State v. Alling

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,344 5 CATHERINE ALLING, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles W. Brown, District Judge

9 Gary K. King, Attorney General 10 Yvonne M. Chicoine, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.

1 Defendant Catherine Alling appeals from her conviction for misdemeanor 2 aggravated battery following a bench trial. She contends the district court erred in 3 sustaining the State’s objection to a question regarding her criminal history (or 4 presumed lack thereof) as evidence of her character for peacefulness and as a law- 5 abiding citizen under Rule 11-404(A)(1) NMRA. We affirm, concluding that any 6 error was harmless because there is no reasonable probability that the excluded 7 evidence would have affected the verdict. 8 BACKGROUND 9 In July 2010, Defendant moved in with her sister, Carol Alling, who resided in 10 Albuquerque, New Mexico. Carol testified at trial that “[i]t did not work out well at 11 all[,]” and “[t]here was a lot of . . . arguing, bickering, and misunderstandings between 12 us[.]” The first physical altercation occurred on October 26, 2010. On that day, 13 Defendant entered Carol’s bedroom and “yell[ed] at [her] about where [she] had 14 placed the mail.” After taking a shower, Carol entered Defendant’s bedroom without 15 knocking, and the two began to argue. Defendant then stood up and held a gun to 16 Carol’s face. Defendant told Carol to get out of her room. Carol backed out of 17 Defendant’s room. Defendant then attacked Carol with a can of Febreze and an object 18 that Carol believed to be a metal vase. The two engaged in a physical struggle with 19 Defendant attempting to push Carol down the stairs. The struggle ended when 20 Defendant went back to her room and closed the door. At that point, Carol called her

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1 boyfriend, who called 911. The 911 dispatcher called Carol and instructed her to 2 leave the house and meet the police at a nearby roadblock, which she did. The police 3 arrived at Carol’s house, and Defendant refused to leave. A SWAT team was 4 eventually successful in removing Defendant from the house. 5 Defendant was indicted on two counts: (1) aggravated assault with a deadly 6 weapon (firearm enhancement) and (2) aggravated battery. A bench trial was held on 7 May 2, 2011. Two witnesses testified at trial: Carol and Defendant. While they 8 testified to different versions of the events, Defendant admitted to pushing Carol out 9 of her room and hitting Carol’s hand with a can of Febreze. At the beginning of 10 Defendant’s testimony, the following exchange took place:

11 [Defense]: Have you ever been accused of a crime, other than a 12 speeding ticket, in your life?

13 [Prosecutor]: Object to relevance, and also there is no foundation 14 whatsoever.

15 [Court]: What is the relevance of this?

16 [Defense]: She is presenting evidence of character for both 17 peacefulness and honesty.

18 [Prosecutor]: Actually— 19 [Court]: I’m going to sustain the objection. Let’s move on. 20 Defense counsel proceeded to question Defendant about her employment history and 21 then asked Defendant if she “had any prior violent interactions with Carol.”

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1 Defendant answered, “No.” The district court admitted into evidence two photographs 2 of Carol taken at the police station on October 26, 2010, which showed the injuries 3 she sustained. In its closing, the State argued that Carol’s outward manifestation of 4 fear might have differed from what one would expect because Defendant was her 5 sister and had “no history of violence.” 6 The district court found Defendant guilty of aggravated battery and not guilty 7 of aggravated assault with a deadly weapon. The district court explained:

8 Based on [D]efendant’s testimony about using an object that she beat her 9 sister’s hands with to get her to turn loose of the door, and the marks that 10 were on the hand, I do find that there is sufficient evidence to convict of 11 the aggravated battery charged in Count 2.

12 Defendant was sentenced to 364 days imprisonment. The district court suspended the 13 sentence and ordered Defendant to be placed on supervised probation. 14 DISCUSSION 15 On appeal, Defendant contends the district court erred in sustaining the State’s 16 objection to a question on direct examination about her alleged lack of criminal 17 history. She argues she was wrongfully excluded from presenting evidence regarding 18 her “character for peacefulness and as a law-abiding citizen,” which should have been 19 admitted as character evidence under Rule 11-404(A). 20 As an initial matter, the State contends that Defendant did not preserve this 21 issue for appeal. We disagree. “In order to preserve an error for appeal, it is essential

