State v. Dietrich

Certiorari Denied, No. 31,524, February 17, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-031

Filing Date: January 8, 2009

Docket No. 25,220

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TOM DIETRICH,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Kenneth G. Brown, District Judge

Gary K. King, Attorney General
Chris Conlee, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Susan Roth, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

KENNEDY, Judge.

{1} Defendant Tom Dietrich was convicted of criminal sexual contact of a minor
(CSCM) and two counts of contributing to the delinquency of a minor (CDM) following a
jury trial. The victims that testified in the jury trial were R.P. and C.L. Another victim, J.O.,

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did not show up for trial, and ten criminal counts relating to him were dropped. Defendant
was also convicted of two counts of sexual exploitation of children following a bench trial.
On appeal, Defendant contests convictions arising from both trials, raising nine points of
error. We affirm, addressing each of Defendant’s points of error in turn.

FACTS AND PROCEDURAL HISTORY

{2} This case began in May 2002, when Defendant reported that his house had been
burglarized. Detective James Harris began an investigation into the reported burglary and
interviewed Defendant’s neighbors. Defendant had listed one of the alleged victims in this
case, J.O., as a suspect in the burglary. Detective Harris went to the scene of the burglary
and spoke with neighbors who reportedly had been seen with J.O. The detective related that
Defendant listed two other people as potential suspects in the burglary and claimed that all
three people had access to Defendant’s residence. Detective Harris discovered that all three
suspects had “free rein in and out of the residence” and were living with Defendant on and
off.

{3} Detective Harris first made contact with J.O. on May 30, 2002. At first, J.O.
concealed his identity. He later made an allegation that Defendant tried to rape him. The
investigation of the burglary thereafter developed into an investigation about sexual
misconduct on the part of Defendant. Detective Harris subsequently obtained search
warrants for Defendant’s residence that resulted in evidence inculpatory to Defendant’s
being seized. Defendant was indicted on July 25, 2002, and his jury trial commenced on
November 3, 2003. We discuss pertinent facts as they relate to each issue below.

DISCUSSION

1. Affidavit

{4} Defendant argues that the affidavit for the search warrants was insufficient because
it was based on unreliable information, violating his right against unreasonable searches and
seizures under the Fourth Amendment and the New Mexico Constitution. Defendant’s brief
refers to “the affidavit” for the first of three search warrants that Detective Harris obtained.
At trial, Defendant objected to evidence obtained under all warrants. We note that the
factual information in the affidavit for the first search warrant formed a common basis for
all warrants, and we address the sufficiency of the one affidavit as it affects the three
warrants executed on Defendant’s premises. Before trial, Defendant sought to have evidence
against him suppressed based on deficiencies in the warrants. The district court denied
Defendant’s motion to suppress.

Standard of Review

{5} The district court applies “a de novo standard of review to a magistrate’s
determination that an affidavit for a search warrant alleges facts sufficient to constitute

2
probable cause.” State v. Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587. This
Court conducts the same review as the district court. State v. Gonzales, 2003-NMCA-008,
¶ 13, 133 N.M. 158, 61 P.3d 867. We limit our review to the contents of the affidavit and
apply a common-sense reading, considering the document as a whole “to determine whether
the issuing judge made an . . . independent determination of probable cause based on
sufficient facts.” Nyce, 2006-NMSC-026, ¶ 8 (alteration in original) (internal quotation
marks and citation omitted); see State v. Steinzig, 1999-NMCA-107, ¶ 14, 127 N.M. 752,
987 P.2d 409. The affidavit presented to the magistrate must demonstrate “probable cause
to believe that a crime is occurring or that seizable evidence exists at a particular location.”
Nyce, 2006-NMSC-026, ¶ 9. The magistrate’s decision, however, must have been
objectively reasonable, which is of special import when considering the search of a home.
Id. ¶¶ 11-12.

{6} Probable cause “may be [based on] hearsay in whole or in part, provided there is a
substantial basis for believing the source of the hearsay to be credible and for believing that
there is a factual basis for the information furnished.” State v. Cordova, 109 N.M. 211, 214,
784 P.2d 30, 33 (1989) (emphasis omitted) (internal quotation marks and citation omitted);
Rule 5-211(E) NMRA. Double hearsay can support probable cause. See State v. Perea, 85
N.M. 505, 509, 513 P.2d 1287, 1291 (Ct. App. 1973). Defendant contests the reliability of
the information that made up the affidavit and its substance. We therefore review the
information and its legal sufficiency de novo. Steinzig, 1999-NMCA-107, ¶ 15 (“[W]hether
the contents of an affidavit are legally sufficient is a question of law which we review de
novo.”).

The Investigation

{7} The following facts were contained in the affidavit submitted to the magistrate in this
case. Detective Harris was a full-time, salaried, and certified law enforcement officer
investigating a burglary that Defendant reported at his house. After Detective Harris began
the investigation of the burglary, he received the name of one suspect, J.O., and made
contact with him. J.O. responded to Detective Harris’s questioning about his relationship
with Defendant by stating: “That mother fucker [sic] tried to rape me.” J.O. stated that he
had spent time living with Defendant from the time he was thirteen until as recently as May
of 2002. He also alleged that Defendant repeatedly made sexual advances toward him, had
sodomized him before he reached the age of eighteen, and had taken “nude or sexually
explicit pictures of him . . . without his consent,” pictures that could be found on Defendant’s
computer. J.O. told Detective Harris to contact J.B., an inmate at the juvenile detention
center in Albuquerque, ostensibly to corroborate J.O.’s statements.

{8} When Detective Harris questioned J.B. at the juvenile detention center, J.B. declined
to make any statements. Detective Harris spoke to an employee of this detention center,
unnamed in the affidavit, who told the detective that there had been other similar allegations
made against Defendant. This employee also told Detective Harris about an incident in
which Defendant had delivered a cupcake to J.B. with a note stating “I am your daddy.”

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{9} Detective Harris spoke with J.O.’s girlfriend Darlene Gonzales, who told the
detective that after she had an altercation with J.O., Defendant told her that he was going to
drug J.O. “to the point of incapacitation and then have sex with him.”

{10} Detective Harris further spoke with a person referred to in the affidavit as the
supervisor in charge of adult probation and parole in Valencia County. Harris was told that
although Defendant had worked there, he had been discharged for “misconduct” involving
clients. The detective also spoke with unnamed persons at the sheriff’s office in Valencia
County. One sheriff’s deputy who had responded to reports of parties at Defendant’s home
found “numerous young juvenile males” present. Another unnamed sheriff’s deputy
reported to the detective that he had dealt with Defendant, that Defendant had “three or four
young [male] juveniles” with him on that occasion, and that he believed that there was
alcohol present. The deputy also believed those juveniles to have been clients within the
juvenile probation system. Additionally, when Detective Harris contacted the game and fish
department of Sierra County, he discovered that Defendant had been arrested for
contributing to the delinquency of a minor during an incident near Elephant Butte Lake.

{11} J.O. also made allegations that Defendant was reporting burglaries in order to defraud
his insurance company and that Defendant had previously reported that his home was
burglarized. Detective Harris checked three reports filed by Defendant and noted several
inconsistencies among them, including the possible listing of duplicate items. Detective
Harris requested a search warrant based on all of these facts, and the magistrate judge
authorized it.

