State v. BaileyState v. Bailey
- Reporters:
- ,
- Before:
- Wechsler, Timothy L. Garcia
Jorge A. Alvarado, Chief Public Defender, Sergio Viscoli, Appellate Defender, David Henderson, Assistant Appellate Defender, Santa Fe, NM, for Appellant
OPINION
WECHSLER, Judge.
{1} Defendant Jason Bailey appeals his conviction for criminal sexual contact of a minor in the second degree pursuant to
BACKGROUND
{2} Defendant was charged with sex crimes relating to incidents reported by his daughter (Child) that occurred when Child was between about six and nine years of age. The charges related to two separate time intervals when the family lived in Bernalillo County, New Mexico. In between the periods of time that the family lived in Bernalillo County, the family lived in Sandoval County, New Mexico.
{3} Defendant was tried twice. Defendant‘s first trial resulted in dismissal of five of the counts by directed verdict and a mistrial due to jury disagreement on the remaining four counts. Defendant was retried on the remaining four counts.
{4} Two incidents formed the basis of Defendant‘s charges at the retrial. Child reported that Defendant placed ointment on his finger and touched and rubbed Child‘s vagina after she got out of the shower and was wearing only a towel. Child reported that this occurred during the first time period the family lived in Bernalillo County. Child also
{5} Prior to the second trial, the State filed a motion to admit evidence of a purported prior conviction for a sex crime and an uncharged act against Child that occurred while the family was living in Sandoval County. Child reported that, in Sandoval County, Defendant roused Child from sleep at night to watch her favorite movie, laid Child on top of him, placed ointment on his hand, placed his hand in her pajamas, and touched and penetrated her vagina.1 The State argued in its motion that evidence of Defendant‘s uncharged conduct was admissible under
{6} During the retrial, defense counsel had the following exchange with Child on cross-examination in which he confronted Child about lying during the safehouse interview and then asked questions in which defense counsel seemed to conflate the two incidents involving ointment, one of which took place in Bernalillo County and was the basis for charges, and the other from Sandoval County, which was uncharged and excluded from evidence by the district court:
[Defense Counsel]: Now, do you recall that you told me that when you were watching the video [of your interview at the safehouse] that you realized that you were lying and not telling the complete truth?
[Child]: Well, yes, because there‘s some things when the [interviewer at the safehouse] would ask me a question I would say I don‘t know, and I really did know.
[Defense Counsel]: Uh-huh. Okay. For example, let‘s talk about the ointment incident, okay? When you first disclosed the ointment incident you told people or you told the interviewer that [Defendant] had taken your pants off and put the ointment on you; right? Do you remember that?
[Child]: I think that was a different incident. I don‘t know. That it wasn‘t—because I remember coming out of the shower.
[Defense Counsel]: Okay. Well, the ointment incident, what you have described it [sic], what happened at [one of the Bernalillo County residences]; correct?
[Child]: Yes.
[Defense Counsel]: Okay. Do you remember that to begin with the first time that you mentioned the ointment incident you had told the interviewer that [Defendant]
had actually pulled your pants down and then applied the ointment? [Child]: I don‘t think that happened.
[Defense Counsel]: But do you remember saying that?
[Child]: No.
{7} The State then asked to approach the bench. There, defense counsel claimed that in the above exchange he was exposing inconsistencies between Child‘s earlier account of the Bernalillo County ointment incident for which Defendant was on trial and Child‘s account of that incident offered in court. The State argued that defense counsel made Child seem confused by importing a detail—pants—from the uncharged Sandoval County incident, that Child was instructed not to discuss, into questions ostensibly about one of the charged incidents from Bernalillo County. Common to both incidents was the use of ointment, among other factors, but Child was wearing pants only during the Sandoval County incident. The State argued to the court that defense counsel had opened the door to testimony about the uncharged Sandoval County incident because defense counsel used elements of the Sandoval County incident in his questions to Child, thereby creating an impression that Child was confused about the incident for which Defendant was charged. The State also argued that the uncharged incident was relevant to proving the sexual intent of Defendant during the two charged incidents, and, further, that the “crux” of the defense was that there was “no [sexual] intent” on the part of Defendant. Defense counsel conceded that intent was at issue in this case, stating that:
[I]ntent is always an issue in every single case. So just because intent is an issue in this case doesn‘t mean that [
Rule 11-404(b) ] opens the doors to propensity evidence and bad character evidence to allow the State to get a conviction. Intent is always an issue. It‘s an issue here.
{8} After hearing argument, the court took a lunch recess and advised counsel to perform legal research to present case law to the court. After the recess, the court heard additional argument and required a lengthy voir dire examination of Child, both direct and cross, to enable the court to hear content of the testimony. The court ruled, based on
{9} Child testified and was cross-examined about the Sandoval County incident. The jury was instructed that the evidence admitted about the Sandoval County incident should be considered “only for the purpose of determining[] the existence of the intent which is a necessary element of the crimes charged in this case.”
