State v. Ochoa
| Decision Date | 09 May 2018 |
| Docket Number | No. A-1-CA-31243,A-1-CA-31243 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN ERIC OCHOA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Hector H. Balderas, Attorney General
Sri Mullis, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} This case comes to us on Defendant's motion to recall mandate and to address the five remaining issues in his appeal in light of the Supreme Court's opinion in State v. Ochoa, 2017-NMSC-031, 406 P.3d 505, which reversed this Court's 2014 decision reversing Defendant's convictions for violation of his constitutional right to a speedy trial. See State v. Ochoa, 2014-NMCA-065, 327 P.3d 1102.
{2} Defendant was convicted of one count of interference with communications, contrary to NMSA 1978, Section 30-12-1 (1979) and two counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13 (2003), stemming from allegations that Defendant engaged in sexual abuse of his daughter, EO. For the following reasons, we affirm.
{3} Defendant raises the following issues: (1) that the district court denied Defendant his constitutional right to present a defense when it prohibited him from presenting expert testimony and permitted the State to put on its own expert; (2) that the district court erred in denying Defendant's motion for a severance; (3) that the State failed to disclose EO's recantation; (4) that the district court erred in refusing to instruct the jury on unlawfulness as an element of CSCM; and (5) that as a result of the State's failure to instruct the jury on the issue of unlawfulness, the State failed to present sufficient evidence to support Defendant's convictions for CSCM. Because this is a memorandum opinion and the parties are familiar with the facts andprocedural posture of the case, we set forth only such facts and law as are necessary to decide the merits.
{4} Defendant was charged in an indictment with sixteen felony and misdemeanor counts relating to alleged acts of sexual abuse of four of his children—JD, KO, IO, and EO—in April and May 2008. The State filed a nolle prosequi on three counts prior to trial: two counts of CSCM of IO and one count of attempted criminal sexual penetration of EO. After a trial on the remaining thirteen counts, the jury found Defendant guilty of two counts of CSCM of EO and one count of interference with communications. The jury either acquitted or hung on the remaining ten counts. Defendant appeals.
{5} Because this is a memorandum opinion, additional factual and procedural background is provided in our analysis as required.
{6} Defendant contends that "[i]n excluding Dr. [Alexander J.] Paret's, [Ph.D.] testimony concerning the safehouse interviews, including the leading questions used and the resulting suggestibility-evidence supporting the theory of defense, the[district] court abused its discretion and denied [Defendant] his fundamental right to due process and a fair trial." In addition, Defendant argues that the error in excluding Dr. Paret's testimony was "further compounded when it erroneously allowed Detective Irma Palos of the Las Cruces, New Mexico Police Department, to offer her unqualified opinion that in her training and experience it is not unusual for children to fail" to make full disclosures. Finally, Defendant argues that even assuming the district court correctly excluded Dr. Paret from testifying, it should have allowed Defendant additional time to find a new expert.
{7} Rule 11-702 NMRA provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Three requirements must be satisfied for expert testimony to be admissible under Rule 11-702: (1) that the expert be qualified; (2) that the testimony be of assistance to the trier of fact; and (3) that the expert's testimony be about scientific, technical, or other specialized knowledge with a reliable basis. See State v. Alberico, 1993-NMSC-047, ¶¶ 43-45, 116 N.M. 156, 861 P.2d 192. "The admission of expert testimony lies in the discretion of the trial court." Loper v. JMAR, 2013-NMCA-098,¶ 18, 311 P.3d 1184. "An abuse of discretion arises when the evidentiary ruling is clearly contrary to logic and the facts and circumstances of the case." State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244
{8} "Under Rule 11-702, a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible." Id. ¶ 26 (internal quotation marks and citation omitted). "In order to testify, it must appear that an expert witness has acquired sufficient knowledge, skill, training, or experience that such testimony will aid the fact[-]finder, but no set criteria can be laid down to test such qualifications." Id. (internal quotation marks and citation omitted). "The use of the disjunctive 'or' in Rule 11-702 permits a witness to be qualified under a wide variety of bases, knowledge, skill, experience, training, or education, and underscores that broad discretion intentionally is given to the [district] court to determine whether expert testimony will assist the trier of fact." Id. (internal quotation marks and citation omitted).
{9} Here, Dr. Paret testified that he was trained in how to apply research in forensic psychology. Dr. Paret employed this training in his work at Clinical Forensic Neuropsychological Associates of New Mexico (CFNANM) as a specialist in providing expert testimony and evaluations concerning competency to stand trial, amenability to treatment, as well as assessing for dangerousness in children andadults. Dr. Paret also testified that he worked for four-and-a-half years at the Intensive Crisis Counseling Program (ICCP) in Orlando, Florida, which was designed to help children who had allegedly been sexually abused, where he received six months of intensive training in performing interviews with children who had allegedly been sexually abused using the "cognitive interviewing technique[.]" While working at ICCP, Dr. Paret conducted over four hundred cognitive interviews of children who allegedly suffered sexual abuse. However, Dr. Paret conceded that during his time at CFNANM, he had never performed a safehouse interview, had never testified as an expert witness in safehouse interview techniques in any state, and had never previously engaged in a record review of safehouse interviews prior to Defendant's case. Dr. Paret also conceded that he had never received training, researched, or published scholarship in the area of safehouse interviewing techniques, and that neither his master's thesis nor his Ph.D. dissertation concerned cognitive or safehouse interviewing techniques.
{10} The district court ruled that while qualified to render opinions on the matters of competency, dangerousness, and amenability to therapy, Defendant failed to establish that Dr. Paret was qualified to render opinions on safehouse interview techniques, with which he was unfamiliar, never studied, and had not employed. Further, the district court also found, because Dr. Paret had not conducted asafehouse-type interview since 2002, it was not a subject of his expertise to critique the particular safehouse interviews conducted in Defendant's case. Under these facts, the district court's determination that Dr. Paret was not qualified to testify as an expert in safehouse interview techniques was not clearly contrary to logic and the facts and circumstances of the case. We therefore conclude that the district court did not abuse its discretion excluding the testimony of Dr. Paret from trial.
{11} We also conclude that the district court did not abuse its discretion in permitting Detective Palos to render the lay opinion that based on her training and experience, it is not unusual for children to fail to make full disclosures. Opinion testimony by a lay witness is "rationally based on the witness's perception" and is "not based on scientific, technical, or other specialized knowledge." Rule 11-701(A), (C) NMRA. To lay a foundation for her opinion, the State elicited testimony from Detective Palos. Detective Palos testified that she had received training as a forensic interviewer for physically and sexually abused children using the CornerHouse safehouse interview method and personally conducted the safehouse interview of JD. Detective Palos testified that she Defendant argues that Detective Palos's statement cannot constitute expert testimony under Rule 11-702. The State argues that the Detective's testimony wasadmitted as lay witness opinion testimony, not expert testimony. It appears from the record that the district court accepted Detective Palos's opinion testimony as a lay witness. Defendant has provided us with no authority to demonstrate that the district court erred when it considered Detective Palos's statement as lay...
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