State v. [Augustine] Tapia

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _______________ 3 Filing Date: February 17, 2015 4 NO. 32,277 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 AUGUSTINE TAPIA, 9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Jacqueline D. Flores, District Judge

12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 Jacqueline R. Medina, Assistant Attorney General 15 Albuquerque, NM

16 for Appellee

17 Jorge A. Alvarado, Chief Public Defender 18 David Henderson, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 1 OPINION 2 HANISEE, Judge. 3 {1} Defendant appeals his conviction for five counts of criminal sexual penetration 4 of a minor (CSPM), five counts of criminal sexual contact of a minor (CSCM), and 5 four counts of kidnapping. He asserts: (1) there was insufficient evidence presented 6 at trial to support all but one of his convictions for CSPM and CSCM; (2) the State 7 failed to prove two counts of CSPM were separate and distinct from one another; (3) 8 the conduct charged as kidnapping was incidental to sexual assault and not a separate 9 crime; (4) the jury instructions were contradictory, resulting in fundamental error; and 10 (5) the district court erred by allowing a non-expert witness to testify that her findings 11 were consistent with sexual abuse. We affirm in part, reverse in part, and remand for 12 resentencing in accordance with this Opinion. 13 BACKGROUND 14 {2} Defendant’s convictions are a product of multiple instances of sexual assault 15 perpetrated against his eight-year-old daughter, H.T., and his four-year-old step- 16 daughter, L.T. Both victims testified at trial, as did the physician’s assistant (the PA) 17 who examined the girls following the sexual assaults. Due to the numerous counts of 18 conviction and the many issues on appeal, we reserve further discussion of the 19 underlying facts for the accompanying analysis.

1 CSPM CONVICTIONS 2 {3} A jury convicted Defendant of six instances of CSPM: Counts 2, 8, 11, 12, and 3 13.1 Counts 2 and 13 charged Defendant with digitally penetrating the vaginas of L.T. 4 and H.T., respectively. Count 8 charged Defendant with engaging in anal intercourse 5 with H.T. Counts 5, 7, 11, and 12 arose from Defendant engaging in what constitutes 6 the statutory definition of “sexual intercourse” with L.T. and H.T. 7 {4} Defendant appeals his CSPM convictions on Counts 2, 8, 11, and 13, asserting 8 that there was insufficient evidence presented at trial to support digital vaginal 9 penetration, anal penetration, or “sexual intercourse.”2 Our sufficiency of the 10 evidence review is a two-step process: we first view the evidence in the light most 11 favorable to the verdict, and then we legally determine “whether the evidence viewed 12 in this manner could justify a finding by any rational trier of fact that each element 13 of the crime charged has been established beyond a reasonable doubt.” State v. 14 Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation

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15 Following the district court’s dismissal of some counts prior to submission to 16 the jury, the remaining seventeen counts were renumbered consecutively. Within this 17 opinion, we numerically refer to the counts as each was renumbered.

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18 Although Count 12 is identically worded to Count 11 in that it alleges that 19 Defendant engaged in “sexual intercourse” with H.T., we note that Defendant does 20 not appeal this conviction. Therefore, we will not address it in our analysis. See City 21 of Santa Fe v. Komis, 1992-NMSC-051, ¶ 22, 114 N.M. 659, 845 P.2d 753 (“Issues 22 not briefed will not be reviewed by this Court.”).

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1 marks and citation omitted). We do not reweigh the evidence, nor will we substitute 2 our judgment for that of the fact finder so long as the record contains sufficient 3 evidence to support the verdict. State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 4 126, 753 P.2d 1314. “Where . . . a jury verdict in a criminal case is supported by 5 substantial evidence, the verdict will not be disturbed on appeal.” Id. 6 {5} “Criminal sexual penetration” as defined by NMSA 1978, Section 30-9-11(A) 7 (2009), in relevant part, is “the unlawful and intentional causing of a person to engage 8 in sexual intercourse . . . or the causing of penetration, to any extent and with any 9 object, of the genital or anal openings of another[.]” UJI 14-982 NMRA defines 10 “sexual intercourse” as “the penetration of the vulva or vagina, the female sex organ, 11 by the penis . . . to any extent.” The “vulva” is defined as “the external parts of the 12 female organ of sexual intercourse[,] . . . composed of the major and minor lips, the 13 clitoris and the opening of the vagina[,]” and the “vagina” is “the canal or passage for 14 sexual intercourse in the female, extending from the vulva to the neck of the uterus.” 15 UJI 14-981 NMRA. 16 A. Counts 2 and 13: Digital Vaginal Penetration 17 {6} The State alleged in Counts 2 and 13 that Defendant penetrated the vaginas of 18 L.T. and H.T., respectively, with his finger. At trial, L.T. testified that one night when 19 she was alone in the living room with Defendant, he “rubbed” her “privates” with his

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1 hand. L.T. did not provide any additional details about specifically how or where 2 Defendant touched her. The PA who examined L.T. for evidence of sexual abuse, 3 later that same day, testified that she observed redness on L.T.’s labia majora and 4 minora, including a small scratch to the right labia minora. The PA indicated that her 5 observations could be the result of sexual abuse, L.T.’s underwear being too tight, 6 scratching herself, “or something like that.” Similarly, as to Count 13, H.T. testified 7 that Defendant would “slide his fingers up and down on [her] private part.” H.T. 8 elaborated that Defendant would not move his fingers “in and out” but “up and 9 down.” When the PA examined H.T. several days later, she did not observe any 10 injuries. 11 {7} As to each count, the jury was instructed that in order to find Defendant guilty 12 of CSPM, it must find that the State proved that Defendant “caused the insertion, to 13 any extent, of a finger into the vagina” of L.T. and H.T. Although it was instructed 14 as to the statutory definitions of both “vagina” and “vulva,” the jury was not told that 15 penetration of the latter was sufficient to find Defendant guilty of either or both 16 counts. Defendant contends that this exclusion is fatal to the convictions. The State 17 answers that use of the term “vagina” in the jury instructions for Counts 2 and 13 was 18 sufficient to support convictions for CSPM premised upon the testimony of L.T. and 19 H.T. because “vagina” as contained in the jury instruction “was meant to convey not