{10} We will include additional facts as necessary in our discussion below.
ADMISSION OF EVIDENCE OF THE UNCHARGED ACTS
{11} Defendant argues that the district court committed error by admitting Child‘s testimony relating to the incident from Sandoval County of uncharged abuse by Defendant. Defendant argues that the evidence was not admissible under
Rule 11-404(B)
{12}
{13} In this case, Defendant‘s intent was an element of the charges. The jury was instructed that an aspect of the State‘s burden was to prove that Defendant touched Child in a manner that was “unlawful.” Defendant acted unlawfully only if he acted with “the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity or personal safety of [Child.]” “[T]ouching or penetration for purposes of reasonable medical treatment or nonabusive parental care” would not be considered unlawful. Defendant did not dispute that he touched Child in a manner fundamentally consistent with Child‘s allegations, but, instead, argued that Defendant touched Child without sexual intent.
{14} Defendant contends that evidence of the Sandoval County incident was inadmissible propensity evidence under
{15} Intent was not an issue in any of the three cases cited by Defendant. And in each case, the court did not find an alternative exception under
{16} The
{17} Simply stated, under
{18} We note an argument made by Defendant that even an analysis that focuses on Defendant‘s intent relies on a propensity inference, and, therefore, the Sandoval County incident was improperly admitted under
{19} As a result, the district court did not abuse its discretion by allowing evidence of the uncharged Sandoval County incident past the threshold of
Rule 11-403
{20}
{21} Defendant argues that evidence of prior crimes in general and, in particular, evidence of prior child molestation, is highly prejudicial. He also argues that the Sandoval County incident was of “de minimis probative value” because that incident was dissimilar to the charged incidents, “took place after [one of] the charged event[s],” and Child‘s account was uncorroborated and changed over time. In addition, Defendant argues that a note submitted by a juror indicated that the jury was “focus[ed] on what really happened in that uncharged incident” and, therefore, was unfairly prejudiced such that a mistrial was necessary. This note asked whether the condition of Child‘s hymen as noted during her medical examination was consistent with Child‘s Sandoval County allegations. Lastly, Defendant argues that the mid-trial ruling by the court allowing evidence of the Sandoval County incident “unfairly surprised” Defendant.
{22} We conclude that the district court did not abuse its discretion in deciding that the Sandoval County incident, which involved allegations of the same type of incident against the same alleged victim during a time period between the two charged incidents, was neither too dissimilar nor too remote in time to be of significant probative value. Defendant presented evidence that Child‘s prior sexual abuse may have affected her capacity to discern whether behavior was or was not sexual and argued vigorously that his actions toward Child were normal parental care and that he did not have sexual intent. Evidence of unlawful intent was a required element of the charges against Defendant. Evidence that Defendant touched Child in a sexual manner that was not amenable to an interpretation as normal parental care could reasonably be deemed of probative value, especially considering that evidence of Defendant‘s intent was otherwise scarce.
{23} In addition, under the circumstances of this case, the district court‘s mid-trial decision to admit evidence of the Sandoval County incident did not unfairly surprise or unfairly prejudice Defendant. See id. ¶ 16 (“The purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but only against the danger of unfair prejudice.” (alterations, internal quotation marks, and citation omitted)). By the retrial, after defending against two motions in limine that sought to admit evidence of the Sandoval County incident, defense counsel was well-aware of this evidence. Nor are we convinced that we should overrule the district court‘s decision to admit the evidence based on a single question by a juror.
{24} Defendant further states that child molestation provokes “strong visceral reactions of repugnance” in jurors and that there is a “culturally prevalent belief that a ‘child molester’ has a propensity to molest children.” Against this background, Defendant argues that the admission of evidence of the alleged Sandoval County incident constituted unfair prejudice. Hearing and evaluating evidence
{25} Lastly, Defendant argues that the limiting instruction to the jury exacerbated the unfair prejudice because “telling a jury to consider the evidence as evidence of intent merely re-inforces [sic] the ‘common sense’ use of the evidence as showing propensity.” However, Defendant did not object to the instructions or offer an alternative one. With such lack of preservation, we will reverse only for fundamental error, and Defendant has not asserted fundamental error on appeal. See State v. Sandoval, 2011-NMSC-022, ¶¶ 14-15, 150 N.M. 224, 258 P.3d 1016 (reviewing for fundamental error when parties do not object to tendered jury instructions).
