1998 -NMCA- 40, State v. Baldonado

• Decision Date: 05 February 1998
• Docket Number: No. 16748,16748
• Citation: 124 N.M. 745,955 P.2d 214,1998 NMCA 40
• Parties: , 1998 -NMCA- 40 STATE of New Mexico, Plaintiff-Appellee, v. Larry BALDONADO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 214

955 P.2d 214

124 N.M. 745, 1998 -NMCA- 40

STATE of New Mexico, Plaintiff-Appellee, v. Larry BALDONADO, Defendant-Appellant.

No. 16748.

Court of Appeals of New Mexico.

Feb. 5, 1998.

[124 N.M. 747] Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

William J. Friedman, Santa Fe, for Defendant-Appellant.

OPINION

BUSTAMANTE, Judge.

¶1 This child criminal sexual contact case presents difficult questions involving the proper balance to be struck between the due process imperative to provide reasonable notice of charges against a criminal defendant, and the need to allow the State reasonable leeway in prosecuting crimes committed against children of tender years. The issue is presented most clearly where, as here, the State encounters difficulty specifying when the wrongful conduct occurred, and in response resorts to a lengthy charging period in the indictment. Here the charging period was two years. Given the sad and disturbing frequency with which the courts address child sexual abuse allegations, the issue is one of "evident societal significance." People v. Jones, 51 Cal.3d 294, 270 Cal.Rptr. 611, 613, 792 P.2d 643, 645 (1990). That same frequency assures that we do not write on an entirely clean slate. See State v. Altgilbers, 109 N.M. 453, 786 P.2d 680 (Ct.App.1989).

¶2 On the record before us we are not convinced that the State fulfilled its duty to provide adequate specification of the times of the alleged offenses. We remand to the district court for a hearing on (1) whether the State could reasonably have provided greater specificity of the times of the alleged offenses and (2) if so, whether the State's failure in this regard prejudiced Defendant. If the answer to both questions is yes, Defendant's convictions must be reversed, and Defendant can be retried only after the State responds adequately to Defendant's Motion for a Bill of Particulars.

PROCEEDINGS IN THE DISTRICT COURT

¶3 On January 5, 1994, Defendant Larry Baldonado was charged in a two-count indictment with criminal sexual contact (CSC) of a minor under thirteen years of age, contrary to NMSA 1978, Section 30-9-13(A) (1991), a third degree felony. Count one charged Defendant with touching or applying force to the victim's intimate parts, while count two charged Defendant with causing the victim to touch his intimate parts. The victim identified in the indictment was Defendant's niece.

¶4 The indictment stated that the crimes occurred "[o]n or between October 1, 1990 and October 1, 1992." In accordance with Rule 5-501 NMRA 1998, Defendant was provided with full discovery, including the grand jury tapes in his case. Defendant did not complain to the district court, and does not complain here, that the State did not comply with its discovery obligations. Instead, despite full discovery, Defendant filed a "Motion for Bill of Particulars" (Motion) requesting an order requiring the State to disclose the "approximate time that the alleged criminal acts charged in the indictment occurred." In support of his Motion, Defendant asserted that the discovery materials and grand jury tapes had not provided any information as to the approximate date of the offense in that "the statement by the alleged victim, as well as the other witnesses for the State are contradictory in nature concerning the date of the alleged offense as being any time frame approximate [sic] three years ago and as recently as September, 1993."

¶5 Apparently in response to the victim's grand jury testimony that the offense occurred at her grandmother's house, and that Defendant was residing there at the time, Defendant asserted in the Motion that he had not lived at his mother's house for several years and that he intended to provide an alibi defense once he was given the "approximate dates" the offense was alleged to have occurred.

¶6 At the hearing on the Motion, Defendant argued generally that the two-year time frame was simply too broad to provide reasonable notice of the charges against him, and that it made it difficult, if not impossible to prepare an alibi defense. Defendant again asserted that he had "resided for the most part out of town for the last four years."