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1 that the ground or grounds of the objection or motion be made with sufficient 2 specificity to alert the mind of the trial court to the claimed error or errors, and that a 3 ruling thereon then be invoked.” State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 4 454, 993 P.2d 1280 (internal quotation marks and citation omitted). If a party claims 5 error arising out of the district court’s exclusion of evidence, the party must have 6 informed the court of the substance of the excluded evidence “by an offer of proof, 7 unless the substance was apparent from the context.” Rule 11-103(A)(2) NMRA. 8 Defense counsel asked Defendant whether she had “ever been accused of a 9 crime, other than a speeding ticket[.]” The State objected based on relevance and lack 10 of foundation. The district court asked defense counsel about relevance, and counsel 11 stated, “She is presenting evidence of character for both peacefulness and honesty.” 12 The district court sustained the objection. On appeal, Defendant contends the 13 excluded evidence is relevant to her “character for peacefulness and as a law-abiding 14 citizen.” She did not explicitly argue in the district court that the evidence was 15 relevant to her character as a law-abiding citizen. However, we believe that the 16 character trait of “peacefulness” is sufficiently similar to the character trait of “law- 17 abiding” to consider this argument preserved. Moreover, though Defendant did not 18 make an offer of proof, we think it is apparent from the context that Defendant would 19 have testified that she had not previously been accused of a crime.

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1 Assuming, without deciding, that the district court erred in sustaining the 2 State’s objection, we conclude any error was harmless and does not require reversal. 3 Because the alleged error in this case involved an evidentiary ruling and does not 4 implicate a constitutional issue, we employ the non-constitutional harmless error 5 analysis. See State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210 P.3d 198 6 (“[W]here a defendant has established a violation of statutory law or court rules, non- 7 constitutional error review is appropriate.”), overruled on other grounds by State v. 8 Tollardo, 2012-NMSC-008, 275 P.3d 110; see, e.g., State v. Wilson, 2011-NMSC- 9 001, ¶¶ 30, 39, 149 N.M. 273, 248 P.3d 315 (applying non-constitutional harmless 10 error analysis after assuming the district court improperly admitted opinion testimony 11 in violation of Rule 11-702 NMRA), overruled on other grounds by Tollardo, 2012- 12 NMSC-008. “[A] non-constitutional error is harmless when there is no reasonable 13 probability the error affected the verdict.” Barr, 2009-NMSC-024, ¶ 53. 14 In Tollardo, our Supreme Court repudiated the longstanding three-part harmless 15 error test first announced in State v. Moore, 94 N.M. 503, 504, 612 P.2d 1314, 1315 16 (1980). Tollardo, 2012-NMSC-008, ¶¶ 29, 38. The Tollardo Court held that 17 “determining whether an error was harmless requires reviewing the error itself and its 18 role in the trial proceedings, and in light of those facts, making an educated inference 19 about how that error was received by the jury.” Id. ¶ 57. Evidence of a defendant’s 20 guilt cannot be the “singular focus” of the analysis, but “may often be relevant, even

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1 necessary, for a court to consider, since it will provide context for understanding how 2 the error arose and what role it may have played in the trial proceedings[.]” Id. ¶ 43. 3 Under a Tollardo analysis, we are confident the district court would have 4 reached the same result here, finding Defendant guilty of aggravated battery, even if 5 Defendant had been allowed to testify regarding her criminal history. The district 6 court found Defendant guilty “[b]ased on [her] testimony about using an object that 7 she beat her sister’s hands with to get her to turn loose of the door, and the marks that 8 were on [Carol’s] hand[.]” The district court properly admitted into evidence two 9 photographs showing the injuries the victim sustained. In addition, shortly after it 10 sustained the State’s objection, the district court heard Defendant testify that she had 11 no prior violent interactions with her sister. The significance of Defendant’s 12 testimony and the demonstrative evidence would not have been diminished if 13 Defendant had been allowed to testify that she had not previously been accused of a 14 crime. Moreover, the State in effect stipulated to Defendant’s lack of criminal history 15 when, in closing, it described Defendant as having “no history of violence.” On these 16 facts, it is clear the district court would have found Defendant guilty of aggravated 17 battery even if Defendant had been allowed to testify regarding her lack of criminal 18 history. Accordingly, assuming, without deciding, that the district court erred in 19 prohibiting Defendant from testifying on direct examination regarding her lack of 20 criminal history, we conclude any error was harmless.

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1 CONCLUSION 2 We affirm Defendant’s conviction for aggravated battery. 3 IT IS SO ORDERED.

4 __________________________________ 5 LINDA M. VANZI, Judge

6 WE CONCUR:

7 _________________________________ 8 RODERICK T. KENNEDY, Judge

9 _________________________________ 10 TIMOTHY L. GARCIA, Judge