State v. Little, No. A-1-CA-36942

Docket NºNo. A-1-CA-36942
Citation473 P.3d 1
Case DateMay 06, 2020

473 P.3d 1

STATE of New Mexico, Plaintiff-Appellee,
Frank C. LITTLE, Defendant-Appellant.

No. A-1-CA-36942

Court of Appeals of New Mexico.

Filing Date: MAY 6, 2020

Hector H. Balderas, Attorney General Santa Fe, NM, John J. Woykovsky, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, John C. Bennett, Assistant Appellate Defender, Santa Fe, NM, for Appellant


IVES, Judge.

473 P.3d 4

{1} Defendant appeals his convictions, following a jury trial, for one count of first-degree criminal sexual penetration of a minor under thirteen years of age (first-degree CSPM) in violation of NMSA 1978, Section 30-9-11(C)(1) (2001) ; three counts of criminal sexual penetration of a minor thirteen to eighteen years of age (second-degree CSPM), comprising two counts in violation of NMSA 1978, Section 30-9-11(D)(1) (2001) and one in violation of Section 30-9-11(E)(1) (2007, amended 2009) ; and two counts of criminal sexual contact of a minor (CSCM), in violation of NMSA 1978, Section 30-9-13(B)(2)(a) (2001), against two victims, S.G. and S.P.1 Defendant first challenges his conviction for first-degree CSPM as charged in Count 1, contending that insufficient evidence supports his conviction on that charge, or, alternatively, that the district court erred both in permitting the State to refresh the recollection of S.G., the victim of that crime, and in denying Defendant the opportunity to conduct recross-examination of S.G. Next, Defendant contends that the indistinguishable nature of his convictions for Counts 2 through 6, which charged second-degree CSPM, violated his constitutional right not to be placed in jeopardy more than once for the same offense. Finally, Defendant contends that error in the jury instructions as to Count 4, CSCM, requires reversal of his conviction on that count. We reverse Defendant's conviction for first-degree CSPM and remand for a new trial. However, we affirm Defendant's three convictions for second-degree CSPM and both of his CSCM convictions.


I. We Reverse Defendant's Conviction for First-Degree CSPM

A. Summary of Pertinent Testimony

{2} To convict Defendant of first-degree CSPM, the State had to prove beyond a reasonable doubt that Defendant had penetrated S.G. while she was under age thirteen. See § 30-9-11(C)(1) (2001) (providing that criminal sexual penetration in the first degree "consists of all sexual penetration perpetrated ... on a child under thirteen years of age"). At trial, the State possessed a police report that apparently indicated S.G. had told investigators that Defendant had penetrated her when she was twelve.2 On direct and cross-examination, however, S.G. unequivocally testified—on five occasions—that Defendant had not abused her in this particular manner until after she turned thirteen.3 The State did not use the report to identify any inconsistency between the report and this testimony when it was given, and S.G. never testified that she did not recall

473 P.3d 5

her age at the time Defendant digitally penetrated her for the first time.

{3} The prosecutor began redirect examination on the issue of S.G.’s age by informing S.G. that she was "just going to read a little bit" from the police report and asking S.G. to tell her "whether [it was] true," drawing a hearsay objection from defense counsel. In the ensuing bench conference, the district court indicated that it would permit the State to impeach S.G. with her prior statement to the police and to refresh S.G.’s recollection of that statement by using the police report.4

{4} The prosecutor then asked S.G. about her response on cross-examination that she "didn't really quite remember" the basis for all of her trial testimony and "ask[ed her] to read some[thing]" to refresh her recollection:

State: You said that the penetration with the finger did not start until 2004. But isn't that different than what you told the officers?

Defense: Objection. She hasn't said that she needed her recollection refreshed about that issue.

Judge: Sustained.

State: Ok. So, did that refresh your recollection of what you had actually told the officers?

Defense: Objection.

Judge: Overruled.

Defense: She didn't—

Judge: She may ask if it refreshed her recollection.

State: Did [reviewing the police report] refresh your recollection of what you had told the officers about when the penetration started?

S.G.: Yes.

