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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 28,286 10 ALBERTO MENDOZA, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Ernesto Romero, District Judge (Trial) 14 Stan Whitaker, District Judge (Sentencing)
15 Gary K. King, Attorney General 16 Ann M. Harvey, Assistant Attorney General 17 Santa Fe, NM
18 for Appellee
19 Trace L. Rabern 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION 23 BUSTAMANTE, Judge.
1 Defendant, Alberto Mendoza, appeals his conviction on six counts of criminal 2 sexual contact of a child under thirteen, and one count of witness tampering. 3 Defendant argues that his conviction should be reversed and/or remanded for a new 4 trial. On appeal, we consider (1) whether the district court erred in excluding 5 evidence of sexual contact with a step-sibling by one of the victims that occurred over 6 two years after the alleged contact by Defendant; (2) whether the district court erred 7 in refusing to strike jurors for cause based on sentiments that they would like to hear 8 Defendant’s testimony as to his innocence, and why Defendant did not testify; (3) 9 whether the district court improperly admitted hearsay testimony by allowing a 10 witness to read from her report of the victims’ prior account of abuse; (4) whether the 11 district court erred by allowing the prosecution to improperly probe a defense witness 12 for bias; and (5) whether the district court erred in excluding reports of prior CYFD 13 investigations of the victims’ mother. We affirm. 14 BACKGROUND 15 Defendant was convicted on two counts of criminal sexual contact of a minor 16 in the second degree, four counts of criminal sexual contact of a minor in the third 17 degree, and one count of bribery of a witness. The victims were Defendant’s two 18 step-granddaughters, Child 1 and Child 2. Child 1 is the older of the two siblings and 19 was ten-years-old at the time of the abuse. Child 2 was eight-years-old. The events
3
1 leading to Defendant’s indictment began when Defendant’s daughter, Laura Mendoza 2 (a.k.a “Hita”), discovered Child 1 “squatted in the corner” beside the bed, “huddled 3 up” with her younger cousin, apparently trying to kiss him. Laura was sixteen at the 4 time. Laura and the children’s grandmother, Defendant’s wife, phoned the children’s 5 parents to come over to deal with what they believed to be Child 1’s inappropriate 6 behavior. In the midst of what became an apparently heated and dramatic encounter 7 with her family, Child 1 became very upset and began yelling something to the effect 8 of “[t]his is what [Defendant] did to me,” or “[y]ou should see what [Defendant] did 9 to [Child 2].” Based on these initial allegations, the children were interviewed and 10 examined, at which time they gave more detailed accounts of their accusations. 11 However, no physical evidence of abuse was discovered. Defendant was tried and 12 convicted approximately three years later and now appeals. 13 DISCUSSION
14 1. The District Court did not Err in Excluding Evidence of Other Sexual 15 Abuse Suffered by the Children
16 At trial, Defendant attempted to admit evidence that Child 2 had been digitally 17 penetrated by her step-sibling. Defendant argued that this evidence was relevant 18 because it showed that the children had likely been subjected to abuse, but not by 19 Defendant, and that such other abuse provided the basis for children’s sexual 20 knowledge. After hearing argument on this issue, the district court excluded the
4
1 evidence under Rule 11-402 NMRA, and Rule 11-403 NMRA. Rule 11-402 states 2 that “[e]vidence which is not relevant is not admissible.” Rule 11-403 provides that, 3 even where evidence is relevant, it “may be excluded if its probative value is 4 substantially outweighed by the danger of unfair prejudice, confusion of the issues or 5 misleading the jury.” 6 “We review the admission of evidence under an abuse of discretion standard 7 and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC- 8 022, ¶ 20, 125 N.M. 511, 964 P.2d 72 (citation omitted). “An abuse of discretion 9 occurs when the ruling is clearly against the logic and effect of the facts and 10 circumstances of the case. We cannot say the trial court abused its discretion by its 11 ruling unless we can characterize it as clearly untenable or not justified by reason.” 12 State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998) 13 (internal quotation marks and citation omitted). 14 Defendant cites State v. Stephen F., 2007-NMCA-025, 141 N.M. 199, 152 P.3d 15 842, aff’d by 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84, to argue that the district 16 court was required to admit evidence of the victim’s sexual history in this case. 17 Stephen F. was a rape case where a fifteen-year-old male admitted to sexual contact 18 with the alleged sixteen-year-old victim, but argued that it was consensual. Id. ¶¶ 4-5. 19 The issue we addressed on appeal was whether, notwithstanding rape shield laws,
