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    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Sebastian GOMEZ, Defendant-Appellant."
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      {
        "text": "OPINION\nSUTIN, Judge.\n{1} Defendant Sebastian Gomez appeals Ms convictions of criminal sexual penetration (CSP) of a minor, criminal sexual contact (CSC) of a minor, and kidnaping. The issues on appeal center on the trial court\u2019s exclusion of the cMld\u2019s inconsistent statements, the propriety of the court\u2019s comments on the child\u2019s testimony, and Defendant\u2019s decision not to accept the trial court\u2019s offer of a mistrial based on improper jury instructions. We reverse on the first two issues, and affirm on the third.\nI. Exclusion of Inconsistent Statements\nA. Background\n{2} The State\u2019s main witness was the seven-year-old victim (Victim), who gave an unsworn, investigative Safehouse interview (Safehouse Interview), videotaped a few days after the incident at issue and ten months before trial. At trial, Victim testified, out of the presence of Defendant but before the trial court, through a videotape made specifically for trial pursuant to NMSA 1978, \u00a7 30-9-17 (1978) and Rule 5-504(B) NMRA 2001. Parts of each videotape were inconsistent, in whole or in part, with statements contained in the other.\n{3} Defense counsel, in his cross-examination of Victim during the tidal video, asked Victim whether she had told the truth on different occasions. Victim agreed that she had told her mother the \u201cwhole truth\u201d and her father the \u201csame truth.\u201d Defense counsel then asked her if she remembered giving the earlier Safehouse Interview and whether she had been truthful then. Victim agreed that she had \u201ctold [the Safehouse counselor] the whole truth, too\u201d and that what she described during her trial testimony was \u201cpretty much the same thing.\u201d Finally, Victim agreed that \u201cthe truth should be the truth, the same thing,\u201d implying within the context of the questioning that there was only one accurate version of the facts. There was no further mention of the prior Safe-house Interview during the videotaped trial testimony.\n{4} Victim\u2019s trial testimony on direct examination was that one evening she was walking back from a visit to her aunt\u2019s house when she met Defendant, her next-door neighbor, who grabbed her. She said that he wrapped his arms around her and carried her against Ms chest, in a way that she could not see or scream, to the bedroom in his trailer next to her home where she was violated. Victim described the incident with some specificity.\n{5} After the jury had seen and heard the videotaped trial testimony, both .the direct and cross-examinations, defense counsel sought to introduce the Safehouse Interview as impeachment by a prior inconsistent statement under Rule 11-613(B) NMRA 2001. Rule 11-613(B) reads:\nExtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. TMs provision does not apply to admissions of a party-opponent as defined in Subparagraph (2) of Paragraph D of Rule 11-801.\nThe State objected to the admission of the Safehouse Interview. Defense counsel countered that showing the Safehouse Interview videotape was proper under Rule 11-613(B), because during his cross-examination of Victim he reminded her of the Safehouse Interview, and Victim agreed that she consistently told the same truth in the Safehouse Interview as in her trial testimony.\n{6} The trial court denied the admission of the Safehouse Interview videotape reasoning that Rule 11-613(B) prohibited its admission unless the child was available to deny or explain the inconsistencies. The trial court also thought the State would be impermissibly deprived of its opportunity to rehabilitate its complaining witness. The trial court never viewed the Safehouse Interview to determine its relevance or whether it contained crucial impeachment evidence.\n{7} The differences between the two videotaped statements were substantive. Victim\u2019s Safehouse Interview testimony was that Defendant transported her by choking her from behind with her shirt and hair, and that Victim could not see him \u201cat all\u201d before he grabbed her. Ten months later at trial, Victim testified she saw Defendant \u201cstanding there\u201d as she walked toward her home. She was asked, \u201cHe was facing you?\u201d she responded, \u201cYes.\u201d Contrary to her Safehouse Interview testimony, she said he carried her in a bear-hug way that covered her eyes and mouth.\n{8} During the Safehouse Interview, Victim said she did not see Defendant\u2019s \u201cprivate,\u201d but at trial she said that she could see Defendant\u2019s \u201cnumber one\u201d [private part].\n{9} In the Safehouse Interview, Victim was asked about penetration of her vulva, \u201cDid he go inside?\u201d She responded, \u201cHe Mnda did ... a little bit ... [he] just poked.\u201d At trial, though, Victim stated, \u201cI can\u2019t remember\u201d whether she was penetrated and when asked if Defendant touched her \u201cinside,\u201d Victim remembered being touched between the legs and demonstrated that Defendant touched her first from the front, then from the back, but showed no penetration.