1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,191
10 HERBERT YAZZIE,
11 Defendant-Appellant.
12
13 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
14 Grant L. Foutz, District Judge
15 Gary K. King, Attorney General
16 Ann M. Harvey, Assistant Attorney General
17 Santa Fe, NM
18 for Appellee
19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Susan Roth, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 GARCIA, Judge.
25 This appeal follows a retrial of various charges arising from a Navajo untwining
1 ceremony in which Defendant was accused of sexually assaulting his daughter-in-law
2 (Victim). Defendant appeals his latest convictions for second-degree criminal sexual
3 penetration (CSP II) and intimidation of a witness. Defendant raises the following
4 claims on appeal: (1) the district court erred by allowing the charging period to be
5 expanded during trial to a period “between April 1 and May 26, 2000”; (2) the district
6 court erred in finding Victim competent to testify; (3) Defendant’s testimony from his
7 first trial was not admissible during the second trial after Defendant chose not to
8 testify at the second trial; (4) a mistrial should have been declared when a witness
9 testified that Defendant had been “sent away”; (5) there was insufficient evidence to
10 support Defendant’s convictions for CSP II and intimidation of a witness; (6) the
11 district court erred when it refused to admit all of Victim’s post-natal medical records
12 as exhibits; and (7) cumulative error warrants reversal. We affirm Defendant’s
13 convictions.
14 BACKGROUND
15 Pursuant to the criminal information, jury instructions and evidence presented
16 at the first trial in this case, the untwining ceremony and alleged sexual assault
17 occurred “during the month of May, 2000,” or more specifically, “on or about May
18 17, 2000.” The case was remanded for a second trial. Prior to the second trial in
2
1 2007, Defendant obtained Victim’s medical records establishing that Victim was in
2 the hospital suffering from labor pains on May 17, 2000. Defendant then moved to
3 prevent the State from changing the date of the offense, and the State moved to amend
4 the criminal information to conform to the original criminal complaint and Victim’s
5 testimony at the second trial. The district court allowed the State to amend the
6 criminal information to conform to the original criminal complaint and Victim’s
7 testimony at the second trial.
8 Due to Victim’s lack of memory regarding certain details that occurred around
9 the time of the incident, Defendant moved to strike Victim’s testimony as incompetent
10 under Rule 11-601 NMRA. The district court noted that Victim’s limited education,
11 fear of the legal process, confusion in understanding many questions, and lack of
12 memory in answering questions did not mean she was lying or incompetent to testify.
13 Defendant’s motion to strike Victim’s testimony was denied. Defendant testified
14 on his own behalf during the first trial. During the State’s case-in-chief at the second
15 trial, portions of the transcripts from the first trial were read to the jury despite
16 Defendant’s objection. In these portions of the transcript, Defendant admitted taking
17 Victim to Hamburger Hill to perform the untwining ceremony. He admitted asking
18 Victim to spread her legs during the ceremony, lifting her skirt, and putting herbs on
3
1 her legs. He also admitted that he had performed the untwining ceremony for two of
2 Victim’s previous children prior to their births. Defendant testified that he was not
3 paid for these ceremonial services. During this testimony at the first trial, Defendant
4 denied pushing Victim back into the car and raping her. Defendant also testified that
5 after the ceremony, Victim threatened him and told him that if he did not give Victim
6 money, she would tell the officers that she had been raped. Defendant chose not to
7 testify at the second trial.
8 At the second trial, one of the State’s investigators was asked about Victim’s
9 statements of concern about fearing Defendant. In response, the investigator stated
10 that Victim was not as upset during later meetings “because [Defendant] had been sent
11 away.” At that point, a “shushing” sound was made that was later attributed to the
12 State, Defendant’s counsel and the district court. After cross-examination by defense
13 counsel, Defendant moved for a mistrial.
14 Finally, Defendant moved to admit Victim’s medical and dental records for
15 dates that occurred just prior to the alleged incident and for Victim’s post-natal
16 medical care after the birth of her child. After individually reviewing each record and
17 allowing argument, the district court admitted four of the requested records as trial
18 exhibits, identified as Defendant Exhibits B, E, K, and N. Although the remaining
19 medical records were not admitted as trial exhibits, Defendant was not precluded from
4
1 questioning Victim about all of her medical records. A stipulation regarding Victim’s
2 medical records was also read to the jury that addressed information and
3 circumstances resulting from certain pre-natal medical records.
