State v. Landers, 13280

• Citation: 1992 NMCA 131,115 N.M. 514,853 P.2d 1270
• Decision Date: 09 December 1992
• Docket Number: No. 13280,13280
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James LANDERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1270

853 P.2d 1270

115 N.M. 514

STATE of New Mexico, Plaintiff-Appellee, v. James LANDERS, Defendant-Appellant.

No. 13280.

Court of Appeals of New Mexico.

Dec. 9, 1992.

Certiorari Granted Jan. 22, 1993.

Certiorari Quashed May 27, 1993.

[115 N.M. 515] Tom Udall, Atty. Gen., Ann M. Harvey, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

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

OPINION

APODACA, Judge.

Defendant appeals the trial court's judgment and sentence on two counts of criminal sexual contact of a minor (CSCM) under NMSA 1978, Section 30-9-13(A) (Cum.Supp.1990). He argues that: (1) the trial court's failure to instruct on the lawfulness of the touching that formed the basis of the charges was fundamental error; (2) a statement made by the prosecutor was prejudicial error; (3) the admission of evidence of prior "bad" acts was prejudicial error; and (4) the evidence was insufficient to support his convictions. Because we hold that the facts did not place lawfulness at issue, the trial court's failure to instruct on that issue was not fundamental error. We additionally hold that the prosecutor's isolated comment was not prejudicial, that the trial court did not abuse its discretion in admitting evidence of defendant's prior acts with the victim, and that the evidence was sufficient to support the verdict. We thus affirm defendant's convictions.

FACTS

The victim, who was fourteen years old at the time of trial, testified that, when she was between eleven and thirteen years old, when defendant came to her room to wake her for school, he would lift her nightgown and put his hand down her panties. This occurred almost daily. She said that once, when she was in the bathroom, defendant forced her to her hands and knees and rubbed his penis against her vaginal area. The victim was also permitted to testify, over objection, of a long history of other acts of sexual, physical, and emotional abuse for which defendant was not charged with any crime.

Defendant, who testified in his own defense, denied that he sexually touched the victim while waking her up and denied the occurrences of the incident in the bathroom and the other instances of sexual abuse. He testified that the victim was a difficult child and that he disciplined her for her disobedience. He argues on appeal that she had fabricated the allegation of sexual abuse in retaliation for his efforts to discipline her. To the extent that he did touch her, defendant stated that he did so as a father would, i.e., as a disciplinarian or with innocent affection.

During closing argument, the prosecutor told the jury that sexual abuse had to be stopped. Defense counsel objected, stating that the prosecutor's argument placed the blame for society-wide sexual abuse on defendant. The trial court warned the prosecutor to limit her argument to the case at hand. The prosecutor then limited her closing argument to defendant and urged the jury to consider the victim's need for protection and her hope for a normal life. Defendant did not request a curative instruction or a mistrial.

DISCUSSION

1. Jury Instruction on Lawfulness.

This case presents a new type of situation to which we must apply our Supreme Court's holding in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991). In that case, the Court held that, when a defendant is charged with CSCM, the jury must receive an instruction requiring it to decide, as an element of the crime, whether the touching was unlawful. Id. at 661, 808 P.2d at 631. In determining whether the absence of the lawfulness instruction was reversible fundamental error, "[t]he question is whether there was any evidence or suggestion in the facts, however slight, that could have put the element of unlawfulness in issue." State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992).

In Osborne, the defendant introduced evidence that the acts for which the state charged him with CSCM were lawful. Osborne, 111 N.M. at 656, 808 P.2d at 626. In Orosco, which consisted of consolidated appeals, no evidence in either case suggested that if the touchings occurred, they were for a lawful purpose. Orosco, 113 N.M. at 784, 833 P.2d at 1150. Our Supreme Court concluded that none of the facts in the consolidated appeals placed the element of lawfulness at issue, and thus the trial court's failure to instruct on that element was not fundamental error. Id. at 790, 833 P.2d at 1152. The facts of this appeal present a middle ground. On the one hand, defendant denied that he woke the victim in the manner to which she testified and that the incident in the bathroom took place. On the other hand, he stated that if he ever touched her, it was always in a fatherly way. This touching would include disciplining the victim by whipping her with a belt, slapping her on the legs, and pulling her hair, as well as kissing her on the forehead and hugging her. We must determine whether defendant's characterization of this touching as fatherly places at issue the lawfulness of the alleged conduct that formed the basis for the charges. In other words, we must decide if defendant was giving alternative testimony, i.e., that he did not sexually touch the victim or, alternatively, that he touched the victim in prohibited places for a lawful purpose.

