State v. Vallejos
| Decision Date | 12 February 2019 |
| Docket Number | No. A-1-CA-36016,A-1-CA-36016 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. TOBY VALLEJOS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Elizabeth A. Ashton, Assistant Attorney General
for Appellee
Patrick J. Martinez & Associates
Patrick J. Martinez
Albuquerque, NM
for Appellant
{1} Toby Vallejos (Defendant) was convicted of three counts criminal sexual contact (CSC) of a minor in the second degree (child under 13), contrary to NMSA 1978, Section 30-9-13(B) (2003). On appeal, Defendant contends that the district court erred by: (1) allowing the State to amend the indictment after Defendant filed his notice of alibi defense; (2) quashing the subpoena issued for the victim advocate; (3) not admitting his notice of alibi and the motion to amend the grand jury indictment into evidence; (4) admitting the Victim's safe house interview under Rule 11-801(D)(1)(b) NMRA; and, (5) denying Defendant's motion for speedy trial. We affirm the district court.
{2} Defendant was charged with four counts of CSC of a minor under thirteen years of age. The victim identified in the indictment was Defendant's niece (Victim).
{3} When Victim was eleven years old, she first told her cousin and then her mother about Defendant's sexual abuse. Victim's mother testified that Victim told her that Defendant "used to put his penis in [her] butt and hump [her]." Victim was uncertain throughout the case about what age she was when the abuse occurred. A pretrial interview with Victim revealed that the dates in the indictment were not accurate. One year before trial, the district court granted the State's motion to amend the charging dates in the indictment.
{4} At trial, Victim testified that she and her brother would go over to Defendant's apartment at the Arbors Apartment where Defendant would babysit them. In the living room of Defendant's apartment, Defendant "would lay [her] down on the side of the couch and pull down [her] pants, and . . . put his private parts in [her] behind area." This occurred three times. Victim testified that these three incidents took place within the same month. Defendant lived in two different apartments at the Arbors Apartment throughout the years, and Victim testified that the incidents took place in the first apartment. Victim also testified that Defendant worked maintenance for the apartment complex. The Arbors Apartments' maintenance supervisor testified that Defendant lived in the apartment complex from June 2006 to June 2009 and worked maintenance from November 2006 to June 2009.
{5} The jury returned a verdict finding Defendant guilty of three counts of CSC of a minor. This appeal followed.
{6} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of the case, we reserve further discussion of the pertinent facts for our analysis.
{7} Defendant contends that the district court erred in granting the State's motion to amend the charging dates in the original indictment (Original Indictment). We set out the relevant facts and procedural history of the amendment.
{8} When Victim first told her mother about the sexual abuse Victim said she was "like, [four]" at the time of the abuse. On September 13, 2011, Victim took part in a safe house interview. In this interview, Victim said she thought she was five or six and in about first or second grade the first time Defendant abused her.
{9} Defendant was indicted on July 17, 2013. The original charging dates in the Original Indictment for the four charges of CSC of a minor were all on or between October 29, 2003 and October 29, 2005. On January 29, 2014, Defendant filed a notice of alibi defense (Notice of Alibi), stating that, Defendant "did not reside [or] work at the Arbors Apartments between [October 29, 2004,] and [October 29, 2005]. On May 30, 2014, Victim attended a pretrial interview with defense counsel and the State, in which she stated she was seven or eight when Defendant sexually abused her. Further investigation by the State revealed that Defendant worked and lived at the Arbors Apartments starting in the summer of 2006. As a result of Victim's pretrial interview and its additional investigation, the State moved to amend the charging period in the indictment to "on or between the 1st day of May, 2006, and the 31st day of December, 2007" for all counts (the Motion to Amend) on November 19, 2014.
{10} The district court granted the State's motion to amend the grand jury indictment, stating that the State did not seek to add additional charges or additional victims, but rather to more accurately reflect the time period within which Victim claimed the abuse occurred. In its order, the district court specified, "[t]he alleged location where the alleged abuse occurred remains the same; the alleged perpetrator remains the same; the manner in which the alleged abuse occurred remains the same; and the alleged victim remains the same." The order also provided "[i]f . . . Defendant needs additional time to investigate or address the modified charging dates, the appropriate remedy will be for court to allow additional time to conduct such an investigation." The trial date was then set for twelve months later.
{11} On appeal, Defendant contends that the amendment to the indictment removed Defendant's ability to prepare an alibi defense at trial and thus substantially prejudiced Defendant. Because of this, Defendant argues that the district court erred by allowing the amendment to the indictment.
{12} The Rules of Criminal Procedure provide that:
No variance between those allegations of a complaint, indictment, information, or any supplemental pleading which state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be grounds for the acquittal of the defendant unless such variance prejudices substantial rights of the defendant. The court may at any time allow the indictment or information to be amended in respect to any variance to conform to the evidence. If the court finds that the defendant has been prejudiced by an amendment, the court may postpone the trial or grant other relief as may be proper under the circumstances.
Rule 5-204(C) NMRA. "We review a district court's interpretation and application of Rule 5-204 . . . de novo." State v. Stevens, 2014-NMSC-011, ¶ 49, 323 P.3d 901 (internal quotation marks and citation omitted).
{13} "The grand jury indictment is to inform the defendants of the nature of the charge so that surprise is avoided." Sanchez v. State, 1982-NMSC-012, ¶ 15, 97 N.M. 445, 640 P.2d 1325. "A criminal indictment or information need not contain exacting detail as long as the defendant is given sufficient notice of the charges." State v. Stevens, 2014-NMSC-011, ¶ 50, 323 P.3d 901; State v. Cawley, 1990-NMSC-088, ¶ 13, 110 N.M. 705, 799 P.2d 574 (); State v. Baldonado, 1998-NMCA-040, ¶¶ 18, 20, 124 N.M. 745, 955 P.2d 214 (); accord Rule 5- 205(A)(1) NMRA (). "A variance is not fatal unless the accused cannot reasonably anticipate from the indictment what the nature of the proof against him will be." State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070. A defendant's mere assertion of prejudice from an amendment to the indictment is insufficient to warrant reversal. Id.
{14} Defendant's assertion that the district court erred in permitting the State to amend the indictment is not supported by our relevant case law. For instance, in Marquez, this Court addressed the district court's grant of a mid-trial motion to amend the indictment. The victim testified that she was nine years old at the date of the incident. Id. ¶ 18. It was discovered during trial that the charging dates in the indictment were one year off. Id. The district court allowed an amendment to the indictment to conform to the evidence during trial but allowed the defendant the opportunity to request a continuance. Id. ¶ 19. This Court affirmed the district court, reasoning that the defendant had been aware of the nature of the charges against him, knew the identity of the alleged victim, and was aware of the mistake in the date from the beginning of the trial. Id. ¶ 21.
{15} Our Supreme Court addressed a similar issue in Stevens. In Stevens, after the defense rested, the state moved to amend the charging dates in the indictment, based on the victim's trial testimony. 2014-NMSC-011, ¶ 9. Over the defendant's objection, the district court allowed the...
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