1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 28,866

10 STEVEN H.,

11 Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

13 John W. Pope, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 Margaret E. McLean, Assistant Attorney General

17 Joel Jacobsen, Assistant Attorney General

18 Albuquerque, NM

19 for Appellee

20 Liane E. Kerr

21 Albuquerque, NM

22 for Appellant

23 MEMORANDUM OPINION

24 GARCIA, Judge.
2

1 Steven H. (Child) appeals from an adjudication of delinquency based upon the

2 district court’s finding that he committed third-degree criminal sexual contact of a

3 minor (CSCM) under thirteen years of age, contrary to NMSA 1978, Section 30-9-

4 13(C)(1) (2003), and NMSA 1978, Section 32A-2-3(A) & (B) (2005) (amended

5 2009). Child raises four issues on appeal: (1) Child’s due process right was violated

6 by the victim advocate’s active involvement in the case; (2) Child’s right to prepare

7 a defense was violated when the district court denied Child the opportunity to

8 interview Jane Doe (Victim), ordered late interviews with the State’s remaining

9 witnesses, and denied Child’s motion for a continuance; (3) there was insufficient

10 evidence for Child’s adjudication of delinquency; and (4) Child received ineffective

11 assistance of counsel. We conclude that the district court violated Child’s right to

12 prepare a defense by denying Child the opportunity to conduct a pretrial interview

13 with Victim based upon the conduct of Child’s counsel. Furthermore, retrial would

14 not implicate double jeopardy concerns because sufficient evidence supports Child’s

15 adjudication of delinquency. As a result, we reverse Child’s adjudication of

16 delinquency and remand to the district court for a new trial. Because we reverse on

17 these grounds, we do not reach the remaining issues raised by Child on appeal.

18 BACKGROUND
3

1 On October 1, 2007, the State filed a petition asserting that Child was a

2 delinquent child based upon his alleged commission of one count of first-degree

3 criminal sexual penetration (CSPM) (child under thirteen years of age) and two counts

4 of second-degree CSCM (child under thirteen years of age). The State subsequently

5 issued a witness list, including Victim, Victim’s parents, and several additional

6 witnesses who reside in Arizona.

7 After the parties’ unsuccessful attempt to reach an agreement regarding

8 scheduling interviews of Victim and other witnesses, Child filed a motion to compel

9 witness interviews, requesting that the district court require the State to produce

10 Victim and other Arizona witnesses for interviews at least six weeks prior to trial. At

11 the resulting hearing, the parties agreed that Victim was subject to a pretrial interview,

12 but disagreed regarding when and how the interview would be conducted since Victim

13 was five-years-old and lived out-of-state. Child argued that mistaken identity was a

14 potential issue because Victim knew another boy named Steven, and Victim never

15 referred to Child as “Steven,” but only as “the big, tall boy.” As a result, Child

16 contended that Victim’s interview needed to be scheduled with sufficient time to

17 allow the defense to hire an expert to evaluate Victim’s statement. Child further relied

18 on State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979), to argue that not allowing
4

1 Child sufficient time before trial to interview Victim and other witnesses would deny

2 Child the right to prepare a defense.

3 The State recognized that Victim was “the main witness in this case” and

4 argued that it would be “abusive” to require Victim to travel from Arizona to New

5 Mexico for both a pretrial interview and trial in such a short period of time.

6 Additionally, the State argued that since Child already had information from a safe

7 house interview with Victim, an interview the weekend before trial would allow Child

8 sufficient time to prepare a defense. In response, Child argued that the safe house

9 interview was insufficient since it “was probably less than ten minutes [in duration],

10 and it wasn’t done in a manner that’s conducive to protecting a defendant’s rights,

11 especially another juvenile’s rights.” Child further contended that Child had no

12 opportunity to ask questions regarding the possible mistaken identity in the safe house

13 interview.

14 The district court ordered that Child be allowed to interview Victim and other

15 witnesses in Phoenix, Arizona. The court reasoned that interviewing Victim in

16 Phoenix would provide a reasonable compromise between Victim’s comfort and

17 Child’s right to prepare for trial. The court further reasoned that it would be “very
5

1 difficult for [Child] to prepare for trial without having any kind of contact with

2 [Victim] before trial.” Specifically, the court concluded that

3 if [Child is] going to be able to even attempt to put up a mistaken identity

4 defense, he’s almost going to have to be able to interview [Victim]. And

5 . . . if he is going to interview [Victim] for a mistaken identity defense,

6 he’s going to almost have to able to do that with some time to be able to

7 verify . . . what [Victim] says.

