STATE V. VIGIL, 1985-NMCA-103, 103 N.M.
583, 711 P.2d 28 (Ct. App. 1985)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
APOLINARIO VIGIL, a/k/a PAUL VIGIL, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1985-NMCA-103, 103 N.M. 583, 711 P.2d 28
APPEAL FROM THE DISTRICT COURT OF TAOS
COUNTY Joseph E. Caldwell, Judge
PAUL G. BARDACKE, Attorney General and
WILLIAM McEUEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee
JANET E. CLOW, Chief Public Defender and
LYNNE CORR, Assistant Public Defender, Santa Fe, New Mexico, Attorneys for
Defendant-Appellant
{1} Defendant was tried on
three counts of criminal sexual contact with a minor, contrary to NMSA 1978,
Section
30-9-13 (Repl. Pamp.1984). A guilty verdict was returned on two counts.
The jury was unable to reach a unanimous decision as to the third count, and a
mistrial was declared as to that count.
{2} On appeal, defendant
raises four issues: 1) whether the use of a videotape deposition violates
standards prescribed by NMSA 1978, Section
30-9-17 (Repl. Pamp.1984) and NMSA
1978, Crim.P. Rule 29.1 (Repl. Pamp.1985), and whether the use of a videotape
deposition violates defendant's constitutional right of confrontation; 2)
whether the court erred in permitting two witnesses to repeat statements made
to them by the child victim; 3) whether the court erred in substituting the
term "groin" for "vulva" or "vagina" in NMSA
1978, UJI Crim. 9.82 (Repl. Pamp.1982); 4) whether the court erred in allowing
the state to cross-examine defendant on, and later, to introduce rebuttal
testimony concerning instances of alleged prior sexual misconduct between
defendant and another alleged victim.
{*585} THE
VIDEOTAPED DEPOSITION
{3} Prior to trial, the state
filed a motion seeking permission to present the testimony of the six-year-old
victim by means of videotape. This procedure is specifically authorized by
Section 30-9-17, and Rule 29.1.
{4} The salutory intent of
both the statute and the rule is to protect children who have allegedly been
sexually abused from suffering further emotional harm or trauma.
See
generally Libai,
The Protection of the Child Victim of a Sexual Offense
in the Criminal Justice System, 15 Wayne L. Rev. 977 (1969).
{5} The statute permits a
videotape deposition of a child victim of sexual assault, and the New Mexico
Supreme Court has implemented the statutory protections by rule. Crim.P.R.29.1
provides:
(a) Upon motion, and after notice to opposing counsel, at any
time after the filing of the indictment, information or complaint in district
court charging a criminal sexual penetration or criminal sexual contact on a
child under thirteen years of age, the district court may order the taking of a
videotaped deposition of the victim, upon a showing that the child may be
unable to testify without suffering unreasonable and unnecessary mental or
emotional harm. The district judge must attend any deposition taken pursuant to
this paragraph and shall provide such protection of the child as the judge
deems necessary.
(b) At the trial of a defendant charged with criminal sexual
penetration or criminal sexual contact on a child under thirteen years of age,
any part or all of the videotaped deposition of a child under thirteen years of
age taken pursuant to Paragraph (a) of this rule, may be shown to the trial
judge or the jury and admitted as evidence as an additional exception to the
hearsay rule of the Rules of Evidence if:
(1) the child is unable to testify before the court without
suffering unreasonable and unnecessary mental or emotional harm;
(2) the deposition was presided over by a district judge and
the defendant was present and was represented by counsel or waived counsel; and
(3) the defendant was given an adequate opportunity to
cross-examine the child, subject to such protection of the child as the judge
deems necessary.
(c) In addition to the use of a videotaped deposition as
permitted by Paragraph (b) of this rule, a videotaped deposition may be used
for any of the reasons set forth in Paragraph (n) of Rule 29. [Adopted,
effective July 1, 1980.]