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1 just the vaginal canal but rather the area of the vulva or genital openings of the 2 female.” The State relies on this Court’s clarification in State v. Tafoya that the 3 definition of sexual intercourse, as contained within the jury instruction for CSPM, 4 includes not only penetration of the vagina but of the vulva as well. 2010-NMCA- 5 010, ¶ 52, 147 N.M. 602, 227 P.3d 92. 6 {8} It is true that in Tafoya, we held that the definition of “sexual intercourse” 7 includes penetration not just of the vagina, but also of the vulva; thus, we concluded 8 that the CSPM statute was meant to be inclusive of the “broader sense of the female 9 genitalia as opposed to just the vaginal canal.” Id. Indeed, the statutory definition of 10 vagina is inclusive of the vulva. See UJI 14-981 (stating that the “vagina” is “the 11 canal or passage for sexual intercourse in the female, extending from the vulva to the 12 neck of the uterus”). Our holding in Tafoya in no way altered the anatomical 13 definition of “vulva” and “vagina” as defined by our Supreme Court, see UJI 14-981, 14 when it amended UJI 14-982 (2010), nor do we view Tafoya as requiring anatomical 15 specificity in every case in which the sexual organs of a child have been penetrated 16 to the slightest degree. Compare UJI 14-982 (2009) with UJI 14-982 (2010) 17 (modifying the definition of sexual intercourse to include penetration of the vagina 18 as well as the vulva). To the contrary, the statutory language clearly instructs that 19 CSPM occurs if the Defendant engaged in an act of “penetration[] to any extent.”

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1 Section 30-9-11(A). Although there may be circumstances of a given case that 2 warrant scrutiny of particular parts of the genitalia, pursuant to the sufficiency of the 3 evidence standard of review, we review the evidence in the light most favorable to 4 the verdict this jury rendered. See Sutphin, 1988-NMSC-031, ¶ 21 (stating that under 5 a sufficiency of the evidence standard of review, we “must view the evidence in the 6 light most favorable to the state, resolving all conflicts therein and indulging all 7 permissible inferences therefrom in favor of the verdict”). 8 {9} Moreover, at trial Defendant elected not to challenge the CSPM charges against 9 him based upon any absence of definitional distinctions, but rather upon the victims’ 10 lack of credibility and the factual impossibility of the occurrences of the charged 11 crimes. Defendant’s closing argument was premised upon the difficulty of defending 12 this case, stating “how does one . . . explain [that] a child isn’t being truthful[?] We 13 all want to believe that a child wouldn’t lie about something like this[.]” Yet 14 Defendant now argues that the evidence and the inferences from the evidence do not 15 support the jury verdict, not from the standpoint of non-occurrence, but from the 16 asserted failure of the State to present evidence of precisely which portion of the 17 victims’ genitalia were penetrated by his fingers. When reviewing the presence or 18 absence of substantial evidence on appeal, however, we need not be so anatomically 19 exacting. Here, the nature of the acts testified to by both victims involved physical

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1 interaction that was skin to skin, and during which Defendant rubbed or repetitiously 2 slid his fingers upon both child’s unclothed genital openings. Moreover, given that 3 L.T. and H.T. were seven and eleven years old at the time they testified, respectively, 4 it would be unwise for us to establish within our caselaw any requirement that the 5 trial record reflect comprehension of anatomic specifics or the technical nuances of 6 what constitutes penetration under the applicable jury instruction. Applying the 7 definitions of vagina and vulva in light of the requirement that penetration minimally 8 occur to any extent, the testimony given by both victims, and the PA as to L.T., was 9 sufficient to allow a jury to utilize its fact finding autonomy to find that the State 10 satisfied its evidentiary burden as to the penetrative element of CSPM within Counts 11 2 and 13. On the basis of this record as to these Counts, we affirm. 12 B. Count 8: Anal Penetration 13 {10} Count 8 alleged that Defendant engaged in anal intercourse with H.T. At trial, 14 H.T. testified that Defendant “got his private part and put it up where I go poop.” On 15 cross-examination when defense counsel sought to determine whether Defendant “put 16 his private on [her] butt . . . or in [her] butt[,]” H.T. clarified that it actually went “in.” 17 The jury was instructed that in order to find Defendant guilty of CSPM as to Count 18 8, the State must prove that Defendant “caused [H.T.] to engage in anal 19 intercourse[.]” It was also instructed that “anal intercourse” is “the penetration of the

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1 anus by the penis to any extent” and that the “ ‘anus’ is the opening to the rectum.” 2 The jury found Defendant guilty on Count 8. 3 {11} On appeal, Defendant contends that CSPM requires penetration of the anal 4 opening, and because H.T. was never “asked whether she understood the difference 5 between penetrating the cheeks of the buttocks and penetrating the anus itself[,]” 6 there was no evidence of physical penetration. Defendant maintains that H.T.’s 7 testimony was “too vague and conclusory to allow the jury to infer beyond a 8 reasonable doubt that [Defendant] penetrated her anus, as opposed to touching her 9 buttocks with his unclothed penis.” Defendant relies on Herron v. State for the 10 proposition that “[e]vidence equally consistent with two hypotheses tends to prove 11 neither.” 1991-NMSC-012, ¶ 18, 111 N.M. 357, 805 P.2d 624. 12 {12} It is well established that in “prosecutions for [CSP], the testimony of the 13 victim need not be corroborated and lack of corroboration has no bearing on weight 14 to be given to the testimony.” State v. Nichols, 2006-NMCA-017, ¶ 10, 139 N.M. 72, 15 128 P.3d 500 (alterations, internal quotation marks, and citation omitted). 16 Furthermore, “[t]he determination of the weight and effect of evidence, including all 17 reasonable inferences to be drawn from both direct and circumstantial evidence, is 18 reserved for determination by the trier of facts, which in this case is the jury.” State 19 v. Luna, 1979-NMCA-048, ¶ 15, 92 N.M. 680, 594 P.2d 340. This Court will not

