State v. Gallegos

• Citation: 2005 NMCA 142,125 P.3d 652
• Decision Date: 28 October 2005
• Docket Number: No. 24,480.,24,480.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Leonardo GALLEGOS, Defendant-Appellant.
• Court: Supreme Court of New Mexico

125 P.3d 652

2005 NMCA 142

STATE of New Mexico, Plaintiff-Appellee, v. Leonardo GALLEGOS, Defendant-Appellant.

No. 24,480.

Court of Appeals of New Mexico.

October 28, 2005.

Certiorari Granted, No. 29,537, December 12, 2005.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} Defendant was convicted of one count of criminal sexual contact of a minor in the third degree by a person in a position of authority against Jamie S., and two counts of aggravated indecent exposure against Ursula C. NMSA 1978, § 30-9-13(A) (1990); NMSA 1978, § 30-6-3 (1990). The dispositive issue on appeal is whether Defendant was entitled to a separate trial involving each victim. Concluding that the counts regarding Jamie should have been severed from the counts regarding Ursula, we reverse and remand for two new trials.

BACKGROUND

{2} Defendant was a juvenile correction officer (guard) at the Youth Diagnostic and Detention Center (YDDC) in Albuquerque, New Mexico, in which minors were incarcerated, and the victims were residents of YDDC under Defendant's control and supervision. Counts 1-7 of the indictment alleged offenses against Jamie. The indictment charged that between September 1, 1998, and January 19, 1999, Defendant engaged in criminal sexual contact of a minor in the third degree by a person in a position of authority by touching Jamie's breasts on three occasions (Counts 1-3), touching her buttocks on three occasions (Counts 4-6), and having her touch his penis on one occasion (Count 7). The remaining counts alleged offenses against Ursula, charging that in a similar time frame, Defendant committed aggravated indecent exposure against Ursula on three occasions (Counts 8-10), and on two occasions asked Ursula to disrobe for him, thereby contributing to the delinquency of a minor (Counts 11-12).

{3} In a separate, earlier-filed indictment, it was alleged that in the same time frame Defendant sexually penetrated M.G., a minor, who was incarcerated at YDDC while under Defendant's control and supervision as a juvenile correctional officer. The State filed a motion to consolidate both indictments in a single trial. The judge who was presiding over the separate indictment (Judge Allen) denied the State's motion on the basis that the evidence pertaining to each victim would not be cross-admissible in separate trials and unfair prejudice would result in a joint trial involving all three victims. He expressly relied on State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, in his ruling.

{4} In this case, Defendant then filed a motion for separate trials on Counts 1-7 involving Jamie and Counts 8-12 involving Ursula. Defendant alleged that he would be unduly prejudiced in a joint trial, that evidence of the counts involving Jamie would not be admissible in a separate trial on the counts involving Ursula, that evidence as to one victim would allow the jury to unfairly infer criminal disposition as to the other alleged victim, and that the prejudice in a joint trial outweighed any consideration of judicial economy. The motion was denied, notwithstanding Judge Allen's earlier ruling refusing to consolidate both indictments into a single trial. The basis expressed by the trial court was that "it appear[ed] that the central thrust of the evidence would be to show that both are part of a continuing scheme or plan which by its nature was ongoing throughout this period of time that involved both girls and the Defendant's employment." The court also noted that "one of the areas that evidence from both cases could be used in the other [would be] to show there was opportunity." The specific type of opportunity to which the court referred was that Defendant used his position of authority as a guard "to create and further opportunities for access to the girls who were housed at that facility for sexual reasons." In particular, Defendant, by virtue of his position, was able to utilize acts of favor to gain access to the girls, as well as put the girls in a position where the alleged offenses could take place.

