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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,574
10 DONALD WING,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Karen Townsend, District Judge
14 Gary K. King, Attorney General 15 Andrea Sassa, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 J.K. Theodosia Johnson, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 WECHSLER, Judge. 1 Defendant Donald Wing appeals from the district court’s judgment, sentence
2 and commitment to the New Mexico Department of Corrections. He was convicted
3 of numerous counts of criminal sexual penetration of a minor, criminal sexual contact
4 with a minor, sexual exploitation of children by manufacturing, sexual exploitation
5 of children by possession, and child solicitation by electronic communication. He
6 argues that (1) his trial counsel did not provide him effective assistance; (2) he was
7 entrapped into child solicitation by electronic communication device; (3) his
8 conviction of child solicitation by electronic communication device violates the
9 freedom of speech clause of the First Amendment to the United States Constitution;
10 (4) the State engaged in prosecutorial misconduct that violated his due process rights;
11 (5) the district court erred in allowing Dona Wing to testify and in admitting her
12 deposition testimony; (6) police officers violated his rights under the Fourth
13 Amendment to the United States Constitution and Article II, Section 10 of the New
14 Mexico Constitution by securing his residence before obtaining a search warrant; and
15 (7) the district court erred in admitting unauthenticated electronic evidence. We
16 affirm.
17 INEFFECTIVE ASSISTANCE OF COUNSEL
18 In order to establish a prima facie case of ineffective assistance of counsel, a
19 defendant has the burden of showing that (1) “counsel’s performance fell below that
2 1 of a reasonably competent attorney,” and (2) “that the deficient performance
2 prejudiced the defense.” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979
3 P.2d 729 (internal quotation marks and citation omitted). This standard requires the
4 defendant to demonstrate that the errors of counsel “were so serious as to deprive the
5 defendant of a fair trial” such that the results of the trial are not reliable. Strickland
6 v. Washington, 466 U.S. 668, 687 (1984). We review counsel’s performance in a
7 “highly deferential” manner; “counsel is strongly presumed to have rendered adequate
8 assistance and made all significant decisions in the exercise of reasonable professional
9 judgment.” Id. at 689-90. An appellate court “will not second guess the trial strategy
10 and tactics of the defense counsel.” State v. Gonzales, 113 N.M. 221, 230, 824 P.2d
11 1023, 1032 (1992).
12 Under this strict standard, Defendant has failed to demonstrate a prima facie
13 case of ineffectiveness of counsel in his argument to this Court. Although Defendant
14 states several ways in which he contends his counsel was deficient, he has not pointed
15 out the manner in which any of his claims of his counsel’s deficient performance
16 resulted in prejudice that altered the result of the trial. See Strickland, 466 U.S. at 696
17 (stating that “a court making the prejudice inquiry must ask if the defendant has met
18 the burden of showing that the decision reached would reasonably likely have been
19 different absent the errors”). As a result, Defendant has not shown prejudice to his
3 1 defense, in accordance to the second requirement of Strickland with regard to any of
2 his allegations. On this basis alone, we reject Defendant’s argument.
3 Moreover, Defendant has not demonstrated that counsel’s performance was
4 below that of a reasonably competent attorney on the record before us. We explain
5 these conclusions.
6 Defendant asserts that his counsel did not “invoke the rule” to bar the State’s
7 witnesses from listening to testimony on the first day of trial. However, Defendant
8 does not explain either why this decision constituted a deficient performance or how
9 it prejudiced his defense.
