State v. Cox

STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL COX, Defendant-Appellant.

Docket No. A-1-CA-35997

COURT OF APPEALS OF NEW MEXICO

May 30, 2019

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 OTERO COUNTY, Jerry H. Ritter, Jr., District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, Laurie Blevins, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM for Appellant.

JUDGES

M. MONICA ZAMORA, Chief Judge. WE CONCUR: JACQUELINE R. MEDINA, Judge ZACHARY A. IVES, Judge

AUTHOR: M. MONICA ZAMORA

MEMORANDUM OPINION

M. ZAMORA, Chief Judge.

{1} Michael Cox (Defendant) appeals his conviction for second-degree criminal sexual contact of a minor (CSCM) under 13 years of age, contrary to NMSA 1978, Section 30-9-13(B)(1) (2003). Defendant raises six issues: (1) insufficient evidence; (2) improper admission of the Victim's prior consistent statements; (3) improper admission of lay testimony regarding the Victim's change in behavior after the CSCM and not allowing Defendant to rebut this testimony with evidence of the Victim's medical history; (4) improper denial of Defendant's motion for new trial; (5) cumulative error; and (6) ineffective assistance of counsel. We affirm.

{2} Defendant's conviction was based in part on testimony that he touched his then-girlfriend's five-year-old daughter (Victim) on her vagina on July 7, 2014. Victim testified to the following events at trial. Victim and Defendant, who was her mother's (Mother) boyfriend at the time, were sitting alone on Mother's bed in the bedroom while Mother was showering. Defendant reached under Victim's shorts and underwear, and touched and pushed her "cuca" with his four fingers "too hard" and that it "hurt" and she felt "horrible." Victim described her "cuca" as the front, private part of her body where she goes pee. Victim told Defendant to stop and he told her to be quiet and did not stop. After touching her "for kind of a long time," Defendant stopped, smelled his hand, and went to the kitchen where he washed his hands in the kitchen sink.

{3} After her Mother got out of the shower, Victim walked across the street to where her grandmother (Grandmother) and other extended family members live. Later that evening, while being bathed, Victim told Grandmother what Defendant did to her while she was on the bed with him. Grandmother and Aunt Blanca drove Victim to the hospital for a medical exam by a sexual assault nurse examiner (SANE). While on the way to the hospital, Victim again told her Grandmother and her Aunt Blanca about what Defendant did to her. The next day, Victim told a Safehouse forensic interviewer what happened. Defendant testified that "all the allegations [of CSCM and CSPM were] false."

{4} At trial, the jury was instructed on the elements of both criminal sexual penetration of a minor (CSPM) under the age of thirteen and the lesser-included crime of criminal sexual contact of a minor (CSCM) under the age of thirteen. The jury found Defendant guilty of CSCM. This appeal followed.

{5} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of the case, we reserve further discussion of pertinent facts for our analysis.

DISCUSSION

I. The State Presented Sufficient Evidence to Sustain the Guilty Verdict

{6} In reviewing sufficiency of the evidence, "we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and citation omitted). "In that light, the Court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks and citation omitted). In conducting our inquiry, we do not reweigh the evidence or substitute our judgment for that of the fact-finder. State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M.713, 114 P.3d 393. "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Jackson, 2018-NMCA-066, ¶ 22, 429 P.3d 674, cert denied, 2018-NMCERT- ___ (No. S-1-SC-37267, Oct. 15, 2018).

{7} To find Defendant guilty of CSCM, the jury had to find: (1) Defendant touched or applied force to Victim's unclothed mons pubis, and/or mons veneris, vulva and/or vagina; (2) Victim was a child under the age of thirteen; and (3) it happened in New Mexico on or about July 8, 2014. See § 30-9-13(B)(1); see also UJI 14-925 NMRA. Defendant argues that the State failed to prove that he was the perpetrator or that the allegations were not fabricated by Victim.¹ Defendant directs us to evidence he believes was sufficient to support an acquittal, consisting of: (1) his denial of the allegations; (2) he and Mother had been broken up at the time of the alleged incident; (3) Victim told the Safehouse interviewer "I forgot all the other story" thus demonstrating that "she was repeating what someone else told her to say"; and (4) the recorded cell phone conversation also "showed that [Victim] was coached into saying that [Defendant] touched her private area." The State argues that Victim's testimony as to the time, setting, and details of the abuse, without gaps in memory, was sufficient to uphold the verdict. We agree.

