STATE V. GONZALES-FEGUEREDO
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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ALEXIS GONZALES-FEGUEREDO,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Kenneth H. Martinez, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, Francine A. Baca-Chavez, Assistant Attorney General, Albuquerque, NM, for
Appellee
Bennett J. Baur, Acting Chief Public
Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM,
for Appellant
TIMOTHY L. GARCIA, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, MICHAEL E. VIGIL, Judge
AUTHOR: TIMOTHY L. GARCIA
{1} Defendant appeals
from his conviction for criminal sexual penetration in the second degree,
contrary to NMSA 1978, Section
30-9-11(D) (2003, amended 2009). On appeal,
Defendant argues that the district court erred in: (1) excluding evidence of
Victim’s prior sexual history; (2) denying his request for a mistake of fact
jury instruction regarding Defendant’s knowledge of Victim’s age; (3) refusing
to grant a mistrial, or alternatively, to allow rebuttal testimony regarding a
prior bad act of Victim; (4) admitting evidence of Victim’s pregnancy; and (5)
denying his motion for directed verdict. Defendant further alleges that he
received ineffective assistance of counsel. We affirm.
{2} On May 25, 2007,
Victim spent the night at her Aunt’s house. Defendant, the long-time boyfriend
of Victim’s Aunt, also spent the night. During the night, Defendant went into
the living room where Victim was sleeping, pulled off her pants, placed his
hand over her mouth, and proceeded to penetrate her vaginally. At the time,
Victim was sixteen years old, and Defendant was approximately forty. Following
trial, a jury convicted Defendant of criminal sexual penetration of a minor
between the ages of thirteen and eighteen, a second degree felony offense.
Defendant timely appealed his conviction to this Court. Because this is a
memorandum opinion and because the parties are familiar with the factual and
procedural background in this case, we will include any further factual
information in each issue as it is discussed.
{3} Defendant appeals
several of the district court’s evidentiary rulings. “We review the admission
of evidence under an abuse of discretion standard and will not reverse in the
absence of a clear abuse.”
State v. Sarracino,
1998-NMSC-022, ¶ 20,
125
N.M. 511,
964 P.2d 72. “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).
A. Victim’s
Prior Sexual Conduct
{4} We first address
Defendant’s argument that the district court erred in denying his Rule
11-413
NMRA (2010) (current version at Rule
11-412 NMRA (2012)) motion to present
evidence that Victim had a history of sneaking out of her house at night to
engage in sexual activity with older men. The district court ruled that the
requested prior sexual conduct evidence was not relevant and was inadmissible.
Defendant contends that the proposed evidence was relevant to establish
Victim’s motive to fabricate rape in order to hide her sexual activity from her
parents.
{5} NMSA 1978, Section
30-9-16(A) (1993) precludes evidence of a rape victim’s past sexual conduct,
unless “the evidence is material to the case and . . . its inflammatory or
prejudicial nature does not outweigh its probative value.”
Id. Rule
11-413(A) (2010) is consistent with this statutory counterpart. We consider
whether the district court should have reasonably excluded the evidence after
considering a five-factor test: “(1) whether there is a clear showing that the
complainant committed the prior acts; (2) whether the circumstances of the
prior acts closely resemble those of the present case; (3) whether the prior
acts are clearly relevant to a material issue, such as identity, intent, or
bias; (4) whether the evidence is necessary to the defendant’s case; [and] (5)
whether the probative value of the evidence outweighs its prejudicial effect.”
See
State v. Johnson,
1997-NMSC-036, ¶ 27,
123 N.M. 640,
944 P.2d 869.
{6} During the pretrial
hearing on the State’s motion in limine, Defendant argued that the evidence was
material and relevant on the issue of credibility because Victim gave a
pretrial interview claiming “she was a virgin on the date of [the] incident[,]”
but that evidence of her “sneaking out” and having encounters with “a boyfriend”
established that Victim “knew more about the details of sex than she claimed.”
