STATE OF NEW MEXICO, Plаintiff-Respondent, v. JASON BAILEY, Defendant-Petitioner.
NO. S-1-SC-35395
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
October 13, 2016
ORIGINAL PROCEEDING ON CERTIORARI, Denise Barela-Shepherd, District Judge
C. David Henderson, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Respondent
VIGIL, Justice.
I. INTRODUCTION
{1} Defendant Jason Bailey appeals his conviction for second-degree criminal sexual contact of a minor pursuant to
II. BACKGROUND
{2} Victim came to live with her father, Defendant, upon removal from her mother‘s home by the Children, Youth, and Families Department (CYFD) following sexual abuse perpetrated upon Victim by the mother‘s boyfriend and Victim‘s older half-sistеr. At the time, Defendant was living in Albuquerque with his wife and two young daughters. Victim was removed from Defendant‘s home on April 10, 2008, when police responding to an unrelated disturbance, decided that Victim and the other
{3} Defendant was indicted on nine felony counts in light of the allegations of sexual abuse. Victim‘s testimony and statements to third parties formed the basis for the charges. There were two trials, the first ending with a directed verdict in fаvor of Defendant on five of the counts and a hung jury with respect to the remaining four. Defendant was retried on those four counts and ultimately found guilty of criminal sexual contact of a minor.
{4} The first incident of Albuquerque abuse (the masturbation incident), occurred after Victim exited the shower and walked into her room where she saw her younger sister “doing something and [she] did that same thing.” Defendant then came into the
{5} The second incident of abuse, occurring in Rio Rancho (the uncharged Sandoval County incident), happened one night when Victim was roused from her sleep by Defendant to watch a movie in the living room. After joining Defendant on the living room couch, Defendant lay down and “put [Victim] on top of him and then he stuck his hands down” the front of her pants. In doing so, Defendant was alleged to have put ointment on his finger, rubbed the outside of Victim‘s genitals, and digitally penetrated Victim with his finger. Victim testified that this made her feel “uncomfortable,” “like [she] was forced to let those things happen.” With respect to the digital penetration, Victim‘s pretrial statement was inconsistent with both her initial S.A.F.E. House statement and trial testimony—she told defense counsel pretrial that she really did not think it had actually occurred.
{6} The third incident of abuse (the shower incident), occurred in Albuquerque.
{7} Before the first trial the State moved to admit, amongst other things, evidence of the uncharged Sandoval County incident pursuant to Rule 11-404(B)(2). The district court declined to admit the evidence, emphasizing that it did not have jurisdiction over conduct occurring in Sandoval County. The State did not object to the Court‘s decision to preclude admission of the evidence during the first pretrial hearings. As the first trial progressed though, the State realized that the issue of intent was Defendant‘s main argument—i.e., he lacked an unlawful intent because the contact in the charged incidents was merely parental conduct that Victim was
{8} The district court оnce again denied the State‘s motion to admit the evidence under Rule 11-404(B)(2) because this evidence was “only being offered to prove the witness’ understanding,” and not one of the Rule 11-404(B)(2) exceptions, and because it was “more prejudicial than probative.” Yet, the district court provided the caveat that “should the defense open the door, you‘ll always have the opportunity to ask the Court for reconsideration or maybe even bring it in as rebuttal.”
{9} At the second trial, Defendant conceded that “intent is always an issue . . . [i]t‘s
{10} In response to this line of questioning, the State understandably raised concerns. Ultimately, by eliciting testimony wherein Victim confused the two scenarios—the Sandoval County incident, where she was dressed, and the masturbation incident, where she had just exited the shower unclothed—the narrative presented to the jury contained an unexplained inconsistency. Without knowing that there was a similar incident where Victim had been wearing pants, the jury could have been confused. As a result of those concerns, the State renewed its motion to present evidence of the uncharged Sandoval County incident; and, following Victim‘s
{11} Defendant was found guilty of criminal sexual contact of a minor in the second degree, as a lesser included offense of the original charge of criminal sexual penetration, contrary to Section 30-9-13(B), as charged in Count Two, but not guilty on Counts One, Three, and Four. The Court of Appeals affirmed Defendant‘s conviction in a split opinion. See Bailey, 2015-NMCA-102. We granted certiorari to the Court of Appeals pursuant to Rule 12-502 to review whether the admission of evidence of an uncharged incident was correct and in accordance with Rule 11-403 and Rule 11-404(B)(2). In doing so, we endeavor to provide guidance in striking the right balance under Rule 11-404(B) between the proper use of such evidence to provе intent and the prohibited use to show one‘s propensity to commit a crime—a realm that courts have struggled with for decades.
