STATE V. GARDNER, 2003-NMCA-107, 134
N.M. 294, 76 P.3d 47
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JAMES GARDNER, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2003-NMCA-107, 134 N.M. 294, 76 P.3d 47
APPEAL FROM THE DISTRICT COURT OF LEA
COUNTY, Don Maddox, District Judge.
Certiorari denied, No. 28,158, August
14, 2003. Released for Publication September 2, 2003.
Patricia A. Madrid, Attorney General, Max
Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.
James W. Klipstine, Jr., James W.
Klipstine, Jr., L.L.C., Hobbs, NM, for Appellant.
CYNTHIA A. FRY, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, MICHAEL D. BUSTAMANTE, Judge.
{1} Defendant James Gardner
appeals his conviction, after a jury trial, of four counts of criminal sexual
contact of a minor (CSCM) in the third degree.
See NMSA 1978, §
30-9-13
(2001). His challenge to the trial court's judgment and sentence raises five
issues: (1) whether the trial court should have granted a mistrial based on an
alleged comment by a member of the venire, (2) whether the State's questioning
in voir dire denied Defendant a fair and impartial jury, (3) whether the trial
court properly instructed the jury on the elements of CSCM, (4) whether
substantial evidence supported Defendant's convictions, and (5) whether the
sentencing proceedings violated Defendant's due process rights. For the
following reasons, we affirm.
{2} At the time of the
alleged incidents, Defendant worked as an assistant principal in Hobbs, New
Mexico. He had regular contact with students, and he often hugged them. Five
female students claimed that Defendant had touched their breasts while hugging
them. Specifically, they reported that Defendant had hugged them from the side,
while standing next to them, and that when doing so he put his arm around their
backs and under their arms so that his hand rested on or cupped their breasts.
A sixth female student claimed that Defendant had touched her buttocks while
she stood on a chair working on a bulletin board. Following an investigation
into these allegations, the State charged Defendant with six counts of CSCM. A
jury convicted Defendant of four counts and found him not guilty of two counts.
The trial court sentenced Defendant to three years on each of the four counts,
to run concurrently, followed by two years on parole.
I. Denial of Defendant's Motions for Mistrial
{3} Defendant contends that
bias exhibited by Juror 18, who was excused from jury service and replaced with
an alternate during the trial, tainted the entire jury. According to Defendant,
therefore, the trial court erred in denying his motions for a mistrial. The
State counters that, even if Juror 18 displayed bias, there is no evidence that
her bias had any prejudicial effect on other jurors. In addition, the State
contends that if there had been prejudice, the appropriate remedy was for
Defendant to request a curative voir dire or an admonition to disregard.
"We review a trial court's denial of a motion for mistrial under an abuse
of discretion standard."
State v. Gonzales,
2000-NMSC-028, ¶ 35,
129 N.M. 556,
11 P.3d 131.
{4} The alleged biased
statement or statements by Juror 18 occurred during voir dire. Defendant's
arguments on this issue require some context about the particular voir dire
process employed by the trial court. On Defendant's motions, the trial court
allowed supplemental jury questionnaires and individualized voir dire. During
the individualized voir dire, the majority of the potential jurors remained
seated in the courtroom. The trial judge and counsel for both parties then
adjourned to the judge's chambers. The bailiff facilitated the selection
process by seating groups of four to five potential jurors on a bench in the
hallway outside the judge's chambers. Each juror was individually interviewed
in chambers. Afterwards, on the return trip to the courtroom, each juror went
back through the hallway, passing the subgroup of jurors waiting for their
individual interviews. As a potential juror went into chambers for voir dire, a
new potential juror from the courtroom was added to the group in the hallway.
In this manner, voir dire took place for about a day and a half. The trial
began in the afternoon after the completion of jury selection. During the first
afternoon of trial, the State gave its opening statement and presented the
testimony of five witnesses.
{5} The following morning,
prior to resuming in-court proceedings, the trial judge called the case in
chambers before counsel only. The judge informed counsel that Juror 22, who had
not been selected for the jury, had approached him outside of the courtroom
regarding a comment made by Juror 18, who had been selected to serve. The trial
judge investigated the matter further by calling in Juror 22 and questioning
her under oath. Juror 22 testified that when Juror 18 walked through the
hallway after being questioned in chambers, she said "He's guilty, oh, but
not really," or something similar, and also made a motion like cutting her
throat. Juror 22 further testified that she did not think much of the statement
at the time, but that when she subsequently heard that Juror 18 had been
selected, she thought it was important to convey the overheard comment to the
trial court. Regarding the other jurors who also might have overheard the
comment, Juror 22 stated that in the hallway with her were a man who feeds
cows, a girl named Linda (probably Juror 15), and a juror she identified by
name (Juror 19).