8 Subsequent to the scheduled interviews in Phoenix, the State filed a notice of

9 ineffective assistance of defense counsel and a motion for protective order. The State

10 alleged and provided evidence that Child’s counsel attempted to videotape the witness

11 interviews without either a prior agreement with the State or a court order, and Child’s

12 counsel “became enraged, hostile and violent” after the State refused to allow

13 videotaping of the interviews. The State further provided evidence that the first

14 interview with an investigating detective was unsuccessful because after the detective

15 refused to answer questions that he deemed irrelevant, Child’s counsel then told the

16 detective to “get out.” Due to this conduct, Child’s counsel was escorted from the

17 building, and the interviews with Victim and other witnesses were cancelled. The

18 State additionally provided evidence that Child’s counsel subsequently had Victim’s

19 parents personally served with subpoenas for alternate pretrial interviews despite the

20 State’s rejection of interviews on the specified date. The State argued that defense
6

1 counsel’s conduct fell below the standard of care for a reasonably effective attorney,

2 and that the district court should find defense counsel ineffective. In the alternative,

3 the State asked the district court to enter a protective order that would require that all

4 interaction between Child’s counsel, Victim, and the State’s additional witnesses be

5 supervised by the district court. The State did not ask the court to prohibit Child from

6 interviewing the complaining witness. In response, Child filed a motion to dismiss

7 due to prosecutorial misconduct and violation of Child’s right to prepare a defense.

8 Child argued that defense counsel attempted to videotape the interviews at the request

9 of Child’s expert witness and that the State allowed the interviews to be cancelled

10 without regard for Child’s rights or the court order.

11 The district court heard the parties’ motions at a hearing on March 6, 2008. The

12 court expressed concern that trial was coming up and that Victim had not yet been

13 interviewed. Victim’s advocate then stated that she had “very grave concerns” about

14 subjecting Victim to a pretrial interview with Child’s counsel based upon his conduct

15 in Phoenix. As a result, Victim’s advocate asked the court to exercise its discretion

16 to prevent Child’s counsel from interviewing Victim since very young children are

17 protected from confrontation even in a trial setting, and Child’s “constitutional rights

18 are not at play.” The State subsequently argued that one of its biggest concerns was
7

1 whether Child was going to receive effective assistance of counsel that would “defend

2 [Child’s] constitutional rights,” and further described its attempts to protect those

3 rights by providing pretrial interviews. The State asserted that the interviews did not

4 occur “[s]olely because of what [Child’s counsel] did.” As a result, the State asked

5 the court to find defense counsel ineffective. In the alternative, the State asked that

6 the witness interviews be supervised by the court, reasoning that its main concern was

7 protecting Victim in light of defense counsel’s conduct.

8 Child responded by correcting several alleged misrepresentations, including

9 explaining that defense counsel asked to videotape the interviews at the request of

10 Child’s expert witness. Child further contended that although defense counsel and the

11 State were both assertive toward each other, defense counsel was not unprofessional.

12 Child confirmed that the interviews were ultimately “shut down by the officers

13 because the officers were butting heads with [Child’s counsel] so bad that [he] finally

14 did ask the officer to leave.” Finally, Child argued that the main question was how

15 Child was going to receive a fair trial under the circumstances since Child was not

16 given an opportunity to interview the witnesses. Child further contended that he

17 needed to conduct the interviews in order to prepare Child’s theory of the case and

18 allow experts to prepare to testify regarding Child’s theory of the case.
8

1 The district court ultimately denied the State’s motion to find defense counsel

2 ineffective, reasoning that although there were certain ethical issues, the court

3 believed Child’s counsel to be “quite capable of going forward with this case.”

4 Without providing additional reasoning, the court further stated that it was “not going

5 to order that [Victim] have any pretrial interviews at this point,” and that the court

6 would order that the remaining interviews be supervised by the court. In a written

7 order following the hearing, the court found that Child’s right to prepare a defense did

8 not include videotaping the witness interviews and that “pretrial interviews should be

9 conducted utilizing protective measures.” As a result, the court ordered that pretrial

10 interviews with Victim “will not be allowed” and that a bailiff of the court would

11 supervise the interviews with all other witnesses for the State. At a subsequent

12 hearing, the court clarified that the conduct of Child’s counsel was the reason for the

13 protective measures.