Hearsay, Named and Unnamed Informers

{12} “[I]t is necessary that the affidavit provide a factual basis for the informant’s personal
knowledge,” such as dealings with or observations of the defendant. State v. Baca, 97 N.M.
379, 381, 640 P.2d 485, 487 (1982). When facts provided by an informer are independently
corroborated, we accord greater weight to the informer’s credibility. See Steinzig, 1999-
NMCA-107, ¶ 21. Identifying an “informant” by name is a significant factor in determining
the veracity or reliability of the information. See id. ¶ 19. “[A] named informant has greater
incentive to provide truthful information because he or she is subject to unfavorable
consequences for providing false or inaccurate information to a greater degree than an
unnamed or anonymous individual.” Id.

{13} Defendant argues that the affidavit in this case was constitutionally inadequate
because it did not “satisfy the basis of knowledge or the credibility prong of the Aguilar
Spinelli test.” See generally Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States,
393 U.S. 410 (1969). This Court noted in Steinzig that the strictures of Aguilar-Spinelli
“were aimed primarily at unnamed police informers.” Steinzig, 1999-NMCA-107, ¶ 19
(internal quotation marks and citation omitted). “If the affidavit rests on hearsay—an
informant’s report—what is necessary under Aguilar is one of two things: the informant
must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2)

4
 that his information is hearsay, but there is good reason for believing it[.]” Spinelli, 393 U.S.
at 425 (White, J., concurring).

{14} J.O. was a citizen-informer named in an affidavit. All persons to whom Detective
Harris spoke were identified in the affidavit by name or position. The information obtained
by Detective Harris in further investigations and interviews with several other informants1
following the allegations made by J.O. does not require the same scrutiny required by
Aguilar-Spinelli because that information merely corroborated J.O.’s story of Defendant’s
predilections and did not form the basis for the allegations leading to probable cause to issue
a warrant. The affidavit in this case rests on first-hand accounts of Defendant’s crimes by
citizen-informer J.O. Corroboration obtained by Detective Harris in further investigation
bolsters the reliability of J.O.’s allegations.

J.O.’s Motivations

{15} Defendant makes much of the fact that Detective Harris’s investigation began based
on a report of a burglary committed in Defendant’s home and quickly transformed into an
investigation of Defendant himself based on allegations made by J.O. Defendant’s argument
insinuates that J.O. made allegations against Defendant in order to turn the detective’s
attention from himself and onto Defendant. This implies that J.O. had a motive to lie and
thus maintains that his information cannot be reliable. While any or all of J.O.’s statements
might have been true, the issue is the extent to which Harris acquired and used sufficiently
reliable information to continue his investigation of all matters on which he acted. The
fundamental inquiry in cases such as this one is whether the underlying circumstances show
that the informant’s information is reliable.

{16} Courts have looked at an informant’s motivation for telling the truth to investigating
officers when the informant is aware that if his information is false, he could be held
accountable for filing a false report. See People v. Rodriguez, 420 N.E.2d 946, 950 (N.Y.
1981) (noting that it would behoove a criminal defendant to tell the truth about criminal
activities of another because “[h]e must . . . have known that sending the police on a fruitless
errand would avail him of little[.]”); State v. Thomas, 673 N.W.2d 897, 908-09 (Neb. 2004)
(“[B]y identifying himself or herself by name, the informant is put in the position to be held
accountable for providing a false report, which makes the informant more reliable.”). The
New York Court of Appeals noted in Rodriguez that the defendant’s situation of being in
custody was “not necessarily an indicator of his unreliability.” 420 N.E.2d at 950. Instead,
the Court noted, the defendant could have made his statement revealing the criminal
activities of another because he knew that the police would act on it. Id. Similarly, we do
not solely consider the circumstances under which a person who himself is the subject of a
criminal investigation makes a statement, but we also weigh the fact that the informant

1
“Everyone who gives information to the police might be called an ‘informant’ in the broad sense
of that word.” 2 Wayne R. LaFave, Search and Seizure § 3.3(a) (4th ed. 2004).

5
provided his or her name and that subsequent investigation corroborated the informant’s
statements.

A different rationale exists for establishing the reliability of named
“citizen-informers” as opposed to the traditional idea of unnamed police
contacts or informers who usually themselves are criminals. Information
supplied to officers by the traditional police informer is not given in the spirit
of a concerned citizen, but often is given in exchange for some concession,
payment, or simply out of revenge against the subject. The nature of these
persons and the information which they supply convey a certain impression
of unreliability, and it is proper to demand that some evidence of their
credibility and reliability be shown. One practical way of making such a
showing is to point to accurate information which they have supplied in the
past.

State v. Paszek, 184 N.W.2d 836, 842 (Wis. 1971).

{17} Further, even if it appears that the informant is seeking revenge, it does not
necessarily indicate a motive to falsify allegations. See People v. Isenberg, 367 N.E.2d 364,
366 (Ill. App. Ct. 1977) (rejecting the defendant’s contention that the informant could not
be reliable because he was seeking revenge on the defendant based on the informant’s
brother’s hospitalization and holding that the informant could be considered an ordinary
citizen); State v. Olson, 2003 MT 61, ¶ 27, 66 P.3d 297 (noting that even if a citizen-
informant has mixed motives, his information can still be reliable). While the fact that J.O.
made allegations against Defendant while being investigated for a burglary perpetrated on
Defendant’s property casts doubt on J.O.’s truthfulness, we cannot ignore that he remained
a named informant and that Detective Harris further investigated and received corroborating
information.

{18} Indeed, in State v. Knight, 2000-NMCA-016, ¶ 21, 128 N.M. 591, 995 P.2d 1033,
this Court considered the cooperation of a criminal defendant in providing information to
law enforcement officers when that information was later used in an affidavit. We stated that
the agreement, “when viewed together with the informant’s efforts at cooperation, adds [to]
rather than detracts from his reliability, thereby reducing the risk of fabrication.” Id.

{19} J.O. was the citizen-informer in this case, providing information to Detective Harris
that was soon confirmed by Darlene Gonzales. Detective Harris also obtained information
from J.O. suggesting that Defendant had other inappropriate contact with juvenile males.
That information was also later confirmed by a staff member at the juvenile detention center
in Albuquerque and by persons at the sheriff’s office in Valencia County and the game and
fish department in Sierra County. From J.O.’s statements that Defendant took unauthorized
nude photographs of him and attempted to rape him, the magistrate could reasonably infer
that Defendant’s house could contain evidence of those illegal activities. See Gonzales,
2003-NMCA-008, ¶¶ 12, 14 (“[W]e give deference to the magistrate’s reasonable factual

6
inferences underlying the probable cause determination.”). The magistrate could also
reasonably infer that there was evidence of drugs at Defendant’s house based on the
statement of Darlene Gonzales that Defendant intended to use drugs to facilitate a sexual
encounter with J.O.

{20} In this case, we have numerous cooperating informants; and most do not share J.O.’s
motivations regarding Defendant. Rather, the majority were employees of state agencies and
were forthcoming with information about Defendant despite having nothing to gain. The
information provided by the informants corroborated accounts by J.O. and Darlene Gonzales
that Defendant was engaged in inappropriate conduct with juvenile males. See State v.
Turkal, 93 N.M. 248, 250, 599 P.2d 1045, 1047 (1979) (noting that an affidavit contained
probable cause when personal information provided by the informant was corroborated by
other sources).

{21} Detective Harris went to the juvenile detention center in Albuquerque to speak with
J.B., and although J.B. declined to provide a statement, an employee there related the
incident involving the cupcake. We recognize that the employee at this detention center was
unnamed in the affidavit, but we do not find that particularly troubling. The person is
identified as an employee of a particular detention center who had a face-to-face
conversation with Detective Harris and gave detailed, specific information. This was no
anonymous or confidential informant but rather a government employee talking about
information within his official knowledge. See Knight, 2000-NMCA-016, ¶ 20 (recognizing
that information provided by a citizen-informant, independently corroborated by police
investigation and the naming of the informant, along with independent corroboration
considered with the facts and circumstances of the case “all may import sufficient veracity
or reliability in a particular instance”).

