State v. Delgado

• Decision Date: 23 May 1991
• Docket Number: No. 12266,12266
• Citation: 112 N.M. 335,815 P.2d 631,1991 NMCA 64
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernie DELGADO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 631

815 P.2d 631

112 N.M. 335

STATE of New Mexico, Plaintiff-Appellee, v.Ernie DELGADO, Defendant-Appellant.

No. 12266.

Court of Appeals of New Mexico.

May 23, 1991.

Certiorari Denied July 8, 1991.

[112 N.M. 336] Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Lorenzo Tapia, Miguel P. Campos, Law Offices of Tapia & Campos, Albuquerque, for defendant-appellant.

OPINION

HARTZ, Judge.

Defendant appeals from convictions of two counts of criminal sexual penetration of a minor under thirteen (CSPM) and one count of contributing to the delinquency of a minor (CDM).Defendant contends that (1) the CSPM statute is void for vagueness; (2)the trial court erred in withholding a photograph from the jury and in ruling that his own testimony authenticating the photograph would constitute a waiver of his right against self-incrimination; (3)the trial court erred in permitting testimony by John Halverson about defendant's alleged misconduct subsequent to the date of the charges for which he was convicted; (4)the trial court should have instructed on alibi; (5) the CDM conviction should be set aside because CDM is a lesser included offense of CSPM; (6)he received ineffective assistance of counsel; (7)the trial court's improper remarks and the prosecutor's misconduct denied him a fair trial; (8)he was improperly denied court appointment of a psychologist to conduct an independent evaluation for use at sentencing; (9) the verdict was not supported by sufficient evidence; and (10) the record is impermissibly defective.We affirm.

1.VAGUENESS

Criminal sexual penetration (CSP) is defined as:

the unlawful and intentional causing of a person, other than one's spouse, to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse, or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

NMSA 1978, Sec. 30-9-11(Cum.Supp.1990).The jury was instructed in accordance with the Uniform Jury Instruction that defines fellatio as "the touching of the penis with the lips or tongue."SCRA 1986, 14-982.Defendant's vagueness claim is that there is ambiguity in the statute as to (1) whether the fellatio must involve the defendant's penis and (2) whether penetration is required.

We find no ambiguity in the statute with respect to the required role of the defendant.The acts of sexual intercourse, cunnilingus, fellatio, and anal intercourse all require two persons.CSP is perpetrated whenever a person unlawfully and intentionally causes another person to engage in any of those acts.The natural reading of that language is that a person engages in one of the four listed acts if that person is one of the two persons required for the performance of the act.Nothing in the statute suggests otherwise.On the contrary, the genderless language used in the statute makes clear that the defendant can be either male or female.SeeModel Penal Code and Commentaries, Sec. 213.1 comment 8, at 335 n. 169(1980).Thus, the offense need not involve the defendant's penis.Also, the second portion of the statutory definition of CSP, which forbids "causing of penetration," indicates that the legislature made a considered judgment that it was not just the person causing penetration who could be held culpable under the first portion of the definition.Furthermore, we can discern no reason why the statute should be interpreted to encompass fellatio only when the defendant's penis is involved.In short, we find no ambiguity in this respect because defendant's proposed alternative construction of the statute is not a reasonable one.

As for whether fellatio requires penetration, the Uniform Jury Instruction defining fellatio is an authoritative construction promulgated by the New Mexico Supreme Court.The definition of fellatio in the instruction does not contain a requirement of penetration.Moreover, the supreme court has held that, despite the heading "Criminal sexual penetration" for Section 30-9-11, the offense does not require penetration.SeeState v. Orona, 97 N.M. 232, 638 P.2d 1077(1982)(cunnilingus).Our conclusion is not undermined by defendant's observation that fellatio without penetration is encompassed by the definition of criminal sexual contact in NMSA 1978, Section 30-9-12(Repl.Pamp.1984).Because Section 30-9-11 deals explicitly with fellatio, it is the more specific statute and therefore governs such conduct.SeeState v. Riley, 82 N.M. 235, 478 P.2d 563(Ct.App.1970).

