State v. Tafoya

Certiorari Denied, December 23, 2009, No. 32,046

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-010

Filing Date: September 11, 2009

Docket No. 28,019

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ANDRES JOAQUIN TAFOYA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Mark A. Macaron, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM

for Appellee

Billy R. Blackburn
Paul Linnenburger
Albuquerque, NM

for Appellant

OPINION

GARCIA, Judge.

{1} Defendant was convicted of four counts of first degree criminal sexual penetration
of a minor under the age of thirteen (CSPM) in violation of NMSA 1978, Section 30-9-
11(C)(1) (2001) (amended 2007), and two counts of third degree criminal sexual contact of
a minor under the age of thirteen (CSCM) in violation of NMSA 1978, Section 30-9-
13(A)(1) (2001) (amended 2003). Defendant appeals, arguing (1) that his right to due

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process was violated by the lengthy charging period and by the fact that the charges were not
sufficiently specific to provide him with adequate notice and an opportunity to defend
himself, (2) that the district court erred in admitting certain hearsay testimony, (3) that the
district court improperly instructed the jury on several matters, and (4) that prosecutorial
misconduct deprived him of a fair trial. We conclude that the lack of specific factual
information in the indictment and the evidence introduced at trial constitute a violation of
Defendant’s right to due process as to two of the convictions of CSPM. Therefore, we
reverse Defendant’s convictions for one count of vaginal CSPM and one count of anal
CSPM. We conclude that no other reversible errors occurred at trial, and we affirm
Defendant’s remaining convictions.

BACKGROUND

{2} After Defendant’s seven-year-old niece, L.T., told family members that Defendant
had molested her, Defendant was charged with two counts of first degree CSPM for vaginal
penetration, two counts of first degree CSPM for anal penetration, one count of CSCM for
touching L.T.’s genitalia, and one count of CSCM for forcing L.T. to touch his genitalia.

{3} Defendant was alleged to have had regular access to L.T. when she had overnight
visits with her father, who is Defendant’s brother, and when she had weekly visits at her
paternal grandparents’ home. Originally, the charging period for each count of the
indictment began on January 24, 2002 and ran through December 31, 2004. The charges
were based on L.T.’s statements that Defendant had vaginal intercourse with her “lots of
times,” had anal intercourse with her “about [three] times,” touched her genitalia with his
hand “about [ten] times,” and made her touch his penis “about [four] times.” Defendant
moved for a bill of particulars, and the State narrowed the time frame to the period beginning
September 30, 2002 and ending December 26, 2004—a period of twenty-seven months.
Despite the more limited time frame, Defendant moved to dismiss, arguing that both the
length of the charging period and the lack of factual specificity in the charges violated his
right to due process. Eventually, after the State conducted further interviews with L.T., the
district court issued an order clarifying that the factual bases for the charges were four
specific incidents that the parties referred to as the “Hooter’s incident,” the “Rash incident,”
the “Mouth-Covering incident,” and the “Last Time or Christmastime incident.” Two other
specific incidents previously identified by L.T.—the “First Time incident” and the “Camping
incident”—were not identified as charging offenses in this case, since the First Time incident
was outside of the stated charging period and the Camping incident occurred outside of
Bernalillo County. The district court’s order indicated L.T. did not specify the type of act
that occurred during each of the four charged incidents and the State’s theory was that there
were progressive acts of CSCM and CSPM that occurred at each incident. The district court
noted that “since specific incidents have been identified, it would be appropriate for the State
to elicit evidence or testimony about [D]efendant’s acts, number of acts and/[or] combination
of acts which are alleged to [have been] committed during these specified incidents.”

{4} At trial, L.T. described the Hooter’s incident as an act of CSCM based on her

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testimony that Defendant “touched” her “private parts” with his “whole hand.” L.T. testified
that the Mouth-Covering incident involved Defendant “touch[ing]” her. L.T. did not testify
about a specific incident that gave her a rash, although she did testify that Defendant’s acts
of touching her with his hand, touching her with his penis, and rubbing his penis against her
butt generally made her feel like she either had or might get a rash. As to the Christmastime
incident, L.T.’s testimony indicated that Defendant did something to her that she did not like,
but she did not specify what the act was. L.T. did not indicate that any of the four specific
incidents began with an act of CSCM and progressed to an act of CSPM, as had been
previously posited by the State. Therefore, there was no evidence at trial that any of the four
specific incidents designated in the district court’s order involved an act of CSPM.

{5} The prosecution did elicit testimony at trial from L.T. that Defendant engaged in a
non-specific course of conduct involving both vaginal and anal CSPM: L.T. testified that
Defendant would “touch” her “private” with his “private” and that when he did this “[i]t just
keeps going up and up and it hurts real bad” and that this happened “[l]ots of times.” L.T.
also stated that “sometimes [Defendant] would stick [his private] inside . . . my butt” and that
he did this “more than one time.” Several other witnesses testified about statements L.T. had
made to them regarding the abuse, but this testimony did not add any information about the
specific incidents of abuse.

{6} The jury found Defendant guilty on all six charges. Defendant appeals.

DISCUSSION

The Length of the Charging Period in the Indictment and the Bill of Particulars

{7} Defendant argues that the extended charging period violated his right to due process.
We review this legal argument de novo. See N.M. Bd. of Veterinary Med. v. Riegger,
2007-NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947 (“We review questions of constitutional
law and constitutional rights, such as due process protections, de novo.”).

{8} In State v. Baldonado, 1998-NMCA-040, ¶ 26, 124 N.M. 745, 955 P.2d 214, this
Court explained that we assess the constitutionality of the length of a charging period by
balancing whether the state reasonably narrowed the time frame of the indictment against
any prejudice the defendant has suffered as a result of the time frame chosen by the state.
We provided a list of nine nonexclusive factors to be used in applying this test. These are:

1. The age and intelligence of the victim and other witnesses, and their
ability to particularize the date and time of the alleged offense;

2. The surrounding circumstances; including whether a continuing
course of conduct is alleged, as opposed to a relatively few, discrete or
isolated events;

3. The extent to which [the] defendant had frequent, unsupervised
access to the victim;

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 4. The nature of the offense, including whether it is likely to occur at a
specific time or is likely to have been discovered immediately;

5. The length of the alleged period of time in relation to the number of
individual criminal acts alleged;

6. The length of time asserted in the indictment;

7. The passage of time between the period alleged for the crime and the
time the abuse was asserted and/or the time [the] defendant was arrested
and/or indicted;

8. The extent and thoroughness of the [s]tate’s efforts to narrow the time
frame; and

9. Whether the defendant can assert a plausible alibi defense.

Id. ¶ 27. Although we stated that the two-year charging period in Baldonado “approach[ed]
the outer edges of constitutional propriety,” we declined to hold that it was too long as a
matter of law because “[i]t is possible that a two-year period, or larger, may be the most
narrow time frame the prosecutor can be required to muster in an appropriate case.” Id. ¶
23.

{9} In this case, the charging period was originally thirty-five months. After Defendant
moved for a bill of particulars, the district court directed the State to attempt to narrow the
charging period. After meeting with L.T. and her mother, the State narrowed the charging
period to approximately twenty-seven months. The State made additional efforts to narrow
the time frame even further. The State amended the bill of particulars to add details about
the first time and the last time the abuse occurred but ultimately concluded that “[t]he State
believes L.T. was molested on a continuous basis between the time frame of September 30,
2002 through December 20, 2004. Even though the State can narrow down the overnight
visits [that L.T. had with her father], the State believes several acts of sexual abuse occurred
during the day at her grandparent[s’] home.”

