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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. 31,623
5 ALLEN SEAGER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 8 Matthew G. Reynolds, District Judge
9 Gary K. King, Attorney General 10 Olga Serafimova, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Acting Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Judge. 1 {1} Defendant appeals his convictions for two counts of criminal sexual penetration
2 of a minor under thirteen years of age (CSPM). Defendant raises six issues on appeal:
3 (1) the district court improperly instructed the jury on Count II by failing to give the
4 elements of criminal sexual contact of a minor under thirteen years of age (CSCM),
5 by failing to define “vagina,” and by failing to instruct the jury on the “anal
6 intercourse” option for Count I; (2) the district court erroneously admitted cumulative
7 identification evidence; (3) there was insufficient evidence to sustain the CSPM
8 conviction on Count II; (4) the district court erroneously ordered that Defendant be
9 shackled during trial; (5) the court erred by admitting unrelated Halloween
10 photographs and evidence of unrelated charges; and (6) the prosecutor made several
11 improper statements that require reversal. We hold that Defendant was entitled to a
12 jury instruction on the elements of the lesser included offense of CSCM and
13 accordingly reverse and remand Defendant’s conviction for CSPM charged in Count
14 II. Because we reverse on Count II, we do not address whether the district court erred
15 in failing to define “vagina.” Finding no error in Defendant’s remaining contentions,
16 we otherwise affirm.
17 BACKGROUND
18 {2} In 2009, Defendant lived in a home with his mother and father, his former
19 girlfriend, Edie Hicks, and their daughter, his brother Donald Seager, Donald’s wife
20 Antonia Zamora, and Donald’s and Antonia’s three children. Although Defendant’s
2 1 other brother, Michael Seager, did not live in the house, he and his three-year-old
2 daughter A.S. were often there. Defendant’s charges arose when Antonia was doing
3 laundry and discovered a San Disk digital memory card in the washing machine.
4 Antonia gave the memory card to Donald who discovered that it contained two video
5 clips of A.S. being anally raped by an adult male. Donald and other family members
6 recognized the male as Defendant and contacted the police.
7 {3} Defendant was charged with a total of fifty-two counts, but only two counts of
8 CSPM in the first degree ultimately went to the jury. The jury returned a verdict of
9 guilty on both counts. Because this is a memorandum opinion and because the parties
10 are familiar with the procedural history and facts of the case, we reserve further
11 discussion of pertinent facts for our analysis.
12 DISCUSSION
13 Jury Instructions
14 {4} Defendant raises three issues with regard to the jury instructions. He contends
15 that the omission of the elements instruction for CSCM under Count II requires
16 reversal. In addition, Defendant argues that the omission of the definitional
17 instruction for “vagina” was in error. And finally, he argues that the district court
18 erred in failing to use the phrase “anal intercourse” with the requisite definition
19 instruction as charged in Count I.
3 1 {5} As a preliminary matter, the parties agree that defense counsel did not submit
2 proposed jury instructions on the above three issues, nor did she object to the
3 instructions as given. Therefore, we review for fundamental error. See State v.
4 Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that
5 instructional errors that are preserved are reviewed for reversible error while
6 unpreserved errors are reviewed for fundamental error). We begin with the omission
7 of the elements instruction of CSCM.
8 {6} With regard to Count II, the jury was first instructed on the elements of CSPM
9 in the first degree. The jury was next instructed that, as to the charge of CSPM in the
10 first degree as charged in Count II, there were three possible verdicts:
11 (1) guilty of criminal sexual penetration in the first degree (child under 13); (2) guilty
12 of criminal sexual contact in the second degree (child under 13); and (3) not guilty.
13 The jury was not provided with an elements instruction for CSCM in the second
14 degree, and it ultimately found Defendant guilty of CSPM.
15 {7} Defendant argues that the district court’s failure to give a CSCM elements
16 instruction is reversible error because without an instruction, the jury was deprived of
17 the opportunity to consider the lesser included offense. The State acknowledges that
18 the district court agreed that the jury should be instructed on the lesser included
19 offense of CSCM as to Count II and that, therefore, the court was under a duty to
20 instruct on all elements essential for conviction of the crime. See Rule 5-608(A)
4 1 NMRA (“The court must instruct the jury upon all questions of law essential for a
2 conviction of any crime submitted to the jury.”). The State nevertheless argues that
3 the district court’s failure to instruct the jury on all essential elements does not require
4 reversal. Specifically, the State contends that the errors were harmless because the
5 jury was instructed to consider CSPM first and to only move on to CSCM if it found
6 that the elements of CSPM were not met. Further, the State argues that the naming
7 of the two offenses—whether the touching constituted “contact” or
8 “penetration”—made the distinction between CSCM and CSPM clear to the jury.
