State of Arizona v. Raul Herrera III , 232 Ariz. 536 ( 2013 )


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  •                                                                     FILED BY CLERK
    AUG -5 2013
    IN THE COURT OF APPEALS
    STATE OF ARIZONA                         COURT OF APPEALS
    DIVISION TWO
    DIVISION TWO
    THE STATE OF ARIZONA,                           )   2 CA-CR 2008-0273
    )   DEPARTMENT B
    Appellee,     )
    )   OPINION
    v.                          )
    )
    RAUL HERRERA III,                               )
    )
    Appellant.     )
    )
    APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
    Cause Nos. CR20071585 and CR20071766 (Consolidated)
    Honorable Peter J. Cahill, Judge
    Honorable Michael Cruikshank, Judge
    Honorable Hector Campoy, Judge
    AFFIRMED
    Thomas C. Horne, Arizona Attorney General
    By Joseph T. Maziarz and David A. Sullivan                                   Tucson
    Attorneys for Appellee
    Lori J. Lefferts, Pima County Public Defender
    By Frank P. Leto                                                              Tucson
    Attorneys for Appellant
    K E L L Y, Judge.
    ¶1           In 2008, appellant Raul Herrera was convicted after a jury trial of two
    counts of sexual conduct with a minor under the age of fifteen, one count of sexual
    exploitation of a minor under the age of fifteen, and one count of kidnapping. Herrera
    argues the trial court erred in admitting evidence of other acts and in precluding evidence
    of the victim’s prior sexual history. He also contends the testimony of the state’s expert,
    Wendy Dutton, improperly invaded the province of the jury and therefore constituted
    fundamental error. For the following reasons, we affirm.
    Background
    ¶2             “We construe the evidence in the light most favorable to sustaining the
    verdict[s], and resolve all reasonable inferences against the defendant.” State v. Greene,
    
    192 Ariz. 431
    , ¶ 12, 
    967 P.2d 106
    , 111-12 (1998). In 2007, Herrera’s stepdaughter,
    A.M., told a friend she was being molested by Herrera. A.M. then reported the abuse to
    her school guidance counselor. The state charged Herrera with three counts of sexual
    conduct with a minor under the age of fifteen and two counts of sexual exploitation of a
    minor under the age of fifteen. The indictment alleged that these counts were dangerous
    crimes against children. Herrera also was charged with one count of kidnapping.1
    ¶3             The three sexual conduct charges alleged Herrera “ha[d] the victim
    masturbate him,” had “plac[ed] his penis inside the victim’s vulva,” and “ha[d] the victim
    place her mouth on his penis.” The sexual exploitation charges alleged Herrera had
    possessed two digital photographs of A.M. “engaging in actual or simulated oral sex.”
    And, the kidnapping count alleged Herrera had kidnapped the victim “with the intent to
    inflict . . . physical injury or a sexual offense on her.”
    1
    Herrera originally was charged in two separate indictments that were consolidated
    for trial.
    2
    ¶4            Herrera was convicted, as specified above, of four of the six counts. The
    jury found him not guilty of the other counts. The trial court sentenced Herrera to
    presumptive, consecutive prison terms totaling 60.5 years. We affirmed the convictions
    and sentences on appeal, State v. Herrera, 
    226 Ariz. 59
    , 
    243 P.3d 1041
    (App. 2010), and
    Herrera filed a petition for review in our supreme court. The supreme court granted
    review, vacated this court’s opinion, and remanded the matter to this court for
    reconsideration in light of the supreme court’s decision in State v. Ferrero, 
    229 Ariz. 239
    ,
    
    274 P.3d 509
    (2012). State v. Herrera, 
    230 Ariz. 387
    , 
    285 P.3d 308
    (2012). We then
    stayed the appeal and remanded the case to the trial court, directing it to determine
    whether certain other-act evidence previously admitted as intrinsic to the charged
    offenses was admissible under Rule 404(c), Ariz. R. Evid. After the court issued its
    ruling in May 2012, we vacated the stay of the appeal, revested jurisdiction in this court,
    and permitted the parties to submit supplemental briefs addressing any issues related to
    the trial court’s ruling. We now address Herrera’s arguments on appeal.
    Discussion
    I.     Other-Acts Evidence
    ¶5            Before trial, in compliance with Rule 15.1(b)(7), Ariz. R. Crim. P., the state
    filed a notice disclosing its intent to introduce at trial various uncharged acts allegedly
    committed by Herrera. This evidence included two portions of a videotape taken by
    Herrera that displayed A.M. with her breasts exposed. In one segment, Herrera was
    directing her to jump up and down; in the other she was making a sexually explicit
    statement. The state’s notice also included evidence of statements made by A.M. to law
    3
    enforcement officers describing uncharged acts committed by Herrera before and during
    the time period within which the indictment alleged the charged offenses had been
    committed.
    ¶6               Herrera filed an objection to the admission of this evidence citing the
    following grounds: (1) there was insufficient evidence establishing he had committed the
    uncharged acts; (2) the evidence was improper character evidence under Rule 404, Ariz.
    R. Evid., and was not admissible under the exception created by Rule 404(c) because the
    acts did not show he had a character trait giving rise to an aberrant sexual propensity;
    and, (3) the danger of unfair prejudice outweighed the evidence’s probative value. The
    state thereafter disclosed its intent to introduce a videotape made by Herrera that depicted
    “the victim’s genitalia.” Herrera also filed an objection to this evidence, incorporating
    his previous objections to other-acts evidence, and arguing there was inadequate
    foundation and the evidence should at least be “edited such that only those segments
    identified by the alleged victim as being herself are view[ed] by the jury.”
    ¶7               After a hearing, Judge Cruikshank ruled that the two portions of videotape
    depicting A.M.’s exposed breasts2 were admissible because the evidence was intrinsic to
    the charged offenses, and would be admitted if the state provided sufficient foundation to
    establish that A.M. was the person depicted in the videotape segments. Judge Cruikshank
    ruled that A.M.’s statement to law enforcement officers about other acts also was
    intrinsic to the charged offenses and therefore admissible. The judge added that because
    2
    At trial, these videotape portions were designated as exhibits five and six.
