State v. Botello

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee,

9 v. NO. 26,997 consolidated 10 with 28,482

11 CIPRIANO BOTELLO, 12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 14 Silvia Cano-Garcia, District Judge

15 Gary K. King, Attorney General 16 Nicole Beder, Assistant Attorney General 17 Santa Fe, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender 20 Carlos Ruiz de la Torre, Assistant Appellate Defender 21 Santa Fe, NM

22 for Appellant 23 MEMORANDUM OPINION 24 KENNEDY, Judge.

1 Defendant Ciprano Botello appeals his convictions for three counts of third- 2 degree criminal sexual contact in violation of NMSA 1978, Section 30-9-13(C) (2003) 3 (amended 2009), and four counts of first-degree criminal sexual penetration in 4 violation of NMSA 1978, Section 30-9-11(C)(1) (2003). He argues: (1) the charges 5 against him should have been dismissed for insufficient evidence; (2) counts nine and 6 ten are “carbon copies” of one another and were improperly submitted to the jury; (3) 7 the court improperly allowed the State to amend the dates covered by counts nine and 8 ten; (4) the court made several evidentiary errors; (5) he received ineffective 9 assistance of counsel; and (6) the presence of cumulative error requires reversal. For 10 the reasons set forth below, we affirm. 11 BACKGROUND 12 On February 17, 2004, Veronica Fuentes (Victim) approached officers of the 13 Doña Ana County Sheriff’s Department and reported she had been sexually abused 14 by Defendant, her natural father. Victim was eighteen years old at the time she spoke 15 with authorities and she alleged Defendant committed various sexual acts upon her 16 during her childhood, roughly between the ages of six and fourteen years of age. 17 Police investigated her allegations, and in doing so, conducted interviews with 18 Defendant, Victim, Victim’s sisters, and Victim’s mother. At the conclusion of the

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1 investigation, the State indicted Defendant on twelve counts of first-degree criminal 2 sexual penetration and three counts of third-degree criminal sexual contact. Defendant 3 entered a plea of not guilty and on April 17 and 18, 2006, the Doña Ana County 4 District Court held a jury trial. 5 Victim testified first and served as the State’s primary witness. She began by 6 describing herself, her relationship to Defendant, her family, and her personal history. 7 She then discussed her contact with police and the allegations she had made against 8 Defendant. She testified that at various times during her childhood, Defendant 9 repeatedly forced her to engage in numerous acts of oral and anal sex, masturbation 10 and other sexual activity. The State used various school records, residences, and 11 important milestones in Victim’s life to establish the time frames during which each 12 crime allegedly occurred. Under cross-examination, Defendant asked Victim about 13 problems she experienced in school and at home as a youth and attempted to impeach 14 her testimony regarding the dates of certain alleged crimes. 15 The State next called Victim’s mother, Modesta Astorga (Mother), and sister, 16 Evette Botello (Sister). Both confirmed that Victim was alone with Defendant for 17 extended periods of time, but neither could confirm or deny that any instances of 18 sexual abuse actually occurred. During cross-examination, Defendant asked Sister

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1 about her statements to police during the investigation. Specifically, Defendant asked 2 Sister about a statement she made to police in which she related Victim’s allegation 3 that her grandfather had abused her. The State objected to the testimony on the basis 4 that, first, it was protected by the rape shield statute, NMSA 1978, Section 30-9-16(A) 5 (1993), and second, constituted hearsay. The court sustained the objection on those 6 grounds and disallowed any inquiry into the matter. Finally, the State called John 7 Ordonez, one of the police officers who participated in the investigation. He 8 described his qualifications and his first contact with Victim on the day she made the 9 allegations against Defendant. He testified about the interviews he conducted and 10 provided confirmation of various school records entered into evidence by the State. 11 After excusing Officer Ordonez, the State rested, and Defendant unsuccessfully 12 moved for a directed verdict. The State then sought among other matters amendment 13 of counts nine and ten, which were renumbered prior to submission to the jury, from 14 the indictment’s counts of eleven and thirteen, respectively. The court granted the 15 State’s motion and allowed, first, amendment of count nine from criminal sexual 16 penetration between May 30, 1994, and May 29, 1995, to criminal sexual penetration 17 between May 30, 1994, and May 29, 1996, (extending the date one additional year); 18 and second, amendment of count ten from criminal sexual penetration between May

