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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,608
5 GERALD JOHNSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stanley Whitaker, District Judge
9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 The Appellate Law Office of Scott M. Davidson, Ph.D., Esq.
14 Scott M. Davidson
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 GARCIA, Judge.
1 {1} Defendant appeals his conviction for four counts of criminal sexual penetration
2 of a minor (CSPM), two counts of criminal sexual contact of a minor (CSCM), three
3 counts of kidnapping, and six counts of child abuse. He asserts that: (1) the original
4 indictment provided by the State was insufficient to inform him of the nature of the
5 charges against him; (2) amendments to the indictment after the trial had begun denied
6 him due process; (3) the conduct on which the kidnapping conviction was based was
7 incidental to the CSPM, violating his right to protection from double jeopardy; (4)
8 there was insufficient evidence to sustain a jury verdict of child endangerment based
9 upon showing pornography to minors; (5) there was insufficient evidence to sustain
10 a jury verdict of CSPM; (6) the district court improperly allowed physician testimony
11 containing hearsay and unfairly prejudicial information; (7) Defendant was denied
12 effective assistance of counsel; (8) the district court erred in excluding testimony of
13 the children’s grandfather; (9) the district court erred in excluding criminal juvenile
14 records; (10) the district court erred in denying Defendant’s motion for a mistrial; and
15 (11) the cumulative errors denied Defendant the right to a fair trial. We affirm in part,
16 reverse in part, and remand to the district court for proceedings in accordance with this
17 Opinion.
18 BACKGROUND
2
1 {2} Defendant was convicted of multiple counts of sexual assault and child abuse
2 perpetrated against Y.J., and three additional minor children, T.F., W.F., and Q.F.,
3 with whom he and the mother of the children (Mother) were living. T.F., Y.J., and
4 W.F. all testified at the trial. The parties are aware of the facts and procedural
5 background in this case. Due to the numerous charges and convictions at issue in this
6 appeal, we reserve any further discussion of the necessary facts and background for
7 the analysis.
8 ANALYSIS
9 I. THE VARIOUS INDICTMENTS
10 {3} The original grand jury indictment (Original Indictment) charged Defendant
11 with ten counts of CSPM, three counts of kidnapping, seven counts of child abuse,
12 and three counts of CSCM. Defendant moved to dismiss the Original Indictment on
13 due process and double jeopardy grounds. In response and prior to trial, the State
14 agreed to amend the Original Indictment by dropping certain count(s) and narrowing
15 the time frame for other counts (Amended Indictment). It is not entirely clear from the
16 record, however, the full extent or exact details of the Amended Indictment.1 Near the
1
15 While Defendant filed a motion to dismiss the Original Indictment and also
16 maintains that he requested a bill of particulars from the State, the State responded by
17 narrowing the time frame of the counts charged and eliminating certain charge(s).
18 However, Defendant neglects to identify or otherwise provide any portion of the
19 record below reflecting the details of these pretrial changes to the Original Indictment.
3
1 conclusion of the State’s case in chief, the State sought to modify the Amended
2 Indictment to conform with the testimony of the State’s witnesses by amending the
3 two counts of CSPM perpetrated by sexual intercourse into two counts of CSPM
4 perpetrated by digital penetration and by amending the two counts of CSPM
5 perpetrated by fellatio into two counts of CSPM perpetrated by digital penetration.
6 {4} Defendant presents two arguments with regard to the evolving versions of the
7 indictment in this case: (1) the Original Indictment violated his due process rights as
8 it did not apprise him of the nature of the charges against him and prevented him from
9 protecting himself against double jeopardy, and (2) the district court erred in allowing
10 the State to modify the Amended Indictment after the close of the State’s case.
11 Questions addressing due process protections are reviewed de novo, including those
12 in the context of the sufficiency of an indictment. State v. Tafoya, 2010-NMCA-010,
13 ¶ 7, 147 N.M. 602, 227 P.3d 92.
14 1. Sufficiency of the Original Indictment
15 {5} While we recognize that Defendant appeals the sufficiency of the Original
16 Indictment, we have explained that the charges contained in the Original Indictment
17 were, just before trial, modified by the State in response to Defendant’s motion to
15 See Rule 12-213(A)(3) NMRA (requiring Defendant, as the appellant, to provide this
16 Court with relevant citations to the record proper). As a result, we accept the State’s
17 description of the Amended Indictment.
4
1 dismiss and did not reflect the same charges upon which Defendant was actually tried
2 pursuant to the Amended Indictment. Accordingly, the Original Indictment is not
3 relevant to Defendant’s appeal as these charges were not those upon which he was
4 ever tried. See State v. Gardea, 1999-NMCA-116, ¶ 11, 128 N.M. 64, 989 P.2d 439
5 (“[I]t is universally held that filing an amended criminal information constitutes an
6 abandonment of the initial information.”). It is not entirely clear whether the Amended
7 Indictment was informally filed in district court or whether the district court orally
8 allowed the amendments prior to trial as the record contains only an “amended grand
9 jury indictment” devoid of any file stamp. Defendant does not dispute that the
10 Amended Indictment was the charging document utilized at trial. As Defendant does
11 not take issue with the procedure in which the Amended Indictment was recognized
12 by the district court and also acknowledges that the State did indeed amend the
13 Original Indictment, we will decline to reach the sufficiency of the Original
14 Indictment because of Defendant’s acknowledgment that it was narrowed and
15 superceded by the Amended Indictment prior to trial. See id.
16 {6} In the event Defendant intended to appeal the sufficiency of the Amended
17 Indictment, Defendant provides no citation to any portion of the record where he made
18 or preserved any argument regarding the sufficiency of the Amended Indictment. In
19 order to preserve this issue for appeal, Defendant was required to lodge an objection
5
1 that specifically apprised the district court of the nature of the claimed error regarding
2 the Amended Indictment that would invoke an intelligent ruling thereon. See State v.
3 Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. Pursuant to Rule 12-
4 213(A)(4), appellants are required to provide this Court with “a statement explaining
5 how the issue was preserved in the court below[.]” “We generally do not consider
6 issues on appeal that are not preserved below.” State v. Garcia, 2005-NMCA-065, ¶
7 6, 137 N.M. 583, 113 P.3d 406. Additionally, we will not search the record to verify
8 if an issue was preserved where an appellant does not provide the basis for reversal,
9 including any citations to the record below. State v. Rojo, 1999-NMSC-001, ¶ 44, 126
10 N.M. 438, 971 P.2d 829. While we do have the discretion to review unpreserved
11 claims for fundamental error or instances where the fundamental rights of a party may
12 have been affected, Rule 12-216(B)(2) NMRA, we decline to do so in this case as
13 Defendant failed to provide a citation to any portion of the record where he continued
14 to dispute the changes reflected in the Amended Indictment. See Rule 12-213(A)(3)
15 (requiring an appellant to provide this Court with relevant citations to the record
16 proper). Accordingly, we decline to review the sufficiency of the Amended Indictment
17 or speculate regarding the possible application of the arguments that were made to
18 attack the Original Indictment.
19 2. Further Modification to the Amended Indictment at Trial
6
1 {7} Defendant argues that the district court erred and violated his due process rights
2 in allowing the State to modify the Amended Indictment upon the completion of its
3 case. Defendant asserts that the State’s mid-trial modifications “substantially changed
4 the nature” of the charges against him as the State began with “separate but
5 indistinguishable counts of [CSPM] via sexual intercourse” and amended “to allege
6 separate instances of [CSPM] only distinguishable via the alternative method of
7 completing the crime[.]” Defendant maintains that these changes should have been
8 required prior to trial.
9 {8} The record reflects that at the time the State moved to modify the Amended
10 Indictment, it had not yet rested its case and it moved to amend in order to conform
11 to the State’s evidence presented at trial. The State sought to modify Counts 1 and 2,
12 amending the method of perpetrating CSPM from sexual intercourse to digital
13 penetration. Additionally, it sought to amend Count 5, 12, and 13, altering the method
14 of perpetrating CSPM from fellatio to digital penetration. The State justified its
15 motion arguing that (1) Defendant was well aware from pretrial interviews it provided
16 in discovery that the children also accused Defendant of CSPM by digital penetration;
17 (2) the time frames and the named victims for the amended charges had not changed;
18 and (3) the penalty for the crime was the same. The State further elaborated that
19 Defendant’s defense would not change as Defendant had been arguing that all of the
7
1 allegations were created by Mother, as well as his previously offered reasons for the
2 allegations by the children.
