NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CURTIS MONTGOMERY, Appellant.

No. 1 CA-CR 15-0386

Appeal from the Superior Court in Maricopa County

No. CR2012-155696-001

The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Louise Stark

Counsel for Appellant
STATE v. MONTGOMERY

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Maurice Portley and Judge John C. Gemmill joined.

T H U M M A, Judge:

¶1 A jury convicted Curtis Montgomery of sexual abuse, 

molestation of a child and ten counts of sexual conduct with a minor, all 

dangerous crimes against children. The superior court sentenced 

Montgomery to consecutive life sentences with the possibility of parole 

after 35 years for the sexual conduct with a minor convictions and to lesser 

prison terms for the other convictions. From Montgomery’s timely appeal 

challenging the admissibility of expert testimony from Wendy Dutton, this 

court has jurisdiction pursuant to the Arizona Constitution, Article 6, 

Section 9 and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A) 

(2016), 1 13-4031 and -4033. Because Montgomery has shown no error, his 

convictions and resulting sentences are affirmed.

FACTS2 AND PROCEDURAL HISTORY

¶2 The State alleged Montgomery committed the offenses from 

2010 to 2012 and that the victim was eight to ten years of age at the time.

The State disclosed Dutton as a “cold” expert to testify at trial about general 

characteristics of child sexual abuse victims. Dutton was a forensic 

interviewer who had interviewed children who were victims of crime 

and/or witnesses to crime for many years. Dutton’s opinions were based

on research and her experience, but not on her interaction with the victim.

¶3 Montgomery moved in limine to preclude Dutton’s testimony

and requested an evidentiary hearing. Montgomery conceded that Dutton 

had testified about the characteristics of child sexual abuse victims for 

 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.

2 On appeal, this court views the evidence in the light most favorable to 

sustaining the conviction and resolves all reasonable inferences against the 

defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
STATE v. MONTGOMERY

Decision of the Court

3

decades.3 Montgomery argued, however, that the court was required to 

reassess Dutton’s qualifications and the reliability of her testimony, 

particularly given amendments to the Arizona Rules of Evidence effective 

January 1, 2012. State v. Salazar-Mercado, 234 Ariz. 590, 591 ¶ 1 (2014).

¶4 Without holding an evidentiary hearing, the superior court 

denied Montgomery’s motion in limine. The court held Arizona Rule of 

Evidence Rule 702 did not bar “cold” expert testimony so long as the 

witness was qualified, the testimony would properly assist the trier of fact 

and the testimony fit the facts of the case. Noting the court had heard 

Dutton testify previously and was familiar with her testimony, as well as 

case law addressing her testimony and that Montgomery failed to show an 

evidentiary hearing was needed, the court denied the request for a hearing.

¶5 At trial, Dutton testified about her education, training, and 

experience, including how she had forensically interviewed more than 

8,500 children. She testified she knew nothing about the case, but was there 

to testify about the general characteristics of child victims of sexual abuse 

and about forensic interviews. She did not express any opinion on whether 

anyone was sexually abused.

¶6 Dutton addressed the types of problems a child can develop 

as a result of sexual abuse and explained the presence or absence of those 

problems does not mean a child was sexually abused. Dutton discussed 

what she called misconceptions people may have about how children 

respond to sexual abuse and the wide range of reactions children have 

when they discuss sexual abuse. Dutton also explained how perpetrators of 

child sex crimes engage in the “process of victimization.” At the end of her 

testimony, Dutton reiterated the information she provided was based on 

research, that she did not know whether any of the information applied to 

the facts of this case and that she was a “blind” expert.4

 

3 Dutton’s testimony has been the subject of several appellate opinions. See, 

e.g., State v. Salazar-Mercado, 234 Ariz. 590 (2014); State v. Ortiz, 238 Ariz. 329 

(App. 2015); State v. Buccheri-Bianca, 233 Ariz. 324 (App. 2013); State v. Curry, 

