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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'04- 14:02:04 2016.03.30

Certiorari Denied, March 15, 2016, No. S-1-SC-35765

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-033

Filing Date: January 20, 2016

Docket No. 31,678

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

ARMANDO PEREZ,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
H.R. Quintero, District Judge

Hector H. Balderas, Attorney General
Margaret E. McLean, Assistant Attorney General
M. Anne Kelly, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM

for Appellant

Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appelle

                                         OPINION

Vigil, Chief Judge.

{1}     The State appeals the district court’s order excluding the testimony of an eight-year-
old girl (C.S.) in a case alleging multiple counts of sexual abuse against her by Defendant-
Appellee Armando Perez (Defendant) on the basis that C.S. was incompetent to testify as

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a witness. This case presents two issues: first, whether the district court’s ruling that C.S.
was incompetent to testify was an abuse of discretion, and second, whether the case should
be reassigned to a different district court judge upon remand. We conclude that the district
court’s determination that C.S. was incompetent to testify was in error, but reassignment on
remand is not required.

I.     BACKGROUND

{2}    This case originated in December 2010, when C.S. disclosed to, Fatima P. (Mother),
that Defendant had been molesting her. Mother took C.S. to the hospital, where she was seen
by a nurse; C.S. again disclosed the sexual abuse to the nurse. Defendant was eventually
charged with ten counts of criminal sexual penetration in the first degree, see NMSA 1978,
§ 30-9-11(A), (D)(1) (2009), and five counts of criminal sexual contact of a minor in the
second degree. See NMSA 1978, § 30-9-13(A), (B) (2003).

{3}     In July 2011, Mother gave a handwritten note to a defense investigator in what
appeared to be a child’s writing. The note, which contained C.S.’s first name at the bottom,
stated: “Armando didn’t do anything it was all [illegible] that did it, the voices told me to
blame it on Armando. My mom will read this I have pictures look through all of them.
[C.S.]” As a result of this note, just two days before the jury trial was scheduled to
commence, the district court sua sponte issued an emergency order setting a pre-trial
conference to determine the competency of C.S. to testify as a witness, expressing concern
about the voices referenced in the note. Neither party had raised the issue of competency.

{4}     At the hearing, the prosecutor maintained that competency was not an issue, while
defense counsel stated that a psychological evaluation was appropriate pursuant to NMSA
1978, Section 30-9-18 (1987).1 The district court ordered a psychological evaluation of C.S.
to determine her competency to testify at the jury trial, as well as her competency at the


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        Section 30-9-18 states in full:

In any prosecution for criminal sexual penetration or criminal sexual contact of a minor, if
the alleged victim is under thirteen years of age, the court may hold an evidentiary hearing
to determine whether to order a psychological evaluation of the alleged victim on the issue
of competency as a witness. If the court determines that the issue of competency is in
sufficient doubt that the court requires expert assistance, then the court may order a
psychological evaluation of the alleged victim, provided however, that if a psychological
evaluation is ordered it shall be conducted by only one psychologist or psychiatrist selected
by the court who may be utilized by either or both parties; further provided that if the alleged
victim has been evaluated on the issue of competency during the course of investigation by
a psychologist or psychiatrist selected in whole or in part by law enforcement officials, the
psychological evaluation, if any, shall be conducted by a psychologist or psychiatrist
selected by the court upon the recommendation of the defense.

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preliminary hearing that had already occurred, and appointed Dr. David Sachs to complete
an evaluation and report.

{5}     Dr. Sachs testified at the competency hearing. With respect to the issue of whether
C.S. was hearing voices that were making her do things, Dr. Sachs opined in the negative,
stating that he “didn’t have the impression that she was responding to command
hallucinations[.]” The following exchange then took place during the prosecutor’s
questioning of Dr. Sachs:

       [Prosecutor]: . . . [Y]our report shows a capacity to differentiate between the
       truth and a lie?

