State v. Huerta-Castro

• Decision Date: 29 November 2016
• Docket Number: NO. 33,692,33,692
• Citation: 390 P.3d 185
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jorge Bernardo HUERTA-CASTRO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

390 P.3d 185

STATE of New Mexico, Plaintiff-Appellee,

v.Jorge Bernardo HUERTA-CASTRO, Defendant-Appellant.

NO. 33,692

Court of Appeals of New Mexico.

Filing Date: November 29, 2016

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

{1} Defendant was convicted of twelve counts of criminal sexual penetration of a minor. Six of these counts of the indictment pertained to one child, and six to another. Otherwise, all twelve charges in the indictment were exact duplicates with precisely the same language. Defendant's motion for a bill of particulars was denied prior to trial; his motion for a directed verdict was denied. Defendant now asserts on appeal that these identical counts violated his right to due process and subjected him to double jeopardy. We agree. As such, ten of the twelve charges against Defendant are dismissed. The remaining two charges are supported by sufficient evidence and would be affirmed but for cumulative error that caused prejudice to Defendant. Reversed and remanded for retrial on one count as to each victim.

I. BACKGROUND

{2} Defendant was indicted on twelve counts of criminal sexual penetration of a minor (CSPM). Six of the twelve counts read as follows:

[O]n, about or between August 15, 2012, and October 13, 2012, in Dona Ana County, the above-named defendant did cause [Child 1] to engage in sexual intercourse and/or caused the insertion of any object into the intimate part of [Child 1], and [Child 1] was twelve years of age or younger, a first degree felony, contrary to § 30-9-11(D)(1), NMSA 1978.

In the remaining six counts, the first two references to Child 1's name were replaced with Child 2's name.¹ Other than the name substitution, all twelve counts were indistinguishable. The State acknowledged that all references to Child 1 in counts seven through twelve should have referenced Child 2, and it later amended its indictment to correct the naming error on counts seven through twelve, resulting in two sets of six identical counts as to each child.

Motion for a Bill of Particulars (Statement of Facts)

{3} Defendant filed a motion for a bill of particulars. The district court held a hearing on the motion, during which Defendant requested more particularity on each of the twelve counts. Specifically, defense counsel requested details regarding the time, date, location, and actions alleged in each count of the indictment. Characterizing the indictment as a "shotgun indictment," defense counsel explained to the district court that it was unclear what he was defending against in each count, and as such, he could not effectively defend against any of the counts. The inability to formulate a defense revolved particularly around the time of day of the incidents, whether Defendant might have been at work, what day or week it was, or even whether he was around at these times.

{4} The State conceded that it could not provide specific dates because of the young ages of Children, but told the court that Children could narrow the incidents by the time of day and in relation to other events. Additionally, the State pointed out that it could provide a beginning and end date for the abuse and could specify that it took place in the home. The State also asserted that it had physical evidence to show when the last incident occurred.

{5} The district court took note of the young age of Children—six and eight years old at the time of the incidents—and pointed out that the inability of Children to pinpoint a specific date did not reflect a deficiency in the indictment. The district court based its interpretation of the indictment on its reliance on the State's assertion that witness interviews yet to occur would provide evidence that twelve different incidents occurred. The district court concluded that the issues with the indictment could be resolved through the subsequent interviews and denied Defendant's motion. The district court noted that if, after conducting the interviews, Defendant could provide additional argument regarding the issue, he could file further motions. Defendant did not file any other motion regarding deficiencies in the indictment.

{6} At trial, the State presented testimony from Child 1, Child 2, their mother (Mother), their grandmother (Grandmother), the investigating detective, and the forensic interviewer. Defendant presented testimony from a pediatrician. At the time of the alleged abuse, Defendant lived with his girlfriend, Mother, in Las Cruces, New Mexico with Child 1 and Child 2. Mother would leave for work early in the mornings, and Defendant would wake Children and get them ready for school. At trial, Child 1 and Child 2 testified to Defendant putting his penis and fingers in each of their vaginas and anus while their sibling was showering. Both Child 1 and Child 2 testified that Defendant acted in this way more than six times.

