Martinez-Arias v. State

869 S.E.2d 501, 313 Ga. 276

• Court: Supreme Court of Georgia
• Decided: February 15, 2022
• Docket: S21G0150
• Status: Published

Opinion

313 Ga. 276 FINAL COPY

S21G0150. MARTINEZ-ARIAS v. THE STATE.

WARREN, Justice.

Alejandro Martinez-Arias was tried by a Hall County jury and

convicted of aggravated child molestation, aggravated sexual

battery, and child molestation. In his appeal to the Court of

Appeals, Martinez-Arias contended, among other things, that the

trial court erred when it allowed the State to present opinion

testimony about certain purported aspects of Mexican or Latino

culture from a school counselor who had worked with M. J., the child

victim. The Court of Appeals affirmed, concluding that the trial

court did not abuse its discretion in admitting the disputed

testimony. See Martinez-Arias v. State, 356 Ga. App. 423 (846 SE2d

448) (2020). We granted certiorari and asked the following question:

“Did the trial court commit reversible error when it admitted opinion

testimony about cultural characteristics of an ethnic group?” For

the reasons that follow, we conclude that the trial court abused its discretion when it admitted this testimony, but we nonetheless

affirm because the error was harmless based on the record in this

case.

1. Background.

(a) The evidence presented at trial showed that Martinez-

Arias—who was the boyfriend of M. J.’s aunt, Maria Cruz—sexually

abused M. J. over the span of approximately three years. M. J.

testified that, when she was nine years old, she began living in

Illinois with Cruz, Martinez-Arias, and M. J.’s two brothers.

Previously, M. J. had lived for a year in Mexico with her father, and

before that, she had lived with her grandfather in Illinois. About six

months after she began living with Cruz, M. J. moved to Georgia

with Cruz, Martinez-Arias, and her two brothers.

At first, the five lived in a small house in Gainesville. There,

M. J. shared a room with her brothers, with a makeshift barrier

providing some privacy. M. J. testified that she was in fifth grade

at the time, and when she came home from school, Martinez-Arias

2 would come into her room and touch her “private area,” including

her chest. According to M. J., this happened multiple times per day.

After several months, M. J.’s family (including Martinez-Arias)

moved into a bigger house, where they remained for about two years.

There, M. J. had her own room, but it adjoined the bedroom Cruz

shared with Martinez-Arias, and only a curtain separated the two

rooms. Moreover, because of the house’s layout, M. J. had to walk

through Cruz’s bedroom to get to the rest of the house. M. J.’s

brothers shared a room in another part of the house, and M. J.

testified that Cruz and Martinez-Arias would not let her spend time

with her brothers in that room.

M. J. testified that, during the time she lived in the second

house, Martinez-Arias would come into her room at night and do

things she “didn’t like.” Specifically, Martinez-Arias would take off

her clothes, including her underwear, and touch her “private areas”

with his hands and mouth, and he would touch her not “just on the

outside of [her] private parts.” Sometimes when he did that,

Martinez-Arias would be wearing just a towel. He did this to her

3 “[a]lmost” every day, a “couple times a day,” throughout the two

years that M. J. lived there.

M. J. testified that she did not tell anyone about the abuse at

the time because her aunt was “happy” with Martinez-Arias, and M.

J. “didn’t want him to leave [her] aunt.” Moreover, M. J. “didn’t

know if anyone would believe [her],” and she was “scared” that if she

disclosed the abuse to her brothers, she “would lose them too.” To

cope with the abuse over the years, M. J. would cut herself on her

arms and legs with a razor.

In late January 2015, M. J. finally disclosed the abuse to her

older brother, A. J., who was 14 years old at the time. In response,

A. J. gave M. J. a cell phone to use in an attempt to record an

encounter with Martinez-Arias, and she did so that night.1 A short

1 At trial, A. J. testified for the State, and when asked how he found out

about M. J.’s abuse, he responded: “My little sister came to me with cuts all over her body, basically, to her thighs and arms, they were cut. And she said she couldn’t take it anymore.” A. J. testified that he initially “got mad” at M. J. because of the cuts, but then she told him that Martinez-Arias “had been touching her for the past two years.” A. J. testified that he had first noticed cuts on M. J.’s body four or five months after they moved to Georgia, and the cutting “ended up getting worse and worse day by day.” When A. J. asked M.

4 audio clip from the cell phone was played for the jury at trial; it

appears undisputed that the clip contains the voices of Martinez-

Arias and M. J., with Martinez-Arias saying something

indistinguishable and M. J. saying “stop.” M. J. testified that the

recording revealed her telling Martinez-Arias to “stop” touching

her.2

The same night that she made the recording, M. J. and her

brothers packed up some of their belongings, contacted their

grandmother, Brenda Pizano—who lived in Illinois—and left their

house on foot. Pizano started a 12-hour drive to Georgia and

eventually found the children “out on the street hiding,” picked them

up, and contacted law enforcement. The children were placed in

foster care for about a week and then released into the custody of

Pizano, who took them back to Illinois.

J. to record an abusive encounter on his cell phone, he said she was “very hesitant,” but, A. J. testified, “the evidence was needed.”

2 A cell phone forensic investigator later testified that the recording was

made at 10:27 p.m. on January 29, 2015. 5 Pizano testified that when she picked up the children on the

night they left their house, M. J. told her that Martinez-Arias “was

trying to molest her, he was feeling all over her and touching her

bottom parts.” When Pizano asked M. J. whether that “really had

happened,” M. J. “thought [Pizano] wasn’t believing her and she was

upset at first and she said she’s not lying, that it happened.”

