STATE OF NEW MEXICO, Plaintiff-Appellee, v. VICTOR GONZALES, Defendant-Appellant.
NO. 34,090
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
June 28, 2017
Brett R. Loveless, District Judge
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY. Hector H. Balderas, Attorney General; Maha Khoury, Assistant Attorney General; Santa Fe, NM, for Appellee. Bennett J. Baur, Chief Public Defender; Santa Fe, NM; Vicki W. Zelle, Assistant Appellate Defender; Albuquerque, NM,
OPINION
FRENCH, Judge.
{1} Defendant Victor Gonzales was convicted of criminal sexual contact, a misdemeanor, contrary to
BACKGROUND
{2} Around 2:30 a.m. on September 24, 2011, a woman (Victim) called the police to report that a man attacked her in the parking lot of the apartment complex where she resided. Victim reported that the man approached her while she was getting laundry from the trunk of her car. Victim said the man grabbed her, exposed her buttocks by pulling her shorts down, and briefly squeezed them. Victim allegedly screamed for help, and the man “eventually” began wаlking away from her, pushing a red dolly that carried a white garbage bin.
{3} Five days after the incident, a detective presented Victim with a photo array. She was unable to identify her assailant in the array. She told the detective that it was dark, her assailant was wearing a baseball cap, and his face was shadowed. The next day, six days after the incident, Victim believed a man she saw standing on a street corner, Defendant, was her assailant. Victim and her husband followed Defendant in their car, and Victim‘s husband got out of the car to confront Defendant. Defendant called 911 for assistance. On October 6, six days after Victim and her husband confronted Defendant, a detective presented Victim with a second photo array that included a photograph of Defendant, and she identified Defendant as her assailant.
{4} Defendant‘s case was first scheduled for trial in metropolitan court on June 5, 2012. Victim failed to appear at trial on this date. The State could not proceed with the trial without Victim present and requested the trial date be reset. The metropolitan court reset the trial for July 23, 2012, yet victim again failed to appear. The State contacted Victim, who said she could be present within one hour. Defense counsel interjected, stating that it was not necessary for Victim to come that day and stipulated to a continuance. Defense counsel also noted that she had not yet interviewed Victim due to scheduling problems. The metropolitan court reset trial for September 5, 2012.
{5} At trial on September 5, defense counsel requested a continuance. Defense cоunsel argued that the State failed to account for evidence relevant to the investigation of the State‘s initial suspect, who was not Defendant—namely, a lapel video recording from a camera worn by an investigating officer that was only twenty seconds long, and an incident number logged by an investigating officer that did not have an accompanying police report. Defense counsel also repeatedly argued she needed time to subpoena each officer on the State‘s witness list. Ultimately, the metropolitan court denied the motion for continuance.
{6} The jury convicted Defendant of criminal sexual contact. Defendant appealed to the district court, which reviewed his case on-record and affirmed the conviction.
DISCUSSION
Appeal in the District Court
{7} Initially, this appeаl requires us to clarify the analysis to be employed by a district court acting in its appellate capacity when reviewing a conviction from the metropolitan court that potentially arises from domestic abuse under the Family Violence Protection Act (FVPA),
{8} “The proper procedure to be followed by a district court when reviewing a [m]etropolitan [c]ourt‘s conviction is a question
{9} The
{10} Subsection (C) states, “The metropolitan court is a court of record for criminal аctions involving . . . domestic violence. A criminal action involving domestic violence means an assault or battery . . . in which the alleged victim is a household member as defined in the [FVPA].”
{11} In short, when construed alongside one another,
{12} Here, Victim and Defendant are strangers. Victim purportedly had only two encounters with Defendant: the night of the incident and six days after the incident. She had not met Defendant before the night of the incident. Her only way of identifying Defendant was by the item that he carried when the incident occurred. Furthermore, the record shows Victim is in an intimate relationship with sоmeone else, her husband. Victim and Defendant in this case are not related by blood or by marriage, nor is there any indication they were in an intimate relationship with one another. These facts preclude application of
{13} Next, we look to
{14} Because the facts of this case lack any element of domesticity, it would seem the conviction is a criminal action other than domestic violence. However, two developments complicate the application of
{15} Second, the Legislature has amended the definition of “domestic abuse” in the FVPA since the Supreme Court decided Schwartz. See
{16} The FVPA, however, does not define the term “sexual assault.” We must therefore determine whether Defendant‘s conviction, criminal sexual contact, is sexual assault. If criminal sexual contact is a sexual assault, then Defendant‘s conviction is “domestic abuse” as defined by the FVPA. Such a conclusion would then render the de novo provision of
{17} Defendant acknowledges that the Legislature has amended the FVPA to include within the definition of “domestic abuse” an incident of sexual assault “whether committed by a household member or not,” but he maintains that criminal sexual contact is not sexual assault. Rather, he contends sexual assault refers only to criminal sexual penetration. Defendant cites to the Sexual Assault Survivors Emergency Care Act (SASECA) that defines “sexual assault” as criminal sexual penetration, excluding criminal sexual contact.
