State v. Sharp

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 28,816 10 ROBERT SHARP, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Kenneth Martinez, District Judge

14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Karl Erich Martell, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION 23 ROBLES, Judge.

1 Robert Sharp (Defendant) appeals his conviction for three counts of criminal 2 sexual penetration in the first degree, contrary to NMSA 1978, Section 30-9-11(C)(1) 3 (2003) (as amended through 2009); five counts of criminal sexual contact of a minor 4 in the second degree, contrary to NMSA 1978, Section 30-9-13(A) (2003);one count 5 of criminal sexual contact of a minor in the third degree, contrary to NMSA 1978, 6 Section 30-9-13(C) (1987) (as amended through 2003); one count of bribery, contrary 7 to NMSA 1978, Section 30-24-3(A)(3) (1997); and one count of contributing to the 8 delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990). Defendant 9 assigns four claims of error that he avers should result in the reversal of his conviction 10 and a remand for a new trial. Defendant specifically alleges that (1) the district court 11 erred in suppressing evidence relating to allegations of the molestation of other 12 children; (2) the district court erred in allowing the amendment of the indictment 13 during trial; (3) the district court erred in allowing expert testimony despite the 14 expert’s late availability for pretrial interview; and (4) cumulative error in the trial 15 ultimately resulted in depravation of due process rights. We affirm. 16 I. BACKGROUND 17 At Defendant’s trial, the following facts were developed. In November 2004, 18 Faye and her daughter, A.M., moved in with Faye’s other daughter, Renae. At the 19 time, A.M. was eight years old, and Renae was thirty years old. Also living in the

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1 apartment was Renae’s child, E.J., who was seven years old at the time. Renae’s 2 boyfriend, Defendant, was not the father of E.J., but was the father of Renae’s child, 3 P.J., who was born shortly thereafter on March 15, 2005. 4 After living in the apartment for two months, Faye and A.M. moved to other 5 accommodations in Albuquerque. On May 8, 2005, Faye and A.M. left Albuquerque 6 for Arizona and, within the few days that followed, A.M. revealed to her mother that 7 Defendant had sexually abused her. Upon learning this, Faye took A.M. to Dr. 8 Virginia Rutz. Further facts will be developed as needed. 9 II. DISCUSSION 10 Defendant asserts that errors resulted in an unjust conviction and, accordingly, 11 encourages this Court to reverse his conviction and remand his case for a new trial. 12 We review each of his claims in turn. 13 A. Preclusion of Testimony 14 Before the trial, the State filed motions in limine to preclude evidence from 15 being introduced that A.M. had reported to Dr. Rutz that Defendant had also molested 16 E.J. and P.J. At the hearing on the motion, Defendant proffered that A.M. told Dr. 17 Rutz that the other two children had been molested by Defendant which, in turn, led 18 to an investigation by the Children, Youth and Families Department (CYFD). CYFD 19 concluded that the allegations of sexual abuse were unsubstantiated with regard to E.J.

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1 and P.J., but substantiated as to A.M. Defendant stated that he wished to call a CYFD 2 case worker to establish that the allegations of abuse as to the other two children were 3 unsubstantiated. Further, the defense intended to cross-examine Dr. Rutz during the 4 trial about A.M.’s statements regarding the abuse of the other children and intended 5 to cross-examine A.M. about the allegations. 6 The State, for its part, argued that CYFD’s conclusion regarding the allegations 7 concerning the other two children simply meant that there was not enough evidence 8 to substantiate the claims. The State noted that CYFD’s conclusions regarding 9 whether an allegation of abuse is “substantiated” or “unsubstantiated” is not the same 10 legal standard as applied in a court of law. Moreover, evidence of CYFD’s 11 conclusions that followed its investigation would also be a comment on the credibility 12 of witnesses, would invade the province of the jury, and should be excluded under 13 Rule 11-403 NMRA because the evidence would be misleading and would “require 14 a trial within a trial to determine the reason the CYFD investigator substantiated some 15 allegations and unsubstantiated other allegations.” Finally, the State noted that 16 information regarding the other two children was not relevant to whether A.M. had 17 been abused, and such testimony would open the door to examining why CYFD’s 18 conclusions as to A.M.’s abuse were substantiated.