According to Pizano, when M. J. and her brothers moved back

to Illinois, M. J. “was happy to be back” at first, “but she also had a

lot of anger issues, a lot of sadness,” and she “shut[ ] herself up in

her bedroom a lot.” Asked about her discussions with M. J., Pizano

testified:

I have asked [M. J.] to tell me everything that had happened, what he did, where he touched her, and she would get upset all the time and run[ ]away. And one time she got really upset and she says, Are you satisfied now? This is what you wanted me to show, my emotions? He touched me down there. He licked me, he fingered me. Is that what you wanted me to tell you guys? I have a hard time talking about this. She said, I don’t want nobody to know what happened to me.

Pizano also testified that M. J. suffered from nightmares and

had trouble sleeping and that she had “tried to commit suicide, she

6 has done razor cuts on herself.” The suicide attempt, Pizano

testified, occurred when M. J. found out she might have to come to

Georgia to testify at Martinez-Arias’s trial.

(b) After disclosing the abuse to law enforcement officials, M.

J. underwent a forensic interview and a forensic physical

examination. The nurse practitioner who examined M. J. testified

that, when she asked M. J. if she knew the purpose of the

examination, M. J. replied, “To get checked because [Martinez-

Arias] has been putting his fingers and mouth inside me for a long

time.” The physical examination did not show conclusively whether

M. J. was sexually abused, but it did reveal “linear” abrasions “on

certain places on [M. J.’s] body . . . on her left wrist as well as her

right hip, outer thigh area, that were indicative of former or previous

lacerations that had healed and scarred.” A video recording of the

forensic interview was introduced into evidence and played for the

jury at trial.

(c) In addition to evidence specifically concerning M. J., the

State presented the testimony of Dr. Julie Battle—a licensed

7 psychologist and the chair of the psychology department at Brenau

University who also had experience at a Hall County child advocacy

center conducting forensic interviews of children who alleged to have

suffered abuse. After Dr. Battle detailed her educational and

professional qualifications, and without objection from the defense,

the trial court permitted her to testify as an “expert in the area of

child psychology and forensic interviewing.” Dr. Battle then

testified generally about the behavior of child sex-abuse victims,

without referring specifically to M. J. Among other things, Dr.

Battle testified that there are “so many reasons why kids are afraid”

to tell someone about sexual abuse that

[t]he better question might be why does anybody ever tell. It’s really hard to tell somebody these things, particularly if the perpetrator is somebody that the child knows, and almost always the perpetrator is somebody the child knows and somebody the family trusts.

Dr. Battle explained that, in such cases, child victims “don’t love the

abuse,” but “[a]lmost always they love the perpetrator,” they “don’t

want to get the perpetrator in trouble,” and they “feel huge

responsibility for keeping the family together.” For example, “if the

8 perpetrator’s a dad or step-dad, [the victims] know if I tell mom,

she’s either not going to believe me or she’s going to be really upset

and it’s going to be my fault that mom’s upset and I don’t want to

make her upset.” Indeed, Dr. Battle testified, older children

“typically have an understanding of what might happen after a

disclosure,” and they find it “a lot easier to deal” with the abuse than

creating discord within the family, having the police involved, or

potentially going to court and testifying. Furthermore, child victims

often feel “really uncomfortable” talking about the abuse: “It’s really

uncomfortable to talk about sexual stuff, even consensual sexual

stuff. And when we talk about non-consensual stuff and with

children[—]stuff they don’t understand or have the words for[—

]that’s really, really uncomfortable to them.”

(d) The State’s last witness, Betsy Escamilla, was a counselor

at the middle school M. J. had attended in Hall County. Although

Escamilla was not tendered as an expert witness and was not

qualified as such by the trial court, she testified that she had

associate’s degrees in criminal justice and “early childhood

9 [education],” a bachelor’s degree in psychology, and a “master’s of

science with a specialization in school counseling.” She also testified

that a “majority of the student population” at the school where she

worked was “of Latino background,” that she came from a “Latino”

“cultural background,” having been “born in Mexico but raised in

Hall County,” and that one of her “passions [was] to work with

Latino at-risk students and students in poverty.” To that end, she

attended conferences and obtained certifications and, as part of

earning her degree in psychology, wrote a “senior research paper” on

the “prevalence [of incest] among Latino families,” with a focus on

Hall County.

The prosecutor first asked Escamilla to opine on “Latino

culture” about sexual abuse as follows:

PROSECUTOR: Now, through your research and your work as a school counselor, have you noticed any attitudes in the Latino culture regarding sexual abuse? ESCAMILLA: Yes, I have. Besides just growing up in the Latino — the scholarly articles I’ve read and research in my professional experience working with Latino children who have been exposed or have been victims of sexual abuse, one — there are several factors that are common factors that deal with working — that Latino children

10 experience, and one of them is working — is the Latino culture is a collectivistic family — they value collectivism a lot. And a lot of factor is the machismo. And . . . another common trend or factor[ ] is the lack of sexual education. Often many of the students that either disclosed or had been victims of sexual abuse say that or have told me —

At that point, Martinez-Arias’s counsel lodged hearsay and

relevance objections, but the trial court allowed the prosecutor to

continue, and the following exchange occurred:

PROSECUTOR: So without saying what other students have told you, I’m asking you about some attitudes you’ve noticed with the Latino culture and sexual abuse. I think you spoke about a machismo culture. Can you explain that to the jury? ESCAMILLA: The machismo culture means — or what children have expressed to me — not expressed, but what I have experienced is in the machismo culture in the traditional Hispanic and more in the Mexican traditional culture, the father in the home is the breadwinner or the man — whoever the role model, it may not be the father, it could be an uncle or grandparent or even the older brother, there is — if there’s not a father in the home, is seen as a — as the leader of the home, the one that you have to serve; that many times the mothers or the females are supposed to be submissive to the — to the role — to the male role and the male figure in the home.

11 Defense counsel again raised a relevance objection, and the

prosecutor responded that defense counsel earlier had “explored the

traditional roles in the home” with a different witness and that the

State was “attempting to develop some of the attitudes that may

have been prevalent in the home in which the victim resided.”3 The

trial court overruled the relevance objection and stated that “the

jury can use the evidence for whatever value, if any, the jury finds

in this case.”