{6} In support of its motion
for a video deposition, the state presented the testimony of Dr. Elizabeth
Dinsmore, an expert clinical psychologist. Dr. Dinsmore testified that she had
been treating the child regularly since October 1983. With the exception of a
one-month hiatus, she had seen the child on a weekly basis. The child had been
referred to Dr. Dinsmore because she had developed behavioral problems
following incidents of reported molestation. The problems included frequent
crying and clinging to her mother. Dr. Dinsmore testified that the child cried
in her sleep and had frequent nightmares about a monster who stole little
children and killed them. The child had many problems, was frequently ill and
missed much school. Dr. Dinsmore had treated other victims of sexual attacks,
and felt that this child's reaction was beyond the norm in its severity. The
doctor testified that the child expressed fear, anger and depression concerning
the legal process. The psychologist expressed concern that requiring the child
to testify before a jury would be a frightening experience, would undermine the
child's therapeutic progress, and would also be an unreasonable imposition on
the child. The doctor concluded that allowing the child to testify via
videotape was less traumatic and was something the child could handle. Based on
this evidence, the trial court determined that the child would suffer
unreasonable mental or emotional harm by presenting live testimony and that
there would be a diminished impact on the
{*586}
child by allowing her to give a video deposition.
{7} Defendant contends that
there was not substantial evidence to support the court's finding that
requiring the child to testify in open court would cause her to suffer
unreasonable emotional harm. We utilize the substantial evidence test to
determine whether the evidence supports the finding or conclusion. The basic
rules of this test are: (1) that substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion;
(2) that on appeal, all disputed facts are resolved in favor of the successful
party, with all reasonable inferences indulged in support of the finding, and
all evidence and inferences to the contrary discarded; and (3) that although
contrary evidence is presented which may have supported a different verdict,
the appellate court will not weigh the evidence or foreclose a finding of
substantial evidence.
State v. Martinez,
95 N.M. 445,
623 P.2d 565
(1981);
McCauley v. Ray,
80 N.M. 171,
453 P.2d 192 (1968);
Tapia v.
Panhandle Steel Erectors Company, 78 N.M. 86,
428 P.2d 625 (1967). Dr.
Dinsmore's testimony clearly qualifies as substantial evidence to support the
trial court's finding that the minor child would suffer unreasonable and
unnecessary mental or emotional harm.
{8} Defendant next contends
that use of the victim's deposition denied him the right of confrontation.
Every person accused of a crime has a constitutionally protected right to
confront his accuser. U.S. Const. amend. VI;
N.M. Const. art. II, § 14. In
State
v. Martinez, the New Mexico Supreme Court discussed the use of video
depositions and their relationship to an accused's right of confrontation. The
court noted that the confrontation right must be interpreted in light of the
law as it existed at the time the amendment was adopted.
Mattox v. United
States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895). According to
Mattox,
the primary purpose of the confrontation clause was:
to prevent depositions or ex-parte affidavits, such as
were sometimes admitted in civil cases, being used against the prisoner in lieu
of a personal examination and cross-examination of the witness in which the
accused has an opportunity, not only of testing the recollection and sifting
the conscience of the witness, but of compelling him to stand face to face with
the jury in order that they may look at him, and judge by his demeanor upon the
stand and the manner in which he gives his testimony whether he is worthy of
belief.
Id. at 242-43, 15 S. Ct. at 339.
{9} Mattox noted that
generally a defendant should have the right to face his accusers at trial, but,
"general rules of law of this kind, however beneficent in their operation
and valuable to the accused, must occasionally give way to considerations of
public policy and the necessities of the case."
Id. at 243, 15 S.
Ct. at 340.
{10} Such is the situation
here. There exists a strong public policy, as evidenced by Section 30-9-17 and
by Rule 29.1, to protect child victims of sexual crimes from the further trauma
of in-court testimony.
State v. Messier,
101 N.M. 582,
686 P.2d 272
(Ct.Ap.1984). This public policy concern must be considered together with the
rights of the accused. The statute and the court procedural rule seek to strike
a balance between these competing interests.
{11} The primary interest
secured by confrontation is the right of cross-examination. "[A]n adequate
opportunity for cross-examination may satisfy the [confrontation] clause even
in the absence of physical confrontation."
Douglas v. Alabama, 380
U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934 (1965).
