State v. Marquez

• Decision Date: 01 September 2020
• Docket Number: No. A-1-CA-37055,A-1-CA-37055
• Citation: 495 P.3d 1150
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Isaac MARQUEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

495 P.3d 1150

STATE of New Mexico, Plaintiff-Appellee,

v.Isaac MARQUEZ, Defendant-Appellant.

No. A-1-CA-37055

Court of Appeals of New Mexico.

Filing Date: September 1, 2020

Certiorari Granted, April 23, 2021, No. S-1-SC-38502

Hector H. Balderas, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM for Appellee

Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Karen Grohman, Shammara H. Henderson, Christopher A. Dodd, Albuquerque, NM for Appellant

ATTREP, Judge.

{1} Defendant Isaac Marquez appeals his conviction for one count of criminal sexual penetration in the first degree (child under thirteen), contrary to NMSA 1978, Section 30-9-11(C) (1995, amended 2009). Defendant was charged with acts of digital penetration against his ex-wife's granddaughter. He advances several claims of error, one of which—the admission of evidence of uncharged sexual misconduct with the victim—we deem the basis for reversal. In reaching this conclusion, we reaffirm that the so-called "lewd and lascivious disposition" exception to the prohibition against propensity evidence is abolished in New Mexico. Further concluding the State has advanced no viable non-propensity reason for the admission of the uncharged sexual misconduct evidence and that its admission was not harmless, we reverse Defendant's conviction and remand for a new trial. Because we reverse on this basis we do not consider Defendant's remaining claims of error.

BACKGROUND

{2} The charges in this case stem from allegations made by J.K., the granddaughter of Defendant's ex-wife Judy, years after the abuse occurred. Defendant and Judy had a contentious breakup in November 2009. Around that time, J.K. (by then an adult) disclosed to Judy that Defendant sexually abused J.K. when she was between six and eight years old. A grand jury eventually indicted Defendant in June 2015, charging him with four counts of criminal sexual penetration. Trial commenced later that year.

{3} Of relevance to this appeal, defense counsel moved the district court, prior to the taking of any testimony, to prohibit the State from introducing evidence of certain uncharged conduct as impermissible propensity evidence. Specifically, J.K. disclosed in pretrial interviews that, during the same timeframe of the charged conduct, Defendant also made J.K. touch his penis on several occasions. In addition, Judy was prepared to testify that she witnessed Defendant walking around with an open robe in J.K.’s presence. When asked by the district court to proffer an allowable purpose for this evidence under Rule 11-404(B) NMRA, the State asserted: "[L]ewd and lascivious conduct with the same victim is admissible under [Rule 11-]404(B), if it shows a pattern of conduct with that victim and it shows an ongoing pattern of behavior with that victim." After reviewing case law cited by the State, and taking into consideration Rule 11-403 NMRA, the district court ruled the evidence admissible, reasoning: "It involves the same victim. It's during the same time frame. There is relevance with regard to the lewd and lascivious disposition towards the particular victim. It also corroborates the victim's testimony and gives some context to this behavior."

{4} J.K. was twenty-five years old at the time of trial. J.K. testified that, sometime between the ages of six and eight, she lived on and off with Judy and Defendant for a couple of months where she slept on a couch in the living room. J.K. testified that Defendant, on numerous occasions, would get up in the middle of the night to get cookies from the kitchen. On his way, Defendant would stop and fondle J.K. underneath her underwear and would "play with [her] clitoris" with the tips of his fingers. J.K. did not remember these incidents with any specificity, testifying that they were "[j]ust a blur." After this testimony, the State elicited from J.K. that Defendant also did other inappropriate things to her. When asked what those incidents were, J.K. testified: "In his bedroom, during the day, if I had asked to go play with kids across the street or I had asked for a candy, he would be sitting in his bed in his robe, and he would have me come over, and he would use my hand to stroke his penis." J.K. specifically remembered that, on one occasion when Defendant did this to her, Judy was in her bathroom taking a bath. The State also asked Judy at trial whether there had been any incidents between Defendant and J.K. that caused her concern. Judy responded that she once witnessed Defendant standing in front of J.K. with an open robe wearing only his underwear. Defendant took the stand in his defense and testified that he never touched J.K. sexually.

