STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICK ADAM TRUJILLO, Defendant-Appellant.
Docket No. 30,281
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
May 24, 2012
2012-NMCA-092
Certiorari Denied, July 19, 2012, No. 33,665; Certiorari Denied, August 1, 2012, No. 33,678
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} Defendant Nick Adam Trujillo appeals his conviction for second degree criminal sexual contact of a minor (CSCM). Defendant argues that (1) the State presented insufficient evidence to support Defendant‘s conviction, (2) the district court deprived Defendant of his rights to due process and confrontation by not requiring the police case agent to testify, and (3) the district court erred in sentencing Defendant for second degree CSCM because (a) the jury was instructed using the third degree CSCM jury instruction, or, alternatively, (b) Defendant‘s conduct did not violate the statute for second degree CSCM,
BACKGROUND
{2} A jury found Defendant guilty of second degree CSCM, contrary to
{3} Defendant presented testimony from Mother that C.A. did not stay at the house with her, Defendant, and C.A.‘s siblings on the night of the incident. Mother additionally testified that C.A. always wanted to be the focus of attention and was jealous of Defendant and her siblings, and, therefore, Mother and C.A. were not close. Mother also testified that C.A. had previously made similar allegations about Mother‘s ex-boyfriend and his father.
{4} After the jury returned its verdict, Defendant filed a motion to amend the degree of the charge, arguing that Defendant‘s conduct was not prescribed by
SUFFICIENCY OF THE EVIDENCE
{5} Defendant contends that the State failed to present sufficient evidence that he intentionally caused C.A. to touch his unclothed penis. We review the sufficiency of the evidence pursuant to a substantial evidence standard. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). “The relevant question is whether, after viewing
{6} In order for the jury to find Defendant guilty of CSCM, the State had to prove that (1) Defendant caused C.A. to touch his unclothed penis, and (2) C.A. was twelve years of age or under. C.A.‘s testimony regarding the incident was sufficient for a reasonable jury to conclude that Defendant committed CSCM by causing C.A. to touch his unclothed penis. See State v. Nichols, 2006-NMCA-017, ¶¶ 5-11, 139 N.M. 72, 128 P.3d 500 (holding that the victim‘s partially impeached testimony was sufficient evidence to convict a defendant for criminal sexual penetration). Although Defendant argues that the evidence did not support a conclusion that he acted intentionally, “[i]ntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.” State v. Sosa, 2000-NMSC-036, ¶ 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation omitted). In this case, the evidence that Defendant caused C.A. to touch his unclothed penis by grabbing her wrist, while in bed, with his eyes open, is sufficient to infer that he committed CSCM intentionally.
{7} Defendant points to contrary evidence in support of his argument that the State failed to prove that he intentionally committed CSCM. He argues that the evidence established that there was no source of light in the bedroom where the events occurred because the electricity was out, the lights were off, and the curtains were closed, and, therefore, C.A. could not have seen whether Defendant‘s eyes were open. Further, Mother testified that C.A. stayed at a friend‘s house the night of the incident, and Defendant “vehemently denied the allegations below.” Although this evidence may support Defendant‘s denial of the allegations, it is not the role of this Court to substitute our judgment for that of the factfinder. See Hernandez, 115 N.M. at 26, 846 P.2d at 332. Further, “it is the role of the factfinder to judge the credibility of witnesses and determine the weight of evidence.” State v. LaPietra, 2010-NMCA-009, ¶ 11, 147 N.M. 569, 226 P.3d 668 (alteration, internal quotation marks, and citation omitted).
CASE AGENT‘S TESTIMONY
{8} Defendant argues that the district court violated his confrontation right to cross-examine witnesses and his due process rights because the district court did not require the police case agent to testify at trial and, thereby, did not allow him to present a likely defense. As both issues present a question of law, we review de novo. See State v. Gonzales, 1999-NMSC-033, ¶ 22, 128 N.M. 44, 989 P.2d 419 (“Confrontation Clause claims are issues of law that we review de novo.” (internal quotation marks and citation omitted)); State v. Johnson, 2004-NMCA-058, ¶ 12, 135 N.M. 567, 92 P.3d 13 (reviewing a defendant‘s claim that witness testimony violated his due process rights de novo).
{9} Four days before trial, the State informed the district court that Detective Randy Pitcock, the case agent who conducted the investigation, was going to be on vacation during the trial. The State had listed Detective Pitcock on its witness list and had subpoenaed him for trial. However, the State told the district court that it did not want the matter continued, and Detective Pitcock would probably not be called as a witness. The State further told the district court that it did not need Detective Pitcock‘s testimony to prove its case. Defense counsel did not subpoena Detective Pitcock and stated that it was not defense‘s practice to subpoena the case agent or other officers.
{11} At the conclusion of trial, defense counsel raised a number of perceived issues regarding Detective Pitcock‘s absence. He argued that Detective Pitcock‘s absence did not allow Defendant to present evidence regarding (1) prior allegations made by C.A. against her stepfather two years earlier, which Detective Pitcock noted in his report; (2) Defendant‘s denial of the allegations and calm demeanor when arrested; (3) any information Detective Pitcock had regarding whether C.A.‘s residence had electricity the night of the incident, as well as Detective Pitcock‘s specialized knowledge in these types of cases; (4) whether Detective Pitcock collected clothing, bedding, or photographs at the scene; and (5) whether Detective Pitcock investigated claims that C.A. stayed at a friend‘s house, including whether Mother drove C.A. to school the day after the alleged incident.
