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State v. Carson

Court of Appeals of New Mexico

November 5, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
WALLACE G. CARSON, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Judith K. Nakamura, District Judge.

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant.

          OPINION

          J. Miles Hanisee, Chief Judge.

         {¶1} A jury convicted Defendant Wallace G. Carson of two counts of human trafficking, pursuant to NMSA 1978, Section 30-52-1(A)(1) (2008), one count of human trafficking of a minor, pursuant to Section 30-52-1(A)(2), two counts of promoting prostitution, pursuant to NMSA 1978, Section 30-9-4 (1981), two counts of accepting earnings of a prostitute, pursuant to NMSA 1978, Section 30-9-4.1 (1981), and kidnapping, pursuant to NMSA 1978, Section 30-4-1 (2003). On appeal, Defendant argues that (1) the district court erred in admitting testimony regarding Defendant's uncharged acts in Texas; (2) his convictions for two counts of human trafficking related to the same victim violate double jeopardy; (3) the State presented insufficient evidence to support his kidnapping conviction; and (4) the district court failed to instruct the jury on the knowledge requirement for human trafficking of a minor. With the exception of one count of human trafficking, which we reverse on double jeopardy grounds, we affirm.

         I. BACKGROUND

         {¶2} Defendant's trial focused upon events that took place in Texas and New Mexico at different times. As such, we set forth the relevant factual background concerning incidents in each state separately.

         A. Texas Incidents

         {¶3} Jordann Depascalis, also known as Stormy (Stormy), met Defendant while working at a strip club in San Antonio, Texas in October 2011. Defendant introduced himself as "D.G." and told Stormy it stood for "Da Greatest" as well as "D.G.P." which stood for "Da Greatest Pimp." Stormy was impressed that Defendant was well dressed and drove a Jaguar. He told her he worked for an escort company and that it was legal employment, not prostitution. Stormy believed the escort services would only involve spending time with clients without sex. Defendant told Stormy she could make good money as an escort in College Station, Texas, and that if she agreed to go with him, he would buy her heroin, which she started using regularly after meeting Defendant.

         {¶4} Defendant, with the help of Stormy and others, commonly used the website "Backpage.com" to post escort local ads in different cities to which they would travel, using such language as "hot, sexy, and ready" and "[s]e[x]y & [r]e[a]dy 2 p[l]ay." During Defendant's trial, the State introduced sixteen such Backpage.com ads, four of which were posted for Albuquerque. Before they arrived in College Station, Defendant arranged for such an ad about Stormy to be posted. Stormy answered calls related to that and other such ads, adhering to a "call module" that Defendant scripted to specify what she should say to potential clients.

         {¶5} Stormy learned that the escort services involved sex during the first few "in-calls" (when a client comes to the hotel for sex in exchange for money) in College Station, which took place while Defendant waited outside the room. She then asked to return home to San Antonio, to which Defendant responded, "Bitch, you're not going anywhere. I'm a pimp." Stormy testified that Defendant put his hand around her throat, then threw her in the shower and beat her, leaving the television volume turned up so no one could hear her screaming. After the incident, Stormy testified that, although she still wanted to go home, she did not ask again because she was afraid of again being beaten. She continued having sex with clients for money in College Station, afterward handing all her earnings to Defendant. By then, in addition to having no money, Stormy did not have her identification because Defendant had taken it from her.

         {¶6} Following a trip to Dallas for Thanksgiving, during which Defendant forced Stormy to perform fellatio on him and suggested he might force her to do so on his brother, as well, Stormy convinced Defendant that they should return to San Antonio. By then, she was withdrawing from heroin and suffering from anxiety, prompting Defendant to give her Xanax. On Christmas Eve 2011, Defendant also took Xanax and passed out, and Stormy escaped to meet her boyfriend. She then began to make escort appointments herself in San Antonio, keeping the money she made and avoiding heroin use.

         {¶7} Not long after escaping from Defendant, Stormy received a "suspicious" call for a $400 appointment at a motel in a "shady" area of San Antonio. When Stormy entered the room, Defendant jumped out of the shower, banged her head against the mirror, hit her, and forced her to his car. Defendant then forced her to lay down in the backseat the entire way to Dallas. Stormy was scared that Defendant would make her shoot up heroin when they arrived, but instead, Stormy convinced Defendant to allow her to leave Dallas the next day. She did so claiming that her family may have alerted the police to her absence since she had not visited them at Christmas.

         {¶8} About a year later, in December 2012, Stormy encountered Defendant on a street in San Antonio. At the time, she was again addicted to heroin, and Defendant said he could provide her all the heroin she wanted. She began working for Defendant again as an "escort," posting Backpage.com ads in different Texas cities.

         B. New Mexico Incidents

         {¶9} In January 2013, Defendant and Stormy came to New Mexico, and Defendant directed Stormy to recruit Tiffany Garcia, a woman he had observed at the Greyhound Station in Albuquerque. Defendant had by then trained Stormy to "get girls, and post the ads, make sure everything was going smoothly," and Stormy's job was to make it seem like "a real good deal" to work in the escort business. At that time, Stormy was using heroin daily, was often sick, and Defendant used her addiction to control her. Tiffany was also a heroin user, and Stormy lured her with the promise of "scor[ing]" heroin if she joined Defendant's escort business. During that first trip in Albuquerque, at Defendant's direction Stormy posted Backpage.com ads and had many in-calls at the Days Inn on Tramway and 1-40 as well as several out-calls (where she went to a client's house), for which Defendant collected the money. After Tiffany joined Defendant's escort operation, she, Defendant, and Stormy traveled to Texas, and returned to New Mexico in early February.