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1 weigh the evidence presented during the trial. Id. H.T.’s testimony made very clear 2 that Defendant put his penis both “in [her] butt” and “up where [she goes] poop.” By 3 its guilty verdict, the jury determined that Defendant penetrated H.T.’s anus. See State 4 v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (“Juries are presumed 5 to have followed the written instructions.”). We will not substitute our judgment for 6 that of the jury. Sutphin, 1988-NMSC-031, ¶ 21. Because evidence within the record 7 is sufficient to support Defendant’s conviction for CSPM in Count 8, we affirm. 8 C. Counts 5, 7, and 11: “Sexual Intercourse” 9 {13} Counts 5, 7, and 11 respectively alleged that Defendant committed CSPM by 10 engaging in “sexual intercourse” with H.T. and L.T. The State maintained that 11 Defendant penetrated the labia of both victims with his penis, an act that it termed 12 “labial coitus.” For each count, the jury was provided with the CSPM instruction; 13 however, as to Count 5, the jury was alternatively instructed as to CSCM. The jury 14 ultimately found Defendant guilty of CSPM as to H.T. in Count 11 and guilty of 15 CSCM as to L.T. in Count 5. Defendant was acquitted of Count 7. 16 {14} Defendant appeals all three counts, arguing that the State failed to prove its 17 theory of labial coitus as neither victim testified that any penetration occurred. 18 Because Defendant was acquitted of Count 7, there is no basis on which to review 19 Defendant’s argument. As to Count 5, Defendant was convicted of CSCM, which

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1 contains no penetrative element. We therefore need only review Defendant’s 2 argument as it pertains to his CSPM conviction in Count 11. 3 {15} Regarding Count 11, the jury was instructed that in order to find Defendant 4 guilty, the State must have proven that Defendant “caused [H.T.] to engage in sexual 5 intercourse[.]” The jury was definitionally instructed that “[s]exual intercourse means 6 the penetration of the vulva or vagina . . . by the penis” and that the “vulva” is “the 7 external parts of the female [sex] organ . . . composed of the major and minor lips, the 8 clitoris and the opening of the vagina.” Accordingly, to any extent that Defendant’s 9 penis penetrated beyond or within H.T.’s labia majora, the outermost lips of the 10 vulva, such would constitute “sexual intercourse” for purposes of CSPM. UJI 14-981; 11 see § 30-9-11(A). 12 {16} As to Count 11, H.T. testified that she was made to remove her clothing and 13 await Defendant on her mother’s bed prior to the first time he sexually assaulted her. 14 Once Defendant had removed his own clothing, he “put his private part on [her 15 private part]” and started moving “up and down.” H.T. additionally explained that 16 “every time after he abused [her], he would get up and . . . shake his private part and 17 white stuff would come out.” As we have stated, we allow a jury all reasonable 18 inferences in support of a verdict, and we view the evidence in the light most 19 favorable to that verdict. State v. Haar, 1990-NMCA-076, ¶ 14, 110 N.M. 517, 797

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1 P.2d 306. Under this standard, we conclude there is sufficient evidence for the jury 2 to determine that Defendant’s repeated movement of his penis against H.T.’s 3 unclothed genitalia, prior to the emission she witnessed, penetrated the labia majora 4 to the slightest extent or beyond, and thereby met the penetrative element of the 5 “sexual intercourse” CSPM jury instruction. Considered cumulatively, the act 6 described by H.T. was evidence upon which a jury could conclude that penetration 7 “to any extent” took place. Section 30-9-11(A). We will not second guess or 8 substitute our judgment for such a jury’s determination of fact, nor require a child 9 victim to utilize specific and exacting terminology in the context of a sexual assault 10 to establish the threshold of abuse a jury must consider given the aggregate testimony 11 provided by such a witness. We affirm Defendant’s conviction on Count 11. 12 CSCM CONVICTIONS 13 A. Counts 3 and 4 14 {17} Defendant was charged with two counts of CSCM based on the State’s 15 assertion that Defendant twice forced L.T. to place her hand upon his penis. The jury 16 convicted Defendant on both counts. Defendant appeals these convictions, arguing 17 that there was insufficient evidence presented at trial to prove two separate and 18 distinct counts of CSCM. Despite L.T.’s testimony, Defendant maintains that there 19 was insufficient evidence to support the convictions because H.T.’s testimony, that

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1 she was present during and perceived the nature of this abuse of L.T., was both self- 2 contradictory and incompetent due to her indirect personal knowledge of the relevant 3 facts. 4 {18} At the outset, we note that the language within and the jury instructions for 5 both Counts 3 and 4 are identical, requiring conviction only upon the jury’s 6 determination beyond a reasonable doubt that Defendant “caused [L.T.] to touch [his] 7 penis . . . [and] [t]his happened in New Mexico on or between the 26th day of July, 8 2008 and the 12th day of November, 2009.” Despite their seeming 9 indistinguishability, L.T. and H.T. provided testimony in support of separate acts of 10 CSCM. See State v. Dominguez, 2008-NMCA-029, ¶ 10, 143 N.M. 549, 178 P.3d 834 11 (sanctioning identically worded counts “[w]hen a child cannot remember specific 12 dates, . . . if the child or other witnesses are able to provide facts sufficient to identify 13 distinct incidents of abuse”). L.T. specifically testified that Defendant “touched [her] 14 privates and then he made [her] touch his.” She elaborated, stating that “I touched [his 15 penis] with my hand and then . . . he . . . got my hand and he made [me] touch it and 16 then I pulled my hand off and he kept pulling it back.” Similarly, H.T. testified to two 17 incidents where she and L.T. were both in the same room with Defendant. H.T. stated 18 that during both incidents Defendant “made us put . . . our hand on his private part.” 19 When asked whether she directly observed L.T.“do that to him[,]” however, H.T.