\n{10} When asked during the Safehouse Interview whether his finger went inside her anus, Victim clearly answered, \u201cNo.\u201d Ten months later during direct examination at trial, the State asked, \u201cHe put a finger inside you?\u201d Victim responded, \u201cYes, it felt like [\u2018the\u2019 or \u2018a\u2019] big finger.\u201d On cross-examination at trial, however, Victim stated that Defendant \u201cpinched\u201d her, the pinch caused \u201cpain,\u201d and \u201che didn\u2019t stick his hand in the hole.\u201d\n{11} During the Safehouse Interview, Victim said she kicked Defendant in the stomach to get away, but at trial she stated that she slapped him on the face to get away. During the Safehouse Interview, Victim said she only pushed Defendant\u2019s door to get out of his trailer and run away. At trial, she described in some detail how she had unhooked a sliding chain lock to get away. During the Safehouse Interview, Victim stated that Defendant told her he would kill her if she told anyone. Ten months later at trial, Victim embellished her testimony in that she said he said \u201cwhen he escaped from jail,\u201d he would \u201cdo it again,\u201d kill her, and hurt her family if she told anyone.\nB. Discussion\n{12} Abuse of discretion is the standard of review on appeal of a trial court\u2019s ruling admitting a prior inconsistent statement pursuant to Rule 11-613. State v. Morales, 2000-NMCA-046, \u00b6 16, 129 N.M. 141, 2 P.3d 878. Substantively, the \u201cSixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution \u2018to be confronted with the witnesses against him.\u2019 \u201d Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). \u201cCross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.\u201d Id. at 316, 94 S.Ct. 1105; see State v. Fairweather, 116 N.M. 456, 463, 863 P.2d 1077, 1084 (1993). Impeachment is crucial to effective cross-examination because it gives a party the opportunity to discredit a witness, so the jury properly has a way to determine whether a witness is untruthful or inaccurate. Davis, 415 U.S. at 316, 94 S.Ct. 1105. This is especially \u201cimportant in the case of ... the testimony of [an individual] whose memory might be faulty.\u201d Id. at 316 n. 4, 94 S.Ct. 1105 (internal quotation marks and citation omitted).\n{13} Defendant does not contend he did not have the opportunity to cross-examine the chief witness against him. He complains he was deprived of his right to impeach her by demonstrating inconsistencies in her testimony. Not having been made aware of the Safehouse Interview statements, the jury could not compare those statements with her trial testimony made ten months later and was denied the opportunity to fully evaluate the Victim\u2019s credibility.\n{14} As noted in the Advisory Committee Notes in regard to federal rule 613(b), \u201c[t]he traditional insistence that the attendance of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence.\u201d The federal rule, identical to our Rule 11\u2014613(B), permits departure from the traditional, although often still preferred, method of confronting a witness with his inconsistent statement prior to its introduction in to evidence. United States v. Moore, 149 F.3d 773, 781 (8th Cir.1998); United States v. Hudson, 970 F.2d 948, 954-55 (1st Cir.1992); Wammock v. Celotex Corp., 793 F.2d 1518, 1521-22 (11th Cir.1986). Rule 11-613(B) permits the same departure. Where a prior inconsistent statement of a prosecution witness is proffered after the witness has already testified, the statement may still be admitted as long as the witness is given an opportunity to explain or deny the statement and the opposing party is given an opportunity to examine the witness on the statement. This procedure fits within the \u201coverriding mandate\u201d regarding evidence, including impeachment evidence, which is that it be \u201crelevant evidence that enhances the possibility of ascertaining the truth and doing justice.\u201d Jack B. Weinstein & Margaret A. Berger, Weinstein\u2019s Federal Evidence \u00a7 607.03[2][b] (2d ed.2001); see also Rule 11-401 NMRA 2001 (definition of relevant evidence); Rule 11-402 NMRA 2001 (admissibility of relevant evidence); Rule 11-403 NMRA 2001 (exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time).\n{15} The State created the Safehouse Interview videotape and was aware of its content. Victim was the only witness to the crucial facts at issue in the case. Defense counsel\u2019s cross-examination of Victim regarding the Safehouse Interview necessarily alerted the State to Defendant\u2019s interest in the Safehouse Interview. Although defense counsel did not at the time of the trial video confront Victim with contradictions between specific trial and specific Safehouse Interview statements, the State, aware that statements in the Safehouse Interview could prejudice its case, could have anticipated a defense strategy of proffering the Safehouse Interview at trial. The State could have followed up during the trial video by examining Victim on the content of the Safehouse Interview, or, as it did, could have awaited trial and sought to exclude the Safehouse Interview if proffered.