The State responded that none of the pretrial testimony, witness statements,
interviews, transcripts or tapes established “that the [V]ictim was
promiscuous, [or] that the [V]icitm was not a virgin.” “As a matter of fact,
all the evidence from the witnesses that has been obtained is exactly the
contrary, that [Victim] was not a promiscuous person.” Defendant responded that
“she would sneak out of her house, that she would not come back . . . until the
earlier hours of the morning, [and] that she would brag about these instances.”
“We can put on several witnesses that say there were many prior acts, if the
State wants us to.” But Defendant’s carefully worded allegation that interviewed
witnesses would testify that Victim snuck out of her house at night to see men
does not establish evidence of sexual activity, or promiscuity, or
substantively rebut Victim’s pretrial statement that she was a virgin on the
date of the incident.
See id. (noting that rape shield laws were
designed to restrict attempts to show a victim had consented on this occasion
because she had consented on other occasions).
{7} If Defendant was
intending to make an offer of proof to the contrary, he failed to do so, and he
failed to identify any witness statement to support his insinuations. The
nature of the prior encounters that assume sexual activity were neither
sufficiently developed to show that they were materially relevant to any
credibility determination nor sufficiently probative so as to overcome the
prejudicial effect on a victim of sexual assault that Rule 11-413(A) (2010) was
implemented to protect. This is especially significant given that the State
alleged forcible rape, not a consensual sexual encounter between Defendant and
the sixteen-year-old Victim. Having failed to present a sufficient argument
that the previous incidents involved sexual activity or similar circumstances
to the incident in the present appeal, the district court did not abuse its
discretion when it determined that Defendant had not met the five-factor test
set forth in
Johnson and granted the State’s motion in limine.
{8} Defendant also
alleges that Victim’s prior activities of sneaking out of the house to have
late night encounters with men was relevant to establish Victim’s motive to
fabricate the incident of forcible rape by Defendant. “Motive to fabricate is a
theory of relevance that does implicate the right of confrontation. A
[district] court would be entitled to determine that the prejudicial effect of
prior sexual conduct evidence . . . would not outweigh the probative value of
evidence of a motive to fabricate.”
Johnson,
1997-NMSC-036, ¶ 29. As
previously discussed, Defendant failed to show the necessary relevance of
Victim’s prior acts of sneaking out of the house at night to see men so as to
establish sexual promiscuity or to attack Victim’s credibility.
Id. ¶ 32
(“[I]n order to enable the [district] court to perform its role in identifying
a theory of relevance prior to balancing probative value against prejudice, a
defendant must show sufficient facts to support a particular theory of
relevance.”).
{9} The record
demonstrates that Defendant’s theory of relevance was based solely on the
credibility of Victim’s testimony about forcible rape, and the district court
was never asked to rule upon whether the alleged promiscuous activity was
relevant to support the defense of fabrication.
See State v. Stephen F.,
2008-NMSC-037, ¶ 12,
144 N.M. 360,
188 P.3d 84 (holding that the rape shield
laws were designed to prohibit admitting evidence of prior sexual acts where
the defendant’s theory is that the victim “fabricated the rape charge because
she did not want to be punished, and her fear of parental punishment arises
from the mere fact of engaging in premarital sex, not from any purported
similarity between the type of premarital sex”). Even so, in order to admit
such evidence, Defendant still would have been required to demonstrate that
Victim’s prior conduct of sneaking out of the house was both material and that
its prejudicial effect does not outweigh its probative value.
Johnson,
1997-NMSC-036, ¶ 41. Based on the record before us, we conclude that Defendant
failed to make the necessary showing of relevancy regarding a fabrication
defense. As such, the district court did not abuse its discretion in holding
that the evidence of Victim sneaking out of the house was irrelevant and
inadmissible.
See Stephen F.,
2008-NMSC-037, ¶ 8 (reiterating that the
appellate courts review a district court’s decision to the then-current version
of Rule 11-413 under an abuse of discretion standard).
{10} Defendant argues
that it was error for the district court to permit the State to present
testimony that Defendant was the father of Victim’s child without an adequate
scientific foundation to establish that the child was conceived on the date of
the rape. Defendant further asserts that this evidence was irrelevant,
confusing, or misleading under Rule
11-401 NMRA and more prejudicial than
probative under Rules 11-403 and
11-404(B) NMRA. The State responds that
Victim’s pregnancy was relevant to the crime charged and that the date of
conception was a disputed factual question for the jury to consider and
resolve.