{10} Defendant moved to dismiss pursuant to Baldonado. The district court issued a
detailed order denying Defendant’s motion. The district court weighed the reasonableness
of the State’s efforts to narrow the charging period against the potential prejudice to
Defendant caused by the State’s twenty-seven-month time frame. In doing so, it focused on
most of the Baldonado factors. The district court noted that: (1) the crimes were alleged to
have occurred while L.T. was between the ages of five and seven, and although L.T. was
apparently of sound intelligence for her age, it was clear from the multiple interviews with
L.T. that she did not have the capacity to provide more particular dates or time periods for
the alleged incidents; (2) the alleged incidents occurred on a continuous basis and were not
just a few isolated events; (3) although the extent to which Defendant had frequent and
unsupervised access to L.T. was disputed, it was not disputed that he was often present in
the same residence as L.T. during the daytime and overnight; (4) the nature of the charged
offenses was such that they did not occur in the presence of other witnesses, and because

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L.T. suffered no physical injury in this case, the alleged offenses were not of the sort that
was likely to be discovered immediately; and (5) according to L.T.’s statements that
Defendant had vaginal intercourse with her “lots of times,” had anal intercourse with her
“about three times,” touched her genitalia with his hand “about ten times,” and made her
touch his penis “about four times,” L.T. was abused a total of seventeen times. If each
incident of abuse occurred at separate times, then the events occurred approximately once
every 1.64 months. If the events occurred in combination, then they occurred less
frequently.

{11} The district court noted other Baldonado factors as well. The length of time in the
indictment was originally three years but had been narrowed to approximately twenty-eight
months. The State engaged in a thorough attempt to narrow the time frame, and it appeared
that L.T. was unable to identify more specific dates or otherwise further reduce the charging
period. There were no other available means by which the State could obtain information
about when the events occurred. Defendant’s claim of prejudice was based on his proposed
alibi defense, but his evidence of an alibi—such as bank records, cell phone records,
employment records, and vacation records—would all require extremely narrow time frames
such as specific dates in order to be effective. Given L.T.’s limited capabilities and the
evidence about how often Defendant might have had access to L.T., the State’s evidence did
not lend itself to an alibi defense. In weighing these factors, the district court found that the
State could not reasonably have provided greater specificity in the charging period and that
Defendant failed to demonstrate that he was prejudiced by the lengthy indictment period
more than any other defendant in a child sex abuse case “because in almost all such cases
the young child does not have the capacity to specify particular dates and times of the
alleged sexual abuse.”

{12} Although the revised charging period was lengthy, we agree with the district court’s
conclusion that the State demonstrated it had done everything it reasonably could have done
to narrow the charging period and that Defendant was not unduly prejudiced. See State v.
Ervin, 2002-NMCA-012, ¶ 13, 131 N.M. 640, 41 P.3d 908 (filed 2001) (indicating that the
burden is on the state to establish that it could not have provided greater specificity as to the
time of the alleged offenses). After Defendant moved for a bill of particulars, the State re-
interviewed L.T. and her mother, and interviewed L.T.’s father in an effort to obtain more
specific dates. As a result of these interviews, the State was able to reduce the original
charging period by eight months, to approximately twenty-seven months. The State then
consulted with a forensic interviewer in order to develop more appropriate questions to ask
L.T. at another interview. However, at the subsequent interview, L.T. was still unable to
provide details that would have permitted the State to narrow the charging period. As L.T.
was the only witness to the crimes, we cannot see how the State could have found additional
information that would have narrowed the time period further. Defendant suggests that the
State should have examined school records and medical records, and followed up with other
witnesses such as L.T.’s grandparents and other relatives. Defendant does not explain,
however, how such avenues of investigation would have produced a narrower time frame.
L.T. was the only person present when Defendant committed the offenses, and there was no
evidence that her grades went down at the time of the offenses or that she obtained medical
treatment as a consequence of the offenses. Therefore, we do not agree that the State was
required to pursue these sources of information.

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{13} Defendant also claims that the State should have limited the charging period to the
specific visitation days scheduled at L.T.’s father’s home and at her paternal grandparents’
home. Although we note that the State did provide guidance in an attachment to its bill of
particulars as to when some of the visits occurred between September 30, 2004 and
December 26, 2004, this information was obtained from L.T.’s mother, and she did not have
records of other visitation dates. In light of the fact that the abuse was alleged to have
occurred on an ongoing basis for more than two years prior to these specific dates, the State
would not be required to limit the charging period to these specific dates. In addition,
witnesses testified that both the overnight weekend visits with L.T.’s father and the weekday
visits with her grandparents did not occur on a fixed schedule but changed regularly.
Therefore, it appears that the State could not have reconstructed the visitation schedule to
arrive at more particular dates within the charging period.

{14} Defendant asserts that the prejudice he suffered as a result of the lengthy charging
period was “real and substantial.” Applying three of the Baldonado factors, he argues that
the charging period is facially unreasonable, that the charges were for a few discrete
incidents within that lengthy period, and that if the period had been shorter he could have
used his employment records, school records, bank records, and phone records to provide
an alibi defense. See Baldonado, 1998-NMCA-040, ¶ 27. We conclude that the charging
period was not unreasonable under Baldonado.

{15} First, Defendant’s argument that the charges arise from a few discrete incidents is not
accurate or persuasive. The district court’s order specifically stated that the two CSCM
charges were not for specific incidents but were for a continuing pattern of conduct. As we
discuss later in this opinion, the evidence submitted regarding the CSPM charges also
described an ongoing pattern of conduct, not a few discrete incidents. Therefore, this
Baldonado factor does not weigh in Defendant’s favor.

{16} Second, Defendant’s desire to present an alibi defense is one of the factors to
consider. Id. ¶ 29. The State is not required to “rely only on evidence that lends itself to an
alibi defense.” Id. (internal quotation marks and citation omitted). Furthermore, Defendant
is unable to adequately demonstrate on appeal that he was deprived of the ability to present
an alibi defense. Defendant asserts that he possessed relevant records covering the entire
charging period. However, at trial, he introduced only a sample of such records that he
characterized as “representative.” These representative records have not been designated
as part of the record for review on appeal. See Rule 12-212 NMRA (governing the
designation of exhibits on appeal). Because neither the actual nor the representative records
are before us, Defendant is unable to show this Court that he would have been able to
establish a plausible alibi defense for any of the time periods he was around L.T. Without
these records, we cannot review the district court’s determination that Defendant was not
prejudiced by the failure to shorten the charging period to fit his alibi defense. See
Baldonado, 1998-NMCA-040, ¶ 32 (noting that the defendant, who had regular access to the
victim, was likely not prejudiced by the two-year charging period in part because even “if
the district court determines that, say, a one-month or three-month period would have been
adequate, then it is unclear that [the defendant] could have had any evidence available to
establish his absence from [the place where the victim was] during that entire period of
time”); State v. Wilcox, 808 P.2d 1028, 1033-34 (Utah 1991) (noting that a defendant who

6
had regular contact with the victim was not prejudiced by the length of the charging period
because “[t]his is not a situation in which the lack of specificity compromise[d] the defense,
as it would if [the defendant] had contact with the child only once or twice, so that specific
dates and times were critical”).

{17} While one of the Baldonado factors for measuring prejudice is the length of the
charging period, 1998-NMCA-040, ¶ 27, a fair reading of Baldonado indicates that a long
charging period does not itself constitute prejudice. Id. ¶ 23 (declining to adopt a rule that
a certain period of time is a per se violation of due process, since it is possible that a lengthy
period is “the most narrow time frame the prosecutor can be required to muster”); see Ervin,
2002-NMCA-012, ¶¶ 10, 21 (rejecting an argument that there should be a presumption that
extended charging periods violate due process and accepting a time frame limited to when
the defendant had ongoing access to the child). The analysis of prejudice is both predicated
upon, and distinct from, a conclusion that the charging period is overly broad. See
Baldonado, 1998-NMCA-040, ¶ 32.

