State v. Davis

• Decision Date: 30 May 2012
• Docket Number: NO. 29,699,29,699
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. KENNETH DAVIS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. KENNETH DAVIS, Defendant-Appellant.

NO. 29,699

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Dated: May 30, 2012

This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 EDDY COUNTY

J. Richard Brown, District Judge

Gary K. King, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

FRY, Judge.

Defendant Kenneth Davis appeals his convictions for contributing to the delinquency of a minor, selling or giving alcoholic beverages to a minor, andattempted selling or giving alcoholic beverages to a minor. Defendant raises four issues on appeal: (1) whether the district court erred in excluding evidence of Defendant's character for the safe and moral treatment of children; (2) alleged errors in the jury instructions given on attempt crimes; (3) double jeopardy; and (4) ineffective assistance of counsel. We hold that any error in the district court's exclusion of testimony about Defendant's character for the safe and moral treatment of children was harmless. Based on an erroneous jury instruction, we also vacate Defendant's conviction on Count 4 for attempted selling or giving alcoholic beverages to a minor. Given our disposition of Count 4, we need not address Defendant's double jeopardy argument. Finally, we conclude that Defendant has failed to make a prima facie showing of ineffective assistance of counsel.

BACKGROUND

At the time the events occurred that gave rise to the criminal proceedings in this case, Defendant was twenty-three years old and living with a woman and her seventeen-year-old son, Cody. Cody brought another teenaged boy and three girls, between the ages of twelve and fourteen years old, to the home he shared with his mother and Defendant. The teenagers testified that Defendant bought them alcohol and hung out in Cody's bedroom with them, singing songs about sex. Two of the girls engaged in fellatio with Cody and one had intercourse with him. They testified thatDefendant coached Cody while he had intercourse with one of the girls and that he grabbed Cody's wrist, manipulating Cody's hand on the girl's breast. After the minor girls reported the incident to their parents and authorities, Defendant was arrested and charged for his alleged involvement in the incident. The jury convicted Defendant of contributing to the delinquency of a minor (CDM), selling or giving alcoholic beverages to a minor (SGAM), and attempted selling or giving alcoholic beverages to a minor (attempted SGAM). This appeal followed.

DISCUSSION

I. Exclusion of Character Evidence

Defendant contends that the exclusion of testimony about his character for treating children in a safe and moral way was error. In New Mexico, a defendant may introduce character evidence if (1) the evidence is indicative of a trait of character; (2) that character trait is "pertinent;" and (3) the evidence is in the proper form of reputation or opinion testimony. Rule 11-405(A) NMRA. We review the district court's decision to admit or exclude evidence for abuse of discretion. State v. Martinez, 2008-NMSC-060, ¶ 8, 145 N.M. 220, 195 P.3d 1232. A district court abuses its discretion when it exercises discretion based on a misunderstanding of the law. State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209. However, when the district court makes "a categorical interpretation of law, not dependent onthe facts of the particular case, in concluding that evidence . . . is inadmissible . . . [,] the proper standard for review of that legal conclusion is de novo." Martinez, 2008-NMSC-060, ¶ 11.

In this case, Defendant argued in the district court that he should be able to ask his three character witnesses whether they thought he had a good or bad character for treating children in a safe and moral way. Defendant contended that such evidence was admissible under Rule 11-404(A)(1) NMRA, which states that, although character evidence is generally inadmissible to prove an action in conformity therewith, "[i]n a criminal case, evidence of a pertinent trait of character [may be] offered by an accused, or by the prosecution to rebut the same[.]" The district court excluded the evidence, stating that it understood Defendant's argument, but that this character evidence was not the same as other types admissible under Rule 11-404. The district court then restricted the character inquiry to Defendant's general character as a moral and law-abiding citizen. Defense counsel informed the court that he did not want to ask the three possible character witnesses about this general character trait. Defense counsel later elected to ask only one of the three possible character witnesses about Defendant's character as a moral and law-abiding citizen, and the one he did ask responded that Defendant had such a character.

