State v. Salazar

• Decision Date: 15 February 2006
• Docket Number: No. 24,468.,24,468.
• Citation: 2006 NMCA 066,136 P.3d 1013
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Bailon Melvin SALAZAR, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

136 P.3d 1013

2006 NMCA 066

STATE of New Mexico, Plaintiff-Appellee, v. Bailon Melvin SALAZAR, Defendant-Appellant.

No. 24,468.

Court of Appeals of New Mexico.

February 15, 2006.

Certiorari Granted, No. 29,745, June 2, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ALARID, Judge.

{1} Defendant appeals his convictions and sentence on two counts of criminal sexual penetration of a minor (CSPM). Defendant makes six allegations of error: (1) improper expert testimony regarding the allegations of molestation; (2) improper denial of access to an expert for Defendant; (3) improper vouching by the prosecutor; (4) improper denial of a continuance; (5) improper instruction of the jury; and (6) improper refusal by the trial court to determine that the Earned Meritorious Deduction Act, NMSA 1978, § 33-2-34 (1999), does not apply to Defendant's convictions. We conclude that no error occurred here and affirm the judgment and sentence, concluding that the earlier version of Section 33-2-34 applies to Defendant. We remand for entry of an amended judgment and sentence, clarifying that neither of Defendant's offenses may be used to deny him the opportunity to earn thirty days per month of good time credit.

BACKGROUND

{2} In 2002, Defendant was charged with ten counts of CSPM of his step-son (the victim). The original information charged the crimes over a period of time from September 11, 1996, to March 11, 2001. The charges were later amended to limit the time period from July 1996 through December 1999. Trial dates were continued several times at the request of both Defendant and the State. After about a year and shortly before trial was scheduled to begin, Defendant retained different counsel. New counsel requested and obtained a continuance of the trial setting. Thereafter, counsel filed a flurry of motions, including one to have Defendant transported to Albuquerque to meet with a psychologist for the purpose of conducting an assessment of Defendant. The trial court denied the motion to transport. Defense counsel renewed the motion in open court. The trial court again denied the motion stating that Defendant would not be transported to Albuquerque at State expense in order to prepare his defense.

{3} A week later, defense counsel again raised the issue in his motion to dismiss or in the alternative, for continuance of the trial setting. This motion was addressed prior to the start of the trial. Further continuance of the trial was denied.

{4} At the trial, the victim testified about the molestation. He stated that it happened nine times, eight times in a truck and one time at home. The victim was able to identify the time of only two of the penetrations, the first time, which was shortly after his seventh birthday, and the last time, which occurred at home when he was eleven. The victim identified the locations of other penetrations, but could not state exactly when they occurred. A pediatrician testified to her physical examination of the victim several years after the last penetration occurred. She testified that the exam was normal, but explained that a normal exam was usual in such cases. The victim's grandmother testified about how he had told her of the molestation, and how she had then called the counselor at the boy's school. The counselor testified about how he was made aware of the allegations and how he then reported them to Child Protective Services.

{5} The defense presented evidence trying to establish that the victim was untruthful and that his grandmother had made him make the allegations. Defendant testified on his own behalf. He testified that he did take the victim in his truck, but not to the areas where the boy stated the penetration occurred. Defendant categorically denied ever sexually molesting the victim or any other child.

{6} At the conclusion of the State's case, the trial court directed a verdict of acquittal as to one count of sexual penetration as the victim clearly testified that the molestation occurred nine times. The jury was instructed on nine counts of CSPM. Each of the instructions was identical. There was no distinguishing of the counts by time or place. The jury found Defendant guilty of Counts 1 and 9 and not guilty of the other counts. Defendant moved for a new trial, arguing that a number of errors occurred during the trial and that the jury was improperly instructed. The motion for a new trial was denied.