{18} In this case, the State’s efforts at narrowing the charging period were prompted by
the seriousness with which the district court took its responsibility to diligently protect the
due process rights of Defendant. See Ervin, 2002-NMCA-012, ¶ 7. The district court was
required to make additional efforts to ensure that it was “satisfied that [relevant] sources of
information ha[d] been exhausted,” prior to making its determination of whether the State
had made reasonable efforts to narrow the time frame. Baldonado, 1998-NMCA-040, ¶ 28
(internal quotation marks and citation omitted). We agree that the district court struck a
proper balance in weighing the reasonableness of the State’s extensive efforts against the
potential prejudice to Defendant arising from the lengthy charging period. Given the
specific facts in this case, the revised twenty-seven-month charging period did not violate
Defendant’s right to due process.

The Lack of Factual Specificity in the Charges and in the Evidence at Trial

{19} Defendant argues that his due process rights were also violated because of the
“State’s failure to allege sufficient facts to provide [Defendant] with notice as to [the]
specific acts [with which] he was charged.” After the State filed its bill of particulars and
after the district court required the State to make additional efforts to link the charges to
specific events, the district court determined that the four counts of CSPM were intended to
charge distinct events that each occurred “more than once” during the charging period,
whereas the two counts of CSCM were intended to “charge continuing acts of . . . Defendant
throughout the charging period.” The district court concluded that the charging techniques
were permissible pursuant to State v. Altgilbers, 109 N.M. 453, 466, 786 P.2d 680, 693 (Ct.
App. 1989), which provides the State with the discretion to charge a single count for an
ongoing pattern of conduct, to charge separate counts for each incident that occurred within
that pattern of conduct, or to select a few of the incidents to charge. The district court
ordered that during trial all the CSPM acts should be linked in some way to the four specific
incidents identified in the May 12, 2006 order entered prior to trial. At trial, however, L.T.
only testified about acts of CSCM, which involved Defendant’s touching her, during the four
specific incidents. All her testimony about vaginal CSPM, anal CSPM, and CSCM during
which Defendant made L.T. touch his penis was described through non-specific testimony

7
elicited as an ongoing pattern of conduct. L.T. described typical patterns of each of these
types of abuse and then stated that the abuse occurred more than once or lots of times.

{20} Defendant relies primarily on State v. Dominguez, 2008-NMCA-029, 143 N.M. 549,
178 P.3d 834 (filed 2007), cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 672,
and State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct. App. 1974), in support of his argument
that the lack of factual specificity in the charging documents and the evidence requires a
reversal of his convictions for all six charges. Like Baldonado, Dominguez addressed a due
process violation for the state’s failure to provide adequate notice of the charges and to
provide the defendant with an adequate basis on which to defend himself. 2008-NMCA-029,
¶ 1. However, Dominguez differs from Baldonado, since it was not the length of the ten-
week charging period that was at issue but rather the failure of the state to provide any
identifying characteristics that would differentiate one charged count from another and
protect the defendant from the possibility of double jeopardy. Dominquez, 2008-NMCA-
029, ¶¶ 6, 10. We review Defendant’s additional due process claim under Dominguez de
novo. See id. ¶ 5.

{21} In Dominguez, this Court affirmed the dismissal of those indistinguishable counts of
an indictment that were based on the victim’s statements that the same type of abusive
behaviors were repeated over a period of time. Id. ¶¶ 7, 10-11. The state was able to
proceed with prosecution of those acts for which it was able to provide a factually distinct
basis. Id. ¶¶ 10-11. As to the five dismissed charges, this Court held that it would have
violated the defendant’s due process rights to have to defend against the five carbon-copy
counts when the state was unable to provide facts that would distinguish any one of the
incidents from another. Id. Relying on the Sixth Circuit Court of Appeals reasoning in
Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), we stated that the indictment was
defective because it “provided the defendant with little ability to defend himself since the
counts were not anchored to particular offenses.” Dominguez, 2008-NMCA-029, ¶ 8
(internal quotation marks and citation omitted). “[I]t would have been impossible for the
jury to conclude that the defendant was guilty of some of the offenses, but not others . . .
because the criminal counts were not connected to distinguishable incidents.” Id. (internal
quotation marks and citation omitted). Therefore, Dominguez stands for the proposition that
even if a charging period is constitutionally appropriate under Baldonado, the charges may
still violate a defendant’s right to due process and double jeopardy when they are factually
indistinguishable.

{22} In the present case, Defendant’s Dominguez argument is somewhat misapplied. In
Dominguez, all of the charges were exactly the same in that each charged an act of CSCM
by the same means, on the same victim, and within the same date range. See id. ¶ 2. Here,
all of the charges in the indictment were for acts that occurred with the same victim and
within the same date range. However, the remaining characteristics were different. It is
clear that the one count of CSCM for Defendant’s act of touching L.T.’s genitalia is different
from the second count of CSCM that is based on Defendant forcing L.T. to touch his
genitalia. Furthermore, the charges of vaginal CSPM and anal CSPM are distinguishable
from one another because they are factually distinct acts. Therefore, Defendant’s
Dominguez argument would apply only to the two indistinguishable counts of vaginal CSPM
in the indictment and the two indistinguishable counts of anal CSPM in the indictment.

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{23} The State argues that the two counts of vaginal CSPM are in fact distinguishable
because Count 1 for vaginal CSPM was intended to be a single count for a pattern of conduct
of penetrating L.T.’s vulva and Count 2 for vaginal CSPM was intended to be a single count
for a pattern of penetrating L.T.’s vaginal canal. This argument is not supported by the
indictments, the evidence at trial, or by the record. In particular, such a distinction cannot
be made where the jury instructions were the same for both Count 1 and Count 2. These
instructions permitted the jury to find Defendant guilty if he “caused the insertion to any
extent, of a penis into the vagina and/or vulva” of L.T.

{24} We agree with Defendant that, as in Dominguez, the two undifferentiated counts of
vaginal CSPM and the two undifferentiated counts of anal CSPM ultimately violated
Defendant’s right to due process. Although the State factually alleged that these CSPM
charges arose out of one of the four distinguishable incidents, the evidence at trial did not
support this allegation. At trial, L.T. only described a pattern of vaginal CSPM and a pattern
of anal CSPM and then said that each happened lots of times, without relating any act to a
specific incident. As a result, due process will only permit Defendant to be convicted of a
single count of vaginal CSPM and a single count of anal CSPM for each pattern of conduct.
See Valentine, 395 F.3d at 637 (holding that due process permitted the affirmance of single
convictions for a pattern of conduct of each type of sexual abuse charged, but that the
convictions for the remaining indistinguishable counts as to each type must be vacated); see
also State v. Gardner, 2003-NMCA-107, ¶ 28, 134 N.M. 294, 76 P.3d 47 (holding that
allegations of the two victims supported a single count of CSCM against each victim for a
pattern of conduct when they described “a continuing course of conduct under circumstances
where [the defendant] . . . had frequent but unpredictable access to [the victims] such that
the alleged contact occurred continuously and randomly”). We therefore reverse one of
Defendant’s convictions for vaginal CSPM and one of Defendant’s convictions for anal
CSPM. There was no due process violation in the single remaining count of vaginal CSPM
and the single remaining count of anal CSPM based upon the evidence presented at trial
establishing a pattern of CSPM conduct during the charging period for which Defendant had
notice and an opportunity to defend. See Valentine, 395 F.3d at 637.

