State v. Ortiz-Burciaga, 19591.

• Decision Date: 10 September 1999
• Docket Number: No. 19591.,19591.
• Citation: 128 N.M. 382,993 P.2d 96
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Pedro ORTIZ-BURCIAGA, Defendant-Appellant.

993 P.2d 96

128 N.M. 382

STATE of New Mexico, Plaintiff-Appellee, v. Pedro ORTIZ-BURCIAGA, Defendant-Appellant.

No. 19591.

Court of Appeals of New Mexico.

September 10, 1999.

Certiorari Denied November 15, 1999.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Appellee.

Robert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, for Appellant.

Certiorari Denied, No. 26,004, November 15, 1999.

OPINION

APODACA, Judge.

{1} Defendant was convicted by a jury of criminal sexual contact of a minor in violation of NMSA 1978, § 30-9-13(A)(1) (1991), and criminal sexual penetration of a minor in violation of NMSA 1978, § 30-9-11(C) (1995). He raises several issues on appeal. We consider two of those issues, combined, dispositive of this appeal—whether (1) a judge who was not presiding at trial but was a spectator improperly influenced the jury by hugging the victim's grandmother in the jury's presence, and (2) the trial court deprived Defendant of his right to present a witness on his own behalf. Without deciding whether either of those two issues, standing alone, gave rise to reversible error, we determine that, together, they formed the basis for cumulative error requiring reversal. Because Defendant would be entitled to a dismissal of the charges on remand if the evidence adduced at trial was insufficient to support his convictions, we must address the sufficiency-of-the-evidence issue raised by Defendant. See State v. Benavidez, 1999-NMCA-053, ¶ 2, 127 N.M. 189, 979 P.2d 234, cert. granted, 127 N.M. 391, 981 P.2d 1209 (1999) (providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction). For the same reason, we must address the speedy trial issue. In that regard, we conclude that sufficient evidence supported Defendant's convictions and that Defendant's right to a speedy trial was not violated. Because of our disposition, we need not reach Defendant's other issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Defendant was charged with five counts of criminal sexual penetration of a minor under thirteen years old. In preparation for trial, the parties participated in a videotaped deposition of the victim. Former Judge Benjamin S. Eastburn presided at the videotape deposition, although he did not preside at trial. During portions of the deposition, the victim's grandmother sat with her while she was questioned. Toward the end of the questioning, the victim became distraught and sought comfort in her grandmother's lap. The State played the unedited videotape deposition in its case in chief at trial. Judge Eastburn, the victim, and the victim's grandmother were visible on the videotape. During portions of the deposition, Judge Eastburn was shown wearing his judicial robe.

{3} Later, during Defendant's trial, Judge Eastburn entered the courtroom as a spectator and he and the victim's grandmother hugged each other in the presence of the jury. Although neither Defendant nor his counsel was aware of this incident, it was, however, observed by some of the jurors.

{4} After the jury had returned its verdict, defense counsel learned of the incident and moved for a new trial. Upon questioning, five members of the jury panel reported that they had witnessed the hugging incident between Judge Eastburn and the child's grandmother. The trial court, however, denied Defendant's motion for a new trial stating: "It was obviously something we would all like to try to avoid. Unfortunately it happened, but I don't think it's really to the level where I should order a new trial, so I'm going to deny your motion for a new trial."

{5} At trial, the victim's videotaped deposition was introduced as evidence. She testified specifically about two contacts with Defendant, before Christmas of 1995 and the week before his arrest in March 1996. She also described other occurrences in less detail. The examining physician stated that some evidence indicated sexual abuse, but he was unable to conduct a complete examination. The victim's teacher testified concerning the victim's behavior before and after the alleged sexual abuse. She stated that the victim had symptoms of attention deficit disorder before the date of the first alleged contact but that the symptoms increased around that time. The State's expert psychological witness testified that the victim suffered from posttraumatic stress disorder and concluded that her behavior was a sign of sexual abuse.