{8} First, although Defendant did deny committing CSPM or CSCM during his testimony, the jury heard Victim testify that she was telling the truth when she disclosed what Defendant had done to her in the bedroom, and heard Victim testify during cross-examination that "nobody ever told [her] to say anything like this." Mother also testified during cross-examination that she did not tell Victim "to say anything about the Defendant putting his fingers in her vagina." Although Defendant denied touching Victim's vagina, the jury sat as the finder of fact and judges of credibility and chose to afford credibility to Victim. See State v. Fierro, 2014-NMCA-004, ¶ 40, 315 P.3d 319 (observing that the jury, not the appellate court must "reconcile any conflicts in the evidence and determine where truth and credibility lies").

{9} Second, Defendant directs us to his testimony that he and Mother were already broken up when Victim accused him of touching her vagina. Victim testified that Defendant was dating and living with her Mother on the day he touched her vagina. Grandmother testified that she saw Defendant coming out of Mother's trailer on the day she took Victim to the hospital. When defense counsel pressed Grandmother about whether it is possible that she saw someone other than Defendant coming out of the trailer, she responded unequivocally: "No, it was him." Other family members testified that they saw Defendant in front of Mother's house on the day Victim disclosed what Defendant had done to her. Although Mother testified that she and Defendant had broken up in early July, she also testified that that after the breakup, Defendant had come back to the trailer twice and stayed over once. Based on this testimony, it was reasonable for the jury to conclude that Defendant was still involved with Mother to some degree and was in the trailer on the date Victim disclosed that Defendant touched her vagina. See State v. Caudillo, 2003-NMCA-042, ¶ 7, 133 N.M. 468, 64 P.3d 495(stating that evidence of a direct or circumstantial nature is sufficient if "a reasonable mind might accept [the evidence] as adequate to support a conclusion." (internal quotation marks and citation omitted)).

{10} Third, Defendant directs us to a section of Victim's Safehouse interview in which she stated she "forgot the rest of the story." Defense counsel asked Victim during cross-examination whether she remembered making the statement during her Safehouse interview. Victim responded that she remembered and explained "[t]hat meant that I forgot all the other things." Again, this statement was presented to the jury and we will not substitute our judgment for the jury's judgment with respect to the credibility of witnesses. See Montoya, 2005-NMCA-078, ¶ 3.

{11} Fourth, Defendant contends the recorded cell phone conversation made while Victim was driven to the hospital "showed that [Victim] was coached into saying that [Defendant] touched her private area." Directing us to and quoting Maryland v. Craig, 497 U.S. 836, 868 (1990) and State v. Ruiz, 2001-NMCA-097, ¶ 34, 131 NM 241, 34 P.3d 630, Defendant asserts the importance of proper interview techniques as a predicate for eliciting accurate and consistent recollection from children, but fails to develop this argument further. Defendant similarly fails to develop his argument that this Court "must not rely on improper inference, surmise, or a cynical speculation to fill the gaps in the State's proof." We therefore do not consider these arguments. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that appellate courts are under no obligation to review unclear or undeveloped arguments).

{12} To the extent Defendant argues that his explanation should not be disregarded in light of this Court's standard of review, we note that although there is corroborating evidence in this case, "[i]n prosecutions for criminal sexual penetration, the testimony of the victim need not be corroborated and lack of corroboration has no bearing on weight to be given to the testimony." State v. Nichols, 2006-NMCA-017, ¶ 10, 139 N.M. 72, 128 P.3d 500 (alterations, internal quotation marks, and citation omitted); see id. ¶¶ 10, 31 (affirming conviction...