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1 responded that she had not. 2 {19} L.T.’s testimony alone is sufficient to establish one count of CSCM. See 3 Sutphin, 1988-NMSC-031, ¶ 21. Additionally, H.T.’s testimony served to not only 4 circumstantially corroborate L.T.’s testimony regarding the act Defendant made L.T. 5 perform, but also to establish its occurrence on two occasions. As to the nature of the 6 specific abuse, H.T. testified that Defendant made both her and L.T. touch his penis, 7 but conceded that she did not directly see L.T.’s hand when it touched Defendant’s 8 penis. Defendant maintains that if H.T. “subjectively believed but did not actually see 9 [L.T.] being abused, her belief was not competent testimony” under Rule 11-602 10 NMRA. 11 {20} Defendant is correct that our Supreme Court recognizes “[b]elief or opinion 12 testimony alone, no matter how sincere[, not to be] equivalent to personal 13 knowledge” and therefore not admissible evidence. Martinez v. Metzgar, 1981- 14 NMSC-126, ¶ 9, 97 N.M. 173, 637 P.2d 1228. But Defendant’s argument in this 15 regard is misplaced. H.T. did not testify that she believed, thought, or assumed that 16 L.T. touched Defendant’s penis. She stated that on two occasions Defendant “made 17 us put . . . our hand on his private part.” The circumstances under which she and L.T. 18 found themselves, which included the individual actions Defendant required of H.T., 19 were described to the jury not as belief or opinion, but as an event of which H.T.

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1 possessed personal knowledge, however imperfect. As to one participant in the events 2 she described, H.T.’s testimony directly corroborated L.T.’s testimony, leaving the 3 jury with both direct and circumstantial evidence upon which it could resolve the 4 separate and distinct questions of fact associated with Counts 3 and 4. See State v. 5 Sena, 2008-NMSC-053, ¶ 11, 144 N.M. 821, 192 P.3d 1198 (“When parts of a 6 witness’s testimony are conflicting and ambiguous, it is the exclusive province of the 7 jury to resolve the factual inconsistencies in that testimony.” (alterations, internal 8 quotation marks, and citation omitted)). Because it is the jury’s role to resolve any 9 conflict in witness testimony, and H.T.’s testimony regarding two incidents of contact 10 could justify a finding by a rational trier of fact that Defendant “caused [L.T.] to 11 touch [his] penis” on two separate occasions, we affirm Defendant’s convictions of 12 Counts 3 and 4. See id. 13 JURY INSTRUCTIONS 14 {21} Defendant next requests that we reverse each CSCM and CSPM conviction and 15 remand for a new trial on the basis that the jury instructions defining “sexual 16 intercourse” and “criminal sexual contact” “hopelessly confus[ed]” the jury. 17 Defendant’s argument again arises from the alteration in the jury instruction for 18 “sexual intercourse” that followed this Court’s decision in Tafoya. Prior to Tafoya, 19 UJI 14-982 defined “sexual intercourse” as “the penetration of the vagina . . . by the

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1 penis . . . to any extent.” UJI 14-982 (2009). However, in response to our suggestion 2 that the instruction be modified, our Supreme Court altered it specifically to include 3 “penetration of the vulva or vagina[.]” UJI 14-982 (2010). Defendant asserts that 4 because the CSCM instruction still includes “vagina” as one of the applicable 5 alternative points of contact, it is impossible for a jury to distinguish between CSCM 6 and “sexual intercourse” for the purposes of CSPM because it is impossible to contact 7 the vagina without first penetrating the vulva. UJI 14-909 NMRA. 8 {22} Defendant maintains that this instructional error fundamentally undermined his 9 CSPM and CSCM convictions.3 “The doctrine of fundamental error applies only 10 under exceptional circumstances and only to prevent a miscarriage of justice.” State 11 v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Fundamental error 12 review serves to safeguard a defendant’s substantive rights under two circumstances: 13 (1) “where a defendant has been convicted of a crime despite undisputable 14 innocence” and (2) “when a mistake in process makes a conviction fundamentally

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15 We assume Defendant requests fundamental error review on the basis that this 16 asserted objection was not preserved in the district court. See State v. Castillo, 2011- 17 NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 760 (stating that when a defendant fails 18 to preserve an argument in district court, this Court can only review for fundamental 19 error). Defendant fails to provide a citation to the record where he objected to the 20 instructions now challenged, and this Court will not search the record to ascertain 21 whether an issue was properly preserved absent a transcript reference by the 22 challenging party. State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829.

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1 unfair notwithstanding the apparent guilt of the accused.” State v. Nevarez, 2010- 2 NMCA-049, ¶ 24, 148 N.M. 820, 242 P.3d 387 (internal quotation marks and citation 3 omitted). 4 {23} The first component in a fundamental error analysis requires that we 5 “determine whether a reasonable juror would have been confused or misdirected by 6 the jury instruction.” Barber, 2004-NMSC-019, ¶ 19. If we determine that there was 7 an instructional error, we then “review the entire record, placing the jury instructions 8 in the context of the individual facts and circumstances of the case, to determine 9 whether the defendant’s conviction was the result of a plain miscarriage of justice.” 10 Nevarez, 2010-NMCA-049 ¶ 25 (alteration, internal quotation marks, and citation 11 omitted). We have held that “[t]here is no miscarriage of justice where, despite any 12 misunderstanding by the jury, the circumstances of the case demonstrate that all the 13 necessary elements of the offense were satisfied beyond a reasonable doubt.” Id. ¶ 26. 14 {24} Defendant asserts that the district court fundamentally erred in instructing the 15 jury on all counts of CSPM and CSCM. Defendant was convicted of CSCM on 16 Counts 3, 4, 5, 9, and 14, and of CSPM on Counts 2, 11, 12, and 13.4 We note that the

4 17 Defendant was also convicted of CSPM as to Count 8. However, because 18 Count 8 concerned anal penetration, we do not address it herein and consider only 19 those convictions containing an element of genital contact or penetration.