{12} Rule 29.1 satisfies
defendant's right of cross-examination. The rule specifically provides that
defendant must be given an adequate opportunity to cross-examine the child,
subject to such protections as the court deems appropriate. Here, defendant
does not argue that he was deprived of his right to fairly and fully
cross-examine the child during the video deposition. To the contrary, defendant
had an adequate opportunity
{*587} to
test the recollection and to sift the conscience of the child. Moreover, the
jury heard the child's testimony and viewed the child, via videotape, while she
testified. Thus, the jury also had an adequate opportunity to observe the
child's demeanor during her testimony and cross-examination. We conclude that
defendant's right of confrontation was not impaired and further, that the state
presented substantial evidence in support of its request to utilize a video
deposition of the child in lieu of live testimony.
USE OF VICTIM'S PRIOR CONSISTENT STATEMENTS
{13} In pretrial rulings, the
court determined that the victim's videotaped deposition be allowed in lieu of
the child's live testimony. The trial judge recognized that even with the use
of the video deposition, it was possible that new information could be
presented during the course of the trial which would compel defendant to call
the child as his own witness. To lessen this possibility, the court directed
that the deposition not be taken until the time of trial after all other
state's witnesses had testified. Thus, prior to cross-examination of the child,
defendant would have the full benefit of the testimony of the state's other
witnesses. The court directed that the state present the videotaped deposition
as its last item of evidence.
{14} In its case-in-chief,
the state sought to present prior statements made by the child, through the
testimony of two other witnesses. The defendant objected to this procedure. The
court noted, however, that the credibility of the child and of defendant were
crucial issues and allowed use of prior consistent and inconsistent statements.
{15} NMSA 1978, Rule
801(d)(1) (Repl. Pamp.1983) states in relevant part:
A statement is not hearsay if:
(1) * * * The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is
(B) consistent with his testimony and is offered to rebut an
express or implied charge against him of recent fabrication or improper influence
or motive * * *.
{16} Thus, a witness's prior
statements are not hearsay if they come within the provisions of Rule
801(d)(1)(B). Here, the state introduced the victim's prior consistent
statements to rebut implications that the child was not being truthful.
Defendant argues that the credibility of the victim was not challenged during
his cross-examination of her, and the record supports this argument. However,
in opening statements, and later in the defense portion of the case, the
defendant specifically challenged the veracity of the child's testimony. In
opening, defense counsel stated to the jury:
[W]hat it really boils down to is the testimony of a
six-year-old child who says one thing, and the defendant, Paul Vigil, who has
entered a plea of not guilty, who has maintained his statement that he did not
do these things. He's denying the fact that these instances took place, and
you're going to be asked to make some assessments of both of these people's
testimony.
{17} Defense counsel's
opening statement continued in this vein:
[W]e're not going to offer you any startling theories for
what really happened or what's really going on in the mind of
[name omitted] as she makes these charges * * *. [emphasis added].
{18} Defense counsel told the
jury that defendant did not do the things with which he had been charged and
that the incidents simply did not happen. Thus, from the outset of the case the
jury was apprised that the focal point of the trial would be the credibility of
the six-year-old child. The opening statement made the victim's credibility the
major issue and, taken as a whole, created the implication that the child was
lying.
{19} In addition, in
discussing the child's motive for her statements, defendant, during his own
cross-examination, indicated that her testimony could have been fabricated.
{*588} Normally, once defendant attacked the
credibility of the victim by asserting that her statements were fabrications,
the state could offer prior consistent statements to rebut the assertion or
implication of a fabrication. Rule 801(d)(1)(B). In this case, the court
allowed the prior consistent statement to be presented prior to defendant's
testimony, but after the trial court had been alerted, by way of opening
statements, that the victim's credibility would be attacked. Defendant
continued to question the child's veracity throughout the trial and, in closing
arguments, counsel theorized that the victim may have been encouraged to
fabricate by family members.
{20} In
State v. Conroy,
131 Ariz. 528. 642 P.2d 873 (App.1982), a child molestation case, the court
permitted testimony by an adult witness which related the victim's account of
an alleged molestation. The victim's statements were admitted as prior
consistent statements to rebut charges of fabrication. The Arizona Court of
Appeals said:
In this case, appellant attacked the credibility of the
victim in his opening statement, cross-examined her with her prior denials at
the preliminary hearing, and attempted to show that Loomis and Steeles had
influenced the victim to testify the way she did.
Id. at 531, 642 P.2d 873.
{21} The same is true in this
case. The child's credibility was attacked in opening statement; defendant had
an opportunity to cross-examine the child on the prior statements; in closing,
defendant argued that the child may have been influenced by her family.