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1 The district court, after reviewing the CYFD reports, concluded that the 2 allegations concerning the other two children were “false issues” because the jury was 3 charged only with determining whether Defendant committed the alleged offenses in 4 the indictment. The other allegations were not probative to the allegations in front of 5 the jury, were not “relevant to the problem” concerning the abuse of A.M., and would 6 create a “trial within a trial” that would “confuse the jury or deflect them from proper 7 inquiry.” The district court granted the State’s motion in limine and ordered counsel 8 to “not make mention of this either in questionings or statements before the jury and 9 advise your witnesses not to make mention of an allegation that [A.M.] had indicated 10 that [E.J.] and [P.J.] were all also victims of [D]efendant’s conduct.” At a bench 11 conference during the trial, while A.M. was being cross-examined, Defendant again 12 indicated that he wished to question A.M. regarding her allegations of the other two 13 children’s abuse. Specifically, Defendant clarified “for the record” that he wished to 14 ask whether A.M. had ever witnessed Defendant touch the other two children 15 inappropriately. Again, the district court effectively held that such issues were not 16 relevant to the proceedings and would open the door to CYFD’s findings. 17 On this issue as framed before the district court, we conclude that the court did 18 not abuse its discretion in excluding the evidence. The admission of such evidence 19 would be an invasion in the province of the jury to determine the credibility of

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1 witnesses. See State v. Duran, 2006-NMSC-035, ¶ 21, 140 N.M. 94, 140 P.3d 515 2 (“[C]redibility of witnesses is to be determined by the jury, not by the witnesses.”); 3 see also Rule 11-608(B) NMRA (“Specific instances of the conduct of a witness, for 4 the purpose of attacking or supporting the witness’s character for truthfulness . . . may 5 not be proved by extrinsic evidence. They may, however, in the discretion of the 6 court, if probative of truthfulness or untruthfulness, be inquired into on 7 cross-examination.”). In addition, CYFD’s investigation pertaining to other alleged 8 victims was a collateral matter that the district court had wide discretion to admit or 9 exclude. State v. Montoya, 95 N.M. 433, 437, 622 P.2d 1053, 1057 (Ct. App. 1981) 10 (“[O]pinion as to the victim’s character, offered to prove conduct in conformity with 11 character, went to a collateral matter [that] is within the trial court’s discretionary 12 control.”). 13 In his brief-in-chief, Defendant now makes the claim that the district court’s 14 decision to exclude evidence regarding allegations of the other two children’s abuse 15 violated his confrontation clause rights. Defendant avers this issue was preserved 16 “through the State’s motion in limine and argument thereon,” and the district court 17 should have been alerted to the claimed error by virtue of the fact that the evidence in 18 question was the focus of “extensive discussions.” Defendant circuitously concedes 19 that this issue was not specifically raised below. See Kilgore v. Fuji Heavy Indus.

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1 Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 1127 (“The primary purposes 2 for the preservation rule are[] (1) to specifically alert the district court to a claim of 3 error so that any mistake can be corrected at that time, (2) to allow the opposing party 4 a fair opportunity to respond to the claim of error and to show why the district court 5 should rule against that claim, and (3) to create a record sufficient to allow this Court 6 to make an informed decision regarding the contested issue.”); State v. Martinez, 7 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (stating that “merely mentioning 8 ‘due process’ was not sufficient to alert the judge to a Confrontation Clause claim and 9 did not fairly invoke a ruling”); cf. State v. Lopez, 2000-NMSC-003, ¶¶ 11-13, 128 10 N.M. 410, 993 P.2d 727 (filed 1999) (holding that where a defendant objected to the 11 admission of a recording of a witness’s statement because of the “inability to cross[- 12 ]examine or confront the witness,” the defendant’s objection based on the 13 confrontation clause was adequately preserved). We conclude that this issue was not 14 preserved for appellate review. In anticipation of such a conclusion, Defendant 15 argues, in the alternative, that this Court should review for fundamental error. See 16 State v. Dietrich, 2009-NMCA-031, ¶ 51, 145 N.M. 733, 204 P.3d 748, cert. denied, 17 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29. Generally, “we review a trial 18 court’s admission of evidence under an exception to the hearsay rule only for an abuse 19 of discretion.” State v. Torres, 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267,