{22} Detective Harris also received confirmation that Defendant had been employed by
Valencia County in adult probation and parole and had been terminated due to “misconduct”
with clients. In addition, Detective Harris heard several allegations about Defendant’s
association with young juvenile males, and that several of those instances included alcohol.
The magistrate was entitled to consider reasonable inferences from Defendant’s activities
and the allegations made against him, despite the potentially suspicious circumstances under
which J.O. furnished his information. Nyce, 2006-NMSC-026, ¶ 9. We conclude that there
was enough independent corroborating information, apart from J.O.’s allegations, for the
magistrate to determine that probable cause existed to search Defendant’s house for the items
the detective had been told he would find there. Id. ¶ 14 (“[O]rdinary, innocent facts alleged
in an affidavit may be sufficient if, when viewed together with all the facts and
circumstances, they make it reasonably probable that a crime is occurring in the place to be
searched.”).

{23} We hold that the affidavit was supported by probable cause and therefore that the
district court did not err in denying the motion to suppress.

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2. Filing Returns of Warrants With the Court After Execution

{24} Defendant argues that because the search warrants were not returned, filed in court,
or signed by a judge or clerk, the warrants are invalid and the evidence obtained as a result
of the warrants should be suppressed. Defendant relies on State v. Montoya, 86 N.M. 119,
120, 520 P.2d 275, 276 (Ct. App. 1974), for his argument that the failure to return a search
warrant renders the warrant void.

{25} First, Montoya is of little precedential value in this case as this Court adopted its
partial dissent in State v. Malloy, 2001-NMCA-067, ¶ 15, 131 N.M. 222, 34 P.3d 611.
Montoya held that the search warrant “had no direction on its face that it be returned to the
issuing judge and no such return was ever made,” rendering the warrant invalid. 86 N.M.
at 120, 520 P.2d at 276. However, in Malloy, this Court noted that the purpose of the
warrant requirement was “to provide the property owner assurance and notice during the
search” and that two levels of error apply to executing a search warrant: fundamental error
and merely technical error. 2001-NMCA-067, ¶ 11.

{26} Second, Defendant did not raise this argument in the district court; he raises it here
for the first time. Because he did not preserve the issue in the district court, we review it
only for fundamental error. State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998
P.2d 176. Fundamental error may be found upon one or more of the following bases: “there
has been a miscarriage of justice,” the question of the defendant’s guilt “is so doubtful that
it would shock the conscience” to allow his conviction to stand, or “substantial justice has
not been done.” State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992). We may
also hold that a fundamental error has been committed where we determine that there was
an “error . . . of such magnitude that it affected the trial outcome.” State v. Jacobs, 2000-
NMSC-026, ¶ 58, 129 N.M. 448, 10 P.3d 127. As our Supreme Court stated in Cunningham,
2000-NMSC-009, ¶ 13, fundamental error applies only in those cases where a criminal
defendant’s innocence is in dispute or where allowing his conviction to stand “would shock
the conscience.” Id. (internal quotation marks and citation omitted).
{27} Defendant in this case received notice of the search warrants and signed the
inventories. He was aware of what was seized and had a copy of the warrants. He does not
assert a substantive problem with the execution of the warrants or the evidence seized
thereunder. Perea, 85 N.M. at 509, 513 P.2d at 1291 (holding that, without a showing of
prejudice, “an otherwise valid search warrant” will not be set aside “because of defects in
the return of the warrant”); Malloy, 2001-NMCA-067, ¶ 11 (“Technical violations require
suppression only if the defendant can show prejudice or if there was a deliberate disregard
of the rule by the police.”); see State v. Wise, 90 N.M. 659, 662, 567 P.2d 970, 973 (Ct. App.
1977); State v. Baca, 87 N.M. 12, 15, 528 P.2d 656, 659 (Ct. App. 1974); Perea, 85 N.M.
at 509-10, 513 P.2d at 1291-92 (holding that matters involving defects in the return of a
warrant are “ministerial acts which, even if defective or erroneous, do not require a search
warrant to be held invalid unless prejudice is shown”). The actions taken in this case
comport with the purpose of the rule, which was to provide Defendant with notice and
assurance during the search. Malloy, 2001-NMCA-067, ¶ 11.

8
{28} This is a longstanding view. In Rose v. United States, 274 F. 245, 250 (6th Cir.
1921), the Sixth Circuit stated that “[t]he failure of the officer to whom a search warrant is
directed to make a return thereof cannot invalidate the search or seizure made by authority
of such warrant.” The Sixth Circuit articulated that a return could be made at any time after
the warrant was executed, and thus, the defect could be cured. Furthermore, such a defect
“does not bear consequences of constitutional dimension.” Malloy, 2001-NMCA-067, ¶ 21.
Defendant did not object to this technical defect below nor give the State an opportunity to
cure it. Defendant’s contention at this late juncture is without merit.

3. Evidence of an Uncharged Act: Rule 11-404(B) NMRA

{29} Defendant argues both fundamental error and abuse of discretion on the part of the
district court in allowing hearsay evidence of bad acts into evidence at the jury trial.
Defendant argues that the district court erred by allowing as evidence nude photographs of
R.P. and C.L. and a bag containing sex toys. Defendant also complains of testimony from
O.L. concerning experiences with Defendant, including a feeling by O.L. of having been
drugged, and testimony from Detective Harris concerning conversations that he had in the
course of his investigations into sexual allegations against Defendant.

Detective Harris’s Testimony

{30} Defendant concedes that he did not object at trial to the evidence of which he now
complains. Again, he seeks our review under the doctrine of fundamental error and argues
“that the admission of the bad act testimony deprived him of a fair trial.” As we stated
above, a fundamental error can be adjudged where a miscarriage of justice has occurred, the
result shocks the conscience, or substantial justice has been denied. Orosco, 113 N.M. at
784, 833 P.2d at 1150. Also sufficient for us to hold that a fundamental error has been
committed is the determination of an “error . . . of such magnitude that it affected the trial
outcome.” Jacobs, 2000-NMSC-026, ¶ 58. Absent “error [that] goes to the foundation . .
. of the case or take[s] from the defendant a right which was essential to his defense and
which no court could or ought to permit him to waive,” we will not reverse the district court.
Cunningham, 2000-NMSC-009, ¶ 13.

{31} Detective Harris’s testimony of which Defendant now complains was as follows:
[State] From the investigation that was provided to you, what did you do
next?

[Harris] [J.O.] also advised that I needed to go and make contact with
an individual at the juvenile detention center at Camino Nuevo. He
identified the subject as an inmate there by the name of [J.B.].
I went over to the Camino Nuevo and made contact with
[J.B.].

....

9
 [Harris] And he – I spoke with the adult probation – or I’m sorry – the
superintendent of Camino Nuevo and told him that I needed to speak with
this individual, [J.B.], that it was in reference to some allegations that were
made against [Defendant]. That individual stated that he had also received
some allegations and that at one point there was a note left –

At this point, the prosecutor interrupted the answer and did not inquire further into what the
detective heard.