9 Finally, the State asserts that the jury could not have been confused about the
10 instructions because it had asked numerous questions about other matters during trial
11 yet did not seek clarification of the instructions. For the reasons that follow, we are
12 not persuaded.
13 {8} We first note that Rule 5-608 fairly resolves the matter. In addition to requiring
14 the district court to instruct the jury on all essential elements of a crime, the rule goes
15 on to provide in Subsection D that to preserve a claim of error, a defendant must
16 properly object to the given instructions or tender a correct written instruction, except
17 as to matters upon which the trial court has a duty to instruct under Subsection A. Our
18 case law on the issue is consistent with Rule 5-608. Our Supreme Court has reiterated
19 that when a defendant fails to object or tender a correct instruction, the failure to
20 instruct the jury on the essential elements of an offense generally constitutes
5 1 fundamental error. See State v. Barber, 2004-NMSC-019, ¶ 20, 135 N.M. 621, 92
2 P.3d 633; State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991).
3 Consequently, based on our rules and case law, the failure to instruct a jury on an
4 element—let alone all the elements—of a crime deprives a defendant of the right to
5 have the jury told what crimes he is actually being tried for and what the essential
6 elements of those crimes are. Such an omission constitutes fundamental error and
7 requires reversal.
8 {9} Contrary to the State’s assertion, even if the jury considered CSPM first and
9 found Defendant guilty of that crime, we cannot say that the jury may have found
10 Defendant guilty of CSCM instead had it been properly instructed. Failure to give
11 any elements of the crime of CSCM makes assessing the jury’s verdict in this case
12 highly difficult and necessarily brings the reliability of the trial process into question.
13 Furthermore, the jury was specifically instructed to “consider each of these crimes.
14 You should be sure that you fully understand the elements of each crime before you
15 deliberate further.” Without an instruction for the elements of CSCM, the jury could
16 not and did not follow the court’s instructions. The State has not cited to any case in
17 which a trial court’s failure to instruct on all elements of a crime did not result in
18 reversal, and we have found none. We therefore hold that the district court’s failure
19 to instruct the jury properly on the essential elements of the crime of CSCM requires
6 1 reversal on Count II. Because we reverse on this issue, we do not reach Defendant’s
2 arguments that the omission of the definitional instruction for “vagina” was in error.
3 {10} Defendant also argues that the district court committed fundamental error when
4 it instructed the jury that criminal sexual penetration, as charged in Count I, consisted
5 of “insertion, to any extent, of [Defendant’s] penis into the anus of A.S.[,]” rather than
6 the “anal intercourse” option. We disagree. In State v. Tafoya, 2010-NMCA-010, ¶
7 40, 147 N.M. 602, 227 P.3d 92, this Court considered whether, in cases involving
8 penetration with a penis, the jury instructions should read “sexual intercourse” or
9 “anal intercourse” rather than “insertion to any extent.” We concluded that the jury
10 instructions should read “sexual intercourse” or “anal intercourse” but nevertheless
11 held that because the “insertion, to any extent” alternative “conveys the same
12 definition and meaning [as] the instruction that should have been given[,]” it
13 “accurately presented the applicable law.” Id. ¶¶ 44, 46 (internal quotation marks and
14 citation omitted). Thus, any error in the alternate instruction was not reversible error.
15 Id. ¶ 46. Applying the Tafoya analysis here, we similarly conclude that the district
16 court did not commit reversible error by instructing the jury on the “insertion to any
17 extent option” instead of the “anal intercourse” option for Count I. See id.
18 Identification Testimony
7 1 {11} Defendant argues that the district court erred in permitting several members of
2 his family to testify as to his identity and in permitting the State to repeatedly play a
3 video in which A.S. is anally raped. We begin with the family’s identification
4 testimony.
5 {12} We review a district court’s evidentiary rulings for an abuse of discretion. State
6 v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641; State v. Otto, 2007-
7 NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8. “A [district] court abuses its discretion
8 when it exercises its discretion based on a misunderstanding of the law.” State v.