{7} Child 2 testified that Defendant first did these acts to her on "a day before school started." The State's questioning regarding this incident, and Child 2's responses thereto, were specifically limited to Defendant's actions toward her alone. It was not proven when school started, nor that August 15, 2012, was a date relevant to the start of school. Child 2 did not remember when the last incident of this sort occurred, and Child 1 gave no testimony regarding a final incident.

{8} The State presented some evidence that the alleged abuse ended on October 13, 2012, through the testimony of Grandmother who stated that on that date, Child 1's genital area was red, irritated, and had a rash. Grandmother testified that Child 2 also reported having been abused, though it is unclear when she made this allegation, and Grandmother did not see similar injuries on Child 2. After Grandmother told Mother about the rash and abuse, Mother took Children to the emergency room on October 13, 2012. Children were not examined at that time, but police were dispatched.

{9} Detective Martinez testified that, based on his interview with Mother while at the hospital, the last incident had occurred six to eight days earlier. However, Detective Martinez later clarified that during subsequent interviews with Mother, he discovered that the last incident had actually occurred fourteen days before Children were taken to the hospital.² Children were taken to a forensic interview on October 14, 2012, and they were later examined by a pediatrician on October 30, 2012. The pediatrician indicated that her examination of Children did not reveal any injuries, and that her findings did not necessarily mean that Children were not sexually abused.

{10} Once the State rested its case, defense counsel made a motion for directed verdict, pointing out that the State had failed to produce any evidence that the events occurred in the charging period or that six separate incidents occurred as to each child. The district court denied the motion but acknowledged that Defendant's argument had merit because no evidence supported any crime occurring with regard to the charged date of August 15, 2012, and allowed Defendant to argue to the jury that no evidence suggested that the abuse took place within the charging period. The jury found Defendant guilty of all twelve counts of CSPM. Defendant appealed to this Court. Other facts will be discussed as needed in the course of the opinion.

II. DISCUSSION

{11} Defendant alleges that the charging documents in this case violated his right to due process and right to be free from double jeopardy because they lacked the requisite level of specificity. Defendant also asserts that there is insufficient evidence to support his conviction on all twelve counts. We first address Defendant's argument regarding the specificity of the charging documents. Finding reversible error on that issue, we then decide whether sufficient evidence existed to support all or any of the counts in order to satisfy double jeopardy. Finally, we evaluate Defendant's claims that he was prejudiced by the State's failure to turn over exculpatory evidence in a timely manner or by cumulative error.

A. Adequacy of Notice From Cookie-Cutter Counts and Due Process

{12} Defendant first asserts that the district court erred in not granting his motion for a bill of particulars³ prior to trial, and that at the end of trial, the district court erred in not dismissing charges for the lack of differentiation between them.

{13} "The object of a bill of particulars in criminal cases is to enable the defendant to properly prepare his defense, and, to achieve that fundamental purpose, it must state as much as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged[.]" State v. Mosley , 1965–NMSC–081, ¶ 4, 75 N.M. 348, 404 P.2d 304 (citation omitted). In cases involving child victims, allegations of criminal behavior often lack specificity as to the date, location, or details of a particular incident within the period of time for which a defendant is charged. See State v. Vargas , 2016–NMCA–038, ¶ 39, 368 P.3d 1232. We recognize that because the State has a compelling interest in protecting child victims, our courts can be "less vigorous in requiring specificity as to time and place when young children are involved than would usually be the case where an adult is involved." Id. ¶ 40 (internal quotation marks and citation omitted). This flexibility does not, however, permit the State to proceed based on a lack of adequate notice of the conduct upon which an indictment is based.

{14} Procedural due process requires "the State to provide reasonable notice of charges against a person and a fair opportunity to defend[.]" State v. Baldonado , 1998–NMCA–040, ¶ 21, 124 N.M. 745, 955 P.2d 214. This includes a requirement that the State provide defendants with a...