State v. Green ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 30,816
5 BLAKE GREEN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 William G. Shoobridge, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 Jacqueline R. Medina, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Jacqueline L. Cooper, Chief Public Defender
15 Adrianne R. Turner, Assistant Appellate Defender
16 Tania Shahani, Assistant Appellate Defender
17 Santa Fe, NM
18 for Appellant
19 MEMORANDUM OPINION
20 VANZI, Judge.
1 Defendant Blake Green appeals his convictions from a verdict finding him
2 guilty of second degree criminal sexual penetration of a minor (CSPM) and fourth
3 degree criminal sexual contact of a minor (CSCM). Defendant raises six issues on
4 appeal: (1) there was insufficient evidence of force or coercion to sustain his
5 convictions; (2) the district court committed fundamental error when it did not provide
6 the jury with N.P.’s testimony during deliberations; (3) the district court improperly
7 coerced the jury by giving a shotgun instruction; (4) it was error to allow the State to
8 amend the criminal information on the day of trial; (5) the district court erred in failing
9 to grant defense counsel’s request for a continuance; and (6) trial counsel was
10 ineffective. We reverse Defendant’s conviction for CSCM. As a result, we need not
11 reach whether N.P.’s testimony should have been provided to the jury during
12 deliberations. We affirm on the remaining issues.
13 BACKGROUND
14 Because the parties are familiar with the factual and procedural background and
15 because this is a memorandum opinion, we do not provide detailed background
16 information. We address the facts and procedure as necessary in the context of our
17 analysis. We begin with the issue of whether there was sufficient evidence to sustain
18 Defendant’s convictions for CSPM and CSCM and then turn to Defendant’s
19 remaining arguments.
20 Sufficiency of the Evidence
2
1 Defendant contends that the State failed to present sufficient evidence of force
2 or coercion to support his convictions for CSPM and CSCM. We review sufficiency
3 of the evidence challenges under a substantial evidence standard. State v. Riley, 2010-
4 NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656. In applying this standard, we view
5 the evidence in the light most favorable to the verdict, indulging all reasonable
6 inferences and resolving all conflicts in favor of the verdict. Id. “The relevant
7 question is whether, after viewing the evidence in the light most favorable to the
8 prosecution, any rational trier of fact could have found the essential elements of the
9 crime beyond a reasonable doubt.” State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862,
10 867 (1992) (emphasis, alteration, internal quotation marks, and citation omitted). This
11 Court does not reweigh the evidence nor substitute its judgment for that of the jury
12 concerning the credibility of witnesses. Id.13 Defendant’s Conviction for CSPM is Supported by Substantial Evidence
14 Defendant was charged with one count of CSPM in the second degree (child
15 13-16), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009), as a result of an
16 incident involving the fourteen-year-old victim, B.P. To convict Defendant of CSPM
17 by force or coercion, the jury was instructed that it had to find each of the following
18 elements beyond a reasonable doubt:
19 1. [D]efendant caused [B.P.] to engage in sexual intercourse;
20 2. [B.P.] was at least 13 but less than 18 years old;
21 3. [D]efendant used physical force against [B.P.];
3
1 4. This happened in New Mexico on or about the 10th day of May,
2 2009.
3 In addition, the jury was instructed that sexual intercourse means the penetration of
4 the vagina, the female sex organ, by the penis, the male sex organ, to any extent.
5 Defendant argues that the State failed to establish sufficient evidence for this
6 CSPM conviction. Specifically, and without explanation, Defendant contends merely
7 that “B.P.’s testimony does not establish the element of physical force.” Based on the
8 evidence at trial, we disagree.
9 B.P. testified that on May 10, 2009, she and her sister were watching movies
10 with their cousin and some other people at the home where Defendant lived. While
11 they were watching movies, Defendant took B.P.’s phone and typed a message on it
12 telling her to go to the back room, that he would be in in a minute to rub her back, and
13 that she could have his bed for the night. B.P. knew Defendant for five or six years
14 and considered him to be like a brother. B.P. also testified that she preferred to sleep
15 in a bed rather than on the couch, so she accepted Defendant’s offer. Defendant
16 followed B.P. into the bedroom, shut the door, and started touching and kissing her.
17 B.P. testified that she repeatedly asked Defendant to stop, told him that she had a
18 boyfriend, and that she didn’t want to do this. Defendant did not stop but continued
19 touching and kissing her, and he put his penis inside B.P.’s vagina and started to have
4
1 sex with her. B.P. tried to push Defendant away, but Defendant forced himself upon
2 her until he came. B.P. testified that she felt like she was being forced and used.
