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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. A-1-CA-34548
5 JOE T. GARCIA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 B. Douglas Wood III, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VIGIL, Judge. 1 {1} Defendant Joe Garcia appeals from his convictions of four counts of
2 criminal sexual penetration of a minor (CSPM) involving his two daughters.
3 Defendant raises two arguments on appeal: (1) the evidence is insufficient to
4 support the convictions involving his daughter HG because the only evidence
5 supporting these convictions was the testimony of a nurse and mental health
6 counselor, which were admitted in violation of the confrontation clause, and also
7 because the statements were admitted into evidence without an instruction that they
8 were not to be considered as substantive evidence of the CSPM charges at issue;
9 and (2) the district court erred by: (a) admitting evidence of Defendant’s legal
10 pornography collection, (b) improperly limiting Defendant’s use of Ms. Wigmore-
11 Garcia’s diary for impeachment purposes, and (c) considered in conjunction, the
12 rulings give rise to cumulative error. We affirm. Because this is a memorandum
13 opinion and the parties are familiar with the facts and procedural posture of the
14 case, we set forth only such facts and law as are necessary to decide the merits.
15 BACKGROUND
16 {2} Defendant was indicted with fourteen counts related to the molestation of his
17 twin five-year-old daughters, MG and HG, between January 2009 and July 2010.
18 The jury convicted Defendant of four counts of CSPM premised on Defendant
19 causing MG and HG to each engage in fellatio on two separate occasions.
20 Defendant appeals.
2 1 DISCUSSION
2 I. Sufficiency of the Evidence Supporting the CSPM Convictions 3 Involving HG
4 {3} Defendant argues that the evidence that HG accused Defendant of causing
5 her to engage in fellatio on more than one occasion was testimonial and not subject
6 to cross-examination, and therefore admitted into evidence in violation of
7 Defendant’s confrontation rights. In addition, Defendant contends that the evidence
8 was not admitted for the truth of the matter asserted. Without this evidence,
9 Defendant contends, no actual evidence was admitted against him regarding the
10 two counts of CSPM involving HG, and as such, must be reversed. The State
11 responds that “Defendant waived any confrontation issue and invited any error”
12 related to the admission of HG’s accusations against him. We agree.
13 {4} At trial, the State called Nurse Jacqueline Belinski, a sexual assault nurse
14 examiner (SANE nurse) employed at Christus St. Vincent Hospital, to testify.
15 Nurse Belinski was recognized by the district court as an expert in “child sexual
16 abuse examination” with no objection from Defendant. As a SANE nurse, Nurse
17 Belinski received special training to perform forensic examinations when there is
18 suspected child sexual abuse. In conducting a SANE examination, Nurse Belinski
19 testified that she first obtains a “history” from the family, interviews the suspected
20 victim, and then conducts a physical examination. Nurse Belinski testified that she
21 conducted SANE examinations of MG and HG in September 2010. 3 1 {5} Over Defendant’s hearsay objection, Nurse Belinski was permitted to testify
2 as to MG and HG’s disclosures to her during their SANE interviews. In overruling
3 Defendant’s objection, the district court stated that:
4 I am going to allow the questions to come in. Those questions have to 5 be clearly not to prove the truth of the matter asserted and should stay 6 away from the discussions like determinations that the law was 7 broken, more medically based.
8 Also, if [Defendant] . . . would like a curative instruction 9 regarding this witness’ testimony defining how the jury can interpret 10 these statements, that they’re not offered to prove the truth of the 11 matter asserted but instead to describe and explain the totality of the 12 SANE nurse examination or something like that[,] I will allow for that 13 and we would discuss the exact language at the appropriate time 14 outside of the presence of the jury. So if you want the instruction, 15 please raise it as we’re going over jury instructions.
16 Defendant agreed to this procedure. Nurse Belinski testified thereafter that HG told
17 her during the SANE interview that Defendant had put his penis in her mouth on
18 more than one occasion. Nurse Belinski stated that based on her experience and
19 training, HG’s disclosures were consistent with sexual abuse.
