1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. No. 28,372 10 PAUL BORUNDA, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Anne Kelly, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Karl Erich Martell, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant 23 MEMORANDUM OPINION 24 SUTIN, Judge.
1 Defendant Paul Borunda was convicted of breaking and entering and 2 misdemeanor criminal damage to property. On appeal, he argues that the district court 3 erred by admitting his ex-girlfriend’s statement of the incident; that there was 4 insufficient evidence to support his convictions; and that the testimony of a detective 5 improperly invaded the province of the jury when he testified about Defendant’s ex- 6 girlfriend’s credibility, constituting plain or fundamental error. We affirm the district 7 court. 8 BACKGROUND 9 Juliana Antillon, Defendant’s ex-girlfriend, called 911 to report that Defendant 10 had thrown an object through the window of the door near the kitchen because she 11 would not let him in. The object, a tow hitch, hit Antillon on the back when it came 12 through the window. Officers Cordova and Valdez responded and talked to Antillon 13 about the incident. The officers asked Antillon to write a statement of what had 14 happened. The statement says:
15 My ex-boyfriend was knocking on my bedroom window. He woke up 16 the kids. So I asked him to come to the side of the house. He started 17 calling me names, then he pulled this screen door and got an object and 18 broke the glass through the door and it hit me on [the] back, and then he 19 stuck his hand in and followed me in the bedroom, then I got on the 20 phone and he left.
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1 A grand jury indicted Defendant on one count of aggravated battery against a 2 household member (deadly weapon), one count of breaking and entering, and one 3 count of criminal damage to property (under $1000). 4 Antillon testified that she had two daughters with Defendant and that it had 5 been at least three months since Defendant moved out, but he still had a key to the 6 house. She testified that on the night of the incident she was in bed with her 7 daughters, the television was on, and she heard her dogs barking. She “heard a lot of 8 people outside . . . making a lot of noise because [her] neighbors were . . . having a 9 party next door.” She was afraid and got up to make sure her windows and doors 10 were locked, and she saw a shadow outside of the side door where the light was not 11 working. She turned to the side when suddenly an object was thrown through the 12 glass and hit her on the back. She further testified that she did not see who threw the 13 object and saw only a jacket and a black hat or beanie. Although Antillon admitted 14 telling the 911 operator that Defendant was the perpetrator, she testified that she told 15 the responding officers that she “thought it was [her] ex-boyfriend,” not that it was 16 him. Antillon further testified that she remembered having two conversations on the 17 phone with Detective Upshaw, but she did not remember making an appointment with 18 him. During one of the conversations, Antillon told Detective Upshaw that she was 19 not sure if the perpetrator was Defendant and that she did not want to press charges.
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1 Antillon further explained during her testimony that she realized her dogs would not 2 bark at Defendant, that Defendant had a key to her house, and that she later discovered 3 the blue jacket she thought Defendant was wearing was actually in her house. She 4 also testified that she was upset with Defendant that night because her brother had 5 seen Defendant with another woman and that she was exaggerating so that the officers 6 would take her seriously. During her testimony, she did not remember telling the 7 officers that she had made eye contact with Defendant before he threw the object, that 8 after breaking the window Defendant opened the door and entered the house, or that 9 she told Defendant to leave numerous times. As to her written statement, Antillon 10 said that she wrote what the officers told her to write. 11 In a bench conference, the defense objected on hearsay grounds to the State’s 12 attempt to introduce Antillon’s written statement. The court first indicated that the 13 statement could be read to the jury to impeach Antillon, but could not be introduced 14 as an exhibit. The prosecution, nevertheless, argued that the statement would be 15 admissible as a past-recorded recollection since Antillon said she did not remember. 16 The court agreed but clarified that “to make the prior inconsistent statement 17 admissible as past recorded recollection, would be if she remembers writing that . . . 18 [i]f she says no, I am not going to admit it.” Because Antillon remembered writing 19 the statement, the prosecutor moved the admission of the statement into evidence as