5
1 evidence of the alleged victim’s sexual history was relevant to establish the defense 2 of consent. Id. ¶ 9. Ultimately, we concluded that this evidence was relevant because 3 it tended to prove motivation to fabricate a claim of rape out of fear of punishment by 4 the alleged victim’s parents. Id. ¶ 20. 5 These cases are distinguishable for several reasons. First, Stephen F. dealt with 6 evidence of prior sexual contact, whereas the excluded evidence in this case dealt with 7 subsequent contact. Second, the evidence in Stephen F. was relevant in order to 8 demonstrate the defense of consent whereas, here, consent is not a valid defense. 9 Further, our ruling in Stephen F. was based on the application of a five-factor test to 10 determine whether the district court’s ruling on the evidence was an abuse of 11 discretion. Defendant cites the test but provides no analysis on its application to this 12 case. In line with Stephen F.’s recognition that evidentiary questions lie within the 13 sound discretion of the district court, we conclude that Defendant has not met his 14 burden of showing an abuse of discretion. 15 Defendant also relies on State v. Payton, 2007-NMCA-110, 142 N.M. 385, 165 16 P.3d 1161, to argue that evidence of Child 2’s encounter with her step-sibling was not 17 only relevant, but that exclusion of this evidence constituted reversible error. In 18 Payton, we found reversible error where the defendant was not allowed to introduce 19 evidence of prior sexual abuse of a child victim to establish an alternative source of
6
1 sexual knowledge. Id. ¶ 15. We stated that the “jury would naturally assume that a 2 young victim could not have known about sexual matters and must have known about 3 them only because [the d]efendant actually committed the offenses.” Id. However, 4 Payton is distinguishable because it dealt with evidence of prior abuse. Id. ¶ 14. This 5 case deals with evidence of subsequent abuse. The encounter with the step-sibling 6 occurred over two years after the childrens’ initial detailed accounts of their abuse that 7 are documented in the transcript of their safe house interviews. In the case below, the 8 defense conceded that there was no temporal connection between the incident with 9 Child 2 and her step-sibling and the charges against Defendant. 10 The details of the safe house interviews were allowed as evidence and were 11 presented to the jury through the prosecution’s witness, Nurse Rosala Villalpondo. 12 Ms. Villalpondo conducted those interviews and compiled a report. Reading from her 13 report, she testified that Child 2 stated that Defendant had touched her on her “private 14 part” with his hand and that his penis touched her vagina. This evidence demonstrated 15 that Child 2 had sexual knowledge before any encounter that she may have had with 16 her step-sibling. The district court also noted that Defendant had the opportunity to 17 attack the victims’ credibility by highlighting any contrasts in their testimony between 18 the time that they were initially interviewed (before the encounter with the step- 19 sibling) and that time that they actually testified at trial (after the encounter). We
7
1 agree with the district court that this subsequent incident was irrelevant to establish 2 an alternative source of sexual knowledge. Accordingly, we conclude that the district 3 court did not abuse its discretion in excluding this evidence. Having upheld the 4 district court’s determination as to relevance, we do not address the district court’s 5 alternative basis for its decision under Rule 11-404 NMRA.
6 2. The District Court did not err in Denying Defendant’s Juror Strikes for 7 Cause
8 During voir dire, Defendant attempted to strike five venire members for cause. 9 Of the five challenges, the district court granted two: one against juror Compton, and 10 the other against juror Keepers. Of the remaining three, juror Rodriguez-Ortiz, and 11 juror Roe were peremptorily stricken. The remaining juror, Natha, was not 12 peremptorily stricken even though Defendant had not yet exhausted all of his 13 peremptory strikes when juror Natha was called. Natha sat as juror number seven. 14 By the end of voir dire, Defendant had exhausted all of his peremptory strikes. On 15 appeal, Defendant argues that the district court erred in not granting all of his strikes 16 for cause. 17 Defendant’s strikes for cause were based on responses to the inquiry of whether 18 it would “bother anybody” if Defendant declined to take the stand. This portion of the 19 voir dire was as follows:
8
1 [Defense Counsel]: Does it bother anybody over here if 2 [Defendant] doesn’t testify? Does anybody 3 agree with [Juror] Compton that they would 4 like to hear [Defendant’s] story?
