{ "id": 4001913, "name": "STATE of New Mexico, Plaintiff-Petitioner, v. Ernest SENA, Defendant-Respondent", "name_abbreviation": "State v. Sena", "decision_date": "2008-08-26", "docket_number": "No. 30,540", "first_page": "821", "last_page": "827", "citations": [ { "type": "official", "cite": "144 N.M. 821" }, { "type": "parallel", "cite": "2008-NMSC-053" }, { "type": "parallel", "cite": "192 P.3d 1198" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2008-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002756 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0184-01" ] }, { "cite": "2007-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669553 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0185-01" ] }, { "cite": "2007-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669243 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0443-01" ] }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 41" }, { "page": "\u00b6 48" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "2007-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669068 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0413-01" ] }, { "cite": "2000-NMCA-046", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217128 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0141-01" ] }, { "cite": "2005-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929169 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0197-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "94 N.M. 693", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573142 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "696" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0693-01" ] }, { "cite": "2007-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692037 ], "weight": 15, "pin_cites": [ { "page": "\u00b6\u00b6 8-10" }, { "page": "\u00b6 35" }, { "page": "\u00b6 37" }, { "page": "\u00b6 25" }, { "page": "\u00b6\u00b6 14, 19" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0677-01" ] } ], "analysis": { "cardinality": 892, "char_count": 19988, "ocr_confidence": 0.694, "pagerank": { "raw": 1.9438760198237977e-07, "percentile": 0.7358666470516235 }, "sha256": "beb12b65342281bdf96f5f4ce6d5096e32e9450b2fec77f6088616a557a204e9", "simhash": "1:cf01c29e796c60aa", "word_count": 3196 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, CHARLES W. DANIELS, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Petitioner, v. Ernest SENA, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nSERNA, Justice.\n{1} Defendant Ernest Sena was convicted of two counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13(A)(l) (1991, prior to amendments through 2003). He appealed his convictions, citing numerous grounds for error. The Court of Appeals vacated his convictions and remanded for a new trial on the grounds that (1) there was insufficient evidence to support one of his convictions and (2) the trial court had improperly admitted other-acts evidence. The State petitioned this Court to review both issues. We reverse the Court of Appeals and remand to that court to consider the issues that it did not previously reach.\nI. BACKGROUND\n{2} Defendant was indicted on five counts of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section 30 \u2014 9\u201411(C)(1) (1995, prior to amendments through 2007), and seven counts of CSCM. The victim (Child) is Defendant\u2019s granddaughter. During the summer of 2000, which is the time of the incidents in question, Child would occasionally spend time at her grandparents\u2019 house under the supervision of her grandmother and Defendant. One of the couple\u2019s responsibilities while taking care of Child was to treat an eczematous rash that covered her body from the back of her waist to the back of her knees; importantly, the rash never appeared on Child\u2019s vagina. Part of the treatment regimen required the application of medicinal ointment to Child\u2019s rash \u2014 a procedure done by both grandmother and Defendant. Child later alleged that Defendant had inappropriately touched her \u201cprivate area\u201d during at least one of those treatments.