{6} After the trial judge
excused Juror 22, the State suggested calling in Juror 18 for questioning,
while Defendant moved for a mistrial on the basis that there was too much risk
of a tainted jury. The trial court took the motion under advisement and then
proceeded with in-chambers questioning of Juror 18, who denied making the
comment in the hallway. However, she admitted making a "teasing"
comment in the courtroom along the lines of "I should just tell them just
to hang him high." She implied that this comment was in the context of
joking about intentionally trying to be disqualified. Defendant renewed his
motion for a mistrial, arguing that the interview revealed an additional
prejudicial comment. The trial court excused Juror 18 from service, but
declined to grant a mistrial, noting the lack of evidence of bias on the part
of the remaining jurors.
{7} The trial court did,
however, ask both parties whether they wanted the court to communicate with the
jury, in the courtroom, regarding the excusal of Juror 18. Neither side wanted
the trial court to mention the excusal. Defendant specifically stated that,
although he did not wish to "waive any objection," talking to the
jury "could make things worse." Thus Defendant made an express strategic
decision to forego any further explanation to the jury.
{8} The parties subsequently
called in the bailiff to supplement the record regarding which jurors were in
the hallway when Juror 18 left her individual voir dire interview. His
testimony was inconclusive and there is ultimately no certainty about which
jurors were actually in the hallway and possibly overheard Juror 18's remark.
Moreover, based on the in-chambers testimony of Juror 18 herself, the
possibility remains that she made the "hang him high" comment while
in the courtroom. Although Defendant's brief does not particularly focus on
this comment, we consider the possibility that the courtroom comment forms the
basis for Defendant's argument on appeal.
{9} In conducting its inquiry
into possible bias, the trial court heard and assessed the testimony about both
the courtroom and the hallway comments. In addition, the trial court heard
testimony from Juror 18 that she harbored no bias toward Defendant. The trial
court dismissed her nonetheless. The trial court then determined that, whatever
might have been said, there was no evidence that comments by Juror 18 had
prejudiced the remaining jurors. We conclude that the trial court did not abuse
its discretion.
{10} As Defendant points out,
a lone biased juror undermines the impartiality of an entire jury.
State v.
McFall,
67 N.M. 260, 263,
354 P.2d 547, 549 (1960). Defendant fails to
persuade us, however, that the trial court erred in finding a lack of bias on
his jury. Defendant's speculative argument primarily relies on cases in which
extraneous information reached the jury, which creates a presumption of
prejudice.
State v. Sacoman,
107 N.M. 588, 591,
762 P.2d 250, 253 (1988)
(stating that extraneous information improperly considered during deliberations
creates a presumption of prejudice) (disapproved of on other grounds by
State
v. Mann,
2002-NMSC-001, ¶ 24,
131 N.M. 459,
39 P.3d 124);
State v.
Pettigrew,
116 N.M. 135, 140,
860 P.2d 777, 782 (recognizing that
presumption of prejudice was triggered by juror's unauthorized contact with
intern);
State v. Perea,
95 N.M. 777, 778-79,
626 P.2d 851, 852-53 (Ct.
App. 1981) (finding irreparable jury contamination where juror brought into
jury room prejudicial newspaper article about the defendant's guilt, bailiff
discussed article with jury, and juror then wrote note asking court not to
grant mistrial based on newspaper incident). In contrast to the cases cited by
Defendant, however, here there are no allegations that the jury was subjected
to "outside mischiefs."
Cf. id. at 778, 626 P.2d at
852.
See also Mann,
2002-NMSC-001, ¶¶ 20-25 (explaining
distinctions between jury tampering, jury misconduct, and jury bias);
Goodloe
v. Bookout,
1999-NMCA-061, ¶ 22,
127 N.M. 327,
980 P.2d 652 (recognizing
the distinction between inappropriate communications within jury and influences
from outside the jury, which are more serious).
{11} We also decline to adopt
the reasoning suggested by the State, which relies on inapplicable cases in
which jurors or witnesses made potentially prejudicial comments in open court.
See,
e.g.,
State v. Barragan,
2001-NMCA-086, ¶ 35,
131 N.M. 281,
34 P.3d
1157 (finding no abuse of discretion where trial court refused to grant
mistrial because of unexpected and unsolicited witness testimony);
State v.
Price,
104 N.M. 703, 707-08,
726 P.2d 857, 861-62 (affirming trial court's
refusal to grant mistrial because of improper outburst by juror);
State v.
