State v. Ruiz, 21,316.

• Decision Date: 27 September 2001
• Docket Number: No. 21,316.,21,316.
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Justo (Torres) RUIZ, Defendant-Appellant.

34 P.3d 630

131 N.M. 241

2001 NMCA 97

STATE of New Mexico, Plaintiff-Appellee, v. Justo (Torres) RUIZ, Defendant-Appellant.

No. 21,316.

Court of Appeals of New Mexico.

September 27, 2001.

Certiorari denied November 8, 2001.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari denied, No. 27,191, November 8, 2001.

OPINION

BOSSON, Chief Judge.

{1} In a single trial, a jury convicted Defendant, Justo Ruiz, of criminal offenses committed separately against three minor girls. One girl testified to criminal sexual penetration and criminal sexual contact, another to indecent exposure, and a third to battery. On appeal, Defendant claims the trial court committed reversible error in four ways: (1) by not severing the counts against him so that the charges pertaining to one child, S.G., would be tried separately; (2) by allowing one girl to testify by videotape, thereby circumventing his constitutional right to confront witnesses; (3) by not allowing Defendant to rebut the prosecutor's innuendo that he had not taken a penile plethysmograph test when, in fact, he had; and (4) by not allowing the jury to visit his home to experience how compact the living conditions were and whether the events could have occurred as alleged. Applying established New Mexico law, we hold it was reversible error not to sever the charges, and therefore, we reverse Defendant's convictions and remand. Because the testimony of the girls, if believed by a jury, would support separate convictions, the State is entitled to retry Defendant on all charges in separate trials. We discuss the remaining issues that are likely to reoccur on retrial.

BACKGROUND

{2} Defendant and his wife, Cindy Ruiz, had three children. During the night of July 8, 1998, their oldest daughter, L.R., who was then twelve-years-old, awoke to find her father pushing her underwear aside and staring at her vagina with a flashlight. When she told her mother about the incident, the next day Cindy took the children and moved out. Cindy reported the incident to the New Mexico Children, Youth and Families Department which, in turn, reported the allegation to the police. The officer in charge of the police investigation arranged a safe-house interview with L.R. During that interview L.R. recalled the incident, and also reported that a year before she had seen Defendant doing a similar thing to her friend S.G.L.R. also recounted what she had been told by still another girl, L.J., that Defendant had exposed himself to L.J. approximately a year before.

{3} After being alerted to the possibility that Defendant may have accosted other girls, a police officer called the parents of the other girls to arrange for safe-house interviews. When the police officer spoke to the parents about the safe-house interviews, he admonished them "not to attempt in any way to assist the child in recalling memories," so as to avoid contaminating each child's testimony.

{4} A few days later S.G., also age 12, went to her safe-house interview. Contrary to the police officer's admonition, S.G.'s mother on several occasions had assisted her daughter "in recalling memories," raising the possibility of undue influence on S.G.'s testimony. At the interview, S.G. described a series of encounters with Defendant which began with Defendant pulling down her pants and fondling her, and ultimately engaging in sexual intercourse.

{5} L.J. also participated in a safe-house interview. L.J. disclosed to her interviewers that on two separate occasions she had glanced through a doorway in the Ruiz home and saw Defendant standing on the other side of the threshold, holding his penis in both hands and smiling. L.J. was six or seven years old at the time these acts occurred.

{6} Defendant denied all allegations. He contended that the charges were based on either outright fabrications or misperceptions of benign behavior on his part. Defendant claimed that he was looking for the family cat on his daughter's bed with a flashlight, not staring at her vagina, and that being awakened from a deep sleep had distorted his daughter's perception of events. With regard to L.J., Defendant testified that she may have seen him putting on his coveralls in the garage, but that he had never exposed himself in the manner alleged. As for S.G., Defendant maintained that her story was a total fabrication and the result of her mother's suggestive influence.

{7} A grand jury indicted Defendant on ten counts arising from the three girls' allegations. After a jury trial on all ten charges, Defendant was convicted of eight of the ten counts against him; three counts of criminal sexual penetration of a minor, two counts of criminal sexual contact of a minor, two counts of indecent exposure, and one count of battery. Defendant was sentenced to 61 ½ years in prison.