III. STANDARD OF REVIEW
{12} This Court reviews a district court‘s decision to admit evidence under Rule 11-
IV. DISCUSSION
A. Applicable Law
{13} “Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.” Rule 11-404(B)(1). The other-act evidence may, however, be admissible for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of аccident.” Rule 11-404(B)(2).
{14} In Otto, this Court held that the list of permissible reasons to admit other-act evidence is not exhaustive, providing “evidence of other wrongs may be admissible on alternative relevant bases so long as it is not admitted to prove conformity with character.” 2007-NMSC-012, ¶ 10; see also State v. Jones, 1995-NMCA-073, ¶ 8, 120 N.M. 185, 899 P.2d 1139 (“New Mexico allows use of other bad acts for many reasons, including those not specifically listed in [Rule] 11-404(B).“). Importantly, then, “Rule 11-404(B) is a rule of inclusion, not exclusion, providing for the admission of all evidence of other aсts that [are] relevant to an issue in trial, other than the general propensity to commit the crime charged.” State v. Phillips, 2000-NMCA-028, ¶ 21, 128 N.M. 777, 999 P.2d 421, cert. denied, 128 N.M. 689, 997 P.2d 821 (internal quotation marks and citation omitted).
{15} Nevertheless, the district court must still consider whether “the probative value of the evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403.” Otto, 2007-NMSC-012, ¶ 10 (discussing State v. Gaitan, 2002-NMSC-007, ¶ 26, 131 N.M. 758, 42 P.3d 1207). See State v. Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828 (“[E]ven if other-acts evidence is relevant to something besides propensity, such evidence will not be admitted if the probative value related to its permissible purpose is substantiаlly outweighed by the factors enumerated in Rule 11-403.” (citations omitted)).
{16} Rule 11-403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
B. Admission of the Uncharged Sandoval County Incident Evidence Under Rule 11-404(B)(2)
{17}
{18} The State points to the uncharged Sandoval County incident—where Victim alleged that Defendant sat her on his lap, reached down her pants, and applied ointment to her genitals while digitally penetrating her—as proof that Defendant was less likely to have lawfully touched Victim during the charged masturbation incident because what unfolded in Sandoval County could not reasonably be interpreted as normal parenting. Defendant responds that the Sandoval County incident is probative of Defendant‘s unlawful intent in the masturbation incident only by way of an improper inference premised on propensity. Defendant argues that the еvidence relating to the Sandoval County incident is only probative because it demonstrates a propensity to behave with the intent of a child molester.
{19} The circumstances of the Sandoval County incident alter the probability that Defendant acted with lawful intent during commission of the masturbation incident involving this same victim. As our case law has recognized, however, Rule 404
{20} In applying Rule 11-404(B)(2)‘s propensity evidence bar, this Court has taken care to distinguish between a defendant‘s propensity to engage in particular kinds of unlawful conduct and the defendant‘s intent directed toward the victim in the charged offense. Two cases provide especially useful guidance. First, Sena involved other-act evidence of the defendant‘s “grooming” of a child victim to support the state‘s theory that the defendant had not applied ointment to the child victim‘s genitals with a strictly medical intent. 2008-NMSC-053, ¶ 14. In reversing the Court of Appeals and holding that the evidence was properly admitted as proof of the defendant‘s intent, we stated that “[a]s evidence of [d]efendant‘s sexually fraught conduct with the [c]hild, the grooming evidence was properly admitted to refute[ ] the evidence that [d]efendant touched the [c]hild strictly for medical reasons.” Id. (alteration in original) (internal quotation marks and citation omitted). Accordingly, admission of the other-act evidence relating to the same victim was proper for demonstrating the defendant‘s specific, unlawful intent during commission of the charged conduct. Id. ¶¶ 14-15.