3 In addition to B.P.’s testimony, the jury heard from a sexual assault nurse
4 examiner (SANE) and a forensic DNA analyst. The SANE testified that she observed
5 a linear vaginal tear on B.P. that was about an inch in length. This type of injury, she
6 said, is very common in sexual assaults. The DNA analyst testified that, to a
7 reasonable degree of certainty, the DNA test revealed that the semen found on B.P.’s
8 cervix belonged to Defendant.
9 We conclude that sufficient evidence supports the jury’s determination that
10 Defendant used force on B.P. We have previously said that there is no specific
11 quantum of force necessary to fulfill the element of “force or coercion.” State v.
12 Perea, 2008-NMCA-147, ¶¶ 12, 13, 145 N.M. 123, 194 P.3d 738. In Perea, we held
13 there was sufficient evidence of force where the defendant ignored the victim’s
14 statement that she was not ready and did not want to have sex, and the defendant
15 persisted in having sex with the victim after she asked him to stop. Id. Such is the
16 case here where B.P. testified that she asked Defendant to stop, but he persisted in
17 having sex with her, and she had an injury consistent with a sexual assault.
18 Defendant’s conviction for CSPM by force or coercion is supported by substantial
19 evidence.
20 The Conviction for CSCM is Not Supported by Substantial Evidence
5
1 Defendant next argues that the State failed to establish sufficient evidence to
2 support his conviction for CSCM under NMSA 1978, Section 30-9-13(D) (2003). We
3 agree with Defendant.
4 In order to convict Defendant of CSCM, the jury was instructed that it had to
5 find beyond a reasonable doubt that:
6 1. [D]efendant touched or applied force to the breast of [N.P.];
7 2. [D]efendant used physical force or physical violence;
8 3. [N.P.] was at least 13 but less than 18 years old;
9 4. This happened in New Mexico on or about the 10th day of May
10 2009.
11 N.P. testified as follows. On the evening of May 10, 2009, she was sitting on
12 the couch with her sister, B.P., her cousin, her cousin’s boyfriend, and Defendant.
13 Defendant touched N.P. on her breast, and he “just kissed [her] that’s all.” N.P.
14 testified that Defendant then put his hand on her pants, and she told him “no.” After
15 she told him “no,” Defendant “just quit.” She then fell asleep where she was seated
16 next to Defendant.
17 The State contends that the above testimony that Defendant touched N.P. on her
18 breast is sufficient to sustain the CSCM conviction and that “[t]he defense presented
19 no evidence to support a claim that somehow this was an accidental touching or a
20 touching carried out without the use of physical force.” The State’s position is not in
21 accord with the law that places the burden on the State to prove the elements of the
22 charged crime. UJI 14-5060 NMRA. That burden does not fall to Defendant.
6
1 Importantly, the State does not provide any evidence or argument as to how the
2 element of “force or coercion” was met in this instance. In fact, the State’s contention
3 is belied by its admission that on the day of the incident, N.P. told the police officer
4 that Defendant “grabbed her right breast and squeezed it” and that “[i]t appears that
5 the prosecutor thought he elicited testimony regarding these acts during trial.”
6 (Emphasis added.) Clearly, this testimony was not elicited during trial as the State
7 does not point to it anywhere in the record. Accordingly, we conclude that the State
8 failed to meet its burden of establishing all of the elements set forth in the jury
9 instruction. Defendant’s conviction for CSCM is reversed. Because we reverse
10 Defendant’s conviction for CSCM, we need not reach his argument that the district
11 court erred when it did not provide the jury with a transcript of N.P.’s testimony
12 during jury deliberations.
13 The District Court Did Not Coerce the Jury With a Shotgun Instruction
14 Defendant argues that the district court unduly coerced the verdicts by telling
15 the jury that a mistrial would be declared if they were unable to reach a unanimous
16 verdict. Defendant contends that the district court’s instruction was tantamount to an
17 improper “shotgun” instruction. For the reasons that follow, we hold that the district
18 court did not issue a shotgun instruction to the jury in this case.