{32} On appeal, Defendant argues that this testimony about allegations against Defendant
that surfaced at the juvenile detention center at Camino Nuevo while Detective Harris was
investigating there was so “prejudicial” that it rose to the level of fundamental error. We
disagree. Defendant fails to point out how this testimony resulted in any fundamental error
other than to say “[i]t is hard to imagine evidence that is more prejudicial.” This statement,
without more, is merely conclusory.
{33} For instance, Defendant relies upon the holdings of both State v. Barber, 2004-
NMSC-019, ¶¶ 16-17, 135 N.M. 621, 92 P.3d 633, and Cunningham, 2000-NMSC-009, ¶
13, for the proposition that fundamental error occurs whenever a defendant is denied a fair
trial, irrespective of the defendant’s apparent guilt or innocence. These citations, as
statements of law, are flawless, but such statements of law are as far as Defendant goes. He
makes no argument as to how, exactly, the inclusion of this evidence resulted in fundamental
unfairness, choosing instead to assert that the evidence was “prejudicial.” Without a proper
application of the law to the facts, we must reject Defendant’s argument.

O.L.’s Testimony

{34} Defendant also argues that fundamental error occurred when O.L. was allowed to
testify about his experiences with Defendant, even though O.L. was not an alleged victim
at Defendant’s trial. O.L. testified about meeting Defendant at the juvenile detention center,
going to “hang out” at Defendant’s house, and going with Defendant to Elephant Butte and
getting arrested there while they were drinking. The State contends that O.L.’s testimony
was relevant to establish Defendant’s relationship with C.L., O.L.’s brother, and the
relationship among all three people.

{35} Defendant’s objection to the inclusion of O.L.’s testimony intertwines with his
objection to the testimony of Detective Harris. Just as he challenges Detective Harris’s
testimony, he likewise asserts the “prejudicial” effect of O.L.’s testimony. As we stated, this
Court will reverse a conviction for fundamental error only where the defendant demonstrates
a miscarriage of justice, a conviction that shocks the conscience, a denial of substantial
justice, or an error of such magnitude that it affects the outcome of the trial. Orosco, 113
N.M. at 784, 833 P.2d at 1150; Jacobs, 2000-NMSC-026, ¶ 58. Defendant makes no such
showing, choosing instead to rely on the conclusory statement that the inclusion of this
evidence was “prejudicial.”

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Physical Evidence: Photographs and Sex Toys

{36} Before trial, Defendant moved to sever the sexual exploitation charges from the
charges of CSCM and CDM. Included in the motion were references to photographs of the
two victims who testified at trial, R.P. and C.L. In its response, the State argued that the
photographs were relevant and necessary to prove the charges against Defendant and showed
intent, motive, plan, preparation, and/or absence of mistake. The district court severed the
charges but ruled that the photographs of R.P. and C.L. could be admitted during the jury
trial, citing “compelling legal and factual reasons” to allow the evidence.

{37} At trial, Defendant made an objection to the admission into evidence of items seized
under the warrants, noting that it was a continuing objection from the issues raised during
the pre-trial suppression hearing. Defendant also initially objected to the admission into
evidence of a bag containing sex toys that was taken from Defendant’s home but later
stipulated to the fact of its existence. However, Defendant argued that the jury should not
be able to see the contents of the bag. The court admitted this evidence but postponed
showing it to the jury. Defendant does not argue that the jury ever saw the contents of the
bag or that the bag’s contents were ever described to the jury.

{38} Defendant merges his argument regarding both the photographs and the bag of sex
toys. Defendant argues that those pieces of evidence were prohibited propensity and
character evidence and that the district court failed to perform a balancing test to determine
whether the probative value of the evidence outweighed its prejudicial effect as required by
Rule 11-403 NMRA. Defendant argues that the State was using the evidence “to show that
[Defendant] acted in conformity with the sort of person who would commit CSCM and
CDM.” The State counters that the photographs were relevant and admissible because they
showed Defendant’s relationship with the victims and went towards proving the element of
“unlawfulness” in the CSCM charge.

{39} We review the admission of physical evidence of bad acts under an abuse of
discretion standard. See State v. Allen, 91 N.M. 759, 761, 581 P.2d 22, 24 (Ct. App. 1978)
(noting that admission of such evidence was within the discretion of the trial court); State
v. Romero, 2006-NMCA-045, ¶ 73, 139 N.M. 386, 133 P.3d 842, aff’d, 2007-NMSC-013,
141 N.M. 403, 156 P.3d 694.

{40} “Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show action in conformity therewith.” Rule 11-404(B). We consider
two paramount factors in deciding whether the district court abused its discretion in
admitting the evidence: “whether the State made a sufficient showing that the evidence
would serve a legitimate purpose other than to show character . . . and whether the probative
value was substantially outweighed by the danger of unfair prejudice or other factors.” State
v. Jordan, 116 N.M. 76, 80, 860 P.2d 206, 210 (Ct. App. 1993).

{41} “A requisite element of the charged crime of CSCM is that the defendant’s touch was

11
‘unlawful.’” State v. Kerby, 2007-NMSC-014, ¶ 26, 141 N.M. 413, 156 P.3d 704.
“Unlawfulness may be proven by showing that defendant’s behavior was done . . . to arouse
or gratify sexual desire.” Id. (alteration in original) (internal quotation marks and citation
omitted). In State v. Jones, 120 N.M. 185, 188, 899 P.2d 1139, 1142 (Ct. App. 1995), this
Court held that “evidence of other bad acts might be admissible if a specific type of intent
were at issue and the other bad acts bore on that intent in a way that did not merely show
propensity.” We went on to demonstrate an example of when other bad act evidence might
be admissible: “if the defendant were accused of assault with intent to commit [criminal
sexual penetration] and evidence of other sexual assaults were offered to establish the
defendant’s intent when grabbing the victim.” Id. On the other hand, “[a] state of mind that
continues over time and governs otherwise unconnected acts is generally called a person’s
character trait or propensity.” State v. Aguayo, 114 N.M. 124, 129, 835 P.2d 840, 845 (Ct.
App. 1992) (internal quotation marks and citation omitted). “Admission of character traits
to prove that the defendant acted in accordance with those traits is, of course, exactly what
Rule 404(B) is designed to prohibit.” Id.

{42} On appeal, Defendant argues that “[t]he prejudice of having the jury see (and hear
about) nude photographs of [R.P. and C.L.], when the photos were not an element of the
CSCM and CDM charges, is unquestionable.” However, “[e]vidence of prior acts with the
complaining witness can directly bolster the complaining witness’s testimony by providing
significant corroboration.” State v. Landers, 115 N.M. 514, 519, 853 P.2d 1270, 1275 (Ct.
App. 1992). When used for such a purpose, this evidence is admissible and not considered
propensity evidence. Id. The State argued that the photographs would corroborate the
victims’ testimony and demonstrate the overall nature of the victims’ relationships with
Defendant.

{43} At trial, R.P. identified nude photographs of himself that were found on Defendant’s
computer. R.P.’s testimony was limited to identifying himself in the photographs and
characterizing the photographs as nude depictions of himself and his specific body parts.
R.P. then testified that it was Defendant who took the photographs. R.P. also testified that
when Defendant was taking the photographs, some sexual activity took place between the
two of them, and that he was either sixteen or seventeen years old at the time. Defendant
made no objection to the testimony. C.L. also testified that Defendant took nude
photographs of him, while he was sleeping and without his permission. C.L. identified these
photographs of himself. Defendant made no objection to the testimony.

