State v. Atencio, A-1-CA-38286

• Docket Nº: No. A-1-CA-38286
• Citation: 499 P.3d 635
• Case Date: June 22, 2021
• Court: Court of Appeals of New Mexico

499 P.3d 635

STATE of New Mexico, Plaintiff-Appellee,
v.
Harold ATENCIO, Defendant-Appellant.

No. A-1-CA-38286

Court of Appeals of New Mexico.

Filing Date: June 22, 2021
Certiorari Granted, November 5, 2021, No. S-1-SC-38869

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant

MEDINA, Judge.

{1} This Court issued an opinion on June 3, 2021, which is hereby withdrawn and replaced with this opinion, granting both the State and Defendant's motions for rehearing.

{2} Defendant appeals his convictions for one count of criminal sexual penetration of a minor (CSPM), in violation of NMSA 1978, Section 30-9-11(D)(1) (2009), and twenty-one counts of criminal sexual contact with a minor (CSCM), in violation of NMSA 1978, Section 30-9-13(B)(1) (2003). On appeal, Defendant contends that: (1) he received inadequate Miranda warnings and therefore, the admission of his video recorded statement was error; (2) alternatively, his counsel was ineffective for not challenging the adequacy of the Miranda warnings he received; and (3) the "carbon-copy" charges, evidence presented, and instructions to the jury violated his rights to due process, to be free from double jeopardy, and to a unanimous jury verdict, and that the evidence was insufficient to support his multiple CSCM convictions.

{3} Because the Miranda warnings Defendant received did not adequately convey the right to the presence of an attorney prior to and during Defendant's custodial interview with law enforcement, we agree with Defendant that the admission of his video recorded statements was error. There is, however, sufficient evidence to support each of Defendant's convictions and thus retrial is permitted. In light of our holding regarding the admission of Defendant's statements, we do not address Defendant's ineffective assistance of counsel claims, nor do we review his double jeopardy challenges. We therefore reverse Defendant's convictions and remand for a new trial.

BACKGROUND

{4} The following facts were introduced at the pretrial motion hearing and at trial. Victim (C.Y.) is the child of Kimberly G. (Mother) and Jeffrey Y. (Father). From June 2017 until October 2017, while Father lived in Florida, C.Y. lived with Mother, his stepfather, and three siblings—including his older sister (A.Y.)—in a rented trailer in Kirtland, New Mexico. C.Y. was ten years old.

{5} Defendant lived in the trailer next door to C.Y.’s family. C.Y. testified that he would go over to Defendant's trailer every day and that they would watch movies together. According to Mother, C.Y. stayed the night at Defendant's trailer a few times and would occasionally sneak over to visit Defendant without her permission.

{6} For reasons unrelated to this case, the Children, Youth and Families Department (CYFD) removed C.Y. and A.Y. from Mother's custody in October 2017. CYFD placed C.Y. and A.Y. in Father's custody, and they moved to Florida to live with him. Soon thereafter, Father became aware that a former neighbor may have sexually abused C.Y. in New Mexico. Father reported the alleged abuse to law enforcement, after which Safehouse interviews of C.Y. and A.Y. were conducted in Florida. The case was assigned to Detective Nima Babadi of the San Juan County Sheriff's Office. During his investigation, Detective Babadi identified Defendant as the suspect in the case.

{7} On March 20, 2018, Detective Babadi invited Defendant to come to the sheriff's department to discuss a residential burglary that Defendant had previously reported. Detective Babadi and Defendant met in an interview room, and after a brief discussion about the burglary, Detective Babadi informed Defendant that he wanted to speak with him about another case.