{5} At the conclusion of the State's case, the district court, on concession of the State, entered a directed verdict on three of the four counts because J.K. described a course of conduct and could not distinguish separate acts. The jury found Defendant guilty of the remaining charge, and the district court sentenced Defendant to a term of imprisonment of twelve years.

DISCUSSION

{6} Defendant argues on appeal that the uncharged sexual misconduct evidence—i.e., Defendant making J.K. touch his penis and walking around with an open robe in front of J.K.—was improper propensity evidence admitted in violation of Rule 11-404(B). Defendant also argues that, even if this evidence was admissible for a purpose other than propensity, its admission was prohibited by Rule 11-403 because the prejudicial effect of the evidence substantially outweighed its probative value. Finally, Defendant argues that the erroneous admission of the evidence was not harmless. We first examine whether the district court's stated rationale—i.e., the lewd and lascivious disposition exception—was a valid basis for admitting the uncharged sexual misconduct evidence. Reaffirming once again that this exception has been abolished and thus provides no basis for the admission of such evidence, we turn next to whether the other grounds advanced by the State on appeal justify the district court's ruling. Because they do not and because the admission of the evidence was not harmless, we reverse Defendant's conviction and remand for a new trial.

I. The District Court Erred in Admitting Evidence of Defendant's Uncharged Conduct

{7} Rule 11-404 prohibits the introduction of "[e]vidence of a crime, wrong, or other act ... to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Rule 11-404(B)(1). Such propensity evidence, "although logically relevant to show that the defendant committed the crime by acting consistently with his or her past conduct," is inadmissible due to the likelihood the jury will convict for crimes other than those charged, or because it simply believes the defendant to be a bad person deserving of punishment. State v. Gallegos , 2007-NMSC-007, ¶ 21, 141 N.M. 185, 152 P.3d 828. A trial court may nonetheless admit such evidence for a purpose other than to show propensity, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 11-404(B)(2). "This list is not exhaustive and evidence of other wrongs may be admissible on alternative relevant bases so long as it is not admitted to prove conformity with character." State v. Otto , 2007-NMSC-012, ¶ 10, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted). Critically, though, "it is incumbent upon the proponent of Rule 11-404(B) evidence to identify and articulate the consequential fact to which the evidence is directed" and to state with precision "the rationale for admitting the evidence to prove something other than propensity." Gallegos , 2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828. Assuming the district court determines the evidence admissible under Rule 11-404(B), it next is required to determine whether "the probative value related to its permissible purpose is substantially outweighed by the factors enumerated in Rule 11-403." Gallegos , 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828.

{8} "We review a trial court's decision to admit evidence under Rule 11-404(B) for abuse of discretion." State v. Romero , 2006-NMCA-045, ¶ 73, 139 N.M. 386, 133 P.3d 842. "An abuse of discretion occurs when the district court's decision can be characterized as clearly untenable or not justified by reason." State v. Ervin , 2008-NMCA-016, ¶ 9, 143 N.M. 493, 177 P.3d 1067 (internal quotation marks and citation omitted). A district court also abuses its discretion when its "discretionary decision is premised on a misapprehension of the law." Aragon v. Brown , 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913.

A. The Lewd and Lascivious Disposition Exception Is Not Good Law

{9} At trial, the State primarily relied on this Court's decision in State v. Casaus , 1996-NMCA-031, 121 N.M. 481, 913 P.2d 669, to argue for the admission of the uncharged sexual misconduct evidence. In particular, the State argued that the evidence was admissible as "prior lewd and lascivious conduct with the same victim ... [in order to] place[ ] the criminal charge in context." In permitting the admission of the evidence, the district court accepted this rationale.

{10} On appeal, Defendant asserts the district court abused its discretion by relying on this exception to Rule 11-404(B) that is no longer good law.¹ Defendant maintains that this Court abrogated the lewd and lascivious disposition exception to Rule 11-404(B) in Kerby I and that our Supreme Court did not alter this holding when it subsequently affirmed this Court's decision on other grounds. See State v. Kerby (Kerby II ), 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704. Although the State acknowledges this Court abrogated the lewd and lascivious disposition exception in Kerby I , it asserts, without developing an argument as to why we ought to depart from settled law, that Kerby I has been placed...