STATE OF NEW MEXICO, Plaintiff-Appellee, v. ANTHONY SAMORA, Defendant-Appellant.
NO. S-1-SC-34733
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
August 8, 2016
Ross C. Sanchez, District Judge
Bennett J. Baur, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Hector H. Balderas, Attorney General
Steven H. Johnston, Assistant Attorney General
Santa Fe, NM
for Appellee
OPINION
CHÁVEZ, Justice.
{1} Defendant Anthony Samora was accused of luring a sixteen-year-old male into his truck by deception, driving him to a secluded location in Albuquerque, and then forcibly penetrating him in the anus. A jury convicted Defendant of second-degree criminal sexual penetration in the commission of a felony (CSP-felony), contrary to
{2} Because we conclude that it was fundamental error to omit the phrase “without consent” from the jury instructions relevant to CSP-felony, we must reverse Defendant‘s CSP conviction. The same fundamental error also infected the jury‘s findings with respect to Defendant‘s intent to inflict a sexual offense against the alleged victim, and we must therefore also reverse Defendant‘s kidnapping conviction. Accordingly, we remand this case to the district court, where Defendant may be retried on both charges.
I. BACKGROUND
{3} J.Z.1 was at a bus stop in downtown Albuquerque “bugging people for money” so
{4} J.Z. testified that he soon noticed that Defendant was not driving J.Z. toward his house. J.Z. told Defendant he was driving the wrong way, and Defendant did not respond. Defendant eventually stopped the truck in a remote location under a highway underpass. Defendant then punched J.Z. in the head, and J.Z. became “dizzy.” Defendant pulled down J.Z.‘s pants, maneuvered him into a receptive position, got on top of J.Z., and penetrated J.Z.‘s anus with his penis. J.Z. further testified that he tried to escape by opening the passenger-side door of Defendant‘s truck, but the door would not open. After a few minutes Defendant ejaculated and said, “Now I can take you home.” Defendant dropped off J.Z. on the west side of Albuquerque at a gas station near a Walmart. J.Z. testified that he was afraid to call the police because he did not want to be arrested for a probation violation. He also testified that he fought back throughout the encounter but that Defendant threw him around and overpowered him. J.Z. was sixteen years old at the time of the alleged crime.
{5} Two days later, J.Z. was arrested for absconding from juvenile probation. In jail, J.Z. told a counselor that he had been sexually assaulted. J.Z. went through a sexual assault nurse examination (SANE exam) four days after the alleged attack. During the SANE exam, a nurse took swabs from J.Z.‘s anus, penis, and mouth. The nurse found no evidence of any injuries on his body, and no DNA from Defendant was found on the swabs.
{6} After his release from custody about thirty days later, J.Z. told Jennifer Brown, his big sister under the Big Brothers Big Sisters program, what had happened to him and described his attacker, including the fact that the attacker wore a GPS monitor on his belt. Ms. Brown located a photograph of Defendant and Defendant‘s address on a website, and from that website photograph J.Z. recognized Defendant as his attacker. J.Z. drove to the address listed on the website, and J.Z. identified Defendant‘s truck as the truck in which he was attacked. State employees later matched the locations and sequence of Defendant‘s GPS coordinates to those described in J.Z.‘s story.
{7} Defendant was indicted on two counts of criminal sexual penetration in the second degree “by the use of force or coercion on a child thirteen to eighteen years of age” (CSP-force/coercion). Section 30-9-11(E)(1). Each count was alternatively charged as CSP-felony. Section 30-9-11(E)(5). Defendant was also charged with criminal sexual contact of a minor in the fourth degree (CSC), contrary to
{8} At a separate sentencing proceeding, see
II. DISCUSSION
A. Defendant‘s Right to a Speedy Trial Was Not Violated
{9} The Sixth Amendment to the United States Constitution guarantees that
1. Length of the delay
{10} The Court must first determine whether the length of the delay is presumptively prejudicial. “The first factor, the length of delay, has a dual function: it acts as a triggering mechanism for considering the four Barker factors if the delay crosses the threshold of being presumptively prejudicial, and it is an independent factor to consider in evaluating whether a speedy trial violation has occurred.” Serros, 2016-NMSC-008, ¶ 22 (internal quotation marks and citation omitted). Defendant was arrested and indicted on September 8, 2008, and his trial began on November 12, 2013. The State therefore failed to bring the case to trial for more than five years. This delay is presumptively prejudicial, regardless of the complexity of the case. See Serros, 2016-NMSC-008, ¶¶ 21-23 (determining that a delay of more than four years was “presumptively prejudicial irrespective of the case‘s complexity“). This sixty-two-month delay is extraordinary and weighs heavily against the State. Because the delay is presumptively prejudicial, we must consider the remaining Barker factors. Serros, 2016-NMSC-008, ¶ 22.
