evidence was offered, the jury’s examination does 

not subject defendant to any risks of inculpation against which he has not 

already had opportunity to protect himself.”) (citation omitted); State v. 

Snowden, 138 Ariz. 402, 404-05, 675 P.2d 289, 291-92 (App. 1983) (“The trial 

judge is given the discretion to determine which exhibits shall go with the 

jury for good reasons. The judge has seen and heard the witnesses and is 

familiar with all the exhibits. In such instances, we will not substitute our 

judgment for that of the trial court since the decision involves consideration 

of all these matters.”) (citation omitted).
STATE v. GARCIA-MEZA

Decision of the Court

8

¶20 Applying this rule, Arizona courts have repeatedly upheld 

the right of deliberating jurors to review videotapes, audiotapes, and 

transcripts of recordings admitted into evidence. See State v. Lichon, 163 

Ariz. 186, 193, 786 P.2d 1037, 1044 (App. 1989) (videotapes); Snowden, 138 

Ariz. at 404, 675 P.2d at 291 (audiotape); State v. Kennedy, 122 Ariz. 22, 27, 

592 P.2d 1288, 1293 (App. 1979) (transcripts of taped confession). Because 

defendant made inculpatory statements during the police interview and the 

confrontation call, the transcripts were properly admitted into evidence as 

an admission by a party-opponent. See Ariz. R. Evid. 801(d)(2). 

Accordingly, the trial court did not abuse its discretion in allowing the 

transcripts go to the deliberating jurors. Snowden, 138 Ariz. at 404-05, 675 

P.2d at 291-92.

¶21 We do not address whether the court reversibly erred in 

failing to admonish the jury regarding the appropriate weight to afford the 

transcripts. Defendant did not request such an instruction, and he does not 

argue the court committed fundamental error. See Ariz. R. Crim. P. 21.3(c)

(“No party may assign as error on appeal the court’s . . . failing to give any 

instruction . . . unless the party objects thereto before the jury retires to 

consider its verdict, stating distinctly the matter to which the party objects 

and the grounds of his or her objection.”); See State v. Moreno-Medrano, 218 

Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008) (declining to review 

for fundamental error when appellant failed to raise claim in trial court and 

failed on appeal to address whether alleged error was fundamental). 

IV. Rule 20 Motion

¶22 Defendant argues the court erred in denying his Rule 20

motion on the charge for furnishing harmful items to minors because the 

state presented no evidence of harmfulness. We review de novo a trial 

court’s denial of a Rule 20 motion. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 

1152, 1198 (1993).

¶23 A motion for judgment of acquittal must be granted when 

“there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 

20(a). “‘Substantial evidence’ is evidence that reasonable persons could 

accept as adequate and sufficient to support a conclusion of defendant’s 

guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419, 610 P.2d 

51, 53 (1980). We will not reverse the superior court’s denial of a motion for 

a judgment of acquittal or a jury’s guilty verdict unless there is a complete 

absence of probative facts supporting the defendant’s conviction. State v. 

Johnson, 215 Ariz. 28, 29, ¶ 2, 156 P.3d 445, 446 (App. 2007); State v. Miles, 

211 Ariz. 475, 481, ¶ 23, 123 P.3d 669, 675 (App. 2005).
STATE v. GARCIA-MEZA

Decision of the Court

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¶24 The offense of furnishing harmful items to minors prohibits 

“any person, with knowledge of the character of the item involved, to . . . 

show . . . to minors any item that is harmful to minors.” A.R.S. § 13–3506 

(2010). “Harmful to minors” is defined to include items that appeal to the 

prurient interest in a patently offensive way without having any serious 

literary, artistic, political or scientific value for minors and includes 

depictions of sexual activity or conduct. A.R.S. § 13–3501 (2010). “Finding 

an item to be harmful to minors calls for a particular examination applying 

the standard of an ‘average adult’ regarding what is appropriate for minors. 

It is not the same as finding an item to be ‘obscene’ and entirely undeserving 

of the protection of the First Amendment.” State v. Grainge, 186 Ariz. 55, 59, 

918 P.2d 1073, 1077 (App. 1996). In making this determination, the fact 

finder applies “contemporary state standards with respect to what is 

suitable for minors.” State v. Hummer, 184 Ariz. 603, 607, 911 P.2d 609, 613 

(App. 1995) (citing A.R.S. § 13–3501(1)(a)). 

¶25 Here, the victim testified defendant showed her a video 

depicting “a man sitting there and the girl kneeling in front of him giving 

oral sex to his penis.” Defendant admitted in his police interview that he 

showed the victim a pornographic video before throwing the video away. 

A reasonable juror could conclude from this testimony that the video 

defendant showed to the victim was inappropriate for children. Thus, the 

evidence was sufficient to withstand defendant’s Rule 20 motion. See

Grainge, 186 Ariz. at 59, 918 P.2d at 1077. And, contrary to defendant’s 

assertion, the video’s unavailability at trial does not change this result. See 

id. 

CONCLUSION

¶26 Defendant’s convictions and sentences are affirmed.