State v. Chavez
| Decision Date | 06 December 2017 |
| Docket Number | No. A-1-CA-34275,A-1-CA-34275 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRANDON CHAVEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Brandon Chavez (Defendant) appeals his convictions for two counts of criminal sexual penetration (CSP) in the second degree, two counts of CSP in the third degree, one count of false imprisonment, and one count of criminal sexual contact (CSC). Defendant raises the issues of sufficiency of the evidence to support his convictions, whether his convictions violated double jeopardy, whether the district court erred in its admission of evidence, whether the jury was improperly instructed, and whether there was prosecutorial and juror misconduct at his trial. We affirm in part and reverse in part.
{2} Defendant's convictions arise from his sexual assault of Celeste DeBari (Victim). Victim and Defendant dated for four years prior to the incident and although at the time of the sexual assault the couple's relationship had ended, Defendant was still living in Victim's home along with her son, JD, as well as Defendant's son.
{3} At trial, Victim testified in pertinent part, to the following facts concerning the evening of the sexual assault. Victim came home with JD to meet Defendant and his son so that the four of them could go to dinner. Victim went into her bedroom and found Defendant lying on her bed. Defendant, apparently drunk and slurring his words, asked Victim to hug him. Victim told Defendant that she did not think that was a good idea and proceeded to enter her bathroom and closed the door behind her.
Defendant then entered the bathroom while Victim was using the bathroom.Victim asked Defendant to leave, but he refused.Instead, Defendant hovered over Victim and started touching her breasts underneath her shirt and bra. Victim again asked Defendant to leave and to stop touching her. Defendant responded by reaching down and touching Victim's pubic area and saying: Victim once again asked Defendant to leave the bathroom and he reluctantly complied.
{4} After finishing in the bathroom, Victim re-entered her bedroom to find Defendant had closed the bedroom door and was waiting for her naked. Defendant grabbed Victim by the hips and pulled her shirt and bra over her head. Victim told Defendant that she loved him, but that she did not want to have sex with him. Defendant responded: Victim said no, but Defendant persisted and told Victim: Victim again said no.
{5} Defendant then pushed Victim down by her shoulders, in a manner painful to Victim, until she was kneeling down in front of him. Defendant held Victim by her head and hair and forced her to perform oral sex on him. Victim told Defendant to let go of her because he was hurting her, but he did not comply and continued to hold her by her hair, pulling her up until she was alongside his body.
{6} Defendant next told Victim to "get naked for me[,]" which she understood to mean to take off her pants and underwear. When Victim declined, Defendant responded by telling her he would rape her if she did not get naked. Believing that Defendant would follow through with his threat if she did not comply, Victim took off the rest of her clothing.
{7} Defendant then mounted Victim with his legs straddled around her. Defendant reached down and started kissing Victim's breast and inserted his finger into Victim's vagina over her requests to stop. Eventually, Victim was able to move away from Defendant far enough that his finger came out of her vagina. However, with Defendant's body on top of her and her hair stuck under her back, she was trapped beneath Defendant. While trapped beneath Defendant, Victim placed her left arm between her legs to prevent Defendant's repeated attempts to penetrate her vagina with his penis. And in an attempt to get free from him, Victim agreed to have sex with Defendant and told him to get on his back. Defendant agreed, but held Victim's arms and shoulders while he repositioned himself. Victim positioned herself on top of Defendant, but then jumped off of him and grabbed her clothing from the floor. As she did so, Defendant called Victim vulgar names, went into the bathroom and slammed the door.
{8} In response to Victim's testimony concerning her recollection of the facts surrounding the sexual assault, defense counsel focused the majority of her cross-examination on impeaching Victim by suggesting that Victim's trial testimony and description of the sexual assault had either changed from her prior statements or had added new facts and details. On re-direct, the State proffered a redacted version of an email sent to Defendant by Victim shortly after the alleged sexual assault describing some of the events surrounding the sexual assault that were consistent with her trial testimony. In a bench conference, the State argued that it sought to have the email admitted to rebut defense counsel's suggestions that she was changing or adding to her story. The district court admitted the redacted email over defense counsel's objection.
{9} Prior to trial, the State disclosed JD as a witness in early May 2014. The defense made attempts in the months of May and June 2014 to set up times to interview JD, but was unable to coordinate a time with the State. The defense later learned of the existence of a S.A.F.E. House interview of JD apparently in the State's possession, but was unable to acquire a copy from the Albuquerque Police Department's evidence locker. At the hearing on Defendant's motion to exclude JD as a witness, held three days before the first day of trial, the State explained to the district court that while it believed that the S.A.F.E. House interview of JD existed,it had not provided it to the defense because it did not know that the recording was unavailable. The district court observed that because the State included JD on its witness list and knew that JD had made a prior S.A.F.E. House statement that it should have provided Defendant with that statement, even without the defense requesting it. The district court ordered the State to provide JD's S.A.F.E. House interview to the defense by the end of the day, but that it would not exclude JD from testifying at trial. The district court also stated that if the State failed to produce the interview to the defense as ordered, it would likely exclude JD as a witness on the first day of trial. In accordance with the order, the State provided Defendant with JD's S.A.F.E. House interview prior to the close of business that day.
{10} At trial, JD's testimony added no substantive evidence related to the CSP, false imprisonment, or CSC charges against Defendant because he had no personal knowledge of what happened in Victim's bedroom during the sexual assault. JD's lack of personal knowledge concerning the sexual assault was further highlighted by defense counsel's cross-examination and impeachment of JD on that point. JD's direct testimony was limited to his recollection of events that occurred before and after the sexual assault that were relevant only to the counts of child abuse and assault on a household member alleged in Defendant's indictment, and for which the district court entered directed verdicts in favor of Defendant at the close of the State's evidence.
{11} During closing argument, defense counsel made multiple statements, with no objection from the State, urging that it should be a troubling fact to the jury that the police officers who investigated Victim's case did not testify at trial even though they had been mentioned throughout the trial. The State responded in rebuttal that:
{12} The jury convicted Defendant of two counts of criminal sexual penetration in the second degree (CSP II), two counts of criminal sexual penetration in the third degree (CSP III), one count of false imprisonment, and one count of criminal sexual contact (CSC). Defendant filed five timely post-trial motions which addressed issues he argued warranted setting aside the jury's verdict and granting him a new trial. The district court denied all of Defendant's post-trial motions. This appeal followed.
{13} Defendant challenges his conviction for two counts of CSP II, two counts of CSP III, one count of false imprisonment, and one count of criminal sexual contact. His claims fall into six categories: (1) sufficiency of the evidence to support Defendant's convictions for CSP, false imprisonment, and CSC; (2) whether under the circumstances Defendant's convictions for CSP II, CSP III, and false imprisonment violate double jeopardy; (3) whether the jury was properly instructed on CSP; (4)whether the district court erred in permitting JD to testify at Defendant's trial; (5) issues raised in Defendant's post-trial motions under State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and State v. Boyer, 1985-NMSC-029, 103 N.M. 655, 712 P.2d 1, and (6) cumulative error. We address Defendant's claims...
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