State v. Beard
| Docket Number | A-1-CA-39779 |
| Decision Date | 01 August 2023 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. SHANE BEARD, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY Emilio Chavez District Court Judge.
Raúl Torrez, Attorney General Maris Veidemanis Assistant Attorney General Santa Fe, NM for Appellee.
Stalter Law LLC Kenneth H. Stalter Albuquerque, NM for Appellant.
{¶1} Defendant Shane Beard appeals his two convictions of criminal sexual contact of a minor (child under thirteen), contrary to NMSA 1978, Section 30-9-13(B)(1) (2003). On appeal, Defendant makes six arguments: (1) his right against double jeopardy was violated by the manner in which the jury was instructed; (2) his constitutional right to a speedy trial was violated; (3) there was insufficient evidence that one of the incidents of sexual abuse occurred in New Mexico; (4) the district court abused its discretion in admitting certain testimony; (5) his due process rights were violated by the lengthy charging period; and (6) the cumulative effect of the errors in his trial deprived him of a fair trial. We affirm.
{¶2} Defendant's double jeopardy argument relates to the jury instructions given at trial. We review double jeopardy claims de novo. State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. The jury was instructed on two counts of criminal sexual contact of a minor, and both instructions were identical-"true carbon copies"-wherein the sole distinguishing feature was the count number. These identical instructions contained no factual specificity related to the case itself, only standard uniform language: "[D]efendant touched or applied force to the unclothed mons veneris and/or vulva and/or vagina of [Child]."[1] Cf. UJI 14-925 NMRA.
{¶3} Defendant contends that due to the lack of factual differentiation between the counts, the jury "could have" convicted him twice for unitary conduct. Relatedly, Defendant argues that the "carbon copy" jury instructions made it "impossible for the jury to convict on one count but not the other[,]" and that the same conduct may have been the basis of both convictions.
{¶4} We confronted a similar double jeopardy challenge in State v. Salazar, 2006-NMCA-066, 139 N.M. 603, 136 P.3d 1013. In that case, the jury was given nine identical jury instructions for criminal sexual penetration of a minor. Id. ¶ 6. The instructions were true carbon copies: "The instructions did not distinguish among the charges in any way such as date, location, or acts alleged." Id. ¶ 29. There, as here, the crux of the defendant's claim of error was that the identical jury instructions presented the danger that "he could have been convicted on separate counts for unitary conduct." Id. ¶ 31 (emphasis added). The jury ultimately returned a verdict of guilty on two counts. Id. ¶ 6. On appeal, this Court held that because the victim had provided sufficient evidence to support the two convictions-i.e., "there was sufficient evidence presented to the jury from which it could have found two separate incidents of criminal sexual penetration"-there was no double jeopardy violation in the manner the jury was instructed. Id. ¶ 31. In short, although the jury instructions themselves failed to factually distinguish between the counts or link them to specific instances of conduct, the existence of sufficient evidence to support the guilty verdicts meant that there was no double jeopardy violation related to the jury instructions. This Court has twice reaffirmed the central holding of Salazar. See State v. Martinez, 2007-NMCA-160, ¶ 8, 143 N.M. 96, 173 P.3d 18; State v. Dombos, 2008-NMCA-035, ¶¶ 22-23, 143 N.M. 668, 180 P.3d 675.
{¶5} We see no meaningful distinction between this case and Salazar. Like the victim in Salazar, Child testified to enough differentiated incidents to support Defendant's convictions. Child testified that the sexual contact by Defendant happened "more than once," and occurred on different days in at least three of the rooms of Defendant's house. In addition to these accounts of sexual contact in the home, the incident of sexual contact testified to with the greatest factual particularity occurred when Defendant and Child were in the backseat of Child's grandmother's car while on a family outing. Clearly, the testimonial evidence adduced at trial-in which at least two distinct acts of sexual contact were described-supported the two guilty verdicts.