10 Defendant makes several arguments about his counsel’s closing argument. He
11 states that his counsel described him in a negative way, described Defendant’s acts in
12 a manner to help prove Defendant’s guilt, tacitly admitted Defendant’s guilt “by
13 crying and saying ‘[y]ou’re not judging his innocence, you’re judging the [S]tate’s
14 case.’” Defendant argues that counsel’s argument “rambled about Jesus and the
15 army” and “did more harm than good.” We have listened to the recording of the
16 closing argument and do not agree with Defendant that it violates that strict standard
17 set forth in Strickland. The case was a difficult one, and the State’s evidence was
18 strong. To the extent that counsel cried and referred to Jesus and the army, he could
19 have been attempting to appeal to the jury’s emotions to favor Defendant, whom he
4 1 characterized at times in a pathetic way. By asking the jury members what they would
2 think under the circumstances, he intended to show that by using common sense they
3 would conclude that Detective Frank Dart entrapped Defendant. “Bad tactics and
4 improvident strategy do not necessarily amount to ineffective assistance of counsel.”
5 State v. Orona, 97 N.M. 232, 234, 638 P.2d 1077, 1079 (1982). We cannot say that
6 counsel was ineffective because he chose the strategy he did.
7 Defendant also argues that the docketing statement filed on appeal describes
8 Defendant in a negative way. However, counsel’s statements in the docketing
9 statement did not affect the trial, and we do not consider them in determining whether
10 Defendant did not receive a fair trial because of ineffective assistance of counsel.
11 Defendant raises arguments related to the search of Defendant’s residence. He
12 argues that his counsel “tacitly admitted to being underprepared” because he did not
13 discover the police activities in searching Defendant’s residence until one week before
14 trial. He further argues that counsel renewed his motion to dismiss without citing any
15 case law. For neither of these arguments does Defendant state how he suffered
16 prejudice. He does not discuss the merits of the motions to suppress that were denied
17 by the court.
18 In connection with the motions to suppress, Defendant also argues that counsel
19 stated in his third motion to suppress that the police officers intentionally misled the
5 1 magistrate who issued the search warrant and then made inconsistent statements in his
2 docketing statement on appeal. However, as we have discussed, statements in the
3 docketing statement are not relevant to Defendant’s assertion that his counsel provided
4 ineffective assistance that resulted in Defendant’s convictions at trial.
5 Defendant further contends that counsel provided ineffective assistance of
6 counsel by failing to move to sever the child pornography charges from the criminal
7 sexual penetration charges. Although he asserts that “the presence of child
8 pornography was prejudicial,” he does not state the manner in which it affected the
9 trial. A claim of prejudice alone does not establish prejudice. See State v. Gilbert,
10 100 N.M. 392, 399, 671 P.2d 640, 647 (1983) (“[T]he mere claim of prejudice is
11 insufficient to establish it.”).
12 Defendant raises concern about counsel’s actions regarding the child
13 pornography charges, claiming that counsel did not seek clarification, did not know
14 “how to match up the images and the charges,” and subjected Defendant to potential
15 double jeopardy violations. Yet, Defendant does not explain the details of his concern
16 and fails to demonstrate how the actions he describes affected the trial.
17 Defendant additionally argues that counsel was ineffective at trial and at sentencing
18 by accepting Detective Jimmy Dearing as a computer expert, failing to request an
19 expert to help identify potential issues, failing to call Defendant or other witnesses as
6 1 part of the defense, failing to investigate mitigating circumstances, failing to present
2 pictures of Defendant showing his tattoos and scars, failing to object to prosecutorial
3 misconduct, and failing to introduce the polygraph examination of Betty Lewis.
4 However, Defendant does not discuss the manner in which his counsel fell below the
5 performance required of him or the manner in which the result of the trial would have
6 been different if counsel had performed differently.
7 Nor can we credit Defendant’s argument that cumulative error deprived him of
8 a fair trial. Defendant has not established a prima facie case of ineffective assistance
9 of counsel for any of the instances he has alleged. Our ruling does not foreclose
10 Defendant from filing a habeas corpus petition to pursue his claim of ineffective
11 assistance of counsel. See State v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33
12 P.3d 22 (noting preference of habeas corpus proceeding when record on appeal does
13 not establish prima facie case of ineffective assistance of counsel).