{21} Then, in Otto we analyzed whether evidеnce of a defendant‘s uncharged sexual acts with a child victim in Colorado could be properly admitted under Rule 11-
{22} Here, as in Otto and Sena, Defendant specifically disputed the intent element of the crime for which he was standing trial. In fact, it was the only element of the crime that Defendant disputed. Given New Mexico‘s inclusionary view of Rule 11-404(B)(2), and particularly where a defendant refutes allegations of sexual contact with a minor victim by claiming that the sexual contact was parental or medical, we conclude that evidence of other acts directed to that victim that bear on a defendant‘s specific, unlawful intent to commit the charged offense are admissible under Rule 11-404(B)(2). See Sena, 2008-NMSC-053, ¶ 14; Otto, 2007-NMSC-012, ¶¶ 11-12; see also Kerby, 2007-NMSC-014, ¶ 26. Accordingly, we hold that the uncharged Sandoval County incident was properly admitted.
C. There Was No Undue Prejudice Requiring Exclusion of Evidence of the Sandoval County Incident Under Rule 11-403
1. Inherently Prejudicial Nature of the Evidence
{24} Defendant‘s intent was the only contested issue at trial, and the only evidence available to the State for proving intent came by Victim‘s testimony regarding her perception of the charged incidents. And, Defendant‘s case relied on convincing the jury that Victim‘s account was misguided because the perceived molestation was actuаlly harmless parenting. Thus, admission of evidence of the uncharged Sandoval County incident—an occasion where Defendant‘s conduct could not be viewed as harmless parenting—was highly probative of the State‘s argument that Defendant was less likely to have been acting lawfully when committing the charged incidents. See
{25} The uncharged Sandoval County incident is also uniquely similar to one of the charged incidents in that on two occasions some type of ointment was used when Defendant made contact with Victim‘s genitals. Whereas the circumstances of the charged masturbation incident could reasonably be viewed as parental care in the abstract, the uncharged Sandoval County incident could not. The uncharged other-act evidence is highly probative of Defendant‘s intent during the charged masturbation incident. Cf. Beecheum, 582 F.2d at 915 (“In measuring the probative value of the evidence, the judge should consider the overall similarity of the extrinsic and charged offenses.“).
{26} Despite the other-act evidence‘s probative value, the prejudicial nature of the uncharged Sandoval County incident was not diminutive. Evidence of sexual contact with a minor is uniquely and inherently prejudicial. Admission of such evidence must be treated with caution in order to not unduly influence a jury‘s verdict. Yet, the task under Rule 11-403 is not to exclude all uniquely prejudicial evidence—just that
2. Mid-trial Surprise
{27} Defendant further argues that he suffered prejudice because he was surprised by the district court‘s mid-trial admission of the evidence of the uncharged Sandoval County incident. But, this is not a case where Defendant did not have knowledge of the incident, rather, Defendant merely thought the incident would nоt make its way into the trial. To claim surprise at its admission, particularly in light of the theory under which Defendant chose to proceed, being that he lacked an unlawful intent—ignores the district court‘s decision before the trial to exclude the other-act evidence because it believed “[t]his evidence is only being offered to prove the witness’ understanding,” as opposed to one of the Rule 11-404(B) permissible reasons. The district court read into the record the language of Rulе 11-404(B), and
{28} Plus, Defendant alluded to the uncharged Sandoval County incident at trial by confusing Victim and inadvertently eliciting cross-examination testimony about the incident. This fact discounts both Defendant‘s claim that he was unprepared and surprised by the admission of the other-act evidence, since his counsel referenced it. Moreover, cross-examination resulted in a potentially inconsistent statement by Victim, which the State could not rebut without reference to the uncharged Sandoval County incident. Defendant, having referred to the uncharged incident, greatly increased the evidence‘s probative nature. And, without deciding whether by this reference Defendant opened the door to admission of the other-act evidence, we conclude that the nature of the exchange at least indicates Defendant‘s knowledge that the uncharged Sandoval County incident was probative and relevant, and thus,
V. CONCLUSION
{29} The evidence of the uncharged Sandoval County incident is relevant to establishing Defendant‘s specific, unlawful intent during his commission of the charged incidents and was correctly admitted by the district court under Rule 11-404(B)(2). Likewise, the other-act evidence was more probative than prejudicial under Rule 11-403. We conclude, therefore, that the district court did not abuse its discretion by admitting the uncharged Sandoval County incident under both Rule 11-404(B)(2) and Rule 11-403. Accordingly, we affirm Defendant‘s conviction.
{30} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
JUDITH K. NAKAMURA, Justice