State v. Ordaz-Fonseca ( 2024 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40635
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ALBERTO ORDAZ-FONSECA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G. W. Shoobridge, District Court Judge
Raúl Torrez, Attorney General
Felicity Strachan, Assistant Solicitor General
Santa Fe, NM
for Appellee
The Law Office of Scott M. Davidson, Ph.D., Esq.
Scott M. Davidson
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} A jury convicted Defendant Alberto Ordaz-Fonseca of one count of Criminal
Sexual Penetration of a Minor, two counts of Criminal Sexual Contact of a Minor, and
one count of Voyeurism (Victim under 18). See NMSA 1978, §§ 30-9-11(D)(1) (2009),
30-9-13(B)(1), (C)(1) (2003), and 30-9-20(A) (2007). On appeal, Defendant presents
three arguments: (1) the district court infringed on his Sixth Amendment1 constitutional
1Although Defendant cited to Article II Section 14, of the New Mexico Constitution in his brief in chief, we
limit our review to the Sixth Amendment because Defendant did not argue that the New Mexico
right to present a defense by excluding evidence of Victim’s sexual orientation and
recordings of her safehouse interviews, both of which Defendant contends would have
placed Victim’s veracity into question, and by limiting the testimony of Defendant’s
expert; (2) the district court abused its discretion by admitting expert opinion testimony
during the State’s rebuttal; and (3) the district court committed cumulative error. We
affirm for the following reasons.
DISCUSSION
{2} Because this is a memorandum opinion and the parties are familiar with the case
on appeal, we discuss the facts only as they become necessary to our analysis.
I. The Exclusion of Evidence Did Not Deprive Defendant of His Constitutional
Right to Present a Defense
{3} According to Defendant, the district court deprived him of his Sixth Amendment
right to present a defense by excluding evidence of Victim’s sexual orientation and
recordings of her safehouse interviews and by limiting the testimony of his expert.
According to Defendant, Victim’s sexual orientation and safehouse interviews would
have presented evidence of Victim’s motive to fabricate her accusations against
Defendant. “Claimed violations of the Sixth Amendment right to confrontation are
reviewed de novo.” State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110. We
generally review exclusion and admission of evidence for an abuse of discretion. See
State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 722 (defining an
abuse of discretion as action that was “obviously erroneous, arbitrary and unwarranted”
or “clearly against the logic and effect of the facts and circumstances before the court”
(internal quotation marks and citation omitted)). “Where the evidence is offered in
support of the defense’s theory of the case, we recognize ‘a presumption against
exclusion of otherwise admissible defense evidence. No other approach adequately
protects the right to present a defense.’” Id. ¶ 13 (quoting McCarty v. State, 1988-
NMSC-079, ¶ 9, 107 N.M. 651, 763 P.2d 360). “A defendant seeking relief because an
avenue for [their] defense was foreclosed by an evidentiary ruling must show that he
was prejudiced by the ruling.” Campbell, 2007-NMCA-051, ¶ 14. In doing so, “no more
prejudice need be shown than that the trial court’s order may have made a potential
avenue of defense unavailable to the defendant.” Id. (alteration, internal quotation
marks, and citation omitted).
A. The District Court Did Not Err by Excluding Evidence Regarding Victim’s
Purported Sexual Orientation.
{4} Defendant claims that the district court should have admitted testimony regarding
Victim’s sexual orientation (of which there is no evidence in the record) to support his
Constitution afforded him greater protection than the United States Constitution. Cf. State v. Nance, 2011-
NMCA-048, ¶ 11, 149 N.M. 644, 253 P.3d 934 (limiting review to protection under the United States
Constitution where no argument on appeal was made that the New Mexico Constitution provided greater
protection).
theory that Victim fabricated her accusation of sexual assault in order to “strike back at
her mother,” who purportedly disapproved of Victim’s sexual orientation.
{5} Specifically, Defendant claims that evidence of Victim’s alleged sexual orientation
was necessary to show why she had an unhealthy relationship with her mother, which in
turn would have provided jury with a motive behind Victim’s accusations of abuse
against Defendant.2 The district court excluded evidence of Victim’s sexual orientation
on relevancy grounds during the cross-examination of Victim’s mother.
{6} The State reports in its brief that it has no information or belief of what Victim’s
sexual orientation is and our review of the record reveals that Defendant failed to make
a record revealing Victim’s sexual orientation, whatever it may be. “It is [the] defendant’s
burden to bring up a record sufficient for review of the issues [they] raise[] on appeal.”
