State v. Bell

• Citation: 560 P.2d 925,1977 NMSC 13,90 N.M. 134
• Decision Date: 01 March 1977
• Docket Number: No. 10868,10868
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reggie David BELL, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 925

560 P.2d 925

90 N.M. 134

STATE of New Mexico, Plaintiff-Appellee, v. Reggie David BELL, Defendant-Appellant.

No. 10868.

Supreme Court of New Mexico.

March 1, 1977.

Anthony E. Lucero, Jr., Albuquerque, for defendant-appellant

Toney Anaya, Atty. Gen., Louis Valencia, Anthony Tupler, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

EASLEY, Justice.

Defendant was convicted by a jury in the District Court of Bernalillo County of kidnapping in the first degree, criminal sexual penetration in the first degree, and aggravated battery. He was sentenced to two concurrent terms for life. He appeals.

On October 14, 1975, the defendant allegedly followed the victim, a seventeen-year-old female student at the University of New Mexico, through Albuquerque traffic to a fraternity house parking lot, where he assaulted and struck her and forced her onto the floor of his car and drove away.

The victim testified that she lost consciousness about this time, and that the next thing she remembers is waking in the emergency room of the Bernalillo County Medical Center some hours later.

Other than positive identification of the defendant as her assailant, she was able to offer little direct testimony in reference to the sexual assault. However, the evidence showed that she had been severely beaten about the fact, that an eight-ounce rock and several handfuls of sand and pebbles had been packed into her vagina, and that 13,500 Sigma units of acid phosphatase, indicating recent sexual intercourse, were present in her vagina.

The victim testified that she had sexual intercourse with her boyfriend the evening preceding the incident, after which she showered and changed clothes. Rebuttal testimony established that only a few hundred units of acid phosphatase could reasonably be anticipated to be the remnants of that sexual encounter.

Nine points of error are raised by defendant 1. Defendant claims that the trial court erred in instructing the jury that criminal sexual penetration is defined as 'penetration . . . with any object' when the grand jury indictment did not so charge. This claim of error is completely without foundation. No such instruction was given. In fact, one submitted by the State containing the language objected to was refused by the court.

2. Defendant contends that it was error for the trial court to refuse to direct a verdict in his favor, claiming that the evidence was insufficient to support a conviction of first-degree criminal sexual penetration because the only evidence of sexual intercourse was circumstantial.

The traditional distinction between direct and circumstantial evidence, upon which defendant here relies, has been specifically disapproved by N.M.U.J.I.Crim. 40.00 and 40.01 (2d Repl.Vol. 6, N.M.S.A.1953 (Supp.1975), at 316, 317), which were in effect at the time of defendant's trial. These instructions and use notes require that 'no instruction . . . shall be given' either on the distinction between the two types of evidence or upon the test for the sufficiency of circumstantial evidence. The committee commentary reveals that the committee believed that defining the types of evidence had little practical value for the jury, and that nothing is added by instructing the jury on the sufficiency of circumstantial evidence once the court determines that the State has met the legal test for sufficiency of the evidence--which remains proof beyond a reasonable doubt.

By implication, of course, the only tests remaining, either for purposes of instructions or for raising error on appeal, are those of sufficiency of the evidence to support the charge and, on appeal, the substantiality of the evidence to support the verdict. Viewing the record as a whole, we think there is substantial evidence to warrant the case going to the jury, and the trial court did not err in denying defendant's motion. State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967); State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); State v. Wilkerson, 83 N.M. 770, 497 P.2d 981 (Ct.App.1972).

3. Reversible error is claimed because the court denied a defense motion for a directed verdict. Defendant claimed that, because there was no medical testimony establishing permanent damage to the victim and no medical testimony that her injuries created a high probability of death, there was insufficient evidence to support a conviction for kidnapping in the first degree.

In order to support a conviction for kidnapping in the first degree, the evidence must prove, inter alia, that the defendant inflicted 'great bodily harm' upon the victim. Section 40A--4--1(B), N.M.S.A.1953. Section 40A--1--13(A), N.M.S.A.1953 defines 'great bodily harm' for purposes of the Criminal Code to be 'injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body.' (Emphasis added.)

