State v. Otto

• Decision Date: 18 March 2005
• Docket Number: Docket No. 23,280.
• Citation: 111 P.3d 229,2005 NMCA 047
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESSE OTTO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

2005 NMCA 047

111 P.3d 229

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESSE OTTO, Defendant-Appellant.

Docket No. 23,280.

Court of Appeals of New Mexico.

Filing Date: March 18, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, NM.

M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

{1} Defendant appeals his conviction for Criminal Sexual Penetration of a Minor (CSPM) committed against his stepdaughter (the child). He challenges the admissibility and effect of evidence contained in the second of two videotapes. In this second videotape, the child testified about similar conduct Defendant had perpetrated against her. These similar acts by Defendant had occurred after the conduct that was charged in this case and took place in Colorado (the Colorado acts). Defendant was not charged or on trial for the Colorado acts, only for acts that took place earlier when the family lived in Alamogordo, New Mexico (the Alamogordo or charged acts). Defendant also asserts that the trial court erroneously allowed Kimberly Otto, his former wife and the mother of the child (Mother), to testify concerning statements the child had made to her that Defendant had penetrated the child with his fingers in Colorado. Finally, Defendant appeals the trial court's aggravation of his sentence by six years as an abuse of discretion.

{2} We hold that the use of the uncharged Colorado acts as evidence of the charged Alamogordo acts in this context is contrary to Rule 11-404(B) NMRA. Similarly, Mother may not testify as to what the child told her about the inadmissible Colorado acts. In this case, this evidence crossed the line from proper use of evidence of other bad acts to impermissible evidence of Defendant's propensity to commit the crime with which he was charged. Additionally, we hold the admission of this evidence is more prejudicial than useful for a proper purpose; we accordingly reverse Defendant's conviction and remand for a new trial.

{3} As we are remanding for a new trial, at which Defendant may or may not be convicted, we need not address the sentencing issue. We note, however, that we recently held that sentences may not be increased on the basis of aggravating circumstances unless those circumstances are found by the jury beyond a reasonable doubt. See State v. Frawley, 2005-NMCA-017, ___ N.M. ___, 106 P.3d 580, cert. granted State v. Frawley, 2005-NMCERT-002, ___ N.M. ___, ___ P.3d ___ [No. 29,011 (Feb. 8, 2005)].

FACTS

{4} The child testified by video deposition that Defendant penetrated her with his fingers while she was sleeping in bed between Defendant and Mother. This occurred in Alamogordo, in September or October of 2000. Mother also testified that while living in Alamogordo, Defendant had told her that he did not want the child sleeping in bed with him because he had awakened fondling the child. Mother testified that she took his statement to mean the child's vaginal area. At that time, Mother did not report the incident because Defendant promised that it would not happen again.

{5} Shortly after this incident, Defendant and Mother moved to Colorado. The child soon came to live with them. Mother testified that after they had moved to Colorado, she had seen Defendant and the child in bed together. When Mother asked the child about what had happened, the child said to her that "[Defendant] comes in there just about every night" and that Defendant digitally penetrated her on these occasions. Mother then confronted Defendant about this accusation and in the course of a conversation that lasted about an hour and a half, Defendant cried and said he was sorry. Mother would later report the incidents to police.

{6} Defendant was charged with CSPM for the Alamogordo acts. Following his arrest, Defendant gave a statement to Detective Sanchez of the Otero County Sheriff's Department. Detective Sanchez would later testify at trial that Defendant admitted having had contact with the child's vaginal area that was "pretty damn close" to penetration, but did not remember any digital penetration taking place. According to Detective Sanchez, Defendant stated that, at the time the incident happened, he was "ready to finger [the child] but he woke up but he didn't think that he did." Detective Sanchez also said that when Defendant was questioned about the fact that the child claimed to have been penetrated and asked if she would lie, Defendant said that he did not believe the child would lie. Defendant said he knew the child had told the truth.