    4
    the other-act evidence was admissible under the intrinsic-evidence principle, he was not
    required to analyze the admissibility of the proffered evidence under Rule 404(b) or Rule
    404(c).
    ¶8              Subsequently, Judge Campoy3 held a hearing regarding the admissibility of
    the images of genitalia, which were derived from the videotape. He ruled that one image4
    was admissible because A.M. had identified herself as the person portrayed in that image
    but that the full videotape and another image were inadmissible due to inadequate
    foundation. Defense counsel then asked Judge Campoy to reconsider Judge Cruikshank’s
    previous rulings on any acts that had occurred in Yuma (hereinafter “Yuma Acts”),
    arguing they were inadmissible because they had occurred before the period covered by
    the indictment.     Although Judge Campoy refused to reconsider Judge Cruikshank’s
    previous rulings on other-acts evidence, he commented, nevertheless, that the challenged
    evidence “would be part and parcel and intrinsic to the charges.”
    ¶9              At trial, Herrera objected when the prosecutor asked A.M. where her first
    sexual contact with Herrera had taken place, arguing the evidence was irrelevant. Judge
    Cahill5 overruled the objection and the victim responded, “Yuma.”          Herrera again
    objected and, following a bench conference, the judge stated he “ha[d] independently
    looked at the arguments of counsel” and overruled Herrera’s objection to evidence
    relating to the Yuma Acts.
    3
    The case was assigned to Judge Campoy after Judge Cruikshank recused himself.
    4
    At trial, this image was designated as exhibit two.
    5
    Judge Cahill presided over the trial.
    5
    ¶10           On remand, the trial court concluded the evidence that previously had been
    deemed intrinsic to the charged crimes was not intrinsic, but nonetheless was admissible
    under Rule 404(c). The court made explicit findings to support its determination.
    a. Limited Remand
    ¶11           In his supplemental brief, Herrera argues it was improper for this court to
    remand the case to the trial court to determine the admissibility of the other-act evidence
    under Rule 404(c). He also contends the state “forfeited its opportunity for a post-appeal
    remand by inviting the error” and the scope of the remand was wrongfully limited.
    ¶12           Herrera maintains that ordering a limited remand to develop the record
    “violates Ferrero’s direct holding” and that “Ferrero does not authorize a new 404(c)
    hearing.” In support of this contention, he relies on the final disposition in Ferrero: the
    supreme court agreed with the court of appeals’ decision to remand that case to the trial
    court for a new trial. 
    229 Ariz. 239
    , ¶ 
    29, 274 P.3d at 515
    . However, Ferrero did not
    announce a general rule prohibiting a limited remand where evidence has been
    characterized erroneously as intrinsic. 
    Id. And we
    reject Herrera’s suggestion that in
    State v. Coghill, 
    216 Ariz. 578
    , 
    169 P.3d 942
    (App. 2007), this court held that when
    other-act evidence has been admitted erroneously, the case must be remanded for a new
    trial. Rather, we concluded that the defendant was entitled to a new trial because the trial
    court had erred when it admitted evidence that was unnecessary, irrelevant, and should
    have been precluded under Rule 402. 
    Id. ¶¶ 22,
    33. Under those circumstances, a limited
    remand would not have developed the record in any way that could have affected the
    outcome on appeal.
    6
    ¶13           Whether a case should be remanded to the trial court for a limited
    evidentiary hearing and ruling is a factual determination that must be made on a case-by-
    case basis. See State v. Peterson, 
    228 Ariz. 405
    , ¶¶ 18-19, 
    267 P.3d 1197
    , 1202-03 (App.
    2011) (concluding limited remand appropriate to determine voluntariness of statements);
    see also State v. Jessen, 
    134 Ariz. 458
    , 461, 
    657 P.2d 871
    , 874 (1982) (same). Remand
    may be appropriate when the trial court is in a better position than the appellate court to
    clarify whether a potential error actually occurred. See, e.g., State v. Torres, 
    208 Ariz. 340
    , ¶¶ 12-14, 
    93 P.3d 1056
    , 1060 (2004) (possibility of structural error not enough to
    require reversal; remanded for hearing on request to change counsel); State v. Taylor, 
    169 Ariz. 121
    , 125-26, 
    817 P.2d 488
    , 492-93 (1991) (unclear whether evidence excluded
    improperly as irrelevant or properly under Rule 403; remanded for Rule 403
    determination). Remand also is proper when the trial court is found to have based its
    ruling on an improper standard. See, e.g., State v. Caraveo, 
    222 Ariz. 228
    , ¶¶ 8, 23, 
    213 P.3d 377
    , 379, 382 (App. 2009) (remanding to determine whether search permissible
    based on different legal theory raised below).
    ¶14           In this case, because the trial court initially admitted the other-acts evidence
    as intrinsic, it had not addressed the state’s argument that the evidence also was
    admissible under Rule 404(c). “We are required to affirm a trial court’s ruling if legally
    correct for any reason . . . .” State v. Boteo-Flores, 
    230 Ariz. 551
    , ¶ 7, 
    288 P.3d 111
    , 113
    (App. 2012). Therefore, a limited remand was appropriate to permit the trial court to
    7
    consider the admissibility of the evidence under Rule 404(c) and to allow this court to
    determine on review whether the admission of the evidence was legally correct.6
    ¶15           Herrera also argues briefly that a limited remand violated his right to equal
    protection under the United States Constitution because he was subjected to a different
    procedure than the defendant in Ferrero, who was granted a new trial. See 
    229 Ariz. 239
    ,
    ¶ 
    29, 274 P.3d at 515
    . He relies on Myers v. Ylst, 
    897 F.2d 417
    , 418, 425 (9th Cir. 1990),
    in which the Ninth Circuit Court of Appeals held that the equal protection rights of the
    defendant had been violated when the California Supreme Court declined to apply
    retroactively to his case a decision regarding the right to an impartial jury. The court’s
    decision, however, was based on the principle that equal protection prohibits a state from
    denying one defendant the retroactive benefit of a substantive ruling but providing it to
    another defendant. 