{11} On appeal,
Defendant’s argument is not well-developed and fails to put forward any
specific authority addressing the merits of this argument.
See State v.
Aragon,
1999-NMCA-060, ¶ 10,
127 N.M. 393,
981 P.2d 1211 (recognizing that
it is the appellant’s burden to clearly demonstrate error on appeal).
Defendant’s argument begins with two relevancy objections and quickly
transitions into a “relation-back” argument about establishing a scientific
foundation for the date when a baby is conceived. However, the undisputed facts
establish that the sexual assault was alleged to have occurred at the end of
May 2007, the baby was born in January 2008, and the baby was approximately six
weeks premature. The paternity test was offered to establish that Defendant was
the father of Victim’s baby. The court recognized that the date of the alleged
conception was “within the ballpark” of a reasonable time frame to correspond
to the date of birth and that the jury, using common sense, must determine
whether the child was conceived on any particular date at issue.
See Mott v.
Sun Country Garden Prod., Inc.,
1995-NMCA-066, ¶ 34,
120 N.M. 261,
901 P.2d
192 (“[I]f the fact in issue is within the ken of the average lay juror, expert
opinion testimony is not necessary.”).
{12} Effectively,
Defendant argues that expert testimony is required in order to establish the
typical nine-month gestation period and the jury cannot rely on its common
knowledge to make this factual determination. Conversely, without expert
testimony, Defendant asserts that any potential relation-back from the date of
birth to the date of the alleged rape cannot be adequately established and is
legally impermissible. Defendant failed to provide the district court or this
Court with any authority for his argument that expert testimony is required to
establish a typical nine- month gestation period and that the jury cannot rely
on its common knowledge to make this factual determination.
State v.
Vandever,
2013-NMCA-002, ¶ 19,
292 P.3d 476 (“When a party does not cite
authority to support an argument, we may assume no such authority exists.”),
cert.
denied, 2012-NMCERT-011, 297 P.3d 1226;
see State v. Clifford,
1994-NMSC-048, ¶ 19,
117 N.M. 508,
873 P.2d 254 (“When a criminal conviction is
being challenged, counsel should properly present [the appellate courts] with
the issues, arguments, and proper authority.”). We therefore hold that the
district court properly acted within its discretion when it allowed the jury to
use its common knowledge to determine whether Victim’s child was born within a
gestation period that would reasonably relate back to the date in question.
Rebuttal Testimony Regarding
Victim’s Prior Bad Conduct
{13} Defendant contends
that the testimony elicited during the State’s cross-examination of a defense witness
inferred that the witness had previously had sex with Defendant for money.
Defendant argues that the district court should have granted his motion for
mistrial after the State elicited this testimony of Defendant’s prior bad acts
and inappropriate conduct. Defendant alternatively asserts that he should have
been permitted to counter this evidence with Rule 11-404(B) testimony to
establish prior bad act evidence of Victim. Like evidentiary rulings, we review
a district court’s denial of a motion for mistrial under an abuse of discretion
standard.
See State v. Gonzales,
2000-NMSC-028, ¶ 35,
129 N.M. 556,
11
P.3d 131,
overruled on other grounds by State v. Tollardo,
2012-NMSC-008,
275 P.3d 110.
{14} During direct
examination of Victim’s cousin Regina S., Defendant elicited testimony that
Victim had a reputation in the community for being untruthful. On
cross-examination of Regina, the State attempted to show witness bias by asking
about previous contact between Regina and Defendant. Regina mentioned a specific
incident where Defendant and she were in a car together, and she asked
Defendant to lend her money. Defendant did not object to this testimony by
Regina during cross- examination. Later, Defendant argued that this testimony
by Regina implied that Defendant was paying her for sex and was inadmissible
pursuant to the district court’s pretrial ruling that addressed Defendant’s
sexual infidelity. As a result, defense counsel requested a mistrial. Defense
counsel alternatively argued that, on redirect examination of Regina, the
district court should permit Defendant to elicit testimony of a specific
incident where Victim allegedly had sex with Defendant at a motel while Regina
babysat their child in the bathroom.
