1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,038
10 CHRIS ROMERO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
13 Charles C. Currier, District Judge
14 Gary K. King, Attorney General
15 Francine A. Chavez, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Liane E. Kerr
19 Albuquerque, NM
20 for Appellant
21 MEMORANDUM OPINION
22 BUSTAMANTE, Judge.
1 Defendant appeals from his convictions, after a jury trial, for false
2 imprisonment, second degree criminal sexual penetration (CSP), third degree CSP,
3 aggravated battery with a deadly weapon, and intimidation of a witness. Defendant
4 raises five issues on appeal, contending that (1) the district court erred in denying his
5 motion to suppress, (2) the district court abused its discretion in limiting discovery,
6 (3) the district court erred in appointing counsel to the victim for a limited purpose,
7 (4) the district court erred in failing to recuse itself, and (5) the State presented
8 insufficient evidence to support Defendant’s convictions. We affirm Defendant’s
9 convictions.
10 DISCUSSION
11 A. The Motion to Suppress
12 On the weekend of November 5-6, 2005, the victim was allegedly kidnaped,
13 battered, raped, and intimidated at a residence located at 3402 Bandolina in Roswell,
14 New Mexico. On November 8, 2005, the police conducted a warrantless search of the
15 residence, performed various forensic tests for blood, semen, and DNA, and seized
16 certain items as evidence. The items seized and tested were taken from one of the
17 children’s bedrooms, the bathroom, the utility room, and the kitchen. The residence
18 is owned by Defendant’s cousin, Mr. Gabriel Smolky, and it is regularly occupied by
19 Mr. Smolky and his three children. Although the police presented some testimony and
2
1 documentation that Mr. Smolky had consented to the search of the house and had
2 provided police with the whereabouts of the key to enter, perform tests, and search
3 while he babysat his sisters’ children, the district court ruled that the consent was not
4 valid. It is undisputed, moreover, that there were no exigent circumstances to obviate
5 a warrant requirement at the time the search took place, two days after the alleged
6 incidents had taken place.
7 Defendant contends that he has standing to contest the warrantless search of his
8 cousin’s house because he was a permissive user of the residence at the time of the
9 incidents, he had the right to lock the door of a bedroom while he was using it, he
10 borrowed his cousin’s clothing while he was there, and he had access to the residence
11 through the use of a hidden key. The district court disagreed and denied the motion
12 to suppress.
13 Concluding that the district court’s findings are supported by substantial
14 evidence, the applicable law is correctly applied to the findings, and the findings of
15 fact support the district court’s conclusions of law, we affirm the district court’s order.
16 See State v. Walters, 1997-NMCA-013, ¶ 8, 123 N.M. 88, 934 P.2d 282 (filed 1996)
17 (recognizing that the appellate court will not disturb a trial court’s suppression ruling
18 unless it appears that the ruling was erroneously premised on the law or the facts).
3
1 “The legality of a search questioned in a suppression hearing is generally tested
2 as a mixed question of law and fact wherein we review any factual questions under a
3 substantial evidence standard and we review the application of law to the facts de
4 novo.” State v. Baca, 2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509. With
5 respect to the factual review, we do not sit as trier of fact, recognizing that the district
6 court has the best vantage from which to resolve questions of fact and to evaluate
7 witness credibility. State v. Vandenberg, 2003-NMSC-030, ¶ 18, 134 N.M. 566, 81
8 P.3d 19. Therefore, we review the facts in the light most favorable to the prevailing
9 party, deferring to the district court’s factual findings so long as substantial evidence
10 exists to support those findings. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M.
11 592, 52 P.3d 964.
12 Defendant’s standing to challenge a search on the grounds that it violates the
13 Fourth Amendment to the United States Constitution and Article II, Section 10 of the
14 New Mexico Constitution depends on whether he had a reasonable expectation of
15 privacy in the place searched. See State v. Leyba, 1997-NMCA-023, ¶ 9, 123 N.M.