Sanders, 750 N.E.2d 90, 103-04 (Ohio 2001) (examining the effects of a
potential juror's statement that the defendant resembled Louis Farrakhan where
statement occurred during voir dire in open court). Here the alleged comments
were not made in open court where they could have been remedied in front of the
entire jury with an objection by defense counsel and an admonition to disregard
by the trial court judge.
{12} Defendant alleges juror
bias, which is distinct from jury tampering or jury misconduct.
Mann,
2002-NMSC-001, ¶ 20. His claim has merit if the alleged comments by Juror 18
"unfairly affected the jury's deliberative process and resulted in an
unfair jury."
Id. Assuming, as Defendant argues, that the comments
by Juror 18 reflected bias on her part, her personal bias did not infect
deliberations because the trial court excused her from service and replaced her
with an alternate, which is the appropriate remedy when a juror exhibits
apparent bias.
State v. Hovey,
106 N.M. 300, 304,
742 P.2d 512, 516
(1987). Thus we are left with the possibility that a potential juror or jurors,
either in the hallway or in the courtroom, heard a comment by Juror 18 in which
she expressed an opinion that Defendant was guilty. If this happened, it
occurred prior to the jury's oath to arrive at a verdict according to the
evidence and the law contained in the instructions of the court, and prior to
the presentation of evidence. Consequently, to find actual bias among the
jurors, we must further speculate that a juror who overheard a comment was
actually selected for jury service and then, in the course of service, disregarded
the trial court's instructions.
See State v. Case,
100 N.M. 714,
720,
676 P.2d 241, 247 (1984) (relying on "presumption that the jury
obeyed its instructions"). Only this attenuated and unproven chain of
events could have resulted in the bias alleged by Defendant. Consequently, we
find no abuse of discretion in the trial court's finding a lack of evidence
that other jurors were affected by a comment or comments by Juror 18.
See
State v. Rackley,
2000-NMCA-027, ¶ 11,
128 N.M. 761,
998 P.2d 1212 (explaining
that inquiry into potential jury bias focuses on "presence or absence of
evidence demonstrating that [jury was] unwilling or unable to decide the case
based on the evidence"). Given the speculative nature of the alleged bias,
the trial court's finding was not "against the logic and effect of the
facts and circumstances before the court,"
Pettigrew, 116 N.M. at
140, 860 P.2d at 782 (internal quotation marks and citation omitted), and the
trial court did not abuse its discretion.
{13} Moreover, if Defendant
disagreed with the results of the trial court's inquiry, Defendant could have
proceeded with additional voir dire of the remaining jurors, an appropriate
next step if further investigation was needed.
See Goodloe,
1999-NMCA-061, ¶ 23 (stating that where court learns of premature jury
deliberations, "it should conduct an inquiry to determine whether the
fairness of the trial has been threatened and then take appropriate
measures"). Defendant rejected the trial court's offer to conduct additional
voir dire. Because he declined the additional remedy offered at trial, he
cannot now obtain relief in the form of a new trial.
See State v.
Sanchez,
120 N.M. 247, 251,
901 P.2d 178, 182 (1995) ("[B]y failing to
question the juror during voir dire, Appellants waived any objection to the
juror's participation in the trial.").
II. The Trial Court's Excusal of Jurors for Cause
{14} Defendant alleges error
in the trial court's granting of the State's challenges for cause. Defendant
contends the trial court excused at least seven jurors because of their answers
to particular questions and that as a result, he was deprived of a fair and
impartial jury.
{15} During individualized
voir dire, the State asked the jurors whether, in assessing witness
credibility, they would believe an adult over a teenager; whether they would
require physical evidence to convict a defendant of criminal sexual activity;
whether they would require more than just testimony to convict; and whether
they would need more than the uncorroborated testimony of the victim to
convict. Defendant contends that an affirmative answer to any of these
questions resulted in excusal for cause on the State's motion, regardless of the
jurors' statements that they would follow court instructions and be fair. In
Defendant's view, this amounted to "pre- qualifying a jury to decide the
case on the very selective scenario proposed by the State."
{16} We review rulings on
challenges for cause under an abuse of discretion standard.
State v. Baca,
111 N.M. 270, 274,
804 P.2d 1089, 1093 . The trial court properly excludes a
juror for cause where the juror's views would "prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions and his oath."
State v. Sutphin,
107 N.M. 126, 129,
753 P.2d 1314, 1317 (1988) (internal quotation marks and citation omitted). We
commit this inquiry to the discretion of the trial court because the trial
judge can best assess a potential juror's state of mind.
Id. In this
case, Defendant does not argue that the trial court failed to excuse jurors for
cause, but raises the somewhat different question of whether certain jurors
should not have been excused.