2. Reasons for the delay
{11} The Court must evaluate “the reason the government assigns to justify the delay,” which “may either heighten or temper the prejudice to the defendant caused by the length of the delay.” Id. ¶ 29 (internal quotation marks and citation omitted). If the State deliberately attempts to delay the trial to hamper the defense, the delay weighs heavily against the State. Id. Negligent or administrative delay must be considered because “the ultimate responsibility for such circumstances must rest with the government,” although such delay is not weighed as heavily against the State. Id. (internal quotation marks and citation omitted). However, “[a]s the length of delay increases, negligent or administrative delay weighs more heavily against the State.” Id. Finally, “‘appropriate delay,’ justified for ‘a valid reason, such as a missing witness,’ is neutral and does not weigh against the State.” Id. (quoting Garza, 2009-NMSC-038, ¶ 27). Delay caused by a defendant weighs against that defendant. See Vermont v. Brillon, 556 U.S. 81, 90, 94 (2009) (holding that the defendant‘s “deliberate attempt to disrupt proceedings” weighed heavily against the defendant).
{12} In this case, the pretrial delay can be grouped into three time periods: (1) from September 8, 2008 until April 2010; (2) from April 2010 until September 2011; and (3) from September 2011 until trial in November 2013.
{13} During the first time period, the parties individually or jointly filed at least a dozen motions for continuance stating a variety of reasons, including to negotiate a
{14} During the second time period, Defendant concedes that he was responsible for delaying the trial from April 2010 until February 2011. However, Defendant was also responsible for the delay from March 2011 until April 2011 because his attorney missed a hearing and filed a motion for a continuance due to a scheduling conflict in another case. On May 2, 2011, Defendant filed a request for judicial recusal. This motion was denied, and the judge found that the motion was filed for the purpose of delaying the trial. On May 6, 2011, Defendant petitioned this Court to issue an extraordinary writ reversing the district judge. We denied the writ on May 27, 2011. The time relating to Defendant‘s petition for an extraordinary writ cannot be weighed against the State, and in any event, Defendant accepted responsibility for this delay. The district court set the trial for September 6, 2011; therefore, we hold that Defendant is solely responsible for the seventeen-month delay from April 2010 to September 2011.
{15} The third time period, the twenty-six-month delay from September 2011 until November 2013, involved the district court‘s consideration of numerous motions filed by both parties and an appeal to this Court. The State appealed an order which excluded a statement Defendant made to his counselor, Tewana Bell, which Bell later relayed to police officers. In that statement, Defendant told Bell that he had sex with someone whose description was consistent with the physical characteristics of the alleged victim. The district court entered its order on December 15, 2011 excluding Defendant‘s statement because of the psychotherapist-patient privilege. See
{16} The State then filed a notice of appeal with the district court on December 16, 2011. The State appealed to the Court of Appeals, which transferred the appeal to this Court pursuant to State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821, because Defendant, if found guilty, might be sentenced to life in prison. For speedy trial purposes in weighing the responsibility assigned to a party for delay caused by an interlocutory appeal, courts may consider several factors, including “the strength of the Government‘s position on the appealed issue, the importance of the issue in the posture of the case, and—in some cases—the seriousness of the crime.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986). Applying the Loud Hawk analysis, we conclude that the delay from the filing of the appeal until our disposition should weigh neutrally because there were no unusual delays. First, the State certified that the appeal was not taken for the purpose of delay and that the evidence would have been substantial proof of a material fact. Second, we are persuaded that the evidence was important because, if admitted, it served as evidence that Defendant admitted to having sex with someone who had the
{17} Further, the three and one-half months of motions from September 6, 2011 until December 16, 2011 and the two and one-half months between our dispositional order and the actual trial on November 12, 2013 are administrative delays which weigh, if at all, only slightly against the State.