{7} Prior to trial, Defendant argued that although Mother could testify about the discussion she had had with Defendant regarding the sexual abuse in Colorado, she could not testify about the child's statements that had precipitated this conversation. Defendant asserted that such statements were hearsay and inadmissible. Defendant conceded that Mother's conversation with him and his admissions in those conversations were all admissible. The trial court ruled that, subject to a limiting instruction informing the jury that the child's statements were not offered for their truth but to allow the jury "the complete picture as to how this all unfolded," Mother could testify to the child's statements to her about the Colorado acts.

{8} The child gave a two-part videotaped deposition in January 2002. The first tape concerned events that transpired in Alamogordo between September and October 2000; in the second tape the child testified to the similar Colorado acts occurring after Christmas of that year. Defendant sought to exclude the second videotape. The State sought to have the child's statements about the Colorado acts admitted as evidence under Rule 11-404(B) to show a lack of mistake or accident on Defendant's part and as evidence of his intent. The parties argued over the effect of Defendant's statement that he had come "pretty damn close" to penetrating the child, the State urging that this statement left "some room for interpretation" regarding the issue of whether Defendant knowingly engaged in the Alamogordo acts. The State further argued that this statement showed that Defendant had "sought out the child" to repeat his conduct, which abuse then continued on an almost daily basis. Defendant countered that his defense was not rooted in any mistake but in different facts, namely that what had occurred was no more than contact, and not penetration. The trial court allowed the admission of the child's testimony concerning Defendant's actions in Colorado, ruling that "what went on in Colorado is part of this whole picture, that cannot be presented properly without all the pieces of the puzzle and all pieces of the picture," and that its probative value would not be outweighed by its prejudicial effect.

{9} Trial commenced, Defendant's motion in limine was denied, and the evidence of the Colorado acts was presented. The State presented both halves of the child's deposition before calling Mother as a witness. The only other State witnesses were a state patrol officer, who conducted an initial interview with the child, and Detective Sanchez. The State rested its case, and the defense called no witnesses. Defendant was convicted of first degree CSPM.

STANDARDS OF REVIEW

{10} We review the admission or exclusion of evidence under Rule 11-404(B) for abuse of the trial court's discretion. State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994). We defer to the court's admission of Rule 11-404(B) evidence. See State v. McGhee, 103 N.M. 100, 104, 703 P.2d 877, 881 (1985) (stating that "[t]he admission of evidence is within the trial court's discretion and will not be disturbed absent a clear abuse of discretion").

DISCUSSION

Admission of the Colorado Acts Was a Wrongful Introduction of Propensity Evidence Unjustified by the Application of Rule 11-404(B)

{11} Defendant was charged with criminal conduct occurring in Alamogordo. The child's deposition concerning that conduct was explicit; his fingers had penetrated her, and it had hurt. Prior to trial, the State made it clear why it wanted to include evidence of his similar conduct in Colorado. Interpreting Defendant's statement that he had not committed an act involving penetration as one in which he was mistaken as to what he had done, the State sought the admission of the child's testimony concerning the later Colorado acts of penetration. The State maintained that the evidence of the Colorado acts showed Defendant's "intent and it shows knowledge that [Defendant] knew what he was doing, and it shows that it's not an accident because in this particular case in Alamogordo, the child had gotten in bed with the parents whereas in Colorado, [Defendant] sought out the child." In its opening statement to the jury, the State was more explicit: "[W]hat happened in September or October of 2000 was not a mistake, it wasn't an accident, but in fact, it was a purposeful, intentional act on the part of [Defendant] because he continued to do the same thing to her when they moved to Colorado." (Emphasis added.)

{12} This view of the evidence was not borne out by the testimony, nor was it the way the case was argued in closing arguments. By the end of trial, the question came down to one of fact. The State said Defendant's finger(s) penetrated the child's vagina while she was between him and his former wife in Alamogordo; the defense said there was no penetration. We now look at the admission of the testimony about the Colorado acts to see if it was properly admitted, as the trial court believed, as "part of this whole picture, that cannot be presented properly without all the pieces of the puzzle."

Rule 11-404(B) is a Rule of Exclusion

{13} Rule 11-404(B) is fundamentally a rule of exclusion. Williams, 117 N.M. at 557, 874 P.2d at 18 (stating that "[t]he purpose of Rule 404(B) is to...