State v. Jones

• Decision Date: 06 June 1995
• Docket Number: No. 15385,15385
• Citation: 1995 NMCA 73,120 N.M. 185,899 P.2d 1139
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John JONES, Defendant-Appellant.

Page 1139

899 P.2d 1139

120 N.M. 185

STATE of New Mexico, Plaintiff-Appellee, v. John JONES, Defendant-Appellant.

No. 15385.

Court of Appeals of New Mexico.

June 6, 1995.

Certiorari Granted July 14, 1995.

[120 N.M. 186] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his convictions for two counts of criminal sexual penetration (CSP) in the third degree (of R.M. and F.C.), one count of robbery (of R.M.), and one count of unlawful taking of a vehicle (of R.M.). He was acquitted of the greater offenses of kidnapping, second-degree CSP (in the commission of kidnapping), and bribery of a witness of each victim, and of robbery and unlawful taking of a vehicle of F.C. Defendant raises ten issues on appeal. Only one, that dealing with alleged error in the trial court's denial of a severance of the charges relating to each victim, merits extended discussion, and on that issue we reverse and remand for new trials. The remaining issues border on the frivolous and, even though we recognize that two of them would afford Defendant greater relief than a new trial, they will not be discussed except to say that they lack merit.

Each victim testified that Defendant accosted her while she was in her car several car lengths short of a drive-up window. R.M. had stopped at a liquor store and was checking her purse to make sure she had enough money to cover her purchases. F.C. had stopped at the Kentucky Fried Chicken menu prior to ordering. Defendant got into the car and either ordered the victim to drive away or took control of the car himself. He forced each victim to have sex. He forced R.M. to withdraw money for him at an automated teller machine. Both episodes began in the night-time and ended the following morning. After each episode when the victims escaped from Defendant's control, Defendant was left with their cars. Defendant drove R.M.'s car for a block before abandoning it. The incidents happened five days apart in the same general area in Albuquerque. Defendant testified that he was a crack dealer who sometimes exchanged sex for crack. He said that, in each instance, the victims met him on the street or in a parking lot while they were looking for drugs and voluntarily spent the evening with him, having sex and consuming drugs.

The charges were properly joined together in one indictment because they were of the same or similar character. See SCRA 1986, 5-203(A)(1) (Repl.1992) (Effective August 1, 1992). The question we address is whether the trial court abused its discretion in failing to order a severance upon Defendant's repeated motions. See SCRA 5-203(C). The granting of a severance is discretionary, and one test for abuse of discretion is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial. State v. Gallegos, 109 N.M. 55, 63-64, 781 P.2d 783, 791-92 (Ct.App.), cert. denied, 108 N.M. 771, 779 P.2d 549 (1989). Thus, the question is whether the evidence of each episode would be admissible in a trial of the other.

Both the Supreme Court and this Court have had several occasions recently to address the admissibility of evidence of other bad acts under SCRA 1986, 11-404(B) (Repl.1994). PCITE, 120 N.M. 187>>1994). See, e.g., State v. Williams, 117 N.M. 551, 557-59, 874 P.2d 12, 18-20 (1994); State v. Ruiz, 119 N.M. 515, 518-20, 892 P.2d 962, 965-67 (Ct.App.), cert. denied, 119 N.M. 20, 890 P.2d 807 (1995); State v. Rael, 117 N.M. 539, 540-42, 873 P.2d 285, 286-88 (Ct.App.1994); State v. Jordan, 116 N.M. 76, 80-81, 860 P.2d 206, 210-11 (Ct.App.), cert. denied, 115 N.M. 795, 858 P.2d 1274 (1993); State v. Landers, 115 N.M. 514, 517-20, 853 P.2d 1270, 1273-76 (Ct.App.1992), cert. quashed, 115 N.M. 535, 854 P.2d 362 (1993); State v. Aguayo, 114 N.M. 124, 128-32, 835 P.2d 840, 844-48 (Ct.App.), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992). Contrary to earlier cases, from which one may have gotten the impression that evidence of other bad acts would be admissible if those other acts were sufficiently similar to the act for which defendant is on trial, e.g., State v. Corbin, 111 N.M. 707, 711-12, 809 P.2d 57, 61-62 (Ct.App.), cert. denied, 111 N.M. 720, 809 P.2d 634 (1991); State v. Burdex, 100 N.M. 197, 203-04, 668 P.2d 313, 319-20 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983), it is now clear that a more detailed analysis needs to be done than simply comparing superficial similarity. Compare State v. Lamure, 115 N.M. 61, 65-67, 846 P.2d 1070, 1074-76 (Ct.App.1992), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993), with id. at 68-72, 846 P.2d at 1077-81 (Hartz, J., specially concurring), and see Rael, 117 N.M. at 540, 873 P.2d at 286 (approving Hartz view), and State v. Montoya, 116 N.M. 72, 73-75, 860 P.2d 202, 203-05 (Ct.App.) (same), cert. denied, 115 N.M. 709, 858 P.2d 85 (1993).