    Id. at 421.
    Herrera has cited no authority to support his suggestion
    that a case-by-case procedural determination of whether to remand a case to the trial
    court for a limited evidentiary ruling offends a defendant’s right to equal protection. Nor
    has he identified any substantive benefit afforded to other defendants that was not also
    available in his case. As discussed below, Ferrero clarified the appropriate test for
    6
    In determining the admissibility of Rule 404(c) evidence, the trial court is
    required to determine whether the “evidence is sufficient to permit the trier of fact to find
    that the defendant committed the other act.” See Ariz. R. Evid. 404(c)(1)(A); State v.
    Dixon, 
    226 Ariz. 545
    , ¶ 13, 
    250 P.3d 1174
    , 1178 (2011). This determination includes an
    assessment of the victim’s credibility. See State v. Aguilar, 
    209 Ariz. 40
    , ¶¶ 33-35, 
    97 P.3d 865
    , 874-75 (2004) (Rule 404(c) findings insufficient where trial court did not hear
    testimony of victims and did not make credibility determination). Because the trial court
    had observed the witnesses at Herrera’s trial, it was in the best position to assess their
    credibility. See State v. Olquin, 
    216 Ariz. 250
    , ¶ 10, 
    165 P.3d 228
    , 230 (App. 2007).
    8
    intrinsic evidence, 
    229 Ariz. 239
    , ¶ 
    20, 274 P.3d at 513
    , and that test now has been
    applied in Herrera’s case.
    ¶16           Herrera further argues the state “forfeited its opportunity for a post-appeal
    remand.” He contends that by arguing below the evidence was intrinsic to the charged
    crimes, the state invited any error by “invit[ing] the court to bypass evidence prior to
    trial.” However, the doctrine of invited error—which provides that “we will not find
    reversible error when the party complaining of it invited the error”—does not apply here
    because the state is not alleging trial error. State v. Logan, 
    200 Ariz. 564
    , ¶ 9, 
    30 P.3d 631
    , 632-33 (2001). This doctrine prevents a party “from ‘inject[ing] error in the record
    and then profit[ing] from it on appeal.’” 
    Id. ¶ 11,
    quoting State v. Tassler, 
    159 Ariz. 183
    ,
    185, 
    765 P.2d 1007
    , 1009 (App. 1988) (alterations in Logan). It therefore applies when
    the party who invited an error is the same party urging error on appeal. Id.; e.g., State v.
    Musgrove, 
    223 Ariz. 164
    , ¶¶ 8-9, 
    221 P.3d 43
    , 46 (App. 2009) (court would not reverse
    based on lack of jury instruction when omission requested by defendant); State v. Fish,
    
    222 Ariz. 109
    , ¶¶ 79-80, 
    213 P.3d 258
    , 281 (App. 2009) (same). In this case, it is
    Herrera—not the state—who is urging reversible error on appeal and would benefit from
    reversal based on admission of the evidence.
    ¶17           Moreover, the state had argued below the evidence also was admissible
    pursuant to Rule 404(c) and had offered to have the victim testify about the other acts at
    the pretrial hearing. The trial court declined to screen the evidence at the pretrial stage,
    stating it “d[id]n’t have to accept the State’s viewpoint as to 404(c) evidence” if it
    concluded the evidence was intrinsic. See Ferrero, 
    229 Ariz. 239
    , ¶ 
    22, 274 P.3d at 514
    9
    (intrinsic evidence not subject to Rule 404(c) screening). And, even had the state not
    raised this theory below, this court will affirm a trial court’s ruling if the result is correct
    for any reason. Boteo-Flores, 
    230 Ariz. 551
    , ¶ 
    7, 288 P.3d at 113
    .
    ¶18           Herrera also maintains the scope of the remand was “wrongfully limited”
    because it did not address “[the victim]’s testimony that the [charged] acts occurred
    ‘every night’ during the indictment period.” He cites no authority restricting this court’s
    authority to limit the scope of its remand.        Moreover, he has failed to support his
    suggestion that the trial court permitted this testimony on the improper ground that it was
    intrinsic evidence.    Nothing in the record establishes or even suggests the court
    considered this testimony during the pretrial proceedings on other-act evidence, nor did
    Herrera object to it at trial. Therefore, this court did not err by remanding the matter to
    the trial court or by limiting the scope of the remand to evidence previously admitted as
    intrinsic.7
    b. Admissibility
    ¶19           “We review the [trial] court’s decision to admit other acts evidence for [an]
    abuse of discretion.” State v. Villalobos, 
    225 Ariz. 74
    , ¶ 18, 
    235 P.3d 227
    , 233 (2010).
    Similarly, we review a trial court’s decision to admit evidence over a relevancy objection
    for an abuse of discretion. See State v. Wood, 
    180 Ariz. 53
    , 61-62, 
    881 P.2d 1158
    , 1166-
    67 (1994). A ruling is an abuse of discretion when “the reasons given by the court . . . are
    7
    Herrera also argues admission of the other-acts evidence violated his right to due
    process. Because he offers no independent argument supporting this claim, we do not
    address it separately.
    10
    clearly untenable, legally incorrect, or amount to a denial of justice.” State v. Chapple,
    
    135 Ariz. 281
    , 297 n.18, 
    660 P.2d 1208
    , 1224 n.18 (1983).
    ¶20           Rule 404(b) provides that “evidence of other crimes, wrongs, or acts is not
    admissible to prove the character of a person in order to show action in conformity
    therewith.” In other words, other-act evidence generally is inadmissible for the purpose
    of “‘show[ing] that the defendant is a bad person or has a propensity for committing
    crimes.’” State v. Hargrave, 
    225 Ariz. 1
    , ¶ 10, 
    234 P.3d 569
    , 576 (2010), quoting State v.
    McCall, 
    139 Ariz. 147
    , 152, 
    677 P.2d 920
    , 925 (1983). But the rule also provides that
    evidence of other acts may be admissible if it is offered “for other purposes, such as proof
    of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
    mistake or accident.” Ariz. R. Evid. 404(b).