5 [Juror] Natha?
6 JUROR NATHA: I would think so, because if I was ever 7 accused with something, I would want to 8 make sure that they heard my story. Along 9 with the State having to prove it, the second 10 part is if I was accused of something, and I 11 didn’t do it, I would want to put my side up 12 there as well.
13 [Defense Counsel]: And [Juror] Rodriguez-Ortiz?
14 JUROR 15 RODRIGUEZ-ORTIZ: Yeah, I would like to hear his story, the whole 16 side of the story.
17 [Defense Counsel]: Again, if [Defendant] didn’t give a story, 18 would that make you look disfavorably on 19 [Defendant]?
20 JUROR 21 RODRIGUEZ-ORTIZ: Not necessarily, but I would like to hear his 22 story.
23 .... 24 [Defense Counsel]: I saw other hands. [Juror] Roe?
25 JUROR ROE: I would find it—I would give children, 26 testifying in a court of law, the benefit of the 27 doubt, unless there was evidence of huge 28 motive for them to be lying. And given that,
9
1 without testimony on the other side, I would 2 find it difficult.
3 [Defense Counsel]: [Juror] Keepers, did you raise your hand, too?
4 JUROR KEEPERS: I would just wonder why [Defendant] 5 wouldn’t testify himself.
6 [Defense Counsel]: And would that wonder bother you in 7 assessing the case?
8 JUROR KEEPERS: I don’t know if it would bother me. I’m not 9 sure the schedule of testimony, but right now 10 I don’t understand why [Defendant] wouldn’t 11 testify.
12 Defendant argues that this issue presents a question of structural error to be 13 reviewed de novo. However, the proper standard of review is abuse of discretion. See 14 Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 10, 141 N.M. 808, 161 P.3d 835. 15 “Trial courts are vested with wide discretion regarding the jury selection process, and 16 we will not reverse absent an abuse of that discretion.” Id. ¶ 10. It is an abuse of 17 discretion to “force a party to exhaust his peremptory challenges on persons who 18 should be excused for cause.” Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 19 1140 (1987) (internal quotation marks and citation omitted). “The burden of 20 establishing an abuse of discretion rests on the moving party.” State v. Hernandez, 21 115 N.M. 6, 22, 846 P.2d 312, 328 (1993) (citation omitted).
10
1 Defendant cites Fuson to argue that it was error to not grant his strikes for 2 cause where all his peremptory challenges were exhausted. In Fuson, a juror was 3 seated who, in voir dire, had stated that he could not “say with certainty that [he] 4 could be totally impartial,” and that his knowledge of six individual witnesses in the 5 case could affect the way he decided the case. Fuson, 105 N.M. at 633, 735 P.2d at 6 1139. On appeal, our Supreme Court concluded that, despite the district court’s 7 discretion in this area, it was error to not exclude this juror, stating that “[i]t is 8 manifest from the person’s responses to questions asked during voir dire that he could 9 not be impartial.” Id. 10 Unlike Fuson, the jurors challenged for cause in this case never expressed that 11 they could not be impartial. Their responses generally expressed an interest in having 12 Defendant testify, but they were not asked any other questions which might reveal 13 any actual bias that may result from this perspective. During voir dire, the district 14 court noted that no one asked the venire members whether or not they could follow 15 the court’s instruction on this matter. The court’s instruction stated “[y]ou must not 16 draw any inference of guilt from the fact that [Defendant] did not testify in this case, 17 nor should this fact be discussed by you or enter into your deliberations in any way.” 18 Without inquiry as to whether jurors had fixed opinions of impartiality about 19 Defendant not testifying, even notwithstanding the instruction, we cannot conclude
11
1 that the district court did not abuse its discretion in failing to strike these jurors for 2 cause. See State v. Barrera, 2001-NMSC-014, ¶ 18, 130 N.M. 227, 22 P.3d 1177 3 (stating that “the pertinent inquiry is whether the jurors . . . had such fixed opinions 4 that they could not judge impartially the guilt of the defendant” (alteration in original) 5 (internal quotation marks and citation omitted)).
