State v. Kerby
| Decision Date | 12 August 2005 |
| Docket Number | No. 24,350.,24,350. |
| Citation | 118 P.3d 740,2005 NMCA 106 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Leslie KERBY, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.
Victor A. Titus, Titus & Murphy Law Firm, Farmington, NM, for Appellant.
{1} Defendant, Leslie Kerby, appeals from the judgment and sentence of the district court convicting him of three counts of criminal sexual contact of a minor. We reverse, holding that the district court improperly admitted evidence of prior bad acts.
{2} On March 28, 2002, Defendant was charged in a criminal information with thirteen counts of criminal contact with a minor. Each count alleged that "on or about or between December 1986 and December 1987," Defendant
[did] unlawfully and intentionally touch or apply force to the intimate parts of [Victim] or unlawfully and intentionally caused [Victim] to touch [D]efendant's intimate parts and [Victim] was a child under thirteen (13) years of age, contrary to NMSA 1978, § 30-09-13(A)(1) (a 3rd degree felony).
{3} Defendant's case was tried before a jury on April 16-17, 2003. In its case in chief, the State called three witnesses: Sandy Williams, Defendant's former wife and the mother of Victim; Victim; and Henry Katz, Williams' former husband and the father of Victim.
{4} Williams testified that she had known Defendant since junior high school. She and her two daughters moved into a house trailer located on an orchard owned by Defendant's family. They lived in the trailer with Defendant for several months. In late June 1986, Williams and Defendant married. Victim, who was born on June 22, 1980, had just turned six years old. About a month after Williams and Defendant married, Victim told Williams that Defendant had "tickled" her. From Victim's sad, upset demeanor and her gestures toward the lower part of her body, Williams understood Victim to be telling her that Defendant had touched her inappropriately. Williams confronted Defendant, who denied the accusation. About a month later, Victim once again reported to Williams that Defendant had touched her. Defendant again denied Victim's accusation. In the fall of 1986, the family moved into a newly constructed house located on the orchard property. One night Victim came into Williams' bedroom to tell her that Defendant had come into Victim's room and touched her. Williams and Defendant discussed the incident the next morning. Defendant apologized and promised that this wouldn't happen anymore. A pattern of complaints by Victim and confrontations between Williams and Defendant, followed by apologies by Defendant, continued through 1987. Williams recalled confronting Defendant thirteen to fifteen times. Williams moved out with the children in the summer of 1988. Williams and Defendant were divorced in May 1989. In February 2002, Williams contacted the police about the incidents of inappropriate touching.
{5} Williams conceded that although Defendant would apologize when she confronted him, he never flatly admitted touching Victim inappropriately. Williams also conceded that she never observed Defendant touching her daughters inappropriately.
{6} Victim was the second witness called by the State. She was twenty-two years old at the time of the trial. She recalled that Defendant touched her two times while the family was living in the trailer. She testified that the first time Defendant touched her was directly on her vulva. The other touchings consisted of Defendant rubbing her buttocks over her clothes. Victim recalled that even though she was a child at the time, she recognized that it was not a fatherly touch. Victim clearly recalled four instances of buttock rubbing and had what she described as mental "clips" of other incidents.
{7} Henry Katz was the third, and final, witness called by the State in its case in chief. Katz recalled that in 1989 he had angrily confronted Defendant about Defendant's abuse of Victim as reported to him by Williams. Katz recalled that Defendant was silent at first, but then said he was sorry and that he had spoken to an elder at church who told Defendant he was forgiven.
{8} Following the close of the State's case in chief, the district court dismissed nine of the thirteen counts in view of Victim's testimony that she had a clear memory of only four of the incidents. The district court allowed the State to amend the complaint to allege that the touchings occurred between June 1, 1986, and December 31, 1987.