       [Dr. Sachs]: Yes.

       [Prosecutor]: And she knows there are consequences for not telling the truth?

       [Dr. Sachs]: Yes.

       [Prosecutor]: She is generally aware of the truth and the difference between
       the truth and a lie?

       [Dr. Sachs]: Yes.

       [Prosecutor]: She understands the oath and promise?

       [Dr. Sachs]: Yes.

       [Prosecutor]: She has adequate intelligence and memory?

       [Dr. Sachs]: Potentially, yes. I stated that I do not think her memory was
       adequate or like anything I encountered in the course of doing prior
       assessments of abused or allegedly abused children, but, overall, I think her
       memory was adequate.

       [Prosecutor]: She has the ability to observe?

       [Dr. Sachs]: Yes.

       [Prosecutor]: To recall and communicate?

       [Dr. Sachs]: Yes.

       [Prosecutor]: And you have questions about her thought process?


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        [Dr. Sachs]: Very much so.

{6}     Dr. Sachs nevertheless opined that C.S. was incompetent to testify as a witness,
primarily basing his conclusion on the following concerns: her vagueness and lack of
specificity in describing the abuse, vapid speech, inconsistencies in her description of the
abuse, inability to maintain focus, the confusion that she showed, poor decision making and
judgment as indicated by her performance on the Rorschach test, “signs of a thinking
disorder” or “a quality of a schizophrenia spectrum disorder,” and the absence of anxiety or
post-traumatic stress disorder. Dr. Sachs stated: “I don’t think she’s malingering, I don’t
think she’s fabricating, I just think everything is just very vague in her head.”

{7}     The district court found Dr. Sachs’ testimony to be credible and ruled that C.S. was
incompetent to testify at trial. Additionally, the district court ruled that the State could not
use any of C.S.’s prior statements, neither the sworn testimony from the preliminary hearing,
nor the recorded interview with the forensic examiner. At the hearing on the State’s motion
for reconsideration, the district court explained that Dr. Sachs’ “identifi[cation of] a degree
of perceptual disturbance related to a schizophrenic spectrum disorder and indications of
developing Axis II issues . . . rendered [C.S.] not competent.”

{8}     When asked to make a retrospective opinion about C.S.’s competency to testify at
the preliminary hearing, which took place nearly nine months earlier, Dr. Sachs explained
that his report did not discuss this, and he did not evaluate C.S. at that time, but he would
lean in [the] direction [that C.S.] probably was not competent at the time of her preliminary
testimony, based on the vague nature of C.S.’s testimony at the hearing and his observations
of her during his evaluation. Upon denial of the State’s motion for reconsideration, or in the
alternative, recusal, the State appealed the district court’s exclusionary ruling.

{9}    This appeal came before this Court previously, and our memorandum opinion
addressed only the issue of whether the State’s lack of certification language in its notice of
appeal was a limitation on our exercise of appellate jurisdiction. State v. Perez, No. 31,678,
mem. op. (N.M. Ct. App. Sept. 19, 2012) (non-precedential), rev’d sub nom. State v.
Vasquez, 2014-NMSC-010, ¶¶ 32-33, 36, 326 P.3d 447. The Supreme Court reversed,
holding that the State’s efforts satisfied the statutory purpose of the certification requirement,
and we now address the merits of the State’s appeal. Id. ¶¶ 32-33, 36.

II.     DISCUSSION

A.      The District Court’s Ruling That C.S. Was Incompetent to Testify as a Witness
        Was an Abuse of Discretion

{10} We turn first to the State’s argument that the district court erred by applying the
wrong legal standard in finding C.S. incompetent to testify both at trial and at the
preliminary hearing. The State makes the following general contentions: first, that Dr. Sachs’
testimony established that C.S. was competent to testify, and the district court abused its

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discretion in concluding otherwise by applying the wrong legal standard and considering
matters outside of the scope of evidence; and second, the district court erred by making a
retroactive determination that C.S. was incompetent to testify at the preliminary hearing. In
response, Defendant suggests that the district court applied the correct legal standard,
sufficient evidence was presented to support the district court’s exclusionary ruling, and
matters outside of the record, although discussed by the district court, did not factor into the
district court’s ruling. We conclude that the district court applied an incorrect legal standard
in finding C.S. incompetent to testify. Accordingly, we reverse.

