State v. Conn

847 P.2d 746, 115 N.M. 101
CourtNew Mexico Court of Appeals
DecidedMay 4, 1992
DocketNo. 12047
StatusPublished
Cited by14 cases

This text of 847 P.2d 746 (State v. Conn) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Conn, 847 P.2d 746, 115 N.M. 101 (N.M. Ct. App. 1992).

Opinion

OPINION

APODACA, Judge.

Defendant appeals his convictions for two counts of criminal sexual contact of a minor under thirteen years of age in violation of NMSA 1978, Section 30-9-13(A)(l) (Repl.Pamp.1984). Defendant argues on appeal that the trial court erred in (1) failing to permit defendant to voir dire the state’s expert regarding the acceptability in the scientific community of her method of evaluation; (2) admitting evidence of defendant’s prior conviction for aggravated assault; (3) admitting evidence of criminal sexual penetration; and (4) denying defendant’s motion for a new trial. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Aragon, 109 N.M. 632, 788 P.2d 932 (Ct. App.1990). Defendant also filed a motion to amend the docketing statement to include three additional issues: the trial court erred in allowing the state’s expert witness on child abuse to testify that the victim was credible; ineffective assistance of counsel; and cumulative error.

In addition to the other issues raised by defendant, the convictions raised the question of whether the trial court erred in not instructing the jury on the element of unlawfulness of defendant’s conduct, based on the panel’s interpretation of our supreme court’s holding in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991). We thus filed a memorandum opinion on August 22,1991, reversing defendant’s conviction based on this issue. Our supreme court granted certiorari on October 21, 1991 (Cause No. 20,118). It subsequently quashed the writ on January 10, 1992, and remanded the case to this court to consider the four issues raised by defendant, in light of its decision in State v. Orosco, 113 N.M. 780, 833 P.2d 1146 (1992). Having now reconsidered this appeal, we reverse on defendant’s original issue two and hold that the trial court abused its discretion in admitting evidence of defendant’s prior conviction. We therefore remand for a new trial. Because of our disposition, we need not address defendant’s motion to amend and other issues raised in this appeal.

BACKGROUND

The victim, who was ten years old at the time of the alleged incidents, lived in a trailer with her mother, sister, and defendant. At trial, she stated that defendant would awaken her regularly and take her to the living room, where he would remove her garments and “put his penis in [her] vagina.” She testified in some detail regarding what transpired in the course of the sexual contact. The victim did not disclose this alleged conduct to anyone until several months later, after she had been repeatedly questioned by her mother, who had observed defendant trying to kiss the victim. The victim’s mother and sister testified that they neither noticed nor heard anything unusual during the time that the sexual assaults were alleged to have occurred.

Defendant’s defense theory was that the victim had fabricated her story and that her mother’s family had put the idea in her head and had told her to lie. There was no medical or physical evidence to support the testimony that the victim had ever been penetrated. However, Section 30-9-13(A)(1), under which defendant was convicted, does not require that penetration occur.

Defendant was convicted on the basis of the victim's testimony and that of the state’s expert witness on child abuse, who testified that the victim’s responses during psychological examinations were consistent with those of a victim of sexual abuse. See State v. Newman, 109 N.M. 263, 784 P.2d 1006 (Ct.App.1989) (therapist allowed to testify that victim’s behavior was consistent with that of a sexually abused child).

DISCUSSION

Defendant specifically contends on appeal that admission of his prior conviction was error, that the timing of its introduction had a prejudicial and misleading impact on the jury, and that the prejudice resulting from admission of the evidence outweighed its probative value.

The trial scenario leading to admission of the prior conviction was as follows. During a pause in the presentation of defendant’s case, at a bench conference, defendant’s trial counsel argued that the prosecutor was required to present a judgment and sentence relating to defendant’s prior conviction before defendant could be asked about the matter. At that time, the trial court expressly observed that the inquiry would be improper for two reasons: (1) the probative value of the admission of a prior conviction for assault in this present case for child sexual abuse would be outweighed by its prejudice; and (2) assuming defendant denied the prior conviction, in the absence of the required documentary evidence, the prosecutor would not have any proof that the conviction had occurred. See SCRA 1986, 11-609(A)(1).

Later in the trial, the issue arose once again in the following manner. After conducting redirect examination of defendant, defendant’s trial counsel stated that the defense rested. After the trial court had instructed defendant to step down, the prosecutor said that he might ask defendant some additional questions on recross examination. He then requested that the jury be excused. Out of the jury’s presence, the prosecutor stated that he had obtained a certified copy of the judgment and sentence relating to defendant’s prior conviction. Defendant’s trial counsel objected on two grounds: (1) the state could not open a new line of questioning after the defense had rested; and (2) the prosecutor did not have the evidence in his possession until after the defendant had left the stand. The prosecutor’s response was two-fold: (1) the issue of defendant’s credibility was not a new area but was always at issue when a witness testified; and (2) he had not stated that he had completed his cross-examination of defendant.

The record reflects that the trial court’s initial response to this dialogue was to state that the evidence could only be admitted as rebuttal testimony and, repeating its earlier statement, that the resulting prejudice outweighed the evidence’s probative value. The trial court then commented that it had excused defendant after a reasonable time, that it seemed as if the prosecutor had trapped defendant, but that it would nevertheless allow the prosecutor’s inquiry in the jury’s presence. Under objection, defendant’s trial counsel asked defendant about the prior conviction, presumably to minimize any possible prejudice.

Rule 11 — 609(A)(1) provides that evidence of convictions for crimes that do not involve dishonesty and that are less than ten years old may be admitted if the trial court determines that the probative value of the evidence outweighs its prejudicial effect. On two separate occasions during the course of the trial in this appeal, the trial court stated its belief that the evidence was not admissible because its prejudicial effect outweighed any probative value. The trial court’s first comment may have been premised on the absence of documents to prove the prior conviction. This premise, however, would have no bearing on the trial court’s clear comments of prejudice just before its second ruling, when the prosecutor had stated he had obtained a certified copy of the judgment and sentence.

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Bluebook (online)
847 P.2d 746, 115 N.M. 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-conn-nmctapp-1992.