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1 constituting a prior-recorded recollection, and the court admitted the document into 2 evidence, after which the statement was read to the jury. 3 Detective Upshaw, with the domestic violence unit, testified that he had been 4 a police officer for sixteen years and testified about his specialized education and 5 experience. Detective Upshaw testified that he received advanced training for 6 domestic violence, is a domestic violence instructor, and is certified as a domestic 7 violence detective. Detective Upshaw called Antillon the morning following the 8 incident. Antillon gave him a brief description of what occurred and identified 9 Defendant as the perpetrator. Detective Upshaw scheduled an appointment for 10 Antillon to make a formal statement later that afternoon. However, Antillon called 11 back around lunch time to cancel the appointment and told Detective Upshaw that 12 Defendant was not the perpetrator and that she did not want to press charges. 13 Detective Upshaw then testified in general terms as to what his experience had been 14 with domestic violence victims recanting their original statement. 15 Officer Valdez testified that Antillon was outside when he and Officer Cordova 16 arrived and that she “looked kind of sad or distraught,” but she was not crying. He 17 observed the broken, shattered window and a tow hitch on the kitchen floor. Officer 18 Valdez also testified that Antillon told him that someone spoke to her at the children’s 19 window, that this person banged on that window, that this person threw the object
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1 through the kitchen window and shattered it, and that Antillon knew this person and 2 gave a specific name. What Officer Valdez observed was consistent with what 3 Antillon was saying, and he did not have any reason to disbelieve her. 4 Before moving the court for a directed verdict, Defendant’s counsel asked the 5 court to reconsider its past-recorded recollection ruling by which Antillon’s statement 6 was received as an exhibit. In support of this request, defense counsel argued that 7 because she had not had time to look at the rule during the bench conference, she did 8 not point out that while the rule permits the record to be read into evidence, the rule 9 does not allow the document to be admitted as an exhibit unless offered by an adverse 10 party. See Rule 11-803(E) NMRA. The court stated that it was satisfied with its 11 ruling but that it would review the rule during a recess to make sure the document 12 itself was admissible and that there was “no question what was in that written 13 statement [was] admissible either to impeach or [as] a prior recollection recorded.” 14 After the recess, the court agreed with Defendant and ruled that the statement could 15 be read to the jury but would not allow it to be submitted to the jury as a written 16 exhibit. 17 Defendant was found guilty of the fourth degree felony breaking and entering 18 and criminal damage to property (under $1000), but the jury hung on the aggravated 19 battery charge. Defendant was sentenced to two years, with ninety days incarceration
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1 and the rest of the sentence suspended, and one year and nine months of supervised 2 probation. Defendant appeals.
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1 DISCUSSION 2 Admission of Antillon’s Statement 3 This Court reviews the admission of evidence under an exception to the hearsay 4 rule to determine whether there has been an abuse of discretion. State v. 5 McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486. “An abuse of 6 discretion occurs when the ruling is clearly against the logic and effect of the facts and 7 circumstances of the case. We cannot say the trial court abused its discretion by its 8 ruling unless we can characterize it as clearly untenable or not justified by reason.” 9 State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998) 10 (internal quotation marks and citation omitted). A district court’s decision will be 11 upheld if right for any reason. Scott v. Murphy Corp., 79 N.M. 697, 700, 448 P.2d 12 803, 806 (1968) (“It is hornbook law that the decision of a trial court will be upheld 13 if it is right for any reason.”). 14 The district court ruled that Antillon’s statement could be read to the jury on 15 either of two grounds, as a prior-inconsistent statement or as a past-recorded 16 recollection. Defendant argues that the district court erred by allowing Antillon’s 17 statement to be read to the jury as a recorded recollection because Antillon denied the 18 accuracy of her statement when she testified that that was not what really happened 19 and that she simply wrote what the officers told her to write. Defendant cites State v.
