State v. Bent
| Decision Date | 04 December 2013 |
| Docket Number | No. 29,227.,29,227. |
| Citation | 328 P.3d 677 |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Wayne BENT, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.
Law Works L.L.C., John A. McCall, Albuquerque, NM, for Appellant.
{1} The Opinion previously filed in this matter on August 15, 2013 is hereby withdrawn, and the following Opinion is being issued in its place.
{2} Wayne Bent (Defendant) appeals his conviction for criminal sexual contact with a minor and two convictions of contributing to the delinquency of a minor. Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings. In a previous opinion, we reversed his convictions based on problems with the grand jury indictment. The New Mexico Supreme Court reversed and instructed this Court to consider the rest of Defendant's arguments on remand.
{3} Defendant's remaining issues on appeal are numerous. Defendant argues that (1) the district court excluded certain witnesses, photographs, and his closing presentation soundtrack; (2) the prosecution wrongly exceeded the scope of direct examination on its cross-examination; (3) his proposed jury instructions regarding lawfulness were erroneously denied; (4) there was insufficient evidence to convict him of the crimes charged; (5) his counsel was ineffective by failing to raise a defense under New Mexico's Religious Freedom Restoration Act (RFRA); and (6) he was deprived of a fair trial by cumulative error. We see no error and affirm.
I. BACKGROUND
{4} Defendant was the spiritual leader of a religious group that lived together on an area of land in northern New Mexico. Two teenage sisters, L.S. and A.S., each paid a visit alone to Defendant and lay in his bed naked with him. Whether he touched L.S. and A.S. illegally during their visits, and whether the events were religiously motivated or the result of coercion was disputed below and on appeal. Defendant was indicted by a grand jury on two counts of criminal sexual contact with a minor (CSCM) and two counts of contributing to the delinquency of a minor (CDM). He was acquitted of one count of CSCM and convicted on the remaining charges.
II. DISCUSSIONA. Limitation of Defendant's Witnesses And Evidence Was Not Error
{5} Defendant argues that he was not allowed to present his desired evidence due to time constraints imposed by the district court and, specifically, he was not permitted to present his full list of witnesses. He claims on appeal that this prevented him from presenting any female members of the community he led, including L.S.'s and A.S.'s aunt and grandmother with whom the sisters lived. Defendant also disputes the district court's exclusion of some of the photographs offered into evidence. The State argues that the district court properly granted its motion to exclude what it deemed to be cumulative witnesses. State v. Downey, 2008–NMSC–061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and citation omitted).
{6} Rule 11–403 NMRA permits a court to exclude relevant evidence if its probative value is outweighed by the danger of, among several things, “needless presentation of cumulative evidence.” City of Albuquerque v. Westland Dev. Co., 1995–NMCA–136, ¶ 27, 121 N.M. 144, 909 P.2d 25 (internal quotation marks and citation omitted). “[T]he [district] court in its discretion may properly exclude cumulative evidence.” State v. Marquez, 1998–NMCA–010, ¶ 24, 124 N.M. 409, 951 P.2d 1070.
{7} Defendant attempted to present several members of the community as witnesses to testify to the general nature of the touching they observed in the healing rituals of their religion, none of whom were teenage girls or others who had been touched in a similar manner as L.S. and A.S. The district court permitted “one, maybe two,” because it did not want “eight or nine people saying the same thing.” The district court ruled that L.S.'s and A.S's grandmother and aunt also could not testify because they were only offered for “unrelated experiences” that did not deal with the issues being tried. Defendant did not argue before or after this ruling that the grandmother and aunt had relevant testimony that was non-cumulative. He raised that argument for the first time on appeal. As well, Defendant did not argue at trial that the eight or nine witnesses had individualized experiences about healing rituals. By failing to argue or make an offer of proof below that the witnesses had distinct, non-cumulative testimony, Defendant failed to preserve this argument. In order to preserve an issue for appeal, a defendant must make a timely objection or motion that specifically apprises the district court of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela, 1999–NMSC–045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. A party may claim that evidence was excluded in error only if it affects a substantial right of the party, and “the party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” Rule 11–103(A)(2) NMRA. Without such an objection to the district court's exclusion of the cumulative witnesses or submission of an offer of proof, we affirm the district court's decision as it did not abuse its discretion.
{8} Defendant makes a similar argument with respect to numerous photographs he attempted to admit into evidence. Again, he fails to show, with any particularity, how the photographs would have been non-cumulative. A nearly identical situation arose in Westland Development when “[t]he court examineda box of pictures offered by Westland and required Westland to pick the five best representatives of what it wanted to show[.]” 1995–NMCA–136, ¶ 30, 121 N.M. 144, 909 P.2d 25. We affirmed the district court in that case because Westland failed to establish why the unadmitted photographs were not needlessly cumulative. Id. Here, again, Defendant failed to articulate both in district court and on appeal how the excluded photographs were non-cumulative. Rule 11–103(A)(2). We affirm the district court's decision on the photographs as it was not an abuse of discretion.
{9} Defendant's final argument in this vein is that he was prevented from playing, and the jury was prevented from hearing, a song during his closing presentation. He intended the song to be the soundtrack to a video slideshow of photographs that had been admitted into evidence. The district court sustained the State's objection to the song, asking that the sound be turned off, although permitting the slideshow to play. Defendant argues on appeal that this prejudiced him in front of the jury and disrupted his closing. He does not explain further how this refusal to allow the audio track prejudiced him and, at the time, his only argument was “[i]t's just commentary [.]” “Because district judges are in the best position to assess the impact of any questionable comment, we afford them broad discretion in managing closing argument.” State v. Ramos–Arenas, 2012–NMCA–117, ¶ 16, 290 P.3d 733 (alteration, internal quotation marks, and citation omitted), cert. denied,2012–NMCERT–010, 297 P.3d 332. Without further explanation from Defendant as to the relevance or necessity of musical accompaniment to his slideshow or, more specifically, regarding the alleged prejudice to his case, we defer to the district court and affirm the decision to refuse the playing of new musical material during closing argument.
B. The Prosecution Did Not Exceed the Scope of Direct Examination on Cross–Examination
{10} We next consider whether the State exceeded the scope of direct examination when it cross-examined Defendant. “The general rule upon the scope of cross-examination ... is that the examination can only relate to the facts and circumstances connected with the matters stated in the direct examination of the witness.” State v. Carter, 1915–NMSC–084, ¶ 8, 21 N.M. 166, 153 P. 271 (internal quotation marks and citation omitted). It is well settled that in cross-examination,
[f]or the purpose of testing the credibility of a witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description.
Id. ¶ 13. The district court has broad discretion to control the scope of cross-examination, see State v. Martin, 1984–NMSC–077, ¶ 20, 101 N.M. 595, 686 P.2d 937, including the discretion to control cross-examination to ensure a fair and efficient trial. Sanchez v. State, 1985–NMSC–060, ¶ 6, 103 N.M. 25, 702 P.2d 345, overruled on other grounds byState v. Tollardo, 2012–NMSC–008, 275 P.3d 110.
{11} The scope of Defendant's direct examination was very limited. Defense counsel only asked Defendant questions regarding whether he touched L.S. and A.S. when they came to his house, and whether he would generally ever encourage delinquency in a minor. On appeal, Defendant specifically identifies a few places in cross-examination that he claims exceeded the scope of direct. Defendant states that the prosecution's questions about his position of spiritual authority were improper, particularly those in relation to statements he made in a television special filmed about his community. Defense counsel objected generally to several of the State's questions about a two-minute long...
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