State v. Orosco
| Citation | 833 P.2d 1155,1991 NMCA 84,113 N.M. 789 |
| Decision Date | 02 July 1991 |
| Docket Number | No. 11816,11816 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Edmundo OROSCO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of attempted criminal sexual penetration of a minor as an accessory and of criminal sexual contact of a minor as an accessory, defendant appeals, raising the following issues: (1) sufficiency of the evidence to convict where defendant contends only prior inconsistent statements identified defendant as a perpetrator; (2) abuse of discretion by district court in admitting the prior inconsistent statements when child victim appeared unable to respond to cross-examination; (3) ineffective assistance of counsel based on failure to call the principal to testify and to demand disclosure of notes a witness used to testify at trial; (4) abuse of discretion by district court in determining victim competent to testify; (5) trial court error in giving improper jury instructions; (6) trial court error in allowing jury to see defendant in handcuffs; and (7) trial court error in denying defendant's motion for new trial. Issues raised in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). Although not raised, we also discuss a question of possible fundamental error: when defendant's conviction of criminal sexual contact of a minor under the age of 13 as an accessory must be set aside and remanded for new trial in light of our supreme court's recent decision in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991) which was decided after the parties filed their briefs. We believe this question involves a significant question of law under the constitution of the United States and also an issue of substantial public interest that should be determined by the supreme court. See NMSA 1978, Sec. 34-5-14(C)(1), (2) (Repl.Pamp.1990). We are concerned that Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) compels a decision by this court with which the supreme court ultimately might not agree. Additionally, as our discussion points out, resolution of a part of the issue may involve a choice between what appears to be conflicting decisions by the supreme court. We first set forth the factual background, then discuss the issues defendant raises. Finally, we address the issue we certify.
In determining whether evidence supports a criminal charge or an essential element thereof, the reviewing court must view the evidence in a light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of conviction. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). While we apply that standard in reviewing the substantiality of the evidence, in order to understand defendant's challenge, it is necessary at the outset to indicate conflicts between the victim's testimony at trial and his recitation of the incident made to others before trial. The victim, age six at the time of the incidents giving rise to the charges, lived with his mother and her boyfriend, defendant Orosco. While caring for victim, defendant and his friend, Manuel Villegas, took the boy to a bar. On numerous occasions since, the victim relayed that he was sexually molested in the bathroom and elsewhere in the bar by Villegas. The victim stated that Villegas made him touch Villegas' penis with his mouth, and that Villegas touched the boy's penis. However, the victim's facts about the incident have been inconsistent regarding the role the defendant played in the molestations.
Before trial, the victim was questioned about the incident, and received counseling. At trial, three witnesses were called to relate what the victim had told them prior to trial.
The victim told Nurse Jennifer Bruce that both defendant and Villegas had laughed at him in the bathroom because of what they had made him do. The child told her he went to the bathroom with Villegas, that Villegas told him to "lick his dick," that the child did that and some sticky stuff came out of his penis. The child said Villegas then gave him a quarter and the child went out and told defendant what happened. The victim had drawn a picture of the incident for her showing defendant standing next to Villegas. The child told Bruce that he was frowning in the picture he drew because he was scared. He said defendant and Villegas were smiling because they were happy.
The victim spent five sessions with Yolanda Morales, a psychologist, learning about the truth and how to tell it. After three sessions, he told Ms. Morales that defendant had held his head in an attempt to force him to have oral sex with Villegas. He said both men may have touched his penis, and that both threatened him. Morales testified that the child stated that the events occurred in the bathroom.
After counseling with Ms. Morales, the victim told Detective Steve Gonzales that defendant pushed him into the bathroom, and both defendant and Villegas pulled down his pants. Victim said the defendant held his head while Villegas attempted to have oral sex with him.
We note that at trial the child testified that he had told the truth to the police, to Morales, and to Bruce. Moreover, the child specifically stated that he had told the truth before when he had said that defendant had helped Villegas and had himself touched the child.
However, at trial, the victim related a different story regarding the defendant's role in the incident. The victim testified that when Villegas attempted to pull down his pants at the bar, defendant tried to pull his pants up. Defendant also told Villegas to stop, and became angry with him. When asked about his prior statements, the victim stated that he had told the truth to Ms. Bruce, but that he did not remember saying that defendant had helped. He then said that he had made a mistake at an earlier interview when he said that defendant had touched him.
Additionally, the defense presented expert testimony from Dr. Luis Natalicio, who had evaluated the boy for competency. He testified that the interview techniques used by Ms. Morales caused him to lose the ability to discern the difference between truth and falsehood. According to this witness, by Ms. Morales questioning the victim repeatedly using closed questions, she signaled to him when the right answer had not been given. As a result, the interview sessions had contaminated the victim's perceptions.
Additional facts will be provided in the discussion that follows.
Defendant claims the district court erred in refusing to grant defendant's motion to dismiss for lack of evidence. While conceding that prior inconsistent statements constitute substantive evidence, see State v. Maestas, 92 N.M. 135, 144, 584 P.2d 182, 191 (Ct.App.1978), defendant argues that the statements alone are insufficient to support a conviction. Defendant does not challenge the admissibility of the victim's prior inconsistent statements as related by the three witnesses; rather, he claims that because the prior inconsistent statements lack corroboration they are insufficient to sustain the convictions.
We answer defendant's challenge to the sufficiency of the evidence by holding, first, there was direct testimony from the victim at trial sufficient to support the convictions and, second, to the extent that prior inconsistent statements may have been relied upon by the jury, they were sufficiently corroborated as required under Maestas. Additionally, we will discuss what appears to be a misconception of the law by both the state and defendant as to what is required in order to convict as an accessory.
At the trial the victim was asked by the prosecutor if he remembered telling other people that defendant helped Villegas and that defendant himself had touched the child. The victim said that he had and that this was the truth. Taken in context, "helping Villegas" refers to touching Villegas' penis with the child's mouth, and defendant touching the child refers to touching the child's penis. While there was other evidence from the victim contradicting this, it was up to the jury to resolve these conflicts. This testimony constitutes direct evidence that supports the jury's verdicts.
There were also prior inconsistent statements made by the victim to others which constituted substantive evidence to support the verdicts. Before examining the sufficiency of that evidence, we first discuss briefly the law relating to prior inconsistent statements.
Maestas implicitly holds that while prior statements may be admitted and given substantive effect, that does not mean that they suffice as the sole basis for a conviction. Id. at 145, 584 P.2d at 192 (citing from 4 J. Weinstein & M. Berger, Weinstein's Evidence p 801-76.1 (1977)). That case suggests that the question of the sufficiency of the evidence remains, as the due process clause of the fourteenth amendment may require a minimal standard of evidentiary support to sustain a conviction. In Maestas, this court determined that corroborative evidence sufficed to provide that evidentiary support and therefore upheld the conviction.
In Maestas, the victim suffered aggravated battery at the hands of someone. The question was who. At trial, the victim was either unable or unwilling to identify the defendant as the assailant. Shortly after the assault, however, she had told her mother and sister that it was defendant who had beaten her. The testimony of the mother and sister was admitted and constituted substantive evidence of the prior statement of the victim. We held that those prior hearsay statements were corroborated by several additional facts,...
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