{25} This case is also different from Dominguez because in Dominguez, the district court
dismissed several of the charges prior to trial due to the state’s inability to differentiate the
indistinguishable charges in its bill of particulars. Here, the State argues that any
insufficiency in the indictment was cured by the district court’s later order that the counts
were supported by the four particular incidents and the fact that the district court indicated
that each incident included at least one act of CSCM and one act of CSPM. However, at
trial, the testimony established that only acts of CSCM occurred at the Hooter’s incident and
the Mouth-Covering incident. The State did not elicit testimony specifying what happened
during the Christmastime incident or describing a particular occurrence that could be
identified as the Rash incident. Therefore, any adequate notice of the four CSPM charges
that may have been satisfied by the State’s bill of particulars and the district court’s order
was undermined by the evidence at trial. The State’s evidence was only sufficient to prove
one undifferentiated count of vaginal CSPM and one undifferentiated count of anal CSPM.
Ultimately, it is the evidence admitted at trial that must be reevaluated by the district court
to determine whether a criminal charge is sufficient to satisfy the due process requirements
under Dominguez.

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{26} Finally, Defendant asserts that Foster requires reversal of all six of his convictions.
In Foster, the defendant was indicted for one count of sodomy that was alleged to have
occurred “[o]n or about August, 1973.” 87 N.M. at 157, 530 P.2d at 951 (internal quotation
marks omitted). At trial, the victim testified that one act of sodomy by fellatio happened
toward the end of August, that a second such act occurred about a week after that, and that
a third act occurred about a month later. Id. The victim’s guardian also testified about the
third act. Id. The defendant was convicted of the single count of sodomy, and on appeal,
this Court held that the defendant was denied his right to fair notice of the crime charged so
as to be able to prepare his defense. Id. at 157-58, 530 P.2d at 951-52. The evidence
established three distinct acts of sodomy, and it was unclear from the charges whether the
defendant was being tried and ultimately convicted by the jury of the first, second, or third
act. We held that the “[f]ailure to charge the defendant with a specific act or specific acts
violate[d] his right to be informed of the charges against him and denie[d] him due process
of law” under the Sixth and Fourteenth Amendments of the Federal Constitution. Id. at 157,
530 P.2d at 951.

{27} As with Defendant’s Dominguez argument, Defendant’s contention under Foster is
somewhat unclear. Defendant asserts generally that he is entitled to sufficient notice of the
crimes charged in order to prepare a defense. Like the defendant in Foster, Defendant
asserts that he “now sits in prison, entirely unable to determine for which acts he has been
convicted,” and that he would not be able to “plead prior jeopardy in a subsequent trial.” See
id. at 157-58, 530 P.2d at 951-52. However, Defendant does not provide any analysis of
how he believes the ruling in Foster specifically applies to his convictions. As we explain
below, we conclude that Foster does not require reversal of any of Defendant’s convictions.

{28} Defendant was on notice that the two acts of CSCM were charged as continuing
patterns of conduct based on multiple events within the specific charging period, and that
the four acts of CSPM were based on multiple events within the same charging period. See
State v. Salazar, 1997-NMCA-043, ¶ 11, 123 N.M. 347, 940 P.2d 195 (distinguishing Foster
because the defendant had notice of a specific date on which the crime was alleged to have
occurred and was aware of the evidence that he had two different guns on school property,
even though he was charged with only one offense of unlawfully carrying a gun on school
grounds). Therefore, Foster is distinguishable regarding its application to the charging
period in this case.

{29} Furthermore, since Foster, we have repeatedly affirmed the principle that multiple
incidents may be charged as a single count. See, e.g., Altgilbers, 109 N.M. at 465, 786 P.2d
at 692 (explaining that the state may charge one count for multiple acts); State v. Gurule, 90
N.M. 87, 91-92, 559 P.2d 1214, 1218-19 (Ct. App. 1977) (holding that when the defendant
was aware of seventeen specific incidents in which he was alleged to have unlawfully caused
payments to be made from public funds, there was no due process violation under Foster,
since the defendant was aware that any one of these acts could have formed the basis of the
single count in the indictment). We have also held that a general pattern of criminal conduct
may be charged as a single count when the state does not have specific evidence that would
clearly distinguish the multiple acts. Gardner, 2003-NMCA-107, ¶¶ 28, 33, 38 (recognizing
that evidence of a general pattern of conduct as to two separate victims supported two counts
of CSCM).

10
{30} This Court has held that when the state chooses to use a broad charging period, it will
not be able to use any incidents of the same type of acts as those charged within that
charging period as the basis for a subsequent prosecution. State v. Martinez, 2007-NMCA-
160, ¶ 14, 143 N.M. 96, 173 P.3d 18 (holding that when the state charged the defendant with
five counts of CSPM within a four-month period, the defendant’s plea acted as a bar to
prosecution for other similar acts occurring during that time period), cert. denied, 2007-
NMCERT-011, 143 N.M. 156, 173 P.3d 763; Altgilbers, 109 N.M. at 468, 786 P.2d at 695
(“Because of the scope of the indictment in this case, the state would not be permitted in the
future to charge [the] defendant with any sexual offenses involving his two children during
the time encompassed by the counts in the indictment.”). Therefore, a defendant is put on
notice that a number of different acts within the charging period may form the basis of the
alleged counts against him. A defendant’s distinguishable charges may be based on various
distinct incidents or may be based on a general allegation of wrongful conduct that
continually occurred. In this case, Defendant was put on notice of the distinct incidents
alleged and that the charges were based on a continuing course of conduct. Where notice
of the distinguishable charges complied with these requirements for the defined charging
period, Foster does not require reversal of Defendant’s convictions.

The Nurse’s Hearsay Testimony About the Child’s Statements

{31} At trial, Rosella Vialpando, a nurse who examined L.T., testified about statements
L.T. had made to her. Nurse Vialpando testified that L.T. told her that Defendant touched
her more than one time with his private, that he touched her butt with his private, and that
he made her touch his private with her hands. The district court determined that the
statements were admissible under Rule 11-803(D) NMRA as an exception to the hearsay
rule. Relying on State v. Ortega, 2008-NMCA-001, 143 N.M. 261, 175 P.3d 929 (filed
2007), cert. denied, 2007-NMCERT-012, 143 N.M. 213, 175 P.3d 307, Defendant argues
that the district court erred in admitting L.T.’s statements to Nurse Vialpando under Rule
11-803(D), which provides an exception to the rule against hearsay when statements are
made for the purpose of medical diagnosis or treatment. The State argues that we need not
consider Defendant’s argument and asserts that the statements were not hearsay and were
properly admitted, not for the purpose of proving that L.T. was in fact abused in the manner
she described to Nurse Vialpando, but in order to explain why Nurse Vialpando performed
the sort of examination that she did. See State v. Paiz, 2006-NMCA-144, ¶ 40, 140 N.M.
815, 149 P.3d 579 (holding that statements made to a physician were not hearsay because
they were not offered to prove the content of the statements, but to explain the context of the
examination). We review the admission of this evidence for an abuse of discretion. See
State v. Sanchez, 2008-NMSC-066, ¶ 12, 145 N.M. 311, 198 P.3d 337.

{32} We must first determine whether the right for any reason doctrine applies to Nurse
Vialpando’s statements. The district court did not accept the State’s argument that Nurse
Vialpando’s statements were not hearsay. This Court may affirm on a basis not relied upon
by the district court if doing so would be fair to the appellant. State v. Gallegos,
2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (stating that an appellate court will
affirm a district court’s decision if it is right for any reason, so long as it is not unfair to the
appellant). In this case, it is unfair to Defendant if this Court relies on the State’s new
argument supporting affirmance. When evidence is introduced for a limited purpose, a party

11
may request an instruction that the jury only consider the evidence for that purpose. See
Rule 11-105 NMRA (“When evidence which is admissible . . . for one purpose but not
admissible . . . for another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.”). Defendant did not have the
opportunity to request a limiting instruction. The district court’s ruling was based on an
assumption that the testimony was in fact hearsay and offered for the truth of the matter
asserted. It would be unfair to now apply the right for any reason doctrine when Defendant
was deprived of his opportunity to request a limiting instruction at trial. The record supports
this determination. In its closing argument, the State relied upon the truth of L.T.’s
statements that were made to Nurse Vialpando during the examination to establish
substantive evidence of penetration. Accordingly, we decline to affirm on this basis, and we
will assume that the statements were in fact hearsay in order to consider whether the district
court erred in admitting the testimony pursuant to Rule 11-803(D).