19 After deliberating for two hours, the jury sent out a question asking the court,
20 “What if we cannot agree on both counts?” The district court proposed to reply, “The
7
1 jury may at any time during its deliberations return a verdict with respect to any count
2 upon which it has agreed. If the jury is unable to agree upon any count, a mistrial
3 would be declared as to that count.” Defense counsel did not object to the proposed
4 instruction. Because Defendant did not object below, we review his argument for
5 fundamental error. “Fundamental error is an exception to the rule that parties must
6 preserve issues for appeal.” State v. Cortez, 2007-NMCA-054, ¶ 5, 141 N.M. 623,
7 159 P.3d 1108; see State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998
8 P.2d 176 (holding that jury instructions are reviewed for fundamental error when no
9 objection was raised below).
10 A shotgun instruction directing a deadlocked jury that it must continue
11 deliberating is prohibited in New Mexico. UJI 14-6030 NMRA (setting out a shotgun
12 instruction and stating that “[n]o instruction on this subject shall be given”); State v.
13 McCarter, 93 N.M. 708, 711, 604 P.2d 1242, 1245 (1980); Cortez, 2007-NMCA-054,
14 ¶ 8. Accordingly, in the event that a jury becomes deadlocked, “[t]he court can inform
15 the jury that it may consider further deliberations, but not that it must consider further
16 deliberations.” McCarter, 93 N.M. at 710, 604 P.2d at 1244 (reversing conviction
17 where the district court instructed a deadlocked jury that it must consider further
18 deliberations). A shotgun instruction is coercive in that it could be perceived as a
19 lecture to a holdout juror who does not favor conviction. Id. at 710, 604 P.2d at 1244;
20 see Cortez, 2007-NMCA-054, ¶ 14 (“Any effort by the court to persuade the jury to
8
1 reach an agreement after reporting its numerical split may be interpreted by the
2 minority as an implied command to agree with the majority.” (alterations, internal
3 quotation marks, and citation omitted)).
4 Nevertheless, we note that the district court has a duty to respond to a jury’s
5 queries regarding legal standards and procedures. See generally State v. Juan, 2010-
6 NMSC-041, ¶ 16, 148 N.M. 747, 242 P.3d 314. “[W]hen a jury communicates with
7 the district court during deliberations and expresses its inability to arrive at a verdict,
8 the judge must communicate with that jury in some fashion.” State v. Laney, 2003-
9 NMCA-144, ¶ 52, 134 N.M. 648, 81 P.3d 591 (internal quotation marks and citation
10 omitted). “When a jury makes explicit its difficulties a trial judge should clear them
11 away with concrete accuracy.” Juan, 2010-NMSC-041, ¶ 16 (internal quotation
12 marks and citation omitted). Indeed, failure to respond to a jury’s question is
13 reversible error where the court’s silence effectively coerces the jury’s verdict. See
14 id. ¶¶ 18-19 (reversing conviction because the district court’s refusal to respond to
15 jury’s inquiry about “whether a non-verdict or a hung jury was an option” left the jury
16 with the impression that it must continue its deliberations indefinitely (alteration and
17 internal quotation marks omitted)).
18 In this case, we conclude that the district court did not issue a shotgun
19 instruction. Instead, it was simply meeting its duty to clarify procedural issues for the
20 jury. Unlike McCarter, where the court told the jury it must continue deliberating, the
9
1 district court here informed the jury that it could either return a verdict, or, in the
2 alternative, a mistrial would be declared with respect to the count upon which the jury
3 disagreed. This instruction was consonant with the holdings in McCarter and its
4 progeny because the district court’s response left the decision to continue deliberating
5 in the hands of the jury.
6 It Was Not Error to Allow the Prosecution to Amend the Criminal Information
7 Defendant contends that the district court erred in allowing the State to amend
8 the criminal information on the day of trial because he lacked time to prepare a
9 defense. Defendant challenges only the amendment to Count I, which amended the
10 description of the CSPM-II charge to “sexual intercourse through force or coercion”
11 from the original criminal information, which alleged Defendant used his position of
12 authority “to coerce [B.P.] to submit to the sexual act[.]” The State maintains that
13 since the amendment did not charge Defendant with a new offense or add an
14 additional charge, the amendment was proper under Rule 5-204(A) NMRA. For the
15 reasons that follow, we agree with the State.
16 Due process requires that “[e]very accused . . . be informed of the crime with
17 which he is charged in sufficient detail to enable him to prepare his defense.” State
18 v. Foster, 87 N.M. 155, 157, 530 P.2d 949, 951 (Ct. App. 1975). The purpose of a
19 criminal information is to “furnish the accused with such a description of the charge
20 against him as will enable him to make a defense . . . and to give the court reasonable
10
1 information as to the nature and character of the crime charged.” State v. Myers,
2 2009-NMSC-016, ¶ 43, 146 N.M. 128, 207 P.3d 1105 (citation omitted). Errors in a
3 criminal information, therefore, are not fatal “unless the accused cannot reasonably
4 anticipate from the [criminal information] what the nature of the proof against him
5 will be.” State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070.
