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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. NO. 31,738
5 VIRGILIO PEREZ-VELASCO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Thomas J. Hynes, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 Defendant appeals his convictions for criminal sexual penetration in the second
2 degree (child 13-16), and two counts of contributing to the delinquency of a minor.
3 We issued a calendar notice proposing to affirm. Defendant has filed a memorandum
4 in opposition. Defendant has also filed a motion to amend the docketing statement to
5 raise claims of ineffective assistance of counsel. For the reasons discussed below, we
6 hereby deny Defendant’s motion. We affirm.
7 Motion to Amend
8 Defendant has filed a motion to amend the docketing statement to add a new
9 issue. See Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this
10 Court will grant a motion to amend the docketing statement to include additional
11 issues if the motion (1) is timely, (2) states all facts material to a consideration of the
12 new issues sought to be raised, (3) explains how the issues were properly preserved
13 or why they may be raised for the first time on appeal, (4) demonstrates just cause by
14 explaining why the issues were not originally raised in the docketing statement, and
15 (5) complies in other respects with the appellate rules. See State v. Rael, 100 N.M.
16 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). This Court will deny motions to amend
17 issues raised that are not viable, even if they allege fundamental or jurisdictional error.
18 See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled
2
1 on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
2 Here, Defendant refers us to several individual alleged instances of ineffective
3 assistance of counsel. [MIO 11-12] Defendant’s claims appear to be either not of
4 record, or matters of strategy. Accordingly, to the extent that the claims might have
5 merit, we believe that they are better addressed in collateral proceeding. See Duncan
6 v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993) (stating that habeas corpus
7 proceedings are the “preferred avenue for adjudicating ineffective assistance of
8 counsel claims”).
9 Memorandum in Opposition
10 Issues A, B: Defendant continues to argue that the district court erred in
11 allowing a SANE nurse to testify as an expert witness. [MIO 1] We review the
12 district court’s ruling for an abuse of discretion. See State v. Worley, 100 N.M. 720,
13 723, 676 P.2d 247, 250 (1984). “An abuse of discretion occurs when the ruling is
14 clearly against the logic and effect of the facts and circumstances of the case. We
15 cannot say the trial court abused its discretion by its ruling unless we can characterize
16 it as clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶
17 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).
18 Here, the witness provided testimony about her credentials and training that
3
1 qualified her as a registered nurse who specialized in sexual assault exams. [RP 106-
2 07]; see Rule 11-702 NMRA (providing that “a witness qualified as an expert by
3 knowledge, skill, experience, training or education may testify thereto in the form of
4 an opinion or otherwise”). We disagree with Defendant’s claim [MIO 2] that her
5 testimony of 17 years as a registered nurse, and specially trained as a sexual assault
6 nurse, did not qualify her as an expert. In addition, as Defendant concedes [MIO 3],
7 Defendant did not preserve any challenge to the witness’s qualification. See State v.
8 Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (discussing
9 preservation requirement).
10 Defendant also continues to challenge the substance of the witness testimony.
11 We reject the claim that her testimony violated State v. Alberico, 116 N.M. 156, 174,
12 861 P.2d 192, 210 (1993), because that case specifically stated that the expert may
13 testify that the victim had injuries consistent with sexual assault. The witness here
14 testified that the injuries were more than would occur with consensual intercourse.
15 [RP 109] We also reject the claim that a registered nurse who is trained to perform
16 sexual assault examinations is required to provide a scientific basis for her opinion
17 independent of her generalized medical knowledge and training. See Bustos v.
18 Hyundai Motor Co., 2010-NMCA-090, ¶ 15, 149 N.M. 1, 243 P.3d 440 (recognizing
4
1 propriety of applying generalized expert principles to facts at hand), cert. granted,
2 2010-NMCERT-010, 149 N.M. 65, 243 P.3d 1147.
3 Issue C: Defendant continues to claim that the district court erred in refusing
4 to allow him to ask Victim’s friend if she believed that Victim was telling the truth
5 that she had been raped. [MIO 3] We conclude that the district court ruled
6 appropriately because the “credibility of witnesses is to be determined by the jury, not
7 by the witnesses.” State v. Duran, 2006-NMSC-035, ¶ 21, 140 N.M. 94, 140 P.3d
8 515. Defendant was not prevented from cross-examining Victim’s friend concerning
9 her observation of the events in question [RP 112-13], but the district court properly
10 ruled that she could not opine on Victim’s credibility. See id.
11 Issue D: Defendant continues to argue that the district court should have
12 compelled the State to produce cell phone records of Victim and her friend because
13 they might have contained exculpatory evidence. [MIO 7] Defendant argued to the
14 jury that the State never obtained the records. [RP 91] Because the State apparently
15 was never in possession of these records, and because the records presumably were
16 still preserved by the carrier, we believe that Defendant should have sought to obtain
17 these records from the carrier with the court’s assistance if necessary. In short, the
18 State did not have to disclose what it did not have, and could not be accused of failing
19 to preserve evidence that was still available.
5
1 Issue E: Defendant continues to claim that the prosecutor committed reversible
2 error by failing to disclose the nurse as an expert witness. [MIO 8] See Rule 5-
3 501(A)(4), (5) NMRA (stating that the state must make an initial disclosure of
4 witnesses that the prosecution intends to call at trial and of any results of any scientific
5 tests or experiments to the defendant and make those available for examination by the
6 defendant). The record contradicts Defendant’s claim. The nurse was listed as a
7 SANE registered nurse on the State’s witness list. [RP 54] Given the nature of the
8 charges against Defendant, it is unreasonable to claim surprise that this witness would
9 provide medical testimony.
10 For the reasons set forth above, we affirm.
11 IT IS SO ORDERED.
12
13 TIMOTHY L. GARCIA, Judge
14 WE CONCUR:
15
16 JAMES J. WECHSLER, Judge
17
18 LINDA M. VANZI, Judge
6
7
State v. Perez-Velasco
Combined Opinion