1. Defendant was convicted by a jury of two counts of criminal sexual penetration of a minor, one count of kidnapping, and one
FACTS
2. The events leading up to Defendant’s convictions were alleged to have taken place on June 23, 1992. Victim was then nine years old and knew Defendant because he was her aunt’s boyfriend. Victim testified that she saw Defendant and asked him for a ride to her grandmother’s home, then church. Victim stated that Defendant agreed, but instead drove Victim for a Coke, to his home, then down a dirt road. He allegedly then took off her clothes, hit her, raped and sodomized her. Victim stated that Defendant threatened to have his cousins kill her parents if she told anyone. Victim did not tell anyone about the incident for over two years. She finally told her aunt, resulting in an indictment against Defendant.
DISCUSSION
Use of a Teddy Bear
3. Defendant claims that the 12-year old Victim’s testimony while holding a white teddy bear, approximately 12 by 18 inches in size, was prejudicial and deprived him of a fair trial. He claims the use of the teddy bear created a prejudicial impact making Victim appear more vulnerable and more appealing as a child than she already was.
4. Initially we note that while no specific rule addresses this particular situation directly, our rules of criminal procedure do address situations where a child witness may be too apprehensive to testify. See Rule 5-504, NMRA 1997. Rule 5-504(A) allows for the use of videotape testimony upon a “showing that the child may be unable to testify without suffering unreasonаble and unnecessary mental or emotional harm.” The trial court must make the requisite findings that the individualized harm to a child victim outweighs defendant’s right to a face-to-face confrontation with his accusers. See State v. Fairweather,
5. In addition, trial courts are allowed latitude in exercising “reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, ... and (3) protect witnesses from harassment or undue embarrassment.” Rule 11-611(A), NMRA 1997. The exercise of the trial court’s authority under Rule 11-611 is reviewed for an abuse of discretion. See State v. Smith,
6. Other jurisdictions have addressed the issue of allowing child victims comfort items or other comfort measures to facilitate testimony. In State v. Palabay,
7. In State v. Cliff,
8. In People v. Gutkaiss,
9. In a decision that is clearly distinguishable, the Arizona Supreme Court overturned a murder conviction due to the victim’s daughter testifying with a doll. State v. Gevrez,
10. Also, a number of courts have found no reversible error when a support person accompanied a young victim-witness while testifying. Carol A. Crocca, Annotation, Propriety and Prejudicial Effect of Third Party Accоmpanying or Rendering Support to Witness During Testimony,
11. Under federal law, 18 U.S.C.A. § 3509(i)(1993) allows the use of adult attendants to accompany a child on the witness stand in federal trials. The act provides that the court “may allow the adult attendant to hold the child’s hand or allow the child to sit on the adult attendant’s lap throughout the course of the proceeding .” Id.
12. Even the use of prosecutors as support persons has been upheld as not being prejudicial error, and therefore nоt reversible, despite appellate courts being critical of the practice. The Alabama Court of Criminal
The Trial Court’s Finding of Necessity for Victim to Hold a Teddy Bear
13. We review the trial court’s decision to allow the child Victim to testify with a teddy bear under an abuse of discretion standard. An abuse of discretion will be found only when the trial court’s decision is clearly untenable or contrary to logic and reason. State v. Woodward, 1995 NMSC 082, ¶ 6,
14.Defense counsel rаised the issue of the 12-year old child Victim testifying with a teddy bear during pre-trial motions (just pri-, or to the start of the trial). Victim had previously testified with the teddy bear before the grand jury. She had also given a videotaped interview at a shelter without the teddy bear. The defense contended that having the Victim testify with the aid of a teddy bear would be prejudicial. Defense counsel argued that the teddy bear was a prop that signified to the jury a child’s innocence and childishness and presented a visual signal to the jury. The court recognized that 12-year olds are of varying levels of maturity and that some 12-year olds would have a need for such security while others would not need a comfort item. The prosecution argued that it was appropriate to allow the Victim to hold the teddy bear to assist her in coping with the traumatic situation of testifying and that a 12-year old was still a child. The court stated, “I honestly don’t see any visual signal given to the jury by the presence of a teddy bear, but I’ll certainly talk with her about whether it’s an issue that wе need to deal with or not. I’ll ask questions.”