    ¶21           Additionally, evidence of acts that are “so closely related to the charged
    act” may be admitted without regard to Rule 404. Ferrero, 
    229 Ariz. 239
    , ¶ 
    20, 274 P.3d at 513
    . In our previous consideration of the appeal in this case, we concluded the trial
    court had not abused its discretion by finding that the other-acts evidence challenged by
    Herrera was admissible because it was intrinsic to the charged acts. In Ferrero, however,
    the supreme court held that “[h]enceforth, evidence is intrinsic in Arizona if it (1) directly
    proves the charged act, or (2) is performed contemporaneously with and directly
    facilitates commission of the charged act.” 
    229 Ariz. 239
    , ¶ 
    20, 274 P.3d at 513
    . The
    court clarified that evidence is not intrinsic merely because it “complete[s] the story.” 
    Id. After our
    remand, the trial court reconsidered its previous rulings in light of Ferrero, and
    found the evidence of the uncharged acts—including the videotape segments, derived
    11
    images, and the Yuma Acts—was not intrinsic to the charged offenses because they were
    neither part of a “single criminal episode” nor “necessary preliminaries” to the charged
    crimes and had not been “performed contemporaneously” with the charged crimes. 8 We
    agree. However, any error in admitting that evidence as intrinsic was harmless because
    we also agree with the trial court’s determination that the evidence was admissible under
    Rule 404(c). See Boteo-Flores, 
    230 Ariz. 551
    , ¶ 
    7, 288 P.3d at 113
    (we must uphold
    ruling if legally correct for any reason).
    ¶22           Rule 404(c) provides that when a defendant has been charged with a sexual
    offense, “evidence of other crimes, wrongs, or acts may be admitted . . . if relevant to
    show that the defendant had a character trait giving rise to an aberrant sexual propensity
    to commit the offense charged.” To admit evidence under Rule 404(c)(1), a court must
    find:
    (A) The evidence is sufficient to permit the trier of fact to
    find that the defendant committed the other act.
    (B) The commission of the other act provides a reasonable
    basis to infer that the defendant had a character trait giving
    rise to an aberrant sexual propensity to commit the crime
    charged.
    (C) The evidentiary value of proof of the other act is not
    substantially outweighed by danger of unfair prejudice,
    confusion of issues, or other factors mentioned in
    Rule 403. . . .
    8
    These findings went beyond the scope of our order, which revested jurisdiction in
    the trial court “for the limited purpose of ruling on the admissibility, under Rule 404(c),
    Ariz. R. Evid., of the evidence that previously had been deemed intrinsic.”
    12
    ¶23           The trial court concluded in its minute entry ruling that there was clear and
    convincing evidence the other acts occurred. It summarized the evidence as follows:
    The Victim’s testimony was credible. Her testimony
    provided sufficient proof that the Yuma Acts occurred just as
    she testified. . . .
    With regard to the three exhibits, the photographs/
    videos marked as Exhibits 2, 5, and 6, the testimony was
    credible that the images were made by Defendant and that the
    Victim is the subject. The Victim testified that the only
    person who ever took photos or video of her naked was
    Defendant. The Victim testified that Exhibit 2 was taken of
    her at her Vail home. She also testified that she viewed the
    images and heard recorded voices on the video-recording,
    marked as Exhibits 5 and 6. Detective Mawhinney testified
    that the Victim had identified the voice on Exhibit 6 as
    Defendant’s. (Internal citations omitted.)
    ¶24           Herrera contends the trial court erred by finding there was sufficient
    evidence from which the jury could have found he committed the Yuma Acts and made
    the videotapes. As a threshold matter, he argues the trial court erred by considering
    evidence that had been presented at trial because “appellate courts [must] review pretrial
    motions based on evidence presented at the hearing and not at trial.” He proposes
    “any . . . evaluation of other act evidence and exhibits must be limited to the evidence
    presented at the pretrial hearing.” We disagree. Herrera bases his argument on the
    general rule that, when reviewing a trial court’s pre-trial ruling on a motion to suppress
    evidence, we can consider only the evidence that was presented at the suppression
    hearing. See State v. Becerra, 
    231 Ariz. 200
    , ¶ 4, 
    291 P.3d 994
    , 996 (App. 2013). This is
    consistent with the general rule that “[a]n appellate court’s review is limited to the record
    before the trial court.” See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 
    165 Ariz. 1
    , 4,
    13
    
    795 P.2d 827
    , 830 (App. 1990). The same rationale does not apply to a trial court’s post-
    trial, retrospective determination of the propriety of a ruling on the admissibility of
    evidence made either before or during trial, and none of the cases Herrera cites addresses
    that situation. See State v. Hausner, 
    230 Ariz. 60
    , ¶¶ 21, 23, 
    280 P.3d 604
    , 614 (2012)
    (whether court erred in admitting statements obtained through wiretap); State v. Manuel,
    
    229 Ariz. 1
    , ¶¶ 10-11, 
    270 P.3d 828
    , 831 (2011) (whether court should have suppressed
    physical evidence obtained during warrantless search); State v. Flower, 
    161 Ariz. 283
    ,
    285-86 & n.1, 
    778 P.2d 1179
    , 1181-82 & n.1 (1989) (whether court erred in refusing to
    suppress statement to law enforcement); State v. Carlson, 
    228 Ariz. 343
    , ¶¶ 1-2, 
    266 P.3d 369
    , 370 (App. 2011) (whether court erred in granting motion to suppress statements to
    law enforcement; appealed prior to trial).
    ¶25           Here, at this court’s direction, the trial court was required to make a post-
    trial determination whether certain evidence was admissible under Rule 404(c). Given
    the procedural context in which this determination was to be made, there was no reason
    to direct the trial court to disregard evidence that had been presented at trial, which
    Herrera had the opportunity to challenge, and limit the evidence it could consider to that
    which had been presented before trial. Cf. United States v. Hernandez-Acuna, 
    498 F.3d 942
    , 945 (9th Cir. 2007) (denial of motion to suppress may be sustained based on trial
    evidence, where defendant able to examine witnesses). To the contrary, based on the
    reference in Rule 404(c)(1)(A) to the quantum of evidence available to the trier of fact, it
    was particularly appropriate for the court to base its post-trial finding on the evidence
    actually presented to the jury. The court did not err by basing its determination on
    14
    evidence presented at trial, which we, too, consider in determining the propriety of the
    court’s ruling.