187 Ariz. 623 (App. 1996). 

4 Dutton did not reference Child Sexual Abuse Accommodation Syndrome 

(“CSAAS”). See Salazar-Mercado, 234 Ariz. at 591 ¶ 2.
STATE v. MONTGOMERY

Decision of the Court

4

DISCUSSION

¶7 This court reviews the admission of expert testimony for an 

abuse of discretion. State v. Hyde, 186 Ariz. 252, 276 (1996) (citing cases). As 

applicable here,

[a] witness who is qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify in the form of an opinion 

or otherwise if: (a) the expert’s scientific, 

technical, or other specialized knowledge will 

help the trier of fact to understand the evidence 

or to determine a fact in issue; (b) the testimony 

is based on sufficient facts or data; [and] (c) the 

testimony is the product of reliable principles 

and methods.

Ariz. R. Evid. 702(a)-(c).

5 “[W]hen applying rule 702, ‘trial courts should 

serve as gatekeepers in assuring that proposed expert testimony is reliable 

and thus helpful to the jury’s determination of facts at issue.’” Preston v. 

Amadei, 238 Ariz. 124, 134 ¶ 36 (App. 2015) (quoting Ariz. R. Evid. 702 cmt. 

to 2012 amend.). “The court’s role as gatekeeper, however, does not 

supplant ‘traditional jury determinations of credibility and the weight to be 

afforded otherwise admissible testimony.’” Id. “[T]he essential inquiry 

under the rule is ‘whether particular expert testimony is reliable[,]’ and trial 

courts should consider the Rule 702 factors when ‘they are reasonable 

measures of the reliability of expert testimony.’” Preston, 238 Ariz. at 134 ¶ 

35 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999)).

Applying these directives, the court did not abuse its discretion by 

admitting Dutton’s testimony without an evidentiary hearing.

¶8 Arizona has long held that expert testimony regarding the 

characteristics of child victims of sexual offenses may be admissible. See 

Salazar-Mercado, 234 Ariz. at 594 ¶ 15; State v. Lopez, 170 Ariz. 112, 118 (App. 

1991); State v. Tucker, 165 Ariz. 340, 346 (App. 1990). Where the proper 

showing is made under Rule 702, the superior court has substantial 

discretion to admit such evidence. See Salazar-Mercado, 234 Ariz. at 594 ¶ 15.

Although expert witnesses may not testify to the credibility of another 

witness or the type of witness under consideration, State v. Lindsey, 149 

 

5 Ariz. R. Evid. 702(d) does not apply to “cold” or “blind” experts who do 

not apply their principals and methods to the facts of the case. SalazarMercado, 234 Ariz. at 592 ¶ 6.
STATE v. MONTGOMERY

Decision of the Court

5

Ariz. 472, 475 (1986), Dutton did not do so here. Moreover, the 2012 

amendments to Rule 702 do not make Dutton’s testimony inadmissible. See 

generally Salazar-Mercado, 234 Ariz. at 592-95 ¶¶ 5-20.

¶9 Contrary to Montgomery’s argument on appeal, the superior 

court was not required to hold a pretrial evidentiary hearing. Whether to 

hold such a hearing is within the superior court’s discretion. State v. Perez, 

233 Ariz. 38, 43 ¶ 19 (App. 2013); Glazer v. State, 234 Ariz. 305, 315 ¶ 28 (App. 

2014), vacated in part on other grounds, 237 Ariz. 160, 168 ¶ 36 (2015). Based 

on the parties’ submissions, the court’s familiarity with Dutton’s testimony 

and appellate decisions addressing the admissibility of her testimony, 

Montgomery has not shown the court abused its discretion in denying the 

request for an evidentiary hearing. And the fact that Dutton’s testimony 

was largely based on her own experience does not alter this conclusion;

“Rule 702 does not prohibit ‘the testimony of experience-based experts.’”

Preston, 238 Ariz. at 134 ¶ 36 (quoting Ariz. R. Evid. 702 cmt. to 2012 

amend.).

CONCLUSION

¶10 Montgomery’s convictions and resulting sentences are 

affirmed.