State v. Padilla, 1980-NMCA-141, ¶ 7, 95 N.M. 86, 619 P.2d 190. When faced with an
incomplete record, we indulge every presumption “in favor of the correctness and
regularity of the lower court’s judgment.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 19,
121 N.M. 562, 915 P.2d 318. Here the district court excluded the evidence of Victim’s
sexual orientation on relevancy grounds, which we will address later in this
memorandum opinion. We first address the State’s arguments.
{7} The State claims that this Court should affirm the district court’s ruling because
(1) Defendant did not file a motion seeking admission of the evidence revealing Victim’s
sexual orientation under New Mexico’s rape shield laws, NMSA 1978, § 30-9-16 (1993)
and Rule 11-412 NMRA; and (2) even if Defendant had filed a motion under the rape
shield laws, “the trial court would have been right to deny” the motion because
Defendant “failed to establish that this evidence [was] material or relevant to his claims
or that its probative value outweighs its potential for prejudice and confusion.”
{8} New Mexico’s rape shield laws preclude the admission of a “victim’s past sexual
conduct, opinion evidence of the victim’s past sexual conduct or of reputation for past
sexual conduct . . . unless, and only to the extent the court finds that, the evidence is
material to the case and that its inflammatory or prejudicial nature does not outweigh its
probative value.” Section 30-9-16(A). A defendant seeking to admit such evidence “shall
file a written motion prior to trial” and the court shall hear the motion prior to trial during
an in-camera hearing to determine whether the evidence is admissible. Section 30-9-
16(C).
{9} The record confirms that Defendant did not file a motion seeking admission of
Victim’s sexual orientation under the rape shield laws. Consequently the parties did not
make arguments supporting or rejecting the application of the rape shield laws and the
district court’s ruling was not based on the rape shield laws. We therefore interpret the
State’s argument to affirm the district court’s ruling as right for any reason. See State v.
Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under the ‘right for any
reason’ doctrine, we may affirm the district court’s order on grounds not relied upon by
2Defendant is partnered with Victim’s aunt but they are not married.
the district court if those grounds do not require us to look beyond the factual allegations
that were raised and considered below.” (internal quotation marks and citation omitted)).
{10} We decline to apply the right for any reason doctrine because Defendant did not
make a record of what Victim’s sexual orientation was; neither party addressed before
the district court whether evidence of sexual orientation falls under the rape shield laws;
and the question of whether evidence of sexual orientation alone may be protected
under our rape shield laws has yet to be decided in a formal opinion.
{11} Having thus declined to analyze the State’s argument regarding the applicability
of the rape shield laws in this instance, we consider whether excluding evidence of
Victim’s sexual orientation precluded Defendant from presenting the defense that Victim
fabricated her accusations against him in order to get back at her mother. We conclude
that any evidence regarding Victim’s sexual orientation was not necessary for
Defendant to argue that Victim fabricated her accusation against him, in order to “strike
back at her mother for harsh and unfair mistreatment,” and was therefore irrelevant. See
Rule 11-401 NMRA (“Evidence is relevant if . . . it has any tendency to make a fact
more or less probable than it would be without the evidence, and . . . the fact is of
consequence in determining the action.”). We reach this conclusion because Defendant
introduced evidence that Victim and her mother had a tumultuous relationship and
suggested that Victim accused Defendant as a result. Defense counsel elicited
testimony from Victim’s mother about the fights they had and questioned Victim about
the violent nature of her relationship with her mother, going so far as to directly ask
Victim whether she had accused Defendant to make her mother angry. Defendant
therefore made the argument he claims to have been denied, the basis for the
contentious relationship was not relevant to that argument, and thus, he suffered no
demonstrable prejudice. See Campbell, 2007-NMCA-051, ¶ 14.
{12} Moreover, any probative value of the evidence was served by allowing evidence
that the relationship between Victim and her mother was contentious and additional
information about the basis for the discord “would not have increased the probative
value of the evidence and was far outweighed by its prejudicial effect.” Bourgeous v.
Horizon Healthcare Corp., 1994-NMSC-038, ¶ 23, 117 N.M 434, 872 P.2d 852; cf. id.(affirming exclusion of evidence regarding romantic relationship where probative value
of such evidence was limited to demonstrating that a relationship existed between the
individuals in question, and testimony established that they had a relationship as
friends). See generally Rule 11-403 NMRA (allowing for exclusion of relevant evidence
if its probative value is substantially outweighed by a danger of unfair prejudice). We
therefore conclude that the district court did not err in excluding evidence of Victim’s
alleged sexual orientation. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 19.