1.     Standard of Review

{11} We review the district court’s determination regarding the competency of a witness
to testify for an abuse of discretion. See State v. Hueglin, 2000-NMCA-106, ¶ 23, 130 N.M.
54, 16 P.3d 1113. “An abuse of discretion occurs when the ruling is clearly against the logic
and effect of the facts and circumstances of the case.” State v. Rojo, 1999-NMSC-001, ¶ 41,
126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). “An abuse of
discretion may also occur when the district court exercises its discretion based on a
misunderstanding of the law.” State v. Favela, 2013-NMCA-102, ¶ 16, 311 P.3d 1213
(internal quotation marks and citation omitted). We review de novo the propriety of the legal
standard applied by the district court in determining whether C.S. was competent to testify
as a witness. See State v. Ruiz, 2007-NMCA-014, ¶ 20, 141 N.M. 53, 150 P.3d 1003.

2.     C.S.’s Competency to Testify as a Witness

{12} Our case law has established “a general presumption that all persons are competent
to appear as witnesses.” Id. ¶ 23. This principle stems from Rule 11-601 NMRA, which
states that “[e]very person is competent to be a witness unless these rules provide
otherwise.” See Hueglin, 2000-NMCA-106, ¶ 22. Our Rules of Evidence state only four
general exceptions: first, a witness must have personal knowledge, see Rule 11-602 NMRA;
second, a witness must be able to understand the oath to truthfully testify, see Rule 11-603
NMRA; third, a judge is incompetent to testify in a trial over which he or she is presiding,
see Rule 11-605 NMRA; and fourth, a juror is incompetent to testify in a trial for which he
or she is serving on the jury, with certain exceptions, see Rule 11-606 NMRA.

{13} In Hueglin, this Court explained that federal evidentiary principles are persuasive in
interpreting our rules regarding witness competency and that recent federal commentary has
shifted toward “convert[ing] questions of competency into questions of credibility.” 2000-
NMCA-106, ¶ 22 (internal quotation marks and citation omitted); see also Ruiz, 2007-
NMCA-014, ¶ 23 (explaining that “a core principle of modern civil and criminal procedure”
is to give questions of credibility to the jury, and not to the judge). In light of this change,
“a witness wholly without capacity is difficult to imagine [and t]he question is one
particularly suited to the jury as one of weight and credibility.” Hueglin, 2000-NMCA-106,
¶ 22 (alteration, internal quotation marks, and citation omitted). The commentary to Federal
Rules of Evidence, Rule 601 notes that “[s]tandards of mental capacity have proved elusive

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in actual application. . . . [F]ew witnesses are disqualified on that ground.” 34 Geo. Wash.
L. Rev. 53 (1965) (citing Henry Weihofen, Testimonial Competence and Credibility). Fed.
R. Evid. 601.

{14} We summarized the standard for a district court to determine competency under Rule
11-601as requiring a witness to possess “a basic understanding of the difference between
telling the truth and lying, coupled with an awareness that lying is wrong and may result in
some sort of punishment.” Hueglin, 2000-NMCA-106, ¶ 24 (internal quotation marks and
citation omitted). Thus, when the competency of a witness is at issue, the district court is
required to determine only whether “he or she meets a minimum standard, such that a
reasonable person could put any credence in their testimony.” Ruiz, 2007-NMCA-014, ¶ 23
(internal quotation marks and citation omitted).

