473 P.3d 1
N.M. Ct. App.2020Background
- Defendant Frank C. Little was convicted after jury trial of: Count 1 (first-degree criminal sexual penetration of a minor under 13) and multiple counts of second-degree CSPM and criminal sexual contact of a minor (CSCM) against two victims, S.G. and S.P.
- At trial S.G. repeatedly testified on direct and cross that digital penetration did not occur until after she turned 13, but a police report (not in the appellate record) recorded a prior statement that she was 12.
- On redirect the prosecutor used the police report to "refresh" S.G.’s recollection; S.G. then stated she was 12 when penetration began and said her police statement was true; defense objected and moved to strike.
- The district court allowed the State to impeach/refresh with the report, admitted S.G.’s refreshed testimony, and denied defense counsel’s request to recross-examine S.G. on the new matter.
- The court of appeals held that (a) although the redirected testimony would have been sufficient to support Count 1, the process used to refresh S.G.’s recollection was an abuse of discretion and (b) denying recross-examination on the new matter violated the Confrontation Clause and constituted fundamental error—so it reversed Count 1 and remanded for a new trial; it affirmed the remaining convictions and rejected double jeopardy and jury-instruction challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 1 (age element) | S.G.’s redirected testimony (refreshed by police report) established she was 12 when penetration began, satisfying the age element. | The State’s proof relied on improperly refreshed/hearsay-based testimony; original testimony said penetration occurred after 13. | The court found the redirected testimony would be sufficient, but reversal was required for other errors. |
| Admissibility / method of refreshing witness recollection | The report could be used to refresh/impeach S.G.’s recollection. | The report was used improperly: S.G. hadn’t shown lack of present recollection and thus testified from the report (hearsay), not her refreshed memory. | Court held the district court abused its discretion in allowing the report to refresh S.G. without adequate foundation; this was reversible error. |
| Denial of recross-examination (Confrontation Clause) | No new matter was created on redirect or defendant had sufficient prior cross on the subject. | Redirect elicited materially different, incriminating testimony about the age element; recross was required to confront new matter. | Court held denial of recross on the new matter violated the Confrontation Clause, was fundamental error, and independently required reversal of Count 1. |
| Double jeopardy from multiple CSPM/CSCM convictions (Counts 2–6) | Charges were discrete by time period and act; convictions reflect separate offenses. | Multiple convictions amount to cumulative punishment for the same course of conduct. | Court held convictions did not violate double jeopardy because counts alleged distinct acts in specific, consecutive time frames. |
| Jury instruction for Count 4 (timeframe/age) | Instruction’s broader date language still required jury to find victim was at least 13 but less than 18, so no confusion. | Instruction’s date range might allow conviction for conduct after victim turned 18. | Court held the instruction, read as a whole, limited liability to the applicable age range and was not fundamentally erroneous. |
Key Cases Cited
- State v. Rojo, 971 P.2d 829 (sets New Mexico standard for sufficiency review)
- State v. Macias, 210 P.3d 804 (requirements for refreshing a witness’s recollection; testimony must come from witness’s restored memory)
- State v. Orona, 589 P.2d 1041 (witness’s memory must be exhausted before using a writing to refresh recollection)
- Delaware v. Van Arsdall, 475 U.S. 673 (confrontation error: test for harmlessness when cross-examination is curtailed)
- State v. Silva, 192 P.3d 1192 (fundamental error review when Confrontation Clause claim not raised below)
- State v. Lente, 453 P.3d 416 (double jeopardy analysis for multiple sexual-penetration convictions over discrete time periods)
- State v. Sena, 192 P.3d 1198 (jury resolves testimonial inconsistencies)