{44} Under the facts of this case and upon a careful review of the record, we hold that the
district court did not abuse its discretion in allowing into evidence photographs of the
victims and the victims’ testimony. The photographs corroborated the victims’ testimony
and provided context for the events that occurred. State v. Mora, 1997-NMSC-060, ¶ 54,
124 N.M. 346, 950 P.2d 789 (“Photographs are relevant and admissible for the purpose of
clarifying and illustrating testimony.” (internal quotation marks and citation omitted)); State
v. Crump, 82 N.M. 487, 494-95, 484 P.2d 329, 336-37 (1971) (holding that other sexual acts
committed by the defendant were not independent of the charged crime, provided an

12
explanation for the crime, and were incidental to it). The photographs were relevant to the
victims’ credibility, which Defendant attempted to attack during trial, and were not offered
to merely show Defendant’s character or propensity to commit the crimes charged.
Defendant has made no showing of an abuse of discretion or of prejudice. We hold that the
photographs were properly admitted.

{45} Defendant stipulated to admitting the bag containing sex toys into evidence. In fact,
when Detective Harris began describing the contents of the bag, the prosecutor interrupted
and asked him not to “delineate” the specific items. Defendant provides no basis for us to
determine that the district court erred, and we need not consider issues not briefed. State v.
Harbison, 2007-NMSC-016, ¶ 26, 141 N.M. 392, 156 P.3d 30.

4. Crawford and the Sixth Amendment

{46} Defendant argues that his Sixth Amendment rights were violated because he was
unable to cross-examine J.O. J.O. did not appear at Defendant’s trial. Specifically,
Defendant now objects to statements that came in through Detective Harris. Detective
Harris testified about what J.O. had alleged, including the rape allegations and that J.O. had
lived with Defendant on and off since he was thirteen. Defendant did not object to this
hearsay testimony at trial.

{47} Defendant argues that the statements amounted to fundamental error at trial because
Defendant was never able to cross-examine J.O. Because Defendant never objected to the
admission of the statements below, we review the statements and determine whether their
admission created fundamental error. Cunningham, 2000-NMSC-009, ¶ 8; see State v.
Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (reviewing a defendant’s
Confrontation Clause claim for fundamental error even though the issue was not preserved).
“In a fundamental error analysis, where the defendant has waived all error by failing to
object, the Court’s goal is to search for injustice.” State v. Benally, 2001-NMSC-033, ¶ 33,
131 N.M. 258, 34 P.3d 1134. (Baca, J., dissenting).

{48} Detective Harris testified at trial that when he contacted him, J.O. made serious
allegations against Defendant.

[Harris] . . . . I asked [J.O.] if – I told him I needed to talk to [him] in
reference to a burglary [and] that I was a detective with the Los Lunas Police
Department. And that I was investigating a burglary that had occurred at the
house of [Defendant] and I needed to speak to [J.O.] in reference to that.
And I really needed to talk to him because I felt that there might have been
more to the – to the incident that was reported.

[State] And what did this individual inform you of next?

[Harris] At that time he opened the door. He asked he [sic] who I – or

13
 he asked me what I meant by that statement. I asked him if he was [J.O.], he
state [sic] that had [sic] he was. I asked him to tell me what he could tell me
about the situation at [Defendant’s] home and he made a statement to the
effect that [Defendant] tried to rape him.

....

[State] What did he mention to you about [Defendant]?

[Harris] He stated that – he stated that there was – you know, that he
had been with [Defendant] on and off since he was 13 years old, that he had
met [Defendant] at the juvenile detention center when [Defendant] was
employed at the juvenile detention center. He stated that he – that on at least
one occasion he had been drugged, that [Defendant] was constantly trying to
get him to do sexual favors for him.

At this point, the district court asked the State and defense counsel to approach the bench.
The district court judge remarked that he was “hearing a lot of hearsay” and expressed
concern that defense counsel was not objecting. Nevertheless, the testimony continued.

{49} Later in his testimony, Detective Harris revisited his conversation with J.O.
[Harris] During my initial conversation with [J.O.], he also advised
that [Defendant] had taken nude and sexually explicit photographs of him as
well as other people and that he had placed them on his computer using a
digital camera.

....

[Harris] . . . . I also spoke – I spoke with other people during my
investigation that lead [sic] me to believe that there may have been some
form of sexual misconduct going on.

{50} The Confrontation Clause of the Sixth Amendment to the United States Constitution
states, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him[.]” The United States Supreme Court further clarified the
Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 68 (2004), providing that in
order for a testimonial hearsay statement to be admitted at trial, the witness must be
unavailable at trial and the defendant must have had a prior opportunity to cross-examine the
witness. While the Court did not provide a definition for “testimonial,” it spelled out that
the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” Id. The Court noted that “testimony”
could be defined as a “solemn declaration or affirmation made for the purpose of establishing
or proving some fact” and that an “accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes a casual remark to an

14
acquaintance does not.” Id. at 51 (internal quotation marks and citation omitted). Crawford
does not apply, however, where the testimonial statement is not offered to prove the truth
of the matter asserted. Id. at 59 n.9.

{51} We note that Defendant failed to preserve this confrontation issue in the district
court. We therefore analyze it only for fundamental error. Compare Romero, 2006-NMCA-
045, ¶¶ 15, 70 (indicating that preserved Crawford issues are analyzed under a harmless
error standard), with Martinez, 2007-NMSC-025, ¶ 25 (indicating that unpreserved Crawford
issues are reviewed for fundamental error only).

{52} We repeat the standard for fundamental error. A fundamental error occurs where
there has been a miscarriage of justice, the conviction shocks the conscience, or substantial
justice has been denied. Orosco, 113 N.M. at 784, 833 P.2d at 1150. We may also conclude
that a fundamental error has been committed upon a determination that a trial court’s “error
was of such magnitude that it affected the trial outcome.” Jacobs, 2000-NMSC-026, ¶ 58.
We hold that Defendant’s convictions were just and that the district court’s admission of the
statements in this case was neither an error nor an influence on the trial outcome.

{53} The admission of Detective Harris’s statement regarding J.O. does not violate
Crawford. In order for a statement to be testimonial under Crawford, it must be offered for
the truth of the matter asserted—or in other words, it must be hearsay. Wilson v. Sirmons,
536 F.3d 1064, 1111 (10th Cir. 2008). In Wilson, a police officer (Officer Huff) testified and
was questioned about his motivation for effecting the traffic stop of the defendant Wilson.
Id. Officer Huff testified that another officer (Officer Meek) informed him that Wilson was
driving an automobile that matched the description of a vehicle previously used in a
homicide. Id. On the basis of this information, Officer Huff stopped Wilson, who was later
arrested and charged with homicide. Id. Wilson objected to Officer Huff’s testimony on the
basis that it violated his rights under Crawford. Id. But the Tenth Circuit rejected Wilson’s
argument, holding that Officer Huff’s testimony was offered only to demonstrate his
motivation for stopping Wilson, not to prove that the car Wilson drove was used in a
homicide. Id. The facts before us require a similar analysis. Like the Tenth Circuit in
Wilson, we have little difficulty concluding that Detective Harris’s statements were not
offered to prove the truth of the matter asserted. Detective Harris appeared at J.O.’s home
in order to investigate a burglary reported by Defendant. Upon being questioned, J.O. stated,
among other things, that Defendant tried to rape him and took nude photographs of him.
Defendant did not object to this testimony. And when asked about the nature of this line of
questioning, the State said it was attempting to establish the reason why its investigation
proceeded from burglary to sexual misconduct. Although the court surmised that this
testimony was “hearsay,” it never made a ruling on the issue.