3 Specifically, A. J. earlier had been asked about his household’s dynamic

and testified that, while living in Georgia, Cruz and Martinez-Arias were “[s]omewhat strict,” but that he and his brother had “more freedoms” than M. J. in the sense of “[g]oing out, hanging out with friends, typical teenage freedoms.” On cross-examination, A. J. further testified that his aunt, Cruz, was the primary disciplinarian in the household and that she was more strict with M. J. than with him and his brother, in part because M. J. “was a girl.” Asked whether Cruz “differentiated between boys and girls,” A. J. responded, “Yes, that’s correct, because I seen [sic] how my grandfather raised his kids; girls are girls and boys are boys.” Further, A. J. testified that Cruz was “somewhat” the “boss of the house” and that there was a gender divide between the household duties performed by Martinez-Arias and Cruz; for example, Cruz would do most of the grocery shopping, whereas “clean[ing] the outside was mainly the men’s job.” But, A. J. testified, he and the other children’s household duties were divided such that “everyone had a turn at dishes, everyone was responsible for their room, their clothes.” A. J. also testified that he often helped Martinez-Arias with side jobs, such as landscaping or fixing cars, while M. J. helped with “traditional female” duties, such as cleaning and cooking. Notably, A. J.’s testimony made no references to ethnicity, and neither party objected to his testimony about household dynamics. 12 The prosecutor again asked Escamilla: “Have you, in your

research with Latino victims of sexual abuse, noticed any cultural

norms regarding sexual abuse in the Latino culture?” Escamilla

responded:

There’s guilt, shame, lack of family support and lack of reporting among the children. And also the support from the family members because of the fear of shame, that is contributing — I stated at the beginning, the values in the Latino Mexican culture — I’m going to continue with the Mexican culture because that’s what I have the most experience working with, and that is personally what I have a passion for — but it’s the fear of — because of the collectivistic and the family structures, it’s really difficult for children to express or even disclose, and when they do disclose, often the times the lack of support from the family for — it’s kind of seen as if it happens — and no way am I saying that this is acceptable norm, but it happens — but if it happens, it’s something that you don’t share, that you keep it quiet, that it is the girl’s fault for opening her legs and the boys are just supposed to be that way, they just have urges. And many of the times when I’ve worked with girls, that is the guilt and the shame, like it’s their fault that they opened their legs, it’s their fault they never reported it, it’s their fault that it’s happening. Because, again, the Mexican culture, in particular, it’s taboo — sexual education is a taboo topic among Latinos and a lot more in the Mexican structure, because it’s based on religious foundations, as well.

13 Escamilla then offered extensive testimony about her personal

interactions with M. J. As a school counselor, Escamilla met with

M. J. “frequently” and “followed up” about “previous counseling

sessions” that M. J. had attended with a different counselor,

including in one-on-one meetings with M. J. In describing her

personal observations of M. J.’s personality and demeanor,

Escamilla testified, among other things, that M. J. made good grades

and was an “extraordinary student,” that she “stood out” among

other students, and that she “always carried a book in her hand.”

But, Escamilla said, M. J. was “having a difficult time not being with

family, and not growing up with a mom.” Moreover, M. J. was

“[q]uiet,” “different than a lot of the other seventh grade girls that

were trying to get attention,” and not the type of student who “would

tell you everything immediately.”

Escamilla testified that M. J. did not tell her about being

sexually abused until after the abuse was reported to law

enforcement officials. When M. J. did talk to Escamilla about the

abuse, M. J. was “very emotional, she was crying.” M. J. told

14 Escamilla that Martinez-Arias had been “touching her and doing

things to her at night”—that “he had touched her without her

permission and it was hurting.” Escamilla further testified that M.

J. expressed to her that M. J.’s father was dismissive about the

abuse: “her father dismissed the fact that it was sexual molestation

because there—there had not been any penetration.” And M. J. had

a “hard time coping” with her father’s attitude in that regard. The

State concluded its case-in-chief after Escamilla’s testimony.

(e) Martinez-Arias’s counsel cross-examined M. J. and

elicited testimony to support the defense theory that M. J. had a

motive to fabricate her story of abuse. Among other things, M. J.

acknowledged that, not long before she made the cell-phone

recording of the abuse, her brothers got into a “fairly heated”

argument with Martinez-Arias. M. J. could not recall the specifics

of the argument, but testified that “it started out something small

and it blew out of proportion pretty easily.” She further testified

that Cruz and Martinez-Arias previously had “threatened” to send

15 M. J. and her brothers to Mexico, although they had never followed

through on that threat.

The defense also presented several of its own witnesses—

including Cruz, who had married Martinez-Arias after M. J.

disclosed the abuse. In sum, Cruz testified that, during the time M.

J. lived with them, Cruz did not observe any behavior on the part of

M. J. or Martinez-Arias that would cause her to believe that M. J.

was sexually abused; for example, Cruz never heard anything in M.

J.’s bedroom “that caused [her] concern,” and Cruz never saw

Martinez-Arias “running out” of M. J.’s bedroom “or seeming like he

was trying to hide something.” Cruz also testified that she heard

the cell phone recording in which M. J. said, “Stop,” and that she

recalled an occasion where she heard “something like that between

[Martinez-Arias] and [M. J.]” In describing this event, however,

Cruz testified that Martinez-Arias was trying to confiscate the cell

phone from M. J., and again, Cruz did not observe anything

inappropriate or unusual at the time; for example, Cruz testified

that she saw Martinez-Arias walking out of M. J.’s room with his

16 clothes on and that M. J. was lying on her bed, “fully clothed,” with

“her hand under the pillow with the cell phone.” Several other

witnesses, including members of the church that M. J. frequented

with her family, testified that they did not observe anything unusual

about M. J.’s behavior around Martinez-Arias and that she in fact

called him “Papi” or “Dad.”