16 159, 935 P.2d 1171. Whether a defendant has standing involves two inquiries: (1)
17 whether the defendant had an actual, subjective expectation of privacy in the premises
18 searched; and (2) whether the defendant’s subjective expectation is one that society
19 is prepared to recognize as reasonable. State v. Esguerra, 113 N.M. 310, 313, 825
4
1 P.2d 243, 246 (Ct. App. 1991). Defendant’s argument that he had “automatic
2 standing” because he often stayed at Mr. Smolky’s residence and had permission to
3 stay there on the dates at issue, is not supported by the evidence presented in this case
4 or by the law of New Mexico. See Leyba, 1997-NMCA-023, ¶ 12 n.1 (declining to
5 reach the question of whether New Mexico should adopt the automatic standing
6 doctrine based on the evidence presented). Based on the facts of this case and
7 applicable New Mexico case law, we agree with the district court’s holding that
8 “[t]here is no ‘automatic standing’ to challenge an alleged illegal search as a substitute
9 for a finding of an expectation of privacy,” particularly where Defendant had no
10 legally enforceable rights to the premises searched, he did not own or possess the
11 items seized, he did not occupy the premises at the time of the search, and he knew or
12 should have known that he had no control whatsoever over any of the premises
13 searched or the items seized when not present.
14 The residence at 3402 Bandolina was owned by and was the permanent
15 residence of Defendant’s cousin, Mr. Smolky. Mr. Smolky lived at the residence with
16 his children. Defendant lived at his mother’s home located at 701 Margaret
17 Wooldridge Road, Roswell, New Mexico. Defendant had a bedroom at his mother’s
18 home and he kept his clothing and personal effects there. While Defendant
19 occasionally stayed overnight at Mr. Smolky’s house, he referred to the house as his
5
1 “cousin’s house.” Mr. Smolky testified that Defendant would usually use one of the
2 children’s bedrooms that was empty at the time. Defendant had no regular pattern of
3 occupancy at Mr. Smolky’s residence, his presence there was generally not expected
4 with the exception of the weekend of November 5, 2005, when Mr. Smolky asked
5 Defendant to stay at his house to care for his pregnant dog.
6 While in Mr. Smolky’s residence, Defendant could lock the bedroom door to
7 keep others out of the room he was in. Defendant was not given authority by Mr.
8 Smolky, however, to prevent others from entering Mr. Smolky’s residence, and
9 Defendant did not have the authority to limit the access of others to the bedroom he
10 used when Defendant was not occupying it. Defendant knew that the bedrooms were
11 regularly occupied by Mr. Smolky’s children and that they, along with their friends
12 and Mr. Smolky, would have access to the children’s bedrooms when he was not
13 visiting. See State v. Ryan, 2006-NMCA-044, ¶ 20, 139 N.M. 354, 132 P.3d 1040
14 (holding that the defendant did not have a subjective expectation of privacy where
15 coupled with his inaction to show an expectation of privacy, testimony was presented
16 that the defendant knew others had used his room without his prior knowledge and
17 when he was not present). Mr. Smolky, his children, friends, and guests all had
18 regular access to the kitchen, dining room, bathroom, or laundry room, as common
6
1 areas of the residence. Defendant does not live at his cousin’s house, he does not keep
2 his possessions there, and he has no control over any part of it when he is not present.
3 The items seized during the search were taken from one of the children’s
4 bedrooms, the one bathroom in the house, the utility room, and the kitchen. These
5 items included bedding, six bottles of liquor, a washcloth, a pillow case, and a broken
6 broom and handle. The bedding and the top half of the broomstick were collected
7 from a child’s bedroom. The six bottles of liquor were found on a shelf between the
8 kitchen and dining room. The pink washcloth was found in the only bathroom located
9 in the southwest corner bedroom and the bottom half of the broomstick was found
10 inside the door to the laundry room. Nothing was seized from the bedroom designated
11 for Defendant’s use and none of the items seized belonged to Defendant.
12 Further, Defendant did not demonstrate any possessory interest in any item
13 seized at the residence. See Leyba, 1997-NMCA-023, ¶ 16 (stating that “[u]nder the
14 Fourth Amendment, a person may have standing to challenge the search of a place
15 [he] does not own or occupy if [he] has the right to exclude others from the searched
16 premises or has continuous access to the searched premised combined with a
17 possessory interest in an item seized there”).
18 Since we hold that the district court correctly ruled that Defendant did not have
19 a subjective expectation of privacy in the places searched or the items seized, we need
7
1 not address whether Defendant’s subjective expectation is one that society is prepared
2 to recognize as reasonable. Cf. Ryan, 2006-NMCA-044, ¶ 19 (discussing both prongs
3 of the standing test because it was “not clear whether the district court concluded that
4 [the d]efendant had no actual expectation of privacy or whether the district court
5 concluded that any actual expectation of privacy that [the d]efendant had was not
6 reasonable”). We affirm the district court’s decision to deny Defendant’s motion to
7 suppress.