{26} In sum, the district court did not abuse its discretion in finding that the probative value of Child‘s testimony about the Sandoval County incident was not substantially outweighed by any unfair prejudice caused by admission of this evidence. See
TESTIMONY OF DR. RENEE ORNELAS
{27} Defendant contends that the district court committed error by failing to grant a mistrial during the testimony of Dr. Renee Ornelas. Dr. Ornelas was qualified as an expert in child sexual abuse. She testified for the State. The following exchange took place during her direct examination:
State: Would a physician ever prescribe not putting any kind of ointment on or near the genital area when someone has a U[rinary] T[ract] I[nfection] or give instructions on avoiding that area?
Dr. Ornelas: Well, you wouldn‘t put ointment on a child‘s genitalia for a urinary tract infection. And typically—and in this age group a nine year old, we would show them how to put it on themselves. It‘s not typical for a parent of a child of this age to do that kind of intimate care. Certainly that kind of intimate care another person, a caretaker, you know, applying something, that would be appropriate for a baby or toddler.
But just like a nine year old doesn‘t need somebody to clean their genital area—
{28} Defense counsel objected, approached the bench, and requested either a mistrial or an instruction to the jury to disregard this testimony as the “personal opinion [of Dr. Ornelas] about a nine year old.” The district court granted neither, stating that the testimony was “in line with the line of questioning that [defense counsel] asked [Dr. Ornelas] concerning what a parent would do on a child.” On appeal, Defendant argues that a mistrial was necessary because Dr. Ornelas’ testimony was beyond the scope of her expertise and, as such, inadmissible.
{29} We review a trial court‘s decision to grant or refuse a mistrial for an abuse of discretion. State v. Torres, 2012-NMSC-016, ¶ 7, 279 P.3d 740. “The trial court abuses its discretion in ruling on a motion for mistrial if in doing so it acted in an obviously erroneous, arbitrary, or unwarranted manner.” Id. (internal quotation marks and citation omitted). Even if the admission of the evidence was error, the State argues that the error was harmless, and therefore not reversible. See State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110 (“Improperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful.“). When evaluating whether a violation of evidentiary rules was harmless, “we ask whether there [was] a reasonable probability that the error affected the jury‘s verdict.” Lovett, 2012-NMSC-036, ¶ 52.
{30} The
CONCLUSION
{31} For the foregoing reasons, we affirm Defendant‘s conviction.
{32} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
I CONCUR:
MICHAEL D. BUSTAMANTE, Judge
TIMOTHY L. GARCIA, Judge (dissenting).
GARCIA, Judge (dissenting).
{33} I respectfully dissent from the majority opinion for two reasons.
{34} First, the irregular way in which the district court eventually admitted the Sandoval County evidence prejudiced the defense. In denying the State‘s motion to admit the Sandoval County evidence prior to the second trial, the district court concluded that the purpose of the Sandoval County evidence was: (1) to “bolster the testimony of the alleged victim . . . to show that . . . she‘s not misinterpreting [Defendant‘s actions,]” and (2) that the evidence was “only being offered to prove the witness‘[s] understanding” and not the Defendant‘s intent. It further concluded that the Sandoval County evidence was “extremely prejudicial to the defense” and “more prejudicial than probative [under a Rule 11-403 analysis.]” This ruling encouraged Defendant to proceed at trial with his theory that Child may have misinterpreted Defendant‘s intentions, with the understanding that raising this theory would not trigger a
{35} Second, the majority extends
{36} It has been a longstanding fear that criminal propensity or other bad acts evidence is extremely prejudicial and may be misapplied to obtain a conviction. See Gallegos, 2007-NMSC-007, ¶ 21 (“The nearly universal view is that other-acts evidence, although logically relevant to show that the defendant committed the crime by acting consistently with his or her past conduct, is inadmissible because the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect.” (internal quotation marks and citation omitted)); State v. Lamure, 1992-NMCA-137, ¶ 47, 115 N.M. 61, 846 P.2d 1070 (Hartz, J., specially concurring) (“One cannot ignore the long tradition of courts and commentators expressing fear that jurors are too likely to give undue weight to evidence of a defendant‘s prior misconduct and perhaps even to convict the defendant solely because of a belief that the defendant is a bad person.“); see also Old Chief, 519 U.S. at 181 (recognizing that although other acts evidence is relevant, “the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect“); People v. Smallwood, 722 P.2d 197, 205 (Cal. 1986) (recognizing that other acts evidence “is the most prejudicial evidence imaginable against an accused“), disagreed with on other grounds by People v. Bean, 760 P.2d 996, 1008 n. 8 (Cal. 1988); Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 Fordham Urb. L.J. 285, 288 (1995) (“The contemporary abhorrence of sexual misconduct and offenses against children is as intense as it is widespread. Repulsed by evidence of such uncharged crimes by an accused, a juror might be tempted to look past weaknesses in the prosecution‘s proof of the accused‘s guilt of the uncharged crime.“). I would urge our Supreme Court to reconsider and clarify the bounds of the application of
TIMOTHY L. GARCIA, Judge