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1 only count on which the jury received both an instruction for CSPM and CSCM was 2 Count 5. As to each remaining count, the jury was solely instructed on either CSPM 3 or CSCM, and therefore, there was no possible risk of confusion between the 4 requisite elements of each offense. As such, we will solely address Count 5 in our 5 fundamental error analysis and reject Defendant’s overly broad contention that 6 somehow the distinction in verbiage within the sexual intercourse instruction and the 7 CSCM instruction theoretically bore aspects of overlapping error that rendered infirm 8 the convictions as to either crime. 9 {25} Initially, we do not disagree that following the change in the definition of 10 “sexual intercourse” to include “penetration of the vulva,” there ultimately can be no 11 contact with the vagina without a penetration of the vulva occurring. See UJI 14-981 12 (indicating that the opening of the vagina is encompassed within the vulva). We 13 acknowledge that the overlap in the language of the CSCM instruction and the sexual 14 intercourse instruction could have resulted in some juror confusion. However, we do 15 not conclude that incongruencies in the jury instructions were fatal to the jury’s 16 comprehension of the definitions within or the elements of the crimes of which it 17 chose to convict Defendant or that any such discrepancy amounted to fundamental 18 error. 19 {26} As to Count 5, the jury was instructed that in the event that it had a reasonable

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1 doubt as to whether Defendant committed CSPM, it must proceed to determine 2 whether Defendant committed the lesser included offense of CSCM. To find 3 Defendant guilty of CSCM, the jury was first instructed that he must have “touched 4 or applied force to the vagina and/or groin area of [L.T.] with his penis[.]” The jury 5 did not find Defendant guilty of CSPM on Count 5, but did find him guilty of CSCM. 6 Similarly, the jury acquitted Defendant of Count 7, which reflects its reasoned belief 7 that the State failed to prove Defendant engaged in “sexual intercourse” with H.T. and 8 neither penetrated her vulva or vagina as set forth in Count 7. Our review of the 9 record regarding Count 5, however, indicates that L.T. provided specific testimony 10 describing how Defendant unzipped her pajamas, pulled down her underwear, and lay 11 on top of her with his unclothed “private” touching her unclothed “private,” skin to 12 skin. It is clear that the jury determined that this incident did not amount to CSPM as 13 it convicted Defendant of the lesser-included CSCM, which instructed that Defendant 14 could be found guilty if he “touched or applied force to the vagina and/or groin[.]” 15 {27} Based on L.T.’s testimony, the jury could have reasonably determined that 16 Defendant touched her unclothed groin area with his penis, amounting to CSCM, and 17 it is not our role to disturb this finding on appeal. See Sutphin, 1988-NMSC-031, 18 ¶ 21. Accordingly, “no distinct possibility exists from the evidence that the jury 19 convicted Defendant without finding all the elements beyond a reasonable doubt.”

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1 Barber, 2004-NMSC-019, ¶ 26. We conclude that the CSCM jury instruction, even 2 though arguably flawed from the standpoint of anatomical definitional accuracy, did 3 not create such confusion in the jury that it would undermine the judicial process. 4 However, as a result of any ambiguity or contradiction that may arise out of the 5 change in the definition of “sexual intercourse” under UJI 14-982, we believe that 6 “vagina” should be removed from the list of anatomy that can be included within the 7 jury instructions for any criminal sexual contact. See Tafoya, 2010-NMCA-010, ¶ 52 8 (calling into question the wording of UJI 14-982 and making a suggestion for 9 appropriate modification). 10 KIDNAPPING 11 {28} The jury convicted Defendant of four kidapping charges: Counts 6, 10, 15, and 12 16. Kidnapping in New Mexico is defined as the “unlawful taking, restraining, 13 transporting or confining of a person, by force, intimidation or deception, with 14 intent . . . to inflict . . . a sexual offense on the victim.” NMSA 1978, § 30-4-1(A)(4) 15 (2004). These charges arose from conduct attendant to the multiple sexual assaults 16 Defendant perpetrated against H.T. and L.T. Defendant challenges these convictions, 17 arguing that the Legislature did not intend to punish related incidental movement and 18 restraints occurring prior to and during sexual assaults as the separate crime of 19 kidnapping. Defendant further maintains that the evidence supporting his kidnapping

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1 convictions was insufficient as it failed to establish conduct beyond actions that were 2 contemporaneous with and incidental to the sexual assaults. 3 {29} We agree. Our review of these four convictions commences with a query of 4 whether, in the light most favorable to the verdict, see State v. Gipson, 2009-NMCA- 5 053, ¶ 4, 146 N.M. 202, 207 P.3d 1179, the restraints and movements to which the 6 victims testified are sufficient, as a matter of law, to support convictions for 7 kidnapping. State v. Trujillo, 2012-NMCA-112,¶ 6, 289 P.3d 238, cert. granted, 8 2012-NMCERT-011, 297 P.3d 1227. This Court has already held that “the 9 Legislature did not intend to punish as kidnapping restraint or movement[s] that [are] 10 merely incidental to another crime.” Id. ¶ 1. In Trujillo, we analyzed whether the 11 “momentary restraint of [a v]ictim in the course of a fight” was meant to be punished 12 as kidnapping. 2012-NMCA-112, ¶ 22. After examining and interpreting our 13 kidnapping statute, as well as those of other states, we determined that New Mexico 14 follows the majority position that “kidnapping statutes do not apply to unlawful 15 confinements or movements incidental to the commission of other felonies.” Id. ¶ 31 16 (internal quotation marks and citation omitted). We additionally examined the three 17 major tests employed by other courts to determine whether a restraint or movement 18 is incidental to another crime, concluding that the overarching question of these three 19 tests is “whether the restraint or movement increases the culpability of the defendant