{33} Rule 11-803(D) provides that “[s]tatements made for purposes of medical diagnosis
or treatment and describing medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment” are not excluded by the rule against hearsay,
even if the declarant is available as a witness. In Ortega, this Court held that statements
made to a Sexual Assault Nurse Examiner (SANE nurse) do not fall within the exception
provided under Rule 11-803(D) because the role of a SANE nurse is primarily to collect
evidence for law enforcement purposes and not primarily to diagnose or treat medical
conditions. Ortega, 2008-NMCA-001, ¶¶ 16-27. In State v. Mendez, 2009-NMCA-060, ¶¶
1-3, 146 N.M. 409, 211 P.3d 206, cert. granted, 2009-NMCERT-006, __ N.M. __, 215 P.3d
43, we applied Ortega in a situation where the victim was available to testify and the
defendant’s confrontation rights were not at issue.

{34} In Mendez, as in Ortega, this Court relied heavily on facts indicating that the purpose
of a SANE examination was to collect evidence for use in prosecuting the alleged
perpetrator. We noted that the SANE examination occurred after the child had already been
taken to a pediatric nurse for an examination, that a police officer was present for the
interview portion of the SANE examination, that the victim’s mother was presented with a
form authorizing the release of the results of the examination to the state police, and that the
victim’s mother signed a form in which she acknowledged that a SANE examination is not
a routine medical examination and that the SANE nurse could not be held responsible for
identifying, diagnosing, or treating new or existing medical problems. Mendez, 2009-
NMCA-060, ¶¶ 23-27.

{35} The present case is distinguishable from the factual circumstances in Mendez. The
evidence does not suggest that the examination was a SANE examination performed
primarily for law enforcement purposes. Nurse Vialpando testified that she is a family nurse
practitioner and that as such she does “pretty much what a primary care doctor does.” She
stated that she is trained to assess, diagnose, and treat acute and chronic illnesses. Nurse
Vialpando stated that she works at a pediatric specialty clinic at the University of New
Mexico called Para Los Niños and that the clinic sees children and adolescents who have
been brought in because of a concern about sexual abuse. She stated that in this case, L.T.’s
mother brought L.T. in for the examination. Nurse Vialpando talked to L.T. about why she

12
was there, listened to L.T.’s description of what happened, and then performed an
examination of L.T.’s genital and anal areas.

{36} In this case, unlike the circumstances in Mendez, there was no evidence that L.T. had
already had a pediatric examination prior to her examination at Para Los Niños. Unlike
Mendez, there was no testimony that law enforcement instigated, was present for, or was
otherwise involved with L.T.’s examination. Although Nurse Vialpando stated that she was
obligated to report suspicion of sexual or physical abuse to the state Children, Youth and
Families Department (CYFD), she indicated that this is a mandatory obligation imposed by
law upon all teachers, doctors, nurses, and others who work with children. See NMSA 1978,
§ 32A-4-3(A) (2005) (placing a duty on “[e]very person . . . who knows or has a reasonable
suspicion that a child is an abused or neglected child [to] report the matter immediately” to
the police, CYFD, or other authorities). Nurse Vialpando testified that when she teaches at
a nurse practitioner program, she informs students “how to access law enforcement.” A
comment indicating that a health care provider might fulfill her statutory duty to report
evidence of a crime against a child to the police does not alone transform that health care
practitioner’s medical examination into a forensic investigation. Defendant points out that
Nurse Vialpando testified that when a person has reported being sexually abused within the
prior seventy-two hours, Nurse Vialpando will perform a rape kit to swab for physical
evidence and that this kit is then sent to law enforcement. While we agree with Defendant
that providing this evidence to the police is not part of either the diagnosis or treatment of
any medical disorder, there was no evidence in this case that Nurse Vialpando performed a
rape kit or that she provided other evidence to the police. We are unwilling to conclude that
because Nurse Vialpando sometimes provides evidence to the police after an examination,
L.T.’s pediatric examination was for forensic law enforcement purposes rather than medical
purposes. As the evidence presented does not indicate that this examination falls within the
law enforcement parameters announced in Mendez and Ortega, we hold that the district court
did not err in admitting Nurse Vialpando’s testimony under Rule 11-803(D).

The Judge’s Statement in Response to a Juror’s Question About Facts Not in
Evidence

{37} Prior to trial, Defendant filed a motion seeking a psychological evaluation of L.T.
The district court denied Defendant’s motion. At trial, Defendant presented expert testimony
about false reporting of child sexual abuse and about the need to psychologically evaluate
a child who makes a claim of abuse in order to minimize the possibility of such false
reporting. A juror submitted a written question to the court, asking whether L.T. had ever
been psychologically evaluated. The district court informed the jury that “since June 6,
2006, any issues related to testing and/or evaluations if any have been subject to the
jurisdiction of the [c]ourt.” The court instructed the jury “not to speculate regarding the
existence or nonexistence of testing and/or evaluations.” Defendant contends that his
convictions should be reversed because the district court’s statement that the issues related
to evaluation and testing were subject to the court’s jurisdiction constituted an improper
instruction to the jury.

{38} Although Defendant relies on authority stating that reversal is required when a
district court incorrectly instructs the jury on the elements of an offense, see State v. Ellis,

13
2008-NMSC-032, ¶¶ 11-13, 144 N.M. 253, 186 P.3d 245; State v. Sutphin, 2007-NMSC-
045, ¶ 19, 142 N.M. 191, 164 P.3d 72, Defendant is not challenging an instruction on the
elements of an offense. Therefore, we conclude that these authorities are inapplicable. In
fact, Defendant does not challenge the district court’s statement of the law at all. Instead,
he argues that the instruction was factually incorrect because it was not true that all issues
relating to testing and evaluations of L.T. were subject to the district court’s prior order.
Defendant points out that the order only prevented Defendant from having L.T. evaluated
and that the State would have been free to evaluate L.T. if it had wished. We do not agree
with Defendant. The district court’s statement did not communicate anything to the jury
about whether either party was permitted to or forbidden from interviewing L.T. However,
to the extent that the district court’s statement could be considered a statement of fact about
which parties were controlled by its pretrial order, Defendant has cited no authority that the
district court’s incorrect factual statement warrants an automatic reversal. We therefore
assume that no such authority exists. See In re Adoption of Doe, 100 N.M. 764, 765, 676
P.2d 1329, 1330 (1984). Furthermore, Defendant has not explained how he was prejudiced
by the statement, and in the absence of prejudice, we decline to reverse. See State v.
Romero, 2009-NMCA-012, ¶ 9, 145 N.M. 594, 203 P.3d 125 (filed 2008) (“For error to be
reversible, it must be prejudicial.” (internal quotation marks and citation omitted))

{39} Defendant’s second argument asserts that the district court’s response to the jury
question and accompanying instruction implied that the court had determined that L.T. did
not need to be psychologically evaluated. We disagree. In context, the district court simply
instructed the jurors that they should not speculate about whether any evaluation had or had
not been performed. This instruction informed jurors that they should not speculate since
there was no evidence presented one way or the other. As this is a correct statement of the
law, see UJI 14-101 NMRA (stating that jurors “must decide the case solely upon the
evidence received in court”), we hold that the district court did not err in so instructing the
jury. See State v. Lucero, 110 N.M. 50, 52, 791 P.2d 804, 806 (Ct. App. 1990) (“Instructions
are sufficient if, when considered as a whole, they fairly present the issues and the applicable
law.”).

