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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RUSSELL LAWRENCE GARCIA, Appellant.

No. 1 CA-CR 16-0106

Appeal from the Superior Court in Coconino County

No. S0300CR201400677

The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Robert A. Walsh

Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff

By Brad Bransky

Counsel for Appellant

FILED 9-14-2017
STATE v. GARCIA

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.

B E E N E, Judge:

¶1 Russell Garcia (“Garcia”) appeals his conviction and sentence 

for sexual conduct with a minor under 12 years of age, a class 2 felony and 

dangerous crime against children. In light of our supreme court’s recent 

opinion in State v. Haskie, 399 P.3d 657 (2017), we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The evidence at trial, viewed in the light most favorable to 

sustaining the conviction,1 demonstrated that when the victim was nine

years old, Garcia, who lived with the family, offered her one dollar if she 

would follow him to an upstairs bedroom. She testified that after they 

reached the bedroom, Garcia asked her if she knew what “d—k” meant, 

and then lay her on the bed, pulled down her pants and underwear, and 

licked her private parts. Afterward, Garcia gave her one dollar and told her 

not to tell anyone. She testified that Garcia had given her money before, 

but this was the first and only time that he had touched her inappropriately.

¶3 Immediately afterward, the victim tried to call her mother at 

work, but was unable to reach her. When her mother arrived home, the 

victim told her what happened. Her mother took the victim to a hospital 

emergency room, and she was sent across the street to the Safe Child 

Center, where she was examined by a sexual assault nurse examiner. A 

swab of the victim’s mons pubis, showed a Y-STR profile that matched 

Garcia and all his paternally-related male relatives. The amount of DNA 

present on the swab was indicative of saliva.

¶4 The jury convicted Garcia of the charged offense of sexual 

conduct with a minor, and found that the victim was under 12 years of age. 

The court sentenced Garcia to life in prison without the possibility of release 

until after he served 35 years. Garcia filed a timely notice of appeal. We 

 

1 State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).
STATE v. GARCIA

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have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 

12-120.21(A)(1), 13-4031, and -4033(A) (2017).

2

DISCUSSION

I. Asserted Improper Profiling

¶5 Garcia argues the superior court erred by admitting Dr. 

Wendy Dutton’s expert testimony as a “blind” or “cold” expert on typical 

perpetrator characteristics exhibited during the grooming, victimization, 

and concealment stages of child sexual abuse. He contends Dr. Dutton’s 

testimony constituted impermissible offender profiling.

¶6 Garcia did not object to Dr. Dutton’s testimony at trial, but 

argues we should review for harmless error because he filed a pretrial 

motion to preclude her testimony as a cold expert on the behavioral 

patterns and conduct of child sexual abuse victims. We disagree.

¶7 Garcia filed a motion in limine to preclude Dr. Dutton’s 

testimony under Arizona Rules of Evidence (“Rule”) 401, 403, and 702(a)-

(d).

3 His motion did not argue that Dr. Dutton’s testimony might include 

improper offender profiling. After an evidentiary hearing, the court ruled 

Dr. Dutton would be allowed to testify on the behavioral patterns and 

conduct of child sexual assault victims, concluding the testimony would be 

more probative than prejudicial under Rule 403. As noted, Garcia did not 

object at trial to any of the testimony that he now argues constituted 

improper profiling. On cross-examination of Dr. Dutton, Garcia in fact 

elicited testimony clarifying her testimony on a typical perpetrator’s 

selection of victim, engagement, grooming, assault, and concealment, 

apparently in an attempt to highlight distinctions between the usual 

circumstances that Dr. Dutton described, and the circumstances in this case.

¶8 Because Garcia failed to object to Dr. Dutton’s testimony on 

the ground he urges on appeal, we review his claim of error for 

fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22

(2005); State v. Bolton, 182 Ariz. 290, 304 (1995) (holding that an objection on 

one ground does not preserve an issue on another ground). On 

fundamental error review, the defendant has the burden of proving that the 

 

2 Absent material revision after the date of an alleged offense, we cite 

a statute’s current version.

3 On appeal, Garcia does not challenge Dr. Dutton’s testimony on the 

behavioral patterns and conduct of sexual abuse victims.
STATE v. GARCIA

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court erred, that the error was fundamental in nature, and that he was 

prejudiced thereby. Henderson, 210 Ariz. at 567, ¶ 20. Because we find no 

error, much less fundamental error, Garcia has failed to meet his burden.