{12} Defendant first argues that by not requiring Detective Pitcock to testify, the district court violated his confrontation rights because he was not able to cross-examine witnesses and ensure the reliability of the evidence presented by the State. In support, Defendant cites cases addressing whether the trial court unduly restricted the scope of cross-examination of a prosecution witness. See Olden v. Kentucky, 488 U.S. 227, 229-33 (1988) (addressing whether the trial court unduly restricted the scope of cross-examination by not allowing the defendant to cross-examine the alleged victim whether she was having an affair, which was relevant to her motive); Chambers v. Mississippi, 410 U.S. 284, 294-303 (1973) (addressing whether the trial court erred by not allowing cross-examination of a person who confessed to the crime because of a state evidentiary rule); State v. Smith, 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254 (addressing whether the district court unduly limited the cross-examination of two state witnesses); State v. Martinez, 1996-NMCA-109, ¶ 14, 122 N.M. 476, 927 P.2d 31 (addressing whether the district court unduly restricted cross-examination of a state witness by not allowing the defendant to inquire into whether he received leniency from the state). However, this is not a case in which the district court limited the scope of cross-examination of a State witness or admitted testimonial evidence without allowing Defendant to cross-examine its source. The State did not call Detective Pitcock as a witness or use information from his investigation in proving its case. Under these circumstances, the district court‘s actions did not implicate Defendant‘s confrontation rights. See State v. Romero, 2006-NMCA-045, ¶ 46, 139 N.M. 386, 133 P.3d 842 (stating that the confrontation clause applies only to testimonial statements including “(1) ex parte in-court testimony or its functional equivalent . . .; (2) extrajudicial statements . . . contained in formalized testimonial materials . . .; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” (internal quotation marks and citation omitted)).
{13} Defendant further argues that the district court‘s failure to require Detective Pitcock to testify violated his due process and compulsory process rights because “the admission of evidence that is relevant and necessary to a fair determination of the issue of . . . [D]efendant‘s guilt or innocence is compelled by constitutional due process.” See Rock v. Arkansas, 483 U.S. 44, 46-49, 62 (1987) (holding that the trial court violated the defendant‘s right to present a defense and the right to compulsory process by not allowing the defendant‘s hypnotically-refreshed testimony); Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (holding that the trial
DEGREE OF CHARGE
{14} The State instructed the jury that “to find . . . [D]efendant guilty of [CSCM], the [S]tate must prove to your satisfaction beyond a reasonable doubt [that D]efendant caused [C.A.] to touch the unclothed penis of . . . [D]efendant.” This instruction was modeled after UJI 14-925 NMRA (2005) (amended 2010), which was the uniform jury instruction in effect at the time for third degree CSCM. In relevant part, UJI 14-925 (2005) requires that the state prove that “[t]he defendant . . . caused ________ (name of victim) to touch the ________ [part of anatomy touched] of the defendant[.]” The State inserted “unclothed penis” as the part of the anatomy touched, and the district court gave the instruction to the jury, determining that it accurately reflected second degree CSCM.
{15} Defendant argues that the district court erred by sentencing Defendant for second degree CSCM because the State instructed the jury using the language of the uniform jury instruction for third degree CSCM. Defendant‘s claim is that no jury instruction existed at the time for second degree CSCM and that the State did not properly modify the third degree CSCM instruction to reflect the second degree charge and, therefore, the district court erred by sentencing Defendant for second degree CSCM. Alternatively, Defendant argues that his conduct as reflected by the jury instruction was legally insufficient to support a second degree CSCM conviction, and, therefore, the district court erred in not granting his motion to amend the degree of charge.
{16} Regardless of whether the issue is framed as an illegal sentence or a legally insufficient jury instruction, our inquiry is the same: whether Defendant‘s conduct, causing C.A. to touch Defendant‘s unclothed penis, as reflected in the jury instruction, is second degree or third degree CSCM under
{17} We begin by looking at the relevant statutory provisions.
{18} Applying the plain meaning of
{19} The State argues that our interpretation of
{20} Although we acknowledge the State‘s argument, the State‘s construction of
{21} The State cites State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747, State v. Davis, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064, and State v. Rivera, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939, for the proposition that this Court has a “policy
{22} Second degree CSCM as defined in
CONCLUSION
{23} The State presented sufficient evidence to support Defendant‘s conviction, and the district court did not violate Defendant‘s confrontation or due process rights. However, because Defendant‘s conduct was a third degree felony under
{24} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
LINDA M. VANZI, Judge
Topic Index for State v. Trujillo, No. 30,281
APPEAL AND ERROR
Remand
Standard of Review
Substantial or Sufficient Evidence
CONSTITUTIONAL LAW
Confrontation
Due Process
CRIMINAL LAW
Sexual Exploitation of Children
Sexual Offenses
CRIMINAL PROCEDURE
Jury Instructions
Sentencing
JURY INSTRUCTIONS
Criminal Jury Instructions
Improper Jury Instruction
STATUTES
Interpretation
Legislative Intent