State: And how old were you when it started?

S.G.: Thirteen.

Defense: Objection, she's already testified to that and hadn't said she needed a refresher.

Court: Overruled.

State: Are you sure it was thirteen?

S.G.: Yes.

State: Were you able to read this?


S.G.: Some parts.

State: Then—were you too nervous to read it all the way?

S.G.: Yes.

State: Ok. So, would it help to bring it back up to refresh your memory?

S.G.: If I need to, then yes.


State: Did that refresh your memory?

S.G.: Yes.

State: About how old you were ... the first time that he molested you?

S.G.: Yes.

State: And how old were you?

S.G.: Twelve.

Defense counsel objected and moved to strike, arguing that S.G. had "already testified previously" and that her testimony was "coming from the report, not her recollection." The district court excused the jury to address this objection.

{5} Outside the presence of the jury and in the presence of S.G., who remained on the witness stand, the district court explained to the State that its questioning was confusing. The prosecutor informed the court that she wanted to ask S.G. about her statement, made "at the time that this occurred, that she was twelve years old the first time she was penetrated," but the court, apparently misunderstanding the response, disagreed, observing that S.G. had testified that she was thirteen and that the State was trying to "get her to say that she said she was twelve." After the district court walked the State through the questioning it would permit to refresh S.G.’s recollection, the State rehearsed that questioning outside of the presence of the jury at the court's direction:

State: Ok. All right. You had stated previously that you were thirteen when you were testifying.

S.G.: Yes.

State: And then you said that you weren't quite remembering everything that you had told before.
473 P.3d 6
S.G.: Yes.

State: And did you review something that refreshed your recollection?

S.G.: Yes.

State: And so, did it refresh your recollection?

S.G.: A little.

State: Ok. And so, based on that, how old were you when it started?

S.G. Twelve.

{6} The district court then asked defense counsel to explain her objection. Defense counsel responded that "[her] objection [was] still that [S.G. was] testifying from recollecting the report, [rather than] her recollection of when it happened." The district court replied that defense counsel could make that argument in closing or that it "[could] be the subject of cross-examination," but did not believe it to be "objectionable" because whether "[S.G.] really remember[ed or] just read it from the report" went to the "weight that the jury [could] give the evidence." Defense counsel asked whether, if the prosecutor "proceed[ed] with this matter," she would have an opportunity for recross-examination. The district court denied the request, expressing confusion about its basis because defense counsel "knew about [S.G.’s] statement." Defense counsel reminded the court that it "had just mentioned that [she] could address it on cross-examination," but the court disagreed. It explained that defense counsel had been able to "cross-examine about the issue [of] ... whether [S.G.] was under thirteen," which it believed had been "adequately touched," and that the prosecutor had not "gone past what's allowed with redirect that would cause [the court] to let [defense counsel] cross again."

{7} When the district court brought the jury back into the courtroom, the State resumed its redirect, which proceeded in pertinent part as follows:

State: Do you remember, around the time that this investigation was going on, telling the officer that you were twelve years old the first time that [Defendant] put his finger inside your vagina?

Defense: Objection. Foundation.

Judge: Overruled.

State: Do you remember saying that?

S.G.: Yes.

State: Ok. So, ... is that the truth? Were you twelve years old when that started?

S.G.: Yes.


State: Ok. So, when we first looked at 2003, you had previously said that there had not been penetration. Do you now remember saying that, in fact, penetration started when you were twelve?

S.G.: Nah.

State: Ok. And that by "molesting" in 2003, it also meant that there was penetration?

S.G.: Excuse me?

State: Do you remember saying to the police that molesting when you were twelve, up here in 2003, also meant penetration?

S.G.: In 2003?

State: With the finger, 'cause you said "molesting" means penetration with the finger....

S.G.: Yes.

State: and touching.

S.G.: Yes.

State: Okay and so did that happen when you were twelve?

S.G.: Yes.

B. Sufficient Evidence Supports Defendant's Conviction for First-Degree CSPM

{8} Defendant first challenges the sufficiency of the evidence to sustain his conviction for first-degree CSPM as to the jury's...

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