4 DISCUSSION
5 I. Amendment to the Criminal Information
6 A. Application of Rule 5-204(C) NMRA
7 We review an amendment to the criminal information under Rule 5-204(C)
8 NMRA de novo. See State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d
9 852 (recognizing that a de novo standard of review applies to the interpretation and
10 application of Rule 5-204). This Court has recognized that it is permissible to allow
11 an amendment to the criminal information in order to conform to the evidence
12 introduced at trial to support a charge. See State v. Dombos, 2008-NMCA-035, ¶¶ 24-
13 26, 143 N.M. 668, 180 P.3d 675 (holding that the district court did not err in allowing
14 the indictment to be amended during trial to enlarge the time of the occurrence where
15 the defendant knew the nature of the charges, the identity of the victim, and that the
16 charges were alleged to have occurred during the period in which he and the victim
17 lived together in Alamogordo); see also State v. Marquez, 1998-NMCA-010, ¶¶ 18-
18 21, 124 N.M. 409, 951 P.2d 1070 (holding that the district court did not err in
19 allowing the information to be amended during trial when the juvenile victim’s
5
1 testimony established that the incident occurred on her twin cousins’ tenth birthday
2 party in 1993, rather than in 1992, as initially charged). Furthermore, a variance
3 between the criminal information and the evidence presented “is not fatal unless the
4 accused cannot reasonably anticipate from the indictment [or criminal information]
5 what the nature of the proof against him will be.” State v. Branch, 2010-NMSC-042,
6 ¶ 19, 148 N.M. 601, 241 P.3d 602 (internal quotation marks and citation omitted).
7 Rule 5-204(C) provides the following:
8 No variance between those allegations of a complaint, indictment,
9 information or any supplemental pleading which state the particulars of
10 the offense, whether amended or not, and the evidence offered in support
11 thereof shall be grounds for the acquittal of the defendant unless such
12 variance prejudices substantial rights of the defendant. The court may
13 at any time allow the indictment or information to be amended in respect
14 to any variance to conform to the evidence. If the court finds that the
15 defendant has been prejudiced by an amendment, the court may postpone
16 the trial or grant such other relief as may be proper under the
17 circumstances.
18 The first inquiry under Rule 5-204(C) is whether Defendant’s substantial rights have
19 been prejudiced by the district court’s ruling that allowed the State to amend the
20 criminal information to conform to the evidence presented at the second trial. See
21 Branch, 2010-NMSC-042, ¶ 20 (reasoning that if the substantial rights of a defendant
22 are prejudiced by an amendment of the criminal information or indictment, the
23 amendment may provide the grounds for an acquittal under Rule 5-204(C)). It is
24 Defendant’s burden to show that prejudice resulted from the allowance of an
6
1 amendment to the criminal pleadings. See Dombos, 2008-NMCA-035, ¶¶ 25-26
2 (reasoning that the defendant has the burden of establishing prejudice through a
3 specific claim of prejudice). Defendant asserts that he was prejudiced because he was
4 denied the opportunity to investigate Defendant’s whereabouts during the months of
5 April and May 2000. Defendant alleged that such an investigation may have
6 developed additional theories to show that a rape did not occur.
7 Defendant’s arguments are not logical and have no support from the record in
8 this case. Victim originally asserted that the untwining ceremony occurred in April
9 2000 when she notified authorities and filed for a protective order against Defendant.
10 The State also asserted that the incident occurred in April 2000 when it filed the
11 original criminal complaint and amended criminal complaint. The confusion arose
12 when the pleadings were amended again to identify the month of May 2000, and the
13 witnesses, including Defendant, testified during the first trial that the untwining
14 ceremony occurred on May 17, 2000. Defendant admitted that an untwining
15 ceremony actually took place involving Victim, but denied that any sexual assault
16 occurred. Although uncertainty existed regarding the actual date of the untwining
17 ceremony, neither party disputed that the charged acts were alleged to have occurred
18 following an untwining ceremony that took place prior to May 27, 2000, when Victim
19 delivered her new baby. Procedurally, Defendant moved to prevent the State from
7
1 changing the date of the offense, but did not assert any type of alibi defense or ask the
2 district court for a postponement of trial in order to conduct additional discovery. In
3 effect, Defendant alleged that he was prejudiced because everyone identified the
4 incorrect date for the untwining ceremony at the first trial, and he appeared to be
5 arguing that the State should not be able to correct this error at the second trial under
6 Rule 5-204(C).
7 Defendant relies on Roman to argue that the district court erred in allowing the
8 State to amend the charging period to conform to the evidence and correct the mistake
9 made regarding the date of the untwining ceremony. 1998-NMCA-132, ¶ 9.