See, e.g.,
State v. Jim,
107
N.M. 779, 782-83,
765 P.2d 195, 198-99 (Ct. App. 1988) (holding that trial
court did not abuse its discretion in excusing a juror for cause). Thus, the
larger question he raises is whether the remaining jurors were competent and
unbiased in accordance with his right to an impartial jury.
See McFall,
67 N.M. at 263, 354 P.2d at 548-49 (explaining that an accused is guaranteed
trial by a jury composed of members who are "totally free from any
partiality whatsoever"). Defendant cannot prevail on appeal unless he
demonstrates that the jurors finally selected were biased or prejudiced.
See
State v. Smith,
76 N.M. 477, 479,
416 P.2d 146, 148 (1966).
{17} Assuming that the trial
court excused the jurors based solely on their affirmative answers to these
questions, we do not believe the trial court's decisions were "clearly
untenable or not justified by reason."
See State v. Rojo,
1999-NMSC-001, ¶ 41,
126 N.M. 438,
971 P.2d 829 (internal quotation marks and
citations omitted). As for the overarching question of whether the trial court
ensured Defendant an impartial jury, Defendant fails to establish prejudice. He
does not direct us to anything in the record suggesting that the jurors
ultimately impaneled were biased or motivated by partiality. "Defendant
has a legal right only to impartial jurors, not to the impartial jurors of his
choice."
Jim, 107 N.M. at 783, 765 P.2d at 199. Accordingly, we
find no abuse of discretion in the trial court's excusal of certain jurors for
cause.
III. Jury Instructions on the Elements of Criminal Sexual
Contact of a Minor
{18} To instruct the jury on
the elements of CSCM, the trial court utilized instructions that were
consistent with both the uniform jury instructions and case law. UJI
14-926
NMRA 2003;
State v. Osborne 111 N.M. 654, 658,
808 P.2d 624, 628 (1991).
Defendant argues, however, that the instructions did not contain the correct
legal standard with respect to the statutory elements of coercion and
unlawfulness, for which he tendered additional jury instructions that the trial
court rejected. In addition, Defendant objects to the wide periods of time
covered by several of the counts, claiming that the instructions permitted the
jury to find him guilty of a course of conduct rather than specific criminal
acts.
{19} "The propriety of
jury instructions given or denied is a mixed question of law and fact. Mixed
questions of law and fact are reviewed de novo."
State v. Salazar,
1997-NMSC-044, ¶ 49,
123 N.M. 778,
945 P.2d 996. For the reasons that follow,
we find that the trial court correctly instructed the jury on the essential
elements of the crime, and that the instructions were not confusing to a
reasonable juror.
See State v. Benally,
2001-NMSC-033, ¶ 12,
131
N.M. 258,
34 P.3d 1134 (explaining that jury instructions are reviewed to
determine "whether a reasonable juror would have been confused or
misdirected") (internal quotation marks and citations omitted)).
Additionally, we find that the time periods used in the jury instructions did
not violate Defendant's rights under the multi-factor test set out in
State
v. Baldonado,
1998-NMCA-040, ¶¶ 26-28,
124 N.M. 745,
955 P.2d 214.
{20} The trial court
convicted Defendant of four counts of CSCM under Section 30-9-13, the relevant
sections of which follow:
A. Criminal sexual
contact of a minor in the third degree consists of all criminal sexual contact
of a minor perpetrated:
(2) on a child thirteen to eighteen
years of age when:
(a) the perpetrator is in a position
of authority over the child and uses this authority to coerce the child to
submit; . . .
To instruct the jury on the elements of this crime, the trial
court relied on UJI 14-926:
For you to find the
defendant guilty of criminal sexual contact of a minor by use of coercion by a
person in a position of authority as charged in Count [number], the state must
prove to your satisfaction beyond a reasonable doubt each of the following
elements of the crime:
1. The
defendant touched or applied force to the breasts [or buttocks] of [victim];
2. The
defendant was a person who by reason of his relationship to [victim] was able
to exercise undue influence over [victim] and used this authority to coerce her
to submit to sexual contact;
3. [victim]
was at least 13 but less than 18 years old;
4. This
happened in New Mexico on or about the [date] day of [date].
{21} On the issue of
coercion, defined in item 2 of the instruction, Defendant tendered additional
jury instructions that the trial court rejected. Specifically, Defendant
requested an instruction that "[t]he fact the Defendant was in a position
of authority does not alone establish that he used that authority to coerce
sexual contact." On appeal, he contends that the statute requires that a
defendant "must occupy a position which enables him to exercise undue
influence
and that influence must be used to compel the victim to
submit." He claims that he did not coerce the contact because he never
approached the victims or directed them to do anything. While he acknowledges
that the evidence supports the inference that he "inappropriately touched
the students when circumstances permitting it arose," he argues that the
evidence "does not support the necessary element of use of authority to coerce."