B. The District Court Did Not Err by Excluding Recordings of Victim’s
Safehouse Interviews
{13} Defendant additionally argues the district court should have introduced
recordings of two safehouse interviews with Victim “for three purposes: (1) to expose
serious flaws in the investigation that led to the prosecution; (2) to show [Victim’s] desire
to deport [Defendant] and thus calling into question [Victim’s] credibility and the veracity
of the allegations; and (3) to show the jury that when asked if she made the allegations
to make her mother angry, [Victim] hesitated.” Defendant claims that he was deprived of
a defense “because the recordings would have helped to corroborate for the jury what
she said during the second [safehouse] interview.”
{14} We begin by noting that Defendant never sought to have the recordings
admitted. In fact, the section of the transcript to which Defendant directs this Court to
support his assertion that his trial counsel “explained to the trial court that he needed to
introduce the recordings of the interviews to show the jury that the accusations were
fabricated” concerned the admission of a Sexual Assault Nurse Examiner (SANE)
examination report and testimony from a SANE nurse who did not examine Victim. We
thus find that Defendant failed to preserve his overarching argument that the district
court should have admitted these recordings. See State v. Montoya, 2015-NMSC-010, ¶
45, 345 P.3d 1056 (“In order to preserve an issue for appeal, a defendant must make a
timely objection that specifically apprises the trial court of the nature of the claimed error
and invokes an intelligent ruling thereon.” (internal quotation marks and citation
omitted).
{15} Nevertheless, we acknowledge that the district court both permitted and curtailed
testimony about the safehouse interviews, and consider whether the presentation of that
evidence, and the limitations imposed thereon, impacted Defendant’s constitutional right
to present a defense. See Campbell, 2007-NMCA-051, ¶ 14 (“A defendant seeking
relief because an avenue for his defense was foreclosed by an evidentiary ruling must
show that he was prejudiced by the ruling.”). In particular, Defendant contends that the
testimony of his expert about the procedures used in the safehouse interviews was
improperly truncated.
{16} We begin with Defendant’s argument that he “was prevented from showing the
jury that the genesis of the prosecution—the [safehouse] interviews—were deeply
flawed and that these serious defects produced unreliable accusations tainting the
entire case.” Defendant further asserts that the district court “restricted” the expert’s
testimony and that he was therefore “not allowed to present expert testimony regarding
the import of the flaws in the ‘[safehouse] interviews.’” Although the jury did not review
the recordings of the interviews, Defendant presented extensive expert testimony about
proper safehouse interview techniques and the apparent flaws in the interviews
conducted with Victim. The “restrictions” imposed by the district court, based on
Defendant’s citations in the brief in chief, appear to involve sustained objections to the
expert testifying directly about credibility or restating Victim’s alleged statements from
the interview. Defendant offers no argument or authority to undermine the district court’s
rulings in these respects. Thus, we conclude that Defendant had an adequate
opportunity to cast doubt on how the interviewers obtained information from Victim and
call into question the substance of that information.
{17} We next turn to Defendant’s argument that the second safehouse interview
contained evidence that would have indicated that Victim fabricated her accusation to
have Defendant deported. Based on the record before us, it appears Defense counsel
misconstrued the content of the second safehouse interview by asking Victim to affirm
that she told the interviewer that she wished to see Defendant deported. The district
court struck Victim’s response.
{18} Although the district court struck Victim’s response to Defendant’s question
regarding deporting Defendant, which could have provided evidence of Victim’s motive
to fabricate, Defendant elicited testimony from his expert witness, who in addition to
testifying about the claimed impropriety of the safehouse interviews, testified that,
during the second safehouse interview, Victim and the interviewer could be heard
laughing when the interviewer stated, “We are going to ship him off.” The jury thus
heard evidence that Victim laughed upon hearing another person express a desire to
have Defendant deported, which a jury could conclude was evidence of Victim’s motive
to fabricate accusations against Defendant. Therefore, Defendant had an opportunity to
present this theory of his defense.
{19} Finally, we consider whether Defendant was able to show that Victim had a
motive to accuse Defendant to retaliate against her mother based on information in the
interviews. Our review shows that the district court allowed Defendant to question Victim
directly on this point. Defendant used this opportunity to present his theory that Victim
had accused him in order to anger her mother.
{20} Even in the absence of the recordings, Defendant offered evidence on each of
his theories of defense regarding the alleged failures in the investigation and Victim’s
motive to fabricate. He therefore suffered no prejudice. See Campbell, 2007-NMCA-
051, ¶ 14. As such, we conclude that the district court did not violate Defendant’s right
of confrontation or otherwise deprive him of any of his purported lines of defense and
turn to Defendant’s next series of arguments.
