State v. Lucero, 10944

Citation109 N.M. 298,1989 NMCA 103,784 P.2d 1041
Decision Date30 November 1989
Docket NumberNo. 10944,10944
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Craig R. LUCERO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

BIVINS, Chief Judge.

Defendant appeals his convictions, following a jury trial, of attempted first degree criminal sexual penetration, first degree criminal sexual penetration, criminal sexual contact of a minor, and kidnapping. He raises six issues on appeal: (1) whether use of a videotaped deposition of the child victim violated defendant's sixth amendment confrontation rights; (2) whether a mistrial should have been granted when the state brought out defendant's prior conviction for larceny; (3) whether prior consistent statements of the child were admissible under SCRA 1986, 11-801(D)(1)(b); (4) whether the trial court erred in denying defendant an opportunity to explore mother's motive to influence the child to lie; (5) whether the prosecutor impermissibly commented on defendant's failure to testify; and (6) cumulative error. Defendant voluntarily abandoned three other issues raised in his docketing statement.

We hold the trial court erred in excluding evidence offered to show mother's motive to influence the child to lie by naming defendant as her molester. Accordingly, we reverse on that issue and remand for new trial. Because the issues concerning use of the child's prior consistent statements and the videotaped deposition are likely to arise on retrial, we discuss those issues. We do not reach the remaining issues, since they are not likely to arise again.


The victim, a seven-year-old girl, told her teacher that a neighbor had sexually molested her. The teacher suggested that she tell her mother. The child informed her mother, naming defendant as her assailant. Defendant and the child's mother were long-time friends. The child also repeated the incident to Officer Chavez and Detective Craig, to the latter by a videotaped statement, and to Sabrina Garcia and Julia Barker. Garcia and Barker are psychologists who saw the child.

The child testified by a videotaped deposition taken about a month before trial. The child's prior consistent statements to the other witnesses were introduced through those witnesses. Defendant did not cross-examine the child at her deposition about these statements, although he knew of them, nor, apparently, did he request the deposition be continued so he could cross-examine her about them after they had been admitted into evidence. (We note, however, the trial court ruled at the deposition that there would be no second opportunity to have the child testify.)

1. Mother's Motive to Influence Child to Lie

Defendant argues mother had a motive to influence the child to fabricate that he was the offender. Defendant claimed that the child was molested by one of her mother's boyfriends, not by him. He alleged that mother improperly influenced the child to name him as the assailant. Defendant's claim on appeal is that the trial court erred in excluding his proffered testimony concerning mother's motive for influencing the child.

Defendant provided evidence suggesting that the child had been molested by someone other than defendant. Defendant's sister, a long-time friend of the child's mother, testified that she had observed at a birthday party shortly before the incident involving defendant one of mother's boyfriends in the child's bedroom near the foot of the child's bed. When she entered the room, the man left without speaking, and the child asked defendant's sister to remain with her. Later the man abruptly left the party when he saw the sister sit down next to mother. The jury could infer from these facts that another adult male may have been the child's assailant.

Defendant also provided evidence that the child's implication of defendant as the assailant was the result of deliberate influence by mother. The child described her assailant to her teacher as "a neighbor." Yet defendant was very close to the family; the child referred to him as her uncle. Defendant suggests that it would have been peculiar for the child to identify him simply as "a neighbor." Also, while there was some confusion as to the exact time, the jury could believe the child related the incident to her mother while mother was preparing to go to a Tina Turner concert. Instead of abandoning those plans and immediately calling the police or confronting defendant, mother kept her engagement, waiting until the following day to report the incident. If the jury believed that version, it could infer from the delay that either the matter was not important enough for mother to forego her plans or that she wanted to use the time to change the story.

The gap in defendant's evidence to the jury was the lack of any motive for mother to accuse defendant rather than the real culprit. Absent such a motive, the jury might find it difficult to understand why mother would want to accuse a close family friend. Supplying the motive was the purpose of the evidence excluded by the court. Defendant argued to the court that mother was trying to avoid a custody dispute with the child's father. Defendant tendered to the court, through an inquiry of mother outside the presence of the jury, that she and the child's father had engaged in a custody dispute; that father had sought sole custody, alleging that mother's home was an unsuitable environment for the child; and that mother knew the court's joint custody arrangement could be changed at any time.

