State v. Williams

• Docket Number: A-1-CA-39912
• Decision Date: 30 October 2023
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICOLAS C. WILLIAMS a/k/a NICKOLAS WILLIAMS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICOLAS C. WILLIAMS a/k/a NICKOLAS WILLIAMS, Defendant-Appellant.

No. A-1-CA-39912

Court of Appeals of New Mexico

October 30, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Cindy Leos District Court Judge

Raul Torrez, Attorney General

Santa Fe, NM

Erica Schiff, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Carrie Cochran, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

GERALD E. BACA, JUDGE

{¶1} After a trial by jury, Nicolas C. Williams (Defendant) was convicted of three counts of criminal sexual penetration against Victim, J.V., contrary to NMSA 1978, Section 30-9-11(E)(6) (2009), and first-degree kidnapping, contrary to NMSA 1978, Section 30-4-1(A) (2003). On appeal, Defendant argues that (1) the district court abused its discretion in admitting propensity testimony in violation of Rule 11-404(B) NMRA from an alleged victim; (2) the district court impeded Defendant's right to present a defense; (3) the prosecutor committed prosecutorial misconduct in his closing arguments; (4) Defendant was denied effective assistance of counsel; and (5) the above errors, in the aggregate, resulted in cumulative error. Unpersuaded, we affirm.

BACKGROUND

{¶2} Because this is an unpublished memorandum opinion written solely for the benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361, and the parties are familiar with the factual and procedural background of this case, we omit a background section and leave the discussion of the facts for our analysis of the issues.

DISCUSSION

I. The District Court Did Not Abuse Its Discretion in Admitting Rebuttal Testimony Under Rule 11-404(B)

{¶3} Defendant first argues that the district court abused its discretion in admitting propensity testimony in violation of Rule 11-404(B) from a second alleged victim: A.T. The State moved to admit this testimony prior to trial under Rule 11-404(B). The district court found the evidence was offered for the proper purpose of establishing identity and modus operandi; however, the district court ultimately denied the motion, concluding that this evidence was more prejudicial than probative.

{¶4} However, before trial Defendant notified the State and the district court of his intention to introduce a polygraph examination taken of Defendant. Because of this, the State asked the district court to reconsider its prior ruling excluding A.T.'s testimony as Defendant's polygraph evidence opened the door to that testimony as rebuttal evidence. The district court ruled that the "State is allowed to rebut the polygraph evidence with specific instances of conduct."

{¶5} "We review the [district] court's decision to admit evidence under Rule 11-404(B) for abuse of discretion." State v. Otto, 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). If we conclude that the trial court abused its discretion we must still consider "whether that error actually prejudiced [the defendant] at his trial; that is, whether the error was harmless." State v. Gallegos, 2007-NMSC-007, ¶ 20, 141 N.M. 185, 152 P.3d 828.

{¶6} Rule 11-404(B)(1), (2) provides, in relevant part:

Evidence of a crime, wrong or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

{¶7} "Rule 11 -404(B) establishes boundaries for the admission of evidence of other crimes, wrongs, or acts." State v. Bailey, 2015-NMCA-102, ¶ 12, 357 P.3d 423. "Rule 11-404(B) prohibits the use of evidence when its purpose is to show criminal propensity: to prove the character of a person in order to show action in conformity therewith." State v. Ruiz, 2001-NMCA-097, ¶ 13, 131 N.M. 241, 34 P.3d 630 (internal quotation marks omitted). "In other words, evidence of other misconduct may not be admitted into evidence to demonstrate that because the defendant committed those acts in the past, he is more likely to have committed them at the time of the charged offense." Bailey, 2015-NMCA-102, ¶ 12 (internal quotation marks and citation omitted). "Such propensity evidence, although logically relevant to show that the defendant committed the crime by acting consistently with his or her past conduct, is inadmissible due to the likelihood the jury will convict for crimes other than those charged, or because it simply believes the defendant to be a bad person deserving of punishment." State v. Marquez, 2021-NMCA-046, ¶ 7, 495 P.3d 1150 (internal quotation marks and citation omitted).

{¶8} Rule 11-404(B) allows admission of such evidence for a purpose other than to show the defendant's propensity towards a bad act-and the list included within Rule 11-404(B) is "not exhaustive and evidence of other wrongs may be admissible on alternative relevant bases so long as it is not admitted to prove conformity with character." State v. Otto, 2007-NMSC-012, ¶ 10, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted). "Before admitting evidence of 'other crimes, wrongs or acts,' the [district] court must find that the evidence is relevant to a material issue other than the defendant's character or propensity to commit a crime, and must determine that the probative value of the evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403 [NMRA]." Id. Thus, we must decide whether it was an abuse of discretion to allow the testimony of A.T., an alleged former victim of Defendant, to rebut Defendant's polygraph evidence. We conclude that it was not.

{¶9} While Rule 11-404 does not allow propensity evidence, it does allow a defendant to offer evidence of their own pertinent traits, and if this evidence is admitted, the prosecutor may offer evidence to rebut it. See Rule 11-404(A)(2)(a) ("[A] defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it."). Because Defendant put his own pertinent traits at issue during trial, it was fair game for the State to offer evidence to rebut this evidence in the form of their own witness. See id. {¶10} In this case, Defendant, through the polygraph evidence, put at issue not only his character for truthfulness, but also whether he has ever used any weapon to force a prostitute to engage in any sexual act. The district court allowed the State to rebut the polygraph evidence with specific instances of conduct in the form of A.T.'s testimony.

{¶11} At trial, the defense called Mr. Jonathan Pierangeli to testify about the polygraph exam he administered to Defendant. In response to questioning by defense counsel, Mr. Pierangeli testified that he asked Defendant the following relevant questions: "Have you ever used a weapon to force prostitutes to engage in any sexual activity? Did you use any weapon to force a prostitute to engage in any sexual act? And at any time, have you used any weapon to force a prostitute to engage in any sexual acts?" Mr. Pierangeli further testified that "[Defendant] answered them all with a no." Referring to Defendant's answers, defense counsel asked Mr. Pierangeli "So did you find them to be truthful?" To which Mr. Pierangeli answered, "I did."^[1]Defense counsel next asked Mr. Pierangeli "Did you detect any deception?" To which Mr. Pierangeli answered, "No sir." Thus, we cannot conclude that the district court abused its discretion in allowing A.T. to testify because the evidence was not propensity evidence, but rebuttal evidence to which Defendant opened the door.^[2]See Otto, 2007-NMSC-012, ¶ 10 ("[E]vidence of other wrongs may be admissible on alternative relevant bases so long as it is not admitted to prove conformity with character." (internal quotation marks and citation omitted)).

{¶12} We hold that under the facts and circumstances present in this case, it was not error, much less harmless error, for the district court to permit A.T. to testify as a rebuttal witness, rebutting Defendant's claim via polygraph evidence that he had never "used a weapon to force prostitutes to engage in any sexual activity," and his testimony that he had never intimidated a prostitute or anyone else with a weapon.

II. The Right to Present a Defense

{¶13} Defendant next argues that the district court impeded his right to present a defense under the due process clause. Apart from statements of counsel, Defendant does not develop this argument. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (providing that appellate courts are under no obligation to review unclear or undeveloped arguments).

{¶14} However, to the extent that we understand this claim, we conclude that it is without merit for the following reasons (1) Defendant fails to articulate what defense was impeded; (2) Defendant presented the defense of factual innocence based upon the polygraph...