1998 -NMCA- 75, State v. Huff

• Court: Court of Appeals of New Mexico
• Writing for the Court: FLORES
• Citation: 1998 -NMCA- 75, State v. Huff, 960 P.2d 342, 125 N.M. 254, 1998 NMCA 75 (N.M. App. 1998)
• Decision Date: 20 February 1998
• Docket Number: No. 17615,17615
• Parties: , 1998 -NMCA- 75 STATE of New Mexico, Plaintiff-Appellee, v. James HUFF, Defendant-Appellant.

Page 342

960 P.2d 342

125 N.M. 254, 1998 -NMCA- 75

STATE of New Mexico, Plaintiff-Appellee, v. James HUFF, Defendant-Appellant.

No. 17615.

Court of Appeals of New Mexico.

Feb. 20, 1998.

Certioraris Denied May 11, 1998

and May 13, 1998.

Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Anthony F. Avallone, Law Systems of Las Cruces, P.A., Las Cruces, for Defendant-Appellant.

OPINION

FLORES, Judge.

¶1 Defendant appeals his convictions on two counts of felony criminal sexual contact (CSC), contrary to NMSA 1978, § 30-9-12 (1993). On appeal, Defendant argues that his convictions should be reversed and the charges against him be dismissed because (1) the evidence of physical force is insufficient to sustain the convictions; (2) his convictions were obtained in a second trial that violated his right to be free from double jeopardy; and (3) he was not allowed to be present during certain ministerial stages of the jury impaneling process. Because we find these arguments to be without merit, we affirm his convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Defendant had been an acquaintance of Victim's family for approximately eleven or twelve years when he committed the two counts of CSC that are the subject of this appeal. Victim, a thirty-year-old woman at the time of the offenses, had the mental and intellectual capacity of a twelve-year-old. Prior to these offenses, Victim had been sexually abused by a family friend from the age of fourteen. It appears that this sexual abuse persisted over a considerable number of years. Victim never alleged that Defendant committed those prior acts of sexual abuse.

¶3 On October 18, 1994, Defendant met Victim at her place of employment and invited her to go for a drive. Victim agreed and, after stopping at her home briefly to change into casual clothing, the two drove to Radium Springs. While driving back, Defendant reached across the front seat of his pick-up truck and grabbed and squeezed Victim's breasts underneath her clothing. In order to prevent Defendant from touching her, Victim moved as far away from Defendant as possible in the truck, hit him with her elbow, and told him to stop because he was hurting her. In addition to grabbing her breasts, Defendant rubbed Victim's clothed vaginal area. Again, Victim slapped Defendant's hand and told him to stop. Defendant was extremely persistent in grabbing Victim's breasts under her clothes and in rubbing her vaginal area, despite her requesting that he stop, her pushing his hand away, her crying, and her moving as close to the passenger door as possible in order to get out of his reach.

¶4 When they returned from their trip, Victim did not ask Defendant into her home. However, Defendant followed Victim into the house and into her bedroom. Standing behind her in the bedroom, Defendant grabbed Victim's breasts under her clothing, squeezing them so hard that she was unable to breathe. Victim tried to get out of Defendant's grip, but was unable to do so because Defendant was holding her so tightly. Victim was so scared that her entire body shook and she had difficulty breathing. Victim told Defendant that she was unable to breathe and, eventually, Defendant released her because she was feeling dizzy.

¶5 Because of her dizziness, Victim sat on her bed. Defendant also sat on the bed. Defendant then proceeded to touch Victim in what she described as her "private spots." Under the guise of rubbing her stomach, where her ulcer was causing her pain, Defendant unzipped Victim's pants and began rubbing Victim's unclothed vagina. Victim told Defendant that the area he was touching was not the area that hurt. Victim asked Defendant to stop touching her there because "it was not right." In addition to asking him to stop touching her, Victim tried to move Defendant's hand away a number of times, but each time Defendant replaced his hand on her unclothed vagina. Victim got off her bed and left the room, crying and shaking. Victim testified that she did not want Defendant to touch her.

¶6 For four months following these incidents, Victim experienced nightmares and cried out in her sleep. Victim was depressed, did not want to go to work, and was fearful that these offenses would recur.