{18} To summarize how we have weighed the reasons for the delay, twenty-five months weigh slightly against the State, seventeen months weigh against Defendant, and twenty months weigh neutrally. Considered together, the parties bear a similar responsibility for the delays, and this factor weighs only slightly against the State.
C. Assertion of the right
{19} Under this factor, “[w]e accord weight to the frequency and force of the defendant‘s objections to the delay and analyze the defendant‘s actions with regard to the delay.” State v. Spearman, 2012-NMSC-023, ¶ 31, 283 P.3d 272 (internal quotation marks and citation omitted). This inquiry is “closely related to the other Barker factors, because ‘[t]he strength of [the defendant‘s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that [the defendant] experiences.‘” Garza, 2009-NMSC-038, ¶ 31 (quoting Barker, 407 U.S. at 531) (alterations in original). Further, “[t]he timeliness and vigor with which the right is asserted may be considered as an indication of whether a defendant was denied needed access to [a] speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Serros, 2016-NMSC-008, ¶ 76 (second and third alterations in original) (internal quotation marks and citation omitted).
{20} Defendant did not meaningfully assert his right, and therefore this factor does not support his speedy trial claim. Defendant made a pro forma assertion of his right on October 30, 2008, when the Public Defender Department entered its appearance on his behalf. The only other time he asserted the right was five years later in his October 25, 2013 motion to dismiss on speedy trial grounds. Considered alone, these two assertions would often be enough to weigh this factor slightly in favor of Defendant. See, e.g., Spearman, 2012-NMSC-023, ¶¶ 32-33 (holding that the defendant‘s initial pro forma assertion along with a motion to dismiss based on a speedy trial violation weighed against the State). However, Defendant‘s assertions of the right were mitigated by his acquiescence to, and responsibility for, numerous delays. See Garza, 2009-NMSC-038, ¶ 34 (holding that the defendant‘s assertion of the right at the outset of the case along with a motion to dismiss based on a speedy trial violation weighed “slightly” in the defendant‘s favor where the assertion was not “mitigated . . . by any apparent acquiescence to the delay” by the defendant). In this case, Defendant either stipulated to or did not oppose the State‘s numerous motions for a continuance and was himself responsible for seventeen months of delay. Admittedly, it is difficult to determine whether Defendant only stipulated to the continuances because of the district attorney‘s policy of not allowing plea deals after pretrial interviews with victims. In the petition for continuance filed on December 4, 2009, the State noted that “Defendant has chosen to forgo pretrial interviews of the victims until all written discovery is complete in both cases and to encourage a more favorable plea offer from the State.” This may suggest that Defendant at least partially stipulated to the continuances because of the district attorney‘s policy. Further, in the petition for continuance filed on March 3, 2010, the State said that “[t]he parties are in the process of setting up pretrial interviews and preparing for trial in both cases should negotiations fall through. . . .” While this also may suggest that Defendant stipulated due to the policy, it is certainly not conclusive. If Defendant
Defendant‘s assertion of his speedy trial right only at the very beginning and very end of the pretrial period, his continued stipulations to the State‘s continuances, and his own significant contributions to the delay all show that his assertion of his speedy trial right was only an afterthought, and therefore this factor does not weigh in his favor.
D. Prejudice
{21} This Court must analyze three separate interests to determine whether Defendant suffered prejudice: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Garza, 2009-NMSC-038, ¶ 35 (internal quotation marks and citation omitted). Defendant must make a particularized showing of prejudice to demonstrate a violation of any of the three interests. Id. ¶¶ 35, 37. Because some oppression and anxiety are inevitably suffered by every defendant awaiting trial, “we weigh this factor in the defendant‘s favor only where the pretrial incarceration or the anxiety suffered is undue.” Id. ¶ 35.
