holding that 6 the district court did not abuse its discretion in admitting uncharged acts under Rule 7 11-403—specifically, statements made by the victim to her mother about the charged 8 act of criminal sexual contact of a minor and subsequent uncharged acts that occurred 9 out of state—because such evidence “was highly probative to show lack of mistake 10 or accident[,]” and “[t]here was no other evidence available to rebut this potential 11 inference”
How later courts described this case
- holding that 6 the district court did not abuse its discretion in admitting uncharged acts under Rule 7 11-403—specifically, statements made by the victim to her mother about the charged 8 act of criminal sexual contact of a minor and subsequent uncharged acts that occurred 9 out of state—because such evidence “was highly probative to show lack of mistake 10 or accident[,]” and “[t]here was no other evidence available to rebut this potential 11 inference”
- concluding evidence of similar 11 sexual acts perpetrated by the defendant was “properly admitted to show intent and 12 absence of mistake or accident” where the defendant claimed that he was asleep and 13 unconsciously molested the child victim, i.e., he lacked an unlawful intent and had 14 merely committed an innocent mistake
- concluding that the admission of the mother’s testimony reciting the child’s allegation of sexual abuse was not hearsay because the statement was not offered to prove the truth of the matter asserted and instead proved why the mother confronted the defendant about the allegation
- stating that an abuse of discretion occurs when the district court’s ruling is 15 erroneous, arbitrary, or unwarranted or where it is “clearly against the logic and effect 16 of the facts and circumstances before the court”
Written by the judges who cited it.
The opinion
CHÁVEZ, Chief Justice (concurring in part and dissenting in part).
{24} I concur in Part II.A-B of the majority opinion because, through his equivocal statement to the police, Defendant, himself, injected the issue of mistake into the proceedings. However, I respectfully dissent from Part II.C of the majority opinion. After finding Defendant in bed with Victim in Colorado, Mother asked Victim if anything had happened. Victim told mother that Defendant had digitally penetrated her many times. Mother then confronted Defendant, and Defendant shamefully and sorrowfully admitted to these Colorado acts. This ultimately led to Mother contacting the police. The trial court concluded that Mother could testify as to what Victim told her “for the limited purpose only of explaining or supporting what the mother did in response or reaction to that and not for the truth of the child’s statements to the mother.” Although the trial court called this “an exception to the hearsay rule,” the trial court essentially ruled the statement to be non-hearsay. See Rule 11-801(C) NMRA (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).
{25} The majority concludes that the trial court did not abuse its discretion in admitting this testimony because it was “offered for the legitimate purpose of explaining why the victim’s mother confronted Defendant in Colorado” and because a limiting instruction was given to the jury. Maj. Op. ¶¶ 17-18. The majority bases its conclusion on the recent statement in State v. Rosales, 2004-NMSC-022, ¶ 16 , 136 N.M. 25 , 94 P.3d 768 , that “[ejxtrajudicial statements ... may properly be received into evidence, not for the truth of the assertions therein contained, ... but for such legitimate purposes as that of ... effect on the hearer....” This statement in Rosales, however, was a direct quote from State v. Alberts, 80 N.M. 472, 474-75 , 457 P.2d 991, 993-94 (Ct.App.1969), and Alberts shows why Mother’s statements should not have been admitted.
{26} In Alberts, a State Police Officer testified that local law enforcement officers told him that the defendants were involved in trafficking marijuana; the defendants objected on hearsay grounds. The trial court overruled the objection, stating that the statement was not offered for the truth of the matter, but “to establish the reason for investigation and to show probable cause.” Id. at 473 , 457 P.2d 991 . After reciting the above-stated rule the majority uses to support the admission of Mother’s testimony, the court in Alberts continued:
However, the evidence must be consistent with a legitimate purpose and have some proper probative effect upon an issue in the case. The objectionable testimony here was not consistent with any legitimate purpose. The naming of defendants as persons engaged in “illegal marijuana traffic,” for the purpose of showing why Officer Sedillo conducted an investigation, is not a legitimate reason for admitting this extremely prejudicial testimony. It could have had no probative effect upon any issue in the case, other than the improper effect of persuading the jury as to the guilt of defendant.
Id. at 475 , 457 P.2d 991 .
{27} Here, the same result is demanded. WTiy Mother confronted Defendant in Colorado about the Colorado acts has absolutely no probative value relating to the material issue in this case — i.e., whether Defendant committed CSPM in Alamogordo. The majority deems the use of the Victim’s statement to Mother to be for a “legitimate purpose.” Although using Victim’s statement to Mother about the Colorado acts to show why Mother confronted Defendant may have, as the trial court put it, been for a limited purpose, this purpose is only legitimate if the purpose has any bearing on whether Defendant committed CSPM in Alamogordo. Because I fail to see how the answer to the question of why Mother confronted Defendant about the Colorado acts has any relevancy as to whether Defendant committed the Alamogordo act, I would hold the admission of Victim’s statement to Mother to be error.
{28} Numerous cases in other jurisdictions have held such non-hearsay statements inadmissible on grounds of irrelevancy or because they were unfairly prejudicial in light of their limited probative value. See, e.g., United States v. Williams, 133 F.3d 1048, 1050-51 (7th Cir.1998); United States v. Brown, 767 F.2d 1078, 1083-84 (4th Cir.1985); Commonwealth v. Yates, 531 Pa. 373 , 613 A.2d 542, 543-44 (1992). Various treatises also recognize the fallacy of admitting a statement as non-hearsay under the guise of providing “background” or “context” to the proceedings. See, e.g., David F. Binder, Hearsay Handbook, § 2:10, at 2-40 (4th ed. 2001) (“In criminal cases the prosecution is fond of offering evidence of inculpatory out-of-court assertions as ‘background’ to explain why law enforcement agents decided to investigate a defendant. Such evidence is seldom relevant.”).
{29} Moreover, not only was it irrelevant why Mother confronted Defendant about Defendant’s acts in Colorado, the admission of Victim’s statement to Mother as non-hearsay was unfairly prejudicial to Defendant. Having found the Colorado acts admissible as Rule 11^404(B) evidence, the jury watched Victim testify on videotape that such acts occurred. Given the fact that Victim’s Rule 11-404(B) testimony about what happened in Colorado was only admitted because it was probative on the issue of mistake, any further evidence admitted on this issue greatly risked tipping the Rule 11-403 balance in favor of excluding the evidence. I believe that allowing Mother to testify that Victim told her about the Colorado acts tipped the scales because its true effect was to buttress Victim’s credibility by using a prior consistent statement. It is a cardinal rule that a witness’s credibility cannot be buttressed by admitting a prior consistent statement unless, among other things, the credibility of the witness has first been attacked. See Rule 11-801(D)(1)(b) NMRA; State v. Salazar, 1997-NMSC-044, ¶ 66 , 123 N.M. 778 , 945 P.2d 996 ; State v. Alaniz, 55 N.M. 312, 317 , 232 P.2d 982, 984 (1951). I believe this rule holds particular force when dealing not with the substance of the charged crime, but with testimony regarding extrinsic acts admitted under Rule 11-404(B). Regardless of any limiting instruction, evidence offered in support of the veracity of the Rule 11-404(B) evidence should never have come in front of the jury in the first place. See Rule 11-105 NMRA (providing for a limiting instruction when evidence is admissible “for one purpose but not admissible ... for another purpose”).
{30} For the foregoing reasons, I respectfully concur in part and dissent in part.