State v. Montoya, 30,470.
| Citation | 306 P.3d 470 |
| Decision Date | 24 May 2012 |
| Docket Number | No. 30,470.,30,470. |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Vincent MONTOYA, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.
Jacqueline L. Cooper, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Vincent Montoya was charged with kidnapping, attempt to commit criminal sexual penetration (CSP), aggravated battery against a household member, and interference with communications. He was convicted of all but attempted CSP. At issue in this appeal is whether his Confrontation Clause rights were violated by the district court's pre-trial ruling preventing him from questioning Victim about her prior sexual history with him. We hold that they were not and affirm.
{2} The facts of this case are not in dispute. Defendant and Victim had been arguing. Defendant wanted to have sex with Victim, but Victim was not similarly inclined. Defendant got on top of Victim and attempted to remove her pants. Victim pushed and kicked Defendant until he stopped. Although Defendant was capable of forcing Victim to have sex with him, he did not. The two continued fighting, and Defendant bit Victim's inner thigh and pushed her over a table, hitting her head and hurting her back. Eventually, Victim's parents arrived and she was able to leave.
{3} What is disputed, and what was the pivotal issue below, was Defendant's intent. Did he intend to commit a sexual offense against Victim regardless of whether she consented, or did he believe he was engaging in a consensual act of “make-up sex”? Arguing the latter, Defendant filed a motion under Rule 11–413 NMRA to introduce evidence of Victim's past sexual conduct with Defendant. Defendant represented that Victim would testify “that she believed Defendant was trying to have ‘make-up sex’ with her and that they had engaged in make-up sex in the past.” According to Defendant, “make-up sex” meant the use of sexual intercourse as a method of resolving disputes or of reconciling subsequent to a dispute. Defendant argued that the sexual history testimony was relevant to his state of mind regarding the specific intent crimes of kidnapping and CSP because it would show that “his intent was to have consensual sexual relations with his long-time girlfriend, not to have sex with her against her will.”
{4} The district court denied Defendant's motion, finding that Victim's past sexual conduct was “inflammatory and prejudicial in nature and [was] not outweighed by its probative value.” It ordered that Defendant was precluded from asking whether Victim and Defendant had a long-standing sexual relationship, whether Victim and Defendant “engage[d] in sexual relations after an argument to make[-]up,” or whether Victim had ever not consented to Defendant's sexual advances prior to the events at issue in the case. The court noted that “Defendant's confrontation rights are implicated by the material the defense seeks to introduce but that material may be elicited by other legally proper means than through the alleged [V]ictim.” A jury acquitted Defendant of attempted CSP but convicted him of kidnapping.
{5} Although Defendant was prevented from introducing evidence of his sexual history with Victim, he was able to produce some evidence at trial in support of his theory that he never intended to commit a sexual offense against Victim. Notably, Victim testified that she had been Defendant's girlfriend for about two years. Victim agreed that she was not terrified that he was going to penetrate her and that penetration was not the issue. She also agreed that she perceived his advances not as an attempt to force sex on her, but as an attempt to obtain her consent for sex. Finally, she agreed that she believed Defendant would not have had sex with her unless she consented.
{6} Defendant makes two arguments on appeal. First, he contends that the district court erred in excluding evidence of Victim's sexual history with Defendant that Defendant believes would have negated the specific intent element of the kidnapping charge. Second, Defendant argues that it was error for the district court to instruct the jury that attempted CSP was only a general intent crime. We address each argument in turn.
{7} In 1975, our Legislature enacted a rape shield law which provides that
[E]vidence of the victim's past sexual conduct, opinion evidence of the victim's past sexual conduct or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds that, the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
NMSA 1978, § 30–9–16(A) (1975) (amended 1993). Our Supreme Court has adopted a similar rule of evidence. SeeRule 11–413(A). For convenience, we will confine our discussion to the rule in this Opinion. The rule confers upon the district court discretion to exclude evidence of past conduct. See id. However, “[i]f application of the rape shield law or rule would conflict with the accused's confrontation right, if it operates to preclude the defendant from presenting a full and fair defense, the statute and rule must yield.” State v. Johnson, 1997–NMSC–036, ¶ 24, 123 N.M. 640, 944 P.2d 869.