6 Criminal pleadings should not be held invalid merely for technical defects, errors, or
7 omissions. Rule 5-204 NMRA, Committee commentary.
8 Rule 5-204(A) NMRA provides in pertinent part:
9 The court may at any time prior to a verdict cause the complaint,
10 indictment or information to be amended in respect to any . . . defect,
11 error, omission or repugnancy if no additional or different offense is
12 charged and if substantial rights of the defendant are not prejudiced.
13 Thus, to determine whether the district court properly allowed amendment of a
14 criminal information, we must ask (1) whether an additional or different offense was
15 charged, and (2) if any substantial rights of Defendant were prejudiced. State v.
16 Dietrich, 2009-NMCA-031, ¶ 64, 145 N.M. 733, 204 P.3d 748. As with all rules of
17 procedure, we review the district court’s interpretation of Rule 5-204 de novo. State
18 v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602, overruled on other
19 grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; State v.
20 Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184.
11
1 An additional or different offense is charged when the amended information
2 raises “an entirely new offense with elements separate and apart from those in the
3 original criminal information.” State v. Roman, 1998-NMCA-132, ¶ 14, 125 N.M.
4 688, 964 P.2d 852. In Roman, an attempted murder trial, the State amended the
5 criminal information to include a charge of shooting at an occupied dwelling after the
6 defendant testified he heard someone shout from inside the mobile home upon which
7 he had opened fire. Id. ¶¶ 2-4. There, we held the amendment violated Rule 5-204
8 because the defendant did not have notice of the charge against him, given that
9 shooting at an occupied dwelling was not a lesser included offense of any of the other
10 charges. Roman, 1998-NMCA-132, ¶ 14.
11 In contrast, here, Defendant was not charged with an additional or different
12 offense under the amended criminal information. In both the original and the
13 amended criminal information, the State alleged that on May 10, 2009, Defendant
14 committed CSPM-II in violation of Section 30-9-11(E)(1). Because the original
15 criminal information listed the crime charged and the date of alleged incident,
16 Defendant was on notice as to the definition of CSPM-II and the elements he would
17 need to defend against at trial. See Myers, 2009-NMSC-016, ¶ 46 (affirming the
18 defendant’s conviction where the defendant knew prior to trial what conduct provided
19 the factual basis for the crimes with which he was charged); see also Dietrich, 2009-
20 NMCA-031, ¶ 67 (holding that amending an indictment to conform to language in
12
1 amended statute did not improperly charge the defendant with an additional or
2 different offense); State v. Vigil, 85 N.M. 328, 329-30, 512 P.2d 88, 89-90 (Ct. App.
3 1973) (holding criminal information sufficient where it gave the common name of the
4 crime and identified the statutory section number). Since Defendant had notice of the
5 charge, the State’s amendment corrected a technical defect and was not fatal to the
6 pleading.
7 Defendant contends that the amendment prejudiced him because he “geared his
8 defense toward[] attacking the ‘position of authority’ element charged in the original
9 criminal information.” However, Defendant does not explain how he was prejudiced.
10 “The mere assertion of prejudice, without more, is insufficient to establish prejudicial
11 error warranting reversal of a conviction.” Marquez, 1998-NMCA-010, ¶ 20 (internal
12 quotation marks and citation omitted). We will not overturn a verdict on appeal based
13 on the alleged “defect, error, omission, repugnancy, imperfection, [or] variance [of the
14 criminal information] . . . unless it is affirmatively shown that the defendant was in
15 fact prejudiced in the defendant’s defense on the merits.” Rule 5-204(D) NMRA
16 (emphasis added). Thus, in order to successfully challenge a defective criminal
17 information under Rule 5-204, a defendant must come forward with a showing of
18 actual prejudice. Defendant has failed to demonstrate prejudice in this case. Absent
19 such a showing, there are no grounds for reversal based on the amended criminal
20 information.
13
1 The District Court’s Failure to Grant a Continuance Was Not Error
2 Defendant argues on appeal that defense counsel’s statements during pretrial
3 motions that she was “not prepared to go forward in this manner” and that she was
4 “providing ineffective assistance of counsel” constituted a motion for continuance.