II. The District Court Did Not Abuse Its Discretion by Admitting Expert
Testimony During the State’s Rebuttal
{21} Defendant asserts the district court erred by allowing the State’s rebuttal expert
witness to testify. “Genuine rebuttal evidence consists of evidence on new matters
asserted in the defense’s case.” State v. Simonson, 1983-NMSC-075, ¶ 29, 100 N.M.
297, 669 P.2d 1092. “Ascertaining whether the rebuttal evidence is in response to new
matters established by the defense, however, is a difficult matter at times. Frequently
true rebuttal evidence, in some degree, will overlap and coincide with the evidence in
the [s]tate’s case[ ]in[ ]chief.” Id. We review this issue for an abuse of discretion. See
State v. Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192. “Broad
discretion in the admission or exclusion of expert evidence will be sustained unless
manifestly erroneous.” Id. (internal quotation marks and citation omitted).
{22} Defendant first states that the doctor who testified as a rebuttal witness was not
qualified to serve as an expert witness in this case because he “lacked expertise on the
subjects that were addressed” in his case in chief, but makes no further argument in
that regard. Primarily, Defendant challenges the relevancy of the doctor’s testimony
upon a claim that it was not permissible rebuttal testimony. The State tendered a doctor,
a licensed professional clinical counselor with a Ph.D. in higher education
administration, as an expert in sexual assault victim behavior who could speak broadly
to victims’ reasons for delaying disclosure of abuse. The doctor had been qualified as
an expert witness on the subject of sexual assault victim behavior five times and had
testified as an expert three or four times in New Mexico. Defendant notes that the doctor
testified that all of his counseling experience was in a purely therapeutic setting and that
he did not have experience conducting safehouse interviews. Defendant did not
challenge the doctor’s qualifications at trial on the subject of sexual assault victim
behavior and instead argued that the doctor’s testimony was not relevant.
{23} The district court permitted the doctor to testify as an expert regarding sexual
assault victim behavior. The doctor testified about abuse occurring at the hands of
family members, as well as sexual assault victims’ tendency to delay disclosure of
abuse; that victims of sexual assault often choose not to disclose abuse right away
because of feelings of guilt, family or social pressure, or because their abuser still has
access to them; and noted that victims most often suffer abuse at the hands of family
members because of trust and access. Defendant claims this testimony exceeded the
proper scope of the State’s rebuttal because Defendant never raised a delayed
disclosure theory during his case in chief, nor did he contest the fact that he had access
to Victim.
{24} The record reveals that Defendant effectively raised the delayed disclosure
theory throughout the trial. He repeatedly suggested that Victim’s accusations lacked
validity because they arose approximately five years after the abuse began. Defense
counsel questioned both Victim and her mother at length about Victim’s failure to
disclose until she engaged in the safehouse interviews. We therefore conclude that the
doctor’s expert testimony regarding delayed disclosure did not exceed the scope of
permissible rebuttal testimony.
{25} We otherwise acknowledge that most of the doctor’s general observations about
abuse committed by family members did not directly relate to an issue raised by
Defendant during his case in chief. However, his testimony coincided with the State’s
case in chief that revealed Defendant was like a family member. Additionally Defendant
made no objection during the doctor’s testimony, see Montoya, 2015-NMSC-010, ¶ 45.
Nor has Defendant identified any prejudice resulting from the doctor’s remarks,
especially considering that Defendant did not contest the fact that he had access to
Victim. See Alberico, 1993-NMSC-047, ¶ 58. Finally, the doctor noted that ongoing
access by a perpetrator may result in delayed disclosure. Therefore, his comments did
not exceed the scope of permissible evidence and we conclude that the district court did
not abuse its discretion in permitting the State to present the doctor’s expert testimony
on rebuttal.
III. No Cumulative Error Occurred
{26} Defendant claims that the district court committed cumulative error because “the
combined impact of [its] rulings produced an impermissibly skewed trial.” “The doctrine
of cumulative error applies when multiple errors, which by themselves do not constitute
reversible error, are so serious in the aggregate that they cumulatively deprive the
defendant of a fair trial.” State v. Romero, 2019-NMSC-007, ¶ 45, 435 P.3d 1231(internal quotation marks and citation omitted). Having concluded that the district court
did not commit error by excluding evidence of Victim’s sexual orientation, Defendant
never sought to introduce recordings of the safehouse interviews, and that the content
of the doctor’s expert rebuttal testimony was relevant and permissible, we hold that no
cumulative error occurred.
CONCLUSION
{27} For the forgoing reasons, we affirm.
{28} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
KATHERINE A. WRAY, Judge