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1 30, 1995, and May 29, 1996, to criminal sexual contact between May 30, 1994, and 2 May 29, 1996, (extending the date one additional year and changing the crime). The 3 court overruled Defendant’s objections to these modifications. 4 Defendant testified as the sole witness during his case in chief. Speaking 5 through an interpreter, he denied committing the crimes alleged by the State. Instead, 6 he suggested Victim was lying out of vengeance. He testified that she was a problem 7 child and his strict parenting style created friction and made her angry at him. He also 8 testified she wanted to date boys at an early age and he refused to allow it. [Tr. 9 Likewise, he continued, she had problems with the police, and the two fought a great 10 deal. Finally, Defendant testified that his motorcycle could not accommodate two 11 passengers. Thus, he stated, Victim’s allegations that he had used the bike to transport 12 her to secluded locations were inaccurate. 13 The jury returned a verdict of guilty as stated above, and Defendant was 14 sentenced to seventy-two years in prison followed by a parole of at least five years. 15 He appeals, and we analyze his arguments below under five broad categories: (I) 16 sufficiency of the evidence, (II) counts nine and ten, (III) evidentiary matters, (IV) 17 ineffective assistance of counsel, and (V) cumulative error. 18 DISCUSSION

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1 I. Sufficiency of the Evidence 2 Defendant argues that the charges against him were not supported by sufficient 3 evidence; as a result, the court improperly refused to dismiss them at the conclusion 4 of the State’s evidence. He cites State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), 5 and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), and points out that no 6 physical evidence linked him to the crimes, Victim was motivated to lie, no one 7 besides Victim accused him of committing the crimes, and he continuously maintained 8 his innocence throughout the proceedings against him. Even if such contentions are 9 true, they do not provide proper grounds to reverse Defendant’s convictions for 10 insufficient evidence. 11 When reviewing a conviction under a sufficiency of the evidence standard, we 12 “view the evidence in the light most favorable to the guilty verdict” and indulge all 13 reasonable inferences and resolve all conflicts in the State’s favor. State v. 14 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. In order for 15 evidence to support a conviction, there must be some direct or circumstantial evidence 16 to support every element of the crime. State v. Kent, 2006-NMCA-134, ¶10, 140 17 N.M. 606, 145 P.3d 86. “We determine whether a rational fact[]finder could have 18 found that each element of the crime was established beyond a reasonable doubt.” Id.

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1 We do not reweigh the evidence below or substitute our “judgment for that of the fact 2 finder” if there is sufficient evidence to support the verdict. State v. Mora, 1997- 3 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. The fact finder is always “free to 4 reject [d]efendant’s version of the facts,” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 5 N.M. 438, 971 P.2d 829 (filed 1998), and so, just because a defendant presents 6 evidence supporting an acquittal, this Court is not required to reverse his conviction. 7 Id.; see State v. Hunter, 101 N.M. 5, 7, 677 P.2d 618, 620 (1984) (holding that a jury 8 may simply choose to believe the testimony of the victim over that of the defendant). 9 The jury was instructed on three counts of third-degree criminal sexual contact 10 and returned guilty verdicts on all three. Specifically, the jury was instructed that in 11 order to find Defendant guilty it must find that he touched Victim’s breasts between 12 May 30, 1992, and May 29, 1993, (count 4); that he caused Victim to touch his penis 13 between June 1, 1993, and December 31, 1994, (count 9); that he touched or applied 14 force to Victim’s vulva between May 30, 1994, and May 29, 1996, (count 12); and 15 that Victim was twelve years old or younger on each occasion. Defendant directs our 16 attention to no instance where any elements of the above charges went unsupported. 17 Indeed, we conclude that the State presented ample evidence to support the charges. 18 Victim testified that Defendant touched her breasts and vagina on numerous

