State v. Gallegos, 29,538.

Citation152 P.3d 828, 2007 NMSC 007
Case DateFebruary 23, 2007
CourtSupreme Court of New Mexico
152 P.3d 828
2007 NMSC 007
STATE of New Mexico, Plaintiff-Petitioner,
Leonardo GALLEGOS, Defendant-Respondent.
No. 29,538.
Supreme Court of New Mexico.
February 23, 2007.

[152 P.3d 830]

Gary K. King, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, NM, for Petitioner.

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


CHÁVEZ, Chief Justice.

{1} Having granted the parties' motions for rehearing, we withdraw our opinion filed on February 1, 2007 and substitute the following in its place.

{2} Arguing that the trial court abused its discretion when it denied his motion to sever charges related to two victims, Defendant Leonardo Gallegos appeals his convictions of one count of criminal sexual contact of a minor ("CSCM") and two counts of aggravated indecent exposure. The Court of Appeals reversed Gallegos's convictions after determining that Gallegos was prejudiced by the trial court's denial of his motion to sever. State v. Gallegos, 2005-NMCA-142, ¶¶ 32-33, 41, 138 N.M. 673, 125 P.3d 652. On certiorari, the State contends that Gallegos was not prejudiced because the evidence pertaining to each victim would have been cross-admissible had separate trials occurred.

{3} We conclude that, because the evidence would not have been cross-admissible at separate trials, the trial court abused its discretion in failing to sever the charges. Nonetheless, we reverse the Court of Appeals's reversal of Gallegos's two convictions of aggravated indecent exposure. We do so because we do not believe that, under the circumstances, the jury misused the CSCM evidence to convict Gallegos of indecent exposure. At the same time, however, we affirm the Court of Appeals's reversal of Gallegos's conviction of CSCM. Under the circumstances of this case, we are not confident the jury did not misuse the evidence pertaining to another victim to convict Gallegos of CSCM.


{4} Gallegos went to trial on a single indictment charging twelve counts stemming from incidents that occurred while he was a guard at the Youth Diagnostic and Detention Center ("YDDC"). In seven of those counts, the State alleged that Gallegos used his position of authority to commit CSCM against a female YDDC resident, Jamie S. At trial, Jamie S. testified that her encounters with Gallegos were consensual, that Gallegos did not use his authority to coerce her, and that out of the seven alleged incidents she only objected once-when Gallegos placed her hand on his penis. Because of this, the trial court granted Gallegos's motion for a directed verdict on six of the seven counts pertaining to Jamie S. Gallegos was convicted of the remaining count of CSCM.

{5} The other five counts pertained to incidents involving Ursula C., another female YDDC resident. Gallegos was charged with three counts of aggravated indecent exposure for allegedly exposing himself and masturbating in front of Ursula C. while she was housed in a solitary observation room. At the time of the incidents, Gallegos was in a

152 P.3d 831

control room separated from Ursula C. by a glass window. Gallegos was also charged with two counts of contributing to the delinquency of a minor for allegedly asking Ursula C. to disrobe on two different occasions.

{6} The trial court dismissed one of the contributing to the delinquency counts because only one was supported by the evidence adduced at trial. Gallegos was ultimately convicted of two of the three indecent exposure counts submitted to the jury, but acquitted of the remaining contributing to the delinquency count. The trial court consecutively sentenced Gallegos for a total of six years of incarceration — three years for CSCM and eighteen months each for the two indecent exposure convictions — conditionally suspended on five years of supervised probation.

{7} Before trial, Gallegos filed a motion to sever the counts pertaining to Jamie S. and Ursula C. Gallegos's main argument to the trial court was that prejudice would result from a joint trial of the offenses because evidence pertaining to each victim would not be cross-admissible as "other crimes" if the trials were held separately. The State responded that no prejudice would result because evidence pertaining to each victim would be cross-admissible at separate trials to help the jury in each trial "understand the defendant's motive, intent, preparation, plan, and identity." Concluding that the evidence pertaining to both victims would be cross-admissible at separate trials, the trial court denied the motion. The trial court based its ruling on its belief that Gallegos used his position as a guard at YDDC as an opportunity to prey on girls for sexual purposes. Thus, according to the trial court, evidence pertaining to each victim would be cross-admissible at separate trials to show Gallegos's "continuing scheme or plan" under Rule 11-404(B) NMRA.