{22} We are not persuaded.
Coercion for the purposes of CSCM occurs when a defendant occupies "a
position which enables that person to exercise undue influence over the victim
and that influence must be the means of compelling submission to the contact. .
. . [S]uch coercion might take many forms but is less overtly threatening than
physical force or threats." UJI 14-926, Comm. Commentary;
see also State
v. Gillette,
102 N.M. 695, 702,
699 P.2d 626, 633 ("Submission to the
request of an authority figure is coerced if it is achieved through undue
influence.");
cf. NMSA 1978, §
30-9-10 (2001) (defining coercion in
other statutory contexts). Undue influence results from "moral, social, or
domestic force exerted upon a party, so as to control the free action of his [or
her] will."
Gillette, 102 N.M. at 702, 699 P.2d at 629 (internal
quotation marks and citation omitted). The instruction given was in the
conjunctive, requiring the jury to find that Defendant "was able to
exercise undue influence over [each victim]
and used this authority to
coerce [the victim] to submit to sexual contact." (Emphasis added.)
Accordingly, the instruction reflected the law regarding the coercion element
of third-degree CSCM, while Defendant's tendered instruction did not.
{23} The trial court also
gave the jury the following instruction defining the unlawfulness element of
CSCM, as required by
Osborne, 111 N.M. at 660-61, 808 P.2d at 630-31:
In addition to the other
elements of Criminal Sexual Contact of a Minor, the State must prove beyond a
reasonable doubt that the behavior was unlawful. For the behavior to have been
unlawful it must have been done in a manner calculated to arouse or gratify
sexual desire, or otherwise to intrude upon the bodily integrity or personal
safety of [the victim]. Criminal Sexual Contact of a Minor does not include a
touching for purposes of [reasonable medical treatment or] nonabusive [parental
or] custodial child care.
Defendant claims that, because he did not seek contact with
the victims, there was no evidence that he "intrude[d] upon the bodily
integrity or personal safety" of the victims; therefore, he contends that
this alternative definition of unlawfulness should have been left out of the
instruction. Thus, he argues that the trial court should have instructed the
jury that his behavior was unlawful only if the touching was for "personal
gratification." He maintains that the instruction permitted the jury
"to consider legal elements which were simply not at issue."
Defendant further argues, as he did throughout the trial, that any actual,
inappropriate contact with the victims was inadvertent and, therefore, without
unlawful intent. According to Defendant, the unlawfulness instruction wrongly
allowed the jury to assume that the State did not have to prove beyond a
reasonable doubt that he touched the victims "deliberately and
intentionally for some personal gratification."
{24} Again, we are not
persuaded. A defendant who unlawfully and intentionally touches an intimate
part of a minor's body is guilty of criminal sexual contact of a minor,
regardless of whether the defendant was motivated by a desire to obtain sexual
gratification or by some other desire.
State v. Pierce,
110 N.M. 76, 83,
792 P.2d 408, 415 (1990). The statute protects the bodily integrity and
personal safety of minors in relation to persons in positions of authority and
trust.
Id. at 80, 792 P.2d at 412. The evidence at trial, that Defendant
touched the breasts and buttocks of the victims, reasonably gave rise to the
inference that Defendant either sought sexual arousal or that he meant to
violate the victims' bodily integrity.
{25} Furthermore, the trial
court defined for the jury what the State had to prove in order to establish
that Defendant acted intentionally:
In addition to the other
elements of Criminal Sexual Contact of a Minor, the State must prove to your
satisfaction beyond a reasonable doubt that the defendant acted intentionally
when he committed the crime. A person acts intentionally when he purposely does
an act which the law declares to be a crime, even though he may not know that
his act is unlawful. Whether the defendant acted intentionally may be inferred
from all of the surrounding circumstances, such as the manner in which he acts,
the means used, his conduct and any statements made by him.
UJI 14-141 NMRA 2003 (defining general intent). This jury
instruction on intent, together with the other instructions given, correctly
"require[d] the state to prove, as an essential element of the offense,
that the touching was done intentionally." Osborne, 111 N.M. at
659, 808 P.2d at 628.
{26} In his final attack on
the jury instructions, Defendant contends that the lengthy time periods in
several of the instructions permitted the jury to convict him of a course of
conduct rather than specific crimes. For example, with respect to one victim,
the instruction stated that the contact had occurred "on or between the
1st day of October, 1997 and the 30th day of June 1999." Defendant's
contention thus invokes the due process consideration that the accused is
entitled to notice of specific crimes in order to prepare a defense.