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1 over and above his culpability for the other crime.” Id. ¶¶ 31-38. While we found the 2 tests instructive to determining what conduct qualifies as incidental to another crime, 3 we declined to explicitly adopt any of the tests on the basis that the facts of that case 4 so clearly evidenced incidental conduct. Id. ¶ 39. Thus, we were able to make the 5 determination as a matter of law. Id. ¶ 42. However, we did make it clear that the 6 determination of incidental conduct was fact dependent based on the totality of the 7 circumstances and stated our preference that more complicated factual situations are 8 better resolved by a jury. Id. ¶¶ 42-43. 9 {30} In this case, our review of the record reflects that L.T. testified to Count 6, and 10 H.T. testified to Counts 15, 16, and 10, respectively referred to as the “first time,” a 11 “different time,” and the “last time[.]” As to Count 6, L.T. testified that before 12 Defendant sexually assaulted her, she, H.T., and Defendant were “in [her] mom’s 13 room.” H.T. left the room, and L.T. remained in the bedroom with Defendant. L.T. 14 stated that Defendant then lay on top of her on the bed and sexually assaulted her; no 15 other evidence of restraint on her movement exists within the record. Similarly, H.T. 16 testified that the “first time” Defendant sexually assaulted her, he “made [her] go to 17 [her] mom’s room.” She later described the same incident, explaining that Defendant 18 “took [her] to [her] mom’s room.” With regard to the “different time[,]” H.T. 19 explained that after Defendant “made” her remove her clothing, they “went to

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1 [another] room[,]” where the sexual assault occurred. The “last time” Defendant 2 sexually assaulted H.T., she testified that she and Defendant were “in [her] mom’s 3 room[,] . . . [h]e made [her] take off [her] clothes[,]” and Defendant and H.T. “got on 4 [her] mom’s bed and . . . [Defendant] moved up and down and he made [her] put [her] 5 mouth on top of his private.” 6 {31} The State acknowledges that the sole supporting evidence of kidnapping in 7 Count 6 is that Defendant restrained L.T. by lying on top of her during the sexual 8 assault. It further agrees that based on this Court’s determination in Trujillo, lying on 9 top of a victim during a sexual assault is insufficient to support a kidnapping 10 conviction. “Although the [s]tate concedes this issue, we are not bound to accept the 11 [s]tate’s concession.” State v. Palmer, 1998-NMCA-052, ¶ 12, 125 N.M. 86, 957 P.2d 12 71. However, in employing the Trujillo analysis, we determine that the nature of 13 Defendant’s incidental restraint did not increase his culpability beyond that already 14 inherent to any sexual assault. L.T.’s testimony does not assert that the restraint was 15 any longer or greater than that necessary to commit sexual assault. See Trujillo, 2012- 16 NMCA-112, ¶¶ 34, 39 (citing one test for determining whether a restraint is incidental 17 to another crime as “whether a defendant intended to prevent the victim’s liberation 18 for a longer period of time or to a greater degree than that which is necessary to 19 commit the other crime” (alteration, internal quotation marks, and citation omitted)).

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1 Furthermore, L.T.’s testimony does not establish that the restraint imposed increased 2 her risk of harm or the severity of the assault beyond that inherent to the underlying 3 crime. See id. ¶¶ 36, 39 (citing a second test for determining incidental conduct, 4 inquiring into whether the movements of the victim “substantially increase[d] the risk 5 of harm over and above that necessarily present” in the accompanying crime (internal 6 quotation marks and citation omitted)). Lastly, the restraint herein did not serve to 7 decrease Defendant’s risk of detection or the difficulty of the commission of the 8 crime. See id. ¶ 37 (citing this third test for determining conduct incidental to a 9 crime). Under any criterion we have favored or applied, the restraint L.T. described 10 was incidental to the sexual assault perpetrated upon her and did not establish 11 conduct that the Legislature intended to support a kidnapping conviction. 12 {32} As to Count 10, H.T. did not explicitly testify that Defendant took, restrained, 13 transported, or confined her. She stated that when she and Defendant were in her 14 mom’s room, he made her take off her clothes, and the two “got on [the] bed” where 15 he sexually assaulted her. Notwithstanding, the State maintains that “[a] jury could 16 reasonably infer from [the] testimony that [D]efendant exerted an independent 17 amount of force or restraint on [H.T.] when he made her [remove her clothes] prior 18 to exerting force or restraint during the sexual assault.” Again employing the Trujillo 19 analysis, any incidental restraint Defendant used in “making” H.T. remove her

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1 clothing is not the type of separate conduct that the Legislature intended to punish as 2 kidnapping. This conduct did not increase Defendant’s culpability beyond that 3 inherent to the assault; the restraint was not longer or greater than necessary to 4 complete the assault, see id. ¶¶ 34, 39; it did not increase the risk of harm to H.T. or 5 the severity of the assault, see id. ¶¶ 36, 39; and the restraint used to compel the 6 removal of H.T.’s clothes in this situation is inherent to the sexual assault and was not 7 done to make the commission of the crime easier or less detectable. See id. ¶ 37. We 8 conclude that any restraint that was utilized to compel H.T. to remove her clothing 9 was incidental to the sexual assault. 10 {33} As to Counts 15 and 16, we recognize that instead of examining whether a 11 restraint was incidental to a sexual assault, we are called upon to examine whether 12 a movement was incidental to a sexual assault. Although Trujillo primarily reviewed 13 whether an instance of restraint was incidental to a crime, one of the major tests this 14 Court employed in our analysis was the test detailed by the Supreme Court of 15 California in People v. Daniels, 459 P.2d 225 (Cal. 1969) (in bank). The Daniels 16 court specifically examined whether the movement of a victim from room to room in 17 order to commit robbery and rape constituted kidnapping. Id. at 227-28. The 18 California court, having already recognized that a movement in the course of a 19 kidnapping must be one that is not merely incidental to the commission of another