DISCUSSION

Defendant's Motion to Sever

Preservation

{8} Before trial, Defendant twice moved to sever the charges pertaining to S.G. from the rest of the case. Both motions were denied. Although Defendant renews his severance argument before this Court, the State counters that the argument was not preserved for appellate review because Defendant failed to reassert his severance motion during the trial. The State relies on State v. Jones, 120 N.M. 185, 190, 899 P.2d 1139, 1144 (Ct.App.1995), for this proposition, but that reliance is misplaced.

{9} At times, as the State points out, we have faulted defendants for not renewing severance motions after the trial began. For example, we observed in Jones that a severance motion during trial was appropriate because, in that case, it was unclear before trial which defenses the accused would raise. See id. Therefore, before trial began, the court could only speculate about whether the prosecution would actually need the challenged evidence to rebut those defenses. See id. But neither Jones, nor any other opinion of this Court, has ever made renewal of a motion for severance either during or after trial a prerequisite to preserving an issue for appellate review. See State v. Peters, 1997-NMCA-084, ¶ 6, 123 N.M. 667, 944 P.2d 896 (addressing a severance issue preserved only by pretrial motion); State v. McGill, 89 N.M. 631, 632, 556 P.2d 39, 40 (Ct.App.1976) (same). Jones merely acknowledges that when a trial court is not alerted before trial to the defense's theory so that it can rule intelligently on a motion to sever, the court should have another opportunity to consider the motion after the facts become more clear. Id., 120 N.M. at 190, 899 P.2d at 1144.

{10} Here, the State uses Jones to argue that Defendant had to renew his severance motion during trial so that the court could rule with "knowledge of the defenses asserted." However, when Defendant renewed his motion on the first morning of trial, all parties, including the court, were aware that the defense was a simple denial of the charges. Defendant took the position that the girls had either fabricated the allegations or misapprehended otherwise innocent behavior on his part. There was no need to provide the trial court with more information during trial; the court had all the information it needed before trial to assess the State's position in light of the defenses asserted. The State's preservation argument is without merit.

Rule 11-404(B) NMRA 2001

{11} We now address the merits of Defendant's severance argument. Separate charges against a defendant are ordinarily joined when the offenses "are of the same or similar character, even if not part of a single scheme or plan." Rule 5-203(A)(1) NMRA 2001. However, even when Rule 5-203(A) is satisfied, charges should be joined only if joinder does not unfairly prejudice either party. See Rule 5-203(C). A defendant is unfairly prejudiced when joinder allows the jury to consider evidence that would not otherwise be admissible under Rule 11-404(B) NMRA 2001, if the trials were severed. State v. Gallegos, 109 N.M. 55, 64, 781 P.2d 783, 792 (Ct.App.1989) ("[I]t is `fundamental, however, that courts must not permit a defendant to be embarrassed in his defense by a multiplicity of charges to be tried before one jury.'" (Quoting State v. Paschall, 74 N.M. 750, 752-53, 398 P.2d 439, 440 (1965).)). As this Court recently stated, "[t]he granting of a severance is discretionary, and one test for abuse of discretion is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial." Jones, 120 N.M. at 186,899 P.2d at 1140.

{12} Defendant claims to have suffered this very prejudice when the charges relating to all three girls were joined in one trial. He argues that joinder permitted the jury to consider evidence that would not have been cross-admissible under Rule 11-404(B), if the charges pertaining to each girl had been tried separately. We begin our analysis with Rule 11-404(B):

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.

{13} Rule 11-404(B) is a specialized rule of relevancy that, like its federal counterpart, limits the admissibility of evidence that, although relevant, is unfairly prejudicial to the accused. State v. Phillips, 2000-NMCA-028, ¶ 21, 128 N.M. 777, 999 P.2d 421; see also Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (stating that although evidence of other bad acts is "`relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment— creates a prejudicial effect'" (quoting United States v. Moccia,...