¶7 Defendant was charged with two counts of criminal sexual contact resulting in personal injury, a fourth degree felony. Prior to the first trial, the prosecutor, defense counsel, and Dr. Flores, the psychiatrist who would testify for the State, met to discuss the psychiatrist's testimony. At that time, Dr. Flores clarified that he diagnosed Victim with posttraumatic stress disorder (PTSD) based on a history of sexual abuse of Victim that began when she was fourteen. Dr. Flores also made clear that his diagnosis was not based on the events of October 18, 1994. Indeed, Victim had never even told Dr. Flores about the most recent events involving Defendant. Despite this knowledge regarding the basis of Dr. Flores' diagnosis, the prosecutor, at the first trial, asked Dr. Flores about Victim's PTSD without revealing Victim's unrelated history of sexual abuse. Defendant's first trial resulted in a mistrial because of the State's introduction of prejudicial expert testimony concerning diagnosis of Victim with PTSD.

¶8 After the first trial, Defendant moved to quash the second jury array and to dismiss the charges based on prosecutorial misconduct. The court denied the motion. Also, Defendant was not permitted to attend certain ministerial portions of the impaneling of the jury in the second trial. At the second trial, Defendant was convicted on both counts of CSC without the prejudicial expert testimony. Defendant appealed.

II. DISCUSSION

Sufficiency of the Evidence of Force

¶9 Criminal Sexual Contact "is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday." Section 30-9-12(A). Criminal Sexual Contact becomes a fourth degree felony when it is perpetrated "by the use of force or coercion that results in personal injury to the victim." Section 30-9-12(C)(1). Force is defined by statute as "the use of physical force or physical violence." NMSA 1978, § 30-9-10(A)(1) (1993). Defendant contends that in this case the evidence of force is insufficient to sustain his convictions for felony CSC. Defendant does not challenge the sufficiency of the evidence for any other element of CSC. In essence, Defendant argues that physical force is required to prove felony CSC, and that Victim's testimony alone demonstrates that Defendant did not use physical force.

¶10 We review sufficiency of the evidence claims "to determine whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt." State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992). In addition, we review the evidence in the light most favorable to the verdict, "resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988).

¶11 Applying this standard of review, we believe the jury could reasonably determine that Defendant used force. Further, based on Victim's testimony, a rational jury could have found that the State proved the force element of felony CSC beyond a reasonable doubt. In this regard, the use of physical force is clear under both counts: Defendant grabbed Victim's breasts and squeezed them. Both in the car and in the bedroom, Defendant's forceful grabbing of Victim's breasts caused her pain and discomfort. In the bedroom, Defendant squeezed Victim's breasts so tightly that she was unable to breathe, became dizzy, and was unable to extricate herself from his grip. Although Defendant offered conflicting testimony, the jury is entitled to disregard Defendant's version of the facts. See State v. Vigil, 87 N.M. 345, 350, 533 P.2d 578, 583 (1975).

¶12 We also note that the elements of CSC describe the quality of Defendant's actions, but do not require a particular quantum of force. See § 30-9-12. Moreover, neither the statute nor the Uniform Jury Instruction for CSC, see UJI 14-902 NMRA 1998, requires proof of Victim's action or inaction in the face of Defendant's conduct. "The issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent. Physical or verbal resistance of the victim is not an essential element" of CSC. Committee commentary, UJI 14-902.

Double Jeopardy

¶13 Defendant argues that he has been subjected to double jeopardy in violation of the federal and state constitutions. See U.S. Const. amend. V; N.M. Const. art. II, § 15. According to Defendant, his convictions cannot stand because he should not have been subjected to a second trial, even though he requested the mistrial. As a general rule, reprosecution is constitutionally permissible when a defendant obtains a mistrial upon his or her own motion. See State v. Breit, 1996-NMSC-067, p 14, 122 N.M. 655, 930 P.2d 792. "However, when a defendant's mistrial motion ... is necessitated by prosecutorial misconduct, reprosecution may be barred." Id. Here, Defendant moved for and was granted a mistrial because of the introduction of unduly prejudicial expert testimony. The question on appeal is whether introduction of such prejudicial testimony constituted prosecutorial misconduct, so that Defendant should not have been subjected to a second trial on the same charges.

¶14 Our Supreme Court established a three-part test for determining whether retrial is barred when a defendant moves for a mistrial due to prosecutorial misconduct. See id. p 32. Under Breit, retrial is barred when (1) improper prosecutorial conduct is so unfairly prejudicial to the defendant that it cannot be cured by any means short of a mistrial; (2) the prosecutor knows or can be...