¶9 As stated above, Garcia contends that Dr. Dutton’s testimony 

was impermissible offender profiling. 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 kind of activity.” State v. 

Ketchner, 236 Ariz. 262, 264, ¶ 15 (2014) (citations and internal quotations

omitted). “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.” Id. at 264-65, ¶ 15 (citations and internal quotations

omitted).

¶10 In Ketchner, our supreme court held that the testimony of a 

domestic violence expert on separation violence, lethality factors, and 

characteristics common to domestic abusers was improper profile evidence, 

because “[t]here was no reason to elicit this testimony except to invite the 

jury to find that Ketchner‘s character matched that of a domestic abuser 

who intended to kill or otherwise harm his partner in reaction to a loss of 

control over the relationship.” 236 Ariz. at 265, ¶ 19. Although offender 

profiling is not allowed, “cold” experts are allowed to testify about the 

general characteristics of victims of sex offenses. State v. Salazar-Mercado, 

234 Ariz. 590, 594, ¶ 15 (2014) (“expert testimony about general behavior 

patterns of child sexual-abuse victims is permitted when helpful for a jury 

to understand the evidence”); see also Haskie, 399 P.3d at ___, ¶ 12 (noting 

that in cases involving child victims, “admission of ‘cold’ expert testimony 

that educates the fact-finder about general principles without applying 

those principles to the particular facts of the case” is admissible).

¶11 Whether expert testimony constitutes impermissible offender 

profiling is necessarily a fact-intensive inquiry into the purpose of the 

specific testimony. In general, expert testimony that focuses the jury on 

whether the evidence against a defendant matches the evidence in the usual 

case will constitute impermissible profile evidence. See Ketchner, 236 Ariz. 

at 265, ¶ 18 (citing other jurisdictions holding it was reversible error to 

admit testimony of a “cold” expert in child sexual abuse cases which tended 

to focus jury’s attention upon whether evidence against defendant matched 

evidence in usual case or was offered as substantive evidence of 

defendant’s guilt).
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¶12 “Although expert testimony about victim behavior that also 

describes or refers to a perpetrator’s characteristics has the potential to be 

‘profile’ evidence, it is not categorically inadmissible. Rather, its 

admissibility is determined by the rules of evidence.” Haskie, 399 P.3d at 

___, ¶ 16. “Thus, evidence of offender characteristics may be admissible, 

subject to a Rule 403 analysis, if it is relevant for a reason other than to 

suggest that the defendant possesses some of those characteristics and 

therefore may have committed the charged crimes.” Id. at ¶ 17.

¶13 In this case, Dr. Dutton identified the five stages of 

victimization as victim selection, engagement, grooming, assault, and 

concealment, and clarified that “the process of victimization is the child’s 

reaction to the perpetrator’s behavior.” She testified that it is more common 

for children to be abused by someone they know, in part because they are 

warned to be afraid of strangers, and in part because greater access 

provides more opportunity. This testimony and her testimony on the five 

stages of victimization linked victims’ delays in reporting the abuse, their 

acceptance of the abuse as normal, and their parents’ unwillingness to 

accept their claims of abuse to common practices employed by offenders. 

In context, Dr. Dutton’s testimony on the common practices employed by 

perpetrators, such as selecting vulnerable victims, gaining their trust, 

grooming them, engaging them in physical horseplay as a prelude to 

assault disguised as accident, and ordering them not to tell about the assault 

was designed not to profile the typical offender, but rather to explain why 

abuse often continues undetected, and to explain why victims do not 

immediately report the abuse. This type of testimony is permissible, 

provided it is not offered as substantive evidence of the defendant’s guilt. 

Cf. State v. Garcia-Quintana, 234 Ariz. 267, 270-74, ¶¶ 11-29 (2014) (holding 

that expert testimony on the methods used by drug trafficking 

organizations to smuggle drugs across the desert was permissible modus 

operandi testimony, not impermissible drug courier profile evidence).