    ¶26           The trial court found that A.M.’s testimony “was clear and it was
    convincing evidence that . . . the Yuma Acts[] occurred.” We defer to the court’s
    credibility determination. In re $26,980.00 U.S. Currency, 
    199 Ariz. 291
    , ¶ 10, 
    18 P.3d 85
    , 89 (App. 2000) (trial court, not appellate court, assesses credibility). We therefore
    conclude the court did not abuse its discretion in ruling the evidence was sufficient to
    allow the jury to find Herrera had committed the Yuma Acts. See Rule 404(c)(1)(A).
    A.M. testified Herrera had caused her to masturbate him “a few times” while the family
    lived in Yuma. And although Herrera notes that A.M. was unable to specify what time of
    day the first incident occurred, we agree with the court that her testimony “provided
    sufficient proof that the Yuma [A]cts occurred.” See State v. Haston, 
    64 Ariz. 72
    , 77,
    
    166 P.2d 141
    , 144 (1946) (uncorroborated testimony of victim sufficient to sustain
    conviction of guilt beyond a reasonable doubt); State v. Munoz, 
    114 Ariz. 466
    , 469, 
    561 P.2d 1238
    , 1241 (App. 1976) (in rape of minor case “a conviction may be based on the
    uncorroborated testimony of the victim unless the story is physically impossible or so
    incredible that no reasonable person could believe it”).
    ¶27           The record also supports the trial court’s finding that there was sufficient
    evidence for the jury to conclude Herrera had created all the videotaped images of A.M.
    As Herrera concedes, A.M. identified herself in the videotape segments depicting her
    breasts and in the derived images. Both she and her mother identified Herrera’s voice
    directing her to jump up and down in a portion of the videotape. The trial court found
    15
    that A.M.’s identification provided clear and convincing evidence the videotape segments
    and still images depicted her and were made by Herrera. Herrera argues the videotape
    segments do not “show who was holding the camera,” but A.M. testified that Herrera was
    the only person who had ever filmed her while she was naked.
    ¶28           Next, Herrera argues the Yuma Acts did not provide a reasonable basis to
    infer the character trait of sexual propensity, as required by Rule 404(c)(1)(B). The trial
    court found that Herrera’s aberrant sexual propensity could be inferred from the evidence
    that while in Yuma, Herrera “had his 11-13 year old step-daughter masturbate him.” The
    court added that the evidence supporting the inference included the videotape segments
    and still images of the victim. Herrera argues the evidence was insufficient, however,
    because the Yuma Acts “were limited to one type of act, occurred only a few times, and
    were not significant enough to report.” However, “evidence of a prior similar sex offense
    committed against the same child” may show “the defendant’s lewd disposition or
    unnatural attitude toward the particular victim.” State v. Garner, 
    116 Ariz. 443
    , 447, 
    569 P.2d 1341
    , 1345 (1977); see also State v. Garcia, 
    200 Ariz. 471
    , ¶ 29, 
    28 P.3d 327
    , 332
    (App. 2001). Although Herrera also asserts the videotape segments did not provide a
    sufficient basis for inferring he had an aberrant sexual propensity to commit the charged
    offense, he supports this argument only by reiterating his claim that there was insufficient
    evidence he had made the videotape.
    ¶29           Herrera lastly contends the trial court erred in finding the other-acts
    evidence satisfied the third step of the screening required by Rule 404(c), arguing the
    evidence was “needlessly cumulative, . . . confusing, and add[ed] nothing but unfair
    16
    prejudice.” But the court found the Yuma Acts “provided historical context to the
    charged sex crimes” because “[t]he sequence of escalating sexual contact was
    important.”9 It also found the evidence related to “[a] major issue at trial,” which was
    A.M.’s delay in reporting the charged offenses that subsequently were committed in Vail.
    The court noted the victim had testified that when she and Herrera were in Yuma, he had
    told her the acts that had occurred there were “‘okay’—provided ‘no one found out.’
    However, without testimony about the Yuma [A]cts, the jury would not have been able to
    fully assess the impact the warning had on the Victim.” These findings are supported by
    the record and the court did not abuse its discretion by finding the evidence was relevant
    to primary issues in the case.
    ¶30           We also reject Herrera’s argument that the videotape and image exhibits
    failed the third part of the Rule 404(c) analysis because they were “dissimilar to the
    crimes in question” and did not show “overt sexual behavior with another person.” The
    acts depicted involved nudity and sexually explicit statements and portrayed the same
    victim as the charged acts. As the trial court correctly concluded, the nature of the
    evidence was not such that it suggested to the jury it should determine Herrera’s
    culpability on an improper basis, such as an emotional one. The court noted in that
    regard the Yuma Acts were “less egregious” and the images “less graphic and less
    9
    Relying on Ferrero, Herrera implies the trial court erred by basing its
    determination that the evidence was admissible in part on its finding that the Yuma Acts
    “complete[d] [the] story” of the charged acts. We disagree. In Ferrero, the supreme
    court did not hold that evidence of other acts offered to complete a story cannot be found
    to be relevant; rather, the court held that such evidence is not necessarily admissible
    solely because it is intrinsic to the charged crimes. 
    229 Ariz. 239
    , ¶ 
    20, 274 P.3d at 513
    .
    17
    inflammatory” than the charged acts. The record supports the court’s findings and its
    conclusion that the probative value of the evidence was not substantially outweighed by
    any risk of undue prejudice to Herrera.
    ¶31           Herrera also contends the other-acts evidence was misleading because the
    jury could have confused the standard of proof necessary to establish those acts with the
    standard applicable to the charged acts. However, the trial court instructed the jury that
    although it could find Herrera had a character trait that predisposed him to committing
    the charged crimes if the state proved the other acts by clear and convincing evidence,
    “[e]vidence of the[] acts d[id] not lessen the State’s burden to prove [Herrera]’s guilt
    beyond a reasonable doubt as to any given charge.” The instructions also clarified the
    jury could not “convict [Herrera] of the crimes charged simply because [it] find[s] that
    the defendant committed the other act or that he had a character trait that predisposed him
    to commit the crimes charged.” We presume the jury followed these instructions, and
    Herrera has provided no reason to question whether it did so in this case. See State v.