{6} The victim's treating counselor also testified as an expert witness for the State. She stated that the victim's description of sexual intercourse was advanced for her age, which was another indicator of sexual abuse. The victim was in the second grade when the alleged incidents occurred. The counselor referred to the victim's fear of Defendant—"[S]he's constantly saying that Pedro's gonna hurt her. He's gonna come back and hurt her somehow. External cues, there were certain colors he wore in his garments that she was afraid of. She was afraid of the trailer it happened in."

{7} At the close of the State's case, Defendant moved for a directed verdict. The trial court granted the motion on three of the five counts in the indictment. Defendant later called his sister-in-law, Jo Ortiz, as a witness, who testified about her interactions with the victim and the victim's mother. The sister-in-law stated that the victim visited her after the alleged abuse and that she appeared normal. The witness then began to testify concerning the victim's sexual knowledge before the alleged abuse, but the State objected on hearsay grounds. A bench conference followed, and defense counsel proffered that the sister-in-law would testify about her conversation with the victim in which the victim described sexual intercourse in graphic detail. Defendant argued that the statement was not offered to prove the matter asserted—how people have intercourse. Defendant instead contended that he sought to use the testimony to show the victim's advanced understanding of sex before the dates of the alleged sexual abuse, thus rebutting the conclusion of the victim's treating counselor that the victim's advanced understanding of sex indicated sexual abuse. The trial court, however, sustained the State's hearsay objection and excluded the testimony.

{8} Defendant testified on his own behalf. He stated that he always treated the victim as a father would and denied her accusations.

II. DISCUSSION

A. Cumulative Error

{9} Defendant argues cumulative error arising from several of the issues raised on appeal, including Judge Eastburn's alleged improper influence on the jury and the exclusion of the testimony of Defendant's sister-in-law. See State v. Wilson, 109 N.M. 541, 545-47, 787 P.2d 821, 825-27 (1990) (reversing conviction under doctrine of cumulative error where, among other errors, judge's improper communications with juror prejudiced the defendant). "We must reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. U.S. Const. amend. VI, XIV; N.M. Const. art. II, § 14." State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984). We agree with Defendant that cumulative error from these irregularities together supports reversal here. We believe the prejudicial effect of these errors, taken together, had considerable impact on this case, which, as in other child abuse cases, turns on the jury's determination of the credibility of the defendant and the young victim.

1. Improper Influence on the Jury

{10} First, we determine that the hugging incident gave rise to a presumption of prejudice that the State failed to rebut. See State v. Doe, 101 N.M. 363, 367, 683 P.2d 45, 49 (Ct.App.1983) ("If the court finds an improper communication occurred, the State must rebut the presumption [of prejudice]."). The trial court questioned the jurors concerning this incident. See id. at 366, 683 P.2d at 48 (providing that the trial court may conduct an evidentiary hearing concerning the possibility of jury prejudice from extraneous material). Five of the jurors testified that they saw Judge Eastburn hug the victim's grandmother. Based on the hugging incident observed by the jurors, it is reasonable to conclude that they were influenced by it.

{11} Rule 11-606(B) NMRA 1999 outlines the limited instances in which a member of the jury may be called upon to testify as to the validity of a verdict. Specifically, Rule 11-606 provides, in part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

{12} The State argues on appeal that there was no improper communication and that the hugging did not improperly influence the jurors. We believe, however, that such a display could well have had an improper influence on the jury.

2. Exclusion of Testimony

{13} We next determine that the trial court erred by precluding Defendant's sister-in-law from testifying concerning the victim's advanced sexual knowledge existing before the date of the alleged abuse. At trial, the State objected to this testimony on hearsay grounds. Defendant asserted that he was not offering the testimony for the truth of the matter asserted. Rather, Defendant sought to refute the testimony of the State's expert witnesses implicating sexual abuse by Defendant by showing that the...