State v. Garcia

• Docket Number: A-1-CA-40111
• Decision Date: 31 July 2023
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. VINCENTE C. GARCIA a/k/a VINCENTE GARCIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. VINCENTE C. GARCIA a/k/a VINCENTE GARCIA, Defendant-Appellant.

No. A-1-CA-40111

Court of Appeals of New Mexico

July 31, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Alisa A. Hart District Court Judge

Raul Torrez, Attorney General Laurie Blevins, Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Allison H. Jaramillo Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} Following a jury trial, Defendant was convicted on twelve counts: five counts of criminal sexual penetration of a minor (CSPM) in the second degree (child age thirteen to eighteen), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009); three counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13 (2003); one count each of possession, distribution, and manufacture of child pornography, contrary to NMSA 1978, Section 30-6A-3(A), (C), (E) (2016); and one count of aggravated battery (great bodily harm), contrary to NMSA 1978, Section 30-3-5(A), (C) (1969). Defendant argues (1) the two-month charging period violated his right to due process; (2) the district court erred in refusing to exclude late-disclosed evidence; (3) the district court erred in admitting evidence, which he contends the State failed to properly authenticate; (4) there was insufficient evidence to sustain any of his convictions; and (5) certain convictions violate double jeopardy. We affirm

{¶2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural background, we reserve discussion of the pertinent facts within the context of Defendant's arguments.

DISCUSSION

I. The Length of the Charging Period Did Not Violate Defendant's Right to Due Process

{¶3} The State charged Defendant with twelve counts, which the indictment alleged occurred "on or between November l, 2018 and December 31, 2018." On Defendant's motion, the State filed a bill of particulars, which included certain additional details and revised the charging period for two charges, but retained the two-month charging period for the remaining charges. Defendant argues the twomonth charging period violated his right to due process. We review whether a charging period violated a defendant's right to due process de novo. State v. Tafoya, 2010-NMCA-010, ¶ 7, 147 N.M. 602, 227 P.3d 92.

{¶4} At stake is Defendant's due process right to reasonable notice of the charges against him in order to prepare his defense. See State v. Baldonado, 1998-NMCA-040, ¶¶ 18, 20, 124 N.M. 745, 955 P.2d 214. To determine whether the length of the charging period violated Defendant's due process right, we analyze the Baldonado factors, which "relate to both whether the indictment is reasonably particular and whether the defendant suffered prejudice." Id. ¶¶ 27, 29 (providing an illustrative list of factors to consider). "The [ Baldonado ] test reviews the reasonableness of the [s]tate's efforts at narrowing the time of the indictment and measures the potential prejudice to the defendant of the time frame chosen by the [s]tate." Baldonado, 1998-NMCA-040, ¶ 26.

{¶5} The district court made findings addressing certain Baldonado factors. Several findings, which Defendant does not dispute and our review confirms, weigh in favor of a determination that the indictment was "reasonably particular" such that Defendant had reasonable notice of the charges against him in order to prepare his defense. See id. As to the "surrounding circumstances," the district court found that Victim (A.M.), had alleged "a continuing course of conduct." See id. ¶ 27. The district court also found that Defendant had "frequent, unsupervised access" to A.M., see id., due to Defendant's status "[a]s the boyfriend of [A.M.]'s mother."

{¶6} Another Baldonado factor not specifically addressed in the district court's order also weighs against a due process violation. As to "[t]he length of the alleged period of time in relation to the number of individual criminal acts alleged," see id., the bill of particulars alleged that ten offenses occurred between November 1, 2018 and December 31, 2018. Based on the multiple offenses alleged in a two-month period, we conclude this factor also weighs in the State's favor.

{¶7} Defendant, however, argues that the charging period violated his right to due process, pointing to A.M.'s age and ability to particularize the date and time of the alleged offense, the extent and thoroughness of the State's efforts to narrow the time frame, and Defendant's inability to prepare an alibi defense. See id.

