State v. Mora

• Decision Date: 20 March 2003
• Docket Number: No. 22,459.,22,459.
• Citation: 2003 NMCA 72,69 P.3d 256,133 N.M. 746
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Timothy MORA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

69 P.3d 256

133 N.M. 746

2003 NMCA 72

STATE of New Mexico, Plaintiff-Appellee, v. Timothy MORA, Defendant-Appellant.

No. 22,459.

Court of Appeals of New Mexico.

March 20, 2003.

Certiorari Denied May 7, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 28,013, May 7, 2003.

OPINION

ALARID, Judge.

{1} Defendant Timothy Mora appeals from his convictions for aggravated residential burglary; attempted criminal sexual penetration of a minor (CSPM); criminal sexual contact of a minor (CSCM); kidnaping; and aggravated assault with a deadly weapon. He asserts that: (1) the trial court erred in refusing to allow defense counsel to ask a police witness about Victim's brother's failure to identify Defendant from a photo lineup; (2) trial counsel's failure to call Victim's brother as a witness constituted ineffective assistance of counsel; (3) Defendant was subjected to double jeopardy when he was convicted of both attempted CSPM and CSCM; and (4) that the evidence was insufficient to support his convictions.

{2} Concluding that Defendant was convicted of CSCM and attempted CSPM based on unitary conduct and that the legislature has not clearly expressed an intention for multiple punishments for unitary conduct that violates NMSA 1978, Section 30-9-11(C) (2001), and NMSA 1978, Section 30-9-13(A) (2001), we reverse and remand to the trial court with instructions to vacate Defendant's conviction and sentence for CSCM. We affirm in all other respects.

BACKGROUND

{3} On May 23, 1999, the twelve year-old Victim and her eight year-old brother were at home camping out in the den in separate tents. Victim's mother was asleep in her bedroom and Victim's father was sleeping on a couch in the living room. Victim testified that she was awoken at approximately 3:45 a.m. by a man in her tent. He was straddling her and pulling down her pants. He lay down on top of her with his pants down, put his fingers down her throat, and with his other hand was either holding her arms up or touching her belly. At first, the man was not doing anything, but then he starting "humping" her and continued to do so for a couple of minutes. She did not think the man ever touched her chest or between her legs. At some point the man pulled a knife out and pressed it into her "gut." Because Victim was making noise, her brother woke up and began yelling at the man to get out of the house. The man got up, pulled up his pants, looked at her brother for a couple of seconds, and then went out through a sliding glass door.

{4} Victim's mother was awoken at approximately 4:00 a.m. by the children, who were screaming. The children told her a man had been in the house. She called 911 and her husband went outside to look for the man. Victim's mother never saw the intruder. The police arrived and found a knife that did not belong to the household in Victim's tent. It was determined that in order to gain entry, the intruder had cut and removed the screen from a window which had been left unlocked and open.

DISCUSSION

Evidence Regarding Identification of Defendant

{5} At trial, Detective Brian Link testified that he had composed a six person photo array from which Victim had identified Defendant as being the intruder. She said the man she identified looked similar to the man who had been in her tent. She also identified Defendant as the assailant at trial.

{6} On cross-examination, defense counsel elicited from the detective that the array had also been shown to Victim's brother. Defense counsel attempted to ask which individual the brother had picked from the array. The State objected on hearsay grounds. Defense counsel argued that it was not hearsay, because he was not trying to elicit the boy's statement, and that "it goes for identification." The prosecutor responded that it was hearsay as it was either a statement or a physical action "manifesting the statement." The trial court agreed and sustained the objection.