{22} In
State v. Manus,
93 N.M. 95,
597 P.2d 280 (1979), the court held there was no abuse of
discretion in admitting prior consistent statements of a witness when the defendant
calls into question the witness's credibility. The "recent
fabrication" requirement is satisfied when the credibility of a witness is
attacked.
See United States v. Lombardi, 550 F.2d 827 (2nd Cir.1977);
United
States v. Iaconetti, 406 F. Supp. 554 (E.D.N.Y.1976). Finally, defendant's
assertion that the victim may be fabricating her testimony can serve as the
appropriate foundation under Rule 801(d)(1)(B).
State v. Bell,
90 N.M.
134,
560 P.2d 925 (1977);
Commonwealth v. Saarela, 376 Mass. 720, 383 N.E.2d
501 (1978) (no error in admitting prior consistent statements if statements
would have been admissible if evidence presented in customary order). We
conclude that the court did not err in allowing the prior consistent statements
into evidence.
WHETHER THE COURT ERRED IN USING THE TERM
"GROIN" IN NMSA 1978, UJI CRIM. 9.24 (Repl. Pamp.1982)
{23} The central elements of
the crime of criminal sexual contact of a child under the age of thirteen are:
1) the defendant touched or applied force to [one or more of the designated
portions] of the child's anatomy; 2) the child was twelve years old or younger;
and 3) the incident occurred in New Mexico on or about a specific date. UJI
Crim. 9.24. Among the approved terms to be used to designate portions of the anatomy
are "vulva," "groin," and "vagina." UJI Crim.
9.24, Use Note 3.
{24} Defendant's tendered
instruction included the terms "vagina," and the state's tendered
instruction included the term "vulva." During the instruction
settlement conference, the state expressed some concern that by virtue of the
mandatory definition of "vagina," as being the canal or passage for
sexual intercourse in the female, extending from the vulva to the neck of the
uterus,
see NMSA 1978, UJI Crim. 9.82 (Repl. Pamp.1982), the jury might
mistakenly believe that only an interior touching of the canal would satisfy
the first element of the crime.
{25} The court noted that UJI
Crim. 9.24, Use Note 3, allows the term "groin" to be used. Further,
the trial court noted that there was sufficient evidence to show that the child
had been touched on her groin and, specifically, in the area where her sex
organs were located.
{*589} Not having
defined "groin" in the statute, and nothing to the contrary
appearing, the Legislature is presumed to have used the common meaning of
"groin". State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.
App.1968). The common meaning, in Webster's Third New International Dictionary
(1966) is "the fold or depression marking the line between the lower part
of the abdomen and the thigh; also: the region of this line."
{27} The
Doe court
found a touching of the groin within the meaning of the statute because the
touching occurred in an area within the definition of the word groin. In the
present case, the situation is similar. The child testified as to the area
where she had been touched, and, by use of an anatomically correct,
prepubescent female doll, indicated where she had been touched. The court saw
the area to which the victim was pointing, and that area is all inclusive,
containing within it the sex organs of the child. The use of the term
"groin" was proper and there was no error in the instruction given.
WHETHER THE COURT ERRED IN PERMITTING EVIDENCE OF PRIOR
SEXUAL MISCONDUCT
{28} The original indictment
charged defendant with three counts of criminal sexual contact with the child,
who was his granddaughter, and a fourth count charged defendant with sexual
intercourse with his daughter. Because Count IV charged crimes occurring beyond
the applicable statute of limitations, the court dismissed that count. An
amended indictment charging a crime within the applicable statute of
limitations was filed. The court severed the amended Count IV for a separate
trial, and in pretrial motions, defendant succeeded in obtaining a ruling
prohibiting the state from introducing evidence in its case-in-chief of prior
sexual acts by the defendant which were not related to Counts I, II or III.
