State v. Nichols

• Decision Date: 08 December 2005
• Docket Number: No. 25205.,25205.
• Citation: 128 P.3d 500,2006 NMCA 017
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Andrew John NICHOLS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 500

128 P.3d 500

2006 NMCA 017

STATE of New Mexico, Plaintiff-Appellee, v. Andrew John NICHOLS, Defendant-Appellant.

No. 25205.

Court of Appeals of New Mexico.

December 8, 2005.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.

J. Robert Beauvais, P.A., J. Robert Beauvais, Ruidoso, for Appellant.

OPINION

SUTIN, J.

{1} Defendant was charged by a grand jury with committing seventeen counts of various sexual offenses against his biological daughter (Victim). The offenses included criminal sexual penetration (CSP), attempted CSP, criminal sexual contact of a minor (CSCM), and incest. The indictment stated that the offenses occurred between October 1, 1995, and February 25, 2003, although in the separate counts, the State charged more narrow time frames. During some of this time, Victim was under the age of thirteen. Following the trial, the seventeen counts were consolidated into six: one count each of CSCM with a minor under the age of thirteen, incest, attempt to commit CSP, and attempt to commit incest, and two counts of CSP of a minor. Defendant was convicted of all six counts.

{2} Defendant appeals on four grounds: (1) whether there was sufficient evidence of attempted CSP and attempted incest where Defendant claims that Victim's testimony was not credible, (2) whether the district court erred in instructing the jury that it could convict Defendant of CSCM for touching Victim's breasts and/or her vagina, (3) whether the district court abused its discretion in allowing, under Rule 11-801(D)(1)(b) NMRA, a prior statement, which Defendant argues was not consistent with Victim's testimony at trial, and (4) whether Defendant was denied notice and the ability to defend because of the large time spans submitted in the jury instructions. We affirm.

BACKGROUND

{3} Victim testified that she was seven years old when her mother moved out of the house, and left her and her three brothers with Defendant, Victim's father. She testified that about six months after her mother left, Defendant started touching her inappropriately. Victim and her family lived in Roswell on and off from the time that Victim was seven until she was fourteen. During some of that time, Victim and her brothers lived in Artesia with Defendant's father, Defendant's stepmother, and his stepsister while Defendant lived in Arizona. Victim testified that no sexual misconduct occurred during this time in Artesia though Defendant visited her during that time. During the time in Artesia, Victim disclosed to Defendant's stepsister (Victim's stepaunt) that "John" had touched her and "made her put her mouth there." Victim's stepaunt believed that by "John" Victim was referring to Defendant, whose middle name is John and who is known as John. At trial, Victim never testified that oral sexual contact occurred.

{4} At some point, Defendant retrieved Victim and her brothers and moved them first to Arizona, then to Washington, then back to Roswell in April 2002, shortly after Victim turned fourteen. Victim testified that, after moving back to Roswell, Defendant committed CSCM and digital CSP on her approximately a dozen times. She also testified that Defendant committed penile CSP on her three times since moving back to Roswell. For two of the acts of CSP, Victim was unable to give a specific date. Two of Victim's brothers testified to seeing inappropriate contact between Defendant and Victim during this time period. As for the third instance of CSP, Victim testified that it happened on February 25, 2003, the day before she was taken into foster care. Victim testified in detail as to Defendant's conduct on this date. The incident was not witnessed by anyone else and Defendant denied that it ever occurred. He also generally denied having had any sexual contact with or penetration of Victim. We discuss the facts in more detail later in this opinion as necessary.

DISCUSSION

I. THE STATE PRESENTED SUBSTANTIAL EVIDENCE OF ATTEMPTED CSP AND ATTEMPTED INCEST

{5} Defendant first argues that the State failed to establish substantial evidence of counts four and five, charging attempted CSP under NMSA 1978, § 30-9-11 (2003), and attempted incest under NMSA 1978, § 30-10-3 (1963). These counts were based on the conduct that occurred February 25, 2003, the day before Victim was put into foster care. Defendant argues that "[t]he only evidence, direct or circumstantial, that [Defendant] attempted CSP or attempted incest on February 25, 200[3] was the directly controverted testimony of the alleged victim." Defendant argues that Victim's uncorroborated, contradictory testimony does not establish beyond a reasonable doubt that the alleged attempted CSP and attempted incest occurred.