Baldonado,
1998-NMCA-040, ¶ 21. With respect to his defense preparations, Defendant
asserts he was prejudiced "by being denied the ability to potentially
bring in witnesses to support his position that the specific act did not meet
the elements of the crime." Defendant further argues that the instructions
allowed individual jurors to consider multiple offenses within one count, and
that consequently "the jury was not required to be unanimously convinced
beyond a reasonable doubt that [Defendant] committed a specific act." For
the following reasons, we find no error with respect to the time periods used
in the jury instructions.
{27} Whether a time frame
used to charge and prosecute a defendant complies with the constitutional
requirement of reasonable specificity depends on two factors: (1) whether the
State could have been more specific, and (2) if so, whether the State's failure
to be more specific prejudiced the defendant.
Id. ¶ 29. The time frames
at issue here ranged from one month to twenty-one months. We analyze whether
the State could have been more specific by considering the factors in
Baldonado
in order to balance the needs of the State with the rights of Defendant.
Id.
¶ 27.
{28} In this case, factors
relevant to our analysis include the age and intelligence of the victims;
whether the victims alleged a continuing course of conduct as opposed to
isolated events; and the nature of the offenses, including whether they were
likely to occur at a specific time.
Id. The victims were minors at the
time of the events, although, as Defendant states, they were high school
students, not young children who may have difficulty particularizing dates and
times. Thus, the age and intelligence of the victims is not a factor that
particularly supports the State's use of lengthy charging periods. Of much
greater significance to our analysis is that two of the convictions resulted
from allegations that clearly described a continuing course of conduct under
circumstances where Defendant, in his role as assistant principal, had frequent
but unpredictable access to the students such that the alleged contact occurred
continuously and randomly, not at specific times. Accordingly, we conclude that
the instructions pertaining to these two victims each properly charged one
count for a pattern of conduct.
See State v. Altgilbers,
109 N.M.
453, 465,
786 P.2d 680, 692 (explaining that prosecution may reasonably charge
one count for multiple acts). Not all of the allegations, however, qualify as
continuing courses of conduct. Two of the victims each alleged a single
incident of improper contact but apparently did not identify precise dates for
the State. One of these incidents resulted in a one-month time frame, and the
other resulted in a five-month window corresponding to the school semester in
which the incident occurred. These shorter time frames used indicate that,
where possible, the State worked with the victims in an attempt to pinpoint the
time of the alleged abuse.
Cf. Baldonado,
1998-NMCA-040, ¶ 31
(expressing concern with indications that prosecution did nothing to attempt to
shorten the charging period where possible).
{29} More important, assuming
for the purpose of argument that the State could have been more specific, we
find no indication of prejudice to Defendant. Many of the alleged incidents of
CSCM were hidden under the victim's arm. It is unlikely that there were
witnesses to the contact. Many of the events occurred when the victims were
alone with Defendant, for example, in his office or in an unoccupied classroom.
Additionally, Defendant does not deny that he touched the students, but instead
claims that his contact did not amount to CSCM. Defendant's theory left the jury
with the task of assessing the credibility of the victims and the credibility
of Defendant, and then reaching a conclusion about the nature of the contact
that occurred. In this context, it is unclear how testimony from the potential,
unidentified witnesses would have affected the jury's assessment of Defendant's
credibility and that of his victims. Defendant presents only speculative
arguments about prejudice to his defense. In the absence of actual prejudice,
we find no error in the time frames used by the State.
See State v.
Ervin,
2002-NMCA-012, ¶ 17,
131 N.M. 640,
41 P.3d 908 (stating that without
actual prejudice to the defendant resulting from the prosecution's charging
time frame, there is no reversible error).
{30} Finally, we address
Defendant's related claim that the instructions permitted a non- unanimous
verdict because the jurors did not all have to agree that he committed a single
act to return guilty verdicts on the forms with the lengthy time spans. This
argument pertains only to the verdicts with respect to victims J.H. and A.G.
because the other two guilty verdicts, pertaining to victims D.G. and L.M.,
stemmed from allegations of a single incident of CSCM, and thus a non-unanimous
verdict was not possible on those two counts. Defendant's argument is not
persuasive because Defendant does not argue that contact with the students
never occurred. Rather, Defendant argues that his contact with the victims was
inadvertent, lawful, or not coerced. Under these circumstances, "with
respect to a conviction on any count, there would have been no rational basis
for some jurors to predicate guilt on one act while other jurors predicated
guilt on a different act."