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1 crime, employed a two-prong test to determine whether the movements were 2 incidental to the commission of another crime. Id. at 231, 238; see People v. Rayford, 3 884 P.2d 1369, 323-24 (Cal. 1994) (summarizing the Daniels test). 4 {34} The first prong analyzed the scope and nature of the movement in the context 5 of the environment in which the movement occurred, and the second prong examined 6 whether the movement subjected the victim to a substantial increase in risk of harm 7 beyond that inherent in the accompanying crime. Id. The Court determined that when 8 in the course of committing a crime, “a defendant does no more than move [the] 9 victim around inside the premises” in which the victim is already found, the 10 movement generally will not be determined to constitute kidnapping. Daniels, 459 11 P.2d at 238. Although the Court refrained from a detailed analysis into each prong of 12 the test, it concluded that the conduct at issue constituted “brief movements” that 13 were compelled in furtherance of the robbery that did not subject the victims to a 14 substantial increase in a risk of harm above and beyond the type of movement 15 inherent in a robbery and, therefore, were incidental. Id. 16 {35} As we did in Trujillo, in the context of the restraint of a victim, we apply the 17 Daniels analysis in the context of a movement of a victim. Trujillo, 2012-NMCA- 18 112, ¶ 39. Here, H.T. testified that as to Count 15, Defendant “made” her go or “took” 19 her into another room, and as to Count 16, she and Defendant “went” into another

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1 room. In both instances, the movement was from one room to another in the family 2 residence where they were both already located. Furthermore, this movement did not 3 subject H.T. to a substantial increase in risk of harm above and beyond that inherent 4 in a sexual assault. See Daniels, 459 P.2d at 238. Applying the Daniels test to the 5 facts before us, we conclude these brief movements from one room to another, in 6 furtherance of a sexual assault, were incidental to those crimes and cannot support 7 separate kidnapping convictions. 8 {36} Accordingly, as to Counts 6, 10, 15, and 16, we reverse Defendant’s 9 convictions as a matter of law, and conclude that the restraints and movements 10 described in the testimony were incidental to the sexual assaults, did not exceed the 11 conduct inherent to a sexual assault, and did not evidence the type of conduct that the 12 Legislature intended to be used to support separate kidnapping convictions. However, 13 we note that the factual circumstances herein enable us to make this determination as 14 a matter of law based upon the lack of complexity in the movements and restraints 15 described. Trujillo, 2012-NCMA-112, ¶ 42. 16 THE PHYSICIAN ASSISTANT’S TESTIMONY 17 {37} Defendant argues that the district court erred in permitting the PA, whom the 18 district court declined to qualify as an expert witness, to testify that her physical 19 findings were consistent with sexual abuse. The State contends that the issue was not

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1 properly preserved. We agree. 2 {38} At trial, the State called the PA who examined the victims after the sexual 3 assaults to testify. She explained that at the time she met the victims, she was a 4 physician assistant at Para Los Niños, an agency or department at “[the University of 5 New Mexico that takes] care of children who have disclosed that they have been 6 sexually abused or there is a concern about sexual abuse.” The PA stated that during 7 the sixteen months she worked at Para Los Niños, she saw 310 sexual abuse cases. 8 She further indicated that she had previously been qualified as an expert in 9 approximately five to seven child sexual abuse cases. The State moved to tender the 10 PA as an expert, but the defense objected on the basis that she did not have sufficient 11 specialized training. The district court decided that it would not qualify the PA as an 12 expert witness as she had not performed individual research and had not been peer 13 reviewed; however, it ruled that “[s]he can talk about what she observed. She can talk 14 about what her observations may be consistent with. She just can’t come to any 15 conclusions.” The court then asked if both the State and Defendant agreed with this 16 ruling, and both parties responded affirmatively. 17 {39} The PA testified in a manner consistent with the ruling agreed to by the parties, 18 stating that at the time she examined L.T., she observed erythema or redness “on the 19 labia majora and minora on the right and on the clitoris.” The State then asked her

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1 what the possible reasons could be for the redness, and she responded that “[i]t could 2 be sexual abuse . . . [or i]t also could be scratching or something like that.” The 3 defense never objected to the question or the answer. The PA later testified that L.T. 4 had a “little scratch” on the right labia minora. Again, the State asked if this injury 5 “could be consistent with sexual abuse[.]” The PA responded affirmatively. At this 6 point, the defense objected on the basis that the PA is not an expert in sexual abuse 7 and it was inappropriate for her to make such a conclusion. Outside of the jury’s 8 presence, the State argued that everyone previously agreed that it was allowable for 9 the PA to discuss whether an observation is consistent with sexual abuse but not 10 make a definitive diagnosis. The court found that the PA could testify whether the 11 injuries were consistent with sexual abuse, but it was up to the jury to decide whether 12 or not the injuries were definitively a result of sexual abuse. Back in the presence of 13 the jury, the PA provided additional examples of what could have caused the injuries, 14 including L.T. scratching herself, wearing tight underwear, or having urine or fecal 15 matter in her underwear. 16 {40} Rule 11-103(A)(1)(a) NMRA requires that in order to preserve a claim of error, 17 a party must make a timely objection. “Generally, evidentiary objections must be 18 made at the time the evidence is offered.” State v. Neswood, 2002-NMCA-081, ¶ 18, 19 132 N.M. 505, 51 P.3d 1159. Prior to Defendant objecting, he had already agreed that

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1 it was appropriate for the PA to testify regarding her findings and what they might be 2 consistent with. When Defendant finally did object during the PA’s subsequent 3 testimony, the PA had already previously testified, without objection, that the injuries 4 could be consistent with sexual abuse or with L.T. scratching herself. It was not until 5 the PA again testified about the possibility of sexual abuse that Defendant ultimately 6 objected. As this Court has previously determined, under evidentiary circumstances 7 such as these, “the horse was already out of the barn when Defendant tried to shut the 8 door; the jury had already heard [of various possible causes of the injuries] before the 9 objection was made.” Id. Defendant should have objected immediately to the district 10 court’s inquiry into whether the party’s were comfortable with the PA “talk[ing] 11 about what her observations may be consistent with.” Accordingly, we decline to 12 review this argument any further because Defendant’s objection was untimely and 13 therefore not preserved. 14 CONCLUSION 15 {41} For the foregoing reasons, we affirm Defendant’s conviction as to Counts 2, 16 3, 4, 5, 8, 11, and 13. We reverse as to Counts 6, 10, 15, and 16. We remand for 17 resentencing in accordance with this opinion.