         {¶10} On this second trip to New Mexico, Tiffany, Stormy, and Defendant stayed in Room 118 at the Days Inn at Hotel Circle in Albuquerque. There, Stormy and Tiffany had several "in-calls" and "out-calls" throughout the day, sometimes working through the night. If the in-call was for only one of them, the other would wait in the bathroom.

         {¶11} On February 20, 2013, Defendant directed Stormy to recruit another woman, R.R., who was only seventeen years old, at the Albuquerque bus station. Defendant targeted "weak links" or "young girls that.. . don't know exactly what. . . they're getting themselves into" for Stormy to recruit. At the station, Stormy invited R.R. "to smoke some weed and drink and just chill" in Defendant's Cadillac while she waited for her bus. R.R. agreed, and was startled when Defendant and his nephew jumped into the front seat of the car and drove them to Days Inn. Defendant whispered to Stormy when they arrived at the hotel, "[y]ou know what you need to do[, ]" which meant to her that she must convince R.R. to join Defendant's escort business. Defendant also sent Stormy texts that stated, "[l]ock [R.R.] up for our family" and "[m]ake sure she don't go nowhere." Stormy lied to R.R. that having sex with clients was not required because Stormy knew R.R. "would [not] agree to just having sex for money straight up."

         {¶12} Stormy knew first she had to take R.R.'s purse away, "because it makes [girls] not want to leave if they don't have their ID." Then, she loosened R.R. up with drinks and marijuana and encouraged R.R. to shower and change her clothes, while Defendant went out to purchase an alluring outfit for her. Stormy then told R.R., "You can't go anywhere because [Defendant] is going to kill me if I let anything happen to you." R.R. testified that she was scared, never left alone, and that she did not try to leave because she did not know what they would do to her. When Defendant returned to Room 118 with Tiffany, Stormy gave R.R. purple lingerie Defendant bought for her to wear, and he took photos of them.

         {¶13} Soon thereafter, they went to the Isleta Hard Rock Resort & Casino for a client call, and Defendant collected a thousand dollars from the client. There, R.R. had sex with the client while Stormy checked in on them from the bathroom, criticizing R.R. for throwing in "extras" (different sexual positions) without collecting more money. Stormy stated R.R. appeared drunk during the encounter, and notified Defendant by text that R.R. behaved childishly during an ensuing dinner with the client. Following dinner, Stormy and Tiffany agreed to have sex with the client's brother for $800 and left R.R. with the client. R.R. then convinced the client to help her escape, and when Stormy and Tiffany returned to collect R.R., the client hid R.R. in the adjoining room he purchased, and said that R.R. had left. R.R. did not leave that night because she was afraid that Defendant and Stormy would catch her in the lobby. That night, Defendant found R.R.'s ID in her purse and learned she was only seventeen.

         {¶14} Two days later, on February 22, 2013, Stormy and Defendant were arrested in Albuquerque during a sting operation. While in jail, Stormy called Defendant for bail and food money, and also asked him to bail out Cordelia Cianflone, a friend she made in jail. Stormy told Cordelia that Defendant could bail her out if she worked for him.

         C. Post-Arrest Events

         {¶15}Cordelia planned to run away to her friend's house after she was bonded out of jail, but Defendant, himself by then released, was waiting for her when the prison transport dropped her off in downtown Albuquerque. As had Stormy, similarly Cordelia testified Defendant bought her "sexy clothes" and heroin and drove her to a hotel in Tyler, Texas. Defendant posted ads on Backpage.com before they arrived, and Cordelia had sex with clients, for which Defendant collected the money. She wanted to escape but either "there was nowhere to run" or Defendant was nearby. She testified that she feared for her life because Defendant regularly physically abused her for being a "heroin junkie" or not making the beds correctly, and once Defendant choked her until his nephew stopped him. Ultimately, a client helped Cordelia escape from Defendant and she returned to Albuquerque.

         D. Trial Proceedings

         {¶16} Defendant was indicted in April 2013 on several charges and again in December 2013 on another set of charges. In January 2014, the district court consolidated the cases for trial. Prior to trial, the State filed a notice of intent to introduce evidence derived from events in Texas under Rule 11 -404(B)(2) NMRA and a brief in support. Defendant objected, arguing evidence of uncharged acts in Texas would be highly prejudicial, but following a hearing on the matter, the district court ruled in favor of the State. At trial, Stormy, R.R., and Cordelia testified, and Stormy was granted use immunity for her testimony. Defendant again raised objections regarding the introduction of evidence relating to events in Texas, but the district court adhered to its earlier determination, explaining that the evidence was relevant to Defendant's intent and that its probative value was not outweighed by unfair prejudice. The district court also provided two limiting instructions to the jury as to the proper use of the evidence.

         {¶17} Ultimately, Defendant was found guilty of two counts of human trafficking as to Stormy, one count of human trafficking as to R.R., a minor, two counts of promoting prostitution, two counts of accepting earnings of a prostitute, and kidnapping. After the guilty verdict, the district court sentenced Defendant to fifty- four years in prison, including a twenty-four-year enhancement under the habitual offender statute. Defendant appeals from the judgment, sentence and commitment entered on December 14, 2015, claiming error under Rule 11-404 and Rule 11-403 NMRA, a double jeopardy violation, insufficiency of evidence for the kidnapping charge, and instructional error for the human trafficking of a minor charge.

         II. ...


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