8 B. Limiting Discovery
9 Defendant contends that his due process rights were violated because the
10 district court’s discovery ruling denied him the opportunity to uncover the nature and
11 extent of the victim’s drug usage, her treatment, her associates, and her whereabouts
12 preceding and following the alleged incidents. Defendant also argues that because the
13 outcome in this case was highly dependent on credibility evaluations, the victim’s
14 attendance at drug rehabilitation facilities was relevant to undermine her credibility
15 and necessary to Defendant’s consent defense. Defendant asserts that the district
16 court’s limitations on discovery as to these matters violated his right to confrontation.
17 STANDARD OF REVIEW
18 The standard of review for evidentiary issues is abuse of discretion. State v.
19 Montoya, 2005-NMCA-078, ¶ 22, 137 N.M. 713, 114 P.3d 393. An “[a]buse of
8
1 discretion exists when the trial court acted in an obviously erroneous, arbitrary, or
2 unwarranted manner.” State v. Stills, 1998-NMSC-009, ¶ 33, 125 N.M. 66, 957 P.2d
3 51 (internal quotation marks and citation omitted). The trial court is vested with the
4 authority to limit discovery. See State v. Ramos, 115 N.M. 718, 723, 858 P.2d 94, 99
5 (Ct. App. 1993), modified in part by State v. Gomez, 1997-NMSC-006, ¶ 32, 122
6 N.M. 777, 932 P.2d 1. A general assertion that inspection of the records is needed for
7 a possible attack on the victim’s credibility is insufficient to make a threshold showing
8 that the defendant expects the records to provide information necessary to the defense.
9 State v. Luna, 1996-NMCA-071, ¶ 9, 122 N.M. 143, 921 P.2d 950; see also, e.g., State
10 v. Layne, 2008-NMCA-103, ¶ 10, 144 N.M. 574, 189 P.3d 707 (observing that the
11 appellant has the burden of establishing an abuse of discretion with respect to the
12 granting or denial of discovery in a criminal case).
13 A. Relevant Procedural Background
14 After defense counsel took the victim’s initial statement, Defendant moved for
15 a court-supervised deposition, arguing that the victim had become tearful and refused
16 to speak when asked about rehabilitation programs she had attended for
17 methamphetamine use. In addition, the prosecutor had stated that the victim was not
18 going to answer any further questions that were not relevant to the case. The district
19 court judge scheduled a court-supervised deposition to take place at the county jail,
9
1 and, as discussed below, appointed Mr. Ramon Garcia as counsel for the victim for
2 the limited purpose of making objections and asserting privileges on her behalf at the
3 deposition. According to the prosecutor and Mr. Garcia, the victim did not appear for
4 the deposition at the jail because she was being threatened by two individuals who had
5 been in jail with Defendant. The district court judge decided not to reschedule the
6 deposition at the jail, and instead, asked counsel to work together to reschedule.
7 Thereafter, during the victim’s statement, Mr. Garcia refused to allow her to answer
8 questions about her attendance, purpose, completion, or failure to complete drug
9 rehabilitation as privileged information. Subsequently, Defendant filed a motion to
10 compel answers to certain questions about the victim’s drug rehabilitation.
11 At the district court’s request, Defendant submitted a list of seven questions:
12 1. What rehabilitation programs have you attended?
13 2. What is the name and address of the program?
14 3. What dates did you attend?
15 4. Was the attendance voluntary or court ordered?
16 5. Did you complete the program?
17 6. If not, why not? [and]
18 7. Were any psychological assessments or evaluations completed as
19 part of the rehabilitation and, if so, by which psychologist,
20 psychiatrist or mental health expert?
21 When asked by the district court about the relevance of the information to the facts of
22 this case, defense counsel argued the victim’s drug use may explain why the victim
23 could not remember some of the details surrounding the alleged events, and that the
24 information was to be used to attack the victim’s credibility.