{18} Contending that the SASECA is inapplicable here, the State argues that criminal sexual contact is sexual assault, and therefore, this is a criminal action involving domestic abuse. If correct, and in light of Schwartz, Defendant‘s conviction would be excluded from those metropolitan court convictions for which
{19} We hold that criminal sexual contact against a non-household member is sexual assault as the term is used in the FVPA. “In interpreting a statute, [the] primary objective is to give effect to the Legislature‘s intent.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. To discern legislative intent, appellate courts look first to the language used in the statute and the plain meaning of that language. See id.; see also High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (“The first rule is that the plain language of a statute is the primary indicator of legislative
{20} We first consider the language of the statute. The FVPA states that “domestic abuse” means “an incident of stalking or sexual assault whether committed by a household member or not[.]”
{21} Second, we note that “our courts interpret the intended meaning of statutory language by consulting the dictionary to ascertain the words’ ordinary meaning.” Boyse, 2013-NMSC-024, ¶ 9. The entry for “sexual assault” in Black‘s Law Dictionary provides two definitions. First, “sexual assault” means “[s]exual intercourse with another person who doеs not consent[,]” noting “[s]everal state statutes have abolished the crime of rape and replaced it with the offense of sexual assault.” Black‘s Law Dictionary 138 (10th ed. 2014). Second, “sexual assault” means “[o]ffensive sexual contact with another person, exclusive of rape.”
{22} The first entry in the dictionary narrowly defines sexual assault as intercourse because, as noted, many states used the offense of sexual assault to replace conduct formerly defined as rape. In New Mexico, the crime of rape was not replaced with the offense of sexual assault. State v. Keyonnie, 1977-NMSC-097, ¶ 5, 91 N.M. 146, 571 P.2d 413 (explaining that “[t]he essential elements of the common law crime of rape, from which the statutory offense of criminal sexual penetration was derived,” were carnal knowledge or intercoursе). Rather, the crime of rape was replaced with the offense of criminal sexual penetration. State v. Williams, 1986-NMCA-122, ¶ 14, 105 N.M. 214, 730 P.2d 1196 (explaining that “[t]he statutory crime of rape was repealed in 1975” and
{24} The State argues that Schwartz is controlling. It characterizes the holding broadly, stating that “our Supreme Court held that all acts of domestic abuse as defined in the [FVPA] are tried on-the-record in [m]etropolitan [c]ourt and only entitled to an on-record review.” The purpose and intent behind the FVPA is to give victims of domestic abuse special protections because they are especially vulnerable. The Legislature has expanded that class of victims to include non-household members by amending the definition of “domestic abuse” in the FVPA. Compаre
{25} Defendant argues the opposite—Schwartz is not controlling. He maintains the holding stems from considerations that are no longer compelling because of the way the Legislature has amended the definition of “domestic abuse.” Specifically, our Supreme Court recognized that victims of domestic abuse are especially vulnerable “[b]ecause of the close relationship between the victim and the accused” and “because this form of violence is often repeated[.]” Schwartz, 1997-NMSC-021, ¶ 9 (emphasis added). Defendant argues that the rationale and the holding in Schwartz depend on the fact that the victim and the accused are in a close or continuing relationship. According to Defendant, only “those charged with sexual assault that have or have had a continuing relationship with their victim are justified in being included in the scope of criminal actions of ‘domestic violence’ for the purposes of ‘on-record appeal’ cases versus ‘de novo appeals.’ ”
{26} We agree with Defendant that Schwartz answers a different question, but we hold that the tools of statutory interpretation compel the conclusion that Defendant was only entitled to an on-record review on aрpeal.
{27} This case is distinguishable from Schwartz for two reasons. First, our Supreme Court decided Schwartz before the definition of “domestic abuse” in the FVPA included conduct that occurs between completely unrelated people. In 1993 the Legislature amended the FVPA to expand the definition of “domestic abuse” to include more than just assault and battery, see
{28} Second, this case is factually different from Schwartz. In Schwartz, it can be presumed that the victim and the accused were household members. See 1997-NMSC-021, ¶ 9. Here, Victim and Defendant are strangers. The distinction is legally relevant because it proves that, at the time Schwartz was written, our Supreme Court did not contemplate a scenario like the one prеsented by the facts of this case, where no relationship exists between the victim and the accused.
