State of Arizona v. Richard Portugal Ortiz
238 Ariz. 329
| Ariz. Ct. App. | 2015Background
- Victim J.V., 15, was coached by Ortiz, 53; between mid-June and June 30, 2012, she testified to multiple separate sexual encounters with Ortiz (weight room digital penetration; intercourse at park; intercourse and related acts in a van). DNA from Ortiz was found on J.V.’s underwear and vice versa; deputy interrupted the June 30 van encounter.
- Ortiz was indicted on seven counts of sexual conduct with a minor; a jury convicted him of four counts and acquitted on three others. Sentenced to enhanced terms under A.R.S. § 13-703 after the court found some offenses were not on the same occasion.
- Ortiz appealed claiming (1) trial court improperly admitted expert testimony about child sexual-abuse victim behavior (Dr. Wendy Dutton), (2) Confrontation Clause violation because DNA technicians who handled samples did not testify, and (3) sentencing enhancement under § 13-703 required a jury finding whether offenses were on the same occasion.
- Trial court had admitted Dutton as a blind expert after a Daubert hearing; she testified about piecemeal disclosure, underreporting, grooming, and that victims are often abused by someone they know.
- Forensic analyst Emily Jeskie testified about DNA comparison and authored the case report; she reviewed technicians’ lab notes and performed the final interpretation but did not personally perform all preliminary lab steps.
- The appellate court affirmed convictions and sentences: it found no abuse of discretion in admitting Dutton’s testimony, no Confrontation Clause violation in Jeskie’s testimony under controlling Arizona precedent, and any Apprendi/Alleyne sentencing error was harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ortiz) | Held |
|---|---|---|---|
| Admissibility of expert testimony on child-victim behavior | Expert testimony aids jury understanding of delayed/piecemeal disclosure, grooming, and underreporting; admissible under Rule 702 and useful here | Dutton not qualified / testimony within common-knowledge of jurors and unfairly prejudicial under Rule 403 | Admitted: court did not abuse discretion; testimony was general, blind, helpful to assess credibility, and probative value outweighed prejudice |
| Confrontation Clause — DNA evidence | Testifying analyst reviewed lab work, performed final interpretation, formed independent opinion, and was cross-examinable; precedent permits her testimony without every technician testifying | Violation because preliminary technicians who prepared and processed samples did not testify; Bullcoming requires confronting certifying analysts/technicians | No violation: applying State v. Gomez and Supreme Court precedents, Jeskie’s testimony did not act as surrogate for non-testifying certifier and profiles were not testimonial in the challenged manner |
| Whether § 13-703 enhancement requires jury finding on "same occasion" | Court argued Kelly factors support that offenses were separate occasions based on dates/locations/evidence | Ortiz argued Apprendi/Alleyne require jury determination; verdicts/instructions did not include Kelly factors and jury was not asked about dates | Court erred procedurally by making the finding, but error was harmless beyond a reasonable doubt because offenses occurred on separate dates/places and no reasonable jury would have failed to find separate occasions |
| Scope of confrontation requirement after Bullcoming/Williams | State relied on Gomez; argued Bullcoming does not require calling every technician and Williams supports non-testifying-lab-work being non-testimonial when testifying analyst forms independent opinion | Ortiz urged Bullcoming/Williams require live testimony from technicians who handled samples to permit confrontation | Held: Bullcoming does not require calling every lab worker; Williams/Williams plurality/custom analyses do not undermine Gomez; Jeskie’s independent review/interpretation satisfied Confrontation Clause |
Key Cases Cited
- State v. Salazar-Mercado, 234 Ariz. 590 (discussing Rule 702 admissibility and Daubert standard)
- State v. Lujan, 192 Ariz. 448 (expert testimony on behavioral characteristics of child victims admissible when jurors lack common knowledge)
- State v. Gomez, 226 Ariz. 165 (testifying analyst may rely on lab technicians’ work where analyst forms independent opinion and can be cross-examined)
- Bullcoming v. New Mexico, 564 U.S. 647 (Confrontation Clause limits use of a non-testifying certifying analyst’s report)
- Williams v. Illinois, 567 U.S. 50 (plurality addressing testimonial nature of forensic lab reports and expert reliance on lab data)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial out-of-court statements unless witness unavailable and prior cross-examination occurred)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (forensic reports created for prosecution are testimonial)
- Alleyne v. United States, 133 S. Ct. 2151 (any fact that increases mandatory penalty must be found by a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty beyond prescribed statutory maximum must be submitted to a jury)
- State v. Kelly, 190 Ariz. 532 (five-factor test for whether offenses were committed on the same occasion)