State v. Tafoya

• Decision Date: 11 September 2009
• Docket Number: No. 28,019.,28,019.
• Citation: 227 P.3d 92,2010 NMCA 010
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Andres Joaquin TAFOYA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

227 P.3d 92

2010 NMCA 010

STATE of New Mexico, Plaintiff-Appellee, v. Andres Joaquin TAFOYA, Defendant-Appellant.

No. 28,019.

Court of Appeals of New Mexico.

September 11, 2009.

Certiorari Denied, December 23, 2009, No. 32,046.

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Billy R. Blackburn, Paul Linnenburger, Albuquerque, NM, for Appellant.

OPINION

GARCIA, Judge.

{1} Defendant was convicted of four counts of first degree criminal sexual penetration of a minor under the age of thirteen (CSPM) in violation of NMSA 1978, Section 30-9-11(C)(1) (2001) (amended 2007), and two counts of third degree criminal sexual contact of a minor under the age of thirteen (CSCM) in violation of NMSA 1978, Section 30-9-13(A)(1) (2001) (amended 2003). Defendant appeals, arguing (1) that his right to due process was violated by the lengthy charging period and by the fact that the charges were not sufficiently specific to provide him with adequate notice and an opportunity to defend himself, (2) that the district court erred in admitting certain hearsay testimony, (3) that the district court improperly instructed the jury on several matters, and (4) that prosecutorial misconduct deprived him of a fair trial. We conclude that the lack of specific factual information in the indictment and the evidence introduced at trial constitute a violation of Defendant's right to due process as to two of the convictions of CSPM. Therefore, we reverse Defendant's convictions for one count of vaginal CSPM and one count of anal CSPM. We conclude that no other reversible errors occurred at trial, and we affirm Defendant's remaining convictions.

BACKGROUND

{2} After Defendant's seven-year-old niece, L.T., told family members that Defendant had molested her, Defendant was charged with two counts of first degree CSPM for vaginal penetration, two counts of first degree CSPM for anal penetration, one count of CSCM for touching L.T.'s genitalia, and one count of CSCM for forcing L.T. to touch his genitalia.

{3} Defendant was alleged to have had regular access to L.T. when she had overnight visits with her father, who is Defendant's brother, and when she had weekly visits at her paternal grandparents' home. Originally, the charging period for each count of the indictment began on January 24, 2002 and ran through December 31, 2004. The charges were based on L.T.'s statements that Defendant had vaginal intercourse with her "lots of times," had anal intercourse with her "about [three] times," touched her genitalia with his hand "about [ten] times," and made her touch his penis "about [four] times." Defendant moved for a bill of particulars, and the State narrowed the time frame to the period beginning September 30, 2002 and ending December 26, 2004 — a period of twenty-seven months. Despite the more limited time frame, Defendant moved to dismiss, arguing that both the length of the charging period and the lack of factual specificity in the charges violated his right to due process. Eventually, after the State conducted further interviews with L.T., the district court issued an order clarifying that the factual bases for the charges were four specific incidents that the parties referred to as the "Hooter's incident," the "Rash incident," the "Mouth-Covering incident," and the "Last Time or Christmastime incident." Two other specific incidents previously identified by L.T. — the "First Time incident" and the "Camping incident" — were not identified as charging offenses in this case, since the First Time incident was outside of the stated charging period and the Camping incident occurred outside of Bernalillo County. The district court's order indicated L.T. did not specify the type of act that occurred during each of the four charged incidents and the State's theory was that there were progressive acts of CSCM and CSPM that occurred at each incident. The district court noted that "since specific incidents have been identified, it would be appropriate for the State to elicit evidence or testimony about [D]efendant's acts, number of acts and/[or] combination of acts which are alleged to [have been] committed during these specified incidents."

{4} At trial, L.T. described the Hooter's incident as an act of CSCM based on her testimony that Defendant "touched" her "private parts" with his "whole hand." L.T. testified that the Mouth-Covering incident involved Defendant "touch[ing]" her. L.T. did not testify about a specific incident that gave her a rash, although she did testify that Defendant's acts of touching her with his hand, touching her with his penis, and rubbing his penis against her butt generally made her feel like she either had or might get a rash. As to the Christmastime incident, L.T.'s testimony indicated that Defendant did something to her that she did not like, but she did not specify what the act was. L.T. did not indicate that any of the four specific incidents began with an act of CSCM and progressed to an act of CSPM, as had been previously posited by the State. Therefore, there was no evidence at trial that any of the four specific incidents designated in the district court's order involved an act of CSPM.