Defendant attempted to argue to the court that the custody dispute provided a motivation for mother to influence the child to name defendant, an old family friend, rather than her boyfriend. Presumably, defendant's position was that father would have weaker grounds to seek a change in custody if the abuser was an old friend of both parents, rather than one of mother's apparently numerous boyfriends. The trial court, saying it could not "follow the defendant's logic or reasoning at all," denied his motion to introduce this evidence, as well as additional evidence defendant attempted to tender on this point.

In general, evidence of motive is admissible to prove that a person acted in accordance with that motive. See IA J. Wigmore, Wigmore on Evidence Secs. 117, 118 (1983). Certainly, defendant's contention that mother induced her child to falsely accuse defendant as her abuser would be much more convincing to the jury if defendant could establish a motive for mother to protect the true offender and implicate defendant.

Although defendant's theory of motive was somewhat attenuated, we believe the jury could have found that the tendered evidence showed mother had a motive to induce her daughter to lie as to the identity of her assailant. Because evidence of motive is such a material issue in any trial, and because the child's identification of defendant as her assailant was the only evidence against defendant, we hold the trial court abused its discretion by refusing to allow defendant to present this evidence.

2. Prior Consistent Statements

The child initially told her teacher she had been sexually molested. She described the assailant not by name, but as a neighbor. She then told her mother. From that point on, whenever the child related the incident, she named defendant. Defendant claimed at trial, and on appeal, that mother exerted influence on the child to name defendant rather than one of mother's boyfriends. Thus, the claimed improper influence or motive to name defendant occurred as of October 20, 1985, the date the child related the incident to her mother.

After that date, the child related the incident to Officer Chavez, Detective Craig, Sabrina Garcia, and Julia Barker. Defendant argues that the child's statements to those persons constituted inadmissible hearsay, since they were made after the alleged improper influence or fabrication. The state contends the statements were not hearsay, were admissible as prior consistent statements under Rule 11-801(D)(1)(b), and that it does not matter if the statements do not antedate the time of the alleged fabrication or improper motive.

Rule 11-801(D)(1)(b) provides:

A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive * * *.

The precise question defendant presents has not been decided in New Mexico. But see Bendorf v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 564 P.2d 619 (Ct.App.1977) (holding without discussion that trial court properly exercised discretion in excluding two statements made after accident and at time when motive was present to deny any wrongdoing).

Under Rule 11-801(D)(1)(b), a prior statement is not excludable as hearsay, and may be offered for the truth of the matter asserted, when two requirements are met. First, the declarant must testify at trial and must be subject to cross-examination concerning the statement. We address this requirement under the next issue, "Videotaped Deposition." Second, the statement must be consistent with the declarant's testimony and must be offered to rebut an express or implied charge of recent fabrication or improper influence or motive.

In addition to the above two requirements, some courts have imposed a further requirement that, in order to be admissible, a prior consistent statement must also have been made before the motive to fabricate existed. United States v. Harris, 761 F.2d 394 (7th Cir.1985). There is a split among the federal circuit courts concerning whether, to...

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11 cases
  • State v. Altgilbers, 10071
    • United States
    • Court of Appeals of New Mexico
    • December 7, 1989
    ...fabricate). We see no reason to require exclusion of evidence that satisfies the terms of Rule 11-801(D)(1)(b). See State v. Lucero, 109 N.M. 298, 784 P.2d 1041 (Ct.App.1989). Admission of Ms. Flavill's testimony was within the district court's Defendant also contends that the prior stateme......
  • State v. Nichols, 485
    • United States
    • United States Court of Appeals (Ohio)
    • January 13, 1993
    ...States v. Parry (C.A.5, 1981), 649 F.2d 292, 296; United States v. Scholle (C.A.8, 1977), 553 F.2d 1109, 1122; State v. Lucero (App.1989), 109 N.M. 298, 303, 784 P.2d 1041, 1046; State v. Johnson (1989), 235 N.J.Super. 547, 556, 563 A.2d 851, 856; People v. Andrews (Colo.App.1986), 729 P.2d......
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    • May 9, 1990
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