State v. Chavez, A-1-CA-38582

Case DateSeptember 21, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

AARON DEAN CHAVEZ, Defendant-Appellant.

No. A-1-CA-38582

Court of Appeals of New Mexico

September 21, 2022

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.


Hector H. Balderas, Attorney General Laurie Blevins, Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant



{¶1} Defendant Aaron Dean Chavez appeals his conviction of one count of criminal sexual contact of a minor (CSCM), a third degree felony, contrary to NMSA 1978, Section 30-9-13(C)(1) (2003).[1] Defendant raises the following issues on


appeal: (1) the district court erred in allowing the investigating detective to vouch for the credibility of Victim and accuse Defendant of lying during his custodial interview during the detective's testimony; (2) the evidence was insufficient to support his conviction; (3) the district court misinterpreted Rule 11-615 NMRA and abused its discretion when it precluded Defendant's investigator from remaining in the courtroom during trial and excluded the investigator from testifying; (4) the district court failed to provide an appropriate curative jury instruction on the element of unlawfulness; (5) the State committed prosecutorial misconduct by eliciting statements of uncharged conduct, berating Defendant during his testimony, and asking the jury to convict contrary to established law; (6) the district court imposed an incorrect sentence; and (7) the district court erred in denying his motion for a new trial. For the reasons explained below, we hold that the admission of the investigator's testimony in which he vouched for Victim's truthfulness and accused Defendant of lying during his custodial interview amounted to plain error; sufficient evidence supports Defendant's conviction; and the district court's interpretation of Rule 11-615 was an abuse of discretion. We therefore reverse and remand.


{¶2} We begin by addressing Defendant's argument that the detective's testimony in which he vouched for Victim and accused Defendant of lying during his custodial interview amounted to plain error, holding that it did so and that Defendant is entitled


to a new trial. Because Defendant is entitled to a new trial, we next address Defendant's sufficiency of the evidence challenge to determine if retrial implicates Defendant's double jeopardy rights, and hold that there was sufficient evidence to convict Defendant of CSCM. Finally, we address Defendant's argument that the district court abused its discretion when interpreting Rule 11-615 and clarify the scope of Rule 11-615(C). We do so to avoid repetition of any similar error on remand. Because we hold that the detective's testimony amounted to plain error and that Defendant is entitled to a new trial, we do not address Defendant's remaining arguments on appeal.

I. Plain Error Review

{¶3} Defendant argues that the detective's testimony vouching for the credibility of Victim and disparaging Defendant's credibility amounted to plain error, requiring a new trial. We review for plain error because Defendant did not object to this testimony. See State v. Lucero, 1993-NMSC-064, ¶ 12, 116 N.M. 450, 863 P.2d 1071 (noting that a defendant "may be entitled to relief if the errors of which he complains on appeal constituted plain error" (internal quotation marks and citation omitted)). "To find plain error, the Court must be convinced that admission of the testimony constituted an injustice that created grave doubts concerning the validity of the verdict." State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (internal quotation marks and citation omitted). Plain error applies to "cases raising


evidentiary matters in which the asserted error affected substantial rights." State v. Garcia, 2019-NMCA-056, ¶ 10, 450 P.3d 418 (internal quotation marks and citation omitted). In determining whether plain error has occurred, we "examine the alleged errors in the context of the testimony as a whole." Id. (internal quotation marks and citation omitted). The plain error rule is to be used sparingly as an exception to a preservation rule designed to encourage efficiency and fairness. Id.

{¶4} Defendant argues, and the State concedes on appeal, that the detective improperly vouched for the credibility of Victim during his testimony. Defendant further argues that the detective improperly discredited Defendant during his testimony. In contrast, the State argues that (1) the detective's testimony in which he vouched for Victim's credibility did not qualify as plain error because the testimony did not create grave doubts about the validity of Defendant's conviction; and (2) the detective's testimony that Defendant lied during his custodial interview was not error, and even if it was, it did not qualify as plain error.

{¶5} The detective testified that he had specialized training in investigating crimes against children and that he was trained in identifying deception or lies when interviewing individuals. Based on his observation of Victim's safe house interview and his training and experience, he testified that Victim was "consistent in her story that she had to tell" and "[the safe house interviewer] did an [excellent] job of getting disclosure[s] from the [Victim] that I was 100% confident were fact, were true."


{¶6} The detective went on to state that Defendant "really had no interest in answering our questions or talking to us" during his interview and that Defendant's explanation of how he tucked Victim's shirt in "didn't make any sense" whereas "[Victim's] disclosure did." During cross-examination, the detective stated that after his review of Victim's statements and Defendant's interview, he concluded that Defendant was guilty.

{¶7} On redirect examination, the detective stated "unfortunately this wasn't a complicated investigation. This was about fact and truth. We received fact and truth from [V]ictim[] in this case. And unfortunately for [Defendant], he chose to lie. A grown man chose to lie." The detective concluded his testimony by stating "[Defendant] was given two opportunities to sit down with two grown men and talk about the truth. It was a simple conversation about the truth and he chose not to do that."

{¶8} Defendant directs us to Lucero, in support of his plain error argument. In Lucero, the expert witness, a clinical psychologist, repeated statements that the complainant made during the evaluation regarding sexual abuse, testified that the complainant had been molested, stated that the defendant was the molester, and commented directly on the complainant's credibility at trial. 1993-NMSC-064, ¶¶ 5-6. Our Supreme Court reasoned that such testimony "vouches too much for the credibility of the victim and encroaches too far upon the province of the jury to


determine the truthfulness of the witnesses." Id. ¶ 17 (internal quotation marks and citation omitted). This concern was compounded because "[t]he only witnesses to the alleged abuse were the defendant and the complainant." Id. ¶ 22. "Because [the expert witness] repeated so many of the complainant's statements regarding the alleged sexual abuse by the defendant and because she commented directly and indirectly upon the complainant's truthfulness," our Supreme Court had "grave doubts concerning the validity of the verdict and the fairness of the trial." Id. Therefore, the Court held that the expert witness's statements amounted to plain error and reversed the defendant's conviction. Id.

{¶9} We found similar testimony amounted to plain error in Garcia. Garcia involved an expert witness, a family nurse practitioner with a specialty in child sexual abuse, who repeated the victim's statements describing the sexual assault and identifying the defendant as the individuals who committed the assault. 2019-NMCA-056, ¶ 9. The expert witness concluded that the alleged act had, in fact, occurred based only upon the victim's statements and her physical examination of the victim that revealed no physical injuries to the victim's genital area, which was consistent with the victim's description of events. Id. Finally, the expert witness explained what aspects of the victim's account were most compelling. Id. This Court held that the statements amounted to plain error because the expert witness "repeatedly commented, both directly and indirectly, upon [the v]ictim's


truthfulness, identified [the d]efendant as [the v]ictim's molester numerous times based solely on [the v]ictim's statements of events, and repeated in detail [the v]ictim's statements regarding the sexual abuse." Id. ¶ 12. {10} We are not bound to accept the State's concession that the detective's comments regarding Victim's truthfulness were improper. See State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d 738. But after reviewing the detective's statements, it is clear that he improperly commented, both directly and indirectly, on the credibility of Victim by remarking that he was certain her disclosure of the facts surrounding the CSCM were true and by repeatedly stating that Victim was consistent in her description. Similarly, the detective improperly attacked Defendant's credibility by stating that Defendant chose not to tell the truth during his interview.

{¶11} Looking at the testimony and trial as a whole, we disagree with the State's attempt to minimize the importance and impact of...

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