State v. Scott

• Citation: 828 P.2d 958,1991 NMCA 81,113 N.M. 525
• Decision Date: 27 June 1991
• Docket Number: No. 12097,12097
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William SCOTT, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 958

828 P.2d 958

113 N.M. 525

STATE of New Mexico, Plaintiff-Appellee, v. William SCOTT, Defendant-Appellant.

No. 12097.

Court of Appeals of New Mexico.

June 27, 1991.

Certiorari Quashed as Improvidently Granted, Feb. 18, 1992.

[113 NM 527] Tom Udall, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

APODACA, Judge.

Defendant appeals his jury convictions under one count of criminal sexual contact of a minor (CSCM), in violation of NMSA 1978, Section 30-9-13(B) (Repl.Pamp.1984), and one count of criminal sexual penetration with great mental anguish, in violation of NMSA 1978, Section 30-9-11(A)(2) (Repl.Repl.1984). The facts forming the basis for the criminal charges involving the sexual penetration of defendant's granddaughter are discussed within our respective analysis of each issue. Defendant raises five issues on appeal: (1) the trial court erred in admitting evidence of prior sexual misconduct by defendant against the victim; (2) the trial court erred in restricting admission of evidence to show the victim's previous and allegedly false allegations of rape and sexual misconduct; (3) the trial court committed cumulative error with respect to issues one and two; (4) trial counsel's failure to call certain witnesses constituted ineffective assistance of counsel; and (5) Section 30-9-13(B) is unconstitutional for overbreadth. Other issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Aragon, 109 N.M. 632, 788 P.2d 932 (Ct.App.1990). We are not persuaded by defendant's arguments with respect to all issues and thus affirm the convictions.

EVIDENCE OF DEFENDANT'S PRIOR SEXUAL MISCONDUCT AGAINST

VICTIM

Defendant claims that the trial court abused its discretion in admitting evidence of defendant's prior sexual misconduct against the victim. Generally, the determination of the relevance of evidence, and whether its probative value is substantially outweighed by its prejudicial effect, is within the trial court's discretion. See State v. Lopez, 105 N.M. 538, 734 P.2d 778 (Ct.App.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1305, 94 L.Ed.2d 160 (1987); State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969). Absent a clear abuse of discretion, we will not disturb the trial court's ruling.

Defendant specifically argues that evidence of his past sexual misconduct against the victim was too remote for its probative value to outweigh its prejudicial impact. The state counters, however, that defendant did not argue "remoteness" at the pretrial hearing and otherwise failed to preserve it, thus precluding appellate review of this issue. At the pretrial hearing, the prosecutor argued for admission of the contested evidence and stated that "[t]he real question * * * is where to draw the line in terms of what is and what isn't remote * * *." In response, defendant contended that the testimony was too vague because there were no particulars as to time, place, and location, and too prejudicial to have any probative value. We hold that defendant's objections adequately preserved the issue of remoteness, since they were made in response to the prosecutor's argument that the evidence was not too remote. See State v. Shade, 104 N.M. 710, 724, 726 P.2d 864, 878 (Ct.App.1986).

The trial court admitted the history of defendant's past sexual misconduct against the victim through her testimony. The victim testified that the molestation began in Arizona, where defendant began touching her breasts and vagina when she was six or seven years old. At age eight, the victim moved to Germany for three years with her mother and stepfather. There was no contact between the victim and defendant during that time. When the victim was eleven years old, the family moved to Hamilton, Texas, where defendant began to penetrate her for the first time. After a year, the victim and her family moved to Killeen, Texas. Defendant would visit and penetrate the victim whenever possible. Defendant and his wife then moved to Taos, New Mexico. When victim was thirteen years old, she moved to Taos to help care for her grandmother, defendant's wife. In Taos, the victim was penetrated by defendant again. In March of 1988, the victim and her mother moved to Taos to live with defendant and his wife. Defendant continued to penetrate her and touch her breasts. In July of 1988, the victim, her mother, defendant and his wife, moved to Questa, New Mexico, where the criminal sexual penetration incidents alleged in the indictment occurred.

