State v. Mankiller, 8406

• Decision Date: 27 May 1986
• Docket Number: No. 8406,8406
• Citation: 104 N.M. 461,1986 NMCA 53,722 P.2d 1183
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gregg C. MANKILLER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1183

722 P.2d 1183

104 N.M. 461

STATE of New Mexico, Plaintiff-Appellee, v. Gregg C. MANKILLER, Defendant-Appellant.

No. 8406.

Court of Appeals of New Mexico.

May 27, 1986.

Certiorari Denied July 23, 1986.

[104 NM 463] Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Martha A. Daly, Rothstein, Bailey, Bennett, Daly & Donatelli, David J. Berardinelli, Berardinelli & Martinez, Santa Fe, for defendant-appellant.

OPINION

ALARID, Judge.

Defendant appeals his conviction of two counts of contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (Repl.Pamp.1984), and two counts of enticement of a child, contrary to NMSA 1978, Section 30-9-1 (Repl.Pamp.1984). Defendant was subsequently charged with, and found guilty of, being an habitual criminal, contrary to NMSA 1978, Section 31-18-17 (Cum.Supp.1985). Issues not briefed are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). The issues raised are:

I. Whether defendant's convictions are supported by substantial evidence.

II. Whether procedural due process was violated.

III. Whether there was prosecutorial misconduct.

IV. Whether the trial court should have granted a continuance or a mistrial after introduction of evidence establishing commission of the offenses on dates other than those alleged in the indictment.

V. Whether the trial court erred in refusing defendant's requested instruction defining the phrase "on or about."

VI. Whether defendant is entitled to a new trial because of an unauthorized jury contact during deliberations.

VII. Whether the admission into evidence of nude photographs of one of the minor victims was prejudicial.

VIII. Whether there was sufficient evidence to support defendant's enhanced sentence as an habitual offender.

We affirm defendant's convictions of contributing and enticement with respect to James S. We reverse defendant's convictions of contributing and enticement with respect to Randy S. We affirm on all other issues raised.

FACTS

The state's witnesses were 15-year-old Randy S. and his 13-year-old brother, James S. Defendant was charged with three counts relative to each boy: contributing to the delinquency of a minor, enticement, and criminal sexual contact. The indictment charged that the offenses involving Randy S. occurred "on or about April 28, 1984," and that the offenses involving James S. occurred "on or about May 19, 1984."

At trial, neither witness could testify with certainty that the offenses actually occurred on the dates charged. Randy S. testified that he accompanied defendant to his motel room several times between February and June of 1984, and that on each occasion, defendant provided him with alcohol. He testified that on one evening, after he had consumed one-and-a-half six packs of beer, defendant touched his genitals. He could not recall the date on which this contact occurred, but said he was positive that it did not occur on April 28, as charged in the indictment (based on his grand jury testimony), or anytime in April 1984. He said the incident occurred "around June," and when pressed to be more specific, he said that June 16 was the more proximate date. He acknowledged having given different dates to the police and to the grand jury.

James S. similarly testified that he accompanied defendant to his motel on five or six different occasions, and that on one such occasion, after he had been provided alcohol, defendant touched his genitals. Like Randy S., James S. could not remember when the touching incident occurred. However, he was unequivocal that the incident did not occur on May 19, as charged in the indictment, since that date was his brother's birthday and he would have remembered had it occurred then. He testified, however, that the incident did occur sometime in the month of May.

Defendant presented alibi evidence which showed that he was out-of-state when the offenses allegedly occurred. The evidence established that defendant was incarcerated in Florida from March 30, 1984 through May 15, 1984. Following his incarceration, defendant returned to New Mexico, but the evidence showed that he traveled by car and did not arrive in Santa Fe until Sunday evening, May 20. Defendant's evidence showed that he remained in Santa Fe until May 23, at which time, he and a traveling companion left the state and traveled to Tulsa, Oklahoma. Evidence presented by the state showed that defendant subsequently returned to New Mexico and stayed at the King's Rest Motel in Santa Fe from June 4 to June 11.

The jury returned guilty verdicts on the counts of contributing and enticement, but was deadlocked on the two criminal sexual contact counts, and a mistrial was subsequently declared on those charges.