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1 Allison, 2000-NMSC-027, ¶ 30, 129 N.M. 566, 11 P.3d 141, to support his argument 2 that when a witness denies the information from the record as opposed to not being 3 able to recall the incident, the evidence is inadmissible as a past-recorded recollection. 4 However, Defendant does not assert error with respect to the district court’s ruling that 5 the statement could be read to the jury as a prior-inconsistent statement to impeach the 6 witness. A witness may be examined about a prior-inconsistent statement under Rule 7 11-613(B) NMRA, which states in part:
8 Extrinsic evidence of a prior inconsistent statement by a witness is not 9 admissible unless the witness is afforded an opportunity to explain or 10 deny the same and the opposite party is afforded an opportunity to 11 interrogate the witness thereon[.]
12 Therefore, we conclude that Defendant has failed to demonstrate that the district court 13 abused its discretion by allowing Antillon’s statement to be read to the jury. See 14 Allison, 2000-NMSC-027, ¶ 31 (concluding that because the defendant “failed to 15 address all grounds upon which the trial court admitted the evidence,” he did not 16 demonstrate an abuse of discretion). 17 Sufficiency of the Evidence 18 Next, Defendant argues that there was insufficient evidence to support his 19 convictions of breaking and entering and criminal damage to property. “Substantial 20 evidence review requires analysis of whether direct or circumstantial substantial 21 evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect
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1 to every element essential for conviction. We determine whether a rational factfinder 2 could have found that each element of the crime was established beyond a reasonable 3 doubt.” State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations 4 omitted). On appeal, the appellate court views the evidence in the light most favorable 5 to the verdict, resolving all conflicts, and indulging all reasonable inferences in favor 6 of the verdict. State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). 7 The question is whether the district court’s “decision is supported by substantial 8 evidence, not whether the court could have reached a different conclusion.” In re 9 Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. 10 Breaking and Entering 11 First, Defendant argues that the only evidence showing that he entered the home 12 to commit breaking and entering was Antillon’s statement, which could not have been 13 admitted as substantive evidence for the purpose of showing that Defendant entered 14 the house. Defendant cites State v. Morales, 2000-NMCA-046, ¶ 16, 129 N.M. 141, 15 2 P.3d 878, to support the position that a prior-inconsistent statement admitted to 16 impeach the witness is inadmissible as substantive evidence. We note, however, that 17 the proper remedy in situations such as this one is for the defendant to request a 18 limiting instruction. See Rule 11-105 NMRA (“When evidence which is admissible 19 . . . for one purpose but not admissible . . . for another purpose is admitted, the court,
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1 upon request, shall restrict the evidence to its proper scope and instruct the jury 2 accordingly.”). Having failed to request a limiting instruction, Defendant waived any 3 right to claim error on appeal. See DeMatteo v. Simon, 112 N.M. 112, 114, 812 P.2d 4 361, 363 (Ct. App. 1991) (concluding that because the defendants did not request any 5 limiting instructions when evidence was admissible for one purpose but not for 6 another, they waived any right to complain of the district court’s alleged error). 7 Furthermore, Antillon’s statement was not the only evidence before the jury that 8 proved breaking and entering. The district court allowed a portion of the 911 call to 9 be played during the trial as an excited utterance. In the 911 call, Antillon reported 10 that someone just broke her window. The operator then asked Antillon if it was a 11 burglary, to which she replied “No[,] [i]t is my ex-boyfriend the person that I have 12 kids with.” The call continued as follows: 13 Operator: Okay stay on the line with me okay[?] 14 [Antillon]: (Crying) okay (crying) 15 Operator: Where are you at[?] 16 [Antillon]: (Crying) I’m right here in the hall way (crying) 17 Operator: Is he there with you?
18 [Antillon]: No he left (crying) he just broke the window cause I 19 wouldn’t open the door for him
20 Operator: Oh so is he outside or is he inside?
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1 [Antillon]: No he just ran outside he threw something in the window I 2 don’t know what it was , but (inaudible)
3 .... 4 Operator: Okay wait which way did he go[?]