    Newell, 
    212 Ariz. 389
    , ¶ 68, 
    132 P.3d 833
    , 847 (2006).
    ¶32           Moreover, the fact that the jury did not find Herrera guilty of all charges
    suggests it had not been so affected by the evidence of other acts that the guilty verdicts it
    rendered were the result of “emotion, sympathy or horror.” State v. Schurz, 
    176 Ariz. 46
    ,
    52, 
    859 P.2d 156
    , 162 (1993); see also United States v. Baker, 
    10 F.3d 1374
    , 1387 (9th
    Cir. 1993), overruled on other grounds by United States v. Nordby, 
    225 F.3d 1053
    (9th
    Cir. 2000); Garcia, 
    200 Ariz. 471
    , ¶ 
    42, 28 P.3d at 334
    . Based on the record before us,
    we conclude Herrera has not established the trial court abused its discretion in finding the
    18
    other-act evidence previously admitted as intrinsic was admissible under Rule 404(c).
    See Villalobos, 
    225 Ariz. 74
    , ¶ 
    18, 235 P.3d at 233
    .
    ¶33               The last class of other-acts evidence Herrera challenges is the testimony of
    Detective John Mawhinney, a computer forensic examiner, about photographic images
    found on the hard drive of Herrera’s personal computer.10 Herrera did not object to
    Mawhinney’s general testimony regarding the computer hard drives taken from Herrera’s
    home pursuant to a search warrant. When Mawhinney testified that one drive removed
    from Herrera’s home computer contained “more than—thousands [sic]” of photographic
    images, Herrera objected solely on the ground that the question called for speculation. On
    cross-examination, Herrera’s counsel asked Mawhinney if “around 17,500” photographs
    of naked women had been found on the hard drive. Additionally, Herrera did not object
    when the state asked on redirect whether those 17,500 photographs included “hundreds, if
    not a thousand, images of female [genitalia].” On appeal, Herrera contends the trial court
    committed fundamental error by allowing the state to elicit testimony about the
    “approximately 1,000 vaginal video images and to argue that those images were
    circumstantial evidence of guilt.”
    ¶34               Because evidence that the photographic images depicted naked females first
    was introduced through testimony elicited by defense counsel, Herrera invited any error
    10
    The state had not provided separate notice of its intent to introduce this evidence
    at trial.
    19
    and has no basis for challenging it.11 State v. Lindsey, 
    149 Ariz. 472
    , 477, 
    720 P.2d 73
    ,
    78 (1986) (“‘[A] party cannot complain about a result he caused.’”), quoting M. Udall &
    J. Livermore, Law of Evidence § 11 at 11 (2d ed. 1982). Likewise, when evidence is
    offered in response or retaliation to evidence offered by the opposing party, in general
    error will be deemed waived. 
    Id. Here, Mawhinney,
    the state’s witness, described the
    photographs only after defense counsel had asked questions about them. Because any
    error was invited, we do not address whether it was fundamental in light of defendant’s
    failure to object. Logan, 
    200 Ariz. 564
    , ¶ 
    9, 30 P.3d at 632
    (“If an error is invited, we do
    not consider whether the alleged error is fundamental . . . .”).
    II.    Propensity Instruction
    ¶35           In his opening brief, Herrera argues that if the evidence was intrinsic, as
    originally found by the trial court, “and not subject to the protections of Rule 404(c), the
    State was not entitled to the propensity instruction given by the trial judge.”          He
    maintains “[t]he jury was not entitled to consider such evidence as character
    trait/propensity evidence without the trial judge making the appropriate findings under
    Rule 404(c).” Herrera is correct that a sexual propensity instruction is proper only if the
    other-acts evidence was admitted as sexual propensity evidence. See Hargrave, 
    225 Ariz. 1
    , ¶ 
    23, 234 P.3d at 578
    . Because Herrera did not object to the instructions,
    11
    We disagree with Herrera’s contention that the state failed to respond in its
    answering brief to his assertion of error regarding the hard-drive images, thereby
    conceding error. In its answering brief, the state addressed Herrera’s argument that
    other-acts evidence was inadmissible on the ground that “proffered other-act evidence . . .
    was intrinsic evidence,” and stated that “evidence of sexually explicit images found at
    Appellant’s residence was also intrinsic.”
    20
    however, we will reverse only if the challenged instruction constituted fundamental,
    prejudicial error. See State v. Henderson, 
    210 Ariz. 561
    , ¶ 19, 
    115 P.3d 601
    , 607 (2005);
    see also State v. Simpson, 
    217 Ariz. 326
    , ¶ 12, 
    173 P.3d 1027
    , 1029 (App. 2007).
    ¶36           Herrera has not established the requisite prejudice under a fundamental
    error analysis. See State v. Edmisten, 
    220 Ariz. 517
    , ¶ 18, 
    207 P.3d 770
    , 776 (App. 2009)
    (even if court concludes fundamental error resulted from erroneous instructions,
    defendant must demonstrate reasonable probability jury would have reached different
    result but for erroneous instruction). As we previously concluded, although the court
    initially erred by admitting the evidence as intrinsic, it correctly found upon remand the
    evidence was admissible under Rule 404(c) as evidence of a character trait predisposing
    Herrera to commit the charged crimes. Herrera therefore is not entitled to relief for an
    instruction that explained the proper use of sexual propensity evidence. In addition, the
    jury was instructed “not to use the prior act evidence as a basis for convicting [Herrera]
    of the charges.” Hargrave, 
    225 Ariz. 1
    , ¶ 
    24, 234 P.3d at 578
    .