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1 overruled on other grounds by State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 2 309, 98 P.3d 699. Likewise, we “review the admission of evidence under an abuse 3 of discretion standard and will not reverse in the absence of a clear abuse.” See 4 Sarracino, 1998-NMSC-022, ¶ 20. “When a defendant alerts the trial court to a 5 confrontation issue with a proper objection, he or she raises a question of law” that, 6 upon appeal, requires a de novo standard of review. Lopez, 2000-NMSC-003, ¶ 10. 7 However, after concluding the issue was not preserved, this Court will not reverse 8 absent a showing of fundamental error. Fundamental error includes both “cases with 9 defendants who are indisputably innocent, and cases in which a mistake in the process 10 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the 11 accused.” State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633. The 12 record before us does not suggest Defendant’s “indisputable innocence,” so we, 13 therefore, review with an eye toward whether a mistake in the process made his 14 conviction fundamentally unfair. Id. ¶ 14. 15 “The Confrontation Clause of the Sixth Amendment is made applicable to the 16 states through the Fourteenth Amendment.” Lopez, 2000-NMSC-003, ¶ 14 (citing 17 Pointer v. Texas, 380 U.S. 400, 406 (1965)). A primary interest afforded by the 18 confrontation clause is the right of cross-examination. See Dietrich, 19 2009-NMCA-031, ¶ 50. Confrontation clause issues should be examined on a

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1 case-by-case basis, taking into account a defendant’s right to cross-examine, as well 2 as the risk factors associated with admission of the evidence. See State v. Stephen F., 3 2008-NMSC-037, ¶ 6, 144 N.M. 360, 188 P.3d 84. In weighing whether evidence 4 must be admitted under the confrontation clause, the district court should balance the 5 probative value of the evidence sought to be introduced against the risk its admission 6 may entail. See State v. Smith, 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254. 7 The district court holds broad discretion to impose reasonable limits on 8 cross-examination to avoid harassment, prejudice, confusion of the issues, 9 endangering the witness, and the injection of cumulative or collateral evidence. Id. 10 New Mexico courts have previously recognized that a defendant’s right to 11 cross-examine and confront adverse witnesses is not absolute and must “accommodate 12 other legitimate interests in the criminal trial process.” Stephen F., 2008-NMSC-037, 13 ¶ 6 (internal quotation marks and citation omitted). “However, a court’s decision to 14 restrict a defendant’s ability to confront a witness, even when based on legitimate state 15 interests, calls into question the ultimate integrity of the fact-finding process and 16 requires that the competing interest be closely examined.” Id. (internal quotation 17 marks and citation omitted). 18 In the instant case, we acknowledge that Defendant sought to demonstrate to 19 the jury that the claims made by A.M. concerning the other two children could not be