\n{3} As part of its case against Defendant, the State sought to introduce evidence that he walked around naked in front of Child; that he showed her a pornographic video; that he showed her his wife\u2019s thong underwear; and that he showered naked with her (hereinafter collectively referred to as \u201cthe grooming evidence\u201d). Before trial, Defendant filed a motion in limine, seeking to exclude the grooming evidence. At a hearing on the motion, the State argued that the grooming evidence showed Defendant\u2019s attempt to gain Child\u2019s trust and to make her comfortable with things of a sexual nature so that she would become comfortable with his sexual behavior. The State also claimed that the evidence was admissible because it showed Defendant\u2019s intent. Defendant argued that the evidence should not be admitted because he was not claiming lack of sexual intent, but instead was denying that any illegal touching had ever occurred. The trial court admitted the grooming evidence pursuant to Rule 11-404(B) NMRA (providing that evidence of other crimes, wrongs, or acts, while inadmissible to show action in conformity with character, may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).\n{4} At trial, Child had difficulty identifying the exact dates on which Defendant had purportedly committed his illegal acts. To help Child locate the events in time, the State utilized two benchmarks that Child could more easily remember and could rely on when testifying about the details of Defendant\u2019s alleged offenses. Thus, all of the crimes with which Defendant was charged were alleged to have occurred between a family trip to Colorado, beginning June 11, 2000, and Child\u2019s eighth birthday, on July 8, 2000.\n{5} When Child testified at trial, she was inconsistent as to the number of times that Defendant had allegedly touched her during the charging period. When the prosecutor asked Child how many times Defendant had touched her subsequent to the family trip to Colorado, Child responded, \u201cI think it was about five[;] I am not sure.\u201d Immediately thereafter, the prosecutor asked, \u201cSo did some of it happen before Colorado?\u201d Child said, \u201cMost happened before Colorado and once after.\u201d The prosecutor followed up, \u201cOnce after Colorado and before your birthday?\u201d Child answered, \u201cYes.\u201d She then proceeded to describe two incidents during which Defendant allegedly touched her inappropriately. First, she explained that once while she was attempting to put lotion on her rash, Defendant intervened to help apply the lotion and then touched her \u201cprivates.\u201d Second, she testified that Defendant touched her \u201cprivates\u201d another time while she was falling asleep.\n{6} At the close of the State\u2019s case, Defendant moved for a directed verdict. He argued that the evidence was insufficient to support more than one instance of illegal touching and construed Child\u2019s testimony as establishing that Defendant touched her only once during the charging period. The trial court denied the motion, ruling that Child\u2019s testimony supported two counts of CSPM or, in the alternative, two counts of CSCM. So instructed, the jury found Defendant guilty of both counts of CSCM.\n{7} A majority of the Court of Appeals disagreed with the trial court\u2019s ruling on the directed verdict motion. State v. Sena, 2007-NMCA-115, \u00b6\u00b6 8-10, 142 N.M. 677, 168 P.3d 1101. It held that the evidence supported only one CSCM conviction because Child\u2019s testimony could not reasonably be interpreted as establishing that Defendant had touched her more than once during the charging period. See id. \u00b6 10. The dissent, however, argued that a reasonable jury could have resolved the inconsistencies in Child\u2019s testimony to support the trial court\u2019s ruling, and thus concluded the trial court had reached the proper result. Id. \u00b6 35 (Fry, J., dissenting).\n{8} The majority also held that the trial court erred in admitting the grooming evidence. Id. \u00b6 23. Stating that the grooming evidence was improper character evidence purposed on \u201cshowing] the jury that Defendant acted like a pervert on occasion\u201d in an attempt to \u201cimply that Defendant was acting in conformity with that trait,\u201d the majority concluded that the grooming evidence was inadmissible under Rule 11-404(B). Id. Again, the dissent disagreed. It countered that our precedent supported admission of the grooming evidence and that the trial court\u2019s ruling should have been upheld. Id. at \u00b6\u00b6 36-38 (Fry, J., dissenting).\n{9} On the State\u2019s petition, we review each issue in turn, beginning with the directed verdict motion.