{15} Upon examination of Dr. Sachs’ report and his testimony at the competency hearing,
as well as the transcript of the competency hearing and hearing on the motion for
reconsideration, we conclude that the district court applied an incorrect legal standard in
concluding that C.S. was incompetent to testify. At the hearing on the motion for
reconsideration, the district court stated that the facts in Hueglin were not applicable to the
instant case because Hueglin dealt with the competency of a victim to provide video
testimony under NMSA 1978, Section 38-6-8 (1993). Hueglin, 2000-NMCA-106, ¶ 9. The
district court also determined that Hueglin was inapposite because the expert in that case
concluded that the victim was competent to testify. While we acknowledge the factual
differences in posture between this case and Hueglin, we disagree with the district court that
Hueglin does not apply and conclude that the legal principles articulated in Hueglin
regarding witness competence apply to the present case. Although Dr. Sachs’ testimony
stated that he believed, based on his opinion as a psychologist, that C.S. was incompetent
to testify, it was incumbent upon the district court to apply the legal standard set forth in
Hueglin to Dr. Sachs’ testimony.

{16} Dr. Sachs testified that C.S. had the capacity to tell the difference between the truth
and a lie and knew that there were consequences for lying, which meets the minimum
standard for witness competence. See Hueglin, 2000-NMCA-106, ¶ 24. We acknowledge
Defendant’s argument that Dr. Sachs testified that although C.S. knew the difference
between the truth and a lie, it appeared that C.S. had an altered perception of the difference
between fantasy and reality. This, Defendant argues, presents a “different, but related”
question from whether or not a witness can differentiate between the truth and a lie and is
also relevant to the question of competency. Relevant to this, Dr. Sachs’ report reveals that
he asked C.S. a series of questions to determine her ability to differentiate the truth and a lie.
For example, when Dr. Sachs asked C.S. whether the statement that he ate a gorilla for
breakfast is the truth or a lie, C.S. responded by saying, “[t]hat would be hard to do because
it’s furry and big.” Dr. Sachs noted that this response indicated that “[s]he did not register
the concept that the statement was not happening and took my example as being literal.” Dr.
Sachs’ report also indicated that C.S. stated that if she broke a vase but did not tell her
mother, that would be a lie; however, Dr. Sachs stated that this example is a secret, not a lie,

                                                6
and indicates that “there is some inconsistency in her ability to verbalize and differentiate
between truth and lie.”

{17} Despite Dr. Sachs’ concerns that C.S. was unable to articulate the more subtle
distinctions between a lie and a secret and his concern that C.S.’s responses to his questions
were too literal, these finer distinctions did not ultimately alter Dr. Sachs’ conclusion that
C.S. was capable of telling the truth at a basic level, which satisfies the standard for witness
competence. See id. In Hueglin, this Court upheld the district court’s ruling that a victim
was competent to testify even though she had Down Syndrome, an IQ of 36, had a mental
age of a child slightly younger than six years, and possessed a “concrete simple
understanding of the difference between a truth and a lie.” Id. ¶¶ 2, 23 (alteration and
internal quotation marks omitted). When the expert who testified in Hueglin was asked about
the victim’s ability to tell the truth, he stated that “[f]or her truth is telling what she
remembers as best as she can remember it and a lie would be something else than that” and
that “if you said you’d tell the truth to her, the truth will be saying what she remembers, not
in a very sophisticated way, but only in the sense that when you ask a six year old to tell the
truth.” Id. ¶ 23 (internal quotation marks omitted).

{18} Dr. Sachs testified that C.S. was able to tell the difference between the truth and a
lie, that she was not fabricating her statements, and that she understood that there are
consequences for not telling the truth. Applying the holding and principles articulated in
Hueglin to Dr. Sachs’ testimony, any concerns about C.S.’s inability to clearly articulate the
difference between the truth and a lie, her thought process, vagueness, and possible
undefined schizophrenic spectrum disorder are not instructive of her capacity to tell the truth
and understand the consequences for not doing so, at the most basic level. See generally 1
McCormick on Evidence § 62 (7th ed. 2013) (“[P]roof of mental deficiency ordinarily has
the effect of reducing the weight to be given to testimony rather than keeping the witness off
the stand.”).