2. Procedural History.

The jury found Martinez-Arias guilty of all three counts; he

received a total sentence of life in prison, with 25 years to serve in

custody and the remainder on probation. He then filed a motion for

new trial, contending (among other things) that the trial court erred

when it failed to exclude Escamilla’s “expert” testimony about

Latino cultural attitudes or norms. He argued that this testimony

was irrelevant and that the State failed to disclose Escamilla before

trial as an expert witness. The trial court denied Martinez-Arias’s

motion for new trial, finding that Escamilla was not tendered as an

expert witness and that her testimony was “relevant and helpful to

understanding the victim-child’s behavior in the context of her

17 Latino family,” and in particular, her “behavior in failing to disclose

for some period of time and the family’s negative reaction to her

disclosure.” Martinez-Arias then appealed.

The Court of Appeals affirmed the trial court’s judgment. See

Martinez-Arias, 356 Ga. App. 423. With regard to relevance, the

Court of Appeals determined that Escamilla’s testimony “provided

context for the several-year delay in the victim’s outcry, a relevant

issue given the defense’s theory that the allegations of abuse were

fabricated,” and that the “trial court was authorized to conclude that

the testimony related to the victim’s fear and failure to immediately

disclose the abuse, rather than Martinez-Arias’s ethnicity.” Id. at

425 (citation and punctuation omitted). The Court of Appeals also

concluded that “the trial court did not err in finding that

[Escamilla’s] testimony was admissible as lay opinion evidence,

rather than expert testimony.” Id. at 426. We granted certiorari to

determine whether the admission of Escamilla’s testimony about

“cultural characteristics of an ethnic group” constituted reversible

error.

18 3. Escamilla’s Generalized Testimony About Mexican and Latino Culture Was Not Relevant.4

Under our Evidence Code, “the term ‘relevant evidence’ means

evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” OCGA § 24-

4-401 (“Rule 401”). Although this relevance standard is a “liberal

one,” it is “not meaningless or without boundaries.” State v.

Stephens, 310 Ga. 57, 60 (849 SE2d 459) (2020). Any evidence that

fails to meet this standard will be barred by OCGA § 24-4-402 (“Rule

4 We note at the outset that the State (represented by the District Attorney’s office) argued at trial and in the motion for new trial proceedings that Escamilla’s testimony about generalized ethnic and cultural characteristics was relevant, and that the State maintained that position throughout the proceedings before the Court of Appeals, in its response to Martinez-Arias’s certiorari petition, and again in its appellate brief to this Court. However, during oral argument (which occurred more than four months after the District Attorney’s brief was filed in this Court), and with no prior notice to this Court or to Martinez-Arias’s counsel, the District Attorney— appearing on behalf of the State—changed position on the relevance of Escamilla’s testimony. To that end, the State at oral argument conceded that Escamilla’s generalized testimony was not relevant, but argued that the trial court’s error in admitting it was harmless. We understand that circumstances may arise that necessitate or otherwise lead to a change in a party’s legal position, and we appreciate the State’s forthrightness in this regard. We remind litigants, however, that in such circumstances, parties should notify the Court and the opposing counsel as soon as possible to provide adequate time to prepare for, or respond to, new or changed positions. 19 402”), which provides, without exception, that “[e]vidence which is

not relevant shall not be admissible.” See State v. Mondor, 306 Ga.

338, 350 (830 SE2d 206) (2019) (citation and punctuation omitted).

A trial court’s decision whether to admit or exclude evidence is

reviewed on appeal for an abuse of discretion. Lyons v. State, 309

Ga. 15, 21 (843 SE2d 825) (2020).

As an initial matter, it bears noting that the majority of

Escamilla’s testimony pertained to her personal interactions with

M. J. in Escamilla’s role as M. J.’s school counselor—both before and

after M. J. disclosed the abuse she suffered—and to the rational

inferences Escamilla perceived from those interactions. See OCGA

§ 24-7-701 (stating that lay witness testimony “in the form of

opinions or inferences” must, among other things, be “[r]ationally

based on the perception of the witness”). Although the trial court

made no express findings on the relevance of this aspect of

Escamilla’s testimony, we have no trouble concluding that the

testimony was provided as a lay opinion and that it was relevant to

20 corroborating the State’s theory about M. J.’s actions both before and

after her outcry.

We cannot say the same about Escamilla’s generalized

testimony about Mexican and Latino culture.5 Putting aside the

question of whether Escamilla purported to testify as an expert

witness when she opined on Mexican and Latino culture,6 we

conclude that her generalized testimony in this regard was not

relevant and was thus inadmissible.

We begin our analysis of this testimony by identifying the “fact

that is of consequence” under Rule 401. Both the trial court and the

5 Escamilla was asked specifically about “Latino culture,” and she expressly mentioned “Latino culture.” Escamilla also referred to “traditional Hispanic” culture and “Mexican traditional culture,” and she appeared to focus on “Mexican culture because that’s what [she had] the most experience working with” and had “a passion for.” For ease of reference, unless expressly stated otherwise, any further mention of “Escamilla’s testimony” in this opinion refers to her generalized testimony about Mexican and Latino culture—not to her testimony about her personal interactions with M. J.