{6} Victim testified as follows: On the night of February 25, 2003, she had fallen asleep in her father's room watching TV. Her father's live-in girlfriend, Donna, was not at the house at the time. When she woke up, her father was on top of her and there were candles lit in the room. Her father then retrieved some condoms out of his closet and put one on his penis. Her father told her that he wanted to "come inside her." He then placed his penis inside her vagina and started pushing, and it was very uncomfortable and hurt. She tried to scream or make a noise but could not get a sound out. At one point she managed to push him off of her and she went running to the bathroom to get away from him. He then called her back to the bedroom and tried to pull her back onto the bed but she managed to escape his grip. Defendant said a second time that he wanted to come inside of her. Victim grabbed her pajamas, ran back to the bathroom, got dressed and went back to where she normally slept.

{7} On cross-examination, defense counsel elicited testimony from Victim establishing that the day after this incident she told a police detective that she had never seen any condoms at the house and that she had never seen a condom. Defendant raises other contradictions, including, for example, that Victim testified that Defendant told her not to attribute any sexual contact to him but to tell the police the sexual contact was by a boyfriend, whereas, on cross-examination Victim testified that she told the detective her father had never discussed the sexual contact with her; that Victim denied any inappropriate contact by her father and was not lying to protect him; and that she told the detective she was a virgin.

{8} Defendant's insufficiency of evidence point is based solely on his argument that Victim's testimony regarding attempted CSP and attempted incest was not sufficiently credible to permit the jury to find Defendant guilty beyond a reasonable doubt. Defendant also challenges the sufficiency of the evidence by questioning whether a reasonable person could think Defendant was not credible, viewing the evidence in a light most favorable to the State. For that proposition, he relies on State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.App.1993), as citing the case of State v. Sparks, 102 N.M. 317, 694 P.2d 1382 (Ct.App.1985), which merely states that substantial evidence is evidence that is acceptable to a reasonable mind as adequate support for a conclusion and holds that the jury could reasonably have believed that the defendant acted in a particular manner. Id. at 320, 694 P.2d at 1385. Defendant's authority does not support his proposition. Defendant's standard is simply incorrect.

{9} "When determining the sufficiency of the evidence, the court views the evidence in a light most favorable to the verdict, considering that the State has the burden of proof beyond a reasonable doubt." State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. We view the evidence in the light most favorable to the verdict and disregard any contrary evidence. State v. Bennett, 2003-NMCA-147, ¶ 19, 134 N.M. 705, 82 P.3d 72. "If evidence is in conflict, or credibility is at issue, we accept any interpretation of the evidence that supports the trial court's findings[.]" State v. Wynn, 2001-NMCA-020, ¶ 5, 130 N.M. 381, 24 P.3d 816. As an appellate court, we do not "substitute our judgment for that of the factfinder concerning the credibility of witnesses or the weight to be given their testimony." State v. Sanders, 117 N.M. 452, 457, 872 P.2d 870, 875 (1994). "An appellate court does not observe the demeanor of live witnesses, cannot see a shift of the eyes, sweat, a squirm, a tear, a facial expression, or take notice of other signs that may mean the difference between truth and falsehood to the fact finder." Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988).

{10} In prosecutions for criminal sexual penetration, "[t]he testimony of [the] victim need not be corroborated" and lack of corroboration has no bearing on weight to be given to the testimony. NMSA 1978, § 30-9-15 (1975). The appropriate formulation of the sufficiency of the evidence test in CSP cases was succinctly stated in State v. Hunter, 101 N.M. 5, 7, 677 P.2d 618, 620 (1984):

{11} While the evidence was conflicting, it was not incredible. The jury, as the trier of fact, was entitled to weigh this evidence. The jury simply believed the victims' testimony and the evidence supporting it over Defendant's assertions that the incidents had not occurred. This Court will not substitute its determination for that of the jury.

(Citation omitted.)

{12} While Victim's testimony may have been to some degree impeached, it was nonetheless in the province of the jury as factfinder to decide whether to believe the Victim. Here the jury obviously determined Victim's testimony to be sufficiently credible for conviction. We will not disturb that determination. We thus conclude that there was sufficient evidence of attempted CSP and attempted incest. We hold that the district court did not err in denying the motion for directed verdict as to counts four and...