\n{16} That the State had the opportunity for rehabilitation, rather than whether the prosecutor chose to question Victim on her inconsistencies, is a key here to determining whether Rule 11-613(B) was satisfied. Cf. State v. Lucero, 109 N.M. 298, 304, 784 P.2d 1041, 1047 (Ct.App.1989) (court not persuaded by defense counsel who knew about a child\u2019s prior consistent statements offered under Rule ll-801(D)(l)(b) NMRA 2001 to rebut charge but argued that he could not cross-examine her about the statements because the opposing party did not elicit them on direct examination). The record does not reflect any showing by the State that it could not have questioned Victim further at the time of the trial video. Nor does the record reflect any showing by the State that it could not have recalled Victim during the trial for further questioning either in person or in another videotaped deposition. During her videotaped trial testimony, Victim stated she would agree to be questioned in front of the jury as long as Defendant was not present in the room. In exercising its discretion under Rule 11-613(B), under circumstances such as those in this case, the court should not merely assume that a witness cannot be recalled, or that judicial economy or inconvenience would be significant factors with regard to affording the opportunities stated in Rule 11-613(B). See Hudson, 970 F.2d at 953-56 (citing United States v. Barrett, 539 F.2d 244, 254-56 (1st Cir.1976) for the proposition that \u201cdefense counsel need not in the circumstances necessarily have had to confront [the witness] with the earlier inconsistent statements prior to their offer as part of the defense case; and that there was no basis for assuming that he could not be recalled by the government or that judicial economy and convenience would have justified the trial court\u2019s ruling.\u201d).\n{17} In looking at the Rule 11-613(B) foundation requirements, in circumstances such as those in this case, the trial court should consider various factors, including: the statements alleged to be inconsistent; the unique circumstances based on the Section 30-9-17 trial video juxtaposed with the Safehouse Interview video taken ten months earlier by the State; the availability of and practicality of recalling Victim in person or through another trial video; the significance of the issues to which the inconsistent statements relate; and the statements\u2019 probative value. The court should also determine whether the foundation requirements should be waived in \u201cthe interests of justice,\u201d under Rule 11-613(B) using much the same analysis. Weinstein\u2019s Federal Evidence \u00a7 613.05[4][b].\n{18} The Safehouse Interview contained significant contradictions to Victim\u2019s trial testimony, about a range of details of the charges. The jury was denied the opportunity to assess the credibility of Victim and inform its determination of the facts by viewing the changes in the testimony of the seven-year-old victim over the ten months between the two video sessions. The trial court erred in refusing to admit the Safe-house Interview for the jury\u2019s review without first engaging in a full analysis of all factors important to an informed exercise of discretion.\nII. Court\u2019s Comments\n{19} Victim\u2019s taped trial testimony concluded with words from the trial court: \u201c[Victim], you did very well. I\u2019m very proud of you____[Y]ou did very well and we\u2019re all very proud of you, that you came here and you told us the truth.\u201d This portion of the videotape was shown to the jury.without objection.\n{20} \u201cA trial judge should studiously avoid making any remark or statement in the presence of the jury concerning factual issues or which may be construed as conveying his opinion concerning the merits of the case.\u201d State v. Sanchez, 112 N.M. 59, 66, 811 P.2d 92, 99 (Ct.App.1991). When a comment, taken in context, can fairly be said to be a comment by the trial court on the credibility of a witness, reversal is appropriate. See, e.g., State v. Henderson, 1998-NMSC-018, \u00b6 17, 125 N.M. 434, 963 P.2d 511. The comments of the trial court gave rise to a presumption of prejudice because they suggested to the jury that the court thought Victim was telling the truth in her trial testimony. See State v. Ortiz-Burciaga, 1999-NMCA-146, \u00b6 10, 128 N.M. 382, 993 P.2d 96.\n{21} Defendant did not preserve this error below. He has raised the issue as a matter of fundamental error, citing State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991), (\u201cThe doctrine of fundamental error, even though it applies only under exceptional circumstances, does apply to prevent a miscarriage of justice[,] ... if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand.\u201d) (internal quotation marks and citations omitted).