20 {6} HG was called to testify. HG was able to testify that she understood the
21 importance of telling the truth, as well as was able to identify Defendant in court.
22 However, after approximately three hours of being unable to elicit any substantive
23 testimony from HG , the parties argued about whether HG could testify to anything
24 substantive. Based on the district court’s concerns about HG’s competency to
25 testify and ability to articulate her recollections, the district court stated that it was
4 1 exercising its Rule 11-611 NMRA “powers and releas[ing HG] for today, giving
2 the State an opportunity, if [the parties] think it would be productive to present her
3 at another time during the State’s case in chief.” The parties did not object to the
4 procedure, and HG was released. HG was not recalled.
5 {7} The State later called Melissa Wood, a licensed mental health counselor,
6 who provided therapy to MG and HG periodically between April 2010 and 2014.
7 Outside of the presence of the jury, the district court ruled, over Defendant’s
8 hearsay and relevance objection, that Ms. Wood would be permitted to testify to
9 statements made by MG and HG to her for the purposes of treatment and diagnosis
10 related to the alleged sexual abuse. The district court reasoned that statements
11 made for purpose of medical diagnosis and treatment are “inherently reliable” and
12 that the statements that the State sought to elicit from Ms. Wood are relevant and
13 “not substantially more prejudicial than probative[.]” Ms. Wood proceeded to
14 testify that during her treatment of HG, HG told her that Defendant “told her to
15 close her eyes and open her mouth and that he put his penis inside her mouth and
16 she felt like vomiting[.]”
17 {8} After the State rested, Defendant argued that Counts 1 and 2 of the
18 indictment involving HG should be dismissed, arguing that the only evidence in
19 support of the counts was improperly admitted through Nurse Belinski and Ms.
5 1 Wood either in violation of the confrontation clause or the rule against hearsay.
2 Defendant contended that HG:
3 for all intents and purposes, did not testify[,] which I believe . . . 4 violates the confrontation clause. The information to sustain or prove 5 Counts 1 and 2 have come from the SANE nurse, based on disclosures 6 she alleges happened, that I could not cross-examine [HG] on, 7 whether in fact she actually made these allegations to or statements to 8 the SANE nurse, because she didn’t testify. And they also come, to 9 some extent, from Ms. Wood, which, again, are hearsay statements 10 that I cannot test for truth or credibility because [HG] did not testify.
11 The district court denied Defendant’s motion, ruling that admission of HG’s
12 statements accusing Defendant of the sexual abuse through Nurse Belinski and Ms.
13 Wood did not violate the confrontation clause, and considered together, constituted
14 sufficient admissible evidence to avoid a directed verdict. Defendant did not seek
15 to have the jury instructed that Nurse Belinski and Ms. Wood’s testimony
16 concerning HG’s statements to them should not be considered for the truth of the
17 matter asserted.
18 {9} A “defendant can waive fundamental rights,” including confrontation clause
19 rights, which “may include an implied waiver by conduct.” State v. Herrera, 2004-
20 NMCA-015, ¶ 8, 135 N.M. 79, 84 P.3d 696; see State v. Lucero, 1986-NMCA-
21 085, ¶¶ 12-17, 104 N.M. 587, 725 P.2d 266 (determining that by failing to object
22 to challenged testimony on the basis of the confrontation clause, the defendant’s
23 confrontation clause claim was waived on appeal). Under the facts of this case, we
24 conclude that by failing to object to the admission of HG’s statements through 6 1 Nurse Belinski and Ms. Wood on confrontation grounds, as they were admitted,
2 Defendant failed to preserve a confrontation clause argument for appeal. See Rule
3 11-103(A)(1) NMRA (requiring that in order to preserve a claim of error, a party
4 must make a timely objection and state the specific ground for the objection, unless
5 it is apparent from the context).