{5} Jamie testified that she first met Defendant while she was a resident of YDDC during the fall of 1998. For the first month of their relationship, Jamie and Defendant would talk occasionally but generally behaved like any other resident and any other guard. However, their relationship changed when they began talking during a dinner held in the facility's chapel. Following that conversation, Defendant attempted to kiss Jamie in the hallway of the chapel. Several days later, Defendant entered the facility's cafeteria while Jamie was cleaning up after dinner. The couple ended up in a nearby restroom where they began kissing. Jamie testified that, while they were in the restroom kissing, Defendant "put his hand on [her] butt and breast." She was not scared and she enjoyed it. Further, Jamie thought Defendant was "extremely handsome" and she "felt lucky" when he showed interest in her. Jamie and Defendant continued to have three to four such encounters per week. During one such encounter, Defendant got Jamie's hand and he put her hand on his penis when they were kissing. On this single occasion, Jamie "got scared and ... pulled away" from Defendant. During cross-examination, Jamie testified that her relationship with Defendant could be properly characterized as girlfriend and boyfriend. In addition to her physical contact with Defendant, Jamie would write him letters and call him at home. Finally, she said that Defendant did not coerce or force her at any time, nor did he threaten her by virtue of his position as a guard if she rebuffed his advances.

{6} Ursula testified that she was also a resident at YDDC in 1998. When she first met Defendant, she would occasionally have casual, friendly conversations with him. However, shortly after they met, Defendant's attitude toward her began to change. When Defendant was alone with Ursula, he was friendly toward her and frequently complimented her. He would also occasionally bring her snacks. However, when other people were around, he would curse at her and call her foul names.

{7} Ursula had difficulty following the rules at YDDC. As a result, the YDDC staff placed her into a special unit known as the Adjustment Unit. The YDDC staff also frequently moved her to an observation room where she could be constantly watched. The observation room was a single small room equipped with a mattress, a toilet, and a sink. It contained a large window of one-way glass that separated the adjacent control unit from the observation room. The glass allowed staff in the control unit to see into the observation room while preventing the resident in the observation room to see into the control unit. From the control unit, YDDC staff controlled the lights in both the control unit and the observation room. While she was in the observation room, Ursula was able to communicate with the staff in the control unit by way of a speaker system.

{8} While it was not generally possible to see from the observation room into the control room, Ursula testified that, if the lights in the observation room and the control unit were turned off, it was possible to see into the control unit from the observation room. Ursula recalled that while she was in the observation room there were a few times when the lights were adjusted such that she could see into the control unit. On these occasions, Defendant was usually in the control unit. The first time that she was able to see into the control room, Ursula "didn't really know what was going on." Defendant was speaking to her and "doing something" but she "didn't know what it was." Thinking about it, she "kind of figured out, like, he was like touching himself and asking [her] if [she] liked it or if it was cool." Ursula testified that on two subsequent occasions, the lights were turned off so that she could see into the control unit and she observed "[Defendant] jacking off in front of [her]." On yet a separate occasion when she was in the observation room, Defendant "told [her] to take [her] shirt off or just flash him." She refused.

{9} In voir dire the prospective jurors were advised by the trial court that Defendant was charged with seven counts of criminal sexual contact of a minor in the third degree by a person in a position of authority, three counts of aggravated indecent exposure, and two counts of contributing to the delinquency of a minor.

{10} After the State rested, Defendant's motion for a directed verdict on Counts 1-6 was granted on grounds that there was an absence of evidence that Defendant used his position to coerce Jamie to submit to criminal sexual contact. The State stipulated to a directed verdict on one count of contributing to the delinquency of a minor (Count 12), and it was also removed from the jury's consideration. Counts 7-11 of the indictment were then renumbered as Counts 1-5. The jury was never advised that Counts 1-6 and 12 of the indictment were dismissed or given any instructions on how to treat the evidence that was admitted as to these dismissed charges.

{11} The jury was instructed on a single count of criminal sexual contact of a minor by use of coercion by a person in a position of authority as to Jamie and three counts of indecent exposure and one count of contributing to the delinquency of a minor involving Ursula. Defendant did not testify. His attorney relied on inconsistencies in Jamie's and Ursula's testimony and the duty of the State to prove the crimes beyond a reasonable doubt in his closing statement to argue for an acquittal.

{12} The jury found Defendant guilty of criminal sexual contact of a minor in the third degree by a person in a position of authority on the charge...