3 {9} Defendant responded, arguing that it was too late in the trial to amend the
4 charges. The district court pointed out that Rule 5-204(C) NMRA allows it to make
5 changes to the indictment in order to conform to the evidence as long as there is no
6 prejudice to Defendant. The district court then asked Defendant to address the issue
7 of prejudice, specifically substantial prejudice. Defendant argued that the time frames
8 provided by the State were insufficient. The district court noted that the State was not
9 amending the time frames. Defendant then argued that “to make such a huge change
10 in [the] case . . . prejudices the defense.” Defendant also argued that he was entitled
11 to specific descriptions of each sexual assault allegation. As a further attempt to show
12 prejudice, Defendant argued that the counts of CSPM perpetrated by sexual
13 intercourse the State was seeking to amend should have been dismissed prior to trial
14 because there was not enough evidence to support them at that time.
15 {10} The district court ruled that Defendant was not prejudiced by the State’s
16 proposed amendments to the indictment at trial as his only defense throughout the trial
17 had been that the children and Mother fabricated all of the allegations. “The defense
18 [was] that this didn’t happen; it was all made up.” The district court found that there
19 was “no prejudice that . . . attacks the defense in this case.” The district court
8
1 additionally found that the alternative method of penetration shown by the evidence
2 fell within the same statutory charge of CSPM and the penalty, if convicted, remained
3 the same. Accordingly, the district court allowed the State to amend the indictment
4 pursuant to Rule 5-204(C) in order to conform with the evidence presented at trial.
5 {11} In a criminal case, a defendant must have notice of the charges against him and
6 must be tried only on those charges. State v. Johnson, 1985-NMCA-074, ¶ 26, 103
7 N.M. 364, 707 P.2d 1174. Pursuant to Rule 5-204(C), the district court “may at any
8 time allow the indictment . . . to be amended in respect to any variance to conform to
9 the evidence.” A variance between the allegation of the indictment which states the
10 particulars of the offense, whether or not amended, and the evidence offered in
11 support of the charged offense does not provide “grounds for the acquittal of the
12 defendant unless such variance prejudices substantial rights of the defendant.” Id.
13 Under the rule, if the district court finds that the defendant is prejudiced by an
14 amendment, the district court may postpone the trial or grant other proper relief under
15 the circumstances of the case. Id. An amendment will not be deemed fatal unless it is
16 of such a nature that it misleads the defendant in the preparation of his defense. See
17 State v. Ross, 1983-NMCA-065, ¶ 13, 100 N.M. 48, 665 P.2d 310. The mere assertion
18 of prejudice alone is insufficient to establish a basis for reversal because the defendant
9
1 is required to demonstrate actual prejudice. State v. Romero, 2013-NMCA-101, ¶ 9,
2 311 P.3d 1205.
3 {12} “Criminal sexual penetration” is defined by the Legislature as the “unlawful and
4 intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio[,]
5 or anal intercourse or the causing of penetration, to any extent and with any object, of
6 the genital or anal openings of another, whether or not there is any emission.” NMSA
7 1978, § 30-9-11(A) (2009). The State argued that, prior to trial, the various types of
8 sexual penetration were contained in the pretrial interviews of the victims and that
9 Defendant was fully aware of these interviews and the allegations of the numerous
10 forms of sexual penetration. Section 30-9-11(A) provides for several alternative means
11 in which penetration can occur and does not differentiate the form of penetration
12 required for a proper statutory indictment. From the start of the trial, Defendant was
13 on notice that he needed to defend against numerous different potential forms of
14 criminal sexual penetration. Defendant’s only argument of prejudice at trial was an
15 assertion that “such a huge change in [the State’s] case . . . prejudices the defense[,]”
16 and that the charges of sexual penetration should have been dismissed with other
17 counts that were eliminated before trial. On appeal, Defendant now asserts that he was
18 also prejudiced as CSPM by digital penetration is a new offense, because CSPM “by
19 sexual intercourse can be committed without digitally penetrating the victim.”
10
1 Defendant has not asserted fundamental error occurred based upon this new argument
2 that intercourse can be committed without digitally penetrating the victim. See State
3 v. Wilson, 1993-NMCA-074, ¶ 23, 117 N.M. 11, 868 P.2d 656 (recognizing that the
4 appellate courts may review issues raised for the first time on appeal if they involve
5 questions of fundamental error). Because fundamental error has not been raised by
6 Defendant and his new argument was never presented or addressed by the district
7 court below, we will not address it for the first time on appeal.
8 {13} The district court based its finding on the fact that the only defense Defendant
9 presented at trial was that the children fabricated these allegations, through the
10 influence of Mother or other family members, and that the sexual assaults never
11 occurred. Because Defendant does not argue that his sole defense of fabrication would
12 have been any different if the State had amended the indictment sooner, we agree that
13 the amendments to conform to the evidence at trial were in compliance with Rule 5-
14 204. We affirm the district court’s determination that Defendant failed to establish the
15 substantial prejudice requirement under Rule 5-204, and the State was allowed to
16 modify the CSPM charges to conform with the evidence presented at trial.
17 II. DOUBLE JEOPARDY
18 1. CSPM and Kidnapping Convictions
11
1 {14} The jury convicted Defendant of three kidnapping charges: Counts 5, 6, and 7.
2 “Kidnapping” in New Mexico is defined as the “unlawful taking, restraining,
3 transporting or confining of a person, by force, intimidation or deception with
4 intent . . . to inflict . . . a sexual offense on the victim.” NMSA 1978, § 30-4-1(A)(4)
5 (2004). These charges arose from the multiple sexual assaults Defendant perpetrated
6 against T.F. Defendant challenges these convictions on double jeopardy grounds,
7 arguing that the Legislature did not intend to charge Defendant with violations of
8 multiple statutes for the same conduct based upon the evidence in this case.
9 Specifically, Defendant argues that the conduct the State used to justify each
10 kidnapping charge was unitary to the corresponding CSPM charge. Defendant alleges
11 that the kidnapping and accompanying CSPM convictions constituted a “double-
12 description case” and violated his double jeopardy protections guaranteed by the
13 United States and New Mexico Constitutions. Defendant additionally argues that the
14 conduct on which the kidnapping convictions are based was incidental to the
15 commission of the CSPM.
16 {15} Defendant presents a double jeopardy and a related sufficiency of the evidence
17 argument on appeal. It is well established in constitutional jurisprudence that this
18 Court will avoid deciding constitutional questions unless they cannot be avoided
19 under the circumstances. See State v. Sanchez, 2015-NMCA-084, ¶ 8, 355 P.3d 795.
12
1 While we conclude that Defendant’s kidnapping convictions were improper as a
2 matter of law and indeed necessitate vacation, we do so based upon the authority set
3 forth in State v. Tapia, 2015-NMCA-048, ¶¶ 28-36, 347 P.3d 738 (recognizing that
4 movement and restraint that is incidental and inherent to the commission of another
5 crime and does not subject the victim to a substantial increase in the risk of harm
6 beyond that inherent in the accompanying sexual assault offense is legally insufficient
7 to constitute the separate crime of kidnapping), cert. denied, 2015-NMCERT-004, 348
8 P.3d 695. Thus, we now consider whether, in the light most favorable to the guilty
9 verdicts, the movements or restraint occurring as part of Defendant’s sexual assaults
10 in the present case were sufficient as a matter of law to support the separate
11 kidnapping convictions. See id. ¶ 29. We determine that the evidence presented to
12 support Defendant’s kidnapping convictions was insufficient as a matter of law. As
13 a result, it is unnecessary to reach Defendant’s related argument that his kidnapping
14 convictions violated his double jeopardy protections under the state and federal
15 constitutions.
16 {16} This Court determined that “the Legislature did not intend to punish as
17 kidnapping restraint or movement[s] that [are] merely incidental to another crime.”
18 Id. (alterations in original)(internal quotation marks and citation omitted); see State
19 v. Trujillo, 2012-NMCA-112, ¶¶ 1-3, 289 P.3d 238 (applying statutory construction
13
1 principles to reject a kidnapping charge that was incidental to the force or coercion
2 aspects of a burglary and aggravated battery incident occurring inside a victim’s
3 home), cert. quashed 2015-NMCERT-003, 346 P.3d 1163. Effectively, “the evidence
4 of force used in kidnapping must be independent of the evidence of force used in
5 CSP.” Trujillo, 2012-NMCA-112, ¶ 11. The determination of whether conduct is
6 incidental to the commission of another felony is fact dependent and based on the
7 totality of the circumstances in the case. Tapia, 2015-NMCA-048, ¶ 29. In particularly
8 complicated factual situations, we prefer that a jury resolve the issue. Id. The State has
9 not argued that the factual situations in the present case were complicated and required
10 resolution by the jury.