15. Immediately after opening statements, the jury was recessed and the court and defense counsel questioned Victim about the need for the teddy .bear. The court asked Victim her name, asked about telling the truth, her age, her birthday, about school, including what grade she was in, her academic performance and what grade she had repeated. The court also asked a series of questions about the teddy bear. The trial court then allowed defense counsel to ask Victim questions relating to the teddy bear.
16. Defense counsel asked the trial court to have her try to testify without the teddy bear, but if she needed it that he would not object. The court stated that it believed that following that procedure would just emphasize the role of the teddy bear. The court ruled that Victim could testify holding the teddy bear. The court stated, “I’m not inclined to make this situation anymore difficult. She’s indicated that she prefers the teddy bear. I can’t see that the jury would be prejudiced by its рresence. Counsel is certainly free to ask questions concerning its presence, but I’m not going to bar it.”
17. The trial court determined that Victim would be comforted by the use of the teddy bear. We cannot say that his decision was untenable, nor contrary to logic and reason. See Woodward, 1995 NMSC 082, ¶ 6,
Amendment of Indictment
18. Defendant claims that he was denied his defense because the trial court allowed the indictment to be amended. The
19. The trial court granted the State’s motion to amend the indictment to conform to the evidence reflecting the correct date of the incident. The trial court noted that Defendant was not relying on an alibi defense and ruled that Defendant was not prejudiced by the amendment. The trial court gave Defendant the opportunity to request a continuance if he needed more time “to attеmpt to ascertain if there’s a possible alibi that would be available,” regarding the 1993 date. Defense counsel, after a discussion with Defendant, stated that “a delay is not going to assist materially in this matter.”
20. Rule 5-204(C), NMRA 1997 states:
No variance between those allegations of a complaint, indictment, information or any supplemental pleading which stаte the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be ground for the acquittal of the defendant unless such variance prejudices substantial rights of the defendant. The court may at any time allow the indictment or information to be amended in respect to any variance to conform to the evidence. If the court finds that the defendant has been prejudiced by an amendment, the court may postpone the trial or grant such other relief as may be proper under the circumstances.
A variance is not fatal unless the accused cannot reasonably anticipate from the indictment what the nature of the proof against him will be. State v. Johnson,
21. Defendant appears to have been aware of the nature of the charges against him. He knew the identity of the alleged Victim, and he was aware of the mistake in the date from the beginning of the trial. When the trial court allowed amendment of the date, the court offered Defendant a continuance, which Defendant chose not to accept. The remedy afforded for prejudice by an amendment is to “postpone thе trial or grant such other relief as may be proper under the circumstances.” Rule 5-204(C). Additionally, Defendant did not rely upon an alibi defense. Therefore, Defendant was not prejudiced by the amendment of the indictment during the trial. We hold that the trial court did not err in allowing the indictment to be amended.
Testimony of Corroborating Witness
22. Defendant argues that he was denied his defеnse when the trial court ruled that he could not present the testimony of a corroborating witness. The trial court determined that the testimony could have some limited relevance on the issue of bias, but that its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideratiоn of undue delay, waste of time or needless presentation of cumulative evidence.
23. Defendant testified himself that Victim’s mother had coerced Victim into making up the story because Victim’s mother and her husband used to demand money from Defendant at his place of work. The trial court did not allow corroboration of this testimony by a co-worker of Defendant. The court made a finding that testimony of an additional witness to the same incident was cumulative evidence and was too prejudicial.
24. “[D]etermining whether the prejudicial impact of evidence outweighs its probative value is left to the discretion of the trial court.” State v. Wilson,
25. In this instance, there is no evidence that the trial court abused its discretion. The trial court heard from both sides, allowed Defendant to testify to his theory of bias and did not allow cumulative evidence. The trial court was concerned about creating “a trial within a trial.” Under these circumstances, we hold that it was not error to exclude this cumulative evidence.
CONCLUSION
26. For the foregoing reasons, we affirm Defendant’s convictions on all counts.
27. IT IS SO ORDERED.