6 Given our conclusion that follows in this division, we need not decide whether Escamilla’s testimony was properly admitted as lay opinion. Suffice it to say, however, that some of us have concerns about whether the type of generalized testimony Escamilla offered about Mexican and Latino culture— even if it were relevant—could be offered properly by a lay person, as opposed to by an expert who is qualified to opine on such topics. 21 Court of Appeals concluded that Escamilla’s testimony was intended

to explain M. J.’s delayed outcry—that is, to show that her years-

long delay in disclosing the abuse she suffered was not the result of

fabrication, but rather was “related to the victim’s fear.” Martinez-

Arias, 356 Ga. App. at 425. To that limited extent, we agree with

the trial court and the Court of Appeals that, if Escamilla’s

testimony were relevant at all, it would be for the limited purpose of

“provid[ing] context for the several-year delay in the victim’s

outcry.” Id.7

But we reach a different conclusion about whether Escamilla’s

testimony about Mexican and Latino culture was actually relevant,

and conclude that it was not because it had no tendency to make the

“fact of consequence”—the State’s theory that M. J.’s delayed outcry

7 The State did not argue, either in the trial court or on appeal, that

Escamilla’s testimony was relevant to explain Martinez-Arias’s behavior—to show, for example, that the prevalence of “machismo” in Latino culture made it more likely that Martinez-Arias sexually abused M. J., or that he had a propensity to sexually abuse children because of his ethnicity. And, as explained below in Division 4, we do not believe that Escamilla’s testimony reasonably could be interpreted as such. Were it otherwise, Escamilla’s testimony could be problematic for a host of other reasons beyond just lack of relevance. We need not enumerate those reasons today, however, because that situation is not presented here. 22 was not the result of fabrication—any more probable or less probable

than it would have been without the testimony. See OCGA § 24-4-

401. In other words, it indicated nothing at all about M. J.’s specific

motivations about when and why she reported her abuse and

provided no basis for the jury to make any reasonable inferences

about M. J.’s behavior; the testimony bore no relationship to M. J.

or her specific actions. See Fed. R. Evid. 401, Advisory Committee

Notes (“Relevancy is not an inherent characteristic of any item of

evidence but exists only as a relation between an item of evidence

and a matter properly provable in the case. . . . Whether the

relationship exists depends upon principles evolved by experience or

science, applied logically to the situation at hand.”). See also, e.g.,

Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 932 F3d 1303,

1320 (11th Cir. 2019) (concluding that certain evidence was relevant

because “the jury reasonably could have inferred” a consequential

fact from that evidence).8

8 Because OCGA § 24-4-401 is materially identical to Federal Rule of

Evidence 401, in interpreting OCGA § 24-4-401, “we properly look to the

23 To begin, Escamilla’s testimony about the ethnic and cultural

attitudes she had experienced was so broad and generalized that we

cannot say it would indicate to the jury whether those attitudes—

even assuming for the sake of argument their accuracy—applied to

the members of M. J.’s household. That is particularly true with

respect to Escamilla’s testimony about “collectivism” (“Latino

culture is a collectivistic family”) and “machismo” (“a lot of factor

[sic] is the machismo”) in Latino culture. Likewise, Escamilla’s

generalized comments such as “many times the mothers or the

females are supposed to be submissive” and “another common trend

or factor[ ] is the lack of sexual education” provided no basis for the

jury to be able to determine the prevalence of those attitudes and

whether the members of M. J.’s household shared them, again

decisions of the federal appellate courts — particularly the United States Supreme Court and the Eleventh Circuit — interpreting [federal Rule 401], rather than to cases discussing relevance under the old [Georgia] Evidence Code.” Smith v. State, 299 Ga. 424, 429-430 (788 SE2d 433) (2016). Moreover, “although Advisory Committee Notes are not binding precedent and cannot change the plain meaning of the law or rules, they are highly persuasive.” State v. Almanza, 304 Ga. 553, 559 n.6 (820 SE2d 1) (2018). 24 assuming only for the sake of argument that Escamilla’s testimony

was even accurate.

What is more, neither M. J. nor any member of her household

testified about their own ethnic or cultural identity, and it is not

clear to us that, just because M. J. and at least some members of her

household had lived in Mexico at some point or had family living in

Mexico, the jury reasonably could infer that the generalized

characterizations Escamilla offered about Mexican or Latino culture

applied to M. J. or the members of her household living in Georgia.9

Given this lack of foundation, we do not see how a jury reasonably

could infer from Escamilla’s testimony that M. J.’s decision about

the timing of her outcry—including that she allegedly suffered

nearly three years of abuse before revealing it—was affected (let

alone motivated) by the cultural attitudes Escamilla testified to

having observed and studied. See United States v. Street, 548 F3d

9 The State also argued at trial that Escamilla’s testimony was relevant

because it related to defense counsel’s cross-examination of A.J. about “the traditional roles in [M.J.’s] home.” But A.J.’s testimony in that regard—as summarized above in footnote 3—was about his household’s dynamic and made no reference to ethnicity. 25 618, 631-633 (8th Cir. 2008) (detective’s testimony about general

gang culture and attitudes, including a purported “tradition of

misogynistic, hardened outlaws,” was not relevant, in part because

this evidence had “no discernible connection to the murder charges

[the defendant] faced, and [the defendant] was not a gang member

nor ever had been”); United States v. Hall, 653 F2d 1002, 1006 (5th

Cir. 1981) (testimony from a “quasi-expert” about general

investigative procedures of the Drug Enforcement Administration

was not relevant because he “testified to no facts bearing on any

manner on the prosecution of [the defendant] or on the investigation

leading to that prosecution”). See also Jinro America, Inc. v. Secure

Investments, Inc., 266 F3d 993, 1011 (9th Cir. 2001) (Wallace, J.,

concurring) (in civil case, testimony about the behavior and

attitudes of “Korean businessmen” in general was not relevant “to

show that this particular Korean businessman (or company) is that

type of a businessman or acted that way in this specific contractual

26 arrangement”; “it shed[ ] no light on [the defendant company’s]