{22} Here, Defendant has not asserted any particularized prejudice, such as identifying a witness whose memory may have been impaired by the delay. See Serros, 2016-NMSC-008, ¶ 92 (holding that the inability to interview the very young victim for four years prejudiced the defendant‘s ability to defend himself at trial). Nor has Defendant made a particularized showing that he suffered undue anxiety or oppressive pretrial incarceration. Furthermore, despite being incarcerated for more than five years while awaiting trial in this case, Defendant would have been incarcerated on the new CSP charge brought in September 2009, and other serious criminal charges were also brought against him a year into the pendency of this case. Cf. id. ¶¶ 88-91 (determining that the defendant being held in segregated protective custody on a single charge for over four years was extremely prejudicial). We hold that Defendant did not articulate any particularized prejudice that he suffered as a result of the lengthy delay in this case.
5. Balancing the factors
{23} To find a speedy trial violation without a showing of actual prejudice, the Court must find that the three other Barker factors weigh heavily against the State. Garza, 2009-NMSC-038, ¶ 39. While the extraordinary length of the delay in this case weighs heavily against the State, the reasons for the delay weigh only slightly against the State, and Defendant did not meaningfully assert his speedy trial right. Therefore, we conclude that there was no speedy trial violation. Accordingly, we must examine Defendant‘s other claims.
B. The District Court Committed Fundamental Error by Failing to Instruct on the Consent Element of CSP-Felony
{24} The district court instructed the jury that to convict Defendant of CSP, CSC, or kidnapping, the jury must find beyond a reasonable doubt that he committed an act that was “unlawful.” The jury instructions defined an unlawful act as follows: “For the act to have been unlawful it must have been done with the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity or personal safety of [J.Z.].” This instruction reflected
{25} If unlawfulness is at issue, then consent is an essential element of CSP-felony. CSP is defined, in relevant part, as “the unlawful and intentional causing of a person to engage in anal intercourse . . . whether or not there is any emission.” Section 30-9-11(A). The crime of CSP-felony requires that CSP be perpetrated “in the commission of any other felony.” Section 30-9-11(E)(5). In State v. Stevens, we examined historical sources relevant to CSP-felony and determined that the Legislature “has never deviated from the common law approach of criminalizing only those sex acts that are perpetrated on persons without their consent, either as a matter of fact or, in the case of children or other vulnerable victims, as a matter of law.” 2014-NMSC-011, ¶ 27, 323 P.3d 901. Accordingly, we concluded that the CSP-felony offense was intended to criminalize only “sexual acts perpetrated on persons without their consent . . . .” Id. ¶ 39 (emphasis added). Therefore, to convict under this provision, the jury must determine that the underlying felony was “committed against the victim of, and . . . assist[ed] in the accomplishment of, sexual penetration perpetrated by force or coercion against a victim who, by age or other statutory factor,” did not or could not give lawful consent. Id.
{26} Here, the State provided the unlawfulness jury instruction to the district court and argued that “without consent” had been properly omitted because the issue of consent was “legally irrelevant” to the unlawfulness of CSP-felony in this case under State v. Moore, 2011-NMCA-089, 150 N.M. 512, 263 P.3d 289. Yet, as the State acknowledges on appeal, Moore is inapplicable to this case. Moore held that “the consent of a statutorily defined child is irrelevant to the unlawfulness element of CSP[-felony],” and it was therefore proper in Moore to omit the phrase “without consent” from the jury instructions when the alleged victim was fourteen years old and the defendant was forty-six years old. Id. ¶¶ 13-16. As we noted in Stevens, 2014-NMSC-011, ¶¶ 20, 40, Moore‘s reference to a “statutorily defined child” meant a child “below the age of consent.” The age of consent, and whether the lack of consent is an aspect of the unlawfulness element of CSP, varies statutorily depending on the perpetrator‘s age, the child‘s age, and other factors as follows. Under Section 30-9-11(D), any sexual penetration of a child under thirteen years old is first-degree CSP because the child cannot legally consent to sex. Section 30-9-11(E)(1) punishes as second-degree CSP any sexual penetration of a child between the ages of thirteen and eighteen years old by the use of force or coercion. Under that form of CSP, if the prosecution has proved that force or coercion was used by the perpetrator, it has also necessarily proved that the act was non-consensual, and a separate finding of a lack of consent is not required. See State v. Perea, 2008-NMCA-147, ¶ 9, 145 N.M. 123, 194 P.3d 738 (“Consent of a child between the ages of thirteen and sixteen to engage in sexual intercourse is irrelevant where force or coercion is involved.“). Section 30-9-11(G)(1) punishes any sexual penetration, regardless of consent, where the child is between thirteen and sixteen years old and the perpetrator is at least eighteen years old, is at least four years older than the child, and is not the child‘s spouse. See Moore, 2011-NMCA-089, ¶ 11 (concluding that “[a_child‘s] consent or lack thereof is legally irrelevant” under Section 30-9-11(6)(1)). Finally, under Section 30-9-11(G)(2), consent is irrelevant when the child is between
the ages of thirteen and eighteen years old and the perpetrator is a school employee or volunteer, the perpetrator is at least eighteen years old, is at least four years older than the child, and is not the child‘s spouse, and the perpetrator learns while performing services for the school that the child is a student at the school. Unlike in Moore, where the victim was fourteen years old, whether J.Z. consented to sex with Defendant was legally relevant to the CSP-felony charge because sixteen-year-old J.Z. could have legally consented to sex with Defendant. Therefore, the omission of “without consent” from the jury instructions was erroneous.