{8} The Court of Appeals reversed Gallegos's convictions and remanded for two new trials. Gallegos, 2005-NMCA-142, ¶ 1, 138 N.M. 673, 125 P.3d 652. The Court concluded that if separate trials were held, evidence specifically pertaining to Jamie S. and Ursula C. would not be cross-admissible at the other trial under Rule 11-404(B)'s "common plan or scheme" exception. Id. ¶¶ 24-27. Further, according to the Court, "[w]hen evidence of prior bad acts evidence is admitted in violation of Rule 11-404(B)" at a trial of joined offenses, "`prejudice is established when there are convictions' because `we will not speculate that the erroneous admission of other crimes did not cause a compromise verdict of guilty of some charges and not guilty of others.'" Id. ¶ 32 (quoting State v. Jones, 120 N.M. 185, 190, 899 P.2d 1139, 1144 (Ct.App.1995)). However, even though the State did not raise the issue, the Court went on to "assume, without deciding," that the separate evidence would be cross-admissible under Rule 11-404(B)'s "opportunity" exception. Id. ¶ 30. After conducting an analysis pursuant to Rule 11-403 NMRA, the Court of Appeals determined that evidence pertaining to each victim would, nonetheless, not be cross-admissible at separate trials due to its overwhelming prejudicial impact and limited probative value. Id. ¶¶ 30-31. Finally, assuming the evidence to be admissible at separate trials under Rule 11-404(B), but not under Rule 11-403, the Court conducted a harmless error analysis. The Court of Appeals ultimately concluded that Gallegos was prejudiced by a joint trial because there was a reasonable probability that the erroneously combined evidence contributed to his three convictions. See id. ¶ 33.


A. Even Though Offenses Are Properly Joined, A Trial Court Abuses Its Discretion in Failing to Sever When the Defendant Is Prejudiced at the Time the Motion Is Made

{9} In its brief-in-chief, the State appears to argue that the trial court did not abuse its discretion in rejecting Gallegos's motion to sever because joinder of the offenses was proper. We agree that joinder was proper as an initial matter. However, this does not alter the fact that a trial court may abuse its discretion in failing to sever charges. The issue of joinder is not so inextricably linked with the issue of severance such that a prosecutor's proper exercise of the former means that a court never abuses its discretion when it refuses to exercise the latter.

152 P.3d 832

{10} Regarding joinder of offenses, our rules provide:

Two or more offenses shall be joined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.

Rule 5-203(A) NMRA (emphasis added). It is important to recognize that Rule 5-203(A) is not a discretionary or permissive rule; it demands that the State join certain charges. At common law, whether charges should be joined in the same indictment "was a matter of prudence and discretion which . . . rest[ed] with the judges to exercise." State v. Compton, 57 N.M. 227, 240-41, 257 P.2d 915, 924 (1953) (quoted authority omitted). Our rule as originally promulgated was discretionary and reflected the common law. See NMSA 1953, § 41-23-10 (1972) (providing that "[t]wo . . . or more offenses may be joined"); see also Fed.R.Crim.P. 8(a) ("The indictment or information may charge a defendant in separate counts with 2 or more offenses. . . ."). The original rule was based on the 1968 draft of the American Bar Association Standards Relating to Joinder and Severance, Section 1.1. Rule 5-203 NMRA committee commentary; see also State v. Gregory, 66 N.J. 510, 333 A.2d 257, 262 n. 4 (1975) (noting that the ABA rule "does not require procedural joinder of the charges by the prosecuting attorney"). The primary focus of such a discretionary rule is the promotion of judicial efficiency. See 1A Charles Alan Wright, Federal Practice and Procedure § 141, at 5 (3d ed.1999).

{11} We recognized over thirty years ago, however, that requiring prosecutors to "get[] their facts straight, their theories clearly in mind and trying all charges together" has the salutary effect of avoiding prejudice to the defendant. State v. Tijerina, 86 N.M. 31, 36, 519 P.2d 127, 132 (1973). Around the same time as Tijerina, and based on this same concern, numerous other jurisdictions began requiring prosecutors to charge together all crimes arising from a defendant's conduct or series of acts. This was done either legislatively, through interpretation of a particular state's constitution or statute, or through a court's general supervisory power over rules of criminal procedure. Allan D. Vestal & Douglas J. Gilbert, Preclusion of Duplicative Prosecutions: A Developing...

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