The disjunctive nature of the conditions of the statutory definition are obvious. The conditions are not cumulative; only one need be shown in order to establish 'great bodily harm.'

The medical testimony established that the victim was 'at least temporarily seriously disfigured' and, before treatment, was in danger of permanent impairment of the function of the left eye. The plastic surgeon who examined and treated the victim following the incident testified that she had, in addition to multiple facial lacerations, hemorrhage in both eyes, paralysis of facial nerves, and a cheek bone so shattered that her left eye had dropped into her sinus. Elaborate plastic surgery was required to replace the eye and rebuild the bone. The bone was so fragmented that a plastic plate had to be inserted to hold the injured eye in place. This satisfied the statutory definition of great bodily harm, which does not require that the disfigurement be permanent. Furthermore, the law does not require that 'great bodily harm' be proved exclusively by medical testimony. The jury is entitled to rely upon rational inferences deducible from the evidence. State v. La Boon, 67 N.M. 466, 357 P.2d 54 (1960). The general description of the patient's appearance and condition upon arrival at the Bernalillo County Medical Center and other non-medical testimony, especially the photographs of the victim admitted into evidence, constitute substantial evidence justifying the denial of defendant's motion for a directed verdict. State v. Ferguson, State v. Martin, State v. Wilkerson, supra.

4. Defendant claims that the prior statement given to the police by the victim and received in evidence was inadmissible because offered for no other purpose than to corroborate her oral testimony.

The record reflects that the prior consistent statement of the victim was admissible under the exception to the hearsay rule provided in New Mexico Rule of Evidence 801(d) (§ 20--4--801(d)(1)(B), N.M.S.A.1953 (Supp.1975)).

That rule declares that a 'statement is not hearsay if . . . (t)he declarant testifies at the trial . . . and is subject to cross-examination concerning the statement, and the statement is . . . 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 on cross-examination declared that the victim had been 'coached' in her oral testimony and implied that she was testifying from memory of the written statement. The statement was properly admitted to rebut this implicit charge of improper influence.

The admission or exclusion of evidence is a decision within the sound discretion of the trial court, whose judgment will be set aside only upon a showing of abuse of discretion. United States v. Miller, 460 F.2d 582 (10th Cir. 1972); United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970); State v. Marquez, 87 N.M. 57, 529 P.2d 283 (Ct.App.1974), cert. denied, 87 N.M. 47, 529 P.2d 273 (1974). The court did not abuse its discretion here.

5. The trial court's exclusion of the testimony of a defense witness on the results of the defendant's polygraph examination is claimed as error.

The offered testimony would have shown that defendant registered a score of positive-three on the polygraph test. A score of positive-six was considered by the expert to be conclusively truthful, while a score of negative-seven was considered conclusively untruthful. A fair interpretation of the evidence shows nothing more than that a score of positive-three is inconclusive. Defendant employs the ingenious argument that because the test results were 'inconclusive on the positive side,' i.e., tending toward truthfulness, they were somehow probative evidence of truthfulness and that exclusion of this evidence was reversible error.

Defendant's expert would only say, 'It's inconclusive. You've just got to have more positive indications of truthfulness, deception, to say.' On cross-examination, the state asked the witness: 'So you cannot say, as a basis or result of the test that you gave, that Mr. Bell was deceptive or that he was not deceptive?' Witness answered: 'No I can't.' There was no error in excluding the evidence.

Defendant claims that the offered evidence satisfied the requirements for admissibility of polygraph examinations set forth in State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975). These requirements are: (1) evidence of the qualifications of the operator, (2) testimony to establish the reliability of the testing procedure, and (3) the validity of the tests made on the subject.

It is true that the minimum standards thus set forth were satisfied by the polygraph test, since the State stipulated to the first two requirements and no objection was made to the third; but this is no way makes the evidence automatically subject to admission. There is always the question of relevance. Admitting that all...