{19} We now turn to the State’s argument that the district court also erred by retroactively
excluding C.S.’s testimony from the preliminary hearing. The State argues that the district
court lacked authority to rule on the competency of a witness who testified before another
judge, or in the alternative, that Dr. Sachs’ testimony failed to establish that C.S. was
incompetent to testify at the preliminary hearing. Dr. Sachs’ conclusion, which the district
court adopted, was premised on his presumption that, based on relevant scientific literature,
there was nothing that indicated that the same thought disorder he believed C.S. was
suffering from at the time of his examination did not exist nearly nine months prior at the
time of the preliminary hearing. Importantly, Dr. Sachs did not testify that C.S.’s ability to
tell the truth or her knowledge of the consequences for not telling the truth would not have
been present at the time of the preliminary hearing. Applying the foregoing legal principles
regarding competency, we conclude that the district court erred in excluding C.S.’s
preliminary hearing testimony on the grounds that C.S. was incompetent.

B.      On Remand, Assignment to a Different District Court Judge Is Not Warranted

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{20} We turn to the State’s final argument that if this Court reverses for any reason, the
case should be assigned to a different district court judge on remand. The State does not
request this Court to determine whether the district court erred by refusing to recuse itself
at the State’s request below.

{21} The State contends that reassignment is appropriate because the district court judge’s
denial of the State’s motion for reconsideration was based, at least in part, on knowledge
stemming from an extrajudicial source. See State v. Bonilla, 2000-NMSC-037, ¶¶ 11, 15, 130
N.M. 1, 15 P.3d 491 (vacating a defendant’s sentence and holding that a judge’s comments
about a defendant’s decision to proceed to trial warranted a remand to a different judge to
avoid any appearance of impropriety). Specifically, the State references the following
comments made by the district court at the competency hearing when announcing its ruling:

       I have been in this community for... twenty-eight years, and I’m well aware
       that the very same forensic, in quotes, forensic examiner that conducted this
       forensic examination has been challenged before for leading children, and
       there has been at least one prior court case by a prior judge who found that
       the form of that examination was not consistent with standards for examining
       children who are alleged to have been sexually abused.

{22} The State argues that because no one had raised any issue regarding the forensic
examiner, “[t]he only possible source of the judge’s strong feelings must necessarily have
arisen outside of the events which occurred at the hearing itself.” Defendant’s answer brief
“does not contest the State’s assertions regarding matters outside the record” and states that
the district court made no “attempt to hide its opinion of that interviewer[.]” However,
Defendant contends that “[t]he [district] court’s consideration of the identity of the
interviewer only went to its decision to order an evaluation, a decision that is not
challenged.”

{23} We do not believe that the district court judge’s comments regarding the forensic
examiner rise to the level of requiring reassignment on remand, and we have confidence that
the district court will preside over future proceedings in this case with fairness. See In Re
Esperanza M., 1998-NMCA-039, ¶¶ 31-34, 124 N.M. 735, 955 P.2d 204 (expressing
disapproval about a district court judge’s comment regarding the parents’ decision not to
testify but asking their daughter to do so, but concluding that the comment did not
necessitate appellate intervention). But see Quintana v. Bravo, 2013-NMSC-011, ¶ 31, 299
P.3d 414 (remanding for reassignment to a different judge where the original district court
judge failed to sanction one of the parties for non-compliance with a deadline, but did not
do the same when the other party failed to comply with a procedural rule).

III.   CONCLUSION

{24}   The order of the district court is reversed and the case is remanded.


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{25}   IT IS SO ORDERED.

                                    ____________________________________
                                    MICHAEL E. VIGIL, Chief Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
LINDA M. VANZI, Judge




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