State v. Garcia, No. A-1-CA-34548

CitationNo. A-1-CA-34548
Case DateNovember 01, 2018
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
JOE T. GARCIA, Defendant-Appellant.

No. A-1-CA-34548


November 1, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

Benjamin Chavez, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant


VIGIL, Judge.

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{1} Defendant Joe Garcia appeals from his convictions of four counts of criminal sexual penetration of a minor (CSPM) involving his two daughters. Defendant raises two arguments on appeal: (1) the evidence is insufficient to support the convictions involving his daughter HG because the only evidence supporting these convictions was the testimony of a nurse and mental health counselor, which were admitted in violation of the confrontation clause, and also because the statements were admitted into evidence without an instruction that they were not to be considered as substantive evidence of the CSPM charges at issue; and (2) the district court erred by: (a) admitting evidence of Defendant's legal pornography collection, (b) improperly limiting Defendant's use of Ms. Wigmore-Garcia's diary for impeachment purposes, and (c) considered in conjunction, the rulings give rise to cumulative error. We affirm. Because this is a memorandum opinion and the parties are familiar with the facts and procedural posture of the case, we set forth only such facts and law as are necessary to decide the merits.


{2} Defendant was indicted with fourteen counts related to the molestation of his twin five-year-old daughters, MG and HG, between January 2009 and July 2010. The jury convicted Defendant of four counts of CSPM premised on Defendant causing MG and HG to each engage in fellatio on two separate occasions. Defendant appeals.

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I. Sufficiency of the Evidence Supporting the CSPM Convictions Involving HG

{3} Defendant argues that the evidence that HG accused Defendant of causing her to engage in fellatio on more than one occasion was testimonial and not subject to cross-examination, and therefore admitted into evidence in violation of Defendant's confrontation rights. In addition, Defendant contends that the evidence was not admitted for the truth of the matter asserted. Without this evidence, Defendant contends, no actual evidence was admitted against him regarding the two counts of CSPM involving HG, and as such, must be reversed. The State responds that "Defendant waived any confrontation issue and invited any error" related to the admission of HG's accusations against him. We agree.

{4} At trial, the State called Nurse Jacqueline Belinski, a sexual assault nurse examiner (SANE nurse) employed at Christus St. Vincent Hospital, to testify. Nurse Belinski was recognized by the district court as an expert in "child sexual abuse examination" with no objection from Defendant. As a SANE nurse, Nurse Belinski received special training to perform forensic examinations when there is suspected child sexual abuse. In conducting a SANE examination, Nurse Belinski testified that she first obtains a "history" from the family, interviews the suspected victim, and then conducts a physical examination. Nurse Belinski testified that she conducted SANE examinations of MG and HG in September 2010.

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{5} Over Defendant's hearsay objection, Nurse Belinski was permitted to testify as to MG and HG's disclosures to her during their SANE interviews. In overruling Defendant's objection, the district court stated that:

I am going to allow the questions to come in. Those questions have to be clearly not to prove the truth of the matter asserted and should stay away from the discussions like determinations that the law was broken, more medically based.

Also, if [Defendant] . . . would like a curative instruction regarding this witness' testimony defining how the jury can interpret these statements, that they're not offered to prove the truth of the matter asserted but instead to describe and explain the totality of the SANE nurse examination or something like that[,] I will allow for that and we would discuss the exact language at the appropriate time outside of the presence of the jury. So if you want the instruction, please raise it as we're going over jury instructions.

Defendant agreed to this procedure. Nurse Belinski testified thereafter that HG told her during the SANE interview that Defendant had put his penis in her mouth on more than one occasion. Nurse Belinski stated that based on her experience and training, HG's disclosures were consistent with sexual abuse.

{6} HG was called to testify. HG was able to testify that she understood the importance of telling the truth, as well as was able to identify Defendant in court. However, after approximately three hours of being unable to elicit any substantive testimony from HG , the parties argued about whether HG could testify to anything substantive. Based on the district court's concerns about HG's competency to testify and ability to articulate her recollections, the district court stated that it was

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exercising its Rule 11-611 NMRA "powers and releas[ing HG] for today, giving the State an opportunity, if [the parties] think it would be productive to present her at another time during the State's case in chief." The parties did not object to the procedure, and HG was released. HG was not recalled.

{7} The State later called Melissa Wood, a licensed mental health counselor, who provided therapy to MG and HG periodically between April 2010 and 2014. Outside of the presence of the jury, the district court ruled, over Defendant's hearsay and relevance objection, that Ms. Wood would be permitted to testify to statements made by MG and HG to her for the purposes of treatment and diagnosis related to the alleged sexual abuse. The district court reasoned that statements made for purpose of medical diagnosis and treatment are "inherently reliable" and that the statements that the State sought to elicit from Ms. Wood are relevant and "not substantially more prejudicial than probative[.]" Ms. Wood proceeded to testify that during her treatment of HG, HG told her that Defendant "told her to close her eyes and open her mouth and that he put his penis inside her mouth and she felt like vomiting[.]"

{8} After the State rested, Defendant argued that Counts 1 and 2 of the indictment involving HG should be dismissed, arguing that the only evidence in support of the counts was improperly admitted through Nurse Belinski and Ms.

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Wood either in violation of the confrontation clause or the rule against hearsay. Defendant contended that HG:

for all intents and purposes, did not testify[,] which I believe . . . violates the confrontation clause. The information to sustain or prove Counts 1 and 2 have come from the SANE nurse, based on disclosures she alleges happened, that I could not cross-examine [HG] on, whether in fact she actually made these allegations to or statements to the SANE nurse, because she didn't testify. And they also come, to some extent, from Ms. Wood, which, again, are hearsay statements that I cannot test for truth or credibility because [HG] did not testify.

The district court denied Defendant's motion, ruling that admission of HG's statements accusing Defendant of the sexual abuse through Nurse Belinski and Ms. Wood did not violate the confrontation clause, and considered together, constituted sufficient admissible evidence to avoid a directed verdict. Defendant did not seek to have the jury instructed that Nurse Belinski and Ms. Wood's testimony concerning HG's statements to them should not be considered for the truth of the matter asserted.

{9} A "defendant can waive fundamental rights," including confrontation clause rights, which "may include an implied waiver by conduct." State v. Herrera, 2004-NMCA-015, ¶ 8, 135 N.M. 79, 84 P.3d 696; see State v. Lucero, 1986-NMCA-085, ¶¶ 12-17, 104 N.M. 587, 725 P.2d 266 (determining that by failing to object to challenged testimony on the basis of the confrontation clause, the defendant's confrontation clause claim was waived on appeal). Under the facts of this case, we conclude that by failing to object to the admission of HG's statements through

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Nurse Belinski and...

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