\n{22} Our Supreme Court recently examined the fundamental error doctrine exception to our general appellate rules in State v. Traeger, 2001-NMSC-022, \u00b6\u00b6 17-25, 130 N.M. 618, 29 P.3d 518. Because we reverse on the issue of exclusion of the Safehouse videotape testimony, we need not, and do not, decide whether the comments of the court require a fundamental error result under Traeger. We take this opportunity, however, to say that the court\u2019s affirmation of Victim\u2019s credibility, when combined with the exclusion of the Victim\u2019s inconsistent statements, substantially increase the concern that the comments interfered with the independence of the jury and bring the issue to the brink of fundamental error. On remand, no such comments should be made.\nIII. Jury Instructions\n{23} Defendant asserts his convictions are illegal because the jury instructions on CSP and CSC were impermissibly confusing to the jury, see State v. Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994), and violated Defendant\u2019s constitutional protection against double jeopardy. Herron v. State, 111 N.M. 357, 358-61, 805 P.2d 624, 625-28 (1991). The jury received one instruction on CSC and one instruction on CSP. Both included language referring to either \u201cthe vulva or the anus,\u201d even though some evidence supported CSC and CSP of each orifice. During the trial conference settling jury instructions, defense counsel argued that the instructions were vague and confusing. His concern was that the jury could convict Defendant of both the greater offense of CSP and the lesser offense of CSC based on the same conduct: \u201cBecause it\u2019s not clear what the activity for Count 1 is, and not clear what Count 2 is, ... for the same conduct, they could find him guilty of both and we would not know.\u201d The prosecutor explained that she tried to avoid overcharging and maintained it was proper under the evidence to charge one count of \u201ctouching\u201d (CSC) and one count of penetration (CSP) \u2014 and argue both in terms of both the anus and the vulva.\n{24} As predicted by defense counsel, the jury was confused by the instructions, as shown by their question during deliberation: \u201cIs it true that if we find the Defendant guilty of sexual penetration in one event, the Defendant is not guilty of sexual contact?\u201d Counsel conferred with the court at length about what answer should be sent back to the jury. The court suggested that jury confusion was so great that a mistrial was required, stating, \u201cNow\u2019s the time to declare the mistrial and start it over.\u201d The State asked the court to answer the jury\u2019s question. Defense counsel agreed: \u201cI think that\u2019s the thing to do, rather than declare a mistrial.\u201d So without objection, the court prepared its response: \u201cYes, you can find penetration or contact with respect to the anus AND you can find penetration or contact with respect to the vulva.\u201d\n{25} We agree with the State that though Defendant raised serious concerns about the jury instructions, he waived any error on this issue by declining the trial court\u2019s offer of a mistrial. That is, Defendant has no right to ask for a new trial on the issue of faulty jury instructions after he rejected the court\u2019s offer to declare a mistrial. State v. Musgrave, 102 N.M. 148, 150, 692 P.2d 534, 536 (Ct.App.1984).\n{26} On remand, however, we suggest the parties and trial court review Herron before preparing the jury instructions. Ill N.M. at 361, 805 P.2d at 628. Under the facts presented at the original trial in this case, the parties are entitled to instructions for one count of kidnaping plus one count of CSP with a step-down instruction for the lesser-included offense of CSC. Pursuant to Herron, we see no break in Defendant\u2019s \u201ccontinuous attack\u201d to support conviction of more that one count of CSP. Id. Using the same rationale, CSC can only be charged as a lesser-included offense of the one CSP. Id.\nIV. Conclusion\n{27} We reverse and remand this case for retrial consistent with this opinion. The parties should note that a new ruling supported by new findings on whether Victim will testify by videotaped deposition pursuant to Section 30-9-17 and Rule 5-504(B) may be required. Lucero, 109 N.M. at 305, 784 P.2d at 1048.\n{28} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE, Judge and IRA ROBINSON, Judge.",
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        "author": "SUTIN, Judge."
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    "attorneys": [
      "Patricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, ,NM, for Appellee.",
      "Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant."
    ],
    "corrections": "",
    "head_matter": "2001-NMCA-080\n33 P.3d 669\nSTATE of New Mexico, Plaintiff-Appellee, v. Sebastian GOMEZ, Defendant-Appellant.\nNo. 21,672.\nCourt of Appeals of New Mexico.\nAug. 27, 2001.\nCertiorari Denied, No. 27,141, Oct. 10, 2001.\nPatricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, ,NM, for Appellee.\nPhyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant."
  },
  "file_name": "0118-01",
  "first_page_order": 152,
  "last_page_order": 158
}