¶14 Moreover, Dr. Dutton’s testimony on the common methods

perpetrators employ to ensure a victim does not report the sexual abuse did 

not apply in large part to the circumstances here, in which the victim 

immediately reported the sexual abuse after a single occurrence. Nor did 

the prosecutor use Dr. Dutton’s testimony as substantive evidence of 

Garcia’s guilt. In opening statement, the prosecutor only briefly mentioned 

that the jury was “going to hear from an expert who deals with the 

victimization process in child sex abuse cases.” In closing argument, the 

prosecutor did not compare the conduct of a typical perpetrator to Garcia’s 

conduct. Rather, the prosecutor briefly described each of the five stages of 

victimization, and told the jury that it could give this testimony whatever 
STATE v. GARCIA

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weight it concluded it deserved. The only argument the prosecutor made 

in rebuttal closing argument with respect to Dr. Dutton’s testimony was in 

response to defense counsel’s argument that there was no evidence of 

grooming in this case. Even then, the prosecutor simply argued that 

Garcia’s conduct in frequently giving the victim money, and his question 

as to what the word “d—k” meant immediately before pulling her pants 

down, was evidence of grooming. Finally, as instructed by our supreme 

court, see Haskie, 399 P.3d at ___, ¶ 26, the court gave the jury a limiting 

instruction explaining the narrow purpose and scope of Dr. Dutton’s 

testimony.

¶15 On this record, Dr. Dutton’s testimony did not constitute 

impermissible offender profiling, and accordingly, the court did not err, 

much less fundamentally err to Garcia’s prejudice, in admitting it.

II. Evidence of the Victim’s Truthful Character

¶16 Garcia argues that the court fundamentally erred in allowing 

four of the victim’s family members to testify as to her character for 

truthfulness in the absence of a direct attack on her truthfulness.

¶17 As Garcia acknowledges, because he did not object to any of 

this testimony at trial, we review for fundamental error only. Henderson, 

210 Ariz. at 568, ¶ 22. On fundamental error review, the defendant has the 

burden of proving that the court erred, that the error was fundamental in 

nature, and that he was prejudiced thereby. Id. at 567, ¶ 20.

¶18 Garcia has failed to meet his burden. Opinion evidence of a 

witness’s truthful character “is admissible only after the witness’s character 

for truthfulness has been attacked.” Ariz. R. Evid. 608(a). Garcia, however, 

attacked the victim’s character for truthfulness in his opening statement:

What the State does not tell you in their opening is that the 

alleged victim, the accuser, admitted that she made parts of 

the story up. The accuser changed her story. And that will 

come out at trial.

* * * 

And if Ms. Dutton says, well, sometimes, you know, a nine

year old might say one thing and then change the story – but 

don’t worry, she’s not lying. Well, sometimes they are. 

Sometimes they are.
STATE v. GARCIA

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And drawing the connection just between an expert who 

knows nothing about this case and trying to smooth over or 

fill in the gaps where there were lies or where there was a 

change in story or where that was an admission that, I made 

some things up, don’t let it fill that gap. Think about it 

critically. Keep the open mind, and I look forward to closing 

argument.

Thank you.

¶19 Further, although defense counsel did not directly attack the 

victim’s truthfulness when she was on the witness stand, he indirectly 

attacked her version of events by eliciting testimony that she met with the 

prosecutor three times before trial, and had talked about the case 

beforehand with the prosecutor, the detective, the victim-witness advocate,

and her mother.

¶20 On direct examination of the next witness, one of the victim’s

uncles, the prosecutor elicited testimony that the victim told “little lies,” 

“just little kid stuff,” but no more than any other of the children staying at 

the house. On cross-examination, defense counsel prompted an additional 

admission from this witness that he had told the police officer who 

interviewed him after the incident that the victim “likes to lie a lot.” The 

prosecutor subsequently elicited testimony from three additional relatives 

that the victim had told “little kid lies” before, but not any more than other 

children had told, and she had not ever lied to them about something big.

¶21 The testimony was not improper, because an attack on a 

witness’s character for truthfulness in opening statement by itself may be a 

sufficient prerequisite to introduce evidence of truthfulness under Rule

608(a). See United States v. Jones, 763 F.2d 518, 522 (2d Cir. 1985); Ariz. R. 

Evid. 608(a), Comment to 2012 Amendment (amended to conform to 

Federal Rule of Evidence 608); Salazar-Mercado, 234 Ariz. at 592-93, ¶ 7 

(application by federal courts of rules of evidence amended to conform to 

the federal rules sheds light on the meaning of the Arizona rules). 

Moreover, there is no doubt that the uncle’s testimony on crossexamination about the victim’s “lies” was a direct attack on the victim’s 

truthfulness, which rendered the testimony of the other relatives admissible 

under Rule 608(a). To the extent that the prosecutor’s question on direct 

examination of the uncle about the victim’s truthfulness was premature, it 

was not fundamental, prejudicial error.
STATE v. GARCIA

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CONCLUSION

¶22 For the foregoing reasons, we affirm Garcia’s conviction and 

sentence.