activities in this case”).10

10 We acknowledge that federal courts have reached different conclusions

when analyzing the often-complex question of whether evidence about culture or ethnicity is relevant under Federal Rule of Evidence 401. Compare, e.g., United States v. Cabrera, 222 F3d 590, 596 (9th Cir. 2000) (holding that, in a drug prosecution, “[m]ost of [the investigating officer]’s references to Cubans were not relevant under Rules 401 and 402,” that his “testimony about how Cubans package their drugs may have been relevant to other aspects of the case,” and that the packaging evidence was in any event inadmissible under Federal Rule of Evidence 403); United States v. Doe, 903 F2d 16, 20-21 (D.C. Cir. 1990) (expert testimony that “the retail [drug] market has been taken over basically by Jamaicans” and that local drug dealers “in many cases” were replaced by “Jamaicans” was irrelevant because this testimony “hardly described for the jury the modus operandi of drug dealers, Jamaican or otherwise,” and could not have “provided legitimate assistance to the jurors in determining whether appellants committed the offenses charged”; and although other aspects of his testimony that referenced ethnicity were “arguably relevant,” a Rule 403 analysis should have been conducted before the trial court admitted it (punctuation omitted)) with Dang Vang v. Vang Xiong X. Toyed, 944 F2d 476, 481-482 (9th Cir. 1991) (in case brought under 42 USC § 1983, trial court did not abuse its discretion in deciding that an expert witness’s “general explanation of Hmong culture and the role of women in that culture” was relevant “to assist the trier of fact to understand certain behavior of the parties . . . that might otherwise be confusing”); United States v. Khan, 787 F2d 28, 34 (2d Cir. 1986) (expert testimony about “the price of heroin in Pakistan,” the practice of “Pakistani [drug] dealers” of “advancing heroin without cost,” and “the nature of dress favored by Pakistani dealers” was relevant to rebut defendant’s arguments to the jury and to show that the defendant “did not need a large sum of money to deal in large amounts of heroin in Pakistan” and that, even if the defendant “had made a great deal of money in the heroin trade, it would not necessarily show from the manner of his dress”). See also, e.g., Commonwealth v. Tirado, 375 A2d 336, 337-338 (Pa. 1977) (holding that a police officer’s generalized testimony about purported “machismo” values among “Puerto Rican males” introduced “irrelevant material [that] prejudiced [the defendant]” and granting a new trial, but doing so without conducting a harmless-error analysis). 27 In sum, Escamilla’s testimony about Mexican and Latino

culture was not relevant to explain M. J.’s behavior because

Escamilla’s testimony shed no light on whether such generalized

characterizations applied to M. J. or members of her household, and

did not make it more or less probable that M. J.’s delay in disclosing

her abuse was a sign of fabrication. Accordingly, Escamilla’s

testimony did not meet the Rule 401 standard for relevance and was

therefore inadmissible. See OCGA §§ 24-4-401, 24-4-402; State v.

Stephens, 310 Ga. 57, 60 (849 SE2d 459) (2020) (“[T]he trial court

did not abuse its discretion in determining that the [evidence in

question] would require the jury to stack too many increasingly

strained inferences to find it relevant to the issue for which it was

offered.”); Roberts v. State, 305 Ga. 257, 262 (824 SE2d 326) (2019)

(certain evidence was irrelevant under Rule 401 because “nothing

more than speculation and conjecture” connected that evidence to

the fact at issue); United States v. Reagan, 725 F3d 471, 489 (5th

Cir. 2013) (trial court did not err in determining that connection

28 between the evidence and the purpose for which it was offered was

“far too tenuous” to establish relevance).11

Finally, we caution that Georgia courts should assess the

relevance of cultural or ethnic evidence based on the specific

testimony in question and on the fact that such evidence is supposed

to make more (or less) probable, viewing such evidence in the context

of the record before the court in that particular case. See

11 We note that in some cases, federal courts have decided the admissibility of cultural or ethnic evidence under Federal Rule of Evidence 403, which allows courts to “exclude relevant evidence if its probative value is substantially outweighed” by “a danger of . . . unfair prejudice.” See, e.g., United States v. Ramirez-Fuentes, 703 F3d 1038, 1046 (7th Cir. 2013) (suggesting that federal agent’s testimony about “Mexican methamphetamine” was not relevant, but even if it were “at all relevant under [Federal Rule of Evidence] 401, it should have been excluded under Rule 403 because of the danger of unfair prejudice inherent in its admission” and denying defendant’s request for a new trial because the agent’s testimony did not constitute plain error); United States v. Nobari, 574 F3d 1065, 1074-1075 (9th Cir. 2009) (holding that “ethnic generalization testimony” about “Middle Easterners” and “Mexicans” was “relevant under Federal Rule of Evidence 401, if only to a small degree,” to explain a certain conversation, but should have been excluded because “the minimal probative value of the evidence was substantially outweighed by the danger of unfair prejudice,” and also concluding that the error was harmless beyond a reasonable doubt); Jinro America, Inc., 266 F3d at 1002, 1006 (in civil case, holding, without ruling on relevance, that a private investigator’s generalized testimony “about Korean business attitudes and behavior” was inadmissible under Federal Rule of Evidence 403). Because we have determined that Escamilla’s testimony in this case was not relevant, we need not engage in a Rule 403 analysis. See OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”). 29 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (128 SCt

1140, 170 LE2d 1) (2008) (explaining that relevance under Rule 401

is “determined in the context of the facts and arguments in a

particular case, and thus [is] generally not amenable to broad per se

rules”); United States v. Bradley, 644 F3d 1213, 1271 (11th Cir.