6 {10} Further, “[a]cquiescence in the admission of evidence . . . constitutes waiver
7 of the issue on appeal[,]” State v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148,
8 921 P.2d 1266, and “[t]he doctrine of fundamental error cannot be invoked to
9 remedy the defendant’s own invited mistakes.” State v. Ortega, 2014-NMSC-017,
10 ¶ 34, 327 P.3d 1076 (internal quotation marks and citation omitted). A defendant
11 likewise may not be heard to claim error with respect to complaints as to which the
12 defendant declined the trial court’s offer to cure. See State v. Vialpando, 1979-
13 NMCA-083, ¶ 25, 93 N.M. 289, 599 P.2d 1086 (stating that “New Mexico has
14 frequently held that a prompt admonition from the court to the jury to disregard
15 and not consider inadmissible evidence sufficiently cures any prejudicial effect
16 which otherwise might result[;] and this court has ruled that an offer to admonish,
17 even though declined, is sufficient to support denial of a motion for mistrial”
18 (citations omitted)). Here, Defendant initially objected, on hearsay grounds, to the
19 admission of HG’s accusations against him that were admitted through Nurse
20 Belinski and Ms. Wood. The district court determined that the statements were
7 1 admissible under Rule 11-803(4)(a), (b) NMRA (excluding from the hearsay rule
2 “[a] statement that (a) is made for—and is reasonably pertinent to—medical
3 diagnosis or treatment, and (b) describes medical history, past or present
4 symptoms, pain, or sensations, their inception, or their general cause”). However,
5 the district court also offered to limit the jury’s consideration of the evidence if
6 Defendant tendered an instruction at the close of evidence explaining that the jury
7 should not consider HG’s statements admitted through Nurse Belinski and Ms.
8 Wood for the truth of the matter asserted. But no such instruction was tendered by
9 Defendant. Under these circumstances, we conclude that Defendant acquiesced in
10 the admission HG’s accusations against him and will not be heard to claim error
11 with respect to his complaint for which he declined the district court’s offer to
12 cure.
13 {11} The jury instructions for Counts 1 and 2 provided, in pertinent part, that in
14 order to find Defendant guilty of the crimes, the State was required to prove
15 beyond a reasonable doubt that Defendant “caused [HG] to engage in fellatio” on
16 two occasions. As we have already stated, Nurse Belinski testified that HG told her
17 during the SANE interview that Defendant had put his penis in her mouth on more
18 than one occasion. Nurse Belinski also testified that based on her experience and
19 training that HG’s disclosures and statements were consistent with sexual abuse.
20 This evidence was corroborated by Ms. Wood, who testified that HG told her that
8 1 Defendant had “told [HG] to close her eyes and open her mouth and that he put his
2 penis inside her mouth and she felt like vomiting[.]” Although admitted under an
3 exception to the rule against hearsay, the jury properly considered this testimony as
4 substantive evidence of the crimes charged in Counts 1 and 2. See State v. Largo,
5 2012-NMSC-015, ¶ 24, 278 P.3d 532 (“Hearsay consists of an out-of-court
6 statement offered to prove the truth of the matter asserted, and is inadmissible as
7 substantive evidence unless it falls within an exclusion or exception to the hearsay
8 rule.” (internal quotation marks and citation omitted)). This was evidence that
9 Defendant caused HG to engage in fellatio as charged in Counts 1 and 2.
10 {12} In light of our conclusions above—that no error occurred in the admission of
11 HG’s accusations against Defendant through the testimony of Nurse Belinski and
12 Ms. Wood—we conclude that substantial admissible evidence supports the jury’s
13 verdict convicting Defendant of two counts of CSPM involving HG. See State v.