14 At a hearing on March 13, 2008, the district court heard Child’s motion to

15 dismiss, or in the alternative, to exclude witness testimony or grant Child a

16 continuance. Child argued that due to the court’s order regarding pretrial interviews,

17 his “opportunity to get a fair trial and to prepare his defense [was] irretrievably lost

18 at [that] point.” Child further contended and his expert witness testified that a
9

1 continuance was needed to allow Child time to prepare for the interview with the

2 State’s expert on the following day and also to allow Child’s expert time to adequately

3 evaluate the statements before trial. Child argued that he had insufficient time to

4 prepare a defense regarding mistaken identity or evaluate whether testimony would

5 constitute impermissible vouching for the credibility of Victim. The court summarily

6 denied Defendant’s motion for dismissal, suppression, or a continuance without any

7 reasoning or findings.

8 During a bench trial on March 17-18, 2008, Child waived cross-examination

9 of Victim. In Child’s closing statement, Child argued that Victim had never referred

10 to Child as “Steven” but as “the boy” or the “big tall boy,” but the State in rebuttal

11 contended that no testimony was presented to support Child’s argument. The district

12 court adjudged Child delinquent based upon the commission of third-degree CSCM,

13 and Child subsequently appealed. We reverse and remand for a new trial.

14 DISCUSSION

15 Right to Prepare a Defense

16 Child argues that his right to prepare a defense was violated when the district

17 court denied Child the opportunity to interview Victim, ordered late interviews with

18 the State’s remaining witnesses, and denied Child’s motion for a continuance.
10

1 Specifically, Child contends that since Victim referred to another person named

2 “Steven” and referred to Child only as “that boy,” an interview with Victim was

3 crucial in order for Child to prepare a mistaken identity defense.

4 We review a district court’s granting or denial of discovery in a criminal case

5 under an abuse of discretion standard. State v. Layne, 2008-NMCA-103, ¶ 6, 144

6 N.M. 574, 189 P.3d 707. “We cannot say the [district] court abused its discretion by

7 its ruling unless we can characterize it as clearly untenable or not justified by reason.”

8 State v. Casillas, 2009-NMCA-034, ¶ 24, 145 N.M. 783, 205 P.3d 830 (internal

9 quotation marks and citation omitted).

10 Initially, we note that in the district court below, the parties and Victim’s

11 advocate agreed that Victim was subject to a pretrial interview, but disputed when and

12 how the interview would be conducted. As a result, the issue of whether Victim was

13 subject to an interview is not before this Court, and we only review whether the

14 district court abused its discretion by denying Child an opportunity to interview

15 Victim based upon defense counsel’s conduct.

16 Child relies on Orona to argue that his right to prepare a defense was violated.

17 92 N.M. at 452-53, 589 P.2d at 1043-44. In Orona, the defendant was charged with

18 CSPM involving a child under thirteen years of age, the state’s witness list included
11

1 both the alleged victim and her older sister, and the alleged victim and her sister were

2 the state’s main witnesses. Id. at 451-52, 589 P.2d at 1042-43. Prior to trial, the

3 prosecution presented evidence that the defendant had contacted the alleged victim’s

4 sister in an attempt to persuade her not to testify against him. Id. at 451, 589 P.2d at

5 1042. As a consequence, the district court entered an order that neither the defendant

6 nor his attorneys could contact or depose the alleged victim or her sister. Id.

7 However, the court “allow[ed] copies of the witnesses’ grand jury testimony to be

8 made available to defense counsel in order to assist [the] defendant in preparation of

9 his case.” Id. Our Supreme Court reversed the defendant’s convictions, holding that

10 the circumstances did not justify an outright prohibition on access to the alleged

11 victim and her sister and that the order violated the defendant’s right to prepare a

12 defense. Id. at 452-53, 589 P.2d at 1043-44. Instead, the Court reasoned that the

13 district court could have “fashion[ed] some means to ensure that the witnesses [would]

14 be protected from intimidation without unduly impairing [the] defendant’s right to

15 prepare a defense.” Id.

16 We conclude that Orona controls this case. Similarly to Orona, Child was

17 charged with CSPM involving a child under thirteen years of age in which the alleged

18 victim was one of the State’s main witnesses. See id. at 451-52, 589 P.2d at 1042-43.
12

1 Furthermore, where defendant’s access to grand jury testimony was not sufficient to

2 protect the defendant’s right to prepare for trial in Orona, we conclude that Child’s

3 access to Victim’s safe house interview and other discovery was not sufficient to

4 protect Child’s right to prepare a defense in this case. See id. at 451, 453, 589 P.2d

5 at 1042, 1044. Specifically, the safe house interview and other discovery did not

6 address any discrepancies in identity and did not give Child the opportunity to

7 question Victim regarding the possible mistake of identity. Finally, just as Orona

8 concluded that an absolute restriction on the defendant’s access to the alleged victim