On appeal, Defendant contends that other jurisdictions have recognized the moral and safe treatment of children or other comparable attributes to be character traits under evidentiary rules like New Mexico's Rule 11-404. See Thomas v. State, 669 S.W.2d 420, 421, 423 (Tex. Ct. App. 1984) (good character for the safe and proper treatment of young children); Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002) (same); People v. McAlpin, 812 P.2d 563, 576 (Cal. 1991) (in banc) ("normalcy in . . . sexual tastes" (internal quotation marks omitted)); State v. Cunningham, 82 N.W. 775, 779 (Iowa 1900) ("humane and kindly disposition towards children" (internal quotation marks omitted)); State v. D.B.S., 700 P.2d 630, 637-38 (Mont. 1985) ("an honest man and a good parent who would not injure his child"), overruled on other grounds by State v. Olson, 951 P.2d 571 (Mont. 1997); State v. Anderson, 686 P.2d 193, 204 (Mont. 1984) (orthodox sexual mores); State v. Workman, 471 N.E.2d 853, 861 (Ohio Ct. App. 1984) (excellent with children). But see Hendricks v. State, 34 So.3d 819, 822-23 (Fla. Dist. Ct. App. 2010) (holding that the defendant's character for sexual morality was inadmissible where the defendant was being prosecuted for sexual battery on a child less than twelve years of age because "whether one secretly molests children or does not would not be openly exhibited to the community" (internal quotation marks and citation omitted)), cert. granted, 49 So.3d 746 (Fla. 2010).

Assuming without deciding that the district court erred in excluding evidence of Defendant's character for the safe and moral treatment of children in this case, we nevertheless conclude that the error was harmless. Because the alleged error in this case involves an evidentiary ruling, we employ the non-constitutional standard for the harmless error analysis. In State v. Barr, our Supreme Court clarified the boundary between non-constitutional and constitutional error for the purpose of harmless error analysis. 2009-NMSC-024, ¶¶ 52-53, 146 N.M. 301, 210 P.3d 198. With respect to the non-constitutional standard, the Barr Court stated:

[W]here a defendant has established a violation of statutory law or court rules, non-constitutional error review is appropriate. A reviewing court should only conclude that a non-constitutional error is harmless when there is no reasonable probability the error affected the verdict.

Id. ¶ 53.

The Barr Court applied a non-constitutional harmless error analysis to the erroneous admission of a videotaped statement in violation of the New Mexico Rules of Evidence, id. ¶ 58 and, since Barr was decided, our appellate courts have consistently applied a non-constitutional standard where the error concerns a violation of statutory law or court rules, such as an evidentiary ruling by the trial court. See State v. Wilson, 2011-NMSC-001, ¶¶ 30, 39, 149 N.M. 273, 248 P.3d 315 (applying non-constitutional harmless error analysis after assuming that the trial court improperly admitted opinion testimony in violation of Rule 11-702 NMRA); State v.Branch, 2010-NMSC-042, ¶¶ 14, 15, 148 N.M. 601, 241 P.3d 602 (employing the non-constitutional standard for harmless error analysis because the error was an evidentiary error involving a violation of Rule 11-404(B)); State v. Johnson, 2010-NMSC-016, ¶ 43 n.3, 148 N.M. 50, 229 P.3d 523 (noting that if the defendant had raised a Rule 11-404(B) challenge and if the court were to determine that the evidence was admitted in error, the error was harmless under a non-constitutional error analysis); State v. Torrez, 2009-NMSC-029, ¶¶ 26, 33, 146 N.M. 331, 210 P.3d 228 (applying non-constitutional harmless error analysis to the erroneous admission of expert testimony in violation of Rule 11-403 NMRA); State v. Marquez, 2009-NMSC-055, ¶ 20, 147 N.M. 386, 223 P.3d 931 (determining that non-constitutional harmless error analysis is appropriate where there was "improper admission of . . . scientific testimony [in violation of] the New Mexico Rules of Evidence"), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, __ N.M. __, __ P.3d __; State v. Tom, 2010-NMCA-062, ¶ 16, 148 N.M. 348, 236 P.3d 660 (applying non-constitutional harmless error analysis to an erroneous evidentiary ruling), overruled on other grounds by Tollardo, 2012-NMSC-008.

Consistent with Barr, a constitutional harmless error analysis is appropriate in cases where an erroneous evidentiary or procedural ruling implicates the defendant's constitutional rights. See, e.g., State v. Aragon, 2010-NMSC-008, ¶¶ 35, 37, 147N.M. 474, 225 P.3d 1280 (applying constitutional harmless error analysis where the...