{8} Defendant's rape shield argument breaks down into two parts: (1) a constitutional component under the Confrontation Clause; and (2) an evidentiary component, looking at the district court's application of the rule. The admissibility of evidence under the rape shield rule is separate from the objection based on the Confrontation Clause. Cf. State v. Henderson, 2006–NMCA–059, ¶ 8, 139 N.M. 595, 136 P.3d 1005 (). We begin with the Confrontation Clause because, as we discuss below, the rape shield rule must yield when exclusion of the evidence would violate a defendant's confrontation rights. First, however, we must discuss the standard of review.
{9} Our Supreme Court has sent confusing signals regarding the standard of review for cases involving both the rape shield rule and the Confrontation Clause. Most recently, in a case that dealt exclusively with the confrontation implications of the rape shield rule, the Court stated that we review decisions to exclude evidence under the rape shield rule for abuse of discretion. State v. Stephen F., 2008–NMSC–037, ¶ 8, 144 N.M. 360, 188 P.3d 84. However, other cases indicate that we review Confrontation Clause issues de novo. See, e.g., State v. Lopez, 2011–NMSC–035, ¶ 10, 150 N.M. 179, 258 P.3d 458;State v. Lasner, 2000–NMSC–038, ¶ 24, 129 N.M. 806, 14 P.3d 1282. In State v. Gonzales, 1999–NMSC–033, ¶ 22, 128 N.M. 44, 989 P.2d 419, our Supreme Court noted that the right to confrontation is not absolute, and the district court retains wide latitude to limit cross-examination. This language would seem to implicate an abuse of discretion standard, but in its ruling the Court held that “under the de novo standard, ... the trial court acted within its ‘wide latitude.’ ” Id. We find it necessary to review the case history in this area to clarify the standard of review applicable.
{10} In Johnson, the Court first considered the tension between the defendant's confrontation right to cross-examine witnesses and the state's interest in protecting the victims' privacy under the rape shield rule. The Court framed the issue by observing that “evidence of prior sexual conduct must be admitted if a defendant shows that evidence implicates his or her constitutional right of confrontation.” 1997–NMSC–036, ¶ 22, 123 N.M. 640, 944 P.2d 869 (emphasis added); id. ¶ 24 (). Citing a Wisconsin case, the Court adopted a five-prong test as a non-exclusive framework for “establish [ing] a constitutional right to present evidence otherwise excluded by” the rape shield rules:
(1) whether there is a clear showing that the complainant committed the prior acts; (2) whether the circumstances of the prior acts closely resemble those of the present case; (3) whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias; (4) whether the evidence is necessary to the defendant's case; [and] (5) whether the probative value of the evidence outweighs its prejudicial effect[.]
Id. ¶¶ 27–28. It concluded that “a showing sufficient under the five-pronged ... test establishes a constitutional right to present evidence otherwise excluded by our statute.” Id. ¶ 28. This statement evokes a de novo determination regarding a constitutional right.
{11} However, in the same paragraph, it characterized the confrontation right as merely “inform[ing] the [district] court's exercise of discretion under the statute and rule,” a characterization that speaks to the abuse of discretion review normally associated with the application of a rule of evidence. Id. At first glance, this latter statement seems to be in conflict with the earlier invocation of a de novo standard of review.
{12} After setting forth these apparently contradictory standards, Johnson concluded that the defendant had not made any argument that implicated his right to confrontation. Id. ¶ 29. The Court concluded that the contested evidence did not support a theory of relevance other than propensity. Seeid. ¶¶ 39–40. It appears to have reached this conclusion as a matter of law, reasoning that the evidence offered was not probative of...
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State v. Montoya
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