State v. Jones6/6/1995
Defendant appeals his convictions for two counts of criminal sexual penetration (CSP) in the third degree (of R.M. and F.C.), one count of robbery (of R.M.), and one count of unlawful taking of a vehicle (of R.M.). He was acquitted of the greater offenses of kidnapping, second-degree CSP (in the commission of kidnapping), and bribery of a witness of each victim, and of robbery and unlawful taking of a vehicle of F.C. Defendant raises ten issues on appeal. Only one, that dealing with alleged error in the trial court's denial of a severance of the charges relating to each victim, merits extended Discussion, and on that issue we reverse and remand for new trials. The remaining issues border on the frivolous and, even though we recognize that two of them would afford Defendant greater relief than a new trial, they will not be discussed except to say that they lack merit.
Each victim testified that Defendant accosted her while she was in her car several car lengths short of a drive-up window. R.M. had stopped at a liquor store and was checking her purse to make sure she had enough money to cover her purchases. F.C. had stopped at the Kentucky Fried Chicken menu prior to ordering. Defendant got into the car and either ordered the victim to drive away or took control of the car himself. He forced each victim to have sex. He forced R.M. to withdraw money for him at an automated teller machine. Both episodes began in the night-time and ended the following morning. After each episode when the victims escaped from Defendant's control, Defendant was left with their cars. Defendant drove R.M.'s car for a block before abandoning it. The incidents happened five days apart in the same general area in Albuquerque. Defendant testified that he was a crack dealer who sometimes exchanged sex for crack. He said that, in each instance, the victims met him on the street or in a parking lot while they were looking for drugs and voluntarily spent the evening with him, having sex and consuming drugs.
The charges were properly joined together in one indictment because they were of the same or similar character. See SCRA 1986, 5-203(A)(1) (Repl. 1992) (Effective August 1, 1992). The question we address is whether the trial court abused its discretion in failing to order a severance upon Defendant's repeated motions. See SCRA 5-203(C). The granting of a severance is discretionary, and one test for abuse of discretion is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial. ), certs. denied , 108 N.M. 771, 779 P.2d 549 (1989). Thus, the question is whether the evidence of each episode would be admissible in a trial of the other.
Both the Supreme Court and this Court have had several occasions recently to address the admissibility of evidence of other bad acts under SCRA 1986, 11-404(B) (Repl. 1994). See, e.g., ; State v. Ruiz , ___ N.M. ___, ___-__, 892 P.2d 962, 965-67 (Ct. App.), cert. denied , ___ N.M. ___, 888 P.2d 466 (1995); ); ), cert. denied , 115 N.M. 795, 858 P.2d 1274 (1993); ), cert. quashed , 115 N.M. 535, 854 P.2d 362 (1993); ), cert. denied , 113 N.M. 744, 832 P.2d 1223 (1992). Contrary to earlier cases, from which one may have gotten the impression that evidence of other bad acts would be admissible if those other acts were sufficiently similar to the act for which defendant is on trial, e.g., ), cert. denied , 111 N.M. 720, 809 P.2d 634 (1991); ), cert. denied , 100 N.M. 192, 668 P.2d 308 (1983), it is now clear that a more detailed analysis needs to be done than simply comparing superficial similarity. Compare ), cert. denied , 114 N.M. 720, 845 P.2d 8
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