499 P.3d 639

{8} Prior to informing Defendant about his investigation into C.Y.’s disclosures and prior to questioning Defendant about the reported sexual abuse, Detective Babadi notified Defendant of his Miranda rights as follows, "You have the right to remain silent; anything you say may be used against you. You have a right to a lawyer; and if you cannot afford a lawyer, one will be provided for you." Defendant verbally acknowledged that he understood his rights and signed a waiver of rights form indicating the same.¹

{9} Detective Babadi proceeded to tell Defendant that he had "done his homework," that he knew Defendant had been touching C.Y., and that he just wanted to know why Defendant had been touching C.Y. Defendant initially claimed that "if" he ever touched C.Y., such touching was accidental and he "never meant anything by it." Defendant eventually admitted that he had touched C.Y.’s penis between twenty and thirty times, that he "didn't really play with him that much," and that he had once briefly put C.Y.’s penis in his mouth. At the conclusion of the interview, Detective Babadi arrested Defendant.

{10} Prior to trial, the State filed a motion entitled, "Motion to Admit Defendant's Statements to Law Enforcement," asserting that "Defendant was properly Mirandized and his statements were knowingly, intelligently, and voluntarily made." The State made no claim that Defendant was not the subject of a custodial interview. Defendant did not file a written response to the motion.

{11} During the hearing on the State's motion, Defendant argued that his Miranda waiver was not knowing, intelligent, and voluntary. After hearing testimony from Detective Babadi and reviewing Defendant's video-recorded interview, the district court ruled that it "[saw] no problems at all with this Miranda waiver and any statements [were] going to be allowed [at trial]." Defendant's interview with Detective Babadi was admitted at trial. Defendant was convicted of one count of CSPM and twenty-one counts of CSCM.

{12} Fifteen days after Defendant's jury trial, the district court memorialized its ruling from the bench on the admission of Defendant's statements to law enforcement. In a written order, the district court concluded, in part, that "Defendant was not in custody and the advisement of rights under Miranda was not required." The district court further found that Detective Babadi was not legally required to advise Defendant of his rights under the Fifth Amendment, but "[t]o the extent a waiver of rights was required, Defendant's written waiver was voluntarily, knowingly[,] and intelligently executed." This appeal followed.

DISCUSSION

I. Defendant's Argument That His Miranda Warnings Were Inadequate Was Not Preserved

{13} Defendant's challenge to the district court's admission of his video-recorded statement is akin to an appeal of a denied motion to suppress. "The district court's denial of [a d]efendant's motion to suppress evidence presents a mixed question of fact and law." State v. Almanzar , 2014-NMSC-001, ¶ 9, 316 P.3d 183. "This Court reviews factual matters with deference to the district court's findings if substantial evidence exists to support them, and it reviews the district court's application of the law de novo." Id.

{14} Defendant argues that the Miranda warnings he received were inadequate because he was not informed of his right to consult with an attorney prior to being questioned by Detective Babadi. Defendant acknowledges that this claim may be unpreserved for review on appeal. We agree with Defendant that this issue was unpreserved.

{15} In State v. Montoya , our Supreme Court explained that "[i]n order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon." 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks and citation omitted); see also Rule 12-321(A) NMRA ("To preserve an issue for review, it must

499 P.3d 640

appear that a ruling or decision by the trial court was fairly invoked.").

We require parties to assert the legal principle upon which their claims are based and to develop the facts in the trial court primarily for two reasons: (1) to alert the trial court to a claim of error so that it has an opportunity to correct any mistake, and (2) to give the opposing party a fair opportunity to respond and show why the court should rule against the objector.

State v. Gomez , 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1.

{16} Here, Defendant's objection at the evidentiary hearing was focused squarely on whether his Miranda waiver was knowing, intelligent, and voluntary—not whether his Miranda warnings were in fact adequate. Miranda warnings are an explanation of the constitutional rights afforded to individuals suspected of a crime under the Fifth Amendment, whereas Miranda waivers are a renouncement of those rights. See State v. Salazar , 1997-NMSC-044, ¶¶ 59-64, 123 N.M. 778, 945 P.2d 996 (describing the defendant's challenges to both the adequacy of the Miranda warnings he received and his waiver of those same rights); see also State v. Verdugo , 2007-NMCA-095, ¶ 13, 142 N.M. 267, 164 P.3d 966 (explaining that both Miranda warnings and Miranda waiver must be proven by the prosecution in order to admit...