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1 {42} IT IS SO ORDERED.

2 _________________________________ 3 J. MILES HANISEE, Judge

4 I CONCUR:

5 _________________________________ 6 CYNTHIA A. FRY, Judge

7 TIMOTHY L. GARCIA, Judge, (concurring in part, dissenting in part).

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1 GARCIA, Judge (concurring in part and dissenting in part) 2 {43} Respectfully, I disagree with one aspect of the majority decision and would 3 reverse Defendant’s conviction of CSPM alleged in Count 13 and remand for the 4 entry of an amended judgment and resentencing on the lesser included offense of 5 CSCM for Count 13. 6 {44} The majority determined that sufficient evidence exists from the testimony to 7 support a conviction of CSPM under Count 13 because “it would be unwise for us to 8 establish within our caselaw any requirement that the trial record reflect 9 comprehension of anatomic specifics or the technical nuances of what constitutes 10 penetration under the applicable jury instruction.” Majority Opinion ¶ 9. In effect, the 11 majority explained that evidence need not be so anatomically exacting in situations 12 such as this one, involving skin to skin contact where Defendant “would slide his 13 fingers up and down on [H.T.’s] private part.” Majority Opinion ¶¶ 6, 9 (Emphasis 14 added.) However, when specifically asked to clarify this testimony, defense counsel 15 asked H.T., “[Y]ou testified today that when [Defendant] put his hand on your 16 private, he would move it in and out. Is that how you worded it?” H.T.’s response was 17 “No, like . . . he would move up and down.” (Emphasis added.) The answer was 18 confirmed a second time. “Up and down?” Answer: “Yes.” The only other evidence

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1 or testimony regarding the factual allegations for Count 13 came from the PA who 2 examined H.T. several days later and testified that “she did not observe any injuries” 3 on H.T. but did observe redness and small scratch injuries on her sister, L.T. Majority 4 Opinion ¶ 6. 5 {45} The factual issue in this case is not about H.T.’s comprehension of anatomical 6 specifics or technical nuances. H.T.’s reference to her vagina as “my private part” is 7 not at issue in this case. Defendant does not argue that his conviction should be 8 overturned because H.T. failed to sufficiently describe Defendant’s fingers sliding up 9 and down on her vagina. The only issue is whether the evidence established the 10 insertion, to any extent, of Defendant’s finger(s) into the vagina of H.T. See UJI 14- 11 957 NMRA (requiring insertion into the body part of a child as one of the elements 12 for CSPM of a child under the age of thirteen); § 30-9-11(A). When asked this 13 specific question regarding whether Defendant put his hand in her private part, H.T. 14 answered “No.” The State does not challenge the veracity or truthfulness of H.T.’s 15 answer to the only question that was asked regarding the potential penetration of her 16 vagina. 17 {46} Sufficient evidence exists to affirm a conviction where substantial evidence of 18 either a direct or circumstantial nature exists to support a verdict of guilt beyond a

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1 reasonable doubt with respect to each essential element of a crime charged. Apodaca, 2 1994-NMSC-121, ¶ 3. In reviewing an insufficiency claim, we must view the 3 evidence in the light most favorable to the state and indulge all reasonable inferences 4 in favor of the verdict. State v. Phillips, 2000-NMCA-028, ¶ 7, 128 N.M. 777, 999 5 P.2d 421. The only evidence offered regarding whether Defendant inserted his finger, 6 to any extent, into the vagina of the victim was specifically answered by H.T.—“No.” 7 The record is void of any other evidence of penetration of H.T.’s vagina. Any other 8 logical inference or conclusion of penetration that might be drawn from H.T.’s answer 9 is nothing more than pure speculation, conjecture, or guesswork. Our appellate courts 10 do not permit the jury to determine guilt based upon speculation, guess, or conjecture. 11 State v. Rojo, 1999-NMSC-001, ¶ 31, 126 N.M. 438, 971 P.2d 829; State v. Slade, 12 2014-NMCA-088, ¶ 14, 331 P.3d 930, cert. granted 2014-NMCERT-008, 334 P.3d 13 425; see UJI 14-6006 NMRA (instructing the jury not to base their verdict on 14 speculation, guess or conjecture). The jury was asked to utilize speculation and 15 conjecture to contradict H.T.’s direct testimony and then impermissibly infer that 16 other evidence established penetration into her private part. 17 {47} As a result, I respectfully dissent regarding Defendant’s conviction of CSPM 18 under Count 13. Because the lesser included offense of CSCM was also presented to

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1 the jury regarding Count 13 and because sufficient evidence exists for a reasonable 2 jury to convict Defendant of CSCM regarding Count 13, this Court should have 3 remanded for the entry of judgment and resentencing for CSCM on Count 13. See 4 Slade, 2014-NMCA-088, ¶ 38 (Generally, “appellate courts have the authority to 5 remand a case for entry of judgment on the lesser included offense and resentencing 6 rather than retrial when the evidence does not support the offense for which the 7 defendant was convicted but does support a lesser included offense.” (internal 8 quotation marks and citations omitted)); State v. Haynie, 1994-NMSC-001, ¶¶ 3-4, 9 116 N.M. 746, 867 P.2d 416 (reversing the defendant’s first degree murder conviction 10 due to insufficient evidence and remanding to the district court for entry of judgment 11 on the lesser included charge of second degree murder where the jury had been 12 instructed on that charge, substantial evidence supported conviction on that charge, 13 and the interests of justice would not be better served by a new trial). For the reasons 14 stated herein, I would reverse the district court’s determination of guilt for CSPM 15 under Count 13 and would remand Count 13 for entry of judgment and resentencing 16 for the lesser included charge of CSCM. I concur in the majority decision in all other 17 respects.

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1 __________________________________ 2 TIMOTHY L. GARCIA, Judge