{54} Despite this speculation by the district court, we harbor little doubt that the evidence
was not hearsay; simply, it was not offered to prove the truth of the matter asserted. The
statements of J.O. were not offered to prove that he was the victim of an attempted rape or
that Defendant photographed him. Instead, they were offered to demonstrate how the

15
investigation proceeded from one of burglary to one of sexual misconduct. Defendant’s
dismissed charges only lend further support to our holding that Defendant’s convictions were
safely obtained. Defendant was charged with and convicted of CSCM and CDM based on
the testimony of the two victims of those crimes, R.P. and C.L. Statements attributed to J.O.
pertained to other charges that were dismissed after the court determined that J.O. would not
testify. Thus, J.O.’s statements were not used to prove the elements of the offenses for
which Defendant was convicted.

{55} The admission of Detective Harris’s statements regarding J.O. does not constitute
fundamental error. Such a result should be clear from our analysis above, which concludes
that the admission of Detective Harris’s statements does not constitute any error. Further,
given the testimony of R.P. and C.L., Defendant’s conviction for crimes of which they were
the victims does not shock our conscience. See Orosco, 113 N.M. at 784, 833 P.2d at 1150.
Indeed, because the convictions comport with well-settled constitutional protections, there
is neither miscarriage of justice nor denial of substantial justice. Id. Little probability exists
that Defendant’s case would have turned out differently had the testimony of Detective
Harris been excluded. Jacobs, 2000-NMSC-026, ¶ 58. We therefore affirm.

5. Sufficiency of the Evidence for CSCM and CDM involving R.P.

{56} Defendant argues that there was insufficient evidence to convict him of CSCM and
CDM involving R.P. Specifically, Defendant contends that R.P.’s testimony “never pinned
down the dates that [Defendant] allegedly touched his genital area,” thereby making the
evidence of CSCM “inherently improbable.” Defendant also argues that R.P.’s testimony
disavows that Defendant engaged in CDM because R.P. never testified that Defendant
encouraged him to do drugs or drink.
{57} We take a two-step approach in determining the sufficiency of the evidence. State
v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). We begin by reviewing the
evidence in the light most favorable to the jury verdict and then make a “legal determination
of whether the evidence viewed in this manner could justify a finding by any rational trier
of fact that each element of the crime charged has been established beyond a reasonable
doubt.” Id. (internal quotation marks and citation omitted). The evidence may be of either
a direct or circumstantial nature. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571
(Ct. App. 1993). “This Court does not consider the merit of evidence that may have
supported a verdict to the contrary.” State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M.
713, 114 P.3d 393 (internal quotation marks and citation omitted).

{58} To convict Defendant of the charge of CSCM in which R.P. was the victim, the State
had to prove beyond a reasonable doubt that

1. [Defendant] touched or applied force to the penis of [R.P.];
2. [Defendant] was a person who by reason of his relationship to [R.P.]
was able to exercise undue influence over [R.P.] and used this
authority to coerce him to submit to sexual contact;

16
 3. [R.P.] was at least 13 but less than 18 years old;
4. This happened in New Mexico on or between the 1st day of January
2000 and the 30th day of April 2000.

To convict Defendant of the charge of CDM in which R.P. was the victim, the State had to
prove beyond a reasonable doubt that

1. [Defendant] caused [R.P.] to engage in sexual contact and/or
underage drinking/drug use;
2. This caused [R.P.] to conduct himself in a manner injurious to the
morals, health or welfare of [R.P.];
3. [R.P.] was under the age of 18;
4. This happened in New Mexico on or between the 1st day of January
2000 and the 30th day of April 2000.

{59} R.P. was born on May 8, 1982. During R.P.’s direct examination, the prosecutor
elicited testimony about salient events in R.P.’s life in order to determine dates for events
that occurred with Defendant. The prosecutor relied on where Defendant was living during
certain time periods and when R.P. was released from the Bernalillo County youth detention
facility. The testimony reflected that R.P. was released to Defendant on February 10, 2000.
R.P. testified that during his stay with Defendant, he consumed alcohol, smoked marijuana,
and used mushrooms. He further testified that Defendant purchased the alcohol for him, and
he remembered one occasion when Defendant purchased marijuana. R.P. testified that while
living with Defendant he awoke on several occasions to find himself unclothed and
Defendant touching his penis. This occurred between February of 2000 and March of 2000.

{60} R.P. testified that he was again released to Defendant on March 29, 2000. R.P.’s
testimony indicated that he began drinking and smoking marijuana again. R.P. testified that
Defendant purchased alcohol and marijuana for R.P.’s use and that Defendant made sexual
advances towards him, similar to the advances that Defendant had previously made. These
events were established as having occurred before April 10, 2000, when R.P. was again
placed in a detention facility.

{61} It is enough that the State provided the jury with approximate dates in which the
events described could have occurred. See State v. Altgilbers, 109 N.M. 453, 471, 786 P.2d
680, 698 (Ct. App. 1989) (“No juror need have a precise day in his or her own mind in order
to vote for conviction.”). The dates that were provided as an approximate time line for the
dates of the incidents with Defendant are well within the charged time frame. As to the
CDM charge, R.P.’s testimony that Defendant provided and purchased drugs and alcohol for
him satisfies the element of “caus[ing R.P.] to engage in . . . underage drinking/drug use”
whether or not Defendant “encouraged” such use. R.P. testified that he was a heroin user
during the time that he spent with Defendant. Providing R.P. with more drugs and alcohol
is sufficient evidence that Defendant’s acts “caused [R.P.] to conduct himself in a manner
injurious to [his] morals, health or welfare.”

17
6. Impermissible Vouching

{62} Before trial, defense counsel argued that Sarah Kerrigan, a Ph.D. toxicology
specialist, should not have been allowed to testify. Defense counsel did not object to
Kerrigan’s qualifications as an expert witness but maintained a continued objection to her
testimony in general. On appeal, Defendant cites only to State v. Alberico, 116 N.M. 156,
169, 861 P.2d 192, 205 (1993), to support his argument but uses this authority solely to point
out that the admission of expert testimony lies within the district court’s discretion.
Defendant does not provide any particular objection or any case law for his contentions that
Kerrigan’s testimony was “pure vouching” and “prejudicial.” Thus, we decline to address
Defendant’s argument. State v. Rivera, 115 N.M. 424, 427, 853 P.2d 126, 129 (Ct. App.
1993) (noting that because the defendant did not cite any authority supporting his contention,
this Court need not consider it).

7. Addition of “New” Charge

{63} Defendant argues that he was never charged with the crime of sexual exploitation by
possession of child pornography, yet he was still convicted of two counts of that crime.
Defendant was indicted on five counts of possession of child pornography with intent to
distribute. Before the trial, the State unsuccessfully attempted to amend this grand jury
indictment to a charge of mere possession of child pornography, a crime that made such
possession a fourth degree felony if the child was under eighteen years of age.

{64} At the bench trial, the district court dismissed three of the sexual exploitation
charges, noting that there was no evidence of distribution (as was required by the statute in
effect when those crimes allegedly occurred). However, the district court found Defendant
guilty of two counts of sexual exploitation by possession, noting that the time frames for the
corresponding criminal acts fell under the newer 2001 law, which only required possession
of pornography for conviction. Defendant argues that the district court’s actions were
improper and violated his due process rights.

Rule 5-204(A) NMRA states in part:
The court may at any time prior to a verdict cause the complaint, indictment
or information to be amended in respect to any . . . defect, error, omission or
repugnancy if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.

Thus, we are faced with a two-part test of the propriety of the district court’s actions that
determines: (1) whether an additional or different offense was charged and (2) if any
substantial rights of Defendant were prejudiced. See id.