11 {17} In this case, T.F. testified that she was living at the Overland Townhome with
12 Defendant when he committed CSPM via digital penetration. She stated that on one
13 instance, “the boys” tried to enter the room, but they were unable to as the door was
14 locked. T.F further testified that she never tried to leave the room because she
15 “thought it was just something people did.” Additionally, T.F. testified that when she
16 and Defendant were residing at the Montgomery Park Apartments, Defendant
17 committed more than two specific instances of CSPM by digital penetration. T.F
18 stated that Defendant would tell her to go into Mother’s bedroom and laid her on the
19 bed. During one instance where Defendant “[tried] to put [his penis] in [her]
14
1 vagina[,]” he was laying on top of her. Although the State may have abandoned its
2 pursuit of this specific conduct as a crime of CSPM via intercourse, it appears to be
3 one of the factual episodes that overlap with one of the kidnapping charges. While
4 T.F. does not refer to a specific instance connected to each sexual episode, she
5 testified that the door to the bedroom was closed and Defendant did not otherwise
6 hold her down or restrain her in any way.
7 {18} In analyzing the New Mexico kidnapping statute, there are four distinct types
8 of conduct that can constitute kidnapping: restraining, taking, transporting, or
9 confining. See § 30-4-1(A). When we examine the conduct at issue in this case, we
10 note that T.F. testified to different incidents with Defendant either lying on top of her,
11 telling her to go to Mother’s bedroom and being placed on the bed, closing the door,
12 or locking the door.
13 {19} We begin our analysis with the restraint element of the kidnapping statute. T.F.
14 testified that in one incident, Defendant would lay on top of her while attempting to
15 put his penis in her vagina. This Court recently concluded in Tapia that where the
16 defendant would lay on top of the victim during the sexual assault and there was no
17 other evidence of “restraint on her movement,” the conduct was “incidental to the
18 sexual assault perpetrated upon [the victim] and did not establish conduct that the
19 Legislature intended to support a kidnapping conviction.” 2015-NMCA-048, ¶¶ 30-
15
1 31. Here, with regard to restraint, T.F. testified to nothing more than Defendant lying
2 on top of her during the commission of the sexual assault. Additionally, T.F. explicitly
3 testified that Defendant did not hold her down or restrain her in any way. Thus, in
4 light of Tapia’s recent holding, we hold that the restraint in this case was incidental
5 to the act of CSPM. Id.
6 {20} We next consider the transport element of kidnapping—whether Defendant
7 took or transported T.F. during the commission of a sexual assault. Along with
8 restraint, this Court has also considered whether any movement was incidental to a
9 sexual assault. Id. ¶ 33. In Tapia, the defendant “made” the victim go or “took” the
10 victim into another room in order to commit the sexual assault. Id. ¶ 35. In another
11 instance in Tapia, the victim and the defendant “went” into another room. Id. Because
12 these movements constituted leaving one room for another within the same residence
13 and the victim was not subjected to a “substantial increase in risk of harm above and
14 beyond that inherent in a sexual assault[,]” we determined the movements to be
15 incidental to the sexual assault and not sufficient to support separate kidnapping
16 convictions. Id.
17 {21} In the case before us, T.F. testified that Defendant “told [her]” to go into
18 Mother’s bedroom and laid her on the bed. As in Tapia, the movements here were
19 from one part of the residence to another, and T.F. provided no testimony indicating
16
1 that there was an increase in harm above that already inherent in the act of CSPM. Id.
2 Factually, the movement at issue here was more passive than that exhibited in Tapia
3 as it was without any other physical action or indication of threat, coercion, or force
4 on the part of Defendant. See id. ¶ 32. For this reason, we conclude that the
5 movements described by T.F. were incidental to the CSPM and do not support a
6 separate kidnapping conviction.
7 {22} Finally, we examine the confinement element of the kidnapping statute. The
8 conduct at issue here was Defendant’s act of closing and/or locking the bedroom door
9 during the commission of the sexual assaults. While this Court has never explicitly
10 examined the exact door-related conduct at issue here, we are able to take guidance
11 from Tapia. See 2015-NMCA-048, ¶¶ 28-36. Tapia considered several factors in
12 determining whether various conduct is incidental to a sexual assault: (1) whether the
13 conduct increased the defendant’s culpability beyond that inherent to a sexual assault;
14 (2) whether the conduct increased the victim’s risk of harm or the severity of the
15 assault beyond that inherent to the sexual assault; and (3) whether the conduct served
16 to minimize the defendant’s risk of detection or difficulty in committing the offense.
17 See id. ¶ 31.
18 {23} T.F. testified that, with regard to incidents at the Montgomery Park Apartments,
19 the bedroom door was closed during the sexual assaults. During one sexual assault at
17
1 the Overland Townhome, the door was both closed and locked, and “the boys” were
2 unable to enter the room. T.F. additionally testified that she never tried to leave the
3 room. In examining a closed and/or locked door in light of the considerations in
4 Tapia, we first examine whether the closed and/or locked door should automatically
5 increase a defendant’s culpability beyond that inherent to the sexual assault. See id.
6 ¶ 31 (determining that the increased culpability factor was not met when the victim
7 did not point to conduct that was longer or greater than that necessary to commit the
8 assault). T.F.’s testimony did not indicate that the confinement in the bedroom was
9 any longer or greater than necessary to commit the assault. See id. (discussing
10 “whether a defendant intended to prevent the victim’s liberation for a longer period
11 of time or to a greater degree than that [necessarily present] to commit the
12 [accompanying] crime” (internal quotation marks and citation omitted)). Secondly,
13 T.F.’s testimony did not establish that the closed-door circumstances increased the
14 severity of the sexual assault or the risk of harm posed to her. See id. (concluding that
15 the severity or risk-of-harm factor was not met where the victim’s testimony did not
16 indicate that the conduct at issue heightened either component).
17 {24} Finally, in examining the third test considered in Tapia—risk or detection—we
18 conclude that the closed and/or locked door did appear to decrease Defendant’s risk
19 of detection and the difficulty in the commission of the sexual assault. See id.
18
1 (examining this third test in determining whether the conduct was incidental to the
2 sexual assault). However, we will not automatically conclude that failure of this third
3 test alone, under the totality of the circumstances, leads to conduct that is not clearly
4 incidental to the commission of the sexual assault. See id. ¶ 29 (noting that the
5 determination of incidental conduct is fact dependent and based on the totality of the
6 circumstances). First, we recognize that the closure or locking of a bedroom door is
7 the type of behavior, on its own, that would be common to incidents of sexual assault.
8 This Court will not recognize a kidnapping charge every time a door is closed or
9 locked during the commission of a felony, including sexual assault. In this particular
10 case, the door was not used to prevent T.F. from escaping the room as she testified
11 that she never tried to leave and also thought the sexual behavior that occurred “was
12 just something people did.” Similarly, the door was not used in an attempt to impede
13 her rescue. While T.F. testified that “the boys” tried to enter the room but were
14 precluded because of the locked door, there was no indication that the boys were
15 attempting to intervene or stop the sexual assault being perpetrated on T.F.
16 Accordingly, the confinement created in this particular case, by the closing and/or
17 locking of the bedroom door, was factually and legally incidental to the sexual
18 assaults. By itself, it did not support a kidnapping conviction in this case.
19
1 {25} For all the above stated reasons, we reverse Defendant’s three kidnapping
2 convictions and conclude that the restraint, movements, and confinement described
3 in T.F.’s testimony were legally incidental to the sexual assaults. We determine that
4 these actions did not exceed the incidental type of conduct inherent to a sexual assault
5 and were not intended by the Legislature to support independent kidnapping
6 convictions. As in Tapia, we highlight that we come to this conclusion as a matter of
7 law due to the binding precedent established by this Court and the lack of complexity
8 of the restraint, movement, and confinement evidence presented by the State in this
9 case. See id. ¶ 36.
10 2. Alternative Theories of Child Abuse
11 {26} The State ultimately charged Defendant with five counts of alternative theories
12 of child abuse by endangerment in violation of NMSA 1978, Section 30-6-1(D)
13 (2009), asserting intentional child abuse or in the alternative, negligent child abuse.
14 The jury convicted Defendant of both negligent and intentional child abuse on the five
15 counts: Counts 8, 11, 14, 15, and 17. The district court sentenced Defendant both on
16 the intentional and negligent theories of child abuse for the five counts. For each
17 count, the district court ordered that the sentences for intentional and negligent child
18 abuse run concurrently. Defendant appeals these convictions and the accompanying
19 sentences. Defendant argues that the convictions and sentences for both intentional
20
1 child abuse and negligent child abuse arose from the same conduct and violate his
2 right to be free from double jeopardy. The State concurs with Defendant and concedes
3 this issue on appeal. We agree.