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1 occasions after they moved to New Mexico but before she temporarily moved to 2 California. She was seven years old at the time. She stated that after she returned 3 from California and prior to the birth of her sister, Cindy, Defendant caused her to 4 touch his penis with her tongue and masturbate him. On numerous other occasions 5 prior to her turning twelve, she stated that Defendant touched her vagina and the time 6 frames during which these crimes occurred were supported, in part, through the 7 introduction of Victim’s school records. 8 The jury was also instructed on seven counts of first-degree criminal sexual 9 penetration and returned guilty verdicts on four. Specifically, the jury was instructed 10 that in order to find the Defendant guilty it must find that he inserted his finger into 11 Victim’s vagina between May 30, 1992, and May 29, 1996, (counts 1, 4, and 9); 12 forced Victim to engage in cunnilingus with him between May 30, 1993, and May 29, 13 1996, (counts 3 and 8); forced Victim to engage in fellatio between June 1, 1993, and 14 May 29, 1994, (count 5); caused Victim to engage in anal intercourse between June 15 1, 1993, and May 29, 1994, (count 6); and that Victim was twelve years old or 16 younger on each occasion. As with the counts alleging criminal sexual contact, 17 Defendant’s brief fails to demonstrate any instance where an essential element went 18 unsupported and our review of the evidence below reveals none.

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1 Victim testified that Defendant inserted his finger into her vagina both 2 immediately before and immediately after she moved to California. Likewise, she 3 testified that he inserted his finger into her vagina at least once each year, when she 4 was eight, nine, ten, eleven, and twelve years old. He forced her to allow him to 5 perform cunnilingus on her, she testified, several times, at least once when she was 6 eleven, and forced her to engage in anal sex with him at the canal. She also testified 7 that he forced her to perform fellatio on him and that she was twelve years old or 8 younger at the time of each encounter. As with the charges for criminal sexual 9 contact, the State established the time frames during which each count occurred by 10 introducing evidence of significant events in the Victim’s life and connecting those 11 events to particular encounters. 12 Defendant calls this Court’s attention to no instance in which an essential 13 element of any of the above crimes went unsupported, and neither have we found any. 14 We therefore hold that the verdicts were supported by sufficient evidence. 15 II. Counts Nine and Ten 16 At the close of the State’s evidence, the district court allowed amendment of 17 counts nine and ten to cover the period of time from May 30, 1994, to May 29, 1996. 18 Both counts had previously covered only one year. In addition, the court allowed

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1 amendment of count ten from criminal sexual penetration to criminal sexual contact. 2 Defendant argues that both amendments were erroneous and require reversal. 3 Modification of the dates, he contends, prejudiced his rights. Furthermore, he 4 suggests that counts nine and ten were “carbon copies” of one another and made it 5 impossible for the jury to distinguish one from the other. 6 Defendant contends, pursuant to Franklin, 78 N.M. at 127, 428 P.2d at 982, and 7 Boyer, 103 N.M. at 655, 712 P.2d at 1, that extension of the timeframe covered by 8 counts nine and ten requires reversal. We observe that Defendant’s brief makes no 9 argument regarding how such amendment resulted in prejudice. See State v. Pina, 90 10 N.M. 181, 187, 561 P.2d 43, 49 (Ct. App. 1977) (holding that a defendant must show 11 prejudice to successfully challenge a variance of date). Our analysis of the 12 amendment reveals none. Rule 5-204(C) NMRA provides, “[t]he court may at any 13 time allow the indictment or information to be amended in respect to any variance to 14 conform to the evidence.” Such amendments, however, must not prejudice 15 “substantial rights of the defendant,” or they “shall be grounds for . . . acquittal.” Id. 16 Here, the court acted in accordance with the rule, and though Defendant alleges 17 prejudice, he makes no specific contention to demonstrate how it occurred. See, e.g., 18 Perez v. Gallegos, 87 N.M. 161, 162, 530 P.2d 1155, 1156 (1974) (holding that

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1 generalized attacks on errors below are not enough). We hold that the district court 2 acted properly. 3 Defendant also argues that counts nine and ten constitute “carbon copies” of 4 one another. As a result, he claims, this Court must reverse those convictions because 5 it was impossible for the jury to distinguish between the two. In State v. Baldonado, 6 1998-NMCA-040, ¶ 21, 124 N.M. 745, 955 P.2d 214, this Court held that the state 7 must “provide reasonable notice of [the] charges against a person and a fair 8 opportunity to defend; rights which may not be ignored or trivialized.” (internal 9 quotation marks and citation omitted). Accordingly, the various charges against a 10 defendant must be distinguishable, so that he may “avail himself of his conviction or 11 acquittal for protection against a further prosecution for the same cause[.]” United 12 States v. Cruikshank, 92 U.S. 542, 544 (1875). Here, though counts nine and ten 13 relate to the same period of time, their wording clearly indicates that each charges a 14 different crime. Count nine alleges Defendant “caused the insertion . . . of [his] finger 15 into the vagina of [Victim],” and count ten alleges Defendant “touched or applied 16 force to the vulva of [Victim.]” We hold that such charges were properly separate in 17 their description of culpable behavior, and affirm the district court on this issue. 18 III. Evidentiary Matters