I. WHETHER DEFENDANT'S CONVICTIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.

Defendant's attack on the sufficiency of the evidence has both a factual and a legal premise. We address the legal aspect first. Defendant contends that when the state elects to proceed on a specific date, and so alleges in the charging document, that the date specified becomes a material allegation of the offense charged, thereby precluding the state from establishing guilt based on a different date. We agree.

In State v. Salazar, 86 N.M. 172, 521 P.2d 134 (Ct.App.1974), this court reversed the defendant's conviction because the instructions did not limit the jury's consideration to the specific dates alleged in the indictment. Salazar holds that, while the time of the offense may be unnecessary, and therefore, considered surplusage under NMSA 1978, Crim.P.Rule 8(a) (Repl.Pamp.1985), the procedural rule does not apply where the indictment has alleged a specific time and where the facts indicate potential prejudice to the defendant if the allegation is not treated as material. In Salazar, as in this case, the prejudice to the defendant arose from the fact that the evidence at trial showed that the offenses occurred on dates other than those specifically alleged in the indictment, leading to the possibility that the defendant was convicted on the basis of the other uncharged offenses. See also State v. Rodman, 44 N.M. 162, 99 P.2d 711 (1940). The Salazar court determined that the adoption of the Rules of Criminal Procedure did not modify or affect the validity of State v. Rodman or State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971), decisions which also limited the state to establishing the specific facts and dates alleged in an indictment. See also State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).

Because the indictment in this case alleged specific time periods, we are required to determine if there is substantial proof that the offenses occurred as charged, "on or about April 28" and "on or about May 19." Black's Law Dictionary defines "on or about" as "approximately" and "without substantial variance from" the stated date. Accordingly, we conclude that the evidence substantially supports the convictions involving James S. Those offenses were alleged to have occurred "on or about May 19," and the evidence showed that defendant was in Santa Fe from May 20 to May 23. Moreover, the victim, James S., consistently stated and testified at trial that the incidents occurred some time in the month of May. The foregoing is substantial evidence in support of the conviction. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).

We further conclude, however, that the convictions involving Randy S. are not supported by the evidence. Those offenses were alleged to have occurred "on or about April 28." However, defendant's alibi evidence showed that defendant was out of the state for the three weeks preceding and three weeks following April 28. We acknowledge that the jury was not required to believe defendant's alibi. State v. Vigil, 87 N.M. 345, 533 P.2d 578 (1975). But the victim's own account of when the incidents occurred varied widely, from April 28, the date which he gave to the grand jury, to June 16, the most approximate date he could recall at trial. The only evidence that the offenses actually occurred "on or about April 28" was the victim's prior statement to the grand jury, a statement which he specifically disclaimed at trial, saying that he never told the grand jury that April 28 was the "correct" date, and saying he was now positive the incidents did not occur on April 28, or anytime in the month of April.

Substantial evidence is such evidence as is acceptable to a reasonable mind as adequate support for a conviction. State v. Robinson, 94 N.M. 693, 616 P.2d 406 (1980). Considering the other evidence presented at trial, and the victim's own repudiation of his prior statement to the grand jury, the prior statement cannot be considered adequate evidentiary support for defendant's convictions of contributing and enticement with respect to Randy S. Defendant's conviction on those counts is reversed for failure of proof. His convictions for contributing and enticement with respect to James S. are affirmed.

II. DUE PROCESS: LACK OF NOTICE AND VARIANCE BETWEEN THE INDICTMENT AND THE PROOF AT TRIAL.

After defendant was indicted, he filed a request for a statement of facts, pursuant to NMSA 1978, Crim.P. Rule 9 (Repl.Pamp.1980). Two weeks later, defendant filed a notice of alibi which detailed the particulars of his alibi, including the fact of his incarceration in Florida. In response to defendant's request for a statement of facts, the state asserted, and the trial court found, that the state's "open file policy" eliminated any need for a statement of facts. The state, however, additionally asserted, during the two pretrial hearings concerning the request, that the state would consider itself "bound to the dates in the indictment." Contrary to this assurance, in opening statement at trial, the prosecution said it would show that the acts charged occurred sometime between January 1 and July 4, 1984. Defendant objected...