{29} For the foregoing reasons, Schwartz is not controlling. Nevertheless, the logic and spirit of Schwartz is instructive. It directs that we read
we believe that the Legislature recognized that violence in the context of genuinely long-term relationships was particularly serious, and that victims of violence in this context were in need of greater protection than victims of other crimes. The FVPA is intended to address the unique neеds of this group of victims.
Id. ¶ 15 (citation omitted).
{30} Schwartz and Wilson make it clear that the policy behind the FVPA is to extend certain protections to a victim of domestic abuse because the relationship between the victim and the accused makes the victim especially vulnerable. Given the more recent amendment to the definition of “domestic abuse” to include non-household member victims, we conclude the Legislature‘s intent behind the FVPA has shifted since Schwartz and Wilson. By defining “domestic abuse” in the FVPA to include criminal conduct of a sexually assaultive nature by non-household members, the Legislature opted to expand the class of victims entitled to the special protections of the FVPA. The language is clear: the meaning of “domestic abuse” is “an incident of stalking or sexual assault whether committed by a household member or not.”
{31} The provisions of the FVPA provide further support for this conclusion. Generally, the FVPA allows a victim to obtain a protective order, and limits the victim‘s exposure to the defendant. For example,
Motion for Continuance
{32} Defendant contends that the metropolitan court abused its discretion by denying trial counsel‘s motion for continuance. We review the denial of a motion for continuance for an abuse of discretion. See State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. An abuse of discretion is a ruling that is “clearly against the logic and effect of the facts and circumstances of the case.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). A court abuses its discretion when “the denial of the motion for
continuance does not follow from a logical application of these factors” to the facts and circumstances of the case. State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. The defendant carries the burden of establishing an abuse of discretion, and that the abuse was to the injury of the defendant. See Salazar, 2007-NMSC-004, ¶ 10.
{33} When reviewing the denial of a motion for continuance, courts consider several factors:
(1) the length of the requested delay; (2) the likelihood that a delay would accomplish the movant‘s objectives; (3) the existence of previous continuances in the same matter; (4) the degree of inconvenience to the parties and the court; (5) the legitimacy of the motives in requesting the delay; (6) the fault of the movant in causing a need for the delay; and (7) the prejudice to the movant in denying the motion.
{34} Considering these factors in light of the facts of this case, we conclude the metropolitan court did not abuse its discretion by denying dеfense counsel‘s motion for continuance. First, Defense counsel requested an additional two or three weeks. This is not an unreasonable length of time, especially when paired with the fact that one of the previous continuances added sixty days, more than twice the length of defense counsel‘s request. However, the trial had already been continued two times. By the date of the requested continuance, defense counsel had received an additional three months to prepare for trial. As such, the first factor weighs against granting the motion.
{35} The second factor also weighs against granting the motion. When asked why further continuance was needed, defense counsel stated “so that I can satisfy myself that I have all the information.” In this instance, however, defense counsel‘s objective, that is, making sure she had all of the information she needed, could not possibly have been accomplished by resetting the trial for a later date because the metropolitan court specifically addressed each piece of information defense counsel was concerned about. Specifically, the State personally spoke with the officer who wore the lapel video with the brief recording, who said she had no explanation for why the video was cut short aside from battery failure and that the State possessed the exact same recording as Defendant. The State also communicated with the investigating officer who purportedly prepared the police report that Defendant never received, and that officer stated that no such
{36} The third and fourth factors generally weigh against granting the motion for continuance. As noted, two previous continuances had already delayed trial three months beyond the initial trial setting. While we note that the parties dispute to whom the second continuance should be attributed, we also note that although Victim was not present at the start of the July setting, the State specifically said Victim could be there in one hour. The State did not move for a continuance. Defense counsel interjected before the court could comment, seeking to “stipulаte” to a continuance because counsel had not yet interviewed Victim. The district court responded: “I really want the defense to interview the victim before we start the jury trial, so it‘s going to be reset.” The second continuance was, therefore, granted for the benefit of Defendant. As well, we presume resetting the trial date on the day trial is supposed to begin is inconvenient for the parties and for the court. See State v. Aragon, 1997-NMCA-087, ¶ 22, 123 N.M. 803, 945 P.2d 1021 (“[A]s a general rule, a motion for continuance filed at the last minute is not favored.“). We also note that any additional delay caused by granting defense counsel‘s requested continuance on the day of the trial would have inconvenienced and prejudiced the State, given that Victim was present to testify at trial.