{29} No evidence of prior
sexual misconduct was presented by the state. However, during cross-examination
of defendant, testimony was elicited to the effect that the granddaughter's
story might be fabricated. Defendant stated, in a tender out of the jury's
hearing, that there was a family conspiracy against him and suggested that this
was the motive for the accusations that were made. Because of this suggestion,
the court allowed the further examination concerning his family's motives for
testifying and, over defendant's objection, allowed the state to ask if other
members of his family had made accusations of sexual misconduct against him and
whether the allegations were true. Defendant admitted, before the jury, that
the accusations were made, but he denied their truth. With his denial, the
court allowed the state to present extrinsic evidence of the prior deviant sex
acts which had formed the basis of the severed Count IV. This evidence,
presented by way of rebuttal, was offered for purposes of impeaching defendant.
{30} While the Rules of
Evidence provide that the credibility of a witness may be attacked by any
party, attempts to do so by introduction of evidence of specific instances of
conduct are strictly limited by the rules. NMSA 1978, Evid.R. 607, 608 (Repl.
Pamp.1983). In particular, Rule 608 provides in part:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility, other than conviction of
crime as provided in Rule 609, may not be proved by extrinsic evidence. They
may, however, in the discretion of the court, if probative of truthfulness or
untruthfulness, and not remote in time, be inquired into on cross-examination
of the witness
(1) concerning his character for truthfulness or
untruthfulness * * *.
{31} Defendant contends the
extrinsic evidence presented was not proper rebuttal evidence and that Rule 608
does not support the trial court's ruling. We agree. The rule does not allow
extrinsic evidence by way of rebuttal, but rather permits questioning on
cross-examination into a limited area.
State v. Ross,
88 N.M. 1,
536
P.2d 265 (Ct. App.1975). Additionally, the
{*590}
area of inquiry must be limited to specific instances of conduct concerning
the witness's character for truthfulness or untruthfulness.
State v. Marquez,
87 N.M. 57,
529 P.2d 283 (Ct. App.1974).
{32} Here, the
cross-examination was beyond the allowable scope authorized by Rule 608, in
that it did not concern defendant's character for truthfulness; further, the
admission of rebuttal testimony by defendant's daughter was contrary to the
requirement that inquiry be limited to cross-examination. New Mexico has long
followed the general rule that on collateral matters, a cross-examiner is bound
and limited by whatever answer he elicits from the witness.
State v.
Clevenger,
27 N.M. 466,
202 P. 687 (1921). Adoption of Rule 608 did not
change prevailing law. The extrinsic evidence cannot be sustained as proper
rebuttal.
{33} This same rule is
enunciated in the evidentiary treatises. For example, McCormick on Evidence,
Section 42 at 92 (3d ed.1984), states:
In jurisdictions which permit character impeachment by proof
of misconduct for which no conviction has been had, an important curb is the
accepted rule that proof is limited to what can be brought out in
cross-examination. Thus, if the witness stands his ground and denies the
alleged misconduct, the examiner must "take his answer * * *" he may
not call other witnesses to prove the discrediting acts.
See State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.
App.1970) (denials binding on the cross-examiner and extraneous evidence is
inadmissible to contradict such denials.)
{34} Similarly, in
State
v. McKelvy,
91 N.M. 384,
574 P.2d 603 (Ct. App.1978), the defendant was
tried for murder and conspiracy. During cross-examination, and for the asserted
purpose of attacking the truthfulness of defendant, he was asked whether he had
ever admitted having bombed a house. Defendant denied having made the
statement. On rebuttal, the state presented a federal agent who testified that
defendant made such an admission and had received immunity in exchange for his
testimony against others. The Court of Appeals reversed defendant's conviction
because improper rebuttal testimony had been admitted, and said:
Prior to the adoption of the Evidence Rules it was settled
law in New Mexico that a witness could be cross-examined concerning specific
acts of wrongdoing, but it was "equally well settled that the cross-examiner
is bound by the answers given to such questions and cannot produce other and
independent evidence with reference to such matters beyond that given by the
assailed witness".
McKelvy at 385, 574 P.2d 603, quoting from State v.
Clevenger.
{35} In
McKelvy, we
held that a trial court was without discretion to admit evidence that is
specifically prohibited by Rule 608(b). This determination was made despite the
state's argument that defendant's rights had not been affected. We said:
The State contends that the admission of the rebuttal
testimony did not affect a substantial right of defendant. See Evidence Rule
103(a). We disagree. The right affected was the right to exclude the extrinsic
evidence admitted in rebuttal. That right is conferred by Evidence Rule 608(b)
and is a substantial one.
