State v. Trujillo

• Decision Date: 01 August 2012
• Docket Number: No. 30,281.,30,281.
• Citation: 287 P.3d 344
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Nick Adam TRUJILLO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

287 P.3d 344

STATE of New Mexico, Plaintiff–Appellee,

v.Nick Adam TRUJILLO, Defendant–Appellant.

No. 30,281.

Court of Appeals of New Mexico.

May 24, 2012.

Certiorari Denied, July 19, 2012, No. 33,665.

Certiorari Denied, Aug. 1, 2012, No. 33,678.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Nick Adam Trujillo appeals his conviction for second degree criminal sexual contact of a minor (CSCM). Defendant argues that (1) the State presented insufficient evidence to support Defendant's conviction, (2) the district court deprived Defendant of his rights to due process and confrontation by not requiring the police case agent to testify, and (3) the district court erred in sentencing Defendant for second degree CSCM because (a) the jury was instructed using the third degree CSCM jury instruction, or, alternatively, (b) Defendant's conduct did not violate the statute for second degree CSCM, NMSA 1978, § 30–9–13(B) (2003), and instead his conduct is a third degree felony contrary to Section 30–9–13(C). We hold that the State presented sufficient evidence to support Defendant's conviction and that the district court did not violate Defendant's confrontation or due process rights. However, because Defendant's conduct amounted to a third degree felony under Section 30–9–13(C) and not a second degree felony under Section 30–9–13(B), the district court erred by denying Defendant's motion to amend the degree of charge. Accordingly, we reverse the CSCM conviction under Section 30–9–13(B) (second degree felony) and remand for entry of a CSCM conviction under Section 30–9–13(C) (third degree felony).

BACKGROUND

{2} A jury found Defendant guilty of second degree CSCM, contrary to Section 30–9–13(B)(1), after Defendant allegedly placed the hand of his girlfriend's ten-year-old daughter (C.A.) on his unclothed penis. C.A. testified that she usually slept on the couch, but that the night of the incident she was scared. She got up and asked her mother (Mother) if she could sleep in Mother's room with Mother, Defendant, and her brother. C.A. watched television for a little while and then went to sleep in between Defendant and her brother. C.A. awakened to Defendant grabbing her wrist and “put[ting her hand] on his middle part.” She stated that her hand was under Defendant's clothing and that she touched skin. When asked whether Defendant was awake, C.A. stated that she believed he was awake and that she saw his eyes open and then close. C.A. then said Defendant's name, and it caused Defendant to turn his head around and Mother to wake up. Mother went into the kitchen, and C.A. followed her and told Mother what had happened. Mother told C.A. something to the effect that Defendant “must have been asleep, dreaming, or something” and went back to bed.

{3} Defendant presented testimony from Mother that C.A. did not stay at the house with her, Defendant, and C.A.'s siblings on the night of the incident. Mother additionally testified that C.A. always wanted to be the focus of attention and was jealous of Defendant and her siblings, and, therefore, Mother and C.A. were not close. Mother also testified that C.A. had previously made similar allegations about Mother's ex-boyfriend and his father.

{4} After the jury returned its verdict, Defendant filed a motion to amend the degree of the charge, arguing that Defendant's conduct was not prescribed by Section 30–9–13(B) as a second degree felony, but instead was a third degree felony under Section 30–9–13(C). The district court denied the motion and sentenced Defendant for second degree CSCM. This appeal timely followed.

SUFFICIENCY OF THE EVIDENCE

{5} Defendant contends that the State failed to present sufficient evidence that he intentionally caused C.A. to touch his unclothed penis. We review the sufficiency of the evidence pursuant to a substantial evidence standard. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). “The relevant question is whether, after viewing 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. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (alteration, internal quotation marks, and citation omitted). This Court evaluates the sufficiency of the evidence in a criminal case by viewing the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all permissible inferences in favor of upholding the conviction, and disregarding all evidence and inferences to the contrary. State v. Rojo, 1999–NMSC–001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We will not substitute our judgment for that of the factfinder, nor will we reweigh the evidence. State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993).