14 Carrillo, 2017-NMSC-023, ¶ 42, 399 P.3d 367 (“In reviewing the sufficiency of
15 evidence, [New Mexico courts] must view the evidence in the light most favorable
16 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts
17 in the evidence in favor of the verdict.” (internal quotation marks and citation
18 omitted)); State v. Suazo, 2017-NMSC-011, ¶ 32, 390 P.3d 674 (stating that the
19 central consideration in a sufficiency of the evidence review is whether substantial
20 direct or circumstantial evidence exists to support a verdict beyond a reasonable
9 1 doubt as to all essential elements of the crimes for which the defendant was
2 convicted); State v. Duttle, 2017-NMCA-001, ¶ 18, 387 P.3d 885 (stating that in
3 jury trials, “the jury instructions are the law of the case against which the
4 sufficiency of the evidence supporting the jury’s verdict is to be measured”).
5 II. Claimed Evidentiary Errors
6 A. Defendant’s Pornography Collection
7 {13} Defendant argues that the district court erred in admitting evidence of
8 Defendant’s legal pornography collection. The State responds that Defendant
9 waived any challenge to the admission of this evidence. We agree.
10 {14} As stated above, “[a]cquiescence in the admission of evidence . . .constitutes
11 waiver of the issue on appeal.” Campos, 1996-NMSC-043, ¶ 47; State v. Gutierrez,
12 1977-NMSC-081, ¶ 7, 91 N.M. 54, 570 P.2d 592 (stating that a defendant may not
13 complain on appeal that he was prejudiced by testimony which he allowed to be
14 injected into the case); State v. Anaya, 2012-NMCA-094, ¶ 36, 287 P.3d 956
15 (stating that a party waives “an argument for error regarding the admission of
16 evidence that the party introduced”).
17 {15} Here, Defendant did not object to the evidence of his legal pornography
18 collection, but rather presented his own evidence of the collection and its discovery
19 by Ms. Wigmore-Garcia, and used that evidence in support of his defense that Ms.
20 Wigmore-Garcia fabricated the victims’ accusations in order to obtain a divorce
10 1 from Defendant. Specifically, in his case-in-chief, Defendant took the stand and
2 testified that Ms. Wigmore-Garcia found his collection of pornography, which led
3 to a separation Defendant elicited testimony from Ms. Wigmore-Garcia during
4 cross-examination and told the jury in his opening statement that Ms. Wigmore-
5 Garcia’s discovery of the pornography caused her to become “enraged” and to
6 decide to end the marriage. Indeed, during a bench conference, defense counsel
7 described how the pornography collection fit into the defense theory, stating that “I
8 think that once [Ms. Wigmore-Garcia] had the opportunity to . . . all of a sudden
9 start blaming [Defendant], because she was so upset with the pornography that this
10 was her chance to get out of the marriage, to make these allegations fit and take
11 off.” In so acquiescing to admission of this evidence, Defendant waived the ability
12 to challenge the evidence on appeal. See State v. Duncan, 1994-NMCA-030, ¶ 27,
13 117 N.M. 407, 872 P.2d 380 (determining that the defendant’s failure to object to
14 the admission of a letter that the defendant wrote to the victim waived the issue on
15 appeal), abrogated on other grounds by State v. Brule, 1999-NMSC-026, ¶¶ 3-6,
16 127 N.M. 368, 981 P.2d 782; see also State v. Attaway, 1992-NMCA-043, ¶ 16,
17 114 N.M. 83, 835 P.2d 81 (determining that the defendant’s apparent acquiescence
18 in admission of evidence of certain drug incidents constituted a waiver on appeal
19 of any claim that admission was error).
11 1 {16} We are further unpersuaded by Defendant’s reliance on State v. Romero,
2 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842, to assert that this evidentiary issue
3 was not waived. In Romero, we held that the defendant did not waive a
4 confrontation clause objection where the defendant objected to and “made clear
5 throughout the proceedings that” the evidence at issue should not have come in and
6 the defendant moved to exclude it. Id. ¶¶ 10, 16. In contrast, here, as stated above,
7 Defendant failed to object to admission of the evidence of his pornography
8 collection and rather used it to support his defense theory. Romero therefore does
9 not apply and we decline to consider the argument further.