{27} Because Defendant failed to object to the proffered jury instruction or
{28} “[I]f the instructions omitted an element which was at issue in the case, the error could be fundamental.” State v. Orosco, 1992-NMSC-006, ¶ 9, 113 N.M. 780, 833 P.2d 1146. Accordingly, we initially examine whether J.Z.‘s consent was at issue in this case to determine whether the omission of this element could be fundamental error. Cf. id. ¶¶ 9-20 (concluding that it was not fundamental error to omit the unlawfulness element of criminal sexual contact of a minor under age thirteen where there was no evidence putting the lawfulness of the alleged acts “in issue,” and therefore “no rational jury could have concluded that defendants had committed the acts without also determining that the acts were performed in the manner proscribed by law“). There is some evidence in the record that could have led the jury to infer that consent was at issue in this case. First, there was no evidence of physical injuries to corroborate J.Z.‘s story that Defendant held him down and forced him to have sex. Second, during his interview with police Defendant did not deny having sex on May 25, 2008, so it would be possible to infer that he had consensual sex with J.Z. on that date. Third, Defendant‘s rigorous cross-examination of J.Z. focused on J.Z.‘s changing account of the alleged sexual assault and his alleged unreliability. If the jury believed that J.Z. was in some way unreliable or not telling the truth, the jurors could have reasonably concluded that Defendant and J.Z. went to a remote location and engaged in consensual sex. Based on this testimony, we conclude that there was sufficient evidence presented to the jury to put consent at issue in this case, and we must therefore determine whether the omission of this essential element was fundamental error.
{29} Fundamental error occurs when jury instructions fail to inform the jurors that the State has the burden of proving an essential element of a crime and we are left with “no way of knowing” whether the jury found that element beyond a reasonable doubt. Swick, 2012-NMSC-018, ¶ 46; see also
{30} Turning to this case, to ascertain whether fundamental error occurred, we must “review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the Defendant‘s conviction was the result of a plain miscarriage of justice.” State v. Sutphin, 2007-NMSC-045, ¶ 19, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and citations omitted). The State argues that if the omission of the entire “unlawful” element was not fundamental error in Stevens, then the district court‘s inclusion of that element and omission of only two words (“without consent“) cannot be fundamental error in this case. However, as we have previously discussed, unlawfulness is at issue in this case, where at age sixteen the alleged victim had passed the age of consent, unlike the thirteen-year-old victim in Stevens who legally could not consent pursuant to
{31} The jury convicted Defendant of kidnapping by finding beyond a reasonable doubt that J.Z. was taken, restrained, confined, or transported by force, intimidation, or deception by Defendant. As part of the kidnapping conviction, the jury also found that Defendant intended to hold J.Z. against his will to inflict death, physical injury, or a sexual offense on him. However, the jury‘s conclusions regarding Defendant‘s act of kidnapping do not establish beyond a reasonable doubt that it considered Defendant‘s separate act of anally penetrating J.Z. to have been non-consensual beyond a reasonable doubt, despite the fact that it found the anal penetration in this case to have taken place during the commission of kidnapping. The jury further found that Defendant committed a “sexual offense” against J.Z. during the kidnapping, despite the absence of a definition of “sexual offense” in the jury instruction. Therefore, the jury also could have reached this finding without an understanding that in this case, it had to find beyond a reasonable doubt that the anal penetration