State v. Altgilbers, 10071

CourtCourt of Appeals of New Mexico
Citation1989 NMCA 106,109 N.M. 453,786 P.2d 680
Docket NumberNo. 10071,10071
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Thomas ALTGILBERS, Defendant-Appellant.
Decision Date07 December 1989

HARTZ, Judge.

Defendant appeals his convictions on eighty-three counts of criminal sexual penetration (CSP) and criminal sexual contact (CSC) perpetrated on children under thirteen years of age, in violation of NMSA 1978, Sections 30-9-11(A) and -13(A) (Repl.Pamp.1984). The offenses occurred between 1980 and 1985. Two of defendant's daughters, ages twelve and nine at the time of trial in 1987, were the victims of these crimes.

Defendant makes the following contentions on appeal: (1) the district court erred by admitting prior statements by his children which identified him as their abuser; (2) defendant was denied his constitutional right to confront the witnesses testifying against him because the state, rather than calling his children to testify at trial, used videotapes of depositions during which the children testified without being able to see defendant; (3) the district court erred by denying defendant's motion for a mistrial based on the state's nondisclosure of allegedly exculpatory evidence; (4) for a variety of interrelated reasons arising out of the children's inability to be precise as to the time of most of the offenses, (a) the indictment was defective in charging one count of each offense for every period of two or three months and (b) guilt was not proved beyond a reasonable doubt for seventy-two of the eighty-three counts; and (5) the district court erred by admitting testimony concerning defendant's physical abuse of the children and physical and sexual abuse of their older sister.

We affirm defendant's convictions.


A therapist, a pediatrician, and a psychologist each testified that the two children had identified defendant as their abuser. The district court admitted the statements to the therapist pursuant to SCRA 1986, 11-801(D)(1)(b) as pretrial consistent statements which rebutted charges of improper influence or motive. The statements to the pediatrician and psychologist were admitted pursuant to SCRA 1986, 11-803(D), as statements made for purposes of diagnosis or treatment. Defendant contends that this testimony constituted inadmissible hearsay and violated defendant's constitutional right of confrontation.

A. Pretrial Consistent Statements

We affirm the district court's admission of the testimony of the therapist, Ms. Flavill, pursuant to Rule 11-801(D)(1)(b). This rule states:

D. * * * A statement is not hearsay if:

(1) * * * The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

* * * * * *

(b) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive * * * *

Defendant attacked the credibility of his children's testimony by suggesting that the mother induced the children to fabricate the accusations against him in order to assist her in bitter divorce proceedings. To rebut this contention, the state offered Ms. Flavill's account of both the circumstances in which the children first made their accusations and the mother's reaction to the accusations.

Ms. Flavill testified that her first contact with the children was in August 1985 when the family was referred to her by the state Department of Human Services. Ms. Flavill was asked to provide therapy aimed at improving the mother's parenting skills and helping the children communicate with each other without physical violence. Successful therapy depended on determining the cause of the tension and stress apparent in the family.

When she first met the two children who testified against defendant, Ms. Flavill suspected from their behavior and appearance that they had been sexually abused. She felt, however, that it was best to wait for them to disclose any such information when they felt able to do so. She did broach the subject with the mother, but to no avail. Ms. Flavill testified:

The first time I asked Mrs. Altgilbers about possible sexual contact with her children was at the end of January [1986] * * * I asked her at the time during one of our therapy sessions, I asked her if it was possible that the girls have ever been touched by anybody. And I used that word, I didn't use "sexual contact," I used the word "touch," and she kind of offhandedly said no, kind of surprised and kind of just no investment at all, just no. And I just left it there. And I just wanted to see if she had any information, which she didn't seem to.

It was only after approximately eight months of therapy, in April 1986, that the two children disclosed that their father had sexually abused them. Ms. Flavill described the disclosure as follows:

I have a book on body, just body images, that is used with young children. It's designed with children in fourth and down to talk about how wonderful our bodies are and how great we feel about ourselves. At the end there is a section on sexual reproduction and very simple drawings. And I placed the book--and we'd gone through many chapters. This was like the third and fourth week on body image, and they started to look through the book, and then [the younger child] began--[the older child] began to become very upset in the picture of reproduction and, again, very simple line drawing, and that's when I asked what is upsetting about this picture. She said, "Those are things my dad has done to me."

Ms. Flavill testified that the younger child then left the house, while the older child described in detail the sexual contact she had with her father. When this disclosure was finished, Ms. Flavill started to leave. At that point the younger child stopped her and indicated that she wished to talk. While the older child was in another room, the younger child proceeded to relate in detail the sexual contact with her father. During the younger child's disclosure, the children's mother came home. Ms. Flavill continued as follows:

[W]hen the girls were crying when she came in, I said to her right there, I said, "You know, the girls are talking about sexual contact with their father"? And she said "No, that can't be." At the same time she's saying it can't be, she has tears rolling down her cheeks. So she was acknowledging on an emotional level, but on an intellectual level, she was saying, this can't be, "It's not true." And as she is crying, she is telling me that.

Ms. Flavill's testimony was undeniably relevant to rebut the contention that the children's accusations were instigated by their mother: The disclosures were prompted by the book on body images; the original disclosures were made separately by each child while their mother was not present; their mother declined the opportunity offered in January to accuse defendant of sexually abusing his children and even denied the sexual contact after the children's initial disclosure. The statements of the children were an integral part of this rebuttal and therefore admissible under Rule 11-801(D)(1)(b).

Defendant contends that the children's statements were inadmissible because they did not predate the alleged improper influence by the mother. Defendant argued that the mother had caused the children to make even their original allegations. Rule 11-801(D)(1)(b) does not, however, explicitly set forth any requirement concerning the timing of the consistent statements. To be sure, ordinarily a pretrial consistent statement will not rebut a charge of "improper influence or motive" unless the statement predates the influence or motive. Nevertheless, as this case illustrates, occasionally a statement made after the alleged influence or motive may tend to rebut the allegation. See generally 4 J. Weinstein & M. Berger, Weinstein's Evidence p 801(d)(1)(b), at 801-154 to -156 (1989) (collecting federal cases that consider whether consistent statements must antedate alleged existence of motive to fabricate). We see no reason to require exclusion of evidence that satisfies the terms of Rule 11-801(D)(1)(b). See State v. Lucero, 109 N.M. 298, 784 P.2d 1041 (Ct.App.1989). Admission of Ms. Flavill's testimony was within the district court's discretion.

Defendant also contends that the prior statements were not admissible under Rule 11-801(D)(1)(b) because the declarants were not "subject to cross-examination concerning the statement[s]," as required by the rule. The children testified via videotaped depositions conducted before trial. Defendant claims that prior to Ms. Flavill's courtroom testimony he was unable to cross-examine the children regarding their statements to her. Yet defendant took a statement from Ms. Flavill prior to the videotaped depositions; so he knew that the children had made statements to her. Defendant had the opportunity to, and did, cross-examine the children about the substance of their testimony. He does not suggest any reason why he could not have cross-examined them concerning their statements to Ms. Flavill. He could have preserved any objection to the admissibility of the statements by making his videotaped cross-examination concerning the statements subject to the admission of the statements. Cf. Sanderson v. Steve Snyder Enters., Inc., 196 Conn. 134, 491 A.2d 389 (1985) (party may object at trial to testimony from discovery deposition offered by opposing party even though objecting party asked the objectionable questions or elicited the objectionable answers); Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893 (Iowa 1980) (same); 26A C.J.S. Depositions Sec. 100 (1956) (same). Moreover, defendant made no request to...

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