{7} At the sentencing hearing, the State read a letter from the victim asking for the full sentence to be imposed. Defendant requested mitigation of the sentence. The trial court refused to mitigate, sentencing Defendant to two consecutive eighteen-year terms. Sua sponte, the trial court conducted a second sentencing hearing at which it decided that the two sentences would run concurrently. At that hearing, Defendant raised the issue of which version of the Earned Meritorious Deduction Act would apply to him. The trial court requested briefing on the issue, which Defendant provided. However, the trial court never ruled on the matter.

DISCUSSION

STATE'S EXPERT WITNESS

{8} Defendant contends that the trial court erred in allowing the State's expert, the pediatrician who had physically examined the victim, to present conclusory evidence that the victim was sexually molested. Defendant contends that the expert's testimony was in violation of State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In Alberico, the Supreme Court ruled that an expert may give testimony regarding symptoms that the victim suffers that are consistent with sexual abuse. Such testimony may not be offered to establish that the victim is telling the truth. Id. at 175, 861 P.2d at 211. Nor can the expert testify that the symptoms were in fact caused by sexual abuse. Id. at 176, 861 P.2d at 212. Such testimony vouches too much for the credibility of the victim and encroaches on the province of the jury to determine credibility. Id.

{9} Initially, we note that the objections raised during the expert's testimony do not relate to the issues briefed by Defendant. We do not address issues that were not raised below. The trial court must be alerted to the problem and given an opportunity to resolve it. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. Additionally, parties cannot change their arguments on appeal. State v. Henderson, 116 N.M. 541, 545, 865 P.2d 1185, 1189 (Ct.App.1993), aff'd, 116 N.M. 537, 865 P.2d 1181 (1993), overruled on other grounds, State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995). We note that many of the issues argued on appeal are not the issues that were presented to the trial court.

{10} Defendant states that he made timely and repeated objections to the expert testifying to anything but the fact that the physical exam showed nothing. His citation to the record points to pretrial arguments regarding what the expert might testify to. Before trial commenced, the trial court stated that the expert would be allowed to testify to her physical examination of the victim. Later in the hearing, there was discussion regarding the psychology of the delay in reporting abuse. Finally, the trial court reiterated that the expert could testify about her physical exam, but could not state that the victim exhibited traits of someone who had been sexually abused.

{11} During the expert's testimony, Defendant made three objections and was involved in one bench conference. The first objection was during the expert's testimony relaying what the victim had told her about what Defendant did to him. At that time, counsel moved for a mistrial, arguing that under State v. Fairweather, 116 N.M. 456, 863 P.2d 1077 (1993), and Alberico, 116 N.M. at 175, 861 P.2d at 211, the expert was not allowed to testify and identify who the perpetrator was. The trial court denied the motion for mistrial. A bench conference was held after the expert explained why she needed information about the particulars of the allegations. There was no audible ruling limiting the testimony of the expert. The second objection was made when the expert was asked to explain the reason why nearly 95% of the exams that she does for sexual abuse show normal. Defendant's objection was for relevance and the trial court overruled the objection. The third objection was made when the expert testified about other people's knowledge regarding the healing of rectal tissue. The expert was asked to testify about her own knowledge.

{12} The record does not support Defendant's claim that he made timely and repeated objections to the expert's testimony pursuant to Alberico. Only one objection was made that relates to the issues raised in the brief. That was an objection to the expert's identification of Defendant as the perpetrator. However, as is clear from the record, the expert was not identifying Defendant as the perpetrator. Rather, she was relaying how the victim came to her for examination and the information that he relayed to her before the examination. Such information is not the identification of the perpetrator that is prohibited by Alberico. What Alberico prohibits is the expert testifying to the identity of the alleged perpetrator of the crime as a result of an examination of the victim. 116 N.M. at 175, 861 P.2d at 211. Alberico does not prohibit an expert from testifying as to what she was told at the time of her physical examination, so long as she does not improperly comment on the victim's credibility or testify as to her belief that the defendant was the perpetrator. See id. at 175-76, 861 P.2d at 211-12; see also State v. Lucero, 116 N.M. 450, 455, 863 P.2d 1071, 1076 (1993) (reversing where "[i]n so many words, [the expert] testified that the complainant had in fact been molested. She...