State v. Swafford

• Decision Date: 15 August 1989
• Docket Number: No. 10972,10972
• Citation: 1989 NMCA 69,109 N.M. 132,782 P.2d 385
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ron SWAFFORD, Defendant-Appellant.

Page 385

782 P.2d 385

109 N.M. 132

STATE of New Mexico, Plaintiff-Appellee, v. Ron SWAFFORD, Defendant-Appellant.

No. 10972.

Court of Appeals of New Mexico.

Aug. 15, 1989.

Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, N.M., for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, N.M., for defendant-appellant.

OPINION

ALARID, Judge.

Defendant appeals from his convictions for criminal sexual penetration in the third degree, incest, assault with intent to commit a violent felony (CSP in the third degree), and false imprisonment. On appeal defendant claims that the trial court erred in (1) suppressing evidence of the victim's prior sexual history; (2) refusing defendant's tendered instruction on simple assault; (3) denying defendant's motion for recusal; and (4) refusing to accept a plea and disposition agreement. Defendant also raises two additional issues pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), cert. denied 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 566 (1969). We find no basis for reversal in defendant's claims of error, and affirm the convictions and sentence.

I. Suppression of Evidence

By way of an in camera hearing, defendant sought to introduce evidence of a past sexual encounter of victim and a third party during which victim allegedly affixed the ropes found on the bed to restrain the third party in the course of consensual sexual activity. The trial court ruled that any mention of the origin of the ropes would not be allowed, finding that such disclosure "would advance no legitimate claim or defense available to the Defendant, unnecessarily confuse the jury, inject a false issue into the case, unreasonably humiliate and embarrass [victim], and run directly counter to the policies sought to be furthered by [NMSA 1978, Section 30-9-16 and SCRA 1986, 11-413]." The trial court expressly concluded that the proffered evidence was not relevant to any material issue in this case; and, even if relevant, such relevance was marginal at best and any probative value it may have was outweighed by its prejudicial impact.

Defendant argues the trial court's suppression of the evidence and denial of his motion to elicit evidence of the victim's past sexual conduct pursuant to Evidence Rule 11-413 deprived him of due process, a fair trial, and the right to confront witnesses against him. He contends the proffered evidence was material, relevant, and that its probative value outweighed any prejudice to victim. Defendant submits that because he was not allowed to tell the jury that victim had affixed the ropes to the bed prior to the incident at issue and to elicit evidence of the victim's prior sexual conduct, then the jury was left with the "damaging misconception" that defendant had placed the ropes on the bed, and "is therefore a pervert" "who had prepared a 'bondage bed' in his own home[.]" Defendant claims that "the [proffered] evidence was necessary to dispel a damaging image of defendant left by silence on the issue." He submits the error was not harmless and requests a new trial at which he be permitted to "explain [the] damaging evidence."

We note that defendant testified at trial that he was interested in bondage sex; he also said he did not keep his interest a secret, and that other people did know about it. It seems that if, as defendant suggests, the jury was inclined to view defendant as a "pervert" based on the "unexplained" presence of the ropes found by police during the investigation, then the jury would likely have had the same "damaging image" of defendant based on his own trial testimony. Furthermore, because the critical issues at trial were whether defendant intentionally and forcibly restrained and criminally sexually penetrated victim, defendant's half-sister, against her will, we find no abuse of discretion in the trial court's determination that evidence concerning the origin of the ropes was not relevant, and even if marginally relevant, its prejudicial impact outweighed any probative value. See State v. Boeglin, 105 N.M. 247, 731 P.2d 943 (1987).