The Jury Instructions on Criminal Sexual Penetration

{40} After the close of evidence, Defendant submitted a proposed jury instruction on the
elements of CSPM. For the two counts of anal CSPM, Defendant’s proposed instruction
stated that the State must prove beyond a reasonable doubt that Defendant caused L.T. to
engage in “anal intercourse,” in addition to the other elements of CSPM. For the two counts
of vaginal CSPM, Defendant’s proposed instruction stated that the State must prove beyond
a reasonable doubt that Defendant caused L.T. to engage in “sexual intercourse,” in addition
to the other elements of CSPM. The district court rejected Defendant’s proposed
instructions and instead instructed the jury that as to anal CSPM, the State must prove
beyond a reasonable doubt that Defendant “caused the insertion to any extent, of a penis into
the anus” of L.T. As to vaginal CSPM, the district court instructed the jury that the State
must prove beyond a reasonable doubt that Defendant “caused the insertion to any extent,
of a penis into the vagina and/or vulva” of L.T. Defendant argues that these instructions
were reversible error because they did not follow New Mexico’s Uniform Jury Instructions
(UJIs) and because the instructions on vaginal CSPM permitted the jury to convict him for

14
acts that only constituted vaginal CSCM. We review the validity of jury instructions de
novo. State v. McClennen, 2008-NMCA-130, ¶ 5, 144 N.M. 878, 192 P.3d 1255.

{41} The general use note to the criminal UJIs provides that “when a uniform instruction
is provided for the elements of a crime, . . . the uniform instruction must be used without
substantive modification or substitution.” UJI-Criminal General Use Note NMRA. It also
provides that when there are alternative instructions, “only the alternative supported by the
evidence in the case may be used.” Id. Defendant contends that the instructions given by
the district court were erroneous because the district court did not use the correct version of
the instruction where two alternatives were provided in UJI 14-957 NMRA. Therefore, we
must determine whether it was error under the general use note to the criminal UJIs to give
the “caused the insertion, to any extent, of [an object]” alternative when the “sexual
intercourse” and “anal intercourse” alternatives were more narrowly tailored to the charges
in this case. The UJIs at issue are intended to reflect the law criminalizing sexual
penetration of a minor as provided in Section 30-9-11. Therefore, we look to that statute to
inform our determination of which of UJI 14-957’s two alternatives should have been given.
See State v. Marshall, 2004-NMCA-104, ¶¶ 7-10, 136 N.M. 240, 96 P.3d 801 (reviewing the
statutory scheme to determine whether the defendant was entitled to his tendered jury
instruction).

{42} The first alternative instruction for the conduct that constitutes CSPM in UJI 14-957
is that the defendant “caused ____ (name of victim) to engage in ____.” Id. (footnotes
omitted). The notes to the instruction indicate that the second blank is to be filled in with
one of the following acts: “‘sexual intercourse’, ‘anal intercourse’, ‘cunnilingus’ or
‘fellatio.’” Id. The notes in UJI 14-957 indicate that the applicable definition of the relevant
act from UJI 14-982 NMRA must be given after the instruction. In UJI 14-982, the
definition of “[s]exual intercourse” is “the penetration of the vagina, the female sex organ,
by the penis, the male sex organ, to any extent.” The definition of “[a]nal intercourse” is
“the penetration of the anus by the penis to any extent.” Id.

{43} The second alternative instruction for the conduct that constitutes CSPM in UJI 14-
957 is that the defendant “caused the insertion, to any extent, of a ____ into the ____ of ____
(name of victim).” (Footnotes omitted.) The notes indicate that the first blank should be
filled in with “the object used.” Id. The second blank should be filled in with either
“vagina,” “penis,” or “anus,” and the applicable definition from UJI 14-981 NMRA must be
given after the instruction. UJI 14-957. In UJI 14-981, the definition of “vagina” is “the
canal or passage for sexual intercourse in the female, extending from the vulva to the neck
of the uterus.” The definition of “anus” is “the opening to the rectum.” Id.

{44} We agree with Defendant that the district court erred in submitting the second
alternative “insertion, to any extent” instructions to the jury for the four counts of CSPM in
this case. The use notes to UJI 14-957’s second alternative indicate that the “object” used
to accomplish the penetration should be listed in the instruction. In this case, the “object”
that was used was Defendant’s penis. We agree with Defendant that an “object” would be
something other than a penis as that term is used in Section 30-9-11(A). Section 30-9-11(A)
indicates that CSPM may be committed by “the unlawful and intentional causing of a person
to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of

15
penetration, to any extent and with any object, of the genital or anal openings of another,
whether or not there is any emission.” Sexual intercourse is generally understood to mean
the insertion of a penis into the genital openings of a female. See UJI 14-982. Anal
intercourse is generally understood to mean the insertion of a penis into the anal opening of
another. See id. As such, intercourse involving a penis is already identified under the
statutorily defined categories listed in Section 30-9-11(A) before the additional category of
“any object” is identified. Where Section 30-9-11(A) lists an additional, alternative means
of committing CSPM by including “the causing of penetration, to any extent and with any
object, of the genital or anal openings of another,” the Legislature did not mean to include
conduct involving the insertion of a penis which is already described as the same two acts
under the definitions set forth in UJI 14-982. Such an interpretation would render
superfluous the two key defined terms of “sexual intercourse” and “anal intercourse.” See
State v. Rivera, 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939 (filed 2003) (“A statute
must be construed so that no part of the statute is rendered surplusage or superfluous.”
(internal quotation marks and citation omitted)). Therefore, the second alternative in UJI 14-
957 should not have been used because it was not supported by evidence that L.T.’s genital
or anal openings were penetrated by an “object” other than a penis as that term is properly
used in Section 30-9-11(A). See UJI-Criminal General Use Note. The district court should
have instructed the jury on “sexual intercourse” and “anal intercourse” under the first
alternative in UJI 14-957 and then provided the appropriate definitions under UJI 14-982.

{45} We do not agree with Defendant that the district court’s error in selecting from UJI
14-957’s two alternatives requires automatic reversal. This Court reviews jury instructions
as a whole to determine whether they provide a correct statement of the law. See State v.
Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591 (“A jury instruction is proper,
and nothing more is required, if it fairly and accurately presents the law.”).

{46} The instruction that was given on anal intercourse stated that the jury should find
Defendant guilty if the State proved beyond a reasonable doubt that Defendant “caused the
insertion to any extent, of a penis into the anus of” L.T. As this instruction conveys the same
definition and meaning in the instruction that should have been given—that Defendant
caused L.T. to engage in anal intercourse and that anal intercourse is defined as penetration
of the anus by the penis to any extent—we conclude that this instruction accurately presented
the applicable law. See UJI 14-957; UJI 14-982. Therefore, we hold that any error in the
alternate instruction given on anal intercourse was not reversible error.

{47} We also conclude that the erroneous instructions on vaginal CSPM did not constitute
reversible error. Those instructions stated that the jury should find Defendant guilty of
CSPM if it determined that Defendant “caused the insertion to any extent, of a penis into the
vagina and/or vulva” of L.T. Defendant argues that permitting the jury to convict him for
CSPM for penetration of the vulva was reversible error because the vulva includes the
external parts of the female genitalia and merely penetrating into these external parts, rather
than into the vaginal canal itself, constitutes CSCM rather than CSPM. Defendant’s
argument relies on the assertion that the term “sexual intercourse” in Section 30-9-11(A)
does not include penetration of the vulva, and he contends that even if a penis were an
“object” under the terms of the statute, statutory penetration of the “genital . . . opening[] of
another” includes only the vaginal canal and not the vulva. The State, on the other hand,

16
claims that the UJIs confirm that “the vagina includes the vulva,” and, therefore, penetration
of the vulva constitutes “sexual intercourse” under Section 30-9-11(A).