{65} The original indictment charged Defendant with five counts of sexual exploitation
of children in violation of NMSA 1978, Section 30-6A-3(A) (1993). The indictment alleged
in the first count, and similarly in the others, that Defendant

18
 did intentionally distribute or possess with intent to distribute a visual or
print medium depicting a prohibited sexual act or simulation of such an act
where one of the participants in that act was a child under the age of eighteen
years knowing or having reason to know that the medium depicted a
prohibited sexual act or simulation of such an act[.]

The current version of Section 30-6A-3(A) states that

[i]t is unlawful for a person to intentionally possess any obscene visual or
print medium depicting any prohibited sexual act or simulation of such act
if that person knows or has reason to know that the obscene medium depicts
any prohibited sexual act or simulation of such act and if that person knows
or has reason to know that one or more of the participants in that act is a
child under eighteen years of age.

§ 30-6A-3(A) (2001) (amended 2007). Pursuant to the 2001 amendment, Subsection (A)
required the State to prove only that Defendant possessed the photographs. Under the
previous version reflected in the original indictment, the State was not only required to prove
that Defendant possessed the photographs but also that he intentionally distributed or
intended to distribute the photographs. Essentially, the State had one less element to prove
as a result of the change in the statute.

{66} Defendant argues that in effect an entirely new charge was added to his indictment,
in violation of Rule 5-204(A). Defendant cites State v. Roman, 1998-NMCA-132, ¶ 9, 125
N.M. 688, 964 P.2d 852, to support his argument. Defendant contends that he was
prejudiced by the district court’s actions, because his intention was to “attack the possession
with intent to distribute and distribution element charged in the grand jury indictment.”

{67} “[I]t is permissible to amend an information to conform to evidence introduced in
support of the charge made in the information.” Id. ¶ 11. Amendment of an information “to
include lesser included offenses” is also permissible. Id. We consider the district court’s
actions as an amendment of the information because the otherwise adequate information in
the indictment was supplemented by the new version of the statute. Id. ¶ 12. The
amendment did not add any additional elements to the charge and did not bring in matters
that were not directly at issue on any of the charges. Id. ¶ 13; see State v. Armijo, 90 N.M.
614, 618, 566 P.2d 1152, 1156 (Ct. App. 1977) (excluding matters that “went beyond the
issues in the case”). It did not substantially alter the nature of the case before the court. See
In re Garrison P., 2002-NMCA-094, ¶ 9, 132 N.M. 626, 52 P.3d 998.

{68} “An ‘included offense’ is one which has some, but not all, of the elements of the
greater offense and does not have any elements not included in the greater offense, so that
it is impossible to commit the greater offense without necessarily also committing the
included offense.” State v. Hamilton, 107 N.M. 186, 188, 754 P.2d 857, 859 (Ct. App.
1988). It is clear that the new statute included all of the elements of the old statute except

19
the element of intent to distribute. Therefore, we hold that the amendment did not charge
an “additional or different offense.” See Rule 5-204(A).

{69} We now turn to whether the amendment of the indictment information prejudiced
Defendant’s substantial rights. Defendant argues that he was on notice that he would be
defending against the old statute, which included the element of intent to distribute, and that
his defense was to attack that element. “A variance between the crime charged and the
offense for which defendant was convicted will not be deemed to be fatal unless the
defendant could not reasonably have anticipated from the indictment or information, the
nature of the charges and proof against him.” Hamilton, 107 N.M. at 189, 754 P.2d at 860.
It is clear that Defendant knew that he was indicted for possessing photographs of nude boys
on his computer.

{70} The amended indictment information from August 21, 2002, included five counts
charging “[s]exual [e]xploitation of [c]hildren,” abbreviated as “[p]ossession” in the
indictment. Each count described the crime of sexual exploitation of a child as intentional
distribution or possession with the intent to distribute “visual or print medi[a] depicting a
prohibited sexual act or simulation of such an act where one of the participants in that act
was a child under the age of eighteen [or sixteen] years.” Each charge also referred to the
statute as “[Section] 30-6A-3(A).” The State divided the charges into five groups based on
the year in which the photographs were allegedly downloaded onto Defendant’s computer.
Each charge represented that Defendant engaged in the prohibited act over the course of a
year, for the calendar years of 1997, 1999, 2000, and 2001, through June 6, 2002.

{71} During the May 6, 2004, bench trial on the five counts of sexual exploitation of a
child, the district court dismissed the charges relating to 1997, 1999, and 2000. The charges
that remained for 2001 and 2002 fell under the 2001 amendment of the sexual exploitation
statute that made mere possession a crime. Defendant knew what the State was prepared to
offer as evidence against him, and because the amended information filed in 2002 cited the
correct statute, we fail to see how Defendant could not have reasonably known what he
would be defending against.

{72} On March 30, 2004, more than five weeks before the bench trial at which Defendant
was convicted of two counts of sexual exploitation of a child, the State filed a motion to
amend the grand jury indictment to reflect the changes in the statute that became effective
on July 1, 2001, giving Defendant further notice. The amended indictment confirmed the
statutes and the previously admitted evidence on which the State would base its case. We
therefore hold that Defendant was not charged with an “additional or different” offense and
that his “substantial rights” were not prejudiced. See Rule 5-204(A).

8. Amended Criminal Information

{73} Defendant argues that Counts 16, 19, and 22 in the first grand jury indictment, three
CDM counts relating to C.L., were withdrawn by the prosecutor and later “improperly

20
resurrected.” Defendant argues that the counts were withdrawn because the grand jury did
not find probable cause to support them but that those same counts reappeared in the
amended grand jury indictment as Counts 14, 15 and 16. At the hearing on a motion to
dismiss those counts, the prosecutor told the district court that he “misspoke as to [the grand
jury] not finding probable cause” and that the grand jury properly indicted on all of the CDM
counts. The prosecutor asked the district court to look at the transcript from the grand jury
as a whole in determining whether to drop the charges. Later in the hearing the prosecutor
dropped two of the three counts of CDM relating to C.L., noting that those counts occurred
in a different county, but kept one count, noting that there was a dispute as to which county
it occurred in. Defendant was convicted of that charge of CDM.

{74} Defendant’s argument focuses on Stirone v. United States, 361 U.S. 212, 216-17
(1960), and on State v. Trivitt, 89 N.M. 162, 169, 548 P.2d 442, 449 (1976), for the
proposition that a defendant cannot be tried on charges that were not included in the
indictment against him. Neither case Defendant relies on addresses the situation before us:
whether the grand jury can return an indictment for counts that have been withdrawn by the
prosecution. It is clear that the original indictment and the amended indictment included the
charge of CDM related to C.L. upon which Defendant was convicted.

{75} The State concedes that during the grand jury proceedings, the prosecutor initially
withdrew the three CDM charges. The State argues that despite this withdrawal, it “later
gave the grand jurors the option to consider any of those charges,” which resulted in their
finding probable cause for all three counts. Therefore, the State contends, the grand jury
returned indictments for those charges. At the hearing, the State argued that its compliance
with State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d 1164, rendered the
indictments valid.

{76} In Ulibarri, this Court held that one of the most basic functions of the grand jury was
“to investigate the matter for which it is called and to determine from the evidence if there
is probable cause to believe an offense has been committed.” Id. ¶ 10 (alteration omitted)
(internal quotations marks and citation omitted). “While the grand jury should not be the
tool of the prosecuting authority to manipulate at will, neither should it be subject to undue
interference with its deliberative and decisional process.” Id. (internal quotation marks and
citation omitted). The grand jury is a separate and distinct body from the executive and
judicial departments of government. Id. ¶ 11. It is empowered to “order that evidence be
produced over and above that initially presented by the State.” Id.