10
1 The district court ordered the victim to answer the first six questions, but ruled
2 that she would not be required to answer question number seven because it would
3 violate her rights under Rule 11-504 NMRA (physician-patient and psychotherapist-
4 patient privilege). Mr. Garcia forwarded an audio tape of the victim’s statement for
5 the district court to review. After reviewing the tape, the district court issued a letter
6 ruling noting that the victim had disclosed that after the events at issue in this case,
7 and after reaching the age of majority, she voluntarily admitted herself to the Walker
8 House, a drug rehabilitation program, for a one-month program, which she
9 successfully completed at or near her nineteenth birthday. The letter further indicated
10 that the victim had also made disclosures relating to her juvenile years but that the
11 details regarding these programs would not be disclosed to Defendant because the
12 prejudicial effect of her conduct as a juvenile would substantially outweigh any
13 probative value of the information to the issues of the case.
14 At trial, following direct examination of the victim, defense counsel asked the
15 district court to allow the victim to be questioned on her previous drug history and
16 rehabilitation as a juvenile. Defendant argued that the State had “opened the door”
17 to all of the victim’s drug rehabilitation history when, during direct testimony, the
18 victim stated that in December 2005 following the events at issue in this case, she had
19 attended the Walker House. The district court asked defense counsel to explain the
11
1 relevancy of the questions and to indicate what evidence he had that the victim used
2 drugs from the time she was eighteen until the time of the events at issue in this case.
3 Defense counsel responded that he had no evidence with regard to that time frame but
4 he had a statement from the victim that she had been in drug rehabilitation previously.
5 The district court ruled that in accordance with his prior letter ruling, the prejudicial
6 effect of any inquiry into drug rehabilitation during the time when the victim was a
7 juvenile substantially outweighed its probative value. See Rule 11-403 NMRA. The
8 district court also considered that allowing inquiry into matters that occurred when the
9 victim was a juvenile would “unnecessarily expand the scope of the trial” into
10 collateral details regarding the victim’s drug use since she was thirteen years old. The
11 district court further ruled that the State had not opened the door to the victim’s
12 juvenile drug use because the victim had attended the Walker House as an adult. We
13 agree with the district court’s rulings.
14 B. Analysis
15 First, we affirm the district court’s letter ruling that determined that the victim
16 was not required to answer question number seven, which required her to state
17 whether she had had psychological evaluations relating to her drug use and
18 rehabilitation, and thereafter to provide copies of them. Rule 5-503(C) NMRA
19 provides: “Unless otherwise limited by order of the court, parties may obtain
12
1 discovery regarding any matter, not privileged, which is relevant to the offense
2 charged or the defense of the accused person.” (Emphasis added.) Rule 11-504(B)
3 NMRA provides:
4 A patient has a privilege to refuse to disclose and to prevent any other
5 person from disclosing confidential communications, made for the
6 purposes of diagnosis or treatment of the patient’s physical, mental or
7 emotional condition, including drug addiction, among the patient, the
8 patient’s physician or psychotherapist, or persons who are participating
9 in the diagnosis or treatment under the direction of the physician or
10 psychotherapist, including members of the patient’s family.
11 Mr. Garcia advised the victim to assert her privilege with regard to confidential
12 communications made for the purpose of her diagnosis or treatment for drug use. The
13 district court agreed that the rules of criminal procedure and the rules of evidence
14 supported the victim’s assertion of this privilege under the circumstances of this case.
15 We affirm the district court’s decision not to compel the victim to respond to question
16 number seven in Defendant’s motion to compel. In addition, our review of the
17 victim’s testimony reveals no abuse of discretion in the district court’s observation
18 that the victim’s inability to recall every detail of the alleged rapes was not atypical
19 or pathological such that admission of the evidence should have been produced for in-
20 camera review or was necessary to Defendant’s defense. See Luna, 1996-NMCA-071,
21 ¶ 10 (holding that the defendant’s request may not have been sufficiently
22 particularized or compelling to justify in-camera review where the defendant’s motion
13
1 for disclosure of the victim’s counseling records stated that the defendant “believes
2 that it is likely that [the v]ictim revealed information to the therapist which may be
3 relevant to issues of her credibility” (internal quotation marks omitted)); cf. State v.