{15} The district court
denied the motion for mistrial and did not allow defense counsel to question
Regina regarding the single incident where Victim allegedly prostituted herself
to Defendant at a motel after their child was born. The court had previously
explained that this line of questioning was “entirely inappropriate” and “that
its probative value is nil.” The court then gave a limiting instruction that
the jury was to entirely disregard the testimony and evidence presented
regarding the incident where Regina was found in a vehicle with Defendant.
{16} Defendant contends
on appeal that “the testimony in question was highly prejudicial as it placed
within consideration of the jury the idea that [Defendant] may have paid for
sex with another young woman.” Defendant argues that this testimony was
improperly and intentionally elicited by the State.
{17} Our review of the
record reveals no impropriety with the State’s line of questioning to Regina.
To show possible bias, the State elicited limited testimony from Regina that
she had tried to borrow money from Defendant. Specifically, the prosecutor
never asked Regina if she had sexual relations with Defendant or made any
reference to any exchange of money for sex. If the implication that Regina and
Defendant had a sexual relationship was raised at all, it was raised by defense
counsel’s redirect examination question asking Regina if she had ever met
Defendant at a motel. If the contested testimony should not have been admitted,
the district court’s limiting instruction to disregard the testimony was
sufficient to alleviate any prejudicial effect arising from its previous
admission.
State v. Vialpando,
1979-NMCA-083, ¶ 25,
93 N.M. 289,
599
P.2d 1086 (“New Mexico has frequently held that a prompt admonition from the
court to the jury to disregard and not consider inadmissible evidence
sufficiently cures any prejudicial effect which otherwise might result.”);
see
State v. Foster,
1998-NMCA-163, ¶¶ 23-25,
126 N.M. 177,
967 P.2d 852. The
district court did not abuse its discretion when it determined that the
previous testimony by Regina had not irreparably tainted the jury so as to
require a mistrial.
{18} Defendant’s
secondary argument is that the district court erred when it refused to allow
him to “fight fire with fire” by rebutting the contested testimony regarding
Defendant’s possible sexual encounter with Regina through testimony of Victim’s
prior sexual acts. This argument is equally without merit. The doctrine of
curative admissibility allows the admission of otherwise inadmissible evidence
when the evidence is used to rebut and counterbalance incompetent evidence.
State
v. Ruiz,
2001-NMCA-097, ¶ 47,
131 N.M. 241,
34 P.3d 630. On appeal,
Defendant has failed to demonstrate how unrelated evidence of Victim’s alleged
subsequent sexual conduct would counterbalance any inference that Regina may
have attempted to borrow money from Defendant in exchange for sex. As such, the
district court did not abuse its discretion when it refused to allow Defendant
to elicit potential testimony regarding Victim’s otherwise inadmissible sexual
conduct.
Ruiz would not be the appropriate procedural remedy to apply
under the circumstances in this case. The curative instruction given by the
court was adequate to address any alleged impropriety that the State may have
drawn out during Regina’s testimony. The district court did not abuse its
discretion in refusing the prejudicial rebuttal testimony and giving a curative
instruction.
II. Mistake
of Fact Jury Instruction
{19} Defendant argues
that the district court erred in not providing the jury with a mistake of fact
instruction where a defense witness testified that he believed Victim was
eighteen years old. In light of this alleged error, Defendant requests a new
trial. This Court reviews de novo a district court’s denial of a requested jury
instruction.
State v. Lucero,
1998-NMSC-044, ¶ 5,
126 N.M. 552,
972 P.2d
1143.
{20} Defense witness,
Berzeyahir Molina testified that he met Victim when she was sixteen. At that
time, Molina believed Victim was eighteen because of her attitude and physical
appearance. Victim never told Molina that she was eighteen. Based on Molina’s
testimony, Defendant requested a mistake of fact jury instruction based on a
reasonable belief that Victim was eighteen. The State argued that, absent any
evidence as to Defendant’s belief regarding Victim’s age, Molina’s belief could
not be transferred to Defendant. The district court denied the requested
mistake of fact instruction. After reviewing
State v. Gonzales,
1983-NMCA-041,
99 N.M. 734,
663 P.2d 710, the court explained that “[t]here is
no evidence in the record that would support giving an instruction on mistake
of fact because the only evidence in the record is that [Victim] in this matter
was awakened and forcibly sexually assaulted.” The district court further
reasoned that a mistake of fact instruction would “raise a false issue before
the jury” because, even if Victim appeared to be of legal age, there was no
evidence that the sexual encounter was consensual.