In determining whether the trial court abused its discretion in excluding evidence, an appellate court may consider the probative value of the item of evidence. See State v. Schifani, 92 N.M. 127, 584 P.2d 174 (Ct.App.1978). Defendant's proffered evidence concerning the origin of the ropes was collateral, at best, to the determination of whether defendant used the ropes to forcibly restrain victim and carry out the "It is not the province of the jury to pass moral judgment on the victim, and the court should remove the temptation to do so wherever possible." State v. Romero, 94 N.M. 22, 26, 606 P.2d 1116, 1120 (Ct.App.1980). Because defendant consistently has denied tying victim to the bed and denied having intercourse with her, victim's past sexual conduct indicates nothing concerning any defense offered by defendant. See generally State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct.App.1978) (past sexual conduct of victim irrelevant to defendant's defense that victim consented). We believe the proffered evidence had no probative value with respect to defendant's guilt or innocence of the charges against him and, therefore, would have been an unwarranted invasion into the private affairs of victim, contrary to the policy sought to be furthered by Section 30-9-16. See State v. Romero. The information defendant sought to present to the jury would have served only to provide an improper opportunity for the jury to pass moral judgment on victim. See id. In light of the above, we find no abuse of discretion in the trial court's decision to suppress the information concerning the origin of the ropes unless the state attempted to claim that defendant affixed the ropes to the bed.

[109 NM 134] events described by her. And, if defendant had been allowed to assert that victim affixed the ropes to the bed on a prior occasion of consensual activity with another man, then, as defendant phrases it, the jury may have thought of victim as a "pervert" who had prepared a "bondage bed."

We hold that the trial court was within its discretion in its suppression of this evidence, since it was irrelevant to defendant's culpability for the crimes charged, advanced no legitimate defense, excuse, or justification for the crimes charged, and were likely to inject false issues and confuse the jury. We find no basis for reversal in the trial court's determination that such information should be excluded because, even if some relevance is assumed, any probative value it may have had was outweighed by its prejudicial impact. See State v. Boeglin. Absent some showing by the defendant of evidence sufficient to raise an issue concerning the relevancy of the prior sexual conduct of the victim, questions concerning past sexual conduct are properly excluded. State v. Herrera. We also note that the trial court's decision to exclude the proffered evidence provided that if the information became relevant, then defendant could assert that he did not place the ropes on the bed without necessarily "delving into allegations of consensual sex between [victim] and another man on another occasion."

In accordance with the above, we further hold that suppression of the evidence did not deprive defendant of due process, a fair trial, or an opportunity to confront witnesses against him; notably, defendant has not otherwise asserted that he was deprived of an opportunity to fully cross-examine victim and other witnesses during the trial. See generally State v. Herrera (where trial court properly suppressed evidence concerning victim's past sexual conduct, there was no deprivation of due process and no denial of defendant's right to confront witnesses against him).

II. Refused Jury Instructions

Defendant's second issue claims the trial court erred in refusing his tendered jury instruction on the charge of simple assault as a lesser included offense of the charge of assault with intent to commit a violent felony. An instruction on a lesser included offense is only appropriate if there is evidence tending to establish the lesser offense and there is some view of the evidence which could sustain a finding that the lesser offense was the highest degree of the crime committed. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).

In this case, defendant's testimony and victim's testimony conflict with respect to what occurred during the incident underlying this action. Defendant testified that he was checking on victim when she awoke and became violent; he said he then hit victim four or five times and did so only to get her to quit biting him. Defendant denied tying her to the bed and denied having intercourse with her. In contrast, victim Notwithstanding the conflicts in the testimony, the undisputed evidence before us on appeal is that the results of a rape kit, taken at the hospital where victim was taken by police, showed that Type B semen was in victim's vagina and on her underwear and shorts; it is also undisputed that the evidence showed defendant is a "Type B secretor," and that only 8% of the population is of that type. In addition, defendant testified at trial that from early afternoon the day before the incident until victim left defendant's residence following the incident, he and victim were alone together, drinking and talking; defendant's testimony did not indicate or suggest that he or victim left the residence, or that anyone came to the residence, at any time during that period of approximately 14 hours. Also, police photographs admitted at trial, and not at issue on appeal, showed rope burns on victim, and scratches, abrasions, and a bite mark on defendant. We note that defendant has not raised any challenges to the sufficiency of the evidence underlying his convictions.

[109 NM 135] said that she awoke as defendant was tying one of her wrists with a rope and...