2011) (“[The] determination of whether the evidence is relevant

under Federal Rule of Evidence 401 . . . must turn on the facts of

each specific case.”). Accordingly, we express no opinion as to

whether testimony referencing culture or ethnicity—including

testimony that potentially could invoke cultural or ethnic

stereotypes (whether positive or negative)—ever could be relevant

or admissible in other cases; we conclude only that Escamilla’s

testimony about Mexican or Latino culture, when considered in the

context of the other evidence presented at Martinez-Arias’s trial,

was not relevant and that the trial court abused its discretion by

admitting it here.12

12 In Nguyen v. State, 271 Ga. 475 (520 SE2d 907) (1999), we held that

the trial court did not abuse its discretion under Georgia’s old Evidence Code

30 4. The Admission of Escamilla’s Testimony Was Harmless

Although the trial court abused its discretion when it admitted

Escamilla’s generalized testimony about Mexican and Latino

culture, our inquiry does not end there; we must also evaluate

whether the evidentiary error was harmless. To that end, “even

where an abuse of discretion is shown, there are no grounds for

reversal if the error did not affect a substantial right, and thus

when it ruled that certain cultural evidence—expert testimony about a criminal defendant’s “Vietnamese religious beliefs, values[,] and cultural traditions in support of her justification defense”—was not admissible, but we disapproved the Court of Appeals’s opinion “to the extent it h[eld] that evidence of a criminal defendant’s cultural background is never relevant.” Id. at 476- 477. In that case, this Court noted that it could “envision rare situations in which such evidence might be relevant to assist the jury in understanding why an accused acted in the way he or she did” and cited as a hypothetical example “a situation in which an accused, based on the cultural beliefs, value[s, ] and traditions of his or her family, friends and associates, might reasonably believe imminent physical harm would be inflicted on the accused by the others consistent with that cultural background.” Id. at 476 & n.1. Like the Court today, however, this Court in Nguyen concluded “that situation [was] not present in [that] case.” Id. at 476. See also Lee v. State, 262 Ga. 593, 594 (423 SE2d 249) (1992) (under old Evidence Code, holding that the trial court did not err by “refusing to allow an expert in Chinese culture to testify” in a case where the “defendant maintained that he fired the first shot [that killed the victim] accidentally, while the second shot was in self-defense” because the proffered expert testimony was not relevant; the defenses raised “were matters the jury was able to resolve,” and “evidence of the effects of Chinese culture on the defendant in firing the shots would not have aided the jury in its search for truth,” but noting that “the defendant was permitted to testify to many aspects of Chinese culture” even apart from the testimony he sought to elicit from his expert). 31 harm, the defendant.” Neuman v. State, 311 Ga. 83, 91 (856 SE2d

289) (2021) (citation and punctuation omitted). See also OCGA § 24-

1-103 (a) (“Error shall not be predicated upon a ruling which admits

or excludes evidence unless a substantial right of the party is

affected[.]”). “The test for determining nonconstitutional harmless

error is whether it is highly probable that the error did not

contribute to the verdict.” Cook v. State, 312 Ga. 299 (862 SE2d 510)

(2021) (citation and punctuation omitted). “In determining whether

the error was harmless, we review the record de novo and weigh the

evidence as we would expect reasonable jurors to have done so.”

Kirby v. State, 304 Ga. 472, 478 (819 SE2d 468) (2018) (citation and

punctuation omitted). Applying that standard, we conclude that the

erroneous admission of Escamilla’s irrelevant testimony in violation

of Rule 402 was harmless, and as a result, the error does not warrant

reversal.

Martinez-Arias essentially contends that Escamilla’s

testimony was harmful because it provoked “ethnic bias” against

Martinez-Arias in the jurors’ minds. Specifically, he argues on

32 appeal that the portion of Escamilla’s testimony in which she stated

that “boys are just supposed to be that way” and that they “have

urges” invoked “negative ethnic stereotypes” about males of Mexican

descent, implying that they are “possessed of prurient urges toward

their servile children” and are “just supposed to be that way.”

We disagree with Martinez-Arias’s characterization of

Escamilla’s testimony. Viewed appropriately in context as a

reasonable juror would, it is evident that Escamilla was describing

her personal observations about cultural attitudes within a subset

of families in which sexual abuse has occurred—and that she was

not describing characteristics of Latino men more generally:

PROSECUTOR: Have you, in your research with Latino victims of sexual abuse, noticed any cultural norms regarding sexual abuse in the Latino culture? ESCAMILLA: . . . no way am I saying that [child abuse] is acceptable norm, but it happens — but if it happens, it’s something that you don’t share, that you keep it quiet, that it is the girl’s fault for opening her legs and the boys are just supposed to be that way, they just have urges.

(Emphasis supplied.) And Escamilla’s other statements—including

those about alleged “common” attitudes or “trend[s]” within Mexican

33 or Latino culture—did not imply to the jury that Mexican or Latino

males were more likely to sexually abuse children than non-Latino

males, or that Martinez-Arias’s background made it more likely that

he sexually abused M. J. Nor, as discussed further below, did the

State ever argue that the jury should infer such a conclusion from

Escamilla’s testimony. In short, the evidence does not support

Martinez-Arias’s argument that Escamilla’s testimony seeded in the

minds of the jurors the bias that he alleges. See Kirby, 304 Ga. at

478.13

13 As mentioned above in Division 1 (d), in overruling the defense’s relevance objection to Escamilla’s testimony, the trial court stated in the presence of the jury that “the jury can use the evidence for whatever value, if any, the jury finds in this case.” Martinez-Arias contends that this statement amplified the harm he suffered from Escamilla’s testimony. But even if the trial court erred in making this statement (and we express no opinion on this point), we conclude that it is highly unlikely that the statement contributed to the jury’s verdict. The trial court’s statement did not tell the jury that it must assign value to Escamilla’s testimony; to the contrary, it contemplated that the jury might not deem the testimony valuable at all (“the evidence for whatever value, if any”) (emphasis supplied). Moreover, in its final instructions to the jury, the trial court stated, among other things: “You are not required to accept the testimony of any witnesses, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit as you think it is properly entitled to receive.” 34 Martinez-Arias also contends that the evidence presented

against him at trial was not overwhelming and “hinged on M. J.’s

credibility.” But even if we accept for purposes of argument

Martinez-Arias’s assessment of the evidence, none of Escamilla’s

generalized testimony about cultural attitudes, when viewed in

context, either bolstered M. J.’s credibility or incriminated

Martinez-Arias. See Kirby, 304 Ga. at 478; Adkins v. State, 301 Ga.