4 {27} Child abuse by endangerment consists of “a person knowingly, intentionally or
5 negligently, and without justifiable cause, causing or permitting a child to
6 be . . . placed in a situation that may endanger the child’s life or health[.]” Section 30-
7 6-1(D)(1). While the State is entitled to charge a defendant in the alternative, the
8 defendant’s right to be free from double jeopardy is violated if the defendant is
9 convicted on both alternatives. State v. Mercer, 2005-NMCA-023, ¶ 29, 137 N.M. 36,
10 106 P.3d 1283. “The double jeopardy violation cannot be cured merely by imposing
11 one sentence for both alternatives because the second conviction, even if it results in
12 no greater sentence, is an impermissible punishment.” Id. (internal quotation marks
13 and citation omitted). As both intentional and negligent child abuse not resulting in
14 death or great bodily harm carry the same degree of felony exposure, “we express no
15 opinion as to which alternative conviction[s] would need to be vacated.” Id. We
16 remand these convictions to the district court with instructions to dismiss one set of
17 the alternative theories of child abuse by endangerment convictions and corresponding
18 sentences that were imposed.
21
1 III. SUFFICIENCY OF THE EVIDENCE
2 {28} Defendant asserts that the evidence the State presented at trial was insufficient
3 to sustain a jury verdict on either of the CSPM convictions against T.F. and for three
4 of the child endangerment convictions. “In reviewing the sufficiency of the evidence,
5 [the appellate courts] must view the evidence in the light most favorable to the guilty
6 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence
7 in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,
8 998 P.2d 176. “The test for sufficiency of the evidence is whether substantial evidence
9 of either a direct or circumstantial nature exists to support a verdict of guilt beyond
10 a reasonable doubt with respect to every element essential to a conviction.” State v.
11 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
12 and citation omitted).
13 1. Child Endangerment
14 {29} Defendant argues that there was insufficient evidence to sustain the jury verdict
15 as to Counts 8, 11, and 14 for child abuse by endangerment, resulting from Defendant
16 showing pornographic videos to T.F., Y.J., and W.F. respectively. Defendant asserts
17 that the “[v]iewing of pornography by a minor, while disagreeable, was not the type
18 of conduct intended to be punished” criminally. Under the specific circumstances of
19 this case, we disagree.
22
1 {30} “Abuse of a child consists of a person knowingly, intentionally or negligently,
2 and without justifiable cause, causing or permitting a child to be . . . placed in a
3 situation that may endanger the child’s life or health[.]” § 30-6-1(D)(1). “Child abuse
4 by endangerment, as opposed to physical abuse of a child, is a special classification
5 designed to address situations where an accused’s conduct exposes a child to a
6 significant risk of harm, even though the child does not suffer a physical injury.” State
7 v. Chavez, 2009-NMSC-035, ¶ 15, 146 N.M. 434, 211 P.3d 891 (emphasis, internal
8 quotation marks, and citation omitted). Our Supreme Court has determined that, due
9 to the classification of child endangerment as a third degree felony, the New Mexico
10 Legislature intended that criminal prosecutions “would be reserved for the most
11 serious occurrences, and not for minor or theoretical dangers.” Id. ¶ 16. Accordingly,
12 the Supreme Court has adopted a more restrictive view of child endangerment,
13 requiring that the defendant’s conduct create a substantial and foreseeable risk of harm
14 to the child, aligning appropriately with the Legislature’s intent that only “conduct
15 that creates a truly significant risk of serious harm to children” is punished. Id. ¶¶ 16,
16 22. In order to determine whether a defendant’s conduct creates a substantial and
17 foreseeable risk of harm to a child, the Supreme Court has provided several factors to
18 consider: (1) the gravity of the threatened harm, (2) the Legislature’s guidance that the
23
1 conduct is inherently perilous, and (3) the foreseeability or likelihood of the
2 occurrence of harm. Id. ¶¶ 23, 25, 26.
3 {31} Here, the conduct at issue was not, as Defendant frames it, the viewing of
4 pornography by a minor, but was Defendant’s purposeful act of showing pornography
5 to the children prior to sexually assaulting them. In examining this conduct, we follow
6 the Supreme Court’s instruction and determine if there was a substantial and
7 foreseeable risk of harm to the children. Id. ¶ 22. Here, the State was required to
8 present evidence to prove a substantial and foreseeable risk that showing pornographic
9 videos to the children endangered them. See id. ¶¶ 27, 32 (instructing that it is the
10 state’s burden to demonstrate that the conduct at issue created a substantial and
11 foreseeable risk of harm to the children). As Defendant himself acknowledges, the
12 reprehensibility of this conduct is not disputed. “But the question before [the appellate
13 court] is whether these conditions created a substantial and foreseeable threat of
14 serious injury.” Id. ¶ 35.
15 {32} The State elicited testimony from T.F. explaining that after Defendant showed
16 her the pornographic videos, she “[thought] it was ok to . . . [l]et [Defendant] touch
17 [her] . . . [b]ecause it was . . . on the movies.” Thus, Defendant’s use of pornography
18 served to acclimate and reduce T.F.’s resistance to the sexual abuse and increased his
19 ability to carry out the sexual assaults. This type of behavior has been identified by
24
1 our Supreme Court as “grooming.” See State v. Sena, 2008-NMSC-053, ¶ 19, 144
2 N.M. 821, 192 P.3d 1198 (identifying “the process of manipulation often utilized by
3 child molesters, intended to reduce a victim's or potential victim’s resistance to sexual
4 abuse . . . as grooming” (alterations, internal quotation marks, and citation omitted)).
5 {33} In using pornography to reduce his victims’ resistance to the sexual assaults, the
6 severity and gravity of the conduct is not only apparent, as it serves to ensure the
7 successful completion of a sexual assault, but the foreseeability and likelihood of harm
8 resulting from this conduct is obvious for the same reason. To support this conclusion,
9 the State offered the testimony of Dr. Renee Ornelas, who explicitly stated that “the
10 effects of abuse on children are long lasting and . . . [are] a very difficult problem to
11 treat, and it requires a long, intensive sort of therapy.” She elaborated that a child who
12 does not receive help “develop[s] these habits in ways of dealing with things that later
13 they suffer very severe consequences for, and not to discount what harm they can do
14 to others as they get older.”
15 {34} Finally, the New Mexico Legislature has independently determined that under
16 Article 37 of the criminal statutes, the act of showing pornography to minors is
17 “harmful.” NMSA 1978, § 30-37-2(A) (1973). Article 37 relates to “sexually oriented
18 material that is harmful to minors.” State v. Tufts, 2015-NMCA-075, ¶ 13, 355 P.3d
19 32 (alteration, internal quotation marks, and citation omitted), rev’d 2016-NMSC-020,
25
1 __ P.3d ___. Section 30-37-2(A) specifically states that “[i]t is unlawful for a person
2 to . . . provide to a minor . . . [a] motion picture film . . . which depicts nudity, sexual
3 conduct, sexual excitement . . . and which is harmful to minors[.]” During her
4 testimony, Y.J. recalled that the pornographic videos Defendant showed her depicted
5 “other people having sex” and “private parts going into the girls.” Accordingly, the
6 State established that the pornographic videos Defendant showed the children fell
7 within the illegal and harmful category articulated in Section 30-37-2(A).
8 {35} Under the specific circumstances of this case, (1) where there is explicit
9 testimony that Defendant’s conduct of showing pornography to his victims served to
10 groom and reduce victim resistance to sexual acts and increased Defendant’s ability
11 to carry out the sexual assaults; (2) where the State presented expert testimony
12 regarding the harmful effects that these sexual assaults could have; and (3) where the
13 Legislature has explicitly stated that showing pornography to minors is harmful, we
14 not only determine that the conduct created a substantial and foreseeable risk of harm
15 to the children, but this is the type of conduct that the Legislature intended to
16 criminally punish under Section 30-6-1(D)(1).
17 2. CSPM Charges
18 {36} The jury convicted Defendant of two counts of CSPM, re-numbered as Counts
19 2 and 3, by means of sexual intercourse perpetrated against T.F. occurring “on or
26
1 between the 1st day of January, 2005 and the 31st day of May, 2005.” Defendant
2 appeals these two re-numbered convictions, arguing that the evidence was insufficient
3 to sustain the convictions for these two counts as T.F. did not testify to a specific time
4 frame or residence where these particular sexual assaults occurred.