9 was not justified by the defendant’s improper conduct, we conclude that an absolute

10 restriction on Child’s access to Victim was not justified by the conduct of defense

11 counsel. See id. at 452-53, 589 P.2d at 1043-44. We echo our Supreme Court’s

12 concerns expressed in Orona. We are aware of the sensitive nature of this case, the

13 nature of the alleged crimes, and the problems that could have arisen in a pretrial

14 interview due to Victim’s age and the conduct of defense counsel. See id. at 453, 589

15 P.2d at 1044. However, we conclude that the district court abused its discretion by

16 denying Child any subsequent opportunity to interview Victim before trial. Instead,

17 the district court could have fashioned some reasonable protective means, short of an

18 absolute restriction, that would have allowed the necessary interview so Child could
13

1 prepare an adequate defense, while ensuring that Victim would be protected from

2 improper intimidation by defense counsel. See id.

3 The State argues that Orona is distinguishable because the district court did not

4 impose an “absolute restriction” on Child’s access to Victim. See id. (reasoning that

5 “in the absence of some demonstrable good cause, a [district] court may not impose

6 an absolute restriction on defense counsel’s access to the [s]tate’s prospective

7 witnesses”). Specifically, the State contends that the court did not deny Child the

8 opportunity to interview Victim because Child’s counsel could have interviewed

9 Victim in Phoenix had his conduct not resulted in the cancellation of the interview.

10 The State further argues that since the “sole reason” for the order prohibiting the

11 interview was the conduct of counsel hired by Child, Child in effect chose to not

12 conduct the interview by choosing to continue retaining said counsel. Finally, the

13 State argues that the restriction was only a partial restriction because it only covered

14 the last eleven or fewer days prior to trial.

15 We conclude that the district court’s order was an absolute restriction on

16 Child’s access to Victim. The State had failed to make Victim available for interviews

17 prior to the cancellation of the interview in Phoenix. The court’s subsequent order

18 clearly states that “pretrial interviews will not be allowed with [Victim],” and the
14

1 order does not include any exception permitting interviews to be conducted by

2 alternate counsel or under any other circumstances. Furthermore, although the order

3 only covered the remaining time period immediately before trial, the language and

4 effect of the order imposed an absolute restriction that had the undisputed effect of

5 preventing Child from interviewing Victim before trial.

6 Finally, we decline to impute the conduct of Child’s counsel to Child. Orona

7 clarifies that “[r]egardless of who prevents the interviews, the effect may be to deprive

8 [the] defendant of his right to prepare a defense.” Id. at 452, 589 P.2d at 1043. Orona

9 further declined to impute the defendant’s motives in contacting the alleged victim

10 and her sister to the defendant’s counsel. Id. at 453, 589 P.2d at 1044. The

11 defendant’s own improper conduct was insufficient to waive his right to interview the

12 alleged victim in Orona, and we conclude that the improper conduct of Child’s

13 counsel is also insufficient to waive Child’s right to prepare an adequate defense by

14 interviewing Victim in an appropriate manner under court supervision. See id. As a

15 result, we conclude that the effect of the district court’s order was in fact an absolute

16 restriction that prevented Child from interviewing Victim prior to trial.

17 The State additionally argues that even if this Court determines that an absolute

18 restriction occurred, the State showed good cause for the restriction by presenting
15

1 evidence of Victim’s vulnerability and defense counsel’s conduct. We disagree. First,

2 Victim’s age did not constitute good cause for an absolute restriction since both

3 parties and Victim’s advocate previously agreed that Victim was subject to an

4 appropriate interview. See Orona, 92 N.M. at 451, 453, 589 P.2d 1042, 1044

5 (concluding that the alleged victim’s young age of less than thirteen years did not

6 constitute good cause for an absolute restriction). Second, the conduct of Child’s

7 counsel did not constitute good cause for an absolute restriction where the district

8 court was capable of developing restrictive protective measures for Victim’s interview

9 that were adequate to respond to counsel’s conduct. See id. (concluding that the

10 defendant’s conduct did not constitute good cause for an absolute restriction where

11 less restrictive measures could have been adopted to proceed while continuing to

12 protect the witnesses). Specifically, we note that the State did not request an absolute

13 restriction preventing Child from interviewing Victim, but instead requested that the

14 “[c]ourt supervise any and all interaction between [Child’s counsel] and [Victim].”

