This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Defendant entered a residence at night, where a 12-year-old victim and her 8-year-old brother were sleeping in a den. The Defendant attempted to sexually assault the victim, threatened her with a knife, and fled when the victim's brother intervened. The police later found a knife left at the scene and evidence of forced entry through a window (paras 3-4).
Procedural History
- District Court of Sandoval County: The Defendant was convicted of aggravated residential burglary, attempted criminal sexual penetration of a minor (CSPM), criminal sexual contact of a minor (CSCM), kidnapping, and aggravated assault with a deadly weapon.
Parties' Submissions
- Defendant-Appellant: Argued that (1) the trial court erred in excluding testimony about the victim's brother's failure to identify the Defendant in a photo lineup; (2) trial counsel's failure to call the victim's brother as a witness constituted ineffective assistance of counsel; (3) convictions for both attempted CSPM and CSCM violated double jeopardy; and (4) the evidence was insufficient to support the convictions (para 1).
- Plaintiff-Appellee: Contended that the trial court properly excluded the testimony as hearsay, the Defendant received effective assistance of counsel, the convictions did not violate double jeopardy, and the evidence was sufficient to support the convictions (paras 5-7, 13, 15-16).
Legal Issues
- Was the exclusion of testimony regarding the victim's brother's identification error?
- Did the Defendant receive ineffective assistance of counsel?
- Did the convictions for both attempted CSPM and CSCM violate the prohibition against double jeopardy?
- Was the evidence sufficient to support the Defendant's convictions?
Disposition
- The Court of Appeals reversed the conviction and sentence for CSCM, finding a double jeopardy violation, and remanded with instructions to vacate the conviction and sentence for CSCM (para 2).
- The Court affirmed the Defendant's convictions on all other charges (para 2).
Reasons
Per A. Joseph Alarid J. (Pickard and Fry JJ. concurring):
Exclusion of Testimony: The trial court did not err in excluding testimony about the victim's brother's identification. The testimony was deemed hearsay because it was offered to prove the truth of the matter asserted, and the brother did not testify at trial, precluding cross-examination. The trial court also found the evidence collateral and more prejudicial than probative (paras 5-12).
Ineffective Assistance of Counsel: The Defendant failed to establish ineffective assistance of counsel. Defense counsel's decision not to call the victim's brother as a witness was a tactical choice, as the brother's testimony could have been detrimental. Strategic decisions made after investigation are virtually unchallengeable (paras 13-14).
Double Jeopardy: The Court found that the convictions for attempted CSPM and CSCM were based on unitary conduct. Applying the Blockburger test, the Court determined that the statutes did not clearly express legislative intent to allow multiple punishments for the same conduct. The Court concluded that the CSCM conviction must be vacated to avoid a double jeopardy violation (paras 15-27).
Sufficiency of Evidence: The evidence, viewed in the light most favorable to the verdict, was sufficient to support the Defendant's convictions. The victim's testimony and other evidence provided a reasonable basis for the jury's findings (para 28).