In State v. Minns, we addressed the issue of whether evidence of a defendant's past sexual misconduct against a complaining witness was admissible. The defendant in Minns was convicted of having indecently fondled a girl under the age of sixteen. Evidence was presented that the defendant, more than three years before the incident in question, had committed similar acts of sexual misconduct against the complaining witness. The defendant argued that the testimony was inadmissible because the alleged past acts were so remote in time so as to be deprived of relevancy. This court, however, permitted admission of the evidence of the past similar acts, basing its holding on the general rule that "[s]uch evidence, if not too remote, is admissible as showing a lewd and lascivious disposition of defendant toward the prosecuting witness and as corroborating evidence." Id. at 272, 454 P.2d at 358.

In this appeal, evidence of defendant's past sexual misconduct dated back ten years. Consequently, defendant argues that the facts of this appeal are distinguishable from Minns, in which the past acts dated back only three years. We are not persuaded, however, that a time span of ten years necessarily makes admission of the past acts too remote to be probative. Instead, we find ample case law to support the admission of such evidence. See Whiteman v. State, 343 So.2d 1340 (Fla.Dist.Ct.App.1977) (evidence introduced that defendant had intercourse with complaining witness eight years previous to charged crime); Staggers v. State, 120 Ga.App. 875, 172 S.E.2d 462 (1969) (testimony of victim's sister regarding defendant's past sexual misconduct twelve years previous to incident at issue relevant to show defendant's plan to use his daughters to satisfy his lust); State v. Maestas, 224 N.W.2d 248 (Iowa 1974) (victim's older sister permitted to testify regarding defendant's alleged prior sexual misconduct that took place ten years prior to incident at issue).

Time is but one factor to consider when determining the issue of whether evidence is too remote. For example, in Minns, we considered not only the proximity of the past incidents in relation to the occurrences at issue, but also the number of incidents that had taken place and the nature of such incidents. Thus, the question of remoteness is not dictated solely by the mere lapse of time. The question of remoteness necessarily depends on a number of considerations. See United States v. Smith, 432 F.2d 1109 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 875, 27 L.Ed.2d 810 (1971); State v. Huntington, 248 Iowa 430, 80 N.W.2d 744 (1957). The trial court's admission of the testimony at issue was buttressed by the similarity of the past incidents to that of the charged occurrences. See Whiteman v. State. Remoteness, however, in the context of this case, goes to the weight, not the admissibility, of the evidence. See Austin v. State, 262 Ind. 529, 319 N.E.2d 130, cert. denied, 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680 (1975).

We conclude that the trial court could have properly found that the probative value of evidence of defendant's past sexual misconduct was not substantially outweighed by the danger of unfair prejudice. See SCRA 1986, 11-403. Evidence of defendant's past sexual misconduct, similar in nature to the crime of which defendant was indicted, is illustrative of a lewd and lascivious disposition of defendant toward the victim. See State v. Minns. Based on Minns, we uphold the trial court's admission of this evidence and conclude that the trial court did not abuse its discretion.

Defendant also contends that the pre-Germany evidence of sexual misconduct should not have been admitted for two reasons. Defendant first argues that the evidence of alleged prior sexual misconduct was not sufficiently similar to that which occurred after the victim returned from Germany. We disagree. Although the pre-Germany conduct did not involve penetration, it did involve impermissible sexual contact against a minor. Consequently, the pre-Germany offenses were not of such a different nature so as to eliminate any logical connection with the post-Germany contacts. SeeState v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953) (in the trial of cases involving intercourse between the sexes, it is permissible to show prior acts of a defendant's sexual misconduct against the complaining witness).

Defendant next argues that the pre-Germany conduct was not properly admitted because the three-year stay in Germany constituted a substantial break between the first alleged contact and the later acts. The three-year period, however, was beyond defendant's control and he resumed his pattern of abuse when circumstances again allowed it. We are unconvinced that the three-year break did not comport with the continuing nature of defendant's sexual misconduct against the victim.

Lastly, defendant argues that the trial court's "blanket ruling" admitting all prior sexual contact between defendant and the victim was error because the trial court failed to consider the incidents separately and make independent rulings on each incident. The record reflects, however, that the trial court heard evidence on each alleged incident of past sexual misconduct at the pre-trial hearings. Additionally, defendant never requested...