10 Defendant’s reliance on Roman is misplaced. Roman dealt with an attempt by the
11 State to amend the pleadings during trial to assert a completely new charge against the
12 defendant. Id. ¶¶ 1, 5-6. Moreover, this Court concluded that the district court erred
13 in allowing the State to add a new charge after the close of testimony under Rule 5-
14 204. Id. ¶ 9. In Roman, we specifically cited Marquez with approval regarding
15 whether the State may request permission to amend the criminal information to
16 conform to the evidence under circumstances that involve the original charges actually
17 contained in the criminal information against a defendant. Roman, 1998-NMCA-132,
18 ¶ 11. Marquez specifically allowed the date of the alleged offense to be amended by
19 one year to conform to the evidence at trial. 1998-NMCA-010, ¶¶ 19-21.
8
1 Additionally, Marquez noted that “[t]he mere assertion of prejudice, without more, is
2 insufficient to establish prejudicial error warranting reversal of a conviction.” Id. ¶
3 20 (internal quotation marks and citation omitted).
4 Defendant had three years to prepare his case prior to the first trial and nearly
5 four additional years to develop new theories prior to the second trial. Although
6 Defendant now asserts the desire to develop an alibi defense, an alibi defense was
7 never asserted or offered at either trial. As there was no dispute that the charges
8 concerned acts that allegedly occurred following the untwining ceremony, the material
9 issue in this case fell upon the credibility of the witnesses, especially Victim and
10 Defendant, not whether the untwining ceremony actually occurred in April rather than
11 May 2000. Defendant’s assertion that the expansion of the charging period to include
12 April 2000 affected his ability to develop theories to show that Victim was not truthful
13 or credible seven years after the ceremony occurred was nothing more than mere
14 speculation. See Branch, 2010-NMSC-042, ¶ 21 (reasoning that a defendant’s “mere
15 speculation regarding how he would have conducted his defense differently does not
16 rise to the level of prejudice that is required for an acquittal”); see also In re Ernesto
17 M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of
18 prejudice is not a showing of prejudice.”).
19 Alleging a last-minute alibi defense even though it is undisputed that Defendant
9
1 was present and participated in the untwining ceremony is equally suspect and
2 unpersuasive. See Dombos, 2008-NMCA-035, ¶ 26 (rejecting the defendant’s general
3 claim of prejudice regarding the expansion of the dates of the occurrence where the
4 defendant knew that the charges concerned acts that allegedly occurred during the
5 nineteen-day period that he lived with the victim in Alamogordo); see also Marquez,
6 1998-NMCA-010, ¶¶ 19, 21 (determining that the defendant was not prejudiced by
7 the amendment of the date of the occurrence where he did not rely on an alibi defense
8 in the district court below). Defendant did not even request a continuance or more
9 time to develop his newly claimed theories, but asked the district court to prohibit the
10 expansion of the charging period to conform to the evidence under Rule 5-204(C).
11 Effectively, Defendant wanted the charges dismissed rather than have the criminal
12 information amended to conform to the evidence. As a result, a showing of actual
13 prejudice to Defendant was not made. We determine that the district court did not err
14 by allowing the State to amend the criminal information under Rule 5-204(C) to
15 expand the charging period to recognize that the untwining ceremony occurred in
16 April or May 2000 pursuant to the evidence provided at trial.
17 B. Defendant’s Due Process Notice of Charges
18 Defendant also asserts that he was neither provided reasonable notice of the
19 new charging period nor provided with a fair opportunity to defend pursuant to the
10
1 Fifth and Fourteenth Amendment of the United States Constitution and Article II,
2 Sections 14 and 18 of the New Mexico Constitution. Citing State v. Baldonado,
3 1998-NMCA-040, 124 N.M. 745, 955 P.2d 214, Defendant asserted that his due
4 process rights were violated. “We review questions of constitutional law and
5 constitutional rights, such as due process protections, de novo.” State v. Montoya,
6 2010-NMCA- 067, ¶ 11, 148 N.M. 495, 238 P.3d 369.