6 3. Defendant’s Challenge of Ms. Villalpondo’s Testimony Fails for Lack of 7 Preservation
8 In order to preserve an issue for appeal, Defendant must make a timely 9 objection that specifically apprises the district court of the nature of the claimed error 10 and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 11 N.M. 454, 993 P.2d 1280. This Court will not search the record to find whether an 12 issue was preserved where defendant did not refer this Court to appropriate transcript 13 references. See Rojo, 1999-NMSC-001, ¶ 44. We will not address arguments not 14 preserved below, unless they involve matters of jurisdictional or fundamental error. 15 In re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. 16 In her testimony, Ms. Villalpondo read directly from her report regarding her 17 prior examination of the victims. This testimony included reading to the jury the 18 victims’ answers to questions during the examination. On appeal, Defendant argues 19 that Ms. Villalpondo’s testimony, to the extent that it relayed the prior statements of 20 the victims, should have been excluded as hearsay. However, Defendant does not
12
1 demonstrate how this issue was preserved below, nor does he argue jurisdictional or 2 fundamental error. Defendant states in his brief in chief that this testimony came in 3 “[o]ver defense hearsay objections,” but our review of the record and transcript 4 reveals no record of such an objection. Thus, Defendant’s challenge on this issue fails 5 for lack of preservation.
6 4. Defendant has not Demonstrated That the State’s Questioning of Laura 7 Mendoza Resulted in Reversible Error
8 Defendant argues that it was improper for the State to cross-examine his 9 daughter, Laura, about her refusal to be interviewed by detectives without Defendant’s 10 counsel present. He claims this was an improper way to challenge this witness’s 11 credibility and “an improper comment on [Defendant’s] right to counsel.” In support 12 of this argument, Defendant cites to State v. Garcia, 118 N.M. 773, 887 P.2d 767 (Ct. 13 App. 1994). However, Garcia is not helpful because that case dealt with whether a 14 defendant’s exercise of his post-arrest right to remain silent was improperly used 15 against him as evidence at trial. Id. at 774, 887 P.2d at 768. Defendant draws no 16 parallels between Garcia and this case, and it is otherwise unclear how Garcia 17 supports Defendant’s argument. Thus, we cannot rule on this issue. See State v. King, 18 2007-NMCA-130, ¶ 17, 142 N.M. 699, 168 P.3d 1123 (refusing to consider 19 arguments unsupported by authority or analysis).
13
1 5. Defendant’s Challenge Relating to Evidence of the CYFD Reports Fails for 2 Lack of Preservation
3 Defendant argues that the district court erred in excluding reports of prior 4 CYFD investigations of the victims’ mother. Defendant was able to elicit testimony 5 from the victims’ mother regarding these reports and this testimony was admitted by 6 the district court over objection by the State, but the actual reports were apparently 7 never admitted. Beyond mentioning these investigations in the opening argument, and 8 questioning the victims’ mother at trial, Defendant points to no motion to admit the 9 actual reports as evidence. On appeal, Defendant argues that the records were 10 admissible under Rule 11-803(H) NMRA which deals with public records and reports, 11 but concedes that this argument was not made below. Thus, it is unclear how 12 Defendant invoked the ruling of the district court on this issue. See Vill. of Angel Fire 13 v. Bd. Of County Comm’rs of Colfax County, 2010-NMCA-038, ¶ 15, N.M. , 14 P.3d (stating that “[i]n order to properly preserve an issue, it must appear that 15 [the party] fairly invoked a ruling of the [district] court on the same grounds argued 16 in the appellate court” (alterations in original) (internal quotation marks and citation 17 omitted)). Defendant correctly states that this Court will generally address 18 unpreserved issues if they constitute plain error, but does not present an argument that 19 plain error exists here. We see no error, much less plain error, on this issue.
14
1 CONCLUSION 2 For the foregoing reasons, we affirm the entry of judgment by the district court.
3 __________________________________ 4 MICHAEL D. BUSTAMANTE, Judge
5 WE CONCUR:
6 7 RODERICK T. KENNEDY, Judge
8 9 ROBERT E. ROBLES, Judge