5 {37} Defendant was charged with CSPM pursuant to Section 30-9-11(D)(1). To
6 convict Defendant of re-numbered Counts 2 and 3, the jury was instructed that it must
7 find that the State proved beyond a reasonable doubt that: (1) “[D]efendant caused
8 [T.F.] to engage in sexual intercourse”; (2) T.F. “was a child under the age of thirteen
9 (13)”; (3) “[D]efendant’s act was unlawful”; and (4) “[t]his happened in New Mexico
10 on or between the 1st day of January, 2005 and the 31st day of May 2005.” The jury
11 was additionally instructed that “[s]exual intercourse [constitutes] the penetration of
12 the vulva or vagina, the female sex organ, by the penis, the male sex organ, to any
13 extent.” As Defendant solely disputed the sufficiency of evidence with regard to the
14 element of sexual intercourse, our analysis will be limited accordingly. See State v.
15 Garnenez, 2015-NMCA-022, ¶ 15, 344 P.3d 1054 (“We will not address arguments
16 on appeal that were not raised in the brief in chief and have not been properly
17 developed for review.”).
18 {38} Our review of the record indicates that T.F. testified that Defendant lived with
19 her and her family for about six years, and Defendant and Mother ended their
27
1 relationship when T.F. was six or seven years old. The record reflects that the family
2 lived at the Montgomery Park Apartments during the time period of re-numbered
3 Counts 2 and 3, January 1, 2005, through May 31, 2005. She stated that while living
4 at the Montgomery Park Apartments, Defendant “[tried] to put [his penis] in [her]
5 vagina.” T.F. elaborated that when Defendant sexually assaulted her, it would take
6 place on the bed in Mother’s room. T.F. explained that she was unclothed on her back,
7 and Defendant laid on top of her, moving “back and forth.” T.F. testified that this
8 action “hurt” and caused her to bleed “on [her] vagina.” T.F. later explained that the
9 “last time” Defendant sexually assaulted her, “[h]e tried to put [his penis] in [her], and
10 he just got real mad after.” T.F. testified that while living at the Overland Townhome,
11 Defendant only sexually assaulted her “with his fingers.”
12 {39} Defendant asserts that T.F.’s testimony is insufficient to support convictions of
13 CSPM for re-numbered Counts 2 and 3 because “when pressed on cross[-]
14 examination to clarify her testimony regarding the sexual intercourse [by penetration],
15 T.F. testified that she could not remember where they occurred.” While Defendant
16 was unable to provide us with an accurate citation to the transcript, we located a
17 portion of the record where, on cross-examination, the question was asked, “Did he
18 try to put anything else inside of you at the townhome?” T.F. replied, “I think, yes.”
19 When asked why she thought this, she replied that she did not “really remember what
28
1 house [they] were at.” In spite of this apparent discrepancy in T.F.’s recollection of
2 her memory about what else may have occurred at the townhome, it is the
3 responsibility of the jury alone to weigh the credibility of a witness. See State v.
4 Santillanes, 1974-NMCA-092, ¶ 2, 86 N.M. 627, 526 P.2d 424. Viewing the
5 sufficiency of the evidence in the light most favorable to the guilty verdict, we
6 conclude that the testimony of T.F., describing two instances at the Montgomery Park
7 Apartments where Defendant penetrated her by means of sexual intercourse, is
8 sufficient to support Defendant’s CSPM convictions.
9 IV. EXPERT MEDICAL TESTIMONY
10 {40} Defendant argues that the district court abused its discretion in denying his
11 motion to suppress the testimony of Dr. Ornelas, a pediatrician specializing in the
12 treatment and diagnosis of sexual abuse in children. He additionally argues that Dr.
13 Ornelas, in violation of the prohibition on hearsay, testified to information obtained
14 from the children’s aunt, which the aunt obtained from W.F.
15 {41} We review the admission or exclusion of evidence for an abuse of discretion,
16 and we will not disturb the ruling of the district court absent a clear abuse of its
17 discretion. Mercer, 2005-NMCA-023, ¶ 6. “An abuse of discretion occurs when the
18 ruling is clearly against the logic and effect of the facts and circumstances of the case.
19 We cannot say the trial court abused its discretion by its ruling unless we can
29
1 characterize it as clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001,
2 ¶ 41 (internal quotation marks and citation omitted).
3 1. Motion to Suppress
4 {42} Prior to trial, Defendant filed a motion to suppress the testimony of Dr. Ornelas,
5 arguing that it was not scientifically reliable. Defendant asserted that “Dr. Ornelas’
6 testimony is essentially an attempt to improperly vouch for the credibility of the
7 alleged victim in this case. There is no physical evidence . . . nor are there any
8 independent eyewitnesses, the only evidence . . . is the alleged victim’s statement[.]”
9 The district court denied the motion in part and granted the motion in part, allowing
10 Dr. Ornelas to provide factual information regarding her medical exam, the medical
11 history of the children, and her treatment of the children. However, the court ruled that
12 in order for Dr. Ornelas to be declared an expert witness, the State would need to lay
13 the proper foundation. During Dr. Ornelas’ initial foundational testimony, defense
14 counsel stipulated to qualifying Dr. Ornelas as an expert witness in the field of
15 “pediatrics, child sexual abuse and treatment and the diagnosis of sexual abuse of
16 children.”
17 {43} Defendant argues that the district court erred in denying his pretrial motion to
18 suppress all testimony by Dr. Ornelas. At the outset, we note that the district court
19 granted Defendant’s motion in part, and to the extent the court denied the motion
30
1 regarding the propriety of Dr. Ornelas serving as an expert witness, Defendant later
2 stipulated to her designation as an expert “in the field of pediatrics, child sexual abuse
3 and treatment and the diagnosis of sexual abuse of children.” However, Defendant
4 neglected to provide any citation to the record of either the original motion or the
5 district court’s ruling on the original motion. Additionally, Defendant failed to provide
6 any specific argument as to how the district court abused its discretion in allowing the
7 State to present a factual foundation for expert witness testimony and ultimately
8 recognizing Dr. Ornelas’ ability to testify as an expert witness regarding the
9 examination, diagnosis, and treatment of W.F. See State v. Mendez, 2010-NMSC-044,
10 ¶ 22, 148 N.M. 761, 242 P.3d 328 (“[Our appellate courts] have relied on the
11 foundation established by the party seeking to admit the hearsay testimony[,] that [the]
12 testimony is admissible if it is reasonably pertinent for medical diagnosis or
13 treatment.” (alteration, internal quotation marks, and citation omitted)). Defendant has
14 failed to further develop his argument that Dr. Ornelas’ testimony regarding the
15 medical exam, the medical history of the children, and her treatment of the children
16 was not relevant to the State’s case or required exclusion on the basis of prejudice. See
17 State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111 (“[T]his
18 Court has no duty to review an argument that is not adequately developed.”).
19 Accordingly, Dr. Ornelas was properly qualified as an expert to testify about the
31
1 examination, diagnosis, and treatment of the children, and Defendant has failed in his
2 burden to show error. We decline to further review this undeveloped argument
3 regarding the pretrial motion to exclude all of Dr. Ornelas’ testimony.
4 2. Dr. Ornelas’ Trial Testimony
5 {44} Prior to Dr. Ornelas’ trial testimony, Defendant also objected to her testimony
6 on general hearsay grounds. However, the district court overruled this objection
7 finding that the information was obtained as part of a medical diagnosis. During her
8 testimony, Dr. Ornelas stated that she speaks to the caregivers of her child patients in
9 order to obtain more detailed medical histories of the children that will aid her in
10 diagnosis and treatment. Specifically with regard to W.F., she stated that the
11 children’s aunt provided her with details of his history of abuse, information the aunt
12 appeared to have obtained from W.F. Dr. Ornelas then explained that she spoke to
13 W.F., and he provided her with a detailed account of the sexual assualt. Dr. Ornelas
14 additionally testified that she requests information regarding whether the alleged
15 perpetrator has been incarcerated or has engaged in high risk behaviors such as
16 intravenous drug use or sexual acts with prostitutes due to a concern that the
17 perpetrator may expose the child to a sexually transmittable infection. In this case, Dr.
18 Ornelas stated that the children’s aunt informed her that the alleged perpetrator used
19 intravenous drugs, engaged in sexual acts with prostitutes, and had been incarcerated.
32
1 At no time did Dr. Ornelas identify the alleged perpetrator or testify that she thought
2 or knew Defendant to be the perpetrator. See Mendez, 2010-NMSC-044, ¶ 52
3 (recognizing that “[a]s a general matter, statements of fault or identity are inadmissible
4 under the hearsay exception for purposes of medical diagnosis or treatment because
5 they are not pertinent to treatment or diagnosis”).