14 ENTRAPMENT
15 Defendant moved the district court to dismiss the charge of child solicitation
16 by electronic device on the basis that he was entrapped by the actions of Detective
17 Dart. The district court submitted the question to the jury by way of jury instruction.
18 On appeal, Defendant argues that the district court erred by not granting his motion
19 to dismiss as a matter of law.
7 1 A district court may recognize an entrapment defense as a due process violation
2 as a matter of law if police officers “either used unconscionable methods or advanced
3 illegitimate purposes in the course of a police investigation[.]” State v. Vallejos,
4 1997-NMSC-040, ¶ 43, 123 N.M. 739, 945 P.2d 957. In denying Defendant’s motion,
5 the district court concluded that Detective Dart’s posing as a twelve-year-old child
6 was not unconscionable, did not advance an illegitimate purpose, or was not otherwise
7 patently wrongful conduct. It based its conclusion on NMSA 1978, Section 30-37-
8 3.2(D) (2007), which states that “[i]n a prosecution for child solicitation by electronic
9 communication device, it is not a defense that the intended victim of the defendant
10 was a peace officer posing as a child under sixteen years of age.” Because Section 30-
11 37-3.2(D) expressly permits the type of police action that could be the foundation for
12 the district court’s dismissal as a matter of law, the district court did not err by
13 allowing the jury to determine the validity of the entrapment defense.
14 CONSTITUTIONALITY OF SECTION 30-37-3.2
15 Defendant argues that Section 30-37-3.2, establishing the charge of solicitation
16 by electronic communication device, is unconstitutional because it criminalizes the
17 constitutionally protected conduct of free speech. However, in order for this Court to
18 consider Defendant’s argument on appeal, Defendant must establish that he preserved
19 the argument in the district court in such a manner as to allow the district court to rule
8 1 on the merits of Defendant’s argument. See Rule 12-216(A) NMRA (“To preserve
2 a question for review it must appear that a ruling or decision by the district court was
3 fairly invoked[.]”). To this end, the Rules of Appellate Procedure require an appellant
4 to state the manner in which an issue on appeal was preserved. Rule 12-213(A)(4)
5 NMRA.
6 Defendant does not state in his brief in chief how this argument was raised in
7 the district court. However, we do know that it was raised in some fashion. The
8 district court stated in its nunc pro tunc order denying Defendant’s motion to dismiss
9 by reason of entrapment
10 Defendant’s passing argument that the statute criminalizing child 11 solicitation by electronic communication device is unconstitutional was 12 not well developed. Presuming legislation to be constitutional, . . . 13 Defendant’s motion to dismiss on that basis was also denied.
14 The preservation requirement is designed to alert the district court to a claim of
15 error so that it has the opportunity to correct mistakes and to provide the other party
16 the opportunity to present an opposing position. See State v. Gomez, 1997-NMSC-
17 006, ¶ 29, 122 N.M. 777, 932 P.2d 1. The district court’s statement indicates that
18 Defendant did not properly develop the argument to enable either the State to properly
19 respond or the court to properly rule. We conclude that Defendant did not properly
20 preserve it for appeal and decline to address it.
21 PROSECUTORIAL MISCONDUCT
9 1 Defendant argues that the prosecutor violated Defendant’s due process rights
2 by engaging in prosecutorial misconduct. He cites as examples of misconduct that (1)
3 the prosecutor threatened Lewis with prosecution if Defendant did not accept a plea
4 offer and (2) the prosecutor introduced the perjured testimony of Dona in her
5 deposition.
6 Defendant does not inform this Court on appeal how he preserved his argument
7 of prosecutorial misconduct in the district court. As a result, we review it on appeal
8 to determine whether there was fundamental error. See State v. Clements, 2009-
9 NMCA-085, ¶ 19, 146 N.M. 745, 215 P.3d 54 (“This Court will not search the record
10 to find whether an issue was preserved where [the d]efendant does not refer this Court
11 to appropriate transcript references.”); State v. Trujillo, 2002-NMSC-005, ¶ 52, 131
12 N.M. 709, 42 P.3d 814 (stating that an unpreserved claim of prosecutorial misconduct
13 is reviewed on appeal for fundamental error). “Prosecutorial misconduct rises to the
14 level of fundamental error when it is so egregious and had such a persuasive and
15 prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.”