4 Gonzales, 1996-NMCA-026, ¶ 21, 121 N.M. 421, 912 P.2d 297 (holding that it was
5 not an abuse of discretion for the trial court to require disclosure of the records sought
6 to determine whether they contained information that the victim may have suffered
7 cognitive difficulties which would affect her credibility where the record specifically
8 indicated that the victim had a history of blackouts from alcohol). Here, unlike in
9 Gonzales, defense counsel’s assertions about the need for the victim’s drug
10 rehabilitation records were based solely on unspecific allegations that the evidence
11 would “likely lead to discovery of other witnesses,” and that such information was
12 generally “helpful” to the fact finder in determining the witness’s credibility.
13 In addition, we affirm the district court’s decision not to allow Defendant to
14 cross-examine the victim both before trial and during trial about her juvenile drug use
15 or any rehabilitation programs she attended as a juvenile. First, we find no abuse of
16 discretion in the district court’s ruling that the fact the victim revealed that she
17 attended the Walker House when she was an adult after the events at issue in this
18 case—which occurred when she was an adult—did not “open the door” to Defendant
19 questioning her on juvenile drug use and rehabilitation.
14
1 Second, in her pre-trial statements and at trial, the State and Defendant fully
2 explored the fact that at the time leading up to and during the alleged events, the
3 victim was drinking, taking drugs, “hanging out” with “bad people,” she knew a lot
4 about buying and using drugs, had run away from home, and thought there was a
5 warrant out for her arrest for an unreported hit-and-run accident. As such, Defendant
6 was not denied the right to confront the victim and to cross-examine her about her
7 behavior and her credibility as relevant to the events at issue in this case. See State
8 v. Meadors, 121 N.M. 38, 49, 908 P.2d 731, 742 (1995) (upholding the district court’s
9 limitation of cross-examination concerning the extent of the victim’s drug abuse, in
10 light of its limited probative value and the prejudicial effect of the evidence). In
11 addition, several witnesses, who were friends of Defendant and had been with
12 Defendant and the victim off and on during the applicable weekend, testified at trial
13 that they thought the victim was a flirt, into drugs and alcohol with them, and not
14 telling the truth about being afraid of Defendant, about what happened during the
15 weekend, and about not previously having sex with Defendant. Defendant thus had
16 a reasonable opportunity to explore before the jury all aspects of the victim’s character
17 and credibility in the light Defendant wanted to present them.
18 Third, the victim was an adult at the time of the alleged incidents. Thus, the
19 specific details of her juvenile drug use and rehabilitation programs were only
15
1 tangentially relevant to proving or disproving the elements of the crimes committed
2 by Defendant against the victim in this case. See, e.g., State v. Baca, 115 N.M. 536,
3 540, 854 P.2d 363, 367 (Ct. App. 1993) (holding that specific instances of the victim’s
4 violent conduct are not admissible under Rule 11-405(B) NMRA to prove the victim
5 acted violently on the specific occasion). We cannot disagree with the district court
6 that the admission of this evidence would have unnecessarily expanded the scope of
7 the trial. Full exploration of the victim’s drug abuse history would have been
8 misleading or confusing to the jury in a situation where the victim admitted to
9 drinking and abusing drugs around the time of the alleged incidents. Her juvenile
10 drug use history is collateral to whether the alleged events took place on November
11 5-6, 2005, in accordance with her testimony. See, e.g., State v. Martin, 101 N.M.
12 595, 601-02, 686 P.2d 937, 943-44 (1984) (observing that evidence of the witness’s
13 prior criminal history and drug use had no probative value in relation to the
14 defendant’s actions toward decedent).
15 We affirm the district court’s rulings on this issue.
16 C. Appointing Counsel for Victim
17 Defendant contends that the trial court erred in appointing counsel for the
18 limited purpose of protecting the victim’s rights while she was being deposed prior
19 to trial. We affirm.
16
1 The district court appointed Mr. Garcia as temporary counsel for the victim with
2 regard to Defendant’s efforts to have her disclose privileged information about her
3 treatment and evaluation for drug abuse as a juvenile as well as after the events of this
4 case. See Rule 11-504 (physician-psychotherapist privilege). The district court
5 recognized “that absent independent counsel for [the victim], there’s a risk that she’s
6 going to make a disclosure to the D. A.’s Office. And, by doing that, she may waive
7 her—waive her privilege in regard to some of those matters.” Mr. Garcia rendered
8 his services pro bono.