    III.   Preclusion of the Victim’s Prior Sexual History
    ¶37           Herrera next asserts the trial court erred by precluding him from
    introducing evidence about A.M.’s prior sexual history, specifically an allegation that she
    had engaged in a consensual sexual relationship with a female friend. Additionally, he
    argues he should have been permitted to introduce evidence that after A.M. had disclosed
    Herrera’s sexual abuse, she had told a friend she had had sex with her boyfriend. He
    argues this evidence was admissible under A.R.S. § 13-1421(A), and that the state
    21
    “opened the door” to such evidence.          Alternatively, Herrera argues § 13-1421 is
    unconstitutional.
    a. Admissibility under § 13-1421
    ¶38           We review a trial court’s decision to preclude evidence under § 13-1421 for
    an abuse of discretion. See State v. Gilfillan, 
    196 Ariz. 396
    , ¶ 29, 
    998 P.2d 1069
    , 1078
    (App. 2000). Section 13-1421, commonly referred to as the “rape-shield law,” provides
    that evidence of specific instances of a victim’s prior sexual conduct are admissible only
    if the judge “finds the evidence is relevant and is material to a fact in issue in the case and
    that the inflammatory or prejudicial nature of the evidence does not outweigh the
    probative value of the evidence.” Here, Judges Campoy and Cahill both found the
    evidence irrelevant and of little or no probative value. We agree.
    ¶39           Relying on State v. Trotter, 
    110 Ariz. 61
    , 
    514 P.2d 1249
    (1973), and State
    v. Roberts, 
    139 Ariz. 117
    , 
    677 P.2d 280
    (App. 1983), Herrera argues that A.M.’s sexual
    history was relevant to her credibility. But, neither case supports his position. In
    Roberts, the issue was the admissibility of expert testimony suggesting a witness might
    have been unreliable because of a mental 
    deficiency. 139 Ariz. at 123
    , 677 P.2d at 286.
    Trotter dealt with a prosecutor’s comment about witness credibility during closing
    
    arguments. 110 Ariz. at 65
    , 514 P.2d at 1253. Neither case implicated § 13-1421, which
    dictates the circumstances under which specific instances of a victim’s prior sexual
    conduct may be admitted.
    ¶40           Here, as we previously stated, both Judges Campoy and Cahill found that
    the proffered evidence was irrelevant and immaterial to any facts at issue. “The trial
    22
    court was in the best position to evaluate the evidence and judge the credibility of the
    witnesses.” Gilfillan, 
    196 Ariz. 396
    , ¶ 
    33, 998 P.2d at 1078
    . At a preliminary hearing on
    the issue, Judge Campoy found “no legal basis or evidentiary relationship between the
    alleged prior relationship with a same-sex partner and the issue involved in th[e] case.”
    When defense counsel tried to introduce the evidence at trial, arguing that the state had
    “opened the door,” Judge Cahill stated, “it’s just wild speculation that any of these
    acts . . . would have any relevance.” We find no error in the determinations that Herrera
    failed to establish that A.M.’s alleged prior sexual conduct was admissible.
    ¶41           Herrera seems to suggest the state opened the door to his use of this
    evidence to impeach the victim. This argument apparently is based on the prosecutor’s
    question to A.M.: “these things that you told us about that your stepfather did . . . [d]id
    any other person ever do these types of things to you?” First, we agree with the trial
    court that even if “the door is open . . . [it does not] mean you have the evidence to go
    through it.” Section 13-1421(A)(4) provides that one permissible use of the victim’s
    prior sexual history is “impeachment when the prosecutor puts the victim’s prior sexual
    conduct in issue.” But the statute also states that before admitting such evidence, a judge
    must find it relevant and “material to a fact in issue in the case,” and that its
    “inflammatory or prejudicial nature . . . does not outweigh its probative value . . . .”
    § 13-1421(A). Judge Cahill noted that the defendant “ha[d] to have something more” to
    establish a connection between the alleged sexual activity and the crimes charged and
    that there was “no good-faith basis” to admit the evidence. Additionally, we are not
    convinced in any event that the state opened the door to such evidence. Rather, the
    23
    prosecutor’s question apparently was an attempt to address Herrera’s suggestion that his
    and his wife’s “swinging partners” could have engaged in sexual conduct with or
    involving the victim.12
    b. Constitutionality of § 13-1421
    ¶42           Herrera contends § 13-1421 is unconstitutional because it violates his right
    to confront and cross-examine witnesses, violates the constitutionally mandated
    separation of powers between the legislature and courts, and infringes upon our supreme
    court’s rulemaking powers. Herrera concedes he challenges the constitutionality of the
    statute for the first time on appeal, but asserts the issue is of such importance that we
    should address it. We may consider constitutional arguments raised for the first time on
    appeal. See Gilfillan, 
    196 Ariz. 396
    , 
    n.4, 998 P.2d at 1074
    n.4. However, the arguments
    Herrera raises were considered and rejected in Gilfillan, and we see no reason to deviate
    from that decision. See State v. Benenati, 
    203 Ariz. 235
    , ¶ 7, 
    52 P.3d 804
    , 806 (App.
    2002).
    IV.      Expert Witness Testimony
    ¶43           Herrera’s final argument is that the state’s expert witness improperly
    invaded the province of the jury and improperly vouched for the victim, denying him a
    12
    In opening statement, Herrera’s counsel stated, “with all the swinging activity
    going on in that house, and people so wigged out and high on drugs and passing out in
    God knows what part of the house, it could have been anyone grabbing a camera and
    taking photographs.” A.M.’s mother testified that throughout their marriage, she and
    Herrera engaged in sexual activity with other partners, men and women, in their home
    and Herrera always was “filming and directing” the activity. Although the victim
    testified Herrera told her about his “swinging” activities, she also testified she never was
    present when they occurred.
    24
    fair trial. Wendy Dutton, a forensic interviewer, testified for the state as an expert on the
    behavior and characteristics of child sexual abuse victims. On direct examination, Dutton
    stated that false allegations occur most commonly when the purported victims are either
    “younger children whose parents are involved in a high-conflict divorce or custody
    dispute” or “adolescent females.” For adolescent females, she also stated that, false
    allegations are usually driven by an “ulterior motive or secondary gain.” On cross-
    examination, defense counsel focused on rates of false allegations among adolescent
    females asking, “Now, you had mentioned earlier that teenage girls are the most likely
    group of children to make false allegations of sexual abuse. Did I say that correctly?”
