State v. Ervin

• Decision Date: 10 October 2007
• Docket Number: No. 25,887.,25,887.
• Citation: 2008 NMCA 016,177 P.3d 1067
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Derrick ERVIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

177 P.3d 1067

2008 NMCA 016

STATE of New Mexico, Plaintiff-Appellee, v. Derrick ERVIN, Defendant-Appellant.

No. 25,887.

Court of Appeals of New Mexico.

October 10, 2007.

Certiorari Denied, No. 30,739, January 22, 2008.

Gary K. King, Attorney General Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

Convicted of one count of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, § 30-9-11(A), (C) (2003), five counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, § 30-9-13(A) (2003), one count of tampering with evidence, contrary to NMSA 1978, § 30-22-5 (2003), fourteen counts of sexual exploitation of children by manufacturing of child pornography, contrary to NMSA 1978, § 30-6A-3(D) (2001), and four counts of sexual exploitation of children by possession of child pornography, contrary to Section 30-6A-3(A), Defendant Derrick Ervin appeals. We reverse two of Defendant's convictions for CSCM as a violation of double jeopardy and affirm his remaining convictions.

FACTS AND PROCEDURAL HISTORY

Defendant's wife, Child's mother, found compromising pictures of Child, who was Defendant's step-daughter, on the family's home computer. When confronted about the pictures, Defendant tore the computer cables out of the wall, threw the computer down onto a porch, destroyed the hard drive with barbells, and "disposed of the computer into a garbage receptacle. Defendant's wife called the police, who searched the home and found a digital camera containing more compromising photographs of Child. They also found other, unrelated child pornography.

A criminal information was filed on February 3, 2004, charging Defendant with multiple crimes. Defendant waived his right to a preliminary hearing. On December 30, 2004, pursuant to a court order and prior to the commencement of trial, Child gave a videotaped deposition in lieu of her trial testimony. Prior to Child's deposition, the State informed Defendant if Child testified that Defendant had penetrated her in any way, it would add additional charges of CSPM. Defendant agreed to this arrangement. During the deposition, Child testified that Defendant licked her vagina and gave her a full-body massage. Defendant declined to cross-examine Child during the deposition.

On January 3, 2005, the State filed an Amended Criminal Information, adding a charge of CSPM, and removing eight previously charged sexual exploitation of children counts. There was no preliminary hearing on the charge of CSPM, and Defendant did not waive a preliminary hearing. On January 5, 2005, before trial, the State told the district court of the prior agreement with Defendant that a charge of CSPM could be added if Child was able to articulate the necessary evidence. During the same conversation with the district court, Defendant indicated to the State that he would be ready to proceed to trial. The district court judge asked Defendant if he understood the additional charge and Defendant said that he understood. Defendant entered pleas of not guilty to all of the charges. The trial then commenced.

After the defense rested, Defendant moved for a mistrial. Defendant alternatively moved to dismiss the CSPM count, based on its late addition to the charges and because Defendant did not cross-examine Child regarding penetration during the deposition because the CSPM count had not yet been added. Defendant acknowledged the agreement with dip State regarding the additional charge, but contended that he did not think Child's deposition testimony would be sufficient to support a charge of CSPM. Defendant also argued that he was effectively denied cross-examination because the district court would not allow the defense to present evidence from Defendant's parents and Child's mother to rebut Child's allegations.

Defendant's ten issues on appeal generally fall into four categories: (1) evidentiary errors by the district court, in allowing testimony from the following witnesses: the sexual assault nurse examiner (SANE), Detective Yoakum, and Child's grandmother; (2) procedural errors by the district court, in allowing the amendment of the criminal information, refusing to give a jury instruction for a lesser-included charge of CSCM, and depriving Defendant of a right to present a defense; (3) a violation of Defendant's right to be free from double jeopardy; and (4) general errors by the district court, in allowing a conviction where there was insufficient evidence, and cumulative error. While we agree with Defendant concerning a violation of the double jeopardy rule, we do not find support for his other arguments.