9 Macias, 2009-NMSC-028, ¶ 16, 146 N.M. 378, 210 P.3d 804 (internal quotation
10 marks and citation omitted), overruled on other grounds by State v. Tollardo, 2012-
11 NMSC-008, 275 P.3d 110. “We cannot say the [district] court abused its discretion
12 by its ruling unless we can characterize it as clearly untenable or not justified by
13 reason.” Flores, 2010-NMSC-002, ¶ 25 (internal quotation marks and citation
14 omitted).
15 {13} Here, the State called five members of Defendant’s family—his mother, two
16 brothers, sister-in-law, and ex-girlfriend—to identify him. Defendant concedes that
17 the family’s identification testimony was relevant and that his family “certainly had
18 the best opportunity to observe [his] features[.]” However, Defendant contends that
19 his “real argument against admission was that it was unduly prejudicial to have his
20 family testify as to his identity, especially since the jurors could view the evidence and
8 1 [Defendant] for themselves.” We understand Defendant’s argument to be that the
2 jurors were required to identify the person in the photographs and videos themselves
3 and could not rely on the testimony of the witnesses. Defendant has cited to no
4 authority for the proposition that jurors may not consider identification testimony of
5 trial witnesses and we have found none. Where a party cites no authority to support
6 an argument, we may assume no such authority exists. In re Adoption of Doe, 100
7 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).
8 {14} Defendant’s reliance on Stone v. State, 536 N.E.2d 534 (Ind. Ct. App. 1989),
9 is misplaced. In that case, the Indiana Court of Appeals concluded that it was error
10 for the trial court to allow six adults, who had no knowledge of who committed the
11 crime at issue, to repeat a child’s out-of-court identification of the defendant as the
12 perpetrator of sexual abuse. Id. at 540-41. In contrast, here, the family members did
13 not merely reiterate an identification made by someone else thus bolstering that
14 person’s credibility. Instead, each witness offered an independent identification of
15 Defendant. Defendant’s brother, Michael Seager, identified Defendant by his hands.
16 Edie Hicks, Defendant’s ex-girlfriend, identified him by his hands, penis, face, jeans,
17 belt, and voice. Antonia, Donald Seager’s wife, also identified Defendant by his voice
18 and face and testified that the individual in the video was not Donald because Donald
19 was circumcised and the person in the video was not. Donald identified Defendant
20 based on his voice and his long, thin fingers. Finally, Defendant’s mother testified
9 1 that she had seen the videos and that she recognized Defendant. These independent
2 identifications clearly had probative value particularly since Defendant repeatedly
3 claimed at trial that he believed his brother Donald did not like him and had doctored
4 the video to add the face shot of Defendant in order to turn the family against him.
5 We conclude that the district court did not abuse its discretion in allowing the
6 testimony of Defendant’s family members.
7 {15} Defendant also argues that the district court erred in allowing the State to replay
8 five times the videos showing A.S. being anally raped. We observe that Defendant
9 is not challenging the admissibility of the videos or the district court’s decision to
10 make the videos available to the jury for review during deliberations but only
11 challenges the number of times it was shown to the jury during the course of the trial.
12 Because the issue was not preserved, we review for plain or fundamental error. See
13 State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). “Fundamental error
14 only applies in exceptional circumstances when guilt is so doubtful that it would
15 shock the judicial conscience to allow the conviction to stand.” State v. Baca, 1997-
16 NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State
17 v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.
18 {16} While a video of a child being anally raped is undoubtedly disturbing evidence
19 for anyone having to view it, we are not persuaded by Defendant’s assertion that the
20 jury did not need to review it more than once and that the district court could have
10 1 considered other means of proof. Defendant does not contest that the videos were the
2 only evidence of anal penetration or that, since the defense was one of mistaken
3 identity, it was necessary to have the witnesses testify simultaneously with the videos.
4 We conclude that the video was played each time for a specific purpose during the
5 State’s presentation of its case. Accordingly, this error does not give rise to the type
6 of fundamental error that would warrant reversal of the jury’s verdict.
7 {17} We briefly address Defendant’s sufficiency argument and conclude that there
8 was sufficient evidence to support the CSPM conviction in Count II. See State v.
9 Kirby, 2005-NMCA-106, ¶ 34, 138 N.M. 232, 118 P.3d 740 (noting that retrial is not
10 barred by double jeopardy if the evidence at trial was sufficient to support the
11 defendant’s conviction).
12 {18} To find Defendant guilty of CSPM as charged in Count II, the jury was required
13 to find, beyond a reasonable doubt, that (1) Defendant caused the insertion, to any
14 extent, of his fingers into the vagina of A.S.; (2) A.S. was a child under the age of
15 thirteen; (3) this happened in New Mexico on or about the 9th of December, 2009.
