State v. Sena

• Decision Date: 26 August 2008
• Docket Number: No. 30,540.,30,540.
• Citation: 2008 NMSC 053,192 P.3d 1198
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Ernest SENA, Defendant-Respondent.
• Court: New Mexico Supreme Court

192 P.3d 1198

2008 NMSC 053

STATE of New Mexico, Plaintiff-Petitioner, v. Ernest SENA, Defendant-Respondent.

No. 30,540.

Supreme Court of New Mexico.

August 26, 2008.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Hugh W. Dangler, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Defendant Ernest Sena was convicted of two counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13(A)(1) (1991, prior to amendments through 2003). He appealed his convictions, citing numerous grounds for error. The Court of Appeals vacated his convictions and remanded for a new trial on the grounds that (1) there was insufficient evidence to support one of his convictions and (2) the trial court had improperly admitted other-acts evidence. The State petitioned this Court to review both issues. We reverse the Court of Appeals and remand to that court to consider the issues that it did not previously reach.

I. BACKGROUND

{2} Defendant was indicted on five counts of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section 30-9-11(C)(1) (1995, prior to amendments through 2007), and seven counts of CSCM. The victim (Child) is Defendant's grand-daughter. During the summer of 2000, which is the time of the incidents in question, Child would occasionally spend time at her grandparents' house under the supervision of her grandmother and Defendant. One of the couple's responsibilities while taking care of Child was to treat an eczematous rash that covered her body from the back of her waist to the back of her knees; importantly, the rash never appeared on Child's vagina. Part of the treatment regimen required the application of medicinal ointment to Child's rash — a procedure done by both grandmother and Defendant. Child later alleged that Defendant had inappropriately touched her "private area" during at least one of those treatments.

{3} As part of its case against Defendant, the State sought to introduce evidence that he walked around naked in front of Child; that he showed her a pornographic video; that he showed her his wife's thong underwear; and that he showered naked with her (hereinafter collectively referred to as "the grooming evidence"). Before trial, Defendant filed a motion in limine, seeking to exclude the grooming evidence. At a hearing on the motion, the State argued that the grooming evidence showed Defendant's attempt to gain Child's trust and to make her comfortable with things of a sexual nature so that she would become comfortable with his sexual behavior. The State also claimed that the evidence was admissible because it showed Defendant's intent. Defendant argued that the evidence should not be admitted because he was not claiming lack of sexual intent, but instead was denying that any illegal touching had ever occurred. The trial court admitted the grooming evidence pursuant to Rule 11-404(B) NMRA (providing that evidence of other crimes, wrongs, or acts, while inadmissible to show action in conformity with character, may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).

{4} At trial, Child had difficulty identifying the exact dates on which Defendant had purportedly committed his illegal acts. To help Child locate the events in time, the State utilized two benchmarks that Child could more easily remember and could rely on when testifying about the details of Defendant's alleged offenses. Thus, all of the crimes with which Defendant was charged were alleged to have occurred between a family trip to Colorado, beginning June 11, 2000, and Child's eighth birthday, on July 8, 2000.

{5} When Child testified at trial, she was inconsistent as to the number of times that Defendant had allegedly touched her during the charging period. When the prosecutor asked Child how many times Defendant had touched her subsequent to the family trip to Colorado, Child responded, "I think it was about five[;] I am not sure." Immediately thereafter, the prosecutor asked, "So did some of it happen before Colorado?" Child said, "Most happened before Colorado and once after." The prosecutor followed up, "Once after Colorado and before your birthday?" Child answered, "Yes." She then proceeded to describe two incidents during which Defendant allegedly touched her inappropriately. First, she explained that once while she was attempting to put lotion on her rash, Defendant intervened to help apply the lotion and then touched her "privates." Second, she testified that Defendant touched her "privates" another time while she was falling asleep.

{6} At the close of the State's case, Defendant moved for a directed verdict. He argued that the evidence was insufficient to support more than one instance of illegal touching and construed Child's testimony as establishing that Defendant touched her only once during the charging period. The trial court denied the motion, ruling that Child's testimony supported two counts of CSPM or, in the alternative, two counts of CSCM. So instructed, the jury found Defendant guilty of both counts of CSCM.

{7} A majority of the 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 establishing that Defendant had touched her more than once during the charging period. See id. ¶ 10. The dissent, however, argued that a reasonable jury could have resolved the inconsistencies in Child's testimony to support the trial court's ruling, and thus concluded the trial court had reached the proper result. Id. ¶ 35 (Fry, J., dissenting).

{8} The majority also held that the trial court erred in admitting the grooming evidence. Id. ¶ 23. Stating that the grooming evidence was improper character evidence purposed on "show[ing] the jury that Defendant acted like a pervert on occasion" in an attempt to "imply that Defendant was acting in conformity with that trait," the majority concluded that the grooming evidence was inadmissible under Rule 11-404(B). Id. Again, the dissent disagreed. It countered that our precedent supported admission of the grooming evidence and that the trial court's ruling should have been upheld. Id. at ¶¶ 36-38 (Fry, J., dissenting).

{9} On the State's petition, we review each issue in turn, beginning with the directed verdict motion.

II. THE TRIAL COURT PROPERLY DENIED DEFENDANT'S MOTION FOR A DIRECTED VERDICT

{10} Our review of the denial of a directed verdict motion asks whether sufficient evidence was adduced to support the underlying charge. See State v. Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980). "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). When considering the sufficiency of the evidence, this Court "does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence." State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted). Instead, "[w]e view the evidence as a whole and indulge all reasonable inferences in favor of the jury's verdict," id., while at the same time asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," id. ¶ 7 (alteration in original) (internal quotation marks and citation omitted).

{11} Child's testimony in this case was ambiguous as to the number of times that Defendant touched her during the charging period. She told the jury about two separate instances of inappropriate touching, the first occurring while she was putting lotion on her rash and the second happening while she was falling asleep. However, that testimony came after Child had first stated that Defendant had touched her five times subsequent to the Colorado trip, only to then answer that the touching had occurred just once after Colorado. Thus, Child's testimony was inconsistent. When parts of a witness's testimony are "conflicting and ambiguous[,] ... [i]t is the exclusive province of the jury to resolve [the] factual inconsistencies in [that] testimony." State v. Morales, 2000-NMCA-046, ¶ 8, 129 N.M. 141, 2 P.3d 878 (internal quotation marks and citation omitted). In the instant case, the record supports the inference that Defendant touched Child multiple times during the charging period, as well as the inference that he touched her only once during that time. However, the applicable standard of review does not contemplate our "pars[ing] the testimony and view[ing] the verdict only in light of the probative value of individual pieces of evidence." Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285. Instead, "[a]ppellate courts faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the [prevailing party], and must defer to that resolution." Id. (internal quotation marks and citation omitted). Given that presumption and the record before us, we conclude that the jury acted rationally in resolving the factual inconsistencies present in Child's testimony in favor of the conclusion that Defendant touched Child twice during the charging period. We defer to that resolution, and thus agree with Judge Fry's conclusion in dissent that the trial court properly...