{7} Following the detective's testimony, defense counsel maintained that Victim's brother had picked an individual other than Defendant from the lineup. Defense counsel argued that the testimony was admissible under Rule 11-803(X) NMRA 2003, the "catch-all" for hearsay exceptions not otherwise specifically covered; that the testimony was highly probative; and that it "does go to the impeaching of the [V]ictim's testimony because we have 2 separate identifications out of the same incident." The trial court maintained its ruling under Rule 11-803(X), as well as under Rule 11-403 NMRA 2003. In so ruling, the trial court specifically found that the statement did not fit under Rule 11-803(X) because there was nothing indicating that the statement was more reliable or probative on the issue of identification than the other available evidence. The trial court also found that the statement was inadmissible under Rule 11-403 because it was collateral, did not impeach Victim in any way, and had a potential for prejudice which outweighed its probative value. Victim's brother was never called to testify.

Admissibility of Testimony

{8} On appeal, Defendant advances two arguments with regard to the admissibility of the detective's testimony. He argues (1) that the testimony sought simply was not hearsay and (2) that the testimony sought was highly probative impeachment testimony, and that by excluding it, the trial court had impermissibly invaded the province of the jury. "Admission of evidence is within the sound discretion of the trial court and the trial court's determination will not be disturbed in the absence of an abuse of that discretion." State v. Aguayo, 114 N.M. 124, 128, 835 P.2d 840, 844 (Ct.App.1992). "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (internal quotation marks and citation omitted).

{9} Defendant first argues that the testimony sought by defense counsel, that Victim's brother picked someone other than Defendant from the photo array, is not hearsay because it was not offered in evidence to prove the truth of the matter asserted. See Rule 11-801(C) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"). We disagree.

{10} The testimony sought by defense counsel was plainly hearsay. In this case, defense counsel was not offering the statement to demonstrate that the brother made a statement, but rather for the truth of the content of that statement—that the boy picked someone other than Defendant from the array. See State v. Lunn, 82 N.M. 526, 527, 484 P.2d 368, 369 (Ct.App.1971)

(finding statements of sons of victims were hearsay because they were admitted, "not for the purpose of showing that the boys made statements, but for the truth of the contents of those statements"). We are not persuaded by Defendant's contention that the "truth" of the statement was that the man the brother identified was in fact the assailant. The truth of the matter asserted, and the reason defense counsel was offering the testimony, was to show that the brother identified someone other than Defendant. As this Court stated in State v. Barela, 97 N.M. 723, 726, 643 P.2d 287, 290 (Ct.App.1982), "the potential inaccuracy of the identification process itself makes it subject to its very own hearsay rule." Rule 11-801(D)(1)(c) permits admission of a statement of identification, providing the declarant testifies at the trial or hearing and is subject to cross-examination. "The proviso that the declarant be subject to cross-examination is the fundamental safeguard in admitting evidence of out-of-court identifications." Barela, 97 N.M. at 726,

643 P.2d at 290. The brother did not testify at trial and, accordingly, the State was given no opportunity to cross-examine him.

{11} Defendant also argues that the evidence was not hearsay because it was offered to "impeach and rebut" Victim's "weak identification" of Defendant. In support of this argument, Defendant cites one out-of-state case, Actonet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 846-48 (8th Cir.2000) (finding positive magazine review of website to be admissible non-hearsay because it directly impeached and rebutted expert's testimony that the website was unsatisfactory). This case is inapposite. In Actonet, the proffered evidence directly rebutted the testimony of the defendant's expert. Id. at 846-47. In this case, the proffered testimony does not directly rebut Victim's identification. We agree with the trial court's finding that:

the issue then is not whether or not someone else identified a different person, but the issue is whether or not [V]ictim ... identified this person or mis-identified another person.... [I]n terms of relevance, I think it[']s more collateral than it is probative and I think it[']s more likely to cause confusion or mislead the jury.

{12} Finally, citing the transcript where the trial court discusses the relative weight of the brother's identification and Victim's identification, Defendant argues that the trial court impermissibly substituted its judgment for that of the jury by refusing the testimony. We disagree. Defendant complains that the trial court, outside the presence of the jury, stated that there was "nothing that would indicate that the out of [court] statement is more reliable than anything else," and "the issue is whether or not the [V]ictim of this case identified this person or mis-identified another person and this does...