10 B. Ms. Wigmore-Garcia’s Diary
11 {17} Defendant argues that the district court erred in prohibiting proper inquiry
12 into Ms. Wigmore-Garcia diary for impeachment purposes. Specifically,
13 Defendant contends that he “was denied the opportunity to utilize extrinsic
14 evidence from the diary to impeach her and challenge whether she was a credible
15 witness” in accordance with Rule 11-613 NMRA. The State responds that
16 “Defendant did not seek to use the diary as extrinsic evidence during Wigmore[-]
17 Garcia’s cross-examination, which is the error he claims on appeal.” Defendant,
18 the State asserts, was therefore “not aggrieved by any ruling of [the] district court
19 ruling as to Wigmore[-]Garcia’s cross-examination.” We agree.
12 1 {18} A defendant “may not complain on appeal when the specific relief requested
2 was granted.” State v. Trevino, 1991-NMCA-085, ¶ 20, 113 N.M. 804, 833 P.2d
3 1170. Further, a defendant “may not predicate error on his own conduct.” State v.
4 Gilbert, 1982-NMCA-081, ¶ 31, 98 N.M 77, 644 P.2d 1066.
5 {19} Here, the State moved in limine to exclude Ms. Wigmore-Garcia’s diary
6 after learning of its existence for the first time when Defendant referenced it during
7 opening statement, arguing that it was undisclosed in violation of Rule 5-502
8 NMRA (“Unless a shorter period of time is ordered by the court, within thirty (30)
9 days after the date of arraignment or filing of a waiver of arraignment the
10 defendant shall disclose or make available to the state the following: (1) books,
11 papers, documents, photographs, tangible objects, or copies or portions thereof,
12 which are within the possession, custody or control of the defendant, and which the
13 defendant intends to introduce in evidence at trial[.]”). Defendant argued that the
14 diary was not subject to disclosure because he did not intend to introduce the diary
15 into evidence. Indeed, Defendant later stated that he did not seek to introduce the
16 diary as evidence as a strategic defense choice. The district court ruled that the
17 diary was excluded under Rule 5-502, subject to reconsideration.
18 {20} Prior to cross-examining Ms. Wigmore-Garcia, Defendant moved for the
19 district court to reconsider its ruling excluding his use of the diary, requesting that
20 he be permitted to reference the contents of the diary for the limited purpose of
13 1 impeaching Ms. Wigmore-Garcia, under Rule 11-613(A) (stating that when
2 examining a witness about the witness’s prior statement, a party need not show it
3 or disclose its contents to the witness, but the party must, on request, show it or
4 disclose its contents to an adverse party’s attorney). Defendant continually
5 reiterated that he did not intend to introduce the diary into evidence. Specifically,
6 Defendant requested only that he be permitted to ask Ms. Wigmore-Garcia whether
7 she wrote in her diary that: (1) she was repulsed by Defendant and did not want to
8 have sex with him; and (2) she was in love with her doctor. The district court
9 granted Defendant’s motion, ruling that under Rule 11-613 and given:
10 the State’s objection being disclosure, [the diary] is not subject to 11 disclosure pursuant to [Rule] 5-502, and with [Defendant] having a 12 good-faith basis for asking the questions, . . . may ask the questions. 13 [Defendant] cannot show the [diary], she can’t waive it in the air and 14 say, “Didn’t you say in your diary this?” She can ask questions, verbal 15 inquiry only, not demonstrative, verbal inquiry and will have to live 16 with the answers given. She cannot then say, “Well, I’ve got it right 17 here and it says the following:” That’s the way [Rule] 613 . . . reads 18 and that’s the way the [district c]ourt will apply.
