782 P.2d 385 (N.M.App. 1989), 10972, State v. Swafford

Docket Nº:10972.
Citation:782 P.2d 385, 109 N.M. 132, 1989 -NMCA- 069
Opinion Judge:[9] Alarid
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Ron SWAFFORD, Defendant-Appellant.
Attorney:Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, N.M., for plaintiff-appellee., Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, N.M., for defendant-appellant., OPINION [7] HAL STRATTON, Attorney General, MARGARET McLEAN, Ass't Atto...
Judge Panel:DONNELLY and APODACA, JJ., concur.
Case Date:August 15, 1989
Court:Court of Appeals of New Mexico

Page 385

782 P.2d 385 (N.M.App. 1989)

109 N.M. 132, 1989 -NMCA- 069

STATE of New Mexico, Plaintiff-Appellee,


Ron SWAFFORD, Defendant-Appellant.

No. 10972.

Court of Appeals of New Mexico.

August 15, 1989

[109 N.M. 132] Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, N.M., for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, N.M., for defendant-appellant.

Page 386

[109 N.M. 133] OPINION

ALARID, Judge.

Defendant appeals from his convictions for criminal sexual penetration in the third degree, incest, assault with intent to commit a violent felony (CSP in the third degree), and false imprisonment. On appeal defendant claims that the trial court erred in (1) suppressing evidence of the victim's prior sexual history; (2) refusing defendant's tendered instruction on simple assault; (3) denying defendant's motion for recusal; and (4) refusing to accept a plea and disposition agreement. Defendant also raises two additional issues pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), cert. denied 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 566 (1969). We find no basis for reversal in defendant's claims of error, and affirm the convictions and sentence.

I. Suppression of Evidence

By way of an in camera hearing, defendant sought to introduce evidence of a past sexual encounter of victim and a third party during which victim allegedly affixed the ropes found on the bed to restrain the third party in the course of consensual sexual activity. The trial court ruled that any mention of the origin of the ropes would not be allowed, finding that such disclosure "would advance no legitimate claim or defense available to the Defendant, unnecessarily confuse the jury, inject a false issue into the case, unreasonably humiliate and embarrass [victim], and run directly counter to the policies sought to be furthered by [NMSA 1978, Section 30-9-16 and SCRA 1986, 11-413]." The trial court expressly concluded that the proffered evidence was not relevant to any material issue in this case; and, even if relevant, such relevance was marginal at best and any probative value it may have was outweighed by its prejudicial impact.

Defendant argues the trial court's suppression of the evidence and denial of his motion to elicit evidence of the victim's past sexual conduct pursuant to Evidence Rule 11-413 deprived him of due process, a fair trial, and the right to confront witnesses against him. He contends the proffered evidence was material, relevant, and that its probative value outweighed any prejudice to victim. Defendant submits that because he was not allowed to tell the jury that victim had affixed the ropes to the bed prior to the incident at issue and to elicit evidence of the victim's prior sexual conduct, then the jury was left with the "damaging misconception" that defendant had placed the ropes on the bed, and "is therefore a pervert" "who had prepared a 'bondage bed' in his own home[.]" Defendant claims that "the [proffered] evidence was necessary to dispel a damaging image of defendant left by silence on the issue." He submits the error was not harmless and requests a new trial at which he be permitted to "explain [the] damaging evidence."

We note that defendant testified at trial that he was interested in bondage sex; he also said he did not keep his interest a secret, and that other people did know about it. It seems that if, as defendant suggests, the jury was inclined to view defendant as a "pervert" based on the "unexplained" presence of the ropes found by police during the investigation, then the jury would likely have had the same "damaging image" of defendant based on his own trial testimony. Furthermore, because the critical issues at trial were whether defendant intentionally and forcibly restrained and criminally sexually penetrated victim, defendant's half-sister, against her will, we find no abuse of discretion in the trial court's determination that evidence concerning the origin of the ropes was not relevant, and even if marginally relevant, its prejudicial impact outweighed any probative value. See State v. Boeglin, 105 N.M. 247, 731 P.2d 943 (1987).

In determining whether the trial court abused its discretion in excluding evidence, an appellate court may consider the probative value of the item of evidence. See State v. Schifani, 92 N.M. 127, 584 P.2d 174 (Ct.App.1978). Defendant's proffered evidence concerning the origin of the ropes was collateral, at best, to the determination of whether defendant used the ropes to forcibly restrain victim and carry out the

Page 387

[109 N.M. 134] events described by her. And, if defendant had been allowed to assert that victim affixed the ropes to the bed on a prior occasion of consensual activity with another man, then, as defendant phrases it, the jury may have thought of victim as a "pervert" who had prepared a "bondage bed."

"It is not the province of the jury to pass moral judgment on the victim, and the court should remove the temptation to do so wherever possible." State v. Romero, 94 N.M. 22, 26, 606 P.2d 1116, 1120 (Ct.App.1980). Because defendant consistently has denied tying victim to the bed and denied having intercourse with her, victim's past sexual conduct indicates nothing concerning any defense offered by defendant. See generally State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct.App.1978) (past sexual conduct of victim irrelevant to defendant's defense that victim consented). We believe the proffered evidence had no probative value with respect to...

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