\nII. THE TRIAL COURT PROPERLY DENIED DEFENDANT\u2019S MOTION FOR A DIRECTED VERDICT\n{10} Our review of the denial of a directed verdict motion asks whether sufficient evidence was adduced to support the underlying charge. See State v. Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980). \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). When considering the sufficiency of the evidence, this Court \u201cdoes not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence.\u201d State v. Graham, 2005-NMSC-004, \u00b6 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted). Instead, \u201c[w]e view the evidence as a whole and indulge all reasonable inferences in favor of the jury\u2019s verdiet,\u201d id., while at the same time asking whether \u201cany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,\u201d id. \u00b6 7 (alteration in original) (internal quotation marks and citation omitted).\n{11} Child\u2019s testimony in this case was ambiguous as to the number of times that Defendant touched her during the charging period. She told the jury about two separate instances of inappropriate touching, the first occurring while she was putting lotion on her rash and the second happening while she was falling asleep. However, that testimony came after Child had first stated that Defendant had touched her five times subsequent to the Colorado trip, only to then answer that the touching had occurred just once after Colorado. Thus, Child\u2019s testimony was inconsistent. When parts of a witness\u2019s testimony are \u201cconflicting and ambiguous!,] ... [i]t is the exclusive province of the jury to resolve [the] factual inconsistencies in [that] testimony.\u201d State v. Morales, 2000-NMCA-046, \u00b6 8, 129 N.M. 141, 2 P.3d 878 (internal quotation marks and citation omitted). In the instant case, the record supports the inference that Defendant touched Child multiple times during the charging period, as well as the inference that he touched her only once during that time. However, the applicable standard of review does not contemplate our \u201cparsing] the testimony and viewing] the verdict only in light of the probative value of individual pieces of evidence.\u201d Graham, 2005-NMSC-004, \u00b6 13, 137 N.M. 197, 109 P.3d 285. Instead, \u201c[a]ppellate courts faced with a record of historical facts that supports conflicting inferences must presume \u2014 even if it does not affirmatively appear in the record \u2014 that the trier of fact resolved any such conflicts in favor of the [prevailing party], and must defer to that resolution.\u201d Id. (internal quotation marks and citation omitted). Given that presumption and the record before us, we conclude that the jury acted rationally in resolving the factual inconsistencies present in Child\u2019s testimony in favor of the conclusion that Defendant touched Child twice during the charging period. We defer to that resolution, and thus agree with Judge Fry\u2019s conclusion in dissent that the trial court properly denied Defendant\u2019s directed verdict motion. See Sena, 2007-NMCA-115, \u00b6 35, 142 N.M. 677, 168 P.3d 1101 (Fry, J., dissenting).\nIII. THE TRIAL COURT PROPERLY ADMITTED THE GROOMING EVIDENCE\nA. The Grooming Evidence was Admissible under Rule 11-404(B)\n{12} \u201cEvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of ... intent ... or absence of mistake or accident.\u201d Rule 11-404(B). Accordingly, \u201cevidence of other acts is admissible under Rule 11-404(B) if relevant to a material issue other than the [defendant\u2019s character or propensity to commit a crime.\u201d State v. Kerby, 2007-NMSC-014, \u00b6 25, 141 N.M. 413, 156 P.3d 704. We review a trial court\u2019s decision to admit evidence under Rule 11-404(B) for abuse of discretion, which occurs when the court\u2019s ruling is \u201cclearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).\n{13} In this case, the grooming evidence was admissible to prove Defendant\u2019s intent. See Kerby, 2007-NMSC-014, \u00b6 26, 141 N.M. 413, 156 P.3d 704. To prove CSCM, the State must establish that the defendant\u2019s touch was \u201cunlawful,\u201d and it may do so by showing that the \u201cdefendant\u2019s behavior was done to arouse or gratify sexual desire.\u201d Kerby, 2007-NMSC-014, \u00b6 26, 141 N.M. 413, 156 P.3d 704 (internal quotation marks and citation omitted). In Kerby, the defendant created a peephole into the victim\u2019s bathroom. Id. We affirmed the trial court\u2019s admission of that other-act evidence to counter the defendant\u2019s assertion that he had touched the victim\u2019s buttocks merely as a fatherly pat. Id. The peephole evidence, we reasoned, supported the inference that the defendant had touched his victim with a sexual intent, and thus was relevant to prove the unlawfulness element of CSCM. Id.