    Dutton disagreed with this characterization of her prior testimony.
    ¶44           Before the witness was excused, the jury was permitted to submit proposed
    questions. Neither party objected to any of the proposed questions. The trial court then
    read two of the jurors’ questions to Dutton, “What percentage of allegations later prove to
    be false?” and, “What are the statistics of stepparents abusing stepchildren?” During
    recross-examination, Dutton concurred with defense counsel’s statements that “[t]here
    may be any number of allegations that are never actually proven [false or] otherwise.”
    Herrera did not object to Dutton’s testimony at any point during direct or cross-
    examination. Even though Dutton herself stated, “I’m not sure I’m allowed to answer
    that question,” Herrera did not object to the jurors’ questions or the answers provided.
    ¶45           The state concedes that testimony about the specific percentage of false
    sexual abuse allegations and the most common type of perpetrators of sexual abuse was
    error under the standard established in 
    Lindsey, 149 Ariz. at 475
    , 720 P.2d at 76 (courts
    25
    should not admit expert testimony related to credibility of “witnesses of the type under
    consideration”). But, it argues, Herrera’s failure to object to the testimony constituted
    invited error.     Because failure to object alone does not invite error, we reject this
    argument. See State v. Lucero, 
    223 Ariz. 129
    , ¶ 22, 
    220 P.3d 249
    , 256 (App. 2009).
    ¶46              By failing to object below, however, Herrera has forfeited the right to seek
    relief for all but fundamental, prejudicial error. Henderson, 
    210 Ariz. 561
    , ¶ 
    19, 115 P.3d at 607
    .     Although we will not ignore fundamental error when we see it, State v.
    Fernandez, 
    216 Ariz. 545
    , ¶ 32, 
    169 P.3d 641
    , 650 (App. 2007), Herrera must show
    “both that fundamental error exists and that the error in his case caused him prejudice,”
    Henderson, 
    210 Ariz. 561
    , ¶ 
    20, 115 P.3d at 607
    . See also State v. Moreno-Medrano,
    
    218 Ariz. 349
    , ¶ 17, 
    185 P.3d 135
    , 140 (App. 2008) (failure to argue error not raised
    below was fundamental waives argument). Herrera relies on Lindsey for the proposition
    that Dutton’s testimony denied him his right to a fair trial. The expert witness in Lindsey
    had testified “[there was] a preponderance of the evidence” the victim was telling the
    
    truth. 149 Ariz. at 477
    , 720 P.2d at 78.        Our supreme court disapproved of such
    testimony, holding that “trial courts should not admit direct expert testimony that
    quantifies the probabilities of the credibility of another witness.” Id. at 
    475, 720 P.2d at 76
    . The court added that “experts should not be allowed to give their opinion of the
    accuracy, reliability or credibility of a particular witness in the case being tried” or
    “witnesses of the type under consideration.” 
    Id. None of
    Dutton’s testimony dealt with
    the veracity of this particular victim. In response to the jurors’ questions, however, she
    testified that stepfathers are often the perpetrators and that “false allegations occur less
    26
    than [ten] percent of the time,” which did quantify the credibility of “witnesses of the
    type under consideration.” 
    Id. Although in
    Lindsey the court found similar expert
    testimony to be prejudicial, the case before us is distinguishable. Unlike the expert in
    Lindsey, Dutton testified she had no knowledge of the particular facts and circumstances
    of the case and had not met the victim. And, Dutton acknowledged that children lie about
    sexual abuse—sometimes for secondary gain—which was the defense presented here.
    Thus, viewed in its entirety, the testimony did not tell the jury “who is correct or
    incorrect, who is lying and who is truthful.” 
    Id. at 474,
    720 P.2d at 75.
    ¶47           As the supreme court recognized in Lindsey, “testimony . . . which falls
    short of an opinion about the specific witness before the jury . . . might not be prejudicial
    error in a case in which there was ample extrinsic evidence of 
    guilt.” 149 Ariz. at 476
    -
    
    77, 720 P.2d at 77-78
    .       Herrera argues that “the evidence of [his] guilt was not
    overwhelming” and that the case turned solely on the issue of A.M.’s credibility. We
    disagree and conclude there was “ample extrinsic evidence of guilt.” 
    Id. Although there
    was no medical evidence that corroborated the victim’s testimony, the evidence included
    numerous photographs and videotapes and testimony of other witnesses in addition to
    A.M. Furthermore, Dutton’s testimony was not the only information upon which the jury
    could rely to assess A.M.’s credibility. A.M. provided lengthy and detailed testimony,
    the credibility of which the jury could determine for itself.
    ¶48           The trial court also instructed the jurors properly that they were not bound
    by any expert opinion and should give an opinion only the weight they believed it
    deserved. We presume they followed this instruction. See State v. LeBlanc, 
    186 Ariz. 27
    437, 439, 
    924 P.2d 441
    , 443 (1996). And Herrera’s acquittal on two counts undercuts his
    argument that the error here meant “defendant could not possibly have received a fair
    trial.” Henderson, 
    210 Ariz. 561
    , ¶ 
    19, 115 P.3d at 607
    ; cf. Garcia, 
    200 Ariz. 471
    , ¶ 
    42, 28 P.3d at 334
    . Therefore, although Dutton’s testimony about the percentages of false
    accusations and rate of stepfather perpetrators was improper, Herrera has failed to
    establish that her testimony resulted in fundamental, prejudicial error, entitling him to
    relief. See Henderson, 
    210 Ariz. 561
    , ¶ 
    19, 115 P.3d at 607
    .
    Disposition
    ¶49          The convictions and sentences imposed are affirmed.
    /s/ Virginia C. Kelly
    VIRGINIA C. KELLY, Presiding Judge
    CONCURRING:
    /s/ Garye L. Vásquez
    GARYE L. VÁSQUEZ, Judge
    /s/ Peter J. Eckerstrom
    PETER J. ECKERSTROM, Judge
    28