7 Although it is not the appellate court’s responsibility to develop a defendant’s
8 theory and argument, we will attempt to address the issue and authority raised in
9 Defendant’s brief. See State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d
10 811 (noting that it is the party’s responsibility to connect legal theories to the pertinent
11 elements and the factual support for those elements, and that this Court may decline
12 to review undeveloped arguments on appeal). As previously noted, Defendant was
13 originally notified that charged acts were alleged to have occurred in April 2000
14 pursuant to the domestic petition filed against him in August 2000, the criminal
15 complaint and affidavit for arrest warrant filed in February 2002, and the amended
16 criminal complaint filed in August 2002. Although the charging period was later
17 amended and modified, Defendant was fully aware that the focus of the charges
18 concerned acts that allegedly occurred following the Navajo untwining ceremony.
19 Victim continuously alleged that she was raped after Defendant took her to
11
1 Hamburger Hill to perform the untwining ceremony.
2 Citing Baldonado, Defendant attempts to frame his due process issue as a
3 failure in “narrowing [of] the time frame of the charges” that caused potential
4 prejudice. See Baldonado, 1998-NMCA-040, ¶¶ 26, 34 (reasoning that the district
5 court must consider “the reasonableness of the State’s efforts at narrowing the time
6 of the indictment and measure[] the potential prejudice to the defendant of the time
7 frame chosen by the State”). Defendant also asserts that the State was unreasonable
8 in its failure to be “forthcoming with information about the date of the incident” and
9 that he was unable to develop a credible alibi defense.
10 The record indicates that the time frame in which the untwining ceremony
11 occurred was always alleged to have been in either April or May 2000, prior to the
12 birth of Victim’s child. Victim’s original belief and testimony that the untwining
13 ceremony occurred on May 17, 2000, was first challenged by Defendant on June 11,
14 2007, when Victim’s medical records indicated that she was hospitalized with labor
15 pains on May 17, 2000. Four days later, the State then moved to expand the charging
16 period to include both months, April and May 2000, for the date of the untwining
17 ceremony. Despite Defendant’s assertion that “[t]he date of the offense was critical,”
18 the uncertainty in this case was not whether the untwining ceremony took place, but
19 involved the parties’ inability to reconstruct exactly when it took place. Both Victim
12
1 and the State incorrectly narrowed this date down to May 17, 2000, prior to the first
2 trial, and Defendant also utilized this incorrect date in his testimony. The expanded
3 charging period in this case simply reinstates the original pleading dates that identified
4 either April or May 2000 as the believed dates when the untwining ceremony
5 occurred. The circumstances in the present case are dramatically different from the
6 facts and analysis in Baldonado. The exact date of the untwining ceremony was not
7 critical. Despite Defendant’s last-minute assertion of a possible alibi defense, such
8 a defense is inconsistent with Defendant’s undisputed testimony that he attended and
9 participated in the untwining ceremony as alleged by Victim.
10 In Baldonado, the defendant asserted that the two-year charging period was too
11 broad to provide reasonable notice of the charges and also made it impossible to
12 prepare an alibi defense. 1998-NMCA-040, ¶ 6. This Court agreed that the defendant
13 was potentially prejudiced by the two-year span of the indictment and remanded the
14 matter to address the adequacy of the charging documents and the prejudice to the
15 defendant. Id. ¶¶ 2, 33-34. Unlike Baldonado, Defendant does not assert that the
16 charging period is too broad. He also fails to provide any specific authority
17 establishing that an expansion of the charging period by one month, to be consistent
18 with Victim’s testimony and original allegations, constitutes error. Absent cited
19 authority supporting Defendant’s argument, we assume no such authority exists. See
13
1 State v. Vaughn, 2005-NMCA-076, ¶ 42, 137 N.M. 674, 114 P.3d 354 (“Where a
2 party cites no authority to support an argument, we may assume no such authority
3 exists.”).
4 Additionally, Defendant fails to provide citations to the record or authority to
5 support his allegation that the State was not forthcoming about the date of the
6 incident, and as a result, we assume no such authority exists. See id. Factually, the
7 district court recognized that the State was aware that the May 17, 2000, date appeared
8 incorrect and that Victim would be attempting to identify a more accurate date
9 regarding when the untwining ceremony actually occurred. It is undisputed that this
10 period of uncertainty lingered for several days before trial. Under the circumstances,
11 the district court did not err in its determination that the State was sufficiently
12 forthcoming in dealing with the date(s) of the incident after Defendant filed his motion
13 to estop a few days before the second trial. We affirm the district court’s decision to
14 grant the State’s motion to amend the criminal information under Rule 5-204(C).