6 {45} Defendant asserts that the non-specific testimony regarding obtaining W.F.’s
7 history of sexual abuse was inadmissible as it constituted double hearsay. Hearsay is
8 a statement made outside of testimony at the trial at issue “offer[ed] in evidence to
9 prove the truth of the matter asserted in the statement.” Rule 11-801(C) NMRA.
10 Pursuant to Rule 11-802 NMRA, hearsay is inadmissible unless it falls within an
11 exception under the New Mexico Rules of Evidence, a statute, or other Supreme Court
12 rule. Under Rule 11-803(4) NMRA, an exception to the hearsay rule exists with regard
13 to medical diagnosis or treatment. It states:
14 The following are not excluded by the rule against hearsay,
15 regardless of whether the declarant is available as a witness[:]
16 ....
17 4. Statement made for purposes of medical diagnosis or
18 treatment. A statement that
19 (a) is made for—and is reasonably pertinent to—medical
20 diagnosis or treatment, and
21 (b) describes medical history, past or present symptoms,
22 pain, or sensations, their inception, or their general cause.
33
1 Id. Our Supreme Court has clarified that hearsay testimony made to a medical
2 provider in a sexual assault case is admissible if the district court has properly
3 evaluated “the trustworthiness of [the victim’s] statements, taking into consideration
4 [the victim’s] help-seeking motivation and the pertinence of such statements to
5 medical diagnosis or treatment.” Mendez, 2010-NMSC-044, ¶ 46. “[Our appellate
6 courts] have relied on the foundation established by the party seeking to admit the
7 hearsay testimony” in order to determine whether that testimony is “ ‘reasonably
8 pertinent’ for medical diagnosis or treatment.” Id. ¶ 22 (applying the identical hearsay
9 exception set forth in the previous version of Rule 11-803(4) to explain the analysis
10 required to admit statements made by a sexual assault victim to a medical provider).
11 {46} In this case, Dr. Ornelas explicitly stated that it was important for her in the
12 treatment and diagnosis of sexually abused children to know the extent of the sexual
13 abuse as it can have long lasting behavioral effects that “require treatment and
14 intervention.” She elaborated that the effects of sexual abuse are “ very difficult
15 problem[s] to treat, and [they require] a long, intensive sort of therapy.” Accordingly,
16 we conclude that the evidence supports the district court’s ruling that the sexual abuse
17 history provided by W.F. to Dr. Ornelas was “trustworthy” and “reasonably pertinent”
18 for her diagnosis, meeting the hearsay exception requirement established in Mendez.
19 Id. ¶ 43 (“The [district] court must therefore carefully parse each statement made to
34
1 [the medical provider] to determine whether the statement is sufficiently trustworthy,
2 focusing on the declarant’s motivation to seek medical care and whether a medical
3 provider could have reasonably relied on the statement for diagnosing or treating the
4 declarant.”); see State v. Skinner, 2011-NMCA-070, ¶ 12, 150 N.M. 26, 256 P.3d 969
5 (“[District] courts must closely scrutinize the exchange between the medical provider
6 and patient to determine the statement’s overall trustworthiness under Rule 11-
7 803[(4)] in light of these two rationales [set forth in Mendez].” (alteration, internal
8 quotation marks, and citation omitted)), overruled in part on other grounds by State
9 v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “We do not decide whether the
10 double hearsay alone would be admissible were it not accompanied by other
11 admissible statements [W.F.] made directly to the doctor.”In re Esperanza M., 1998-
12 NMCA-039, ¶ 18, 124 N.M. 735, 955 P.2d 204. Defendant makes no specific
13 trustworthiness or pertinence arguments further challenging the hearsay statements
14 made to Dr. Ornelas by W.F. As a result, W.F.’s statements to Dr. Ornelas comply
15 with the hearsay exception in Rule 11-803(4) and no error occurred when Dr. Ornelas
16 testified about W.F.’s statements to her.
17 {47} While the statements made by the aunt to Dr. Ornelas were also made for the
18 purpose of medical diagnosis and treatment, they constituted double hearsay because
19 they were based upon the prior out-of-court statements made by W.F. to his aunt. It
35
1 is this second layer of hearsay that Defendant also asserts the district court failed to
2 properly address and overcome. Although we agree with this potential hearsay
3 concern, the State argues that Defendant failed to object and preserve this evidentiary
4 issue at trial. Defendant does not dispute this assertion or otherwise identify how the
5 issue was preserved and ruled upon by the district court. Generally, evidentiary issues
6 that were not preserved at trial will not be addressed for the first time on appeal. See
7 State v. Allen, 2000-NMSC-002, ¶ 17, 128 N.M. 482, 994 P.2d 728 (“When an
8 evidentiary issue is not properly preserved, our review is generally limited to
9 questions of plain or fundamental error.”). Because Defendant failed to establish that
10 this evidentiary issue was preserved below and does not argue that plain or
11 fundamental error occurred, we decline to review this matter further.
12 {48} Finally, we recognize that the admissibility of hearsay statements by a victim
13 must also satisfy the constitutional requirements of the Confrontation Clause, but
14 Defendant makes no argument regarding his confrontation rights, and we will not
15 address this issue as well. In re Esperanza M.,1998-NMCA-039, ¶ 15; see State v.
16 Correa, 2009-NMSC-051, ¶ 31, 147 N.M. 291, 222 P.3d 1 (“On appeal, issues not
17 briefed are considered abandoned, and [the appellate courts] do not raise them on
18 [their] own.”); Garnenez, 2015-NMCA-022, ¶ 15 (“We will not address arguments on
19 appeal that were not raised in the brief in chief and have not been properly developed
36
1 for review.”); see also State v. Riley, 2010-NMSC-005, ¶ 26, 147 N.M. 557, 226 P.3d
2 656 (stating that the issue of any denial of a defendant’s Sixth Amendment right to
3 confrontation may not be raised or addressed for the first time on appeal), overruled
4 on other grounds by State v. Montoya, 2013-NMSC-020, ¶ 54, 306 P.3d 426. W.F. did
5 testify at trial regarding the details of the sexual assaults, and Defendant did have the
6 opportunity to cross-examine him about those statements.
7 V. THE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
8 {49} Defendant asserts that he was denied effective assistance of counsel when his
9 attorney “failed to move to exclude prejudicial statements regarding [Defendant’s] use
10 of [intravenous] drugs and . . . sexual experience with prostitutes” that were made by
11 the aunt to Dr. Ornelas. Alternatively, Defendant argues that counsel was ineffective
12 by failing to object to the testimony regarding Defendant’s high risk behaviors. We
13 review ineffective assistance of counsel claims de novo. State v. Bahney, 2012-
14 NMCA-039, ¶ 48, 274 P.3d 134.
15 {50} In order to establish a prima facie case of ineffective assistance of counsel, a
16 defendant must show that: “(1) counsel’s performance fell below that of a reasonably
17 competent attorney; (2) no plausible, rational strategy or tactic explains counsel’s
18 conduct; and (3) counsel’s apparent failings were prejudicial to the defense.” Id.
19 Defendant summarily asserts that the statements referring to his high risk behaviors
37
1 “were more prejudicial than probative in violation of Rule 11-403 [NMRA], admitted
2 prior bad act testimony in violation of Rule 11-404(B) [NMRA], and created the risk
3 that the jury would convict [Defendant] because he was a ‘bad person.’ ” Beyond
4 these summary statements in his brief in chief, Defendant does not develop or explain
5 his arguments any further. In addition, how these arguments were preserved and
6 otherwise ruled upon by the district court below has not been explained or addressed.
7 See State v. Lacey, 2002-NMCA-032, ¶ 19, 131 N.M. 684, 41 P.3d 952 (recognizing
8 that the failure to make a timely objection and invoke a ruling by the district court
9 results in a failure to preserve the issue for appellate review). Finally, we will not
10 address an argument that is unclear or underdeveloped. See Gonzales, 2011-NMCA-
11 007, ¶ 19 (“[T]his Court has no duty to review an argument that is not adequately
12 developed.”).
13 VI. EXCLUSION OF TESTIMONY AND EVIDENCE
14 1. Grandfather’s Testimony
15 {51} Defendant contends that the district court erred in excluding evidence that the
16 children’s maternal grandfather (Grandfather) abused unrelated children at a daycare
17 center owned by the family. Alternatively, Defendant asserts that the district court
18 erred in refusing to grant Grandfather use immunity for purposes of determining the
19 relevance of his testimony. The admission or exclusion of evidence is within the
38
1 sound discretion of the district court. State v. Downey, 2008-NMSC-061, ¶ 24, 145
2 N.M. 232, 195 P.3d 1244. We review the ruling of the district court for an abuse of
3 discretion and will not disturb it on appeal unless “the evidentiary ruling is clearly
4 contrary to logic and the facts and circumstances of the case.” Id. (internal quotation
5 marks and citation omitted).