19 Defendant did not object to this procedure and proceeded to ask Ms. Wigmore-
20 Garcia the proffered questions, which she denied. Under these circumstances, in
21 which Defendant: (1) as a matter of trial strategy, did not disclose the diary to the
22 State in accordance with Rule 5-502; (2) represented repeatedly to the district court
23 that he did not intend to introduce the diary into evidence; and (3) after being
24 granted his requested relief, cross-examined Ms. Wigmore-Garcia concerning the
14 1 contents of the diary consistent with the district court’s ruling, waived any claim of
2 error in regard to the district court’s rulings concerning his proposed use of the
3 diary to impeach Ms. Wigmore-Garcia. See State v. Taylor, 1986-NMCA-011,
4 ¶ 13, 104 N.M. 88, 717 P.2d 64 (determining that the defendant, who expressly
5 conceded at the hearing on motion in limine that Rule 11-609(A)(2) NMRA was
6 inapplicable to question of the admissibility of a prior misdemeanor conviction of a
7 prosecution witness, was precluded from alleging error on grounds of the same rule
8 on appeal).
9 {21} Additionally, Defendant’s reliance upon State v. Gomez, 2001-NMCA-080,
10 ¶ 14, 131 N.M. 118, 33 P.3d 669 is unavailing. In Gomez, the district court
11 prohibited the defendant from introducing a safehouse interview of the victim as
12 extrinsic evidence to impeach the victim’s videotaped testimony, ruling that the
13 victim was unavailable to deny or explain the alleged inconsistencies and because
14 permitting the impeachment would impermissibly deprive the State of the
15 opportunity to rehabilitate its witness. Id. ¶¶ 3-6. Reasoning that “[t]he record does
16 not reflect any showing by the State that it could not have questioned [the v]ictim
17 further at the time of the trial video. Nor does the record reflect any showing by the
18 State that it could not have recalled [the v]ictim during the trial for further
19 questioning either in person or in another videotaped deposition[,]” we concluded
20 that the district court erred in its exclusion of the safehouse interview as extrinsic
15 1 evidence. Id. ¶¶ 16, 18. In contrast, here, the district court’s ruling limiting
2 Defendant’s use of the diary in his cross-examination of Ms. Wigmore-Garcia to
3 questioning her concerning certain entries therein was premised on its exclusion of
4 the diary from evidence for violation of Rule 5-502 and Defendant’s concessions
5 that he did not intend, as a matter of trial strategy, to introduce the diary into
6 evidence. Gomez, therefore, does not apply and we decline to consider the
7 argument further.
8 C. Cumulative Error
9 {22} Concluding that no evidentiary error arose from the admission of evidence
10 concerning Defendant’s pornography collection or from the district court’s rulings
11 concerning Defendant’s impeachment of Ms. Wigmore-Garcia through the use of
12 her diary, we conclude that no cumulative error occurred. See State v. Woodward,
13 1995-NMSC-074, ¶ 59, 121 N.M. 1, 908 P.2d 231 (“The doctrine of cumulative
14 error requires reversal of a defendant’s conviction when the cumulative impact of
15 errors which occurred at trial was so prejudicial that the defendant was deprived of
16 a fair trial.” (internal quotation marks and citation omitted)), abrogated on other
17 grounds as recognized by State v. Montoya, 2014-NMSC-032, 333 P.3d 935; see
18 also State v. Saiz, 2008-NMSC-048, ¶ 66, 144 N.M. 663, 191 P.3d 521 (“[W]here
19 there is no error to accumulate, there can be no cumulative error.”), abrogated on
16 1 other grounds by State v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210
2 P.3d 783.
3 CONCLUSION
4 {23} The judgment and sentence of the district court is affirmed.
5 {24} IT IS SO ORDERED.
6 _____________________________ 7 MICHAEL E. VIGIL, Judge
8 WE CONCUR:
9 __________________________ 10 J. MILES HANISEE, Judge
11 __________________________ 12 EMIL J. KIEHNE, Judge