We outlined that analysis in Ruiz, and we repeat it here. First, district courts must be careful in admitting other-bad-acts evidence because of its large potential for prejudice as recognized in the first sentence of SCRA 11-404(B), which states a general rule of exclusion of such evidence. Second, district courts may admit other-bad-acts evidence, but only to show some proper purpose under SCRA 11-404(B) that is not character or propensity. Third, even if the evidence is admissible under SCRA 11-404(B), district courts may exclude it under SCRA 1986, 11-403 (Repl.1994). The first element in the analysis is not a step, but rather a frame of mind or an approach to the issue. The second element in the analysis consists of a two-step process. The first step requires an articulation or identification of the consequential fact to which the proffered evidence of other acts is directed. State v. Lucero, 114 N.M. 489, 492, 840 P.2d 1255, 1258 (Ct.App.), cert. denied, 114 N.M. 413, 839 P.2d 623 (1992). The second step in the two-step process, if it is reached, is the SCRA 11-403 balancing. See id. at 492, 840 P.2d at 1258.

In considering the first step of the analysis, we have reviewed the compilation of similar cases in Timothy E. Travers, Annotation, Admissibility, in Rape Case, of Evidence That Accused Raped or Attempted to Rape Person Other Than Prosecutrix, 2 A.L.R.4th 330 (1980 and Supp.1994). Three conclusions are apparent from our review. First, numerically, more cases have approved the admission of this type of evidence than have disapproved its admission. Second, we cannot say that there is a definite majority and minority view. Rather, we note that different facts sometimes warrant different results. Third, we find that those cases representing the minority of cases are generally better reasoned and contain more cogent and persuasive analysis. Judge Singleton's lead opinion and Chief Judge Bryner's dissenting opinion in Velez v. State, 762 P.2d 1297 (Alaska Ct.App.1988), are representative of the minority and majority of cases, respectively, and we find those opinions particularly instructive, although we recognize that some of Alaska's substantive law of sexual assault is different from New Mexico's and that some of Alaska's procedural law of evidence is different from New Mexico's.

What we find impressive about Judge Singleton's opinion is its analysis of the consequential facts for which the evidence is offered and its analysis of the way those consequential facts are proved. This analysis is consistent with the modern trend in New Mexico cases as represented by Ruiz, Rael, Jordan, Montoya, Lucero, and Aguayo.

Initially, we must note that, to the extent that Alaska considers its Rule 404(b) a rule of exclusion, Velez, 762 P.2d at 1300 n. 5, New Mexico is probably a state that considers SCRA 11-404(B) a rule of inclusion. That is, New Mexico allows use of other bad acts for many reasons, including those not specifically listed in SCRA 11-404(B). See Williams, 117 N.M. at 557, 874 P.2d at 18 (quoting Landers, 115 N.M. at 517, 853 P.2d at 1273). For example, in both Ruiz, 119 N.M. at 519-20, 892 P.2d at 966-67, and Jordan, 116 N.M. at 80-81, 860 P.2d at 210-11, we approved the admission of other-bad-acts evidence to show the context of other admissible evidence, and in Ruiz, 119 N.M. at 518, 892 P.2d at 965, we approved the admission of other-bad-acts evidence to show consciousness of guilt, neither of which purposes appears in the list of proper SCRA 11-404(B) purposes. Thus, the issue in New Mexico is whether there is a probative use of the evidence that is not based on the proposition that a bad person is more likely to commit a crime.

Notwithstanding this difference in the breadth of purposes for which other bad acts would be admissible, the Alaska opinions provide substantial guidance in the proper method of analysis to use for determining whether the evidence does in fact prove what it is offered to prove in a permissible way. In both New Mexico and Alaska, evidence is inadmissible when offered solely to show propensity. Ruiz, 119 N.M. at 519, 892 P.2d at 966; Velez, 762 P.2d at 1300.

Judge Singleton's opinion reviewed several of the various exceptions to Rule 404(b)'s general principle of exclusion of other-bad-acts evidence in addressing an issue similar to the one we address today, i.e., whether evidence of a similar sexual assault on one woman would be admissible in the trial of another sexual assault on a different woman committed several days or weeks later. Judge Singleton concluded that modus operandi to show identity was unavailable as an exception because there, as here, the defendant admitted having sexual relations with the women, and hence identity was not at issue. See State v. Beachum, 96 N.M. 566, 568, 632 P.2d 1204, 1206 (Ct.App.1981) (consequential fact for which evidence is offered must be at issue); State v. Allen, 91 N.M. 759, 760, 581 P.2d...