State v. Barron

STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRANDON J. BARRON, Defendant-Appellant.

No. A-1-CA-38043

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 22, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Fred T. Van Soelen, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Gregory B. Dawkins, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} Defendant Brandon Barron appeals his conviction for criminal sexual penetration (CSP) in the third degree contrary to NMSA 1978, Section 30-9-11(F) (2009). On appeal, Defendant argues that the district court: (1) abused its discretion in denying his request for a statement of facts; (2) abused its discretion in denying his motion for Victim's medical and psychological records; and (3) erred in failing to properly instruct the jury on mental capacity and unlawfulness. We affirm.

BACKGROUND

{2} Defendant, a door-to-door vacuum cleaner salesman, stopped by Victim's home on March 15, 2017. Victim allowed Defendant into her home to perform a demonstration of the vacuum cleaner's features, and Defendant offered to show Victim an attachment for cleaning mattresses. Victim agreed, and Defendant and Victim proceeded to Victim's bedroom. After demonstrating the mattress attachment, Defendant asked Victim questions about her personal life and romantic interests. Victim, who testified at trial that she had been raped and beaten when she was nineteen, suspected Defendant wanted to have sex, and thought that by proactively offering oral sex, she could avoid being beaten and raped. Accordingly, she offered to engage in oral sex with Defendant, Defendant agreed, and Victim and Defendant engaged in oral sex. Thereafter, Defendant suggested that Victim and Defendant have anal sex. Victim agreed, but during the act, Victim told Defendant to stop because he was hurting her. Defendant did not stop, and instead kept his hands over hers and held her down, continuing until ejaculation. Defendant was subsequently arrested, and a grand jury indicted him on a charge of CSP in the third degree. At trial, Defendant was convicted and sentenced to three years in prison. This appeal followed.

DISCUSSION

I. The District Court Did Not Abuse Its Discretion in Denying Defendant's Request for a Statement of Facts

{3} Defendant contends that the district court abused its discretion in denying his request for a statement of facts, and that this error prejudiced Defendant by rendering him unable to properly defend against the charge.¹ "We review the district court's denial of a motion for a [statement of facts] for an abuse of discretion." State v. DeAngelo M., 2015-NMCA-019, ¶ 31, 344 P.3d 1019. "An abuse of discretion occurs when the ruling is clearly against the logic and effects of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize [the ruling] as clearly untenable or not justified by reason." State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438 (internal quotation marks and citation omitted).

{4} Defendant was indicted on the charge of CSP in the third degree, which "consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section." Section 30-9-11(F). "[F]orce or coercion" is defined in relevant part, as "the use of physical force or physical violence" and "the perpetration of criminal sexual penetration . . . when the perpetrator knows or has reason to know that the victim . . . suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act[.]" NMSA 1978, § 30-9-10(A)(l),(4) (2005). Prior to trial, the prosecutor explained that he was considering proceeding either on the theory that Defendant used force, or on the theory that Victim had diminished mental capacity, and that the State had not yet elected which theory it would present at trial. Defendant filed a pretrial motion requesting that the State be compelled to provide him a statement of facts, averring that the indictment against him was "vague, indefinite, uncertain and insufficient in general terms and conclusions." The district court denied the motion.

{5} It is generally unnecessary for the State to specify in an indictment, the "time of the commission of [the] offense; . . . place of the commission of offense; . . . means by which the offense was committed . . . intent with which an act was done; . . . description of any place or thing . . . the specific degree of the offense charged; . . . any statutory exceptions to the offense charged; or any other similar allegation." Rule 5-205(A) NMRA. However, "[e]very accused has the right to be informed of the crime with which he is charged in sufficient detail to enable him to prepare his defense." State v. Foster, 1974-NMCA-150, ¶ 7, 87 N.M. 155, 530 P.2d 949. If "defendants do not have adequate notice of the charges filed against them, they cannot be expected to prepare a defense to those charges." State v. Lente, 2019-NMSC-020, ¶ 15, 453 P.3d 416. Accordingly, a defendant who believes he has inadequate notice of the charges against him, may file a motion and the "[district] court may order the state to file a statement of facts setting forth any or all of the unnecessary allegations[.]" Rule 5-205(C).

{6} This Court has previously held that the State need only provide "details sufficient to enable a defendant to prepare a defense[.]" State v. Badoni, 2003-NMCA-009, ¶ 16, 133 N.M. 257, 62 P.3d 348. A defendant is not entitled to a statement of facts if the defendant receives sufficient information about the nature and crime charged by alternative means. See State v. Serna, 1991-NMCA-102, ¶ 20, 112 N.M. 738, 819 P.2d 688 (holding that a defendant was not entitled to a statement of facts where he had been put on notice of crime charged through his receipt of copy of grand jury indictment, police report, and defense counsel's interview with State's witnesses); State v. Aaron, 1984-NMCA-124, ¶ 22, 102 N.M. 187, 692 P.2d 1336 (holding that the purpose of a statement of facts was fulfilled by providing the defendant with grand jury tapes providing adequate information allowing the defendant to prepare his defense). In this case, Defendant was provided with the indictment on the charge of CSP, access to the State's discovery, and the recording of the grand jury proceeding. Once Defendant obtained the grand jury materials and heard the prosecutor's explanation that the State was proceeding on both theories, Defendant had the information required to prepare a defense, and accordingly, was not entitled to a statement of facts.

{7} Finally, Defendant argues that had the district court granted his motion, it "would have held the prosecution to its announced mental incapacity theory, instead of allowing them to switch back and forth mid-trial." We disagree. Defendant cites to no authority for the proposition that the State must elect a particular theory prior to trial. The United States Supreme Court "has long acknowledged the Government's broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case." Ball v. United States, 470 U.S. 856, 859 (1985). Similarly, we haveheld that the state need not elect a precise theory of culpability ahead of trial, so long as the defendant has adequate notice of the charges against him. See State v. McCall, 1983-NMCA-109, ¶ 30, 101 N.M. 616, 686 P.2d 958, rev'd on other grounds, 1984-NMSC-007, ¶ 1, 101 N.M. 32, 677 P.2d 1068 (holding that refusal to compel the state to elect the precise theory of culpability upon which the charges set forth in the indictment would be tried was not a basis for establishing that the defendant was without sufficient notice and information to adequately prepare his defense where no showing was made that any evidence produced by the state at trial came as a surprise to the defendant). Defendant was not prejudiced because, even without a statement of facts, the defense was on notice more than a year before trial that the prosecution was contemplating proceeding on either a theory of force or a theory that Victim lacked mental capacity, or both, as set forth in Section 30-9-10(A)(l), (4).

II. Denial of Defendant's Request for Victim's Records

{8} Defendant argues that the district court erred in denying his motion requesting Victim's mental health records. He contends that because the State signaled an intent to proceed under a mental incapacity theory, the State was required "to obtain" and disclose Victim's "mental health records."² Defendant focuses his argument on Victim's capacity to consent under Section 30-9-10(A)(4), a theory which the State did not ultimately pursue at trial. See id. (stating that force or coercion can be established if a victim "suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act").

{9} "Where medical records are sought by the defense . . . we require a threshold showing by the defendant that the records may reasonably be expected to provide information material to the defense." State v. Paiz, 2006-NMCA-144, ¶ 15, 140 N.M. 815, 149 P.3d 579 (alteration, internal quotation marks, and citation omitted); see Rule 5-501(A)(6) NMRA (indicating the state shall provide the defendant with "any material evidence favorable to the defendant which the state is required to produce under the [D]ue [P]ocess [C]lause of the ...