5 Therefore, Defendant argues, the district court’s denial of the motion constituted an
6 abuse of discretion. Defendant’s claim of error is not properly raised before this
7 Court.
8 When preserved, “[t]he grant or denial of a continuance is within the sound
9 discretion of the trial court, and the burden of establishing abuse of discretion rests
10 with the defendant.” State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152
11 P.3d 135. “An abuse of discretion occurs when the ruling is clearly against the logic
12 and effect of the facts and circumstance of the case. We cannot say the trial court
13 abused its discretion by its ruling unless we can characterize it as clearly untenable or
14 not justified by reason.” Id. (internal quotation marks and citation omitted).
15 Moreover, Defendant must establish not only an abuse of discretion, but also
16 prejudice. Id.17 We conclude—and counsel on appeal does not disagree—that Defendant failed
18 to preserve this issue for appeal because defense counsel never requested a ruling from
19 the district court. To preserve a question for review it must appear that a ruling or
20 decision by the district court was fairly invoked. Rule 12-216(A) NMRA; State v.
14
1 Lamure, 115 N.M. 61, 65, 846 P.2d 1070, 1074 (Ct. App. 1992) (holding that the
2 defendant failed to preserve a claim that he should have been granted more time to
3 prepare in light of amendment to indictment because he did not invoke a ruling from
4 the trial court). The burden is on Defendant to show that the district court ruled on the
5 question. Batchelor v. Charley, 74 N.M. 717, 720, 398 P.2d 49, 50 (1965). Defense
6 counsel did not request the district court make a ruling; instead, she merely stated she
7 was “not prepared to go forward in this manner” and that she was “providing
8 ineffective assistance of counsel.” Since the issue was not properly preserved, we do
9 not address it on appeal.
10 Defendant Did Not Have Ineffective Assistance of Counsel
11 Lastly, Defendant contends his counsel was ineffective because she failed to
12 request a jury instruction on the lesser included offense of statutory rape for the CSPM
13 charge and because she failed to request a definition instruction for “force or
14 coercion.” In order to establish a prima facie case of ineffective assistance of counsel,
15 Defendant must demonstrate that (1) counsel’s performance fell below that of a
16 reasonably competent attorney; (2) no plausible, rational strategy or tactic explains
17 counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the defense.
18 State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22.
19 We conclude that Defendant has not established a prima facie case of
20 ineffective assistance regarding his counsel’s failure to request a lesser included
15
1 offense instruction, primarily because counsel’s course of action could be explained
2 in terms of trial tactics. See State v. Jensen, 2005-NMCA-113, ¶¶ 12-16, 138 N.M.
3 254, 118 P.3d 762 (rejecting a similar claim of ineffective assistance of counsel, in
4 light of the fact that trial counsel might have elected not to request a lesser included
5 instruction as a matter of strategy and the lack of the lesser included offense
6 instruction did not rise to the level of prejudice or unjust result). Counsel may have
7 elected to pursue an all-or-nothing strategy. See State v. Baca, 1997-NMSC-059,
8 ¶ 27, 124 N.M. 333, 950 P.2d 776 (holding that a “decision to pursue an . . . all-or-
9 nothing defense is not outside the range of effective representation”).
10 Similarly, we determine that Defendant did not establish that his counsel’s
11 failure to request an instruction defining “force or coercion” constituted ineffective
12 assistance. Counsel reasonably could have concluded that the phrase is self-
13 explanatory and has a commonly understood meaning, such that there was no need for
14 further definition. See State v. Munoz, 2006-NMSC-005, ¶ 24, 139 N.M. 106, 129
15 P.3d 142 (holding that a definitional instruction was unnecessary where the phrase in
16 question was self-explanatory and had a common and understandable meaning); cf.
17 State v. Jimenez, 89 N.M. 652, 657-58, 556 P.2d 60, 65-66 (Ct. App. 1976) (rejecting
18 a void-for-vagueness challenge to the CSP statute based on alleged ambiguity of the
19 element of force or coercion). Alternatively, counsel might have concluded that the
20 district court was unlikely to give such an instruction. See Munoz, 2006-NMSC-005,
16
1 ¶ 24 (observing that the courts are not required to instruct on words or phrases with
2 a common meaning). Accordingly, Defendant has not established a prima facie case
3 of ineffective assistance of counsel.
4 CONCLUSION
5 For the reasons set forth above, we affirm Defendant’s conviction for CSPM
6 and reverse Defendant’s conviction for CSCM.
7 IT IS SO ORDERED.
8 __________________________________
9 LINDA M. VANZI, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 TIMOTHY L. GARCIA, Judge
17