9 New Mexico case law provides support for the district court’s decision. See
10 Gonzales, 1996-NMCA-026, ¶ 16 (holding that the victim’s medical releases to a
11 detective and the State “terminated the confidentiality of the records and thereby
12 constituted a waiver of her right to rely on the physician-psychotherapist privilege of
13 Rule [11-]504” ). “A privilege does not mean that certain matters may be disclosed
14 to some and withheld from others at the sole discretion of the holder, but rather that
15 a confidence will receive legal protection so long as the holder of the privilege keeps
16 the confidence himself.” Gonzales, 1996-NMCA-026, ¶ 14 (internal quotation marks
17 and citation omitted); see also State v. Padilla, 91 N.M. 800, 802, 581 P.2d 1295,
18 1297 (Ct. App. 1978) (stating that our courts have long recognized the need to protect
19 the dignity and, where possible, the privacy of rape victims).
17
1 In addition, Article 2, Section 24(A)(1) of the New Mexico Constitution and
2 NMSA 1978, Section 30-9-16(B) (1993), provide that “victims[,] as well as
3 defendants[,] have valuable legal and constitutional rights which [the trial judge] must
4 . . . fully consider[] and fairly balance[].” Gonzales, 1996-NMCA-026, ¶ 12. The
5 New Mexico Legislature has enacted the Victims of Crime Act (VCA) to implement
6 the provisions of Article 2, Section 24 of the New Mexico Constitution. See NMSA
7 1978, § 31-26-2 (1994). The purpose of the VCA is to ensure, among other purposes,
8 that “victims of violent crimes are treated with dignity, respect and sensitivity at all
9 stages of the criminal justice process” and “victims’ rights are protected by law
10 enforcement agencies, prosecutors and judges as vigorously as are the rights of
11 criminal defendants[.]” Section 31-26-2 (B), (C). Under the VCA, a “criminal
12 offense” includes the crimes charged against Defendant in this case: aggravated
13 battery, kidnaping, and CSP. Section 31-26-3(B) (2003). A “victim” is defined as “an
14 individual against whom a criminal offense is committed.” Section 31-26-3(F).
15 We hold that the district court did not err in appointing counsel for the victim
16 in order to assist her in protecting her rights while making statements during discovery
17 procedures.
18
1 D. Failing to Recuse
2 Defendant asserts that the district court’s appointment of Mr. Garcia put into
3 question the district court’s bias in favor of the victim. Defendant argues that the
4 district court’s act created an appearance of impropriety requiring the district court
5 judge to recuse himself. Defendant argues that the district court judge had already
6 determined that the victim was a “victim” rather than just a witness in the case. We
7 hold that the district court did not err in failing to recuse itself because the district
8 court did not exhibit any bias, impartiality, or prejudice requiring recusal.
9 We review a district court’s decision whether to recuse for an abuse of
10 discretion. State v. Harris, 1997-NMCA-119, ¶ 14, 124 N.M. 293, 949 P.2d 1190;
11 State v. Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct. App. 1992). In
12 order to require recusal, bias must be of a personal nature against the party seeking
13 recusal. State v. Case, 100 N.M. 714, 717, 676 P.2d 241, 244 (1984). Personal bias
14 cannot be inferred from an adverse ruling or the enforcement of the rules of criminal
15 procedure. See id.
16 As the State points out, in the VCA, it is the New Mexico Legislature that has
17 characterized persons who have alleged certain criminal offenses against them as
18 “victims.” As discussed in the previous issue, moreover, New Mexico’s rules of
19 evidence, the New Mexico constitution, and New Mexico statutes and case law
19
1 support the district court judge’s decision to appoint Mr. Garcia to represent the victim
2 while she gave statements to the defense so as to protect her right to assert her
3 physician-psychotherapist privilege. The record does not support that the district
4 court demonstrated any personal bias or impartiality.
5 E. Sufficiency of the Evidence
6 Defendant asserts that he was denied the opportunity to examine the victim’s
7 credibility in a situation where her memory of the events was partial and so clouded
8 by drug and alcohol use that there was insufficient evidence to support his
9 convictions. We are not persuaded.
10 “In reviewing the sufficiency of the evidence, we must view the evidence in the
11 light most favorable to the guilty verdict, indulging all reasonable inferences and
12 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,
13 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
14 Substantial evidence review requires analysis of whether direct or
15 circumstantial substantial evidence exists and supports a verdict of guilt
16 beyond a reasonable doubt with respect to every element essential for
17 conviction. We determine whether a rational factfinder could have found
18 that each element of the crime was established beyond a reasonable
19 doubt.
