State v. Sena
| Decision Date | 21 June 2007 |
| Docket Number | No. 24,156.,24,156. |
| Citation | 168 P.3d 1101,2007 NMCA 115 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernest SENA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary K. King, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Ernest Sena appeals from convictions of two counts of criminal sexual contact of a minor committed against his granddaughter (the Child). Defendant was charged with five counts of first-degree criminal sexual penetration of a minor (CSPM) and seven counts of criminal sexual contact of a minor (CSCM). All incidents were alleged to have occurred between June 11, 2000, and July 8, 2000. At the close of the State's case, the trial court granted directed verdicts of acquittal on all but two counts of CSPM. The jury acquitted Defendant on both remaining counts of CSPM but found him guilty on both counts of the lesser-included offense of CSCM.
{2} On appeal, Defendant claims the following errors: (1) the court erred in refusing to grant a directed verdict as to one of the two counts of CSPM due to evidence of their timing; (2) he was denied a fair trial for the following reasons: the trial court's admission of certain evidence and testimony, the trial court's denial of his motion for a mistrial, and the prosecutor's statement regarding the evidence in the case which implicated his Fifth Amendment rights; (3) his acquittal of CSPM required dismissal of the lesser-included charges based on the unitary nature of the conduct; (4) he received ineffective assistance of counsel; (5) the trial court erred in aggravating his sentence; and (6) he was denied his right to a speedy trial and his sentencing hearing was improperly delayed.
{3} We reverse the trial court's ruling and remand for a new trial because only one count of CSPM could survive the directed verdict challenge. We also reverse Defendant's conviction of the remaining count because the trial court's admission of other act evidence was erroneous.
{4} The charges of CSPM and CSCM stem from a series of incidents between Defendant and the Child in which the Child testified that Defendant had touched her on her "private parts."
{5} During the time period in which the incidents occurred, it is important to note that the Child had a severe eczema rash. In February 2000, the rash was on the back of the Child's thighs, extending from her buttocks to her knees. The rash worsened until, by March 2000, it extended to her back and chest. The rash was at its worst in the summer of 2000, and the family doctor recommended treatment using moisturizing lotions and hydrocortisone cream. When the Child spent time at her grandparents' home, the Child's mother would give Defendant and his wife ointment to spread on the rash. This was usually done after the Child had showered but before she put on any clothing, as clothing would further irritate the rash.
{6} At trial, the Child was unable to testify as to the specific dates that the events occurred, but the prosecution narrowed down the time period using distinguishing events from the summer of 2000. The time period to which the prosecution related the incidents was between June 11, 2000—the Child's trip to Colorado, and July 8, 2000—the Child's birthday party.
{7} The Child did not immediately disclose the incidents to anyone, and later testified that Defendant had told her not to tell anyone because he would go to jail. The Child initially reported the incidents of inappropriate touching to her cousin. In December 2000, the Child reported the incidents to her mother, alleging that Defendant had inappropriately touched her. As a result, Defendant was charged with CSPM and CSCM.
{8} We review the denial of a directed verdict of acquittal to determine whether substantial evidence supported the charge. State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.App.1993). When reviewing a substantial evidence claim, "[t]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Perea, 2001-NMSC-026, ¶ 5, 130 N.M. 732, 31 P.3d 1006 (internal quotation marks and citations omitted). If there is sufficient evidence to support the verdict, the reviewing court will not weigh the evidence or substitute its judgment for that of the fact-finder. State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.
{9} The charges of CSPM were based on events occurring between June 11, 2000, and July 8, 2000. The State conceded that the only counts that could survive the directed verdict were those that occurred between those dates. The Child testified that, between June 11 and July 8, 2000, she could only remember one incident of inappropriate touching:
[Prosecutor]: [Child], you said he touched your privates?
[Child]: Yes.
[Prosecutor]: When was this?
[Child]: I am not sure.
[Prosecutor]: Do you remember was it before or after you turned 8?
[Child]: I think it was before.
[Prosecutor]: And was it before, did you go to Colorado with your parents?