5 [Antillon]: (Crying) I’m sure he went to his mom she lives on Juniper 6 he lives about a block away from here
7 Operator: Did he leave on foot or in a vehicle 8 [Antillon]: (Crying) no in a car 9 Operator: What color of car? 10 [Antillon]: It is a black car 11 ....
12 Operator: Okay what was he wearing do you know what he looked 13 like when
14 [Antillon]: He was wearing a blue Ego Jacket with black jeans 15 [(]crying[)]
16 Operator: What’s his name [?] 17 [Antillon]: Paul Borunda 18 The operator asked Antillon how to spell Defendant’s last name and asked for 19 Defendant’s date of birth. Antillon spelled his last name and provided Defendant’s 20 date of birth to the operator.
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1 The jury was instructed that in order to find Defendant guilty of breaking and 2 entering as charged in Count 2, the State had to show that (1) Defendant “entered a 3 structure without permission; the least intrusion constitutes an entry” and (2) the 4 “entry was obtained by the breaking of a window.” When the operator asked if 5 Defendant was outside or inside, Antillon replied, “No he just ran outside.” When 6 Antillon was asked if Defendant was still there with her, she answered, “No he left . . . 7 he just broke the window cause I wouldn’t open the door for him.” Based on the 8 evidence, a reasonable jury could conclude that Defendant broke the window to gain 9 access and entered the house before Antillon called 911. We hold that there was 10 sufficient evidence to support Defendant’s breaking and entering conviction. 11 Misdemeanor Property Damage 12 Next, relying on State v. Powels, 2003-NMCA-090, ¶¶ 1, 5, 134 N.M. 118, 73 13 P.3d 256, Defendant argues that his conviction of property damage required the State 14 to prove that he intentionally damaged another’s property and that the State failed in 15 its proof because it did not present any evidence indicating that the damaged property 16 did not belong to Defendant. We are unpersuaded. Powels is distinguishable because 17 in that case the defendant damaged community property. See 2003-NMCA-090, ¶ 4 18 (noting that the damaged car was community property and “the interest of each spouse 19 in the community property is equal with that of the other spouse” (emphasis omitted)).
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1 Defendant and Antillon were not married and did not have community property. 2 Although Antillon said Defendant had a key to the house, Defendant had moved out 3 at least three months before the incident, and he was living with his mother about a 4 block away. Also, as the State points out, Antillon testified that she and Defendant 5 had signed a lease on the house. The jury could reasonably infer that the house 6 belonged to a third-party landlord. We hold that there was sufficient evidence to 7 support Defendant’s misdemeanor property damage conviction. 8 The Detective’s Testimony 9 Defendant argues, under claims of plain or fundamental error, that Detective 10 Upshaw’s testimony improperly invaded the province of the jury. “[T]his court may 11 review evidentiary questions although not preserved if the admission of the evidence 12 constitutes plain error. The plain-error rule, however, applies only if the alleged error 13 affected the substantial rights of the accused.” State v. Contreras, 120 N.M. 486, 492, 14 903 P.2d 228, 234 (1995), limited on other grounds as recognized by State v. Rackley, 15 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212. We use plain error sparingly 16 “because the plain[-]error rule is an exception to the general rule that parties must 17 raise timely objection to improprieties at trial.” State v. Torres, 2005-NMCA-070, ¶ 18 9, 137 N.M. 607, 113 P.3d 877. The plain-error rule applies to evidentiary matters, 19 not merely evidentiary rulings. State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071,
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1 1074 (1993). “The predicate for review on the basis of plain error is less stringent 2 than for fundamental error.” Id. The more stringent rule of fundamental error 3 “applies only if there has been a miscarriage of justice, if the question of guilt is so 4 doubtful that it would shock the conscience to permit the conviction to stand, or if 5 substantial justice has not been done.” State v. Orosco, 113 N.M. 780, 784, 833 P.2d 6 1146, 1150 (1992). “In either case, we must be convinced that admission of the 7 testimony constituted an injustice that creates grave doubts concerning the validity of 8 the verdict.” Lucero, 116 N.M. at 453, 863 P.2d at 1074. 9 When asked by the prosecution if this was the first time that he had a situation 10 where a victim of domestic violence changed her story, Detective Upshaw replied as 11 follows.