16 Id. ¶ 52 (internal quotation marks and citation omitted).
17 As to Defendant’s first claim, any threat concerning a plea bargain did not
18 affect the jury verdict because Defendant did not enter a plea, and the case went to
19 trial. There was no fundamental error. With regard to Defendant’s second claim,
10 1 Defendant contends that Dona’s deposition testimony was perjured because she
2 testified that Defendant sexually abused her in the deposition when she did not do so
3 in a Safehouse interview. The Safehouse interview was not introduced at trial and is
4 not part of the record on appeal. As a consequence, this Court cannot determine
5 whether there was any inconsistency in Dona’s statements. Moreover, if there were
6 an inconsistency, Defendant had the ability to cross-examine to address credibility
7 issues. Because Defendant does not point to anything in the record from which this
8 Court could determine that there was prosecutorial misconduct, we are unable to
9 conclude that there was fundamental error.
10 DONA WING’S COMPETENCY TO TESTIFY
11 Defendant argues that the district court erred in determining that Dona, age
12 four, was competent to testify at trial. He further contends that Dona was pressured
13 to name Defendant as a perpetrator in her testimony because of her youth. A witness
14 is competent to testify if the witness has “a basic understanding of the difference
15 between telling the truth and lying, coupled with an awareness that lying is wrong and
16 may result in some sort of punishment.” State v. Hueglin, 2000-NMCA-106, ¶ 24,
17 130 N.M. 54, 16 P.3d 1113 (internal quotation marks and citation omitted). We
18 address the district court’s admission of evidence under an abuse of discretion
19 standard of review. State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995).
11 1 On the State’s motion, and despite Defendant’s objection, the district court
2 ordered an expert evaluation to determine Dona’s competency to testify and the
3 potential traumatic impact upon her if she testified. Subsequently, after Defendant
4 contended that Dona’s competency and potential trauma were not issues, the district
5 court arranged an interview of Dona to address the issues. The result was a
6 videotaped deposition in which counsel for the State and Defendant asked questions
7 of Dona. In the deposition, the district court judge asked Dona questions to ascertain
8 if she understood the difference between truth and lies and determined that Dona was
9 competent to testify. Dona identified herself in photographs with Defendant
10 indicating that Defendant had exploited her.
11 At a later hearing, the parties agreed that an edited version of the deposition
12 would be shown to the jury rather than Dona testifying before the jury. Defendant
13 then changed his position, moving that Dona be evaluated to determine her
14 competence to testify and the potential trauma of testifying. Defendant’s counsel
15 argued that Dona’s identification of the photographs was error, indicated that she
16 could not remember correctly, and demonstrated her incompetence. Defendant’s
17 counsel contended that Dona was traumatized during the deposition.
18 On appeal, Defendant contends that the district court erred in allowing the
19 deposition testimony because of Dona’s youth and because “Dona was pressured into
12 1 naming [Defendant] as the perpetrator and coached in her presentation.” As to Dona’s
2 youth, Defendant argues, citing State v. Manlove, 79 N.M. 189, 192, 441 P.2d 229,
3 232 (Ct. App. 1968), that the district court has the obligation to “determine from
4 inquiries the child’s capacities of observation, recollection and communication, and
5 also the child’s appreciation or consciousness of a duty to speak the truth.” The
6 district court asked Dona questions concerning her understanding of the difference
7 between truth and lies and found that Dona was competent to testify. Defendant does
8 not specify how the district court erred in its questioning or finding. We conclude that
9 it did not abuse its discretion in determining that Dona was competent to testify.