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1 substantiated by CYFD’s investigation. The purpose was undoubtedly to attack her 2 credibility and lead the jury to question the veracity of all of A.M.’s allegations. We 3 note, however, that the district court was correct in observing that CYFD merely 4 concluded that the allegations concerning E.J. and P.J. were unsubstantiated, which 5 does not mean that they were or were not abused. Upon review, we determine that it 6 is not an unreasonable position for the district court to conclude that delving into such 7 issues would confuse the jury and would not be probative or relevant as to the issue 8 of A.M.’s abuse. See State v. Scott, 113 N.M. 525, 530, 828 P.2d 958, 963 (Ct. App. 9 1991) (concluding that, in the context of rape shield laws, “the trial court is afforded 10 discretion on the question of whether to admit or exclude evidence of the victim’s 11 prior allegations of rape”); Stephen F., 2008-NMSC-037, ¶ 6 (noting that when a state 12 law or rule of evidence conflicts with an accused’s right of confrontation, the rule or 13 law should not be applied “mechanistically,” but the accused’s right to confront and 14 cross-examine “is not absolute and may, in appropriate cases, bow to accommodate 15 other legitimate interests in the criminal trial process” (internal quotation marks and 16 citation omitted)). We therefore conclude that, on balance, no error occurred in this 17 particular case. 18 B. Amendment of the Indictment

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1 The indictment charged that the alleged offenses happened sometime over a 2 forty-five day period between April 1 and May 15, 2005. At the close of the State’s 3 case-in-chief, but before the defense’s case, the State moved to amend the indictment 4 to conform with the evidence presented at trial. Specifically, the State sought to 5 enlarge the charging period pursuant to Rule 5-204(C) NMRA, to include November 6 28, 2004—the date that Faye and A.M. moved to Albuquerque and into Renae’s 7 home—up to and including May 15, 2005. After hearing argument, the district court 8 allowed the amendment. The district court noted that Defendant was not relying on 9 an alibi defense and ruled that he was not prejudiced by the amendment. 10 “[A] court may at any time allow the indictment or information to be amended 11 in respect to any variance to conform to the evidence.” Rule 5-204(C). “A variance 12 is not fatal unless the accused cannot reasonably anticipate from the indictment what 13 the nature of the proof against him will be.” State v. Marquez, 1998-NMCA-010, 14 ¶ 20, 124 N.M. 409, 951 P.2d 1070 (filed 1997). A.M. testified that the four incidents 15 took place at some time between when she moved into Renae’s house and when she 16 left Albuquerque, although the general nature of her testimony tended to show that she 17 was not exactly sure of when the incidents occurred. Faye testified that (1) Defendant 18 and Renae were dating while A.M. was living in the house, (2) Defendant would come 19 by periodically, and (3) she was not sure if Defendant would spend the night. She

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1 likewise testified that she was not sure who took A.M. and E.J. to school, but she 2 thought there were times when Defendant would pick the children up and take them 3 home. Finally, Faye stated that after she and A.M. had moved out, there were 4 instances where A.M. would visit and spend the night. Defendant, for his part, 5 testified that during the period that Faye and A.M. were living in Renae’s house, he 6 visited the house one time. Further, he stated that after A.M. had moved out, he 7 started coming by more regularly. Likewise, Renae testified that Defendant (1) had 8 an apartment in Corrales, New Mexico; (2) came by one time while Faye and A.M. 9 were living there; and (3) started staying there after Faye and A.M. moved out. 10 Finally, Renae testified that A.M. visited Renae’s house two times with Faye after 11 A.M. and Faye had moved out. 12 Defendant’s defense rested on his assertion that he did not abuse A.M., and he 13 lacked the opportunity to commit the offenses. This argument does not amount to a 14 claim that Defendant was not on notice as to the nature of the charges against him, or 15 that his defense was compromised by the amendment.

16 No variance between those allegations of a complaint, indictment, 17 information or any supplemental pleading which state the particulars of 18 the offense, whether amended or not, and the evidence offered in support 19 thereof shall be grounds for the acquittal of the defendant unless such 20 variance prejudices substantial rights of the defendant.