16 Defendant contends that the evidence was not sufficient to establish his identity or that
17 penetration occurred because the photographs show only hands, a child’s genitals, and
18 some clothing that appeared to be pajamas. We disagree that the evidence was
19 insufficient.
11 1 {19} As an initial matter, testimony at trial established that the photographs relating
2 to Count II were taken by the same camera as the videos showing Defendant anally
3 raping A.S. and were on the same San Disk card as the videos that contained the
4 photographs of Defendant’s daughter in a Halloween costume. Further, several
5 witnesses identified Defendant by his hands. And, A.S.’s father testified that the
6 pajamas in the photograph belonged to A.S. and that he recognized A.S. because he
7 had changed her diapers many times. This evidence was sufficient to establish that
8 Defendant took pictures of A.S.’s private parts and his fingers. In addition, evidence
9 showing Defendant’s left index finger spreading A.S.’s vulva from the inside was
10 sufficient for the jury to find penetration of the vagina. Consequently, we conclude
11 there was sufficient evidence to support the CSPM conviction charged in Count II.
12 Shackles
13 {20} Defendant was apparently shackled during trial, and he argues on appeal that,
14 although defense counsel did not object to the use of shackles, the jury was aware of
15 them because of the noise they made when he moved. However, Defendant points to
16 nowhere in the audio record where any noise is detectable during either of the two
17 days of his trial. Matters not of record cannot be reviewed on appeal. See State v.
18 Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984). Moreover, Defendant’s reply
19 brief does not respond to the State’s argument that no noise was detectable and,
20 further, that the district court “actively guarded” against having the jury hear or see
12 1 the restraints by excusing the jury both prior to Defendant taking the stand and after
2 he was finished testifying. Defendant’s argument on this issue fails. To the extent
3 this claim relies on evidence outside the record on appeal, Defendant may raise it in
4 a habeas appeal.
5 Halloween Photographs and Evidence of Unrelated Charges
6 {21} Defendant next contends that the district court abused its discretion in
7 admitting photographs of Defendant’s daughter in a Halloween costume and that it
8 committed plain error in allowing the admission of evidence of unrelated charges
9 facing Defendant. Defendant offers these arguments pursuant to State v. Franklin, 78
10 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 660, 712
11 P.2d 1, 6 (Ct. App. 1985), which require appellate counsel to advance a defendant’s
12 arguments even if the merits of the argument are questionable.
13 {22} A district court’s evidentiary rulings are reviewed for an abuse of discretion.
14 State v. Ervin, 2008-NMCA-016, ¶ 9, 143 N.M. 493, 177 P.3d 1067. When there is
15 no objection to the admission of evidence, this Court reviews the issue for plain error.
16 State v. Torres, 2005-NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877. “The plain-error
17 rule, however, applies only if the alleged error affected the substantial rights of the
18 accused.” State v. Contreras, 120 N.M. 486, 492, 903 P.2d 228, 234 (1995), limited
19 on other grounds as recognized by State v. Rackley, 2000-NMCA-027, ¶ 25, 128 N.M.
20 761, 998 P.2d 1212.
13 1 {23} We begin with Defendant’s argument that the district court abused its discretion
2 in admitting Halloween photographs of his daughter on the basis that the evidence was
3 not relevant under Rule 11-401 NMRA. Specifically, Defendant argues that the
4 photos were not sexual in nature, were not photographs of the alleged victim, and
5 were not necessary for the State to establish that he had access to his mother’s camera.
6 Rule 11-401 provides that relevant evidence means evidence having any tendency to
7 make the existence of any fact that is of consequence to the determination of the
8 action more probable or less probable than it would be without the evidence. “[A]ny
9 doubt whether the evidence is relevant should be resolved in favor of admissibility.”