\n{14} In the instant case, the State elicited testimony from several witnesses that Defendant had admitted to touching Child\u2019s \u201cprivates\u201d while putting the ointment on her rash. It also cross-examined Defendant with his statement to an investigating officer that he had touched Child\u2019s vagina while putting medicine on her rash but had not done so sexually. Thus, evidence offered at trial supported the inference that, when Defendant touched Child during his application of medicinal ointment to her rash, he did so without a sexual intent. The grooming evidence counters that inference because it suggests that Defendant was attempting to familiarize Child with sexuality and thereby to create an atmosphere in which she would be less resistant to his sexual advances. As \u201cevidence of Defendant\u2019s sexually fraught conduct with the Child,\u201d the grooming evidence was properly admitted to \u201crefute[ ] the evidence that Defendant touched the Child strictly for medical reasons.\u201d Sena, 2007-NMCA-115, \u00b6 37, 142 N.M. 677, 168 P.3d 1101 (Fry, J., dissenting). Thus, while the Court of Appeals correctly asserted that the grooming evidence could not be offered to show Defendant\u2019s propensity to \u201cact[ ] like a pervert on occasion,\u201d id. \u00b6 23, it erred in rejecting the evidence as proof of Defendant\u2019s intent, see id. \u00b6 22.\n{15} For those reasons, we cannot characterize the trial court\u2019s admission of the grooming evidence as clearly untenable or not justified by reason, and thus hold that it was properly admitted under Rule 11-404(B).\nB. The Grooming Evidence was Admissible under Rule 11-403 NMRA\n{16} Defendant argues that, even if the grooming evidence was admissible under Rule 11-404(B), it should have been excluded under Rule 11-403 as unfairly prejudicial. Rule 11-403 states that otherwise relevant evidence \u201cmay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.\u201d Other-act evidence that proves only character or propensity is unfairly prejudicial and properly excluded under Rule 11-403. State v. Otto, 2007-NMSC-012, \u00b6 16, 141 N.M. 443, 157 P.3d 8. However, as we concluded above, the grooming evidence was offered for a legitimate, non-character purpose. Thus, its admissibility under Rule 11-403 depends on the balance of its probative value against any prejudicial effect that it may have had. See State v. Gallegos, 2007-NMSC-007, \u00b6 22, 141 N.M. 185, 152 P.3d 828. \u201cDetermining whether the prejudicial impact of evidence outweighs its probative value is left to the discretion of the trial court.\u201d Rojo, 1999\u2014NMSC-001, \u00b6 48, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). We review such determinations for abuse of discretion and give much leeway to \u201ctrial judges who must fairly weigh probative value against probable dangers.\u201d Otto, 2007-NMSC-012, \u00b6 14, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted).\n{17} In the instant case, the grooming evidence was probative of the fact that Defendant acted with a sexual intent. Without hearing the grooming evidence, the jury was more likely to believe that Defendant touched Child simply for medicinal purposes and less likely to believe that he did so with a sexual intent. Given the probative value of the grooming evidence when offered to show Defendant\u2019s intent, we cannot characterize the trial court\u2019s admission of it as clearly untenable or unjustified by reason. Thus, we hold that the trial court did not abuse its discretion in admitting the grooming evidence under Rule 11-403.\nC. Expert Testimony was not Required to Submit the Grooming Evidence to the Jury\n{18} While holding that the grooming evidence was inadmissible, the Court of Appeals majority stated that testimony regarding a defendant\u2019s grooming behavior is \u201cbest left to an expert witness.\u201d Sena, 2007-NMCA-115, \u00b6 25, 142 N.M. 677, 168 P.3d 1101. While we agree with the dissent that the propriety of lay testimony on the subject of grooming was not raised at trial or on appeal, and thus should not have been addressed by the majority, id. \u00b640 (Fry, J., dissenting), we are compelled to briefly address the issue.