15 C. Evidence From First Trial Regarding Date of Untwining Ceremony
16 Defendant asserts that the district court erred when it denied his motion to admit
17 the admissions of a party-opponent and allow him to use transcripts and other
18 evidence from the first trial to establish that the State used the date of May 17, 2000,
19 as the date for the untwining ceremony. The district court did not admit the actual
14
1 transcripts and documentation as admissions by a party-opponent. The court did,
2 however, allow Defendant to use the evidence and transcripts on cross-examination
3 to establish that the witnesses previously testified to an incorrect date at a “prior
4 hearing” as well as the incorrect date in Victim’s affidavit and past statements. We
5 review the admission of evidence by the district court under an abuse of discretion
6 standard. State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85
7 (recognizing that the admission of evidence is within the sound discretion of the
8 district court). “An abuse of discretion occurs when the ruling is clearly against the
9 logic and effect of the facts and circumstances of the case. We cannot say the
10 [district] court abused its discretion by its ruling unless we can characterize it as
11 clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41,
12 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).
13 Defendant fails to provide any authority in support of his position that the
14 district court abused its discretion when it denied Defendant’s motion to admit certain
15 admissions of a party-opponent but allowed the use of these prior statements and
16 documentation for the cross-examination of witnesses. See Vaughn,
17 2005-NMCA-076, ¶ 42 (“Where a party cites no authority to support an argument, we
18 may assume no such authority exists.”). Because Defendant was allowed to use the
19 desired evidence at trial for the purposes of impeachment and to attack the credibility
15
1 of witnesses regarding their prior inconsistent statements under oath at the first trial
2 as well as through their prior affidavits and other court documents, we conclude that
3 no error was made. The district court did not abuse its discretion when it denied
4 Defendant’s motion to admit these admissions by Victim but allowed their use for
5 impeachment purposes.
6 II. Competency of Victim to Testify
7 Defendant asserts that Victim was not competent to testify pursuant to Rule 11-
8 601. We review the district court’s ruling for an abuse of discretion. See State v.
9 Hueglin, 2000-NMCA-106, ¶¶ 21-22, 130 N.M. 54, 16 P.3d 1113 (noting that the
10 appellate court applies an abuse of discretion standard when it reviews whether the
11 minimum standard for competency of a witness has been met).
12 Under Rule 11-601, every person is presumed competent to be a witness except
13 as otherwise provided in the rules of evidence. “Ordinarily the party challenging
14 competency bears the burden to show [that a] witness is incompetent.” Apodaca v.
15 AAA Gas Co., 2003-NMCA-085, ¶ 62, 134 N.M. 77, 73 P.3d 215. Furthermore,
16 “[w]hen an individual's competency to testify is challenged, the district courts are
17 merely required to conduct an inquiry in order to ensure that he or she meets a
18 minimum standard, such that a reasonable person could put any credence in their
19 testimony.” State v. Ruiz, 2007-NMCA-014, ¶ 23, 141 N.M. 53, 150 P.3d 1003
16
1 (internal quotation marks and citation omitted). Once a witness meets this minimum
2 standard, the district court must convert “questions of competency into questions of
3 credibility.” Hueglin, 2000-NMCA-106, ¶ 22 (internal quotation marks and citation
4 omitted). “To be competent, a witness is required to have a basic understanding of the
5 difference between telling the truth and lying, coupled with an awareness that lying
6 is wrong and may result in some sort of punishment.” Id. ¶ 24 (internal quotation
7 marks and citations omitted).
8 Defendant argues that Victim was not competent to testify because she
9 responded, “I don’t remember” and “I don’t know” to several questions, answered
10 another question about being under oath with “[w]hat does under oath mean,” and
11 appeared to have a “poor grasp of basic vocabulary.” Although these issues were
12 concerning to the district court, the court did not find Victim incompetent to testify.
13 The court noted that Victim’s limited ninth grade education, fear of the legal process,
14 confusion in understanding many questions, and lack of memory in answering
15 questions did not mean that she was lying or incompetent to testify. The court also
16 noted the potential need for an interpreter, overruled Defendant’s objection to having
17 an interpreter available for Victim, and later questioned whether Victim needed the
18 assistance of an interpreter.