{37} The fifth factor also weighs against granting the motion. The discussions that occurred prior to the September trial setting cast doubt on the purpose of defense counsel‘s request. The lapel video in question, for example, was discussed at the June trial setting in addition to the discussion in September. During the June discussion, the State explained that the recording in its possession was also cut short, and that it would address the officer who wore the camera to confirm the correct length of the recording. Moreover, the metropolitan court judge actually reviewed the recording personally, confirming that defense counsel had in its possession the same recording as the State. The lapel video issue had been raised by defense counsel and resolved by the State and the metropolitan court months before trial. To raise this issue as a basis for continuing trial a third time lacks merit. Defense counsel also argued that officers on the State‘s witness list were not present to testify, and stated the defense would “possibly” call them as witnesses. First, we note that the State is not required to call as witnesses every person on its witness list. The State‘s witness list expressly states: “If the defendant requires the presence of any of the above witnesses, the defendant should subpoena them.” Second, counsel failed to assert or demonstrate that the presence of the officers would materially affect her presentation of a defense.
{38} The parties also dispute the sixth factor, whether the movant caused the need for the delay. Defendant argues that defense counsel did not cause the need for delay. Rather, the fault lies with the use of horizontal representation employed by the metropolitan court trial division of the Office of the Public Defender. As a result, Defendant‘s case passed through numerous attorneys throughout the pretrial process. The metropolitan court took into consideration the fact that Defendant had a new attorney every time the case was called and that counsel present at the trial in September may have had less than the typical amount of time to prepare, noting: “You‘ve had time to prepare . . . not as much as others. Again, he has different attorneys . . . every time he‘s been in here.” As acknowledged by the metropolitan court, this factor weighs in favor of granting the motion.
{39} Finally, the last factor requires the movant to show that a denial of the continuаnce will prejudice the movant. See Salazar, 2007-NMSC-004, ¶ 10 (“Defendant must establish not only an abuse of discretion, but also that the abuse was to the injury of the defendant.” (internal quotation marks and citation omitted)). Defense counsel made no such showing before the metropolitan court. To reiterate, the metropolitan court resolved the issues with the lapel video and the non-existent police report. The metropolitan court also made several
{40} On appeal, Defendant also argues the continuance was necessary tо allow time for counsel to retain an eyewitness identification expert to educate the jury about the likelihood of an erroneous identification. Given that Victim‘s personal identification of Defendant was essential to Defendant‘s guilt or innocence, the absence of an eyewitness expert was detrimental to Defendant‘s case. But this argument was not made to the metropolitan court. Therefore, it was not preserved for review and we decline to consider it.
{41} The metropolitan сourt carefully considered defense counsel‘s motion before denying it, reviewing each one of defense counsel‘s arguments about the lapel video and the police report, and specifically inquiring about whether the officers on the State‘s witness list were essential, which would have shown prejudice to Defendant‘s case. For the foregoing reasons, we cannot conclude the metropolitan court‘s ruling was unfair, arbitrary, or erroneous, or that the court acted beyond the bounds of its discretion by denying the motion. State v. Brazeal, 1990-NMCA-010, ¶ 16, 109 N.M. 752, 790 P.2d 1033 (explaining that a trial court “has broad discretion in ruling on a motion for continuance“); State v. Gonzales, 1991-NMSC-075, ¶ 13, 112 N.M. 544, 817 P.2d 1186 (explaining that a court abuses its discretion only if the court‘s ruling can be “characterized as unfair, arbitrary, or as manifest error“). We affirm the denial of Defendant‘s motion fоr continuance.
CONCLUSION
{42} We hold that Defendant was entitled to an on-record review on appeal in the district court and that the metropolitan court did not abuse its discretion by denying Defendant‘s motion for continuance. Defendant‘s conviction is affirmed.
{43} IT IS SO ORDERED.
STEPHEN G. FRENCH, Judge
I CONCUR:
J. MILES HANISEE, Judge
JONATHAN B. SUTIN, Judge (concurring in part and dissenting in part)
SUTIN, Judge (concurring in part and dissenting in part).
{44} I concur in the majority‘s continuance ruling and respectfully dissent as to its review-standard ruling.
{45} I view the review standard issue as one of policy that places at odds (1) the majority‘s protection of victims of misdemeanor sexual contact outside of domesticity against having to testify twice, and (2) the right of defendants who have been charged with a non-domestic-related misdemeanor to a district court trial de novo. Assuming, without deciding, that we are not confronted with a constitutional deprivation or governance by the province of courts over the Legislature, my choice is to leave the answer for the Legislature, as I now explain.
{46} The crux of my concern is how we interpret the “protection” that the Legislature intends the FVPA to afford to victims of misdemeanor sexual contact. It appears that
{47}
{48}
{49} Thus, I question the analysis in the majority opinion that ties FVPA protection and victim vulnerability to non-household victims of misdemeanor sexual contact. The idea of not requiring a victim of domestic misdemeanor sexual contact to have to testify twice came from the unique circumstances of sexual assault in domestic relationships involving close and continuing long-term relationships. See
JONATHAN B. SUTIN, Judge