{48} Although our appellate courts have indirectly recognized that penetration of the vulva
is a basis for a CSPM conviction, the State has not pointed us to any New Mexico authority
expressly deciding that penetration of a vulva with a penis constitutes “sexual intercourse”
for the purposes of CSPM as set forth under Section 30-9-11(A). Cf. State v. Brown, 100
N.M. 726, 729, 676 P.2d 253, 256 (1984) (stating that “[a]ny amount of penetration” with
a penis “is sufficient to complete the crime [of CSP]” but failing to explain what part of the
female genitalia must be penetrated); State v. Ervin, 2008-NMCA-016, ¶¶ 33-36, 143 N.M.
493, 177 P.3d 1067 (filed 2007) (indicating that penetration of the vulva with a tongue is
sufficient evidence of CSPM under the definition of cunnilingus), cert. denied, 2008-
NMCERT-001, __ N.M. __, __ P.3d __; State v. Massengill, 2003-NMCA-024, ¶¶ 36, 41-
42, 133 N.M. 263, 62 P.3d 354 (filed 2002) (reviewing, for sufficiency of the evidence, a
conviction for CSPM based on an instruction to the jury that the defendant “caused the
insertion, to any extent, of a finger into the vulva and/or vagina of [the child]”) (internal
quotation marks and citation omitted); State v. Gomez, 2001-NMCA-080, ¶¶ 23-26, 131
N.M. 118, 33 P.3d 669 (reviewing jury instructions for CSCM and CSPM based on both
touching the exterior of and penetration of the vulva, apparently with a finger). The New
Mexico Supreme Court recognized that our CSP statutes were intended to codify the
common law crime of rape when it established the prohibition against the action of any
person causing another to intentionally engage in unlawful “sexual intercourse.” See State
v. Keyonnie, 91 N.M. 146, 147-48, 571 P.2d 413, 414-15 (1977) (stating that the statutory
offense of CSP was derived from the essential elements of the common law crime of rape).
The common law definition of rape recognizes that penetration of the vulva to any extent
constitutes rape. See, e.g., Commw. v. Nylander, 532 N.E.2d 1223, 1225 (Mass. App. Ct.
1989) (stating that the common law definition of rape required only a “minimum degree of
penetration,” which included penetration of the vulva).

{49} Other state courts have also held that references to “sexual intercourse” or “vaginal
intercourse” in their CSP statutes are intended to include penetration of the vulva, based on
the conclusion that their statutes were intended to reflect the common law crime of rape.
See, e.g., State v. Albert, 750 A.2d 1037, 1043-45 (Conn. 2000) (holding that under
Connecticut’s CSP statute, the term “sexual intercourse” includes penetration of the labia
majora, based on the traditional common law definition of rape); Wilson v. State, 752 A.2d
1250, 1255 (Md. Ct. Spec. App. 2000) (“The use of the term ‘vaginal intercourse’ by [the
Maryland statutory scheme] does not require any penetration, even slight penetration, into
the literal vaginal canal itself. The penetration required remains simply the vulvar
penetration that has always been required to prove common law rape.”); see also James L.
Rigelhaupt, Jr., Annotation, What Constitutes Penetration in Prosecution for Rape or
Statutory Rape, 76 A.L.R.3d 163 § 3, 178-83 (1977) (listing cases which recognize that
penetration of the vulva constitutes rape). We find these authorities persuasive, and
conclude that the term “sexual intercourse” in Section 30-9-11(A) is intended to codify the
common law definitions of rape which includes penetration of the vulva even when the
vaginal canal is not penetrated.

{50} We note that our interpretation of the term “sexual intercourse” is consistent with the

17
other related provisions in Section 30-9-11(A). See Smith v. Ariz. Pub. Serv. Co.,
2003-NMCA-097, ¶ 5, 134 N.M. 202, 75 P.3d 418 (stating that an appellate court will
interpret the provisions of a statute in light of other provisions of the act in order to produce
a “harmonious whole”). The language of the final provision in Section 30-9-11(A) prohibits
the “penetration, to any extent and with any object, of the genital or anal openings of
another.” We rely on the ordinary meaning of the terms “genital” and “opening,” in support
of our interpretation of this statutory language. See State v. Ogden, 118 N.M. 234, 242, 880
P.2d 845, 853 (1994) (“The words of a statute, including terms not statutorily defined,
should be given their ordinary meaning absent clear and express legislative intention to the
contrary.”). The term “genital opening” includes the vulva. Albert, 750 A.2d at 1045-46.
We agree with the detailed analysis of these terms in Albert and conclude that, based upon
the common and ordinary definitions of the words “genital” and “opening,” the vulva
constitutes a genital opening under Section 30-9-11(A).

{51} In light of the historical recognition defining the common law crime of rape and a
proper construction of all of the terms of Section 30-9-11(A), we determine that penetration
of the vulva constitutes “sexual intercourse” under the New Mexico statute. The instruction
given by the district court accurately reflected the statutory law by stating that the jury could
find that Defendant committed CSPM if his penis penetrated either L.T.’s vulva or vagina
to any extent. Any error in the mistaken alternative instruction given by the district court
was harmless and did not constitute reversible error.

{52} We note, however, that our UJIs do not clearly state that penetration of the vulva
constitutes CSP. UJI 14-982 provides that “[s]exual intercourse means the penetration of
the vagina, the female sex organ, by the penis, the male sex organ, to any extent.” The
committee commentary states that the definition of sexual intercourse is the legal definition
of that element of rape. Id. By referring to the common-law crime of rape, the commentary
suggests that the word “vagina” is meant in the broader sense of the female genitalia as
opposed to just the vaginal canal. UJI 14-981 defines “vagina” specifically as the “canal or
passage for sexual intercourse in the female, extending from the vulva to the neck of the
uterus” and goes on to separately define the “vulva” as “the external parts of the female
organ of sexual intercourse” including the “major and minor lips, the clitoris and the opening
of the vagina.” The language that the vagina extends “from the vulva” could be read two
ways. It could be interpreted to mean that the vagina extends from the beginning of the
vulva, thereby including the vulva within the definition of “vagina.” Or, it could be
interpreted to mean that the vagina begins where the vulva ends, thereby excluding the vulva
and, as such, defining “vagina” as the lower vaginal canal to the neck of the uterus. This
second reading of UJI 14-982 in conjunction with UJI 14-981 would suggest that the
uniform jury instructions are in conflict with the statutory definition of sexual intercourse,
since they suggest that sexual intercourse requires penetration of the vaginal canal and is not
achieved by penetration of the vulva alone. As a service to the bar, we believe that UJI 14-
982 would accurately reflect the law if it is modified to provide that “sexual intercourse
means penetration of the vulva or vagina, the female sex organ, by the penis, the male sex
organ, to any extent.” Cf. State v. Mantelli, 2002-NMCA-033, ¶ 48, 131 N.M. 692, 42 P.3d
272 (noting that this Court may call into question the correctness of UJIs that have not been
addressed in an opinion of our Supreme Court and making a suggestion for an appropriate
modification of a UJI). Alternatively, modifying the definition of vagina in UJI 14-981 as

18
“extending from the beginning of the vulva to the neck of the uterus” would effectuate the
same clarification. Id.

The Jury Instructions on Unanimity

{53} Defendant contends that the district court’s instruction on unanimity was insufficient
to actually ensure that the jury was unanimous. Defendant cites no legal authority in support
of this argument in his brief in chief, and we therefore decline to address this argument. See
Rule 12-213(A)(4) NMRA (requiring the brief in chief to contain “an argument which, with
respect to each issue presented, shall contain a statement of the applicable standard of
review, [and] the contentions of the appellant . . . with citations to authorities”); In re
Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (stating that “[i]ssues raised in appellate
briefs which are unsupported by cited authority will not be reviewed by us on appeal,” and
that an appellate court will not do basic legal research for counsel).