{¶6} We recognize that a case relied upon by Defendant, State v. Candelaria, 2019-NMCA-032, 446 P.3d 1205, contains language that appears somewhat at odds with the central holding of Salazar. In Candelaria, this Court read another case-State v. Cook, 2006-NMCA-110, 140 N.M. 356, 142 P.3d 944-to hold that "even if the evidence could have supported two different counts, because the jury instructions 'did not make clear to the jury which conduct it should consider to support each charge' the two convictions for tampering with evidence violated the defendant's double jeopardy rights." Candelaria, 2019-NMCA-032, ¶ 36 (quoting Cook, 2006-NMCA-110, ¶ 19).
However, understood in its proper context, we believe there is a significant difference between the facts of Candelaria and the facts here. In Candelaria, this Court reversed one of the defendant's two fraud convictions because "the factual basis for differentiating between Counts 11 and 13 [was] not clear from the indictment, the jury instructions, or even the [s]tate's closing argument," and as a result, this Court concluded "that the jury could have convicted [the defendant] twice for the same conduct." Candelaria, 2019-NMCA-032, ¶ 40; see also State v. Luna, 2018-NMCA-025, ¶ 10, 458 P.3d 457 ( that we look to closing arguments to clarify or confirm the state's theory of a case). Important to that conclusion was the state's closing argument, which at times apparently conflated the factual basis for the two counts of fraud. Candelaria, 2019-NMCA-032, ¶¶ 38-39.
{¶7} But here-far from conflating the counts-the State's closing argument directed the jury to only convict Defendant if it found him guilty of two distinct acts of criminal sexual contact of a minor-as mandated by Salazar. The prosecutor in Defendant's case emphasized the need to find that the underlying actions were separate, stating that Defendant could be convicted on two counts "as long as you find a touching happened at minimum two times." Moreover, we do not agree with Defendant's contention that it would have been "impossible for the jury to convict on one count but not the other." The jury might have found, for example, that only the most detailed allegation of sexual contact-the incident in the backseat of the car-was credible beyond a reasonable doubt, and thus might have returned only one guilty verdict. Defendant has not persuaded us that a double jeopardy violation occurred.
{¶8} Defendant argues that the district court erred in denying his motion to dismiss based on violations of his constitutional right to a speedy trial.[2] In assessing speedy trial claims, we look to the four-factor analysis set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972): "(1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay." State v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. "We weigh these factors according to the unique circumstances of each case in light of the [s]tate and the defendant's conduct and the harm to the defendant from the delay." Id. ¶ 5 (internal quotation marks and citation omitted). "On appeal, we give deference to the district court's factual findings, but we review the weighing and the balancing of the Barker factors de novo." State v. Collier, 2013-NMSC-015, ¶ 39, 301 P.3d 370 (alterations, internal quotation marks, and citation omitted). Ultimately, "[t]he heart of the right to a speedy trial is preventing prejudice to the accused." State v. Garza, 2009-NMSC-038, ¶ 12, 146 N.M. 499, 212 P.3d 387. To assess Defendant's speedy trial claim of error, we consider each of the Barker factors in turn.
{¶9} The first Barker factor functions "both the threshold question in the speedy trial analysis and a factor to be weighed with the other three Barker factors." State v. Ochoa, 2017-NMSC-031, ¶ 12, 406 P.3d 505. It is a threshold question because in Garza, 2009-NMSC-038, our Supreme Court provided timelines for various types of cases that serve to trigger speedy trial analysis: twelve months for a simple case, fifteen months for an intermediate case, and eighteen months for a complex case. Id. ¶ 2. In Garza, the Court was clear that these "guidelines are designed to prompt the district court to conduct a speedy trial analysis, and do not dispose of the claim itself." Ochoa, 2017-NMSC-031, ¶ 13. In addition to this threshold purpose, the length of the delay is also a factor unto itself, which is to be weighed proportionally to the length of the delay: "As the delay lengthens, it weighs increasingly in favor of the accused." Id. ¶ 14.
{¶10} Here, the total length of delay was approximately thirty-one months, spanning from Defendant's initial criminal charging in magistrate court on ...
To continue reading
Request your trial