State v. Pritchett
| Decision Date | 19 August 2021 |
| Docket Number | A-1-CA-38206 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENJAMIN PRITCHETT, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY Donna J. Mowrer District Judge
Hector H. Balderas, Attorney General Marko D. Hananel, Assistant Attorney General Santa Fe, NM for Appellee
Harrison & Hart, LLC Nicholas T. Hart Ramon A. Soto Albuquerque, NM for Appellant
{¶1} Defendant Benjamin Pritchett appeals his conviction for one count of criminal sexual penetration of a minor (child under thirteen years of age) in the first degree (CSPM), contrary to NMSA 1978, Section 30-9-11(A), (D)(1) (2009). Defendant contends that we must reverse because (1) the district court in a ruling that the State concedes was both erroneous and sufficient to preserve the issue, admitted a privileged communication Defendant made to his pastor; (2) plain error occurred when the district court admitted testimony regarding a communication that Defendant argues was subject to the spousal communications privilege; and (3) cumulative error requiring reversal resulted from the combined effect of the admission of the testimony regarding these communications. We affirm, concluding that (1) the admission of the pastor's testimony was harmless error; (2) assuming the admission of the testimony asserted to be subject to the spousal communications privilege is reviewable for plain error and that the privilege applies, no plain error occurred; and (3) the doctrine of cumulative error does not require reversal.
{¶2} In 2016, Victim, a twelve-year-old member of Defendant's extended family, told Defendant's daughter-in-law that Defendant had sexually abused her in 2013. Defendant was arrested and charged with CSPM after Victim's disclosure. Other than a demonstrative exhibit irrelevant to this appeal, the evidence presented at trial consisted entirely of witness testimony. The State presented the testimony of Victim, Defendant's daughter-in-law, Defendant's wife, and Defendant's pastor, and Defendant testified on his own behalf. There was no dispute that Defendant had been in the room where Victim was sleeping on the night in question. The only question for the jury to resolve was what happened while he was there, and Victim and Defendant, the only witnesses to provide firsthand accounts of what occurred, gave conflicting testimony on this issue. If believed, Victim's testimony established that Defendant had committed CSPM. Defendant, in contrast, maintained that all that happened was that Victim had woken him up by rolling over, placing her head on his shoulder, and kissing Defendant on the cheek and mouth, and that he had gotten out of the bed at that point. Thus, the outcome at Defendant's trial hinged entirely on a credibility determination: if the jury had believed Defendant, he would have been acquitted; because it believed Victim, it found Defendant guilty.
{¶3} A subsidiary issue developed at trial about whether Defendant had admitted to criminal conduct in three statements Defendant made about the events of the relevant night after Victim's disclosure. The first was a communication Defendant made to his wife;[1] the second, a statement Defendant made to a group consisting of his wife, son, and daughter-in-law; and the third, a communication Defendant made to his pastor. Regarding the first statement, Defendant's wife testified that she asked Defendant a "general question"-"Did you do this?" or "Did you do this to [Victim]?"-after she learned of Victim's disclosure, but did not ask Defendant anything about what, specifically, had happened. Defendant replied "yes" and apologized.
{¶4} Defendant made the second statement when Defendant's wife, daughter-in-law, and son met with Defendant in his home two days after Victim's disclosure. In recounting this statement, Defendant's wife testified that Defendant, when asked whether "it [was] true that [he had done] this," answered, "Yes, and I'm sorry." Although the specifics of what "this" was were not discussed, Defendant's family had organized the meeting because of Victim's disclosure, and Defendant's wife accordingly believed that Defendant was apologizing "for the actions he had towards [Victim]." Defendant's daughter-in-law provided a more detailed account about the second statement that was along the same lines. She testified that she told Defendant during the meeting that she "already knew everything that had happened between him and [Victim] and . . . just wanted him to tell [her] . . . if he had done something to her." When pressed after initially denying that anything had occurred, Defendant said, "Yes, something happened." And Defendant apologized: "he just kept saying he was sorry." Although Defendant was not asked about the specifics of what he had done, Defendant's daughter-in-law likewise interpreted Defendant's statement to be an admission to Victim's account of events, reiterating that she "told him that [Victim] had told [her] everything and that [she] knew everything that [Defendant] had done." Believing that prosecution would be unlikely, she then told Defendant that his family would not press charges if Defendant went "to a rehab," and Defendant "agreed to go."
{¶5} Defendant made the third statement in a counseling session with his pastor. At the outset of trial, the district court ruled that this statement was admissible under NMSA 1978, Section 32A-4-3 (2005), New Mexico's mandatory child abuse reporting statute. The State consequently called Defendant's pastor as a witness and asked him about what, specifically, Defendant had told him during the relevant conversation. After explaining that Defendant's wife had made him aware of Victim's disclosure, Defendant's pastor testified that Defendant told him that Victim had moved close to him, that they had kissed, and that, in Defendant's "exact words," "he had sex with her." Defendant never indicated that only a kiss occurred. The pastor urged Defendant "to turn himself in to the sheriff and confess what he had done." Defendant's pastor repeated this account of the conversation when called as a rebuttal witness on the following day of trial, when he also testified that, before the meeting, he told Defendant that he "kn[ew] about the meeting [Defendant] had with [his] family and . . . about his confession about what he did to [Victim]."
{¶6} In his testimony, Defendant admitted that all three of these conversations had occurred, but offered different accounts of these conversations and vastly different explanations for the statements he had made within them. According to Defendant, because nobody ever explained the specifics of what he was accused of, he had believed that the purpose of each conversation was to discuss the kiss he claimed Victim had given him. Thus, he admitted apologizing to his wife although he did not know what, exactly, she believed he had done. And Defendant testified that he had apologized to his assembled family members (his wife, son, and daughter-in-law), but never explained that he was referring to a kiss, instead saying only that he was "sorry [he] didn't say anything sooner." Although he acknowledged that the relevant night was more than two years gone and that he knew the meeting was specifically organized because his son and daughter-in-law wanted "to talk" to him, he "did not think it was such a big deal at that time." Finally, Defendant testified that he had never gone into detail about what he was admitting to in his conversation with his pastor. He indicated that he did not understand why the pastor told him to turn himself in and asserted that the pastor was "wrong" in testifying that Defendant had told him that Defendant had sex with Victim.
{¶7} The State made Defendant's three statements a focal point of its case. In closing argument, the prosecutor contended that, although it would be understandable for the jury to have "discomfort with just having [Victim's] testimony," Defendant's statements proved beyond a reasonable doubt that Victim's testimony was true. Relying on the combination of all three statements, the prosecutor argued that it "ma[de] no sense" to conclude that three people "walked away from every one of those] conversations" with "the wrong conclusion that [Victim] had been molested." And, from the outset of trial, the prosecutor placed particular emphasis on Defendant's statement to his pastor, whom the prosecutor characterized in both opening and closing statements as a witness with "no dog in this fight." This emphasis was especially pronounced in closing, where the prosecutor highlighted the pastor's neutrality and role as Defendant's religious advisor, the pastor's testimony that Defendant specifically told him that Defendant had "sex" with Victim, and the undisputed fact that the pastor told Defendant to turn himself in. The jury returned a guilty verdict, and Defendant appealed.
{¶8} Defendant contends that we must reverse his conviction because the district court erred in admitting his statements to his pastor into evidence. The State concedes that the district court erred but argues that the error was harmless. We agree with the State on both points and therefore conclude that no reversible error resulted from the admission of this evidence.
{¶9} "We review the [district]...
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