State v. Mitchell

Decision Date30 June 2021
Docket NumberNo. A-1-CA-37838,A-1-CA-37838
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. CHRISTOPHER D. MITCHELL, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.


Steven Blankinship, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Lauren J. Wolongevicz, Assistant Attorney General

Albuquerque, NM

for Appellee

Rothstein Donatelli LLP

Alicia C. Lopez

Marc M. Lowry

Albuquerque, NM

for Appellant



{1} Defendant Christopher Mitchell appeals his convictions for one count of criminal sexual penetration (child under 13), pursuant to NMSA 1978, Section 30-9-11(D)(1) (2009), and seven counts of criminal sexual contact of a minor (person in position of authority), pursuant to NMSA 1978, Section 30-9-13(B)(2)(a) (2003). Defendant argues that (1) his trial counsel had an actual conflict of interest based on his former representation of a witness, (2) he was subject to ineffective assistance of counsel, (3) two of his convictions violate his right to be free from double jeopardy, and (4) three of his convictions are not supported by sufficient evidence. We reverse one of Defendant's convictions because of insufficient evidence but otherwise affirm.


{2} In 2006, Defendant and Mother began an eight-and-a-half-year relationship. During their time together, Defendant lived with Mother and her children and acted as a stepfather to K.S., Mother's daughter. Defendant, Mother, and her children moved into the Canal Trailer Park in early 2011. While living at this trailer park, Defendant and K.S., who was twelve years old at the time, started engaging in sexual intercourse. K.S. turned thirteen in March 2011, and the two continued to have sexual intercourse regularly over the next several years at each place they lived.

{3} K.S. and Mother contacted police in 2016 and reported Defendant's abuse of K.S. As a result, Defendant was charged with one count of criminal sexual penetration of a minor in the first degree (child under 13), pursuant to Section 30-9-11(D)(1), and seven counts of criminal sexual contact of a minor in the second degree (person in position of authority), pursuant to Section 30-9-13(B)(2)(a), based on the abuse that occurred at each location at which Defendant and K.S. lived. He was found guilty of all eight charges. Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we reserve discussion of specific facts where necessary to our analysis.

I. Defense Counsel Did Not Have a Per Se Conflict of Interest Based on His Prior Representation of Mother

{4} Defendant first argues that he received ineffective assistance of counsel based on the conflict of interest arising from defense counsel's previous representation of Mother, who was one of the State's witnesses. Defendant argues counsel's prior representation created an actual, concurrent conflict of interest resulting in a per se conflict, which could not be waived by Defendant, and that was not waived by either Defendant or Mother. The State contends that the record is insufficient to make out a factual basis for ineffective assistance of counsel and a per se conflict of interest did not exist because the conflict did not involve a matter of significant relevance to the incidents that formed the basis for the charges against Defendant. We address Defendant's arguments in turn.

{5} "The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees defendants in criminal proceedings the right to effective assistance of counsel." State v. Dyke, 2020-NMCA-013, ¶ 30, 456 P.3d 1125 (omission, alteration, internal quotation marks, and citation omitted). This includes "[t]he right to effective assistance of counsel free from conflicts of interests[.]" State v. Sosa, 1997-NMSC-032, ¶ 20, 123 N.M. 564, 943 P.2d 1017, abrogated on other grounds by State v. Porter, 2020-NMSC-020, ¶ 7 n.2, 476 P.3d 1201. "We review claims of ineffective assistance of counsel de novo." State v. Pitner, 2016-NMCA-102, ¶ 14, 385 P.3d 665 (internal quotation marks and citation omitted).

{6} Normally, "[i]n order to establish a prima facie case of ineffective assistance of counsel on appeal, [the d]efendant must demonstrate that his counsel's performance fell below that of a reasonably competent attorney and that he was prejudiced by his counsel's deficient performance." State v. Uribe-Vidal, 2018-NMCA-008, ¶ 25, 409 P.3d 992 (internal quotation marks and citation omitted). However, "the analysis of an ineffective assistance of counsel claim based on a conflict of interest requires a different analysis[.]" Rael v. Blair, 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657.