6 {52} During trial, Defendant revealed that one of his defenses was that Grandfather
7 molested the children, and the children blamed Defendant for the abuse. Defendant
8 argued that Grandfather molested unrelated children at a daycare center, and the
9 children at issue in this case were present at the daycare center. Additionally,
10 Defendant argued that the children may have obtained information regarding
11 Grandfather’s case before lodging the allegations against Defendant. Finally,
12 Defendant asserted that Grandfather may be able to shed light on how the children
13 were feeling and perhaps provide information demonstrating that the children may
14 have “tailored their testimony in a certain way, that they might be able to help their
15 grandfather out.” For these reasons, Defendant sought to admit Grandfather’s
16 testimony and grant him use immunity.
17 {53} The district court noted that there had been no allegation against Grandfather
18 with regard to the abuse of his grandchildren and ruled there would be no “mini trial
19 on his case that’s pending with regard to the allegation against” Defendant. The
39
1 district court denied Defendant’s motion, finding that there was not sufficient
2 evidence to support the defense’s theory and justify admitting Grandfather’s
3 testimony. The court determined that this testimony would only serve to confuse the
4 jury. Defendant called Grandfather to testify regarding the request for use immunity,
5 and Grandfather asserted his Fifth Amendment privilege against self-incrimination.
6 Defendant asked that Grandfather be granted use immunity, and the district court
7 denied the request on the basis that Defendant could not request it, only Grandfather
8 could request it, and Grandfather declined to make such a request.
9 {54} Defendant neglects to provide any specific argument explaining how the
10 exclusion of Grandfather’s testimony constituted an abuse of discretion. He merely
11 argues that Grandfather allegedly had a history of sexually abusing unrelated children,
12 and he had access to the children in this case. Defendant generally cites to caselaw
13 without any accompanying analysis. We decline to address this argument any further
14 as we will not make Defendant’s argument for him or guess at what his argument
15 might be. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
16 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a
17 party’s] arguments might be.”).
40
1 {55} However, in support of his argument that Grandfather should have been granted
2 use immunity, Defendant cites Rule 5-116(A) NMRA, which governs witness use
3 immunity and provides in relevant part:
4 If a person has been or may be called to testify . . . in an official
5 proceeding conducted under the authority of a court . . . , the district
6 court . . . may issue a written order requiring the person to
7 testify . . . notwithstanding the person’s privilege against
8 self-incrimination. The court may issue an order under this rule upon the
9 written application of the prosecuting attorney, the accused, or upon the
10 court’s own motion.
11 Our Supreme Court addressed the question of whether a district court may grant use
12 immunity to a defense witness over the objection of the state in State v. Belanger,
13 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. The Court determined that in “limited
14 circumstances” district courts are permitted to grant use immunity “with or without
15 the concurrence of the prosecut[ion].” Id. ¶ 35. “Before granting use immunity to a
16 defense witness over the opposition of the prosecution, district courts should perform
17 a balancing test which places the initial burden on the accused.” Id. ¶ 38. The burden
18 requires the defendant to show that: (1) “the proffered testimony is admissible,
19 relevant and material to the defense” and (2) without it, the defendant’s “ability to
20 fairly present a defense will suffer to a significant degree.” Id. Once the defendant has
21 met this burden, “the district court must then balance the defendant’s need for the
22 testimony against the government's interest in opposing immunity.” Id.
41
1 {56} Defendant maintains that he met his burden under Belanger as he “showed that
2 he intended to present the defense that either” Grandfather was the abuser of the
3 children, the children’s stress reactions were the result of interactions with and
4 knowledge of Grandfather’s history of sexual abuse toward children, or that the
5 children learned of the specifics of sexual abuse through exposure to Grandfather.
6 However, our review of the record reveals that Defendant provided no proffer to the
7 district court as to what Grandfather’s testimony would provide, as Defendant was
8 required to do under Belanger. Id.; see State v. Ortega, 2014-NMSC-017, ¶ 10, 327
9 P.3d 1076 (concluding that a defendant had not met his burden under Belanger when
10 he failed to make a proffer “as to what testimony” a witness would provide).
11 Defendant merely presented theories to the district court that were “possible” or that
12 Grandfather “maybe” would be able to provide enlightenment.
13 {57} While Defendant asserts that “the district court erred in [declining to grant] use
14 immunity to [Grandfather] for the limited purpose of determining whether his
15 testimony would benefit [Defendant] or would be relevant to any of his theories of
16 defense[,]” this is not the appropriate procedure under these circumstances. Our
17 Supreme Court has instructed that in such a situation when defense counsel is unable
18 to make a proffer, he or she can request “immunity limited to an in camera hearing,
19 which [allows] the district court to hear [the witness’s] testimony and gauge its
42
1 importance.” Ortega, 2014-NMSC-017, ¶ 10. A request for a limited in camera review
2 hearing did not occur here. Accordingly, we determine that Defendant failed to meet
3 his burden under Belanger and Ortega, and the district court did not abuse its
4 discretion in declining to grant the request for use immunity.
5 {58} While we recognize that the district court erred in its ruling that Grandfather
6 was the only party who was able to request use immunity, as Rule 5-116(A) permits
7 the district court to grant use immunity on its own motion, we conclude that the
8 district court’s refusal to grant Grandfather use immunity can be affirmed on the basis
9 of “right for any reason.” See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M.
10 185, 152 P.3d 828 (recognizing that the appellate courts will affirm the district court’s
11 decision if it is right for any reason, so long as it is not unfair to the appellant).
12 Defendant failed to meet his burden under Belanger and was not entitled to the
13 issuance of use immunity for Grandfather’s testimony, even if it had been raised on
14 the district court’s own motion. 2009-NMSC-025, ¶ 38; see Ortega, 2014-NMSC-017,
15 ¶ 10.
16 2. The Juvenile Records
17 {59} Defendant argues that the district court erred in excluding evidence of the
18 criminal juvenile records of Q.F. and W.F. as the records “pertained directly to
19 potential impeachment” of witness credibility. Defendant asserts that the boys testified
43
1 to acts of abuse that were not witnessed by others and could not be corroborated,
2 therefore, their juvenile records could have served to properly impeach their
3 credibility. “We review the district court’s evidentiary rulings for an abuse of
4 discretion.” Garnenez, 2015-NMCA-022, ¶ 29. “An abuse of discretion occurs when
5 the ruling is clearly against the logic and effect of the facts and circumstances of the
6 case.” Id. (internal quotation marks and citation omitted).
7 {60} Prior to cross-examination of W.F., Defendant sought to admit his juvenile
8 criminal record based upon a pre-trial interview where he admitted to being arrested
9 for shoplifting. The State disputed the contents of the pre-trial interview, arguing that
10 such an admission was never made at the interview or contained within the transcript
11 of the interview. The State denied that it knew of anything regarding W.F.’s juvenile
12 record other than he was a suspect in a shoplifting incident. The district court denied
13 Defendant’s request to admit any criminal juvenile history of W.F. Additionally, we
14 can find nothing in the record, nor does Defendant provide us with any citation to the
15 record, discussing the existence of any juvenile criminal history for Q.F.
16 {61} The New Mexico Rules of Evidence allow a party to attack the credibility of a
17 witness through the admission of that witness’s criminal conviction for any crime “if
18 the court can readily determine that establishing the elements of the crime required
19 proving—or the witness’s admitting—a dishonest act or false statement.” Rule 11-
44
1 609(A)(2) NMRA. The rules allow for the admission of juvenile adjudications to
2 impeach a witness “only if (1) it is offered in a criminal case, (2) the adjudication was
3 of a witness other than the defendant, (3) an adult’s conviction for that offense would
4 be admissible to attack the adult’s credibility, and (4) admitting the evidence is
5 necessary to fairly determine guilt, or innocence.” Rule 11-609(D).
6 {62} First, we note that while Defendant cites to caselaw that states that shoplifting
7 constitutes a dishonest act, see State v. Melendrez, 1977-NMCA-131, ¶ 12, 91 N.M.