[Child]: Yes.
[Prosecutor]: Was it before or after Colorado?
[Child]: I think it was before.
[Prosecutor]: Did it ever happen after Colorado?
[Child]: Yes.
[Prosecutor]: How many times did it happen?
[Child]: I think it was about five I am not sure.
[Prosecutor]: So did some of it happen before Colorado?
[Child]: Most happened before Colorado and once after.
[Prosecutor]: Did you say some of it before Colorado and one time after Colorado?
[Child]: I said most of it happened before and once after, I think, I am pretty sure once after Colorado.
[Prosecutor]: Once after Colorado and before your birthday?
[Child]: Yes.
(Emphasis added.)
{10} Since the time period at issue is defined as between the Colorado trip and the Child's birthday party, the Child clearly testified that only one incident occurred. Despite the semantic problem of the prosecutor summarizing the Child's testimony as "once after Colorado and one before" the birthday, the evidence reveals only one incident occurring in the framed time period. The evidence thus falls short of the necessary two events to secure two convictions of CSCM beyond a reasonable doubt. We hold that only one count of CSCM was proved and reverse on the other count.
{11} Defendant contends that the trial court erred in allowing the State to present extensive evidence that Defendant "groomed" the Child as a sexual partner. An appellate court will defer to the discretion of the trial court when reviewing the admission or exclusion of evidence and will not reverse absent a clear abuse of discretion. State v. Mercer, 2005-NMCA-023, ¶ 6, 137 N.M. 36, 106 P.3d 1283. An abuse of discretion occurs when the trial court's decision can be characterized as clearly untenable or not justified by reason. State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234(1995). "While trial courts have discretion to strike a balance between probative value and prejudice, they must always be sensitive to the potential prejudice inherent in evidence of the defendant's prior uncharged conduct." State v. Aguayo, 114 N.M. 124, 128, 835 P.2d 840, 844 (Ct.App.1992).
{12} In the prosecution's opening statement and throughout the trial, the prosecution maintained that Defendant had engaged in behavior intended to "groom" the Child to be a victim of sexual assault. This "grooming" behavior was based on certain acts attributed to Defendant, the importance of which Defendant vigorously challenged. The State claimed that this evidence was to be used as evidence of plan, preparation, or intent, asserting that Defendant was "grooming" the Child for future sexual abuse.
{13} Before trial, Defendant filed two motions in limine to keep the "grooming" evidence from being admitted at trial. Defendant sought to exclude the following: a nude photograph of Defendant's ex-wife, testimony that Defendant previously owned pornographic videos, a pair of thong underwear owned by Defendant's ex-wife, testimony that Defendant had showered with the Child, and testimony that Defendant had walked around the house naked in front of the Child. The trial court allowed the Child to testify that Defendant had once showed her a movie in which two unclothed people had sex and a pair of her grandmother's thong underwear. The Child was also allowed to testify that she and her younger brother had once showered with Defendant and Defendant once walked around naked in front of her. These incidents occurred within no stated time period, and not within the charged time frame. There were no allegations by the Child that any inappropriate touching occurred at any times associated with the other acts or occurrences. No pornographic videotapes were produced as a result of a search of Defendant's home.
{14} The trial court relied on Rule 11-404(B) NMRA in allowing the other act evidence in at Defendant's trial. Rule 11-404(B) allows the admission of evidence of other crimes, wrongs, or acts, not to prove that the person had a character trait in conformity with which he acted, but to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Beachum, 96 N.M. 566, 567-68, 632 P.2d 1204, 1205-06 (Ct.App. 1981). This list is not exhaustive, but merely illustrative, as "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. "The initial threshold for admissibility...
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State v. Sena
...Court of Appeals disagreed with the trial court's ruling on the directed verdict motion. State v. Sena, 2007-NMCA-115, ¶¶ 8-10, 142 N.M. 677, 168 P.3d 1101. It held that the evidence supported only one CSCM conviction because Child's testimony could not reasonably be interpreted as establis......