{7} Under the conflict-based ineffective assistance of counsel test, "[a] defendant must show that counsel[] actively represented conflicting interests and that an actual conflict of interest adversely affected his or her lawyer's performance." Id. ¶ 11 (alteration, internal quotation marks, and citation omitted). "When a defendant demonstrates that an actual conflict of interest undermined counsel's loyalty, prejudice is presumed." State v. Martinez, 2001-NMCA-059, ¶ 24, 130 N.M. 744, 31 P.3d 1018 (internal quotation marks omitted) (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)). In order for prejudice to be presumed, "there must be an actual conflict of interest and not just a possibility of a conflict." State v. Santillanes, 1990-NMCA-035, ¶ 7, 109 N.M. 781, 790 P.2d 1062. "[O]verlapping representation ordinarily is not enough to justify the presumption of prejudice that arises under Strickland when there is an actual conflict[.]" Rael, 2007-NMSC-006, ¶ 16. In order to find an actual conflict, the defendant

must show that while counsel represented [the d]efendant there was an ongoing professional relationship between [the witness at issue] and defense counsel that requires the protection of attorney-client privilege. Further, [the d]efendant must show that counsel's representation of [the witness at issue] involved a matter relevant to [the d]efendant's trial. If there is significant relevance, a per se conflict of interest can be identified.

Id. ¶ 21. "Absent an actual conflict, the defendant has no claim." State v. Case, 1984-NMSC-012, ¶ 9, 100 N.M. 714, 676 P.2d 241.

{8} Under Rael, "[a] professional relationship is ongoing, even if formal representation has ended, if circumstances exist such that the attorney-client privilege may be violated." 2007-NMSC-006, ¶ 19 (internal quotation marks and citation omitted). This includes when "defense counsel would be called upon to cross-examine the witness or former client on matters concerning defense counsel's representation of that witness." Id. The State concedes, and we agree, that defense counsel's representation of Mother and Defendant satisfies the first prong of the test in Rael, that an ongoing professional relationship existed between defense counsel and the witness at issue. See id. Defense counsel previously represented Mother a year before Defendant's trial. Because defense counsel's professional relationship with Mother extended beyond the termination of his representation of her and overlapped with his representation of Defendant, the first prong of Rael is satisfied.

{9} Turning to the second prong of the Rael analysis—whether counsel's representation of the witness involved a matter of significant relevance to Defendant's trial—the record before us is insufficient to determine whether the prong has been met. See id. ¶ 21. The limited information in the record indicates that defense counsel represented Mother in a Children, Youth and Families Department (CYFD) case, which she claimed had to do with her son. Both defense counsel and Mother stated that her case did not involve Defendant in any way. The limited information about Mother's previous case is insufficient to establish the necessary connection between defense counsel's representation of Mother and Defendant. Given this, we cannot conclude that a per se conflict existed. See id.

{10} Defendant's other arguments regarding defense counsel's representation of Mother and Defendant would require us to rely on an inference to establish an actual conflict. Defendant asserts CYFD sued Mother regarding her ability to be an effective parent, thus it was relevant to impeach her as a witness. Again, the record contains no information relating to the nature of the CYFD case. See State v. George, 2020-NMCA-039, ¶ 19, 472 P.3d 1235 ("The mere assertions and arguments of counsel are not evidence." (internal quotation marks and citation omitted)). We simply do not know the nature of the previous matter, and without that knowledge, we are unable to determine whether it was related to this proceeding.

{11} Regarding Defendant's remaining argument that defense counsel's poor trial performance can be explained only by his on-going loyalty to Mother, there is no evidence that defense counsel abandoned a specific defense strategy based on any duty to Mother. See Santillanes, 1990-NMCA-035, ¶ 10 (concluding that an actual conflict existed based on the defense counsel's representation of a co-defendant because in establishing a defense for the co-defendant, defense counsel was forced to abandon a strategy that could have been used to exonerate the defendant and the co-defendant was unable to be used as a witness for the defendant). Again, there is insufficient information in the record to infer the actions of defense counsel were based on an actual conflict rather than reasonable...

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