8 259, 572 P.2d 1267, Defendant’s argument goes no further than merely stating, “[a]ll
9 of the four pre-requisites for the admission of juvenile adjudications were met and it
10 was error for the district court to deny [Defendant’s] request to admit testimony of the
11 alleged victim’s criminal history” as it was useful for impeachment. Defendant did not
12 fully complete the required analysis of Rule 11-609(D), and as this Court has
13 previously stated, “[t]he mere assertion of an evidentiary rule is not argument.” State
14 v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181. Defendant
15 provided no further showing in the record that the minor victims’ alleged convictions
16 would be admissible to attack an adult’s credibility or the admission of W.F.’s
17 shoplifting record was necessary to fairly determine Defendant’s guilt or innocence.
18 See Rule 11-609(D). As such, we decline to complete this analysis for Defendant
19 when he never did so himself. See Fuentes, 2010-NMCA-027, ¶ 29; see also Headley,
45
1 2005-NMCA-045, ¶ 15 (“We will not review unclear arguments, or guess at what [a
2 party’s] arguments might be.”). Additionally, insofar as Defendant also appears to
3 assert that he was denied his right to confront the witnesses against him by merely
4 citing relevant authority, we decline to review this argument as it was also
5 inadequately developed. See Gonzales, 2011-NMCA-007, ¶ 19 (stating that “this
6 Court has no duty to review an argument that is not adequately developed”); see also
7 Riley, 2010-NMSC-005, ¶ 26 (noting that a defendant’s Sixth Amendment right to
8 confrontation may not be raised or addressed for the first time on appeal).
9 VII. MOTION FOR MISTRIAL FOLLOWING CLOSING ARGUMENTS
10 {63} Following closing arguments, Defendant moved for a mistrial on the basis that
11 the State improperly attacked defense counsel’s credibility, which “invaded
12 Defendant’s right to effective assistance of counsel and his right to be presumed
13 innocent until the jury [found] him guilty.” While Defendant provides no citation to
14 the record of either his motion or the district court’s denial of the motion, he argues
15 that the district court erred in denying Defendant’s motion for a mistrial due to
16 prosecutorial misconduct during closing arguments. Defendant asserts that the State’s
17 comments during its rebuttal closing argument constituted an improper attack on
18 Defendant’s trial counsel and denied Defendant the right to a fair trial. Specifically,
19 Defendant contends that the State asserted that Defendant “currently had a drug
46
1 problem” and represented Defendant as a “bad person” in referring to him as
2 “somebody like that.” Additionally, Defendant argues that the State suggested that
3 defense counsel was intimidating Y.J. on the witness stand. “We review the trial
4 court’s denial of the motion for mistrial for abuse of discretion[.]” State v. Smith,
5 2016-NMSC-007, ¶ 50, 367 P.3d 420.
6 {64} In examining the propriety of comments by trial counsel during closing
7 arguments, the New Mexico Supreme Court has held that district courts must strike
8 a balance between the influence that closing arguments can have on a jury and the
9 extemporaneous nature of the closing arguments, especially a rebuttal argument. State
10 v. Sosa, 2009-NMSC-056, ¶¶ 24-25, 147 N.M. 351, 223 P.3d 348. For this reason,
11 counsel is afforded reasonable latitude in closing arguments, and jury members are
12 instructed that “they are to base [the] deliberations only on the evidence along with
13 instructions from the court, and not on argument from counsel.” Id. ¶ 25. Our Supreme
14 Court has instructed that we consider three factors when analyzing whether statements
15 contained in a closing argument require reversal of a jury verdict: “(1) whether the
16 statement invades some distinct constitutional protection; (2) whether the statement
17 is isolated and brief, or repeated and pervasive; and (3) whether the statement is
18 invited by the defense.” Id. ¶ 26. However, in cases that resulted in reversible error,
47
1 “the prosecutors’ comments materially altered the trial or likely confused the jury by
2 distorting the evidence, and thereby deprived the accused of a fair trial.” Id. ¶ 34.
3 {65} At the outset, we note that Defendant’s argument regarding whether the State
4 painted Defendant as a “bad person” was allegedly based upon comments about
5 Defendant’s current drug use and asking the jury to disregard testimony from
6 “somebody like that.” Defendant’s argument misstates the record. Our examination
7 of the closing argument transcript reveals that the State was speaking about the
8 credibility of Mother’s ex-husband and not referring to Defendant at all. The transcript
9 states in relevant part:
10 He’s [Mother’s] ex-husband. He dislikes her. Of course, he’s going to
11 get up on the stand and tell you how she lies. . . . he’s also a criminal
12 who’s not honest with us or you about his criminal history. . . . He’s got
13 a drug problem now. . . . [Defense counsel] wants you to rely on
14 testimony coming from someone like that. I’d ask you to disregard his
15 testimony.
16 While we do not intimate that Defendant intentionally misstated the record, we do not
17 reach this issue as Defendant did not present an argument regarding the impropriety
18 of these statements about a different witness, not Defendant. See Garnenez, 2015-
19 NMCA-022, ¶ 15 (“We will not address arguments on appeal that were not raised in
20 the brief in chief and have not been properly developed for review.”).
21 {66} Next, Defendant argues that the State “personally attacked defense counsel by
22 suggesting he was intimidating . . . Y.J., an impermissible personal attack on opposing
48
1 counsel.” Specifically, Defendant takes issue with the State’s comment that, during
2 cross-examination of Y.J., defense counsel asked her if she saw that her father was
3 crying in court. The State then stated that “at some point, the intimidation has got to
4 stop.” While Defendant provides a citation stating that the State’s “personal belief
5 in . . . the competency and honesty of opposing counsel [is] absolutely irrelevant, and
6 ha[s] no place at any time in a courtroom and cannot be stated or implied[,]” State v.
7 Breit, 1996-NMSC-067, ¶ 82, 122 N.M. 655, 930 P.2d 792 (emphasis omitted),
8 Defendant provides no argument or analysis of the actual issue and whether
9 Defendant’s crying was considered intimidating to the children. He merely asserts that
10 the State’s comments of intimidation were prejudicial and, because they were made
11 in the context of rebuttal during closing arguments, Defendant was deprived of any
12 opportunity to confront or contradict the State’s argument. As we have stated several
13 times throughout this Opinion, we will not do Defendant’s work for him and either
14 attempt to develop the substance of his argument or guess what his argument may be.
15 Headley, 2005-NMCA-045, ¶ 15 (“We will not review unclear arguments, or guess
16 at what [a party’s] arguments might be.”). A mere assertion of prejudice is not
17 sufficient to establish prejudice. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121
18 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).
49
1 For this reason, we decline to address whether Defendant’s crying during trial was
2 appropriately considered to be intimidation toward Y.J.
3 VIII. CUMULATIVE ERROR
4 {67} Lastly, Defendant asserts that the cumulative errors present in this case denied
5 Defendant the right to a fair trial and warrant reversal of Defendant’s convictions.
6 “The doctrine of cumulative error requires reversal when a series of lesser
7 improprieties throughout a trial are found, in aggregate, to be so prejudicial that the
8 defendant was deprived of the constitutional right to a fair trial.” State v. Duffy, 1998-
9 NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by
10 Tollardo, 2012-NMSC-008, ¶37 n.6. “The doctrine of cumulative error is to be strictly
11 applied, and cannot be invoked if the record as a whole demonstrates that the
12 defendant received a fair trial.” State v. Samora, 2013-NMSC-038, ¶ 28, 307 P.3d 328
13 (omission, alterations, internal quotation marks, and citation omitted). Defendant has
14 failed to show this Court that his trial was unfair. While we acknowledge in this
15 Opinion there were errors in Defendant’s case, his plain assertion that the “errors in
16 the aggregate were so prejudicial as to deny [Defendant] a fair trial” is not sufficient
17 to establish the truth of this contention on appeal. See In re Ernesto M., Jr., 1996-
18 NMCA-039, ¶ 10 (“An assertion of prejudice is not a showing of prejudice.”). The
19 reversible errors we have addressed in our review do not require retrial and can easily
50
1 be resolved on remand to the district court. For these reasons, we conclude that
2 Defendant failed to establish sufficient prejudice to warrant the grant of a new trial
3 under the doctrine of cumulative error.
4 CONCLUSION
5 {68} For the foregoing reasons, we affirm Defendant’s convictions in part, reverse
6 as to Counts 5, 6, and 7, and remand for further proceedings in order to dismiss one
7 set of the alternative convictions for child abuse by endangerment under Counts 8, 11,
8 14, 15, and 17.
9 {69} IT IS SO ORDERED.
10 _________________________________
11 TIMOTHY L. GARCIA, Judge
12 WE CONCUR:
13 _________________________________
14 MICHAEL D. BUSTAMANTE, Judge
15 _________________________________
16 JONATHAN B. SUTIN, Judge
51