15 As a result, we conclude that the district court could have adopted less restrictive

16 measures to protect Victim than an absolute restriction preventing Child from

17 interviewing Victim prior to trial.
16

1 Finally, the State argues that the district court’s order did not prejudice Child

2 because the Child had access to Victim’s safe house interview and the interviews of

3 other witnesses. In Orona, our Supreme Court determined that “[n]o more prejudice

4 need be shown than that the [district] court’s order may have made a potential avenue

5 of defense unavailable to the defendant.” Id. at 452, 589 P.2d at 1043. As a result of

6 the district court’s denial of an interview with Victim prior to trial, Child had no

7 opportunity to question Victim regarding the possible mistake of identity in order to

8 prepare a mistaken identity defense. Furthermore, the district court previously

9 concluded that “if [Child is] going to be able to even attempt to put up a mistaken

10 identity defense, he’s almost going to have to be able to interview [Victim].” Child’s

11 attempt at trial to argue that a mistake of identity occurred was unsuccessful because

12 no testimony was presented in support of that defense. The district court’s denial of

13 a pretrial interview with Victim denied Child the opportunity to discover any

14 impeaching evidence. See Layne, 2008-NMCA-103, ¶ 13 (“Impeachment is crucial

15 to effective cross-examination because it gives a party the opportunity to discredit a

16 witness, so the [trier of fact] has a way to determine whether a witness is untruthful

17 or inaccurate.” (internal quotation marks and citation omitted)). Consequently, we

18 determine that the district court’s denial of the opportunity to interview Victim
17

1 prejudiced Child because it appears from the record available to have resulted in a

2 potential mistake of identity defense being unavailable to Child. Because Child’s due

3 process right to prepare a defense was violated by the district court’s order that denied

4 an interview of Victim prior to trial, we reverse Child’s adjudication of delinquency.

5 Sufficiency of the Evidence

6 Having determined that the violation of Child’s right to prepare for trial

7 mandates reversal, we now consider Child’s argument that there was insufficient

8 evidence for his adjudication of delinquency and that his charges should be dismissed.

9 We note that retrial would implicate double jeopardy concerns if insufficient evidence

10 was presented at trial to support Child’s adjudication of delinquency. See State v.

11 Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4 P.3d 1221 (reasoning that as

12 long as sufficient evidence for a conviction was presented at trial, double jeopardy

13 concerns are not implicated by reversing and remanding for a new trial).

14 In reviewing the sufficiency of the evidence, we analyze “whether direct or

15 circumstantial substantial evidence exists and supports a verdict of guilt beyond a

16 reasonable doubt with respect to every element essential for conviction.” State v.

17 Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. “We determine whether

18 a rational factfinder could have found that each element of the crime was established
18

1 beyond a reasonable doubt.” Id. Furthermore, “we must view the evidence in the

2 light most favorable to the guilty verdict, indulging all reasonable inferences and

3 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

4 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

5 To support Child’s adjudication of delinquency based on the act of third-degree

6 CSCM as a lesser-included offense of Count III of the petition, the State was required

7 to prove beyond a reasonable doubt that Child unlawfully and intentionally caused

8 Victim to touch the penis of Child, that Victim was twelve years of age or younger,

9 and that the touching occurred in New Mexico on or about July 28, 2007. See § 30-9-

10 13(A) & (C)(1); UJI 14-925 NMRA.

11 Child argues that there was insufficient evidence that Child touched Victim’s

12 buttocks and vagina or that the touching was intentional. This argument is

13 inconsistent with the evidence and adjudication in this case. Child’s adjudication of

14 guilt was based on Child’s alleged act of unlawfully and intentionally causing Victim

15 to touch the intimate parts of Child. As a result, we conclude that Child’s argument

16 is unsupported by the record. We further note that at trial, Victim testified that the

17 boy named “Steven” who lived in New Mexico asked her to “[t]ouch stuff on him,”

18 and Victim drew a picture showing where she touched him. Additionally, Victim’s
19

1 out-of-court statement regarding sexual contact between Victim and Child was

2 introduced as an excited utterance. Finally, Child’s therapist testified that Victim was

3 suffering from an anxiety disorder, which included symptoms of arousal, regressive

4 behavior, and nervousness around strangers. As a result, we conclude that sufficient

5 evidence supported Child’s adjudication of delinquency for the purpose of our double

6 jeopardy analysis.

7 CONCLUSION

8 For the foregoing reasons, we reverse Child’s adjudication of delinquency and

9 remand to the district court for a new trial.

10 IT IS SO ORDERED.

11 ______________________________

12 TIMOTHY L. GARCIA, Judge

13 WE CONCUR:
20

1 ____________________________________

2 MICHAEL D. BUSTAMANTE, Judge

3 ____________________________________

4 RODERICK T. KENNEDY, Judge