{5} The prosecution did elicit testimony at trial from L.T. that Defendant engaged in a non-specific course of conduct involving both vaginal and anal CSPM: L.T. testified that Defendant would "touch" her "private" with his "private" and that when he did this "[i]t just keeps going up and up and it hurts real bad" and that this happened "[l]ots of times." L.T. also stated that "sometimes [Defendant] would stick [his private] inside ... my butt" and that he did this "more than one time." Several other witnesses testified about statements L.T. had made to them regarding the abuse, but this testimony did not add any information about the specific incidents of abuse.

{6} The jury found Defendant guilty on all six charges. Defendant appeals.

DISCUSSION

The Length of the Charging Period in the Indictment and the Bill of Particulars

{7} Defendant argues that the extended charging period violated his right to due process. We review this legal argument de novo. See N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947 ("We review questions of constitutional law and constitutional rights, such as due process protections, de novo.").

{8} In State v. Baldonado, 1998-NMCA-040, ¶ 26, 124 N.M. 745, 955 P.2d 214, this Court explained that we assess the constitutionality of the length of a charging period by balancing whether the state reasonably narrowed the time frame of the indictment against any prejudice the defendant has suffered as a result of the time frame chosen by the state. We provided a list of nine nonexclusive factors to be used in applying this test. These are:

1. The age and intelligence of the victim and other witnesses, and their ability to particularize the date and time of the alleged offense;

2. The surrounding circumstances; including whether a continuing course of conduct is alleged, as opposed to a relatively few, discrete or isolated events;

3. The extent to which [the] defendant had frequent, unsupervised access to the victim;

4. The nature of the offense, including whether it is likely to occur at a specific time or is likely to have been discovered immediately;

5. The length of the alleged period of time in relation to the number of individual criminal acts alleged 6. The length of time asserted in the indictment;

7. The passage of time between the period alleged for the crime and the time the abuse was asserted and/or the time [the] defendant was arrested and/or indicted;

8. The extent and thoroughness of the [s]tate's efforts to narrow the time frame; and

9. Whether the defendant can assert a plausible alibi defense.

Id. ¶ 27. Although we stated that the two-year charging period in Baldonado "approach[ed] the outer edges of constitutional propriety," we declined to hold that it was too long as a matter of law because "[i]t is possible that a two-year period, or larger, may be the most narrow time frame the prosecutor can be required to muster in an appropriate case." Id. ¶ 23.

{9} In this case, the charging period was originally thirty-five months. After Defendant moved for a bill of particulars, the district court directed the State to attempt to narrow the charging period. After meeting with L.T. and her mother, the State narrowed the charging period to approximately twenty-seven months. The State made additional efforts to narrow the time frame even further. The State amended the bill of particulars to add details about the first time and the last time the abuse occurred but ultimately concluded that "[t]he State believes L.T. was molested on a continuous basis between the time frame of September 30, 2002 through December 20, 2004. Even though the State can narrow down the overnight visits [that L.T. had with her father], the State believes several acts of sexual abuse occurred during the day at her grandparent[s'] home."

{10} Defendant moved to dismiss pursuant to Baldonado. The district court issued a detailed order denying Defendant's motion. The district court weighed the reasonableness of the State's efforts to narrow the charging period against the potential prejudice to Defendant caused by the State's twenty-seven-month time frame. In doing so, it focused on most of the Baldonado factors. The district court noted that: (1) the crimes were alleged to have occurred while L.T. was between the ages of five and seven, and although L.T. was apparently of sound intelligence for her age, it was clear from the multiple interviews with L.T. that she did not have the capacity to provide more particular dates or time periods for the alleged incidents; (2) the alleged incidents occurred on a continuous basis and were not just a few isolated events; (3) although the extent to which Defendant had frequent and...