Altgilbers, 109 N.M. at 469, 786 P.2d at
696. Moreover, Defendant points to nothing in the record suggesting that the
verdicts were not unanimous. In the complete absence of such indications, we
decline to speculate that the verdicts lacked unanimity.
See State v.
Dobbs,
100 N.M. 60, 70-71,
665 P.2d 1151, 1161-62 .
{31} Defendant argues there
was insufficient evidence that he used his position of authority to coerce the
victims. According to Defendant, even viewing the evidence in the light most
favorable to the verdict, the most that the evidence supports is that "he took
advantage of an opportunity" and "he did not force the contact."
Defendant emphasizes that, for the most part, the victims never alleged that he
"sought them out" and never complained about his "method of
hugging." Insofar as Defendant claims that coercion requires
"affirmative forceful acts," this argument is quite similar to his
erroneous contention, addressed above, that the jury instructions did not
correctly reflect the coercion element of CSCM. The State responds that the
element of coercion can be proven inferentially, and that here there was
sufficient evidence for a reasonable mind to conclude that Defendant used his
position of authority to coerce his victims.
{32} We review a claim of
insufficient evidence to determine "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) (citation omitted). In conducting this review, we resolve all conflicts
and indulge all permissible inferences to uphold the conviction, and disregard
all evidence and inferences to the contrary.
Rojo,
1999-NMSC-001, ¶ 19.
Applying this standard to the evidence supporting the coercion element of
Defendant's CSCM convictions, we find no error.
{33} The testimony of the
victims themselves provided the basis for all four convictions. The record
reflects that all four victims provided testimony sufficient for a reasonable
mind to conclude that the unlawful contact was at least in part a result of
Defendant's position of authority.
See State v. Trevino,
113 N.M.
804, 807,
833 P.2d 1170, 1173 (holding that sufficient connection between
employment and sexual contact permitted jury to infer coercion by employer).
{34} Victim D.G. testified
that, at her mother's suggestion, she went to discuss a school problem with
Defendant. After they talked, he told her he would take care of the problem and
then gave her a hug in such a way that he touched her breast.
{35} Victim L.M. testified
that as she stood on a chair working on a bulletin board, Defendant approached
her and they began a conversation. As she started to get down from the chair to
continue talking with him, Defendant put his hand on her lower back, and then
her hip, and then slid his hand down to her left buttock and kept his hand
there as he talked with her until she moved away from him. L.M. further testified
that as the conversation ended Defendant hugged her and intentionally dragged
his hand across her buttocks. She stated that she did not tell anyone about the
incident at the time because she thought that no one would believe her.
{36} Victim J.H. testified
that Defendant repeatedly hugged her in a way that allowed him to touch the
side of her breast. She did not tell anyone because everyone loved Defendant
and she feared she would not be believed. She stated that she trusted Defendant
as a friend and went to him for help with her problems, that he excused her
absences, and that he wanted to help her stay in school. Because of his
inappropriate touching of her body, she stopped trusting him.
{37} Victim A.G. testified
that Defendant repeatedly slipped his hand under her arm and cupped her breast,
almost touching her nipple. At first she did not tell anyone because she was
not sure that Defendant's touching was intentional, but it happened so often
that eventually she realized it must be intentional. A.G. stated that Defendant
touched her breasts more times than she could remember. A.G. testified that she
did not tell anyone because she knew it happened to others and they did not
tell.
{38} This evidence supports
the inference that Defendant used his position of authority to gain the trust
of the victims, to obtain the opportunity to touch the victims, and to cause
them to submit to his unlawful touching. Defendant argues that there was no
coercion because "there is no indication the sexual contact was forced."
However, in the context of CSCM, the law does not define coercion in the terms
used by Defendant. The testimony permitted the jury to reasonably infer a
connection between Defendant's position of authority and his sexual contact
with the victims, which is sufficient to infer the existence of coercion.
See
id. at 807, 833 P.2d at 1173 (holding that circumstances evidencing a
defendant's authority over a minor victim inferentially support a finding of
coercion). Accordingly, substantial evidence supports the element of coercion
as required to support Defendant's convictions.
V. Defendant's Due Process Rights During Sentencing
{39} Defendant argues that
the trial court violated his due process rights at the sentencing hearing in
which it considered the existence of mitigating or aggravating circumstances.
According to Defendant, the procedure exceeded the bounds of NMSA 1978, §
31-18-15.1 (1993), because some of the State's witnesses made allegations of
previous improper sexual conduct by Defendant for which he was never charged or
convicted. Defendant characterizes the events described by the witnesses as
"unsubstantiated in any way." Although he concedes that the State did
not seek an increase to the basic sentence for a third-degree felony, he urges
nevertheless that the testimony at sentencing amounted to an attempt by the
State to present aggravating circumstances without providing advance notice as
required by due process. "We review the trial court's sentencing for an
abuse of discretion."
