State v. Davis ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,760
10 EDWARD DAVIS,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Neil C. Candelaria, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Law Office of Jamison Barkley, LLC
18 Jamison Barkley
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Defendant appeals his conviction for criminal sexual contact of a minor. In our
2 notice, we proposed to affirm the conviction. Defendant has timely responded to our
3 proposal, along with a motion to amend the docketing statement to include additional
2
1 issues. We deny the motion to amend the docketing statement as it does not comply
2 with State v. Moore, 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989),
3 overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.
4 App. 1991). We have considered Defendant’s arguments against our proposed
5 affirmance and not being persuaded, we affirm.
6 In our notice, we proposed to conclude that the district court did not err in
7 excluding the testimony of Detective Chadwell, who had investigated a previous
8 allegation of criminal sexual contact that the victim had allegedly made against a
9 different person. We proposed to conclude that the district court did not abuse its
10 discretion pursuant to State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d
11 869. In response, Defendant argues that the exclusion of Detective Chadwell’s
12 testimony violated his right to confront the witnesses against him. Defendant must
13 show that the evidence was relevant or necessary to his defense before his
14 confrontation rights are at issue. Cf. State v. Stephen F., 2007-NMCA-025, ¶ 18, 141
15 N.M. 199, 152 P.3d 842, aff’d 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84. As we
16 pointed out in our calendar notice, Defendant failed to make any showing regarding
17 how the evidence was relevant or necessary to his defense.
18 Defendant appears to be arguing that he sought to have evidence of prior
19 allegations admitted, which is different from evidence of sexual history. The alleged
20 allegations, however, relate to sexual conduct and are included in the ambit of the
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1 Rape Shield Law. See State v. Casillas, 2009-NMCA-034, ¶¶ 25, 26, 145 N.M. 783,
2 205 P.3d 830. Defendant relies on Manlove v. Sullivan, 108 N.M. 471, 475 n.2, 775
3 P.2d 237, 241 n.2 (1989), to make the distinction. Manlove was decided years before
4 the Supreme Court set out the current test in Johnson for evaluating when such
5 evidence is admissible. Nevertheless, the distinction made in Manlove between sexual
6 conduct and evidence of fabrication is found in Johnson.
7 It simply appears here that Defendant was unable to make a clear enough
8 showing that he sought the evidence solely to attack the veracity of the victim’s
9 allegations. The evidence to be presented here is nothing like that in Manlove. It was
10 the testimony of a police detective who was trying through interview of the victim to
11 verify an allegation made by her mother of sexual contact by another person. The
12 victim never verified the allegation. Defendant has not shown how that evidence is
13 relevant or necessary to his defense.
14 Defendant argues that even assuming that Johnson applies, the first factor does
15 not weigh against him. The first factor requires a clear showing that the complainant
16 committed the prior acts. 1997-NMSC-036, ¶ 27. In its arguments to the district
17 court, the State pointed out that it was not the victim here, but her mother who made
18 the prior allegations. [RP 191] In fact, the victim never disclosed any prior sexual
19 activity. Allegations made by the victim’s mother were referred to CYFD, but the
20 victim herself never reported any sexual activity. Defendant argues that saying that
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1 the victim did not make the prior allegations is impractical and unworkable. He
2 argues that children often report to a parent who then reports to authorities. But, in
3 those cases, the authorities’ follow-up corroborates a child’s report to its parent. Here,
4 the victim did not follow up her mother’s allegation with a report of her own
5 regarding sexual activity. Thus, there is no clear showing that the victim committed
6 the prior acts.
7 We continue to hold that the district court did not abuse its discretion in
8 applying the Johnson factors and excluding the evidence.
9 The two issues regarding instructing the jury on the meaning of “breast” have
10 not been addressed in the memorandum in response to the calendar notice. Therefore,
11 we deem them to have been abandoned. State v. Salenas, 112 N.M. 268, 269, 814
12 P.2d 136, 137 (Ct. App. 1991).
13 For the reasons stated herein and in the notice of proposed disposition, we
14 affirm.
15 IT IS SO ORDERED.
16 _______________________________
17 MICHAEL E. VIGIL, Judge
18 WE CONCUR:
19 _________________________________
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1 CELIA FOY CASTILLO, Chief Judge
2 _________________________________
3 JAMES J. WECHSLER, Judge
6