19 Despite the recognition of concern regarding Victim’s ability to understand
17
1 Defendant’s questions on cross-examination and the potential need for an interpreter,
2 Victim testified on the record that being sworn in meant “to tell the truth,” that she
3 often could not understand what defense counsel was saying, and that a lie means
4 when you are “not telling the truth.” However, the second factor regarding Victim’s
5 knowledge of any punishment for lying under oath was never adequately addressed
6 in the record. Defendant failed to establish whether Victim was aware that lying
7 under oath may result in some sort of punishment. As a result, Defendant did not
8 establish that Victim fell below the minimum standard for competency to testify at
9 trial. The district court did not abuse its discretion when it denied Defendant’s motion
10 to find Victim incompetent to testify pursuant to Rule 11-601.
11 III. Admission of Defendant’s Prior Testimony
12 Defendant asserts that the district court erred when it granted the State’s motion
13 to admit the admission of a party-opponent and use Defendant’s testimony from the
14 first trial as part of the State’s evidence during the second trial. Again, we review the
15 admission of evidence by the district court under an abuse of discretion standard.
16 Stanley, 2001-NMSC-037, ¶ 5. Where the admission of evidence involves an
17 application of law, we review the legal issue de novo. See State v. Mendez,
18 2010-NMSC-044, ¶ 15, 148 N.M. 761, 242 P.3d 328 (applying a de novo standard of
19 review where admissibility of evidence involved a question of law).
18
1 At trial, Defendant asserted that his prior statements during the first trial were
2 not admissions because they did not state a contrary position or serve as an admission
3 of any element of the crimes charged, and the statements were not relevant under Rule
4 11-403 NMRA. The State filed a memorandum that provided federal and other
5 authority in support of its position that Defendant’s admissions at the first trial could
6 be used at the second trial. Defendant has failed to provide contrary authority to
7 address whether Defendant’s prior testimony is an admission of a party-opponent
8 under Rule 11-801(D)(2) NMRA. Although Defendant argues that his prior
9 admissions during the first trial cannot be used by the State under Rule 11-801(D)(2),
10 this Court is not obligated to search for authority supporting Defendant’s position.
11 See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We
12 assume where arguments in briefs are unsupported by cited authority, counsel after
13 diligent search, was unable to find any supporting authority. We therefore will not do
14 this research for counsel.”). The State has specifically directed this Court to numerous
15 cases, including In re Nelson, 79 N.M. 779, 781, 450 P.2d 188, 190 (1969), as
16 authority for admitting the prior testimony of a party-opponent as an admission. As
17 a result, we rely upon the State’s authority as persuasive and need not address
18 Defendant’s argument further. See Vaughn, 2005-NMCA-076, ¶ 42 (“Where a party
19 cites no authority to support an argument, we may assume no such authority exists.”).
19
1 Defendant also argues that his prior testimony was not relevant under Rule 11-
2 403 because it did not state a contrary position or serve as an admission of any
3 element of the crimes charged. Again, Defendant provides no authority for his
4 position that evidence is not relevant unless it states a contrary position or serves as
5 an admission of any element of the crime and we assume no such authority exists. See
6 Vaughn, 2005-NMCA-076, ¶ 42. Defendant’s prior testimony placed him at the scene
7 of the untwining ceremony and established that he performed the ceremony alone on
8 Hamburger Hill with nobody else present except Victim. Defendant’s testimony
9 eliminated the issue of whether Victim fabricated the untwining ceremony and
10 established that Defendant had the opportunity to be alone with Victim during the
11 ceremony where the sexual assault was alleged to have occurred. These factors are
12 relevant to charges in this case as well as possible defenses that might be raised.
13 Defendant never asserted that any prejudicial effect of his prior testimony at the first
14 trial substantially outweighed its probative value, and we do not address this issue.
15 As a result, the district court did not abuse its discretion when it found Defendant’s
16 prior testimony to be relevant despite Defendant’s Rule 11-403 objection during trial.
17 IV. Denial of Mistrial Regarding Witness Statement About Defendant
18 At the second trial, one of the State’s investigators was asked about Victim’s
19 statements of concern about fearing Defendant. Defendant moved for a mistrial after
20
1 the State’s investigator responded that Victim had “calmed down because [Defendant]
2 had been sent away.” This motion was not made immediately but was made after all
3 questioning was completed and the witness left the witness stand. Neither a
4 cautionary nor a curative instruction was requested by the parties, and none was
5 offered or issued by the district court when it denied Defendant’s motion. The district
6 court also noted that it did not know what the jury did or did not hear regarding this
7 “sent away” comment made by the investigator.
8 The district court’s ruling on a motion for a mistrial is addressed to the sound
9 discretion of the district court and will not be disturbed absent a showing of an abuse
10 of discretion. State v. Gonzales, 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131.