State v. Jensen,
1998-NMCA-034, ¶ 19,
124
N.M. 726,
955 P.2d 195.
{40} At sentencing, Defendant
called four witnesses to testify on his behalf. On appeal, Defendant states
that these witnesses "were subjected to cross examination by the
State," although it appears the State chose not to cross-examine any of
the four witnesses. Defendant also made a brief personal statement on his own
behalf. The State then presented testimony from seven witnesses. One of the
witnesses, who was a victim of the crimes adjudicated at this trial, made a
statement regarding the actions for which Defendant was convicted; three of the
witnesses stated that in the past Defendant had victimized them, too, although
Defendant was never convicted of the alleged actions; three of the witnesses were
parents who stated that their daughters had been victimized by Defendant,
although again, Defendant was not necessarily charged or convicted of the
alleged improper conduct with their daughters. The record reflects, contrary to
Defendant's contention, that the trial court placed the seven witnesses under
oath prior to their testimony. Defendant correctly notes, however, that each of
the seven witnesses made a statement, rather than testifying by way of direct
examination, and also that subsequent to the statements defense counsel did not
have the opportunity to cross-examine the witnesses.
{41} After the State's
witnesses testified, the trial court made a brief statement indicating that it
had considered all of the evidence presented at trial, as well as the
mitigating circumstances presented by Defendant at sentencing, including his
"prior service and reputation, [and] his activities in schools and
churches." Then the trial court sentenced Defendant to the basic sentence
of three years for a third-degree felony,
see NMSA 1978, §
31-18-15(A)(5) (1999), with the sentences for the four counts to run
concurrently followed by two years of parole.
{42} Defendant insists that
this process was erroneous because he was entitled to advance notice that the
State would seek "to present aggravating circumstances to convince the
Court to imprison [Defendant]." We find this argument unpersuasive because
there is nothing in the record suggesting that Defendant was prejudiced by the
procedure employed. The trial court did not indicate that it considered the
testimony given at the sentencing hearing by the State's witnesses in imposing
sentence. In addition, the State sought the basic sentence and Defendant
received the basic sentence. Regardless of what mitigating evidence Defendant
presented, the statutory scheme does not require the trial court to depart from
the basic sentence.
State v. Cumpton,
2000-NMCA-033, ¶ 12,
129 N.M. 47,
1 P.3d 429. Moreover, because the trial court did not alter the basic sentence
upward or downward as permitted by Section 31-18-15.1, there is no need to
consider whether this case invokes the due process concerns addressed by the
U.S. Supreme Court in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and
analyzed by this Court in
State v. Wilson,
2001-NMCA-032,
130 N.M. 319,
24 P.3d 351.
{43} This is not to say that
there could never be an outside limit on the trial court's broad statutory
authority to consider at sentencing "whatever evidence or statements it
deems will aid it in reaching a decision." § 31-18-15.1(A);
see also
Wilson,
2001-NMCA-032, ¶ 25 ("[O]ur case law allows the court
discretion to consider almost any relevant factor or evidence in determining
the appropriate sentence."). Where the trial court relies on certain
information that, in turn, affects a defendant's sentence, then due process may
require advance notice to the defendant so that the defendant has the
opportunity to challenge the accuracy of the information.
See State
v. Montoya,
91 N.M. 425, 427,
575 P.2d 609, 611 (finding no error in the
trial court's consideration of a presentence report that included arrests not
resulting in convictions, but implying that error might exist if the trial
court considered inaccurate information or information that the defendant had
no opportunity to explain).
See also State v. Lack,
98 N.M. 500,
507,
650 P.2d 22, 29 (holding that when trial court orders restitution at
sentencing pursuant to statute, the defendant is entitled to notice of the
amount claimed and the opportunity to dispute the amount). In this case,
however, there is no indication that the trial court relied upon the testimony
of the State's witnesses in deciding to impose the basic sentence rather than,
for example, suspending one-third of the basic sentence as permitted under Section
31-18-15.1(C).
Cf. Denson v. State of Nevada, 915 P.2d 284, 287
(Nev. 1996) (finding error where the trial judge's remarks at sentencing
indicated an intent to punish for uncharged crimes). The trial court's
statement at sentencing reflects that the sentence resulted from the evidence
presented at trial. We cannot find an abuse of discretion in the imposition of
a basic sentence that was grounded in the evidence.
{44} For the foregoing
reasons, we affirm Defendant's convictions.
MICHAEL D. BUSTAMANTE, Judge