20 State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted).
21 Defendant does not dispute that the jury was correctly instructed on the elements of
22 the charges. See State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App.
20
1 1986) (“Jury instructions become the law of the case against which the sufficiency of
2 the evidence is to be measured.”).
3 Upon review of the trial testimony, we hold that substantial evidence supports
4 each of the convictions. The victim’s description of events is consistent throughout
5 the motion to suppress hearing and at trial. The victim testified that on or about
6 November 5, 2005, in Roswell, New Mexico, Defendant forced her to have sex with
7 him, including oral sex and sexual intercourse, after beating and battering her, and
8 threatening her with a knife, all while she pushed him away, screamed, and cried. The
9 victim testified that Defendant smashed his fist into the bathroom wall when she
10 refused his advances and beat her there, with the result that the victim’s nose ring was
11 pulled out, she hit her head and her back on the toilet and the bathtub, and Defendant
12 battered her head with a broomstick that he had broken over his leg. After the
13 beatings and each of the rapes, Defendant followed the victim around the house and
14 refused to let her leave. Defendant threatened to use a knife on the victim if she
15 attempted to do so. The victim feared Defendant because she knew that Defendant
16 had recently been released from prison for stabbing someone in the neck and
17 paralyzing him. He had broken her cell phone, and there was no telephone in the
18 residence. The victim acknowledged that the events occurred while she was running
19 with a bad crowd, taking drugs and drinking, and making poor choices in her life.
21
1 Victim’s friend testified that she went to the house that weekend while victim was still
2 with Defendant, and victim told her that Defendant had raped her. Victim showed her
3 friend her ripped clothes and the bruises on her body. Victim was “very, very afraid”
4 that Defendant would hurt her if she tried to leave, and, if she did, he would find her
5 and hurt her.
6 A SANE nurse testified about her examination of the victim. Her testimony
7 and the photographs she took support the victim’s version of events regarding the
8 CSPs, the beating, and the battery, including the placement, type, and likely causation
9 for the abrasions and bruises on the victim’s body, and to her external vaginal area.
10 The jury saw numerous photographs of the victim’s injuries. The SANE nurse
11 testified that a consensual sexual encounter does not have injury, such as the victim’s,
12 to the external vaginal area and that her examination of the victim indicated that there
13 had been a struggle with the entry and that the friction of the entry had abraded the
14 skin. The SANE nurse specifically testified that the victim’s injuries were consistent
15 with the victim’s testimony of the events that led to them.
16 Two officers testified about the forensic evidence taken from Mr. Smolky’s
17 residence. The evidence consisted of blood found in the bathroom where the beating
18 and batteries were alleged to have taken place, blood on the broken broomstick, the
19 broken broomstick parts, a photograph of the hole punched in the bathroom wall, and
22
1 DNA evidence taken from a child’s bedroom sheets. This evidence further supports
2 the victim’s testimony.
3 Defendant testified at trial and offered another version of events. He testified
4 that the sex was consensual and that the victim willingly stayed with him throughout
5 the weekend. Defendant offered alternate reasons for the broken broom that was
6 allegedly used to hit the victim and the hole he punched in the bathroom wall while
7 enraged. Defendant’s friends testified that they did not believe Defendant raped and
8 beat the victim. The jury could reasonably reject Defendant’s testimony and the
9 testimony of his friends. See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346,
10 950 P.2d 789 (“The reviewing court does not weigh the evidence or substitute its
11 judgment for that of the fact finder as long as there is sufficient evidence to support
12 the verdict.”); see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d
13 829 (filed 1998) (“Contrary evidence supporting acquittal does not provide a basis for
14 reversal because the jury is free to reject [the d]efendant’s version of the facts.”).
15 We hold that sufficient evidence supports Defendant’s convictions for false
16 imprisonment, second and third degree CSP, aggravated battery with a deadly
17 weapon, and intimidation of a witness.
23
1 CONCLUSION
2 We affirm Defendant’s convictions.
3 IT IS SO ORDERED.
4
5 MICHAEL D. BUSTAMANTE, Judge
6 WE CONCUR:
7
8 JONATHAN B. SUTIN, Judge
9
10 ROBERT E. ROBLES, Judge
24