\n{19} Rule ll-404(B)\u2019s list of exceptions to the general prohibition against character evidence is not exhaustive; it is merely illustrative. Gallegos, 2007-NMSC-007, \u00b6 22, 141 N.M. 185, 152 P.3d 828. Apparently in recognition of this, the majority opinion characterized the trial court\u2019s ruling as having admitted the grooming evidence under an unlisted exception to Rule 11-104(B). Sena, 2007-NMCA-115, \u00b6\u00b6 14, 19, 142 N.M. 677, 168 P.3d 1101. Namely, the majority opined that the trial court admitted the grooming evidence to prove the fact that Defendant had engaged in \u201c \u2018[t]he process of manipulation often utilized by child molesters, intended to reduce a victim\u2019s or potential victim\u2019s resistance to sexual abuse,\u2019\u201d also known as \u201c \u2018[gjrooming.\u2019 \u201d Id. \u00b6 15 (quoting Ctr. for Sex Offender Mgmt., Glossary of Terms Used in the Mgmt. & Trtmt. of Sexual Offenders 11 (1999), http://www. esom.org/pubs/glossary.pdf). So viewing the trial court\u2019s ruling, the majority proceeded to analyze the evidentiary requirements necessary to offer evidence of a defendant\u2019s grooming behavior to prove the fact that grooming actually occurred. See id. \u00b6\u00b6 16-27.\n{20} While an expert witness is needed when details of a scientific or specialized theory and its application to the facts of a particular case are being introduced to the jury, see Rule 11-701 NMRA (preventing lay witnesses from testifying \u201cbased on scientific, technical or other specialized knowledge within the scope of [the rule governing testimony by experts]\u201d), we do not agree that the grooming evidence in the instant case needed an expert witness to explain to the jury how Defendant\u2019s behavior showed his sexual intent or his lack of mistake or accident, cf. State v. Boyett, 2008-NMSC-030, \u00b6 28, 144 N.M. 184, 185 P.3d 355 (explaining that non-experts can testify about a defendant\u2019s intent so long as their testimony addresses matters within the realm of common knowledge and experience). Although the factual question of whether certain behavior constitutes grooming \u2014 as the term is scientifically or specially understood \u2014 begs an answer laced with details from the theory of grooming, the question of whether certain behavior shows a sexual intent does not. Lay persons are well-aware of what it means to act with a sexual intent, and therefore can identify behavior as exhibiting that trait without the aid of an expert witness.\n{21} Thus, in this case, the lay witnesses and lay persons on the jury were well-equipped to understand how Defendant\u2019s behavior proved his sexual intent, even though they may have been ill-equipped to decide whether Defendant had groomed Child, according to a scientific or specialized definition of that term. Had the grooming evidence been offered and admitted solely as proof of the fact that Defendant had groomed Child, an expert would likely have been necessary to expound upon the theory of grooming and to explain how that theory applied in this case. However, as detailed above, the grooming evidence was properly admitted to prove intent; creating a new exception to Rule 11-404(B) for grooming, as suggested by the majority opinion, was unnecessary.\n{22} We conclude that the grooming evidence, as used in this case, was not based in scientific, technical, or other specialized knowledge and was thus within the realm of lay testimony. We reject any reading of the majority opinion that would be inconsistent with the discussion above.\nIV. CONCLUSION\n{23} Based on the foregoing analysis, we reverse the Court of Appeals and remand to that court to consider the issues not previously addressed.\n{24} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, CHARLES W. DANIELS, Justices.", "type": "majority", "author": "SERNA, Justice." } ], "attorneys": [ "Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.", "Hugh W. Dangler, Chief Public Defender, William A. O\u2019Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2008-NMSC-053\n192 P.3d 1198\nSTATE of New Mexico, Plaintiff-Petitioner, v. Ernest SENA, Defendant-Respondent.\nNo. 30,540.\nSupreme Court of New Mexico.\nAug. 26, 2008.\nGary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nHugh W. Dangler, Chief Public Defender, William A. O\u2019Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent." }, "file_name": "0821-01", "first_page_order": 853, "last_page_order": 859 }