State v. Otto

• Court: New Mexico Supreme Court
• Writing for the Court: Maes
• Citation: State v. Otto, 157 P.3d 8, 2007 NMSC 12, 141 N.M. 443 (N.M. 2007)
• Decision Date: 23 February 2007
• Docket Number: No. 29,158.,29,158.
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Jesse OTTO, Defendant-Respondent.

157 P.3d 8

2007 NMSC 012

STATE of New Mexico, Plaintiff-Petitioner, v. Jesse OTTO, Defendant-Respondent.

No. 29,158.

Supreme Court of New Mexico.

February 23, 2007.

Rehearing Denied April 11, 2007.

Gary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Petitioner.

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

OPINION

MAES, Justice.

{1} Following a jury trial, Defendant, Jesse Otto, was convicted of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, § 30-9-11(C)(1) (1993, prior to 2003 amendment). He appealed. The Court of Appeals reversed and remanded for a new trial, holding that the trial court improperly permitted evidence of uncharged acts and of statements made by the victim to the victim's mother. The Court also found that the admission of the evidence was more prejudicial than probative. The State appeals to this Court arguing that the Court of Appeals erred when it: (1) held that evidence of uncharged acts by Defendant was not admissible under Rule 11-404(B) NMRA and Rule 11-403 NMRA; (2) held that the trial court abused its discretion in admitting the victim's statements to her mother; and (3) instructed the trial court to follow State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, regarding sentencing. We reverse and remand to the Court of Appeals to address Defendant's argument regarding the enhancement of his sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} On August 30, 2001, Defendant was indicted on one count of criminal sexual penetration on a child under 13 years of age contrary to § 30-9-11(C)(1). The victim, Defendant's step-daughter, testified by video deposition. The victim's deposition was recorded on two video tapes. The first video related to the charged act, which occurred in Alamogordo, New Mexico, between September 1 and October 31, 2000, when the victim was six years old. The second video related to subsequent uncharged acts, which occurred in Colorado.

{3} The day before trial, the court held a hearing to determine the admissibility of certain evidence. Defendant's attorney argued that statements made by the victim to her mother and evidence of the uncharged acts in Colorado should not be admitted. He explained that the defense theory was that Defendant touched but did not penetrate the victim, and stated, "I will be submitting a lesser included offense jury instruction for criminal sexual contact of a minor, and that being so, well, we're not really arguing mistake, what we are arguing [is] what exactly happened. I don't really think that it's necessary for the Colorado stuff to come in and it's highly prejudicial." The State argued that when Defendant was interviewed after his arrest, his statements to the detective raised doubt as to whether Defendant knowingly engaged in the conduct, and that the second video containing victim's testimony regarding the acts in Colorado should be admitted under Rule 11-404(B) NMRA to show intent and lack of mistake or accident.

{4} After reviewing the arrest warrant affidavit, the police report containing Defendant's statements to the police, and the tape-recorded interview of the victim's mother, the court ruled that the statements by the victim to her mother would be allowed to show what the victim's mother did in response to the statements and "so that the jury can have the complete picture as to how this all unfolded . . . ." The court stated that a limiting instruction would be given, upon request. The court then ruled that the evidence of the uncharged acts in Colorado would also be admitted, stating that the "testimony as to 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. . . ." The court also found that the probative value of the evidence was not outweighed by unfair prejudice.

{5} At trial, the jury viewed both video tapes containing the victim's testimony. The other witnesses were the victim's mother, the police officer who conducted the initial investigation, and the detective who interviewed Defendant after his arrest. The victim's mother testified that one evening after they moved to Colorado she saw Defendant in bed with the victim and later questioned the victim. The victim's mother testified that her daughter told her that "he comes in there just about every night mom," and "he sticks his finger inside me and wiggles it around and it hurts mom and I don't like it." The court instructed the jury not to consider the victim's statements to her mother for the truth of the statements, but for the limited purpose of explaining what the mother did in response to the statements. The victim's mother then testified that she confronted Defendant about what the victim had told her. Defendant started crying and said he was sorry.