was non-consensual for Defendant‘s act to constitute a sexual offense. Finally, the jury hung on an alternative CSP-force/coercion count with respect to Defendant‘s anal penetration of J.Z. The only significant distinction between the jury instructions regarding CSP-force/coercion and those regarding CSP-felony was that the CSP-force/coercion instruction required the jury to additionally conclude beyond a reasonable doubt that Defendant used physical force, physical violence, or threats of physical force or physical violence against J.Z. While a finding that force or coercion was used during the sexual penetration is certainly not necessary to establish a lack of consent, if the jury had found this element beyond a reasonable doubt under the alternative count, we would have no misgivings in concluding that the jury also necessarily found beyond a reasonable doubt that the sexual penetration in this case was non-consensual. Yet the jury apparently hung on this very element, and we therefore cannot draw any definitive conclusions regarding the jury‘s understanding of the role of consent from their findings regarding the CSP-force/coercion charge.
{32} Moreover, we agree with Defendant that the juror questions submitted during trial hinted at juror confusion regarding the issue of consent. The record indicates that several juror questions were submitted to the district judge after the jurors were provided with the instructions. In one of those questions, a juror asked “[h]ow old you have to be to have consentual [sic] sex...? We think [the SANE nurse] said the age was 13.” Indeed, the SANE nurse who examined J.Z. testified that the age of consent in New
{33} Defendant only requests that his CSP-felony conviction be reversed as a result of this error. However, we are responsible for determining whether this fundamental error also infected his conviction for kidnapping. See State v. Arrendondo, 2012-NMSC-013, ¶ 20, 278 P.3d 517 (concluding that appellate courts have a responsibility to raise issues sua sponte when it is necessary to protect a party‘s fundamental rights); see also State v. Cabezuela, 2011-NMSC-041, ¶ 39, 150 N.M. 654, 265 P.3d 705 (“It is the fundamental right of a criminal defendant to have the jury determine whether each element of the charged offense has been proved by the state beyond a reasonable doubt.” (internal quotation marks and citations omitted)). We conclude that the error of omitting the element of consent from the jury instruction affected the kidnapping conviction. The jury instructions did not define the term “sexual offense” beyond providing the elements of CSP and CSC through other instructions. Because the jury may have been confused or misdirected as to whether consensual sex between J.Z. and Defendant could still be a sexual offense, then the jury‘s finding under the kidnapping charge that Defendant intended to inflict death, physical injury, or a sexual offense on J.Z. was necessarily infected by the same potential confusion, affecting the verdict on the kidnapping charge in this case where there was not sufficient evidence to support the inference that Defendant intended to inflict death or a physical injury on J.Z. Therefore, because we cannot determine whether the jury found that the sexual act was non-consensual beyond a reasonable doubt, we must also reverse Defendant‘s kidnapping conviction for fundamental error.
{34} Because we have determined that we must reverse Defendant‘s convictions for CSP-felony and kidnapping, we are required to determine whether sufficient evidence was presented to support these convictions to avoid double jeopardy concerns should the State seek to retry Defendant. State v. Dowling, 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930; Cabezuela, 2011-NMSC-041, ¶ 40. “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.” Id. ¶ 42 (internal quotation marks and citation omitted). In doing so, we view “the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” Id. (internal quotation marks and citation omitted).