{21} Defendant argues
that the rule in New Mexico is that if there is any evidence to support his
theory of defense, he is entitled to an appropriate instruction. However, Defendant
relied solely on the fact that, prior to the incident involving Defendant,
Molina believed Victim to be eighteen. Despite his failure to testify,
Defendant contends that this testimony was sufficient to support his own belief
that Victim was eighteen years old at the time of the sexual encounter.
See
Perez v. State,
1990-NMSC-115, ¶ 11,
111 N.M. 160,
803 P.2d 249
(recognizing that criminal sexual penetration of a child between the ages of
thirteen and sixteen was not a strict liability crime and that a defendant’s
ignorance or mistake of fact about a child’s age is a potential defense).
{22} “A defendant is
entitled to a jury instruction that supports his theory of the defense only if
the instruction is supported by the evidence.”
State v. Cavanaugh,
1993-NMCA-152, ¶ 12,
116 N.M. 826,
867 P.2d 1208. Not only does this lack of
evidence regarding Defendant’s own belief of Victim’s age fail to support the
giving of a mistake of fact instruction, but “the only evidence in the record
is that [Victim] in this matter was awakened and forcibly sexually assaulted”
without her consent. Defendant’s asserted mistake of fact would serve as a
defense to justify his conduct only if Defendant and Victim had a consensual
sexual encounter.
Gonzales,
1983-NMCA-041, ¶ 14 (“To entitle himself to
an instruction on mistake of fact, there must be some evidence that at the time
in question, [the] defendant entertained a belief of fact that, if true,
would
make his conduct lawful.” (emphasis added)). Even if evidence had been offered
to show that Defendant had a reasonable belief in 2007 that Victim was of an
age where she could legally consent to a sexual encounter, the district court
was not required to instruct the jury on a mistake of fact instruction because
there was no evidence presented that the sexual encounter in this case was
consensual. The district court did not err in refusing Defendant’s mistake of
fact instruction.
{23} We next address
Defendant’s argument that the district court should have granted his motion for
directed verdict. “The question presented by a directed verdict motion is
whether there was substantial evidence to support the charge.”
State v.
Coleman,
2011-NMCA-087, ¶ 19,
150 N.M. 622,
264 P.3d 523 (internal
quotation marks and citation omitted). “Specifically, we inquire whether
substantial evidence exists of either a direct or circumstantial nature to
support a verdict of guilty beyond a reasonable doubt with respect to each
element of the crime.”
Id. (internal quotation marks and citation
omitted). “We do not weigh evidence or substitute our judgment for that of the
[district] court so long as the jury was presented with such relevant evidence
as a reasonable mind might accept as adequate to support its verdict.”
Id.
(alteration, internal quotation marks, and citation omitted). We review the
evidence in the light most favorable to the prevailing party.
Rojo,
1999-NMSC-001, ¶ 19.
{24} To convict Defendant
of criminal sexual penetration of a child thirteen to eighteen by the use of
coercion by a person in a position of authority, the State had to prove, in
relevant part, that Defendant was able to exercise undue influence over Victim
by reason of his relationship with her, that Defendant used this authority to
coerce Victim to submit to sexual contact, and that Defendant unlawfully caused
Victim to engage in sexual intercourse. Defendant asserts on appeal that there
was insufficient evidence that Defendant caused Victim to engage in sexual
intercourse or that he had a position of authority over her and used his
position to force her to have intercourse. However, Defendant’s appellate
argument ignores the evidence favorable to his conviction and refers only to
evidence presented through the testimony of defense witnesses.