2.ADMISSIBILITY OF PHOTOGRAPH

a. Sufficiency of Authentication

The victim testified that he could date the alleged offenses for which defendant was convicted because they occurred when defendant gave him a jacket around Christmas of 1985.Defendant's Exhibit A is a Polaroid photograph of the victim sitting inside on a couch, wearing a short-sleeved shirt.The victim is looking at a jacket lying on the couch to his right.Under his left arm is a white box.Defendant's theory was that the photograph shows the victim just after removing the jacket from a gift box and the photograph was taken with a Polaroid camera given to the victim on his thirteenth birthday in March 1986.If so, the photograph would be useful both to reduce the seriousness of the felony (the penalty for CSP is reduced once the child victim reaches thirteen, Sec. 30-9-11(A)(1)) and to impeach prosecution witnesses.

The court conditionally admitted the exhibit into evidence and permitted defense counsel to use it to cross-examine the victim and the victim's mother.The victim acknowledged that the jacket in the photograph was the one given him by the defendant, that the box on his left could have been the box in which the jacket came, and that he received a Polaroid camera for his thirteenth birthday.Defendant's cross-examination of the victim and his mother failed, however, to elicit the date on which the photograph was taken.

At the conclusion of the state's case-in-chief the state moved to have the exhibit "removed from evidence on the grounds that the picture is not self explanatory" and that a proper foundation had not been established for its admission.The trial court ruled that the exhibit would not go to the jury "unless someone can take the stand and testify that they were either there when the picture was taken and saw the picture taken or that they took the photograph and can place a time on it, because the time in this case is critical and you [have] no evidence as to when it was taken."

The scope of our review of the judge's decision is solely to determine whether the decision constituted an abuse of discretion.SeeState v. Young, 103 N.M. 313, 706 P.2d 855(Ct.App.1985).We find no abuse of discretion here.The exhibit was admitted conditionally, contingent upon defendant's establishing a proper foundation for the exhibit.SeeSCRA 1986, 11-104(B)(court may admit evidence subject to the introduction of evidence necessary to fulfill the condition).See alsoThomas v. Burlington N. R.R., 203 Neb. 507, 279 N.W.2d 369, 372(1979)("photograph is admissible if it is relevant and shown to be a true and correct representation of the place or subject it purports to depict at a time pertinent to the inquiry").Here, the trial court could properly find that the photograph was not self-authenticating and that defendant's cross-examination of the victim and his mother did not adequately establish a foundation for the admission of the exhibit.SeeState v. Henderson, 100 N.M. 260, 669 P.2d 736(Ct.App.1983).

Also supporting our determination that there was no abuse of discretion is the fact that the court did not strike the victim's testimony regarding the photograph.Thus, a witness adverse to defendant admitted before the jury the essential contents of the photograph.Because of that disclosure of the substance of the photograph, the court could reasonably decide that admission of the photograph itself would serve mainly to emphasize the photograph and feed unwarranted speculation.

b. Scope of cross-examination permitted if defendant gives authentication testimony

After the trial court's ruling on admission of the photograph, defendant sought to testify regarding the date and circumstances of the taking of the photograph.Defendant contended that he should be permitted to testify without being subject to cross-examination on any matter except credibility.The trial court advised defendant that if he testified, he would be subject to cross-examination on any matter relevant to the trial.Defendant elected not to take the stand.

Defendant challenges the trial court's ruling on what the scope of cross-examination would be if he testified.¹He relies on two rules of evidence, SCRA 1986, 11-104(D) and 11-608(B)(2).Rule 11-104 states:

Preliminary questions.

A.Questions of admissibility generally.Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of Paragraph B.In making his determination he is not bound by the Rules of Evidence except those with respect to privileges.

B.Relevancy conditioned on fact.When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

C.Hearing of jury.Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.Hearings on other preliminary matters shall be so conducted when the interests of justice require.

D.Testimony by accused.The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

E.Weight and credibility.This rule does not limit the right of a party...