12 A. I would say around [fifty] percent of the time, the victim 13 will either change her story completely or minimize, trying to make 14 things not seem as bad as they are.
15 ....
16 Q. Based on your experience and training and the experience 17 you have had in dealing with victims who have changed their story, 18 based on that training, would you be able to say whether or not[,] 19 generally[,] the first thing they say is what actually happened, or is it the 20 latter story?
21 A. It’s usually the first statement. The first statement that is 22 made is usually closer to the truth.
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1 Q. And in dealing with victims of domestic violence and your 2 training and experience, will victims become uncooperative with law 3 enforcement, not wanting to talk to you or other officers?
4 A. It happens more often than not. It happens a great deal.
5 Q. So the fact that Ms. Antillon has changed her story in this 6 case, that’s not something you find unusual?
7 A. No, it is not.
8 Q. The fact that she wouldn’t call you back again after talking 9 to you initially, is that something you find unusual?
10 A. No, it is not. 11 As a preliminary matter, we note that Detective Upshaw was not qualified as 12 an expert by the State before offering this testimony. “Under Rule 11-702 [NMRA], 13 a witness must qualify as an expert in the field for which his or her testimony is 14 offered before such testimony is admissible. In most cases, this means that the calling 15 party must qualify the witness to testify as an expert first, before any substantive 16 testimony is given.” Lopez v. Reddy, 2005-NMCA-054, ¶ 15, 137 N.M. 554, 113 P.3d 17 377 (internal quotation marks and citations omitted). However, it appears that in the 18 present case, similar to State v. Hill, 2008-NMCA-117, 144 N.M. 775, 192 P.3d 770, 19 the defense chose to cross-examine the witness rather than objecting on competency 20 grounds. See id. ¶ 22. Accordingly, Defendant waived any arguments with regard to 21 plain error based on the detective’s qualifications to testify as an expert. See id.
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1 Nevertheless, Defendant argues that it was improper for Detective Upshaw to 2 testify concerning which of Antillon’s version of the events deserved to be believed. 3 We are unpersuaded. Expert testimony may not be offered to establish that the alleged 4 victim is telling the truth because that is for the jury to decide. State v. Alberico, 116 5 N.M. 156, 175, 861 P.2d 192, 210-11 (1993). However, an expert witness may testify 6 regarding recantation of witnesses in general, as long as the expert witness does not 7 testify about the truthfulness of the particular victim in the case at issue. See State v. 8 Neswood, 2002-NMCA-081, ¶ 19, 132 N.M. 505, 51 P.3d 1159 (concluding that a 9 child abuse expert did not invade the province of the jury when her testimony was 10 limited to information regarding recantation in general and not whether one or the 11 other statements of the victim was true). Here, the detective testified as to what his 12 experience had been with victims of domestic violence in general. When asked if this 13 was the first time a victim changed her story, he indicated that in his experience 14 victims change their story or minimize the events around fifty percent of the time. 15 When asked whether the truth is, generally, the first recount the victim gives or 16 whether it is the latter recount of an incident, Detective Upshaw responded that “[t]he 17 first statement that is made is usually closer to the truth.” He did not testify in a 18 manner that related to Antillon’s specific statements in this case. Furthermore, the 19 defense had the opportunity to cross-examine Detective Upshaw. When asked about
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1 this subject, Detective Upshaw stated that sometimes the initial report is the one that 2 is wrong. We conclude that Defendant’s substantial rights were not affected and 3 allowing Detective Upshaw’s testimony did not constitute plain or fundamental error. 4 CONCLUSION 5 We affirm Defendant’s convictions. 6 IT IS SO ORDERED.
7 __________________________________ 8 JONATHAN B. SUTIN, Judge
9 WE CONCUR:
10 ______________________________ 11 CELIA FOY CASTILLO, Judge
12 ______________________________ 13 LINDA M. VANZI, Judge