{77} Defendant’s argument challenges the grand jury process and the manner in which
Defendant’s indictments arose. See id. ¶ 13. Unlike Ulibarri, we are not convinced in this
case that the prosecutor’s action of keeping the CDM charges in the amended indictment
(despite having indicated that he would be withdrawing them) went to the heart of the grand
jury’s function and responsibility. Cf. id. ¶ 15. The grand jury was appropriately guided,
despite returning an indictment that was contrary to the State’s belief in the necessity to
withdraw the CDM counts. Defendant received his notice that he was subject to charges of

21
CDM in both the first indictment and the amended indictment, and we disagree with
Defendant’s claim that he was prejudiced by the grand jury’s return on the charges. See,
e.g., id. ¶ 18.

{78} We are guided by NMSA 1978, Section 31-6-10 (1979), which states in pertinent
part:

Before the grand jury may vote an indictment charging an offense
against the laws of the state, it must be satisfied from the lawful evidence
before it that an offense against the laws has been committed and that there
is probable cause to accuse by indictment the person named, of the
commission of the offense so that he may be brought to trial therefor.

It is clear that the purpose of the grand jury proceedings is to determine whether there is
probable cause to indict the person named. The prosecutor’s role in the grand jury
proceedings is to assist the process. See UJI 14-8001 NMRA. “The district attorney will
not, however, guide or otherwise influence the grand jury.” Id., Committee commentary
(Assistance for grand jury.). It is ultimately up to the grand jury to decide whether probable
cause existed for the various counts. Because the grand jury determined that probable cause
existed for the CDM counts relating to C.L., it was within the discretion of the prosecutor
to keep those counts alive for the amended criminal indictment. The counts were properly
included in the indictment against Defendant, and therefore we affirm his conviction for
CDM.

9. Ineffective Assistance of Counsel

{79} Defendant contends that he received ineffective assistance of counsel, citing multiple
incidents from the trial. In determining whether a defendant has received ineffective
assistance of counsel, we apply the test of whether “defense counsel exercised the skill of
a reasonably competent attorney.” State v. Talley, 103 N.M. 33, 36, 702 P.2d 353, 356 (Ct.
App. 1985). Additionally, the defendant must show that incompetent representation
prejudiced his case. State v. Crain, 1997-NMCA-101, ¶ 24, 124 N.M. 84, 946 P.2d 1095.
Without a showing demonstrating both incompetence and prejudice, defense counsel is
presumed competent. Talley, 103 N.M. at 36, 702 P.2d at 356; Jacobs, 2000-NMSC-026,
¶ 48 (“Counsel is presumed competent unless a defendant succeeds in showing both the
incompetence of his attorney and the prejudice resulting from the incompetence.”). We
consider the record as a whole when determining whether a defendant has received
ineffective assistance of counsel. State v. Lewis, 104 N.M. 677, 680, 726 P.2d 354, 357 (Ct.
App. 1986).

In considering a claim of ineffective assistance, the duties of counsel
are considered. These duties include loyalty, avoiding a conflict of interest,
consulting with defendant on important decisions, keeping defendant
informed of important developments, and using skill and knowledge to

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 render the trial a reliable adversarial testing process. The benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.

Talley, 103 N.M. at 36, 702 P.2d at 356 (internal quotation marks and citation omitted).

{80} Defendant complains about his defense counsel’s failure to move for a mistrial when
it was discovered that J.O. would not be testifying, failure to object to bad act evidence,
stipulation to testimony about the photographs found on Defendant’s computer, and failure
to call the notary of an affidavit signed by R.P. when R.P. testified contrary to the affidavit.
Defendant argues that the instances he recites “call for a presumption of ineffective
assistance of counsel.” Defendant further argues that his defense counsel’s ineffectiveness
led to Defendant’s convictions.

{81} “A prima facie case for ineffective assistance of counsel is not made if there is a
plausible, rational strategy or tactic to explain the counsel’s conduct.” Jacobs, 2000-NMSC-
026, ¶ 49. “A reviewing court will not attempt to second guess that [conduct]. An attorney’s
decision to object to testimony or other evidence is a matter of trial tactics.” Id. (citation
omitted).

{82} Defendant’s first contention, that defense counsel should have moved for a mistrial
once it was discovered the J.O. would not be testifying, is without merit. The charges
relating to J.O. were dropped upon learning that J.O. would not be testifying. See, e.g., State
v. Newman, 109 N.M. 263, 268, 784 P.2d 1006, 1011 (Ct. App. 1989) (holding that it was
not ineffective assistance of counsel where defense counsel requested an admonition instead
of a mistrial). Defense counsel did not object to the hearsay testimony relating to J.O. when
it came in through Detective Harris, even after an obvious attempt by the district court to
bring the testimony to defense counsel’s attention as hearsay. This suggests that defense
counsel was aware that hearsay testimony had come in but saw no merit in requesting a
mistrial because the hearsay testimony related to the nonappearing victim of the dropped
charges. At the beginning of Detective Harris’s cross-examination, defense counsel brought
out J.O.’s allegations again, ostensibly to impeach J.O. through Detective Harris.
Furthermore, defense counsel did not “entirely fail[] to subject the prosecution’s case to
meaningful adversarial testing.” Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis omitted)
(internal quotation marks and citation omitted). To impeach J.O. through Detective Harris
and to discover the tenor of Detective Harris’s investigation is exactly what defense counsel
attempted to do.

{83} As to Defendant’s other contentions, we note that defense counsel was an active
participant at the trial, attempting to impeach the credibility of the witnesses, filing pre-trial
motions addressing numerous counts of the indictment, filing a motion to suppress, and
participating in hearings arising from his motions. See, e.g., Newman, 109 N.M. at 268, 784
P.2d at 1011 (finding the defendant’s claim of ineffective assistance of counsel unpersuasive

23
when defense counsel acted “vigorously” on the defendant’s behalf). We will not further
“review the record to see how many objections were raised by defense counsel or how clever
was the cross-examination of the state’s witnesses. To be effective, counsel need not be a
wizard. Some cases are simply hard to defend.” State v. Brazeal, 109 N.M. 752, 757, 790
P.2d 1033, 1038 (Ct. App. 1990).

{84} “[E]ven if counsel’s performance was constitutionally defective, the defendant must
still affirmatively prove prejudice.” Id. Defendant has failed to show that his counsel was
ineffective in representing him or that his case was prejudiced by his counsel’s
representation.

CONCLUSION

{85} We affirm Defendant’s convictions.

{86} IT IS SO ORDERED.

RODERICK T. KENNEDY, Judge

WE CONCUR:

JONATHAN B. SUTIN, Chief Judge

MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Dietrich, No. 25,220

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

CL CRIMINAL LAW
CL-CP Criminal Sexual Penetration
CL-SX Sexual Offences

CA CRIMINAL PROCEDURE
CA-AW Affidavit for Search Warrant
CA-CW Children as Witnesses

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CA-GJ Grand Jury
CA-IN Indictment
CA-MR Motion to Suppress
CA-PJ Prejudice
CA-PA Probable Cause
CA-RT Right to Confrontation
CA-SZ Search and Seizure
CA-SW Search Warrant
CA-SE Substantial or Sufficient Evidence

EV EVIDENCE
EV-CE Character Evidence
EV-CH Children as Witnesses
EV-HR Hearsay Evidence
EV-PG Photographs
EV-PH Physical Evidence
EV-PJ Prejudicial Evidence
EV-PA Prior Acts or Statements
EV-PB Probative Value vs. Prejudicial Effect
EV-SS Substantial or Sufficient Evidence

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