{6} In order for the jury to find Defendant guilty of CSCM, the State had to prove that (1) Defendant caused C.A. to touch his unclothed penis, and (2) C.A. was twelve years of age or under. C.A.'s testimony regarding the incident was sufficient for a reasonable jury to conclude that Defendant committed CSCM by causing C.A. to touch his unclothed penis. See State v. Nichols, 2006–NMCA–017, ¶¶ 5–11, 139 N.M. 72, 128 P.3d 500 (holding that the victim's partially impeached testimony was sufficient evidence to convict a defendant for criminal sexual penetration). Although Defendant argues that the evidence did not support a conclusion that he acted intentionally, “[i]ntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.” State v. Sosa, 2000–NMSC–036, ¶ 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation omitted). In this case, the evidence that Defendant caused C.A. to touch his unclothed penis by grabbing her wrist, while in bed, with his eyes open, is sufficient to infer that he committed CSCM intentionally.

{7} Defendant points to contrary evidence in support of his argument that the State failed to prove that he intentionally committed CSCM. He argues that the evidence established that there was no source of light in the bedroom where the events occurred because the electricity was out, the lights were off, and the curtains were closed, and, therefore, C.A. could not have seen whether Defendant's eyes were open. Further, Mother testified that C.A. stayed at a friend's house the night of the incident, and Defendant “vehemently denied the allegations below.” Although this evidence may support Defendant's denial of the allegations, it is not the role of this Court to substitute our judgment for that of the factfinder. See Hernandez, 115 N.M. at 26, 846 P.2d at 332. Further, “it is the role of the factfinder to judge the credibility of witnesses and determine the weight of evidence.” State v. LaPietra, 2010–NMCA–009, ¶ 11, 147 N.M. 569, 226 P.3d 668 (alteration, internal quotation marks, and citation omitted).

CASE AGENT'S TESTIMONY

{8} Defendant argues that the district court violated his confrontation right to cross-examine witnesses and his due process rights because the district court did not require the police case agent to testify at trial and, thereby, did not allow him to present a likely defense. As both issues present a question of law, we review de novo. See State v. Gonzales, 1999–NMSC–033, ¶ 22, 128 N.M. 44, 989 P.2d 419 (“Confrontation Clause claims are issues of law that we review de novo.” (internal quotation marks and citation omitted)); State v. Johnson, 2004–NMCA–058, ¶ 12, 135 N.M. 567, 92 P.3d 13 (reviewing a defendant's claim that witness testimony violated his due process rights de novo).

{9} Four days before trial, the State informed the district court that Detective Randy Pitcock, the case agent who conducted the investigation, was going to be on vacation during the trial. The State had listed Detective Pitcock on its witness list and had subpoenaed him for trial. However, the State told the district court that it did not want the matter continued, and Detective Pitcock would probably not be called as a witness. The State further told the district court that it did not need Detective Pitcock's testimony to prove its case. Defense counsel did not subpoena Detective Pitcock and stated that it was not defense's practice to subpoena the case agent or other officers.

{10} Defense counsel argued that Detective Pitcock needed to be available for information regarding matters that may arise during trial. He noted that Detective Pitcock interviewed all the witnesses in the case and was responsible for the entire investigation in the case. He argued that Defendant had a right to cross-examine and confront witnesses. The district court stated that Detective Pitcock was not going to be a State witness and that it would not compel his attendance or move the trial date unless defense counsel presented a compelling need.

{11} At the conclusion of trial, defense counsel raised a number of perceived issues regarding Detective Pitcock's absence. He argued that Detective Pitcock's absence did not allow Defendant to present evidence regarding (1) prior allegations made by C.A. against her stepfather two years earlier, which Detective Pitcock noted in his report; (2) Defendant's denial of the allegations and calm demeanor when arrested; (3) any information Detective Pitcock had regarding whether C.A.'s residence had electricity the night of the incident, as well as Detective Pitcock's specialized knowledge in these types of cases; (4) whether Detective Pitcock collected clothing, bedding, or photographs at the scene; and (5) whether Detective Pitcock investigated claims that C.A. stayed at a friend's house, including whether Mother drove C.A. to school the day after the...