{35} There was sufficient evidence to support Defendant‘s kidnapping and CSP-felony convictions. In this case, the alleged victim‘s testimony was by itself enough to establish every element of each offense beyond a reasonable doubt under a sufficiency of the evidence review. The jury could have reasonably inferred that Defendant took or transported J.Z. by deception based on J.Z.‘s testimony that he got into Defendant‘s truck because Defendant said that he would take J.Z. home. Alternatively, J.Z. also testified that when he tried to escape from Defendant‘s truck, the door was locked—
{36} Because we have determined that the omission of consent from the jury instructions rose to the level of fundamental error and requires reversal of both convictions, we need not reach the other issues raised by Defendant. However, to provide guidance on remand, we address (1) the admission of GPS evidence and online identification evidence, and (2) the scope of Defendant‘s cross-examination of J.Z., but not any of the other arguments raised by Defendant. See State v. Allison, 2000-NMSC-027, ¶ 1, 129 N.M. 566, 11 P.3d 141 (stating that the Court may address additional issues “[f]or guidance upon remand“); State v. Torres, 1999-NMSC-010, ¶ 8, 127 N.M. 20, 976 P.2d 20 (same).
III. The District Court Did Not Abuse Its Discretion by Admitting Evidence Regarding J.Z.‘s Identification of Defendant via the Internet or by Allowing Testimony Regarding the Fact that Defendant Was Subject to GPS Monitoring
{37} Defendant claims that the district court abused its discretion by admitting evidence that he wore a GPS monitoring device and that J.Z. found Defendant‘s picture, name, and address on an Internet website. Absent a clear abuse of discretion, we will not reverse a trial judge‘s decision to admit evidence. State v. Apodaca, 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.” Id. (internal quotation marks and citations omitted).
{38} Prior to trial, Defendant filed a motion to exclude any evidence that he wore a GPS tracker and was subject to GPS monitoring by the State, and any evidence that J.Z. identified Defendant while viewing New Mexico‘s online sex offender registry. The district court ruled that the State could elicit the fact that Defendant was wearing a GPS device, but that it could not describe the nature of Defendant‘s underlying conviction. The district court later specified that if the GPS monitoring information was elicited through the testimony of parole authorities, they should simply be introduced as employees of the State of New Mexico without any further detail. The district court further held that the State could introduce evidence that J.Z. found Defendant‘s picture and other identifying information “on the Internet,” but could not be more specific about the nature of the website.
{39} As an initial matter, we reject Defendant‘s argument that we should consider his offer to stipulate to being with J.Z. at
{40} We also disagree with Defendant‘s contention that admission of “[t]he fact that [Defendant] was on GPS monitoring and that his name and address were listed on a website inexorably leads to one conclusion: he was a convicted sex offender” and that this evidence was therefore improper evidence of prior bad acts under
{41} We reject Defendant‘s additional contention that the probative value of the online identification and GPS evidence was substantially outweighed by a danger of unfair prejudice from its admission under
{42} Finally, we reject Defendant‘s contention that presenting the online identification and GPS evidence improperly bolstered J.Z.‘s credibility. Evidence will be excluded as improper bolstering when it directly comments on a witness‘s credibility, but not when it provides “[i]ncidental verification” of a witness‘s story or only indirectly bolsters that witness‘s credibility. State v. Alberico, 1993-NMSC-047, ¶ 89, 116 N.M. 156, 861 P.2d 192. For example, in State v. Lucero, a psychiatrist‘s testimony was improper bolstering when she commented directly on the victim‘s credibility, repeatedly mentioned that the victim claimed to have been assaulted by the defendant, and opined that the victim‘s post-traumatic stress disorder was caused by sexual molestation. 1993-NMSC-064, ¶¶ 5-6, 15-17, 116 N.M. 450, 863 P.2d 1071. However, in this case the GPS evidence and online identification evidence only corroborated J.Z.‘s testimony; it did not comment directly on his credibility or impinge in any way on the jury‘s role of assessing J.Z.‘s story and determining whether he was telling the truth. Therefore, the admission of this evidence was not an abuse of the district court‘s discretion.