10 Flores, 2010-NMSC-002, ¶ 27 (internal quotation marks and citation omitted).
11 {24} At trial, the State offered five exhibits depicting Defendant’s daughter in a
12 Halloween costume. Edie Hicks testified that photographs were taken by Defendant
13 on October 31, 2009. The Halloween photographs were taken by the same camera
14 that took the videos and photographs forming the basis of Count II and were
15 transferred to the San Disk memory device on the same date and time as the
16 photographs at issue in this case. We agree with the State that the photographs were
17 relevant because they showed that the date on the camera and, therefore, the dates of
18 the videos and remaining photographs were correct. Further, the fact that photographs
19 of Defendant’s daughter were on the camera tended to prove that the videos and
20 remaining photographs on the San Disk also belonged to him. Defendant’s claim that
14 1 admitting the Halloween photographs was unnecessary is insufficient to overcome the
2 district court’s broad discretion regarding the admission or exclusion of evidence. See
3 State v. Stampley, 1999-NMSC-027, ¶ 37, 127 N.M. 426, 982 P.2d 477.
4 {25} Defendant also contends that admission of the photographs was prejudicial
5 because he was then “forced to rebut the evidence by setting out that he was
6 incarcerated at the time the Halloween pictures were taken.” Defendant’s testimony
7 resulted in the State admitting a copy of a bench warrant establishing that he was not
8 arrested on those unrelated charges until after the Halloween pictures were taken. He
9 argues that admitting the warrant was plain error because “it clearly referred to
10 unrelated criminal conduct.” We disagree. While it is undisputed that the warrant
11 referred to unrelated criminal conduct, the State proffered that exhibit to rebut
12 Defendant’s testimony that he was incarcerated on October 31, 2009, and thus that he
13 could not have taken the Halloween photographs of his daughter. We conclude that
14 the purpose of the bench warrant was not to establish a propensity for criminal
15 behavior under Rule 11-404(B) NMRA but to establish that, despite Defendant’s
16 testimony, he could have taken the Halloween photographs. Accordingly, the district
17 court did not commit plain error by allowing admission of the bench warrant.
18 Prosecutor’s Statements
19 {26} In his final issue on appeal, Defendant claims that the prosecutor’s prejudicial
20 statements require reversal. Defendant also advances this argument pursuant to
15 1 Franklin, 78 N.M. at 129, 428 P.2d at 984, and Boyer, 103 N.M. at 658-60, 715 P.2d
2 at 4-6. Because defense counsel did not object to most of these statements, we review
3 for fundamental error. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994
4 P.2d 728 (noting that when the district court had no opportunity to rule on a claimed
5 error because the defendant did not object in a timely manner, we review the claim on
6 appeal for fundamental error).
7 {27} Defendant sets forth three instances in which he alleges that misconduct
8 occurred. In the first, during his testimony, Defendant described a facial hair style he
9 had as a “devil’s peak,” and the prosecutor interjected that such a name was
10 “appropriate.” The district court immediately admonished the prosecutor and told him
11 “no comments.” “Prosecutorial misconduct rises to the level of fundamental error
12 when it is ‘so egregious’ and ‘had such a persuasive and prejudicial effect on the
13 jury’s verdict that the defendant was deprived of a fair trial.’” Id. (quoting State v.
14 Duffy, 1998-NMSC-014, ¶¶ 46-47, 126 N.M. 132, 967 P.2d 807). Although ill-
15 advised, we cannot say that this comment alone constituted fundamental error
16 requiring a mistrial. Defendant’s next allegation of misconduct involve three leading
17 questions that the prosecutor asked him on cross-examination. Defense counsel
18 objected to the last question on the basis that the question was asked and answered,
19 and the district court sustained the objection. Here, other than to say that “clear
20 misconduct occurred,” Defendant fails to demonstrate that the three leading questions,
16 1 one of which Defendant’s objection to was sustained, rise to the level of
2 compromising Defendant’s right to a fair trial. See State v. Rojo, 1999-NMSC-001,
3 ¶ 55, 126 N.M. 438, 971 P.2d 829.
4 {28} Defendant also argues that the prosecutor’s references to Defendant’s unrelated
5 charges rise to a level of fundamental error. However, as the State points out,
6 Defendant’s claim that the prosecutor referenced “unrelated charges and/or other cases
7 in opening and closing statements” is not supported by the record. Further, because
8 we have already concluded that the admission of the warrant for the unrelated charges
9 did not result in reversible error, the prosecutor’s references to those charges in
10 opening and closing statements—even if made—similarly do not rise to such a level.
11 CONCLUSION
12 {29} For the reasons set forth above, we reverse Defendant’s conviction for CSPM
13 in Count II. We affirm Defendant’s conviction for CSPM in Count I.
14 {30} IT IS SO ORDERED.
15 __________________________________ 16 LINDA M. VANZI, Judge
17 WE CONCUR:
18 _________________________________ 19 JAMES J. WECHSLER, Judge
17 1 _________________________________ 2 CYNTHIA A. FRY, Judge