State v. Aguilar
| Decision Date | 09 September 2013 |
| Docket Number | No. 31,957,31,957 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. ARNOLDO AGUILAR, Defendant-Appellant, |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
for Appellee
Bennett J. Baur, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant appeals his conviction for one count of second degree criminal sexual penetration of a minor between the ages of thirteen and eighteen (CSPM). See NMSA 1978, § 30-9-11(E)(1) (2009). He contends that the district court erred in excluding any questioning or evidence about the victim's prior sexual activities that would tend to establish the victim's sexual orientation. He also contends that there was insufficient evidence to support his conviction and that the district court erred in refusing to grant a mistrial due to improper communications between the district court staff and the jury.
{2} We disagree with Defendant and hold that any evidence relating to the victim's prior sexual activities or his sexual orientation was properly excluded under NMSA 1978, § 30-9-16(A) (1993), the "rape shield statute," and the corresponding evidentiary rule, Rule 11-413 NMRA (), and that the exclusion did not violate Defendant's confrontation and due process rights. We also hold that there was sufficient evidence to support Defendant's conviction, and we reject Defendant's contention that the district court should have granted a mistrial.
{3} Because the parties are familiar with this case and because this is a memorandum opinion, we do not provide a summary of the factual and proceduralbackground. We discuss the facts where relevant to the issues addressed in this opinion.
{4} The rape shield statute and corresponding evidentiary rule, which we combine and refer to as the "rape shield law," reflect this State's strong public policy "to prevent unwarranted intrusions into the private affairs of the victims of sex crimes." State v. Romero, 1980-NMCA-011, ¶ 21, 94 N.M. 22, 606 P.2d 1116, overruled in part on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869. Section 30-9-16(A) of the rape shield statute provides in part:
[E]vidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds that, the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
See also Rule 11-413(A) NMRA (2011) ().
{5} Despite its protections, the rape shield law is not an absolute bar to the admission of evidence regarding an alleged victim's sexual history, and its purposeis "not to remove relevant evidence from the jury's consideration." Johnson, 1997-NMSC-036, ¶ 21 (internal quotation marks and citation omitted). The rape shield law will not preclude the admission of relevant evidence "when the probative value of that evidence equals or outweighs its prejudicial effect." Id. ¶ 19. And, in order to ensure that a defendant is not deprived of his constitutional right to confront the witnesses against him, the district court must admit evidence, even if it is otherwise subject to exclusion under the rape shield law, if exclusion of that evidence would violate the defendant's constitutional rights. See State v. Johnson, 1984-NMCA-094, ¶ 31, 102 N.M. 110, 692 P.2d 35, overruled in part on other grounds by Manlove v. Sullivan, 1989-NMSC-029, ¶ 12 n.2, 108 N.M. 471, 775 P.2d 237, as recognized in State v. Scott, 1991-NMCA-081, ¶ 16, 113 N.M. 525, 828 P.2d 958.
{6} Defendant claims that, despite the provisions of the rape shield law, the exclusion of evidence regarding C.N.'s prior homosexual activities violated Defendant's rights to due process and to confront the witnesses against him.
{7} Initially, we address the State's contention that Defendant's arguments should be summarily rejected because he failed to preserve them. The State makes two arguments in this regard: (1) that Defendant failed to comply with the rape shield law by seeking an in-camera hearing, see § 30-9-16(C) (); and (2) that Defendant failed to preserve his challenge to the exclusion of the evidence on constitutional grounds because his arguments below were based only on the state evidentiary rules.
{8} We conclude that Defendant properly preserved his arguments. First, with respect to the matter of an in-camera hearing, Defendant initially mentioned the evidence of C.N.'s alleged homosexuality in his response to the State's motion to exclude impermissible character evidence. Defendant claimed that there was a dispute as to whether C.N. is bisexually- or homosexually-oriented, and he stated that C.N. and Fabian Peralta had admitted to engaging in homosexual activities short of intercourse. And, at the hearing on the State's motion, Defendant informed the district court of the evidence he sought to admit to establish these admissions. Thus, because Defendant made his motion before the beginning of trial and because the district court considered the evidence during the hearing on the State's motion, we are not convinced that Defendant failed to request, or that the district court failed to conduct, an in-camera hearing pursuant to the rape shield law. See Johnson, 1997-NMSC-036, ¶ 20 ().
{9} Second, with respect to the State's argument that Defendant failed to preserve his constitutional arguments, we conclude that Defendant adequately preserved these issues by arguing that he had a right to confront C.N. by cross-examining him about his prior homosexual activity and his sexual orientation, even though Defendant never specifically asserted the constitutional provisions in question. See id. ¶¶ 23-24 (); State v. Stephen F., 2007-NMCA-025, ¶ 18, 141 N.M. 199, 152 P.3d 842 ( that " court must consider a defendant's confrontation rights in exercising its discretion to admit or exclude evidence of [prior sexual conduct]"), aff'd, 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84. Moreover, none of the cases cited by the State in support of its contention that Defendant failed to preserve his constitutional challenge involve the exclusion of evidence under the rape shield law. See, e.g., State v. Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 ().
Standard of review
{10} We review the district court's decision to exclude evidence of C.N's prior sexual conduct pursuant to the rape shield law for abuse of discretion. See Stephen F., 2008-NMSC-037, ¶ 8; Johnson, 1997-NMSC-036, ¶ 40. However, "we review de novo the question of whether the Confrontation Clause has been violated." State v. Smith, 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254; see State v. Montoya, 2013-NMCA-076, ¶ 19, ___ P.3d ___, cert. granted, 2012-NMCERT-005, 294 P.3d 446.
{11} In Montoya, this Court recently discussed and attempted to clarify the standard of review applied by our Supreme Court in Johnson and Stephen F. in determining whether the district court erred in excluding evidence pursuant to the rape shield law. Montoya, 2013-NMCA-076, ¶¶ 9-19. We observed:
[W]e discern three steps and three standards of review in our case law regarding application of the rape shield [law]. First, we review de novo whether a defendant has presented a theory of admissibility that implicates his confrontation rights. If he has, we undertake a de novo balancing of the state's interest in excluding the evidence against the defendant's constitutional rights to determine if the district court acted within the wide scope of its discretion to limit cross-examination. If the Confrontation Clause is not implicated or if there has been no Confrontation Clause violation, we examine whether the district court has abused its discretion in its application of the [law] itself.
Id. ¶ 19. We address each of the three steps mentioned in Montoya in order.
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