153, 158 (800 SE2d 341) (2017) (“We consider the context of the

testimony in evaluating whether its admission was harmless.”).

To that end, the main substantive point of the testimony

Escamilla offered to explain M. J.’s behavior as it related to her

abuse—i.e., her delayed outcry—largely overlapped with the

testimony of Dr. Battle, a licensed psychologist who had experience

conducting forensic interviews of abused children and who (unlike

Escamilla) was tendered and qualified to provide expert testimony

at trial. As summarized above, Dr. Battle provided a comprehensive

and detailed explanation of why child victims of sexual abuse might

have difficulty disclosing their abuse. Indeed, Dr. Battle’s expert

35 testimony—which was based on extensive education and experience

and devoid of references to ethnicity or cultural stereotypes—

provided the same substantive information about child sex-abuse

victims that Escamilla attempted to explain through generalized

characterizations of ethnicity and cultural attitudes. Escamilla’s

testimony was therefore largely cumulative of Dr. Battle’s in this

regard. See Puckett v. State, 303 Ga. 719, 722 (814 SE2d 726) (2018)

(error in the admission of certain testimony was harmless, in part

because the testimony was “largely cumulative” of other

“unobjected-to testimony”).

Furthermore, apart from Escamilla’s testimony, the State did

not otherwise rely on or refer to culture or ethnicity to support its

case against Martinez-Arias. Indeed, M. J. did not reference her

ethnic or cultural background when the prosecutor asked why she

did not disclose her abuse earlier; she instead testified that she did

not want Martinez-Arias and Cruz to be separated, that she “didn’t

know if anyone would believe [her],” and that she was “scared” of

losing her brothers—sentiments similar to the ones Dr. Battle

36 explained as common among child sex-abuse victims and which

could result in delayed reports of abuse.

Finally, neither the substance nor the effect of Escamilla’s

irrelevant testimony was amplified during the trial. Escamilla was

the last witness to testify on behalf of the State, and none of the

State’s earlier witnesses were questioned about or repeated

Escamilla’s testimony; Martinez-Arias’s counsel likewise did not ask

any of the defense witnesses about Escamilla’s testimony or about

cultural characteristics more generally. Moreover, in closing

arguments, the prosecutor did not reference Mexican or Latino

culture or ethnicity and did not mention Escamilla’s testimony at

all—though the prosecutor did mention Dr. Battle’s. Instead, the

prosecutor heavily emphasized the evidence presented at trial that

supported M. J.’s credibility, telling the jury, among other things,

that M. J. “sobbed for two hours in front of you, trying, trying to tell

you what happened to her” and that she had no motive to lie: “Why

would she lie? What does she stand to gain? She stands to gain

nothing but embarrassment[,] upset, depression.” See Taylor v.

37 State, 306 Ga. 277, 283 (830 SE2d 90) (2019) (error in admitting

certain evidence was harmless, in part because there was “no

contention that the State mentioned or relied upon the [evidence]

during its closing argument to the jury”).

For these reasons, it is highly unlikely that—based on the

record in this case—Escamilla’s erroneously admitted testimony

contributed to the jury’s verdict. See Kirby, 304 Ga. at 487 (error in

admitting certain evidence was harmless because it was “easily

offset by the other compelling evidence” against defendant); Morgan

v. State, 307 Ga. 889, 898 (838 SE2d 878) (2020) (erroneously

admitted evidence was harmless where it “played a minor role in

both the State’s case and [defendant]’s theory of defense” and there

was “no likelihood that the jury would have weighed the case

differently had the trial court excluded” the evidence in question).

To conclude, the trial court and the Court of Appeals erred

when they held that Escamilla’s testimony was relevant. But

because the Court of Appeals’s ultimate judgment affirming

Martinez-Arias’s convictions was correct, we affirm. See Nordahl v.

38 State, 306 Ga. 15, 27 (829 SE2d 99) (2019) (affirming the judgment

of the Court of Appeals under the “right-for-any-reason doctrine”).

Judgment affirmed. All the Justices concur, except Ellington and LaGrua, JJ., who concur specially, and Peterson, J., not participating.

39 S21G0150. MARTINEZ-ARIAS v. THE STATE.

LAGRUA, Justice, concurring specially.

With regard to footnote 4 of the majority opinion, I concur that

when circumstances arise that necessitate a change in a party’s legal

position, parties should notify the Court and opposing counsel as

soon as possible to allow time for preparation and response to these

new or changed positions. And, here, the State should have advised

opposing counsel that the State was changing its position before oral

argument, particularly because opposing counsel utilized the

entirety of his allotted time without the benefit of that information.

Consequently, the State was admonished by the Court on more than

one occasion, and the State was contrite in apologizing to the Court

and acknowledging its error. However, I am concerned that the

inclusion of this footnote in the majority opinion may result in

unintended consequences.

Litigants may occasionally realize that their position has

become tenuous — either because they have retained new counsel

40 or because the law or other circumstances have changed — and they

may fail to timely notify the Court and opposing counsel before the

commencement of oral argument. But, emphasizing their mistake

again in an opinion may discourage future litigants who recognize,

too late, that they need to change their position or concede an issue

on appeal. Instead, I want to empower litigants to exercise candor

and professionalism with the Court when necessity warrants it.

I am authorized to state that Justice Ellington joins in this

special concurrence.

Decided February 15, 2022.

Certiorari to the Court of Appeals of Georgia — 356 Ga. App.

423.

H. Bradford Morris, Matthew G. Leipold, for appellant.

Lee Darragh, District Attorney, Anna V. Fowler, Kelley M.

Robertson, Assistant District Attorneys, for appellee.

The Sonoda Law Firm, Kate A. Skeehan; Wosnik Law, Peter J.

Wosnik, amici curiae.