The state's case, as the jury instructions reflect, was centered on defendant's touching a certain prohibited part of the victim's anatomy when waking her and once in the bathroom. See Sec. 30-9-13. These jury instructions were the law of the case and, absent proof conforming to the instructions, the state could not prevail. See State v. Martin, 90 N.M. 524, 527, 565 P.2d 1041, 1044 (Ct.App.) (instructions that are not objected to and that are requested by the state become the law of the case), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). We believe that, although defendant contended that all touching of the victim was colorably lawful, there was no evidence from which the jury could infer that the particular touchings that the state sought to prove were lawful. The only way to view defendant's evidence is that he did not touch the victim whatsoever in the manner the state alleged and that all of his other touchings were lawful. Because defendant did not allege that the particular touchings forming the basis for the charges of CSCM were lawful, we conclude that the issue of the lawfulness of those touchings was not at issue. Thus, we consider the facts of this appeal analogous to Orosco, rather than to Osborne. Without evidence raising the question of the lawfulness of the particular touchings that made the state's case, we hold that the trial court's failure to give the lawfulness instruction was not fundamental error. See Orosco, 113 N.M. at 783-84, 833 P.2d at 1149-50.

2. Prosecutorial Misconduct.

Defendant argues that a statement made by the prosecutor during her closing argument was prosecutorial misconduct because it went beyond the evidence to appeal to the jury's normal prejudice against sex crimes and because the prosecutor repeated the statement after the trial court admonished her. Additionally, defendant claims the prosecutor's conduct was particularly egregious because she allegedly committed similar misconduct in another unrelated trial.

The prosecutor and defense counsel are allowed latitude in closing arguments and the trial court has discretion in controlling closing arguments. State v. Venegas, 96 N.M. 61, 63, 628 P.2d 306, 308 (1981). If there is neither abuse of discretion nor prejudice to defendant, there is no error. State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991) (quoting State v. Pace, 80 N.M. 364, 371, 456 P.2d 197, 204 (1969)). The question presented on appeal when a defendant alleges that the prosecutor in closing arguments made improper comments is whether the comments deprived the defendant of a fair trial. Id.

Because the focus of our inquiry is on whether this defendant was deprived of a fair trial, id., we do not consider the prosecutor's alleged comments in another case relevant. We consider only the prosecutorial statements made in closing argument in this appeal.

The prosecutor told the jury to "keep in mind that child abuse is something that must be stopped." At this point, the trial court sustained defense counsel's objection to this statement. After an admonishment from the trial court, the prosecutor then stated that "sexual abuse must be stopped on [the victim]." Defendant characterizes this statement as the prosecutor ignoring the trial court's ruling. However, taken in context, the prosecutor's statement was limited to the effect on the victim.

Additionally, even if we were to categorize the statements as misconduct, we do not consider them to be reversible error. Isolated comments made in closing argument are generally not sufficient to require reversal. See, e.g., State v. Clark, 105 N.M. 10, 16, 727 P.2d 949, 955 (Ct.App.) (three improper comments made by prosecutor not found to be prejudicial error), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986); State v. Taylor, 104 N.M. 88, 96, 717 P.2d 64, 72 (Ct.App.) (isolated comments were not so pervasive or prejudicial as to deprive the defendant of a fair trial), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986); cf. State v. Diaz, 100 N.M. 210, 668 P.2d 326 (Ct.App.1983) (prosecutorial misconduct found where, in closing argument, prosecutor repeatedly referred to the authority he represented, made vituperative comments about defendant, and derogated defendant's defense). The prosecutor's comment did not, under the facts of this appeal, deprive defendant of a fair trial. It was a single, isolated comment that, after the trial court's ruling, the prosecutor limited by referring to the victim. We conclude there was no reversible error.

3. Evidence of Prior Bad Acts.

Defendant objected at trial to the admission of evidence of prior "bad"...