{9} Defendant's case in chief consisted of one witness: Defendant's eighty-year-old mother, Evelyn Kerby. Mrs. Kerby testified that she never observed Defendant engage in any inappropriate conduct toward Victim. Mrs. Kerby testified that when she asked Defendant about the accusations of improper touching, Defendant responded that all he had done was pat Victim goodnight. Mrs. Kerby testified that she patted her own children on the bottom and did not think that it was a crime.
{10} The State called three rebuttal witness. Williams testified that there was a small compartment near the fireplace in the master bedroom. Williams recalled that on several occasions when she walked into the bedroom, she saw Defendant coming out of the compartment. She could not understand why he would be in the compartment since they did not store anything in it.
{11} Williams was aware that Defendant had been having Victim bathe when Williams was out of the house. Williams considered this out of the normal routine and instructed Victim to lock the bathroom door and undress in the bathroom.
{12} On one occasion, Williams' fourteen-year-old sister, who was visiting, got up to go to the bathroom. Defendant went into the master bedroom. Williams followed Defendant into the bedroom, where she observed Defendant in the compartment. Later, Williams inspected the compartment and discovered a small hole drilled through a two-by-four inside the compartment. As a test, Williams had one of her daughters stand in the bathtub. Through the peephole Williams could see her daughter in the bathtub. Williams plugged the peep hole with toothpaste. After Williams discovered the peephole "it all came together." When Williams confronted Defendant, accusing him of peeping at Victim, Defendant acted angry and frustrated and said that he was sorry and that it would not happen again.
{13} On cross-examination, Williams conceded that she had never actually caught Defendant spying on Victim.
{14} The State also called Dick Otero in rebuttal. Otero testified as an expert on carpentry and residential contracting. Otero testified that he had examined the compartment and bathroom in April 2003. He testified that a mirrored medicine cabinet in the bathroom was installed upside down. When the medicine cabinet was removed, Otero observed a second, slightly higher set of pre-existing screw-holes in the bathroom wall. With the cabinet turned right side up, the mounting holes in the back of the chest pre-drilled by the manufacturer matched the second, higher set of screw-holes in the bathroom wall. Moreover, with the medicine chest mounted right side up using the second set of screw holes, a small, crudely punched hole in a metal lip on the bottom of the medicine chest overlapped a small opening cut into the wall of the bathroom, allowing a person in the compartment to observe the inside of the bathroom.
{15} The State's final rebuttal witness was Detective Lisa Haws. Detective Haws testified that she had examined the compartment and the bathroom of Defendant's home in April 2003. Haws confirmed that it was possible to see into the bathroom from the compartment.
{16} The district court submitted four counts of criminal sexual contact with a minor to the jury. The jury acquitted Defendant of one count (the alleged touching of Victim's vulva) and convicted Defendant on the remaining three counts.
{17} The crucial issue in this case was the unlawfulness of the alleged touchings. The jury was instructed as follows:
In addition to the other elements of Criminal Sexual Contact of a Minor, as charged in Counts 1 through 4, the state must prove beyond a reasonable doubt that the act was unlawful.
For the act to have been unlawful it must have been done with the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity or personal safety of [Victim]. Criminal Sexual Contact does not include a touching for purposes of reasonable medical treatment, nonabusive parental or custodial care or a lawful search.
Defendant argues that the evidence was insufficient to establish anything more than an innocent patting of a child's bottom.
{18} The standard of review for sufficiency-of-the-evidence claims in criminal cases is well established:
[W]e review the record, marshaling all evidence favorable to [the] trial court's findings. If evidence is in conflict, or credibility is at issue, we accept any interpretation of the evidence that supports the trial court's findings, provided that such a view of the evidence is not inherently improbable. We determine whether the evidence supports any conceivable set of rational deductions and inferences that logically leads to the finding in question. We must be satisfied that the evidence was sufficient to establish the facts essential to conviction with the level of certainty required by the applicable burden of proof. To support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached a subjective state of near certitude of the guilt of the accused.
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