{25} Defendant’s argument
essentially states that the district court should have resolved the parties’
conflicting assertions of fact in his favor. But we defer to the district court
to resolve the conflicts in the evidence, to weigh the facts, and to determine the
credibility of the witnesses.
Buckingham v. Ryan,
1998-NMCA-012, ¶ 10,
124 N.M. 498,
953 P.2d 33 (“[W]hen there is a conflict in the testimony, we
defer to the trier of fact.”);
State v. Roybal,
1992-NMCA-114, ¶ 9,
115
N.M. 27,
846 P.2d 333 (“It was for the [district] court as fact[]finder to
resolve any conflict in the testimony of the witnesses and to determine where
the weight and credibility lay.”). Contrary evidence does not provide a basis
for reversal because the factfinder is free to reject Defendant’s version of
the facts.
Rojo,
1999-NMSC-001, ¶ 19. The evidence presented established
that Victim first met Defendant when she was a baby, that he attended important
family events throughout Victim’s childhood, that he was like an uncle to
Victim, and considered part of the family by Victim’s mother and her husband.
Viewing this evidence in the light most favorable to the jury’s verdict, we
conclude that the evidence was sufficient to establish each of the contested
elements of criminal sexual penetration and the denial of Defendant’s motion
for a directed verdict of acquittal.
{26} The district court
was in the best position to evaluate the evidence presented and the credibility
of the parties, and the record reflects that substantial evidence supported
Defendant’s conviction. We, therefore, affirm the district court’s denial of
Defendant’s motion for directed verdict.
IV. Ineffective
Assistance of Counsel
{27} Pursuant to
State
v. Franklin,
1967-NMSC-151,
78 N.M. 127,
428 P.2d 982, and
State v.
Boyer,
1985-NMCA-029,
103 N.M. 655,
712 P.2d 1, Defendant argues that he
received ineffective assistance of defense counsel. “The test for ineffective
assistance of counsel is whether defense counsel exercised the skill of a
reasonably competent attorney.”
State v. Aker,
2005-NMCA-063, ¶ 34,
137
N.M. 561,
113 P.3d 384. Establishing a prima facie case of ineffective
assistance of counsel requires a defendant to show that: “(1) counsel’s
performance was deficient in that it fell below an objective standard of reasonableness;
and (2) that [the d]efendant suffered prejudice in that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Id. (internal quotation marks and
citation omitted). We do not hold that ineffective assistance of counsel exists
if there is a plausible, rational trial strategy or tactic to explain counsel’s
conduct.
See State v. Bernal,
2006-NMSC-050, ¶ 32,
140 N.M. 644,
146
P.3d 289;
State v. Roybal,
2002-NMSC-027, ¶ 21,
132 N.M. 657,
54 P.3d
61. “When an ineffective assistance claim is first raised on direct appeal, we
evaluate the facts that are part of the record. If facts necessary to a full
determination are not part of the record, an ineffective assistance claim is
more properly brought through a habeas corpus petition[.]”
Roybal,
2002-NMSC-027, ¶ 19. Remand for an evidentiary hearing is the proper remedy
only when the defendant makes a prima facie case of ineffective assistance.
Id.
{28} Defendant concedes
on appeal that there are not enough facts in the record to evaluate this claim
of ineffective assistance of counsel. As such, an evidentiary hearing is not an
appropriate remedy because Defendant has failed to establish a prima facie case
of ineffective assistance of counsel based on the district court record.
See
id. Defendant must pursue the issue, if at all, in a collateral habeas
corpus proceeding.
See State v. Martinez,
1996-NMCA-109, ¶ 25,
122 N.M.
476,
927 P.2d 31 (“This Court has expressed its preference for habeas corpus
proceedings over remand when the record on appeal does not establish a prima
facie case of ineffective assistance of counsel.”);
see also State v. Baca,
1997-NMSC-059, ¶ 25,
124 N.M. 333,
950 P.2d 776 (“A record on appeal that
provides a basis for remanding to the [district] court for an evidentiary
hearing on ineffective assistance of counsel is rare. Ordinarily, such claims
are heard on petition for writ of habeas corpus . . . .”). We therefore deny
this claim on direct appeal.
{29} For the foregoing
reasons, we affirm Defendant’s conviction.