The Prosecutor’s Conduct

{54} At trial, the prosecutor made several statements that Defendant contends constituted
misconduct warranting reversal. When an issue of prosecutorial misconduct is preserved by
an objection at trial, we review the district court’s ruling for an abuse of discretion. State
v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (filed 1999). “An isolated,
minor impropriety ordinarily is not sufficient to warrant reversal . . . because a fair trial is
not necessarily a perfect one[.]” Id. (internal quotation marks and citations omitted). If no
objection was raised at trial, we review for fundamental error. Id. “Prosecutorial
misconduct rises to the level of fundamental error when it is so egregious and had such a
persuasive and prejudicial effect on the jury’s verdict that the defendant was deprived of a
fair trial.” Id. (internal quotation marks and citation omitted).

{55} On cross-examination of Defendant’s mother, in an attempt to establish that she was
biased in Defendant’s favor, the prosecutor asked whether Defendant’s mother and father
were paying his attorney’s fees. Defendant objected on grounds of relevance and moved for
a mistrial. The district court denied the request for a mistrial and, in the presence of the jury,
directed the prosecutor to withdraw the question. The prosecutor did so, and asked whether
Defendant’s mother would be willing to help her son in a time of need. Defendant asserts
that the question improperly commented on his invocation of his constitutional right to
counsel and that the question “implied to the jury that [Defendant] had obtained high cost
representation necessitated by his guilt.”

{56} We disagree. In context, it is clear that the question was intended to suggest bias and
that the question was not one involving post-arrest conduct that might give rise to an
inference that Defendant believed he was guilty because he invoked his right to counsel. Cf.
id. ¶ 32 (noting that when a defendant invokes his right to counsel when questioned by the
police, testimony about the invocation of that right may deprive a defendant of a fair trial in
the same manner as a comment on a defendant’s invocation of his right to remain silent).
The district court did not abuse its discretion in requiring the prosecutor to withdraw the
question and ask the witness in another manner about any bias she may have for her son.

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{57} Defendant also asserts that the prosecutor improperly attacked the integrity of
defense counsel when she implied that defense counsel was concealing evidence. The
prosecutor prefaced a question to Defendant’s expert with “[i]sn’t it true you told me before
when I had a chance to interview you for five minutes in the hall a couple days ago.”
Defendant objected, and the district court sustained the objection. Later, when moving
Defendant’s school records into evidence, the prosecutor stated, “They’re from [defense
counsel]. [The jury] can decide for themselves if they’re complete or not.” Defendant
objected, not to the admission of the documents, but to the prosecutor’s comment, which he
contended shifted the burden of proof by suggesting that Defendant was required to provide
complete records to establish his innocence. The district court did not rule on the objection
and admitted the documents into evidence. Defendant did not ask that the jury be instructed
about the burden of proof at that time. The district court did not abuse its discretion by
sustaining Defendant’s objection to the prosecutor’s statement about her interview with
Defendant’s expert. In addition, the district court was not obligated to provide relief that
Defendant did not seek in response to the prosecutor’s comment about interviewing
Defendant’s expert or about the school records.

{58} Defendant asserts that two other statements by the prosecutor improperly appealed
to the passions of the jury. The first was during cross-examination of L.T.’s father. The
State asked whether L.T.’s father remembered that during a pretrial interview he failed to
tell the State that he knew of Defendant’s penis piercing. L.T.’s father responded, “What I
remember the most about this interview is that you were a witch . . . [y]ou acted like I was
the one on trial.” The State began to respond by saying, “I’m just trying to defend your
daughter[.]” Defendant objected, stating, “Your honor . . . it’s argument.” The district court
instructed L.T.’s father that he should just answer the questions asked, and not make
unsolicited statements. Defendant made no further objection. While we do not believe that
the State should have suggested that its role is to “defend” an alleged victim during the trial,
it does not appear that Defendant preserved an objection on this basis, and we cannot
conclude that the statement deprived Defendant of a fair trial.

{59} The second statement that Defendant argues improperly appealed to the passions of
the jury was when the State asked Defendant a question that began with the hypothetical:
“Assuming for a minute you did sexually abuse [L.T.].” Defendant objected, and the district
court sustained the objection. The district court did not abuse its discretion in sustaining the
objection, and Defendant sought no other relief. Again, we cannot conclude that this partial
question, which was properly rejected by the district court, deprived Defendant of a fair trial.

{60} Although we conclude that none of these statements by the prosecutor alone warrants
reversal, Defendant contends that the cumulative effect of the prosecutor’s conduct was to
deprive him of a fair trial. Defendant relies on State v. Ashley, 1997-NMSC-049, ¶¶ 13, 15-
21, 124 N.M. 1, 946 P.2d 205, in which the New Mexico Supreme Court held that the
defendant was deprived of a fair trial by the cumulative effect of the prosecutor’s improper
introduction of evidence that the defendant had a criminal history that extended over forty
years; the prosecutor’s attack on the defendant’s character that pointed out to the jury that
he had left his wife and child destitute and forced them to go on food stamps—welfare
benefits for which the prosecutor suggested that the jurors, as taxpayers would have to pay;
and the prosecutor’s improper eliciting of a law enforcement officer’s opinion on the

20
ultimate question of the defendant’s guilt. Ashley does not support Defendant’s argument.
There, the defendant was accused of bigamy, and the only issue in the case was whether he
knew that his divorce from his first wife had never been finalized. Id. ¶ 4. The prosecutor’s
conduct was clearly egregious and prejudiced the defendant in a case in which the only
question to be decided was one that depended in part on whether the jury believed that the
defendant was the sort of person who would wilfully ignore one legal relationship in forming
another. See id. ¶¶ 4, 21. Here, the prosecutor’s comments were more isolated and did not
involve the introduction of significant improper evidence that should have swayed the jury
on the essential issues in the case. We conclude that the prosecutor’s improper conduct did
not deprive Defendant of a fair trial.

CONCLUSION

{61} We hold that the two factually indistinguishable counts of vaginal CSPM and the two
factually indistinguishable counts of anal CSPM violated Defendant’s constitutional right
to due process. Accordingly, we reverse Defendant’s conviction for one count of vaginal
CSPM and one count of anal CSPM. We remand to the district court with instructions to
dismiss these two convictions and to amend Defendant’s judgment and sentence to
accurately reflect the dismissal of these two counts of CSPM. As we are not persuaded by
Defendant’s remaining claims of error, his remaining convictions are affirmed.

{62} IT IS SO ORDERED.

____________________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Chief Judge

____________________________________
JAMES J. WECHSLER, Judge

Topic Index for State v. Tafoya, No. 28,019

AE APPEAL AND ERROR
AE-CE Cumulative Error
AE-FE Fundamental Error
AE-HE Harmless Error

AT ATTORNEYS
AT-CT Comments by Attorneys at Trial
AT-EA Effective Assistance of Counsel

CD CHILDREN
CD-PS Psychological Evaluation

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CT CONSTITUTIONAL LAW
CT-DP Due Process

CL CRIMINAL LAW
CL-CP Criminal Sexual Penetration
CL-SE Sexual Exploitation of Children
CL-SX Sexual Offenses

CA CRIMINAL PROCEDURE
CA-CW Children as Witnesses
CA-DC Dismissal of Charges
CA-DU Due Process
CA-EA Effective Assistance of Counsel
CA-EO Elements of Offense
CA-JI Jury Instructions
CA-SE Substantial or Sufficient Evidence
CA-TL Time Limitations

EV EVIDENCE
EV-CH Children as Witnesses
EV-HR Hearsay Evidence
EV-SS Substantial or Sufficient Evidence

JI JURY INSTRUCTIONS
JI-CJ Criminal Jury Instructions
JI-MS Modification of Jury Instructions

ST STATUTES
ST-IP Interpretation

22