IV. The District Court‘s Limitation of Defendant‘s Cross-Examination of J.Z. Was Not an Abuse of Discretion and Did Not Violate Defendant‘s Rights under the Confrontation Clause
{43} Defendant argues that the district court erred by limiting his cross-examination of J.Z. Generally, “[t]he district court has broad discretion to control the scope of cross-examination, including the discretion to control cross-examination to ensure a fair and efficient trial.” State v. Bent, 2013-NMCA-108, ¶ 10, 328 P.3d 677 (citation omitted). Prior to trial, the State filed a motion seeking to exclude Defendant from using any of J.Z.‘s juvenile adjudications for impeachment purposes, to limit Defendant to only inquiring about the number of J.Z.‘s felony convictions, and to exclude Defendant from using the names of any of those felonies with the exception of J.Z.‘s conviction for commercial burglary. The record indicates that Defendant did not file a written response. The district court held a hearing on this motion and ruled that (a) the names of J.Z.‘s juvenile adjudications were not to be presented to the jury; (b) Defendant could mention J.Z.‘s violations of his juvenile probation right after the alleged incident with Defendant because that was “a matter of motive“; (c) Defendant could not cross-examine J.Z. regarding J.Z.‘s convictions for possession of a firearm by a felon and contributing to the delinquency of a minor as a result of a DWI because “it confuses the jury, it gets [them] into a mini trial,” while J.Z.‘s other felony convictions went to credibility and were fair game; (d) however, Defendant could refer to the existence of these other felony convictions without naming them; and (e) Defendant could ask about charges pending against J.Z., but could not detail those charges and could not bring in extrinsic evidence to prove them.
{44} First, Defendant contends that it was improper to limit cross-examination
{45} As to J.Z.‘s adult convictions, under
{46} Second, Defendant asserts that it was an abuse of discretion for the district court to limit his cross-examination of J.Z. regarding how J.Z. made his living on the streets, including the fact that J.Z. “used and/or sold drugs.” The record reflects that Defendant elicited testimony from J.Z. that J.Z. was hustling, panhandling, and selling drugs to survive on the streets. The district court then cut off any additional questions from Defendant regarding how J.Z. made his living on the streets because the court reasoned that selling drugs and being homeless was impermissible character evidence that was not relevant to any issues either in the case or to J.Z.‘s credibility. However, the district court later allowed Defendant to elicit testimony from J.Z. that he had a bad memory from using drugs, presumably because that testimony was relevant to the jury‘s assessment of J.Z.‘s reliability as a witness. Under these circumstances, we conclude that it was not an abuse of discretion for the district court to limit Defendant‘s cross-examination regarding J.Z.‘s homelessness or drug use since the specific issue of how J.Z. made his living on the streets was of minimal relevance to any issues either in the case or to J.Z.‘s credibility.
{47} Third, Defendant claims that it was an improper abuse of discretion
{48} Fourth and finally, Defendant argues that these limitations on his cross-examination of J.Z. collectively violated Defendant‘s rights under the Confrontation Clause. The Confrontation Clause “guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308, 315 (1974) (internal quotation marks and citation omitted). However, “the trial court retains wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness‘[s] safety, or interrogation that is repetitive or only marginally relevant.” State v. Smith, 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254 (omission in original) (internal quotation marks and citation omitted). Although the extent of cross-examination is within the sound discretion of the district court, we still review de novo whether limits on cross-examination have violated the Confrontation Clause. Id.
{49} We disagree with Defendant‘s argument that the limitations on cross-examination in this case were analogous to those limitations held to be violations of the Confrontation Clause by the United States Supreme Court in Davis. In Davis, the defendant, who was accused of stealing a safe, was prohibited from cross-examining a witness against him regarding the fact that the witness was on probation for burglary. 415 U.S. at 311-12. Davis held that the district court‘s limitations on cross-examination of the witness violated the defendant‘s confrontation rights because he was not permitted to produce evidence to create any record of the reason that the witness might potentially be biased or motivated to lie, such as the witness‘s fear that the police might otherwise suspect the witness of committing the crime, based on his prior criminal history. See id. at 317-18. Instead, “defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Id. By contrast, here the district court‘s limitations on cross-examination did not prevent Defendant from creating a record regarding potential credibility problems with J.Z.‘s testimony. Indeed, the district court specifically did not limit Defendant‘s cross-examination regarding J.Z.‘s prior convictions for crimes of dishonesty, and permitted Defendant to elicit general information illustrating that J.Z. had significant experience with the criminal justice
CONCLUSION
{50} We reverse Defendant‘s convictions for CSP-felony and kidnapping and remand to the district court, where Defendant may be retried on those charges.
{51} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
BARBARA J. VIGIL, Justice