11 We distinguish between remarks inadvertently made by a witness and testimony
12 intentionally elicited by the State. Id. ¶ 39. Where a witness statement was not
13 elicited by the State and was inadvertent, the offer to give a curative instruction “is
14 sufficient to cure any prejudicial effect.” State v. Fry, 2006-NMSC-001, ¶ 53, 138
15 N.M. 700, 126 P.3d 516. Where remarks are intentionally elicited by the State, “we
16 must determine whether there is a reasonable probability that the improperly admitted
17 evidence could have induced the jury’s verdict.” Gonzales, 2000-NMSC-028, ¶ 39.
18 Mitigating factors may still be considered persuasive even where the court did not
19 attempt to instruct the jury not to consider the improperly admitted evidence. See id.
21
1 ¶ 40.
2 In the present case, the State did not intentionally elicit the investigator’s
3 comment. Instead, a “shushing” sound was made following the comment that was
4 later attributed to the State, Defendant’s counsel, and the district court. Furthermore,
5 the investigator only testified that Defendant “had been sent away.” Although this
6 vague reference could be interpreted to mean that Defendant was “incarcerated” when
7 he was sent away, other interpretations are equally plausible. The vagueness of the
8 words actually used by the witness must be considered when analyzing the mitigating
9 factors regarding improper testimony. See State v. Gilbert, 99 N.M. 316, 318, 657
10 P.2d 1165, 1167 (1982) (considering whether an “oblique reference” to the defendant
11 “being booked” on an investigation made it apparent to the jury that the defendant was
12 wanted for some other criminal offense). The district court’s finding that jurors may
13 or may not have even heard the witness’s words must also be considered as a
14 mitigating factor. See State v. McDonald, 1998-NMSC-034, ¶ 27, 126 N.M. 44, 966
15 P.2d 752. The timing of Defendant’s motion for mistrial after the witness completed
16 his testimony and was excused also made the possibility for a cautionary or curative
17 instruction more problematic. In addition, no further reference to Defendant’s status
18 as being “sent away” was brought up or emphasized by the State or any other witness.
19 See id. ¶¶ 27-28 (reasoning that a lack of emphasis on an improper statement by the
22
1 witness or the State is a mitigating factor). These cumulative mitigating factors
2 support the district court’s denial of Defendant’s motion for a mistrial, and any
3 prejudice to Defendant appears to be purely speculative. See In re Ernesto M., Jr.,
4 1996-NMCA-039, ¶ 10 (holding that “[a]n assertion of prejudice is not a showing of
5 prejudice”). The unsolicited, vague statement regarding Defendant being “sent away”
6 that may not have been heard by the jury and was never referenced again during trial
7 would not reasonably establish the level of prejudice necessary to have induced the
8 jury’s verdict. The district court did not abuse its discretion when it denied
9 Defendant’s motion for a mistrial despite its failure to offer a later cautionary or
10 curative instruction after the witness had been excused.
11 V. Sufficiency of the Evidence
12 Defendant raises a challenge to the sufficiency of the evidence to support both
13 convictions in this case. “The test for sufficiency of the evidence is whether
14 substantial evidence of either a direct or circumstantial nature exists to support a
15 verdict of guilty beyond a reasonable doubt with respect to every element essential to
16 a conviction.” State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656
17 (internal quotation marks and citation omitted). “In applying this standard, an
18 appellate court review[s] the evidence in the light most favorable to the guilty verdict,
19 indulging all reasonable inferences and resolving all conflicts in the evidence in favor
23
1 of the verdict.” Id. (internal quotation marks and citation omitted). “In reviewing the
2 evidence, the relevant question is whether any rational jury could have found each
3 element of the crime to be established beyond a reasonable doubt.” Id. (emphasis
4 omitted) (internal quotation marks and citation omitted). The reviewing court does
5 not substitute its judgment for that of the jury, and “[c]ontrary evidence supporting
6 acquittal does not provide a basis for reversal because the jury is free to reject [the
7 d]efendant’s version of the facts.” Rojo, 1999-NMSC-001, ¶ 19. Nor will this Court
8 “evaluate the evidence to determine whether some hypothesis could be designed
9 which is consistent with a finding of innocence.” State v. Graham, 2005-NMSC-004,
10 ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted).