DISCUSSION

I. Evidentiary Issues

A. The SANE Nurse's Testimony Regarding Child's "Vaginal Vault"

Defendant argues that the SANE nurse's testimony that she could see Child's "vaginal vault" is reversible error. Prior to trial, Defendant made a motion in limine to the district court regarding the SANE nurse's testimony. The State advised the district court that it would not be inquiring into penetration, although it conceded that it would broach the topic if Defendant were to open the door. The State also informed the district court that it had already instructed the SANE nurse to "stay away from" the topic of penetration.

The SANE nurse testified about her examination of Child. Her testimony was as follows: "[T]o visualize the vagina, I take my hands and gently grab ahold of the labia, pull out and open, and on someone of [Child's] age I shouldn't be able to see into the vagina vault which I was able to do." Defendant immediately objected, approached the court for a bench conference, asked the district court for a mistrial, and twice requested that the court strike the nurse's testimony. The district court ruled that as long as the. SANE nurse did not state any conclusions, he would continue to allow her to testify. The district court then allowed the State to continue its examination, without striking the testimony. Defendant argues on appeal that the testimony violated Rules 11-401 and 11-403 NMRA.

We review the district court's evidentiary ruling under an abuse of discretion standard. State v. Saavedra, 103 N.M. 282, 284, 705 P.2d 1133, 1135 (1985). An abuse of discretion occurs when the district court's decision can be characterized as "clearly untenable or not justified by reason." State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (internal quotation marks and citation omitted). "Abuse of discretion has also been defined as being clearly against the logic and effect of the facts and circumstances before the court." State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993).

Defendant argues that the testimony violated Rule 11-401 because it was not relevant to the charge of CSPM. Rule 11-401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We agree with Defendant that the SANE nurse's testimony was not strictly relevant to the charge of CSPM, charging that Defendant "licked" Child's vagina. Although the State did not do anything to elicit the testimony given by the SANE nurse, it obviously did not prepare her as it said it had, since when asked about how she performed the exam, she proffered this irrelevant, possibly inflammatory testimony. We worry because of the possibility to infer a connection between an "enlarged vaginal vault" and penetration as a cause. This testimony invites jurors to speculate from an irrelevant fact about why Child's "enlarged vaginal vault" was of import in this case.

We defer to the discretion of the district court in the admission or exclusion of such evidence. Saavedra, 103 N.M. at 284, 705 P.2d at 1135. We also apply a harmless error standard to the admission of evidence. State v. Gonzales, 2000-NMSC-028, 1132, 129 N.M. 556, 11 P.3d 131. Although we agree with Defendant that the evidence was not relevant and was potentially troublesome, we cannot say that the testimony resulted in harmful error. "Error in the admission of evidence in a criminal trial must be declared prejudicial and not harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Clark v State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991). We cannot hold that the admission of the SANE nurse's testimony was harmful error, contributing to Defendant's conviction, in light of the full scope of her testimony.

Although the SANE nurse's testimony might rise to an inference of vaginal penetration, there was no other testimony at trial specifically regarding penetration. Indeed, the SANE nurse herself testified on both direct and cross-examination that Child never told her that Defendant touched her vagina. The SANE nurse did not explain what she meant by an enlarged vaginal vault, nor was this testimony emphasized again by the State or the district court. The jury was instructed to find Defendant guilty of CSPM if the State proved the following elements beyond a reasonable doubt: "The [D]efendant caused [Child] to engage in cunnilingus or caused the insertion, to any extent, of a tongue into the vulva or vagina of [Child.]" The jury was further instructed that "cunnilingus" included touching the edge. or inside of the female sex organ with the tongue or lips. See, e.g., State v. Paiz, 2006-N1VICA-144, ¶ 52, 140 N.M. 815, 149 P.3d 579. We cannot conclude from the SANE nurse's testimony, that the jury inferred that Defendant inserted his tongue into Child's vagina to cause the observed condition, when even Child's testimony indicates that he only "licked" her vagina. We therefore hold that the SANE nurse's statement was not prejudicial to Defendant and could...