{36} In
State v. Ross,
a conviction was reversed when the trial court erroneously admitted extrinsic
evidence of collateral matters which were unfairly prejudicial to the
defendant. In reversing, we held:
[O]ne of the most important principles or policies behind the
Rules of Evidence is to insure that the jury bases its verdict on relevant and
material facts, and not on collateral information which leads the jury to believe
the defendant is of bad character and therefore more likely than not to be
guilty of the charge at issue.
{37} At trial the state based
its argument for admissibility on impeachment. On appeal, the state abandons
that argument and
{*591} states that
evidence or prior sexual misconduct was admissible under NMSA 1978, Evid.R.
404(a) (Repl. Pamp.1983), which provides in part:
Evidence of a person's character or a trait of his character
is not admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
(b) Other crimes, wrongs or acts. Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident. [As amended,
effective April 1, 1976.]
{38} A discussion of the
intent of this rule is necessary to our analysis of defendant's argument.
The primary purpose of Rule 404 is to protect the criminal
defendant from unnecessary or unfair prejudice. It is to prevent the defendant
from being convicted because he is bad or evil. Stated differently, the purpose
of Rule 404 is to prevent the use of evidence of prior crimes to show the
propensity of the defendant to commit crimes or to prove particular conduct.
J. Wentworth, Treatise on New Mexico Rules of Evidence,
Section 404-2 (1983).
{39} State v. Mason,
79 N.M.
663,
448 P.2d 175, 179 (Ct. App.1968), is a pre-rule case, but is nevertheless
helpful in viewing the "common scheme or plan" argument advanced by
the state. In
Mason, defendant was charged with the commission of sexual
offenses against four young victims, ages 11 and 12 and two aged 15. The state
elected to try the charged involving only the 11 and 12-year-old victims.
Defendant, by motion in limine, sought to prevent the state from introducing
evidence concerning the older children. The motion was denied, and during the
state's opening argument, reference was made to all of the victims and all of
the acts committed. Further, over defendant's objection, the state was
permitted to present testimony from the two 15-year-olds concerning defendant's
sexual misconduct directed at them. The evidence presented indicated that all
of the sexual acts had occurred during the same year; all of the victims had
been hired as babysitters; all incidents occurred in defendant's home; all
victims had been induced to engage in sexual activities; and no violence was
used. Defendant was convicted and appealed on the basis that the trial court
erred in allowing the introduction of evidence of other separate and distinct
offenses independent of the offenses for which he was being tried.
{40} In
Mason, as in
this case, the state argued that the evidence showed a plan, scheme and design
to entice young girls into defendant's home and to induce them to engage in
sexual activities. The court rejected Mason's argument, and reaffirmed the rule
announced in
State v. Velarde,
67 N.M. 224,
354 P.2d 522 (1960), where
the court stated:
It is a general rule that evidence of collateral offenses,
though similar in character, are [sic] inadmissible in a criminal prosecution
to establish a specific crime.
{41} The court reasoned that
because of the emotional persuasiveness of evidence involving sex offenses and
young children, the evidence of similar but distinct offenses with or upon
other children should ordinarily be excluded. Such evidence may properly be
received if it is relevant, and if it possesses probative value as to a
material element of the crime charged, which is in issue, and upon which there
is doubt, such as identity, intent or knowledge.
{42} There is no dispute in
this case as to identity.
See State v. Allen,
91 N.M. 759,
581 P.2d 22
(Ct. App.),
cert.
denied, 91 N.M. 751, 580 P.2d 972 (1978). Nor
is there an issue concerning intent, mistake or accident. This is not a case
where a touching has occurred, and defendant argues that he did not intend it
to be a sexual type of touching. Nor is there any issue as to
{*592} proof of motive, opportunity,
preparation or plan. Thus, none of the exceptions under Rule 404(b) apply.
{43} We determine that the
introduction of extrinsic evidence of crimes not charged violated New Mexico
Rules of Evidence and New Mexico case law. Because we are unable to state that
the improper admission of evidence did not contribute to the conviction, we
cannot state that the error was harmless. In sum, we affirm the trial court on
issues one, two and three; we must reverse on issue four, and remand for a new
trial.
WE CONCUR: WILLIAM W. BIVINS, Judge and PAMELA B. MINZNER,
Judge