11 Defendant asserts that insufficient evidence supported the CSP II conviction
12 because the State failed to factually prove the necessary mental anguish or personal
13 injury to Victim. Defendant also attacks the credibility of Victim’s testimony, citing
14 State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). Defendant also cites
15 conflicting evidence and asks this Court to focus on the level of judicial scrutiny
16 essential for a criminal conviction as another basis to attack his conviction for
17 intimidation of a witness. Citing Boyer once again, Defendant asserts that the State
18 failed to meet its burden for the intimidation of a witness charge. Id.
19 Defendant fails to identify or present the facts that were relevant to support the
24
1 charges he now attacks. “Defendant unreasonably asks this Court to perform a
2 blanket review of [a specific] element of [each] offense . . . and without pointing to
3 evidence on the record, Defendant is essentially asking this Court to re-weigh the
4 evidence against him. Neither role is appropriate for an appellate court on direct
5 appeal.” State v. Gallegos, 2009-NMSC-017, ¶ 31, 146 N.M. 88, 206 P.3d 993; see
6 State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179 (noting that
7 “[w]e do not reweigh the evidence or substitute our judgment for that of the fact finder
8 as long as there is sufficient evidence to support the verdict”).
9 Moreover, there is substantial evidence in support of the jury’s verdict. At trial,
10 the evidence established that Defendant used physical force during the sexual assault,
11 causing bruising, and Victim adequately expressed her resulting fear of Defendant
12 when testifying that he threatened her after the incident. Victim further testified that
13 Defendant threatened her to remain silent and told her that he would destroy her
14 family. As a result, sufficient evidence exists to show that Victim suffered physical
15 injury and mental anguish as a result of the sexual assault. In addition, Defendant’s
16 threats after the assault were sufficient to support a conviction of intimidation of a
17 witness. We will not second guess the jury regarding the credibility of Victim’s
18 testimony on appeal. See Gipson, 2009-NMCA-053, ¶ 4. Sufficient evidence exists
19 to affirm both convictions.
25
1 VI. Post-Natal Medical Records
2 Defendant argued that a theory of his defense was made unavailable to him as
3 a result of the district court’s ruling that refused to admit all of Victim’s post-natal
4 medical records offered by Defendant. Again, we review the partial admission of
5 these medical records for an abuse of discretion. Stanley, 2001-NMSC-037, ¶ 5.
6 Defendant agrees that he was allowed to cross-examine Victim regarding her
7 post-natal medical records and read portions of the records into the record during trial.
8 The district court allowed Defendant to cross-examine witnesses regarding any
9 relevant information in Victim’s post-natal medical records. During cross-
10 examination and closing argument, Defendant discussed these records and pointed out
11 Victim’s happiness and lack of concern as reflected in her post-natal medical records
12 despite her lack of memory on cross-examination. A stipulation regarding Victim’s
13 medical records was also read to the jury, and one post-natal record was actually
14 admitted after an individualized in-camera review by the district court found that this
15 specific record addressed the issue of mental anguish. The State argued that the
16 remaining records should not be admitted into evidence due to potential confusion and
17 prejudicial references to Victim’s personal and medical information, as well as
18 specific testing that would be prejudicial.
19 This Court will not second guess the district court regarding its efforts to
26
1 exclude irrelevant or prejudicial information contained in Victim’s medical records.
2 Defendant argued that the entire set of medical records should be admitted and made
3 no effort to limit the information in any manner to address the State’s argument
4 regarding irrelevant personal and medical information, as well as standard procedures
5 to test for STDs and hepatitis. The district court properly balanced these competing
6 interests by allowing Defendant to use the relevant medical information to support his
7 defense and exclude the irrelevant and prejudicial information contained in Victim’s
8 post-natal medical records. We conclude that the district court did not abuse its
9 discretion when it limited the use of Victim’s post-natal medical records and refused
10 to admit the fully un-redacted medical records offered by Defendant.
11 VII. Cumulative Error
12 In considering each of Defendant’s arguments, we have determined that no
13 error was made by the district court. As a result, the cumulative error doctrine does
14 not apply. See State v. Salas, 2010-NMSC-028, ¶ 40, 148 N.M. 313, 236 P.3d 32.
15 CONCLUSION
16 For the reasons stated herein, we affirm Defendant’s convictions for CSP II and
17 intimidation of a witness.
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1 IT IS SO ORDERED.
2 ______________________________
3 TIMOTHY L. GARCIA, Judge
4 WE CONCUR:
5 _________________________________
6 JAMES J. WECHSLER, Judge
7 _________________________________
8 RODERICK T. KENNEDY, Judge
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