¶7 Defendant also alerted the court to a problem raised by testimony which provided the only evidence of a specific time frame potentially to be found in the discovery material. This problem related to a bruise found on the victim by her grandmother. The discovery materials indicated the victim first attributed the bruise to a kick from a school mate. However, when she told her parents about Defendant's acts, she stated that the bruise had not been caused by a kick but rather by Defendant. In contrast, the victim did not mention the bruise at all in an interview with a Health and Human Services Department social worker conducted a few days after the initial disclosure, as part of the investigation of the allegation. Nor did she mention the bruise in her grand jury testimony.

¶8 There was evidence from the victim's mother that the bruise had appeared earlier in the same school year--1993--when the allegation of abuse was first made. This would place the bruise incident in August or September 1993. There was other evidence that would place the discovery of the bruise at a year prior to the victim's allegations of abuse. At the hearing on his Motion, Defendant expressed a concern that the bruise incident could be used to expand the already broad time frame, or could be used as evidence of abuse occurring during the two-year time period of the indictment, thus making the defense a guessing game. If the bruise occurred in the fall of 1993, Defendant wanted to exclude its mention at trial and he wanted to prevent a motion to expand the indictment to cover that time frame.

¶9 Relying on Altgilbers, 109 N.M. at 467, 786 P.2d at 694, the State responded that it was not required to provide any more information as to time frames than that contained in the indictment. The prosecutor explained that the two-year time frame had been chosen because the victim had stated that the incident--or incidents--had occurred when she was five or six years old and the victim's birthday was October 1, 1985. The State characterized the time span as "huge" but asserted that the victim could not provide more specificity. She argued that, under Altgilbers, 109 N.M. at 467, 786 P.2d at 694, "[n]otice need be only specific enough to enable the accused to prepare his defense and to protect against double jeopardy." The State summarized its position by saying it was not required to give any more than what it had in its files. The State agreed that it would not be able to pursue any other claims against the Defendant for this two-year period, thus obviating Defendant's double-jeopardy concerns. As a result, Defendant does not raise any double-jeopardy issues on appeal.

¶10 The trial court took the matter under advisement and eventually denied Defendant's Motion by written order entered on the second, and concluding, day of the trial.

¶11 At trial, the State's witnesses included the victim, her mother, and father. The child testified that Defendant touched her twice, and had her touch him twice, at some time when she was in kindergarten or the first grade. She was not more specific than that, though she did deny anything happened when she was in the second grade. She further testified that the first time anything happened she and Defendant were in her grandmother's living room and her grandmother was outside. Another time it happened when Defendant was baby-sitting her. The child did not provide any specific time markers for the touching. On cross-examination, and redirect examination, the child stated that the bruise on her "private parts" had been caused by Defendant even though when her grandmother first saw it, she said it had been caused by a school mate kicking her. She could not recall when the bruise occurred, though she denied it was in the second grade. During her interview with the social worker from the Health and Human Services Department, which was played during the trial, the child denied that Defendant ever hurt her.

¶12 The victim's father testified primarily about the circumstances surrounding his daughter's initial revelation to him about Defendant's conduct. In addition, he confirmed that the child attributed the bruise to Defendant. Father was unsure about the timing of the bruise. While at trial he felt it had occurred while victim was in the second grade, in his first interview with the police in December 1993 he indicated it could have happened as much as a year prior to the interview. Finally, Father testified he thought Defendant had lived with his mother for some indefinite part of the time between October 1990 and October 1992.

¶13 The child's mother testified that at some undefined time during the two-year charging period, Defendant lived with his mother in Las Cruces, though she was personally unaware of any time when Defendant was at the home alone with the victim. The mother testified that the bruise occurred when victim was in the first grade. Mother related her conversation with the child's grandmother about the bruise and her visit with the child's teacher and the school nurse about the incident. Mother's testimony was murky about the exact date of her visit to school, but she was clear it was during the first grade because she spoke with Mrs. Ballard, the child's first grade teacher.

¶14 Mother's testimony at trial concerning the timing of the bruise was different from her statement to the investigating police officers made a few days after the initial disclosure. When speaking to the police officer, Mother placed the bruise as occurring in the fall of 1993. The investigating officer testified that she was particularly concerned to learn about the bruise because it was the only indication available of a specific time for the...