{¶8} As to the State's efforts, the district court found that "[t]he State re[]reviewed [A.M.]'s forensic interview and discovery in an effort to further narrow the time frame" and stated it was "satisfied the State has been thorough in its efforts to narrow the time frame." Even if, however, we were to conclude that these factors weighed in Defendant's favor, Defendant has not demonstrated that the two-month charging period prejudiced his defense. See id. ¶ 29 ("The [Baldonado] factors . . . relate to both whether the indictment is reasonably particular and whether the defendant suffered prejudice. If th[is] [C]ourt finds that the charge was not stated with reasonable particularity, it must then look to see if the [d]efendant is prejudiced by that failure."). "Prejudice must be both actual, not based on pure conjecture, and substantial in its impact on the defense." State v. Ervin, 2002-NMCA-012, ¶ 17, 131 N.M. 640, 41 P.3d 908. The defendant bears the burden of demonstrating prejudice. See Tafoya, 2010-NMCA-010, ¶ 16 (noting that the defendant was unable to adequately demonstrate that he was deprived of the ability to present an alibi defense).

{¶9} Defendant asserts that he was prejudiced by the two-month charging period because it made it "nearly impossible to adequately investigate possible defenses or assert an alibi defense." Apart from this assertion, however, Defendant does not explain what other defenses he could have pursued had the time frame been narrowed.

{¶10} As to "[w]hether the defendant c[ould] assert a plausible alibi defense," see Baldonado, 1998-NMCA-040, ¶ 27, Defendant's analysis of this factor is undeveloped, stating, "The motion for a [b]ill of [p]articulars asserted that [Defendant] was unable to prepare an alibi defense or formulate a specific defense without a narrower time[ ]frame." Defendant also fails to point to any evidence in the record suggesting that an alibi defense might have been "plausible." See id.; see also Tafoya, 2010-NMCA-010, ¶¶ 11, 16 (noting that the defendant attempted to prove prejudice to his proposed alibi defense through "evidence of an alibi-such as bank records, cell phone records, employment records, and vacation records"). But even had Defendant alleged evidence suggesting an alibi during portions of the charging period, it is not clear that such evidence would have affected the State's ability to prove its case, given that the district court found the charged conduct was based on a "continuous course of conduct" and that, "as the boyfriend of [A.M.]'s mother, . . . Defendant had frequent, unsupervised access to [A.M.]." See Tafoya, 2010-NMCA-010, ¶ 11 (noting that the state's evidence "about how often [the d]efendant might have had access to [the child] . . . did not lend itself to an alibi defense" and that the defendant's proposed alibi evidence would require a narrow time frame to be effective); id. ¶ 16 ("The [s]tate is not required to rely only on evidence that lends itself to an alibi defense." (internal quotation marks and citation omitted)). We conclude that Defendant has failed to demonstrate prejudice that was both "actual . . . and substantial in its impact on the defense." See Ervin, 2002-NMCA-012, ¶ 17. Accordingly, we conclude the length of the charging period did not violate Defendant's right to due process.

II. The District Court Did Not Err in Refusing to Exclude Late-Disclosed Evidence

{¶11} Defendant next argues the district court erred in refusing to exclude the State's untimely disclosed text message evidence. "We review a district court's ruling on late discovery for abuse of discretion. In order to find an abuse of discretion, we must conclude that the decision below was against logic and not justified by reason." State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027 (internal quotation marks and citations omitted). "In considering whether late disclosure of evidence requires reversal, a reviewing court will consider the following factors: (1) whether the [s]tate breached some duty or intentionally deprived the defendant of evidence; (2) whether the improperly non[]disclosed evidence was material; (3) whether the nondisclosure of the evidence prejudiced the defendant; and (4) whether the [district] court cured the failure to timely disclose the evidence." State v. McDaniel, 2004-NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701 (internal quotation marks and citation omitted).

{¶12} Assuming, as Defendant argues, that the State breached its duty to timely disclose and that the text messages were material, we conclude the district court did not abuse its discretion in admitting this evidence because Defendant failed to demonstrate prejudice and because the district court provided Defendant an additional opportunity to interview A.M.'s mother regarding these text...