State v. Mason
| Decision Date | 30 August 1968 |
| Docket Number | No. 95,95 |
| Citation | 1968 NMCA 72,79 N.M. 663,448 P.2d 175 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Paul Andrew MASON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This is an appeal by defendant from convictions of the crimes of sexual assault and attempted rape of a child.
Defendant relies upon fourteen separate points for reversal. By his first point he claims reversible error in the admission of testimony by witnesses concerning other criminal acts by defendant, which have no connection with the offenses with which he was charged and convicted.
We are of the opinion that his first point is well taken and is determinative of this appeal.
The material facts are that defendant was charged by information consisting of ten separate counts. All counts concerned claimed sexual offenses involving four girls under the age of sixteen years. The State elected to try defendant on two counts. One of these counts involved a sexual assault upon an eleven year old child, and the other involved attempted rape of a twelve year old child. The other two girls upon whom the defendant had allegedly committed sexual offenses were fifteen years of age. The information charged defendant with having sexual relations with these two fifteen year old girls, with indecent handling or touching of them, and with causing or encouraging their delinquency.
Upon the State's election to proceed to trial upon the two charges involving the eleven and twelve year old girls, the defendant filed in open court at the commencement of the trial a motion 'to suppress and disallow any testimony at the trial of' the two fifteen year old girls, and also of two other persons whose testimony was never offered. The motion was denied and the court proceeded immediately with the trial.
In the State's opening statement to the jury the four girls were named. It was stated that the evidence would show that the two younger girls resisted the efforts of defendant to have sexual relations with him, but some of the girls, all of whom were babysitters for defendant and his wife, did engage in sexual intercourse with defendant.
When the first witness called by the State was asked why 'all these girls were obtained for babysitting,' defendant objected that any testimony about the other two girls (the fifteen year olds) not named in the counts upon which defendant was being tried was not relevant or material to any issue in the case. This objection was sustained, but on other grounds.
Thereafter, the State produced the fifteen year old girls as witnesses. The one testified she was employed by defendant and his wife to do housework in July of 1966, that during the third week of her employment she had sexual relations with defendant, and she engaged in such relations on three different occasions. Defendant testified this girl was employed between the approximate dates of June 20 and July 12. This witness was not employed as a babysitter for defendant and his wife.
The other girl testified she was employed as a babysitter by defendant and his wife and she had sexual relations with defendant on two different occasions. Defendant testified this girl was employed on September 18, 1966 as a babysitter and was so employed on one or more subsequent occasions during the same month. Thereafter defendant saw her during the month of January 1967, but she was not then employed by defendant and his wife.
Defendant as a part of his defense denied having sexual relations with either of these girls.
Although no objection was made to the testimony of either girl at the time she was testifying, we are of the opinion that the nature of the charges against defendant involving these two girls, the motion to suppress their testimony, the opening statement by the State, and the subsequent objection to any testimony concerning these two, when taken together, were sufficient to alert the mind of the court to the objections of defendant to this testimony. See State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960). Defendant's objections were not waived because they were not repeatedly asserted. Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964).
As already stated, the evidence shows the claimed sexual acts testified to by the two fifteen year old girls apparently occurred in July 1966 with the one girl and in September 1966 with the other girl. The act of sexual assault of which defendant was convicted apparently occurred about October 15, 1966, and the acts of attempted rape of which defendant was convicted apparently occurred between about November 15, 1966 and December 23, 1966.
Ordinarily proof of a distinct offense independent of the offense with which the accused is charged and for which he is being tried is not admissible. Martin v. State, supra; State v. Velarde, supra; 1 F. Wharton, Criminal Evidence § 232 (12th ed. 1955).
However, there are exceptions to this rule. State v. Velarde, supra; State v Bassett, 26 N.M. 476, 194 P. 867 (1921); State v. Whitener, 25 N.M. 20, 176 P. 870 (1918); 1 F. Wharton, Criminal Evidence §§ 233--244 (12th ed. 1955). The State in its opening statement announced that testimony would be offered to show 'a broad plan, scheme, and design employed by the defendant and others to obtain and entice' young girls into defendant's home to induce them to engage in sexual intercourse. The others referred to as participants in this plan were defendant's wife and another woman who was employed by and living with defendant and his wife. This other woman was the State's first witness, and she testified to events which pointed rather clearly to such a plan, scheme or design.
The evidence shows no physical force or violence was used by defendant in committing the offenses with which he was charged and convicted or in consummating his sexual relations with the two fifteen year old girls.
The State argues before us that the testimony of the two fifteen year old girls, that they engaged in sexual relations with defendant, was admissible as indicating 'a plan or scheme or mode of behavior under the rule announced in' State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938), and State v. Bassett, supra. The decisions in those two cases lend no support to the State's position in the present case. There is set forth in the opinions in these cases the general rule which excludes evidence of distinct and independent offenses, and then there are recited the exceptions thereto, or, as indicated by the court, certain elements, conditions or circumstances which are a part of the rule itself, under which evidence of other offenses is admissible.
In the Lord case the court held the evidence of the distinct and independent offenses was objectionable, but no proper objections had been made. In the Bassett case the court held 'that the evidence of the second abortion was inadmissible and should be excluded upon any future trial.'
We appreciate that the State did not cite these cases to show that the results therein reached support the admissibility of the evidence here in question, but only for the general rule and exceptions thereto which were defined and recited therein. We note the results in these cases only to avoid any suggestion that these results lend support to the State's position in the present case.
We are of the opinion that the rule applicable in New Mexico to the facts of this case was announced in State v. Velarde, supra, wherein it was stated:
The rule adopted in the Velarde case is in accord with the general or majority rule that evidence of similar sex offenses committed with or upon persons other than the prosecutrix is ordinarily inadmissible. 1 F. Wharton, Criminal Evidence § 242 (12th ed. 1955). (It is generally held that evidence of the commission of, or attempt to commit, statutory rape, fornication, seduction, incest, or sodomy upon or with a person other than prosecutrix is inadmissible); Annot., 167 A.L.R. 565, 588, 598 (1947); Annot., 77 A.L.R.2d 841, 859, 875 (1961). See also People v. Stewart, 85 Cal. 174, 24 P. 722 (1890); People v. Greeley, 14 Ill.2d 428, 152 N.E.2d 825 (1958); State v. Smith, 250 Mo. 274, 157 S.W. 307 (1913); ...
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