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1 State v. Dombos, 2008-NMCA-035, ¶ 25, 143 N.M. 668, 180 P.3d 675 (internal 2 quotation marks and citation omitted). Defendant knew who the alleged victim of his 3 conduct was, and he was aware of the charges against him. See Marquez, 4 1998-NMCA-010, ¶ 21 (holding that where the defendant was aware of the charges, 5 the identity of the victim, and was not relying on an alibi, the defendant suffered no 6 prejudice in the amending of the indictment). 7 Defendant next claims that the amendment violated the rule of State v. 8 Baldonado, 1998-NMCA-040, 124 N.M. 745, 955 P.2d 214. In Baldonado, the 9 defendant was charged with criminal sexual contact of a minor. Id. ¶ 3. The 10 indictment stated that the crimes occurred during a two-year period. Id. ¶ 4. The 11 defendant filed a motion for bill of particulars, requesting more specificity for the 12 approximate time that the alleged criminal acts occurred. Id. This Court noted that 13 the defendant may or may not have had an alibi depending on the time of the alleged 14 offense. Id. ¶¶ 5-6. We concluded that no per se rule based on the time of the 15 charging period should be adopted, but instead district courts should look at each 16 situation on a case-by-case basis and conduct their analysis in light of nine, mutually 17 exclusive factors. Id. ¶¶ 23, 26-28, 30. However, we also stated that the analysis 18 depended upon “the nature of the challenge asserted by the defendant,” implying that 19 the district court’s factual development of the issue should be responsive to the

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1 defendant’s challenge. Id. ¶ 28. The instant case is distinct from Baldonado. There, 2 the issue concerned a charging period that lacked specificity and created difficulties 3 for the defense to establish whether an alibi defense existed. In contrast, the 4 immediate case concerns the expansion of a charging period in light of the evidence 5 presented within the context of the defense being on notice as to the specific charges 6 pending. Additionally, Defendant’s brief lacks development as to how the district 7 court’s ruling “violated the rule of . . . Baldonado” and, accordingly, without a visible 8 error, we address the issue no further. 9 C. The District Court’s Expert Testimony Evidentiary Ruling 10 On the first day of the trial, Defendant argued that Dr. Ornelas had only been 11 made available for an interview the Friday before and requested that her testimony be 12 excluded. The State chronicled its efforts to schedule multiple parties for pretrial 13 interviews and argued that Defendant was only available to conduct the pretrial 14 interview a week before. Additionally, Defendant argued that Rule 11-403 NMRA 15 should preclude the testimony of Dr. Ornelas because it would “bolster[] the testimony 16 of [A.M.].” The district court ruled that there was no discovery violation, and Dr. 17 Ornelas could provide opinion testimony. On appeal, Defendant acknowledges the 18 admission of evidence is within the purview of the district court’s discretion. See 19 State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. However,

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1 Defendant’s brief-in-chief states that “[Defendant] maintains the trial court abused its 2 discretion . . . and that a retrial is required.” This argument too lacks further 3 development, and we are unable to determine what Defendant’s claim of error is other 4 than the general complaint that Dr. Ornelas should not have testified. Without more 5 development, we are simply unable to address this issue. 6 D. Cumulative Error 7 Defendant argues that the net effect of the errors in this case warrants reversal 8 of his conviction. Cumulative error requires reversal when the errors that occurred 9 during the trial were “so prejudicial that the defendant was deprived of a fair trial.” 10 State v. Baca, 120 N.M. 383, 392, 902 P.2d 65, 74 (1995) (internal quotation marks 11 and citation omitted). “This doctrine is to be strictly applied[.]” State v. Woodward, 12 121 N.M. 1, 12, 908 P.2d 231, 242 (1995). However, “[t]he cumulative error doctrine 13 has no application if no errors were committed and if defendant received a fair trial.” 14 Scott, 113 N.M. at 530-31, 828 P.2d at 963-64. Because we have concluded that there 15 was no error, there is no basis for Defendant to claim that cumulative error requires 16 reversal. Id. 17 III. CONCLUSION 18 For the reasons discussed above, we affirm Defendant’s convictions. 19 IT IS SO ORDERED.

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1 _______________________________ 2 ROBERT E. ROBLES, Judge

3 WE CONCUR:

4 ____________________________ 5 CYNTHIA A. FRY, Chief Judge

6 ____________________________ 7 JAMES J. WECHSLER, Judge