{6} The detective who interviewed Defendant after his arrest testified that when he confronted Defendant about the allegation that Defendant had penetrated the victim's vagina with one finger and then four fingers, Defendant stated he didn't remember, but that he came "pretty damn close." The prosecutor then asked the detective if Defendant explained how he got into that situation, and the detective replied, "[Defendant] stated that he was ready to finger her but he woke up but he didn't think that he did." The detective also testified that he questioned Defendant about telling the victim not to tell her mother about the incident. Defendant admitted taking the victim into another room and talking about it. The detective testified that "[Defendant] stated that he did take her into the toy room and stated that he figured it wasn't serious enough to make a big deal about it. . . ." Additionally, the detective testified that when he asked Defendant why the victim would lie, referring to the allegations of penetration in the affidavit, Defendant stated that he did not believe that the victim would lie, and that he knew that she had told the truth. The defense called no witnesses. Defendant was convicted of criminal sexual penetration. He appealed.

{7} The Court of Appeals held that the "use of the uncharged Colorado acts as evidence of the charged Alamogordo acts in this context [was] contrary to Rule 11-404(B) NMRA." State v. Otto, 2005-NMCA-047, ¶ 2, 137 N.M. 371, 111 P.3d 229. The Court held that the statements that the victim made to her mother regarding the uncharged acts were similarly inadmissible. Id. According to the Court, the State misinterpreted Defendant's statement to the detective, and that what Defendant meant by this statement was that he did not commit the act of penetration, not that he was mistaken as to what acts he had committed. Id. ¶ 11. The Court stated that the State incorrectly sought the admission of the evidence of the uncharged acts in Colorado to show intent and absence of mistake or accident based upon this misinterpretation, and that whether Defendant did what he did accidentally or by mistake was "[n]ot in issue." Id. ¶¶ 11, 16. Comparing Defendant's case to State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, the Court determined that the use of evidence of the uncharged acts amounted to "no more" than evidence of Defendant "acting in conformity with his propensity." Otto, 2005-NMCA-047, ¶ 16, 137 N.M. 371, 111 P.3d 229. The Court also determined that the admission of the evidence was more prejudicial than probative. Id. Upon remand for a new trial, the Court instructed the trial court to follow Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, in terms of sentencing if Defendant was convicted again. Otto, 2005-NMCA-047, ¶ 3, 137 N.M. 371, 111 P.3d 229.

{8} Judge Pickard dissented, finding that the evidence of the uncharged acts was admissible to show "intent, lack of accident, mistake, and knowledge of what Defendant was doing." Id. ¶¶ 31-32. She stated that the majority violated the "cardinal rule of appellate procedure" that an appellate court "will affirm a trial court's decision reaching a correct result, even though the reason offered to support the result is wrong," and that the majority violated the "basic rule of criminal law" that courts "do not limit the State's presentation of evidence to the narrow question of what a defendant has expressly put in issue." Id. ¶¶ 29-30. The State appealed to this Court, and we granted certiorari.

II. DISCUSSION

A. The trial court did not abuse its discretion in admitting evidence of the uncharged acts under Rule 11-404(B)

{9} We review the trial court's decision to admit evidence under Rule 11-404(B) for abuse of discretion. State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994). "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) (citing State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)).

{10} "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Rule 11-404(B). This list is not exhaustive and "evidence of other wrongs may be admissible on alternative relevant bases so long as it is not admitted to prove conformity with character." State v. Martinez, 1999-NMSC-018, ¶ 27, 127 N.M. 207, 979 P.2d 718; see also State v. Jones, 120 N.M. 185, 188, 899 P.2d 1139, 1142 (Ct. App.1995) ("New Mexico allows use of other bad acts for many reasons, including those not specifically listed in [Rule] 11-404(B)."). Before admitting...