10 As to Defendant’s argument that Dona was pressured, Defendant states that
11 Dona’s mother was present at the deposition. However, Defendant does not indicate
12 how Dona’s mother’s presence pressured Dona or otherwise indicate how Dona
13 otherwise received pressure. As Defendant has not explained how the district court
14 abused its discretion, we cannot conclude that it did.
15 SEARCH WARRANT
16 After arresting Defendant, Detective Dart interviewed Defendant at the police
17 station. In the interview, Defendant stated that he had numerous images of nude
18 children and children performing sex acts with adults on his computer in his home.
19 Detective Dart applied for a search warrant to search Defendant’s computer system.
13 1 In his affidavit, Detective Dart stated the need for immediate seizure of the evidence
2 because it was “extremely vulnerable to tampering or to destruction through error,
3 electrical outages, and other causes” and could be “easily hidden, altered or
4 destroyed” by Defendant’s common law wife who resided at Defendant’s residence
5 or another third party. He therefore requested the “issuance of a Night Time Search
6 Warrant.” The search warrant authorizes a nighttime search because “evidence may
7 be destroyed or removed.” It was executed “around 11:30 p.m.”
8 On appeal, Defendant contends that his rights under the Fourth Amendment to
9 the United States Constitution and Article II, Section 10 of the New Mexico
10 Constitution were violated by the magistrate’s issuance of a warrant to search his
11 residence during nighttime hours. He argues that because the police had secured the
12 residence while they were seeking the issuance of the warrant, there was no
13 justification for the nighttime warrant as there was no likelihood that the evidence
14 would be removed or destroyed. We review de novo to determine whether there was
15 reasonable cause to support a nighttime search. Rule 6-208(B) NMRA; State v.
16 Garcia, 2002-NMCA-050, ¶ 7, 132 N.M. 180, 45 P.3d 900.
17 This Court addressed a similar issue in Garcia. In that case, the defendant also
18 argued that a nighttime search was not necessary because the police had the scene
19 secured and under surveillance. Garcia, 2002-NMCA-050, ¶ 18. We discussed that
14 1 a nighttime search was generally justified “based upon a justified apprehension that
2 the evidence within the house would be removed, hidden or destroyed before
3 morning.” Id. ¶ 16 (internal quotation marks and citation omitted). We held that,
4 even though the scene may have been secured, it was not unreasonable to issue a
5 nighttime warrant because “circumstances, foreseen or unforeseen, could have
6 required the police to abandon surveillance before daylight arrived.” Id. ¶ 18
7 Similarly, in this case, it was not unreasonable for a nighttime warrant to have
8 been issued. Not only could have the circumstances of the surveillance changed, but,
9 as the affidavit states, electrical outages or disturbances or third parties could
10 conceivably affect the evidence. The district court did not err in upholding the
11 nighttime search.
12 ELECTRONIC EVIDENCE
13 Lastly, Defendant argues that the district court erred in admitting the State’s
14 electronic evidence removed from Defendant’s computer because it was not
15 authenticated. Defendant does not state in his brief in chief the manner in which he
16 preserved this argument for appeal. See Rule 12-213(A)(4) (requiring an appellant to
17 state the manner in which an issue for appeal was preserved). We will not search the
18 record for support of Defendant’s contention. State v. Martin, 90 N.M. 524, 527, 565
19 P.2d 1041, 1044 (Ct. App. 1977) (stating that, when the appellant has failed to state
15 1 appropriate transcript reference to basis for preservation, appellate court will not
2 search the record to determine if issue is preserved), overruled in part on other
3 grounds by State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994). Thus,
4 we will not address the issue on appeal.
5 CONCLUSION
6 We affirm the district court’s judgment, sentence and commitment to the New
7 Mexico Department of Corrections.
8 IT IS SO ORDERED.
9 ________________________________ 10 JAMES J. WECHSLER, Judge
11 WE CONCUR:
12 _____________________________ 13 CYNTHIA A. FRY, Chief Judge
14 _____________________________ 15 LINDA M. VANZI, Judge