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1 Defendant contends that the district court improperly ruled on three evidentiary 2 matters. He asserts that the court erred in disallowing cross-examination of Sister 3 about alleged statements made to her by Victim, that the court improperly excluded 4 Defendant’s own testimony regarding statements made by Victim, and that the court 5 should not have allowed Officer Ordonez to testify regarding his opinion of 6 Defendant’s guilt. We will not reverse the district court’s ruling on an evidentiary 7 matter in the absence of a clear abuse of discretion. See State v. Sarracino, 1998- 8 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when 9 the ruling is clearly against the logic and effect of the facts and circumstances of the 10 case. We cannot say the trial court abused its discretion by its ruling unless we can 11 characterize it as clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, 12 ¶ 41 (internal quotation marks and citation omitted). 13 During cross-examination of Sister, Defendant inquired about her interview 14 with police.

15 Q: . . . you also talked to this police officer; is that correct, Mr. 16 Ordonez?

17 A: Yes. 18 .... 19 Q: In that statement, you indicated that [Victim] indicated to you that

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1 your grandfather touched her inappropriately. Do you know 2 anything about that?

3 A: No. 4 Q: Do you recall saying that? 5 A: No. 6 Defendant never produced the police statement to impeach the witness. Instead, he 7 continued to ask her if she remembered making it, and she continued to reply in the 8 negative until the State asked for a bench conference. At the bench, the State objected 9 to the line of questioning and urged the court to make the Defendant move on. The 10 court agreed, and held that the evidence was hearsay and inadmissible under the rape 11 shield statute. NMSA 1978, § 30-9-16(1993). We hold that such a ruling did not 12 constitute an abuse of discretion. Section 30-9-16 provides that any evidence of a 13 victim’s past sexual conduct known prior to trial must be analyzed in an in camera 14 hearing on written motion by the party seeking admission. In this case, Defendant 15 seems to have known about the statement prior to trial, and the first time the court was 16 made aware of it was when he sought to introduce it. When asked why he did not 17 introduce the evidence sooner, defense counsel stated, “I thought I’d bring it up 18 through this witness. She’s the one that said it to the police officer.” Thus, without 19 an in camera hearing pursuant to Section 30-9-16, the court properly excluded the

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1 evidence. In addition, the testimony likely constituted inadmissible hearsay. See Rule 2 11-802 NMRA. At the time Defendant attempted to introduce this evidence, the 3 declarant (Victim) had already testified. Defendant never asked Victim about the 4 statement. Instead, he sought to have Sister testify to what Victim had told her. Thus, 5 Defendant was precluded from introducing it for purposes of impeachment. See Rule 6 11-608(B) NMRA. Likewise, in his brief, Defendant offers no exception to the 7 hearsay rule under which this evidence would have been admissible. We therefore 8 hold that the district court did not abuse its discretion in excluding the testimony. 9 Later in the trial, on direct examination, Defendant sought to testify regarding 10 threats Victim made against him and the State objected. The court sustained the 11 objection on the basis that the evidence was inadmissible hearsay. Furthermore, the 12 court concluded the statement was not admissible for impeachment purposes because 13 Defendant had not inquired about it on cross-examination of Victim. Defendant 14 argues that the court erred. But on such facts, we hold that the court did not abuse its 15 discretion. As with the alleged statements made by Victim to Sister, considered 16 above, any statement by Defendant about threats made against him by Victim was 17 inadmissible hearsay. See Rule 11-802. Defendant had not asked Victim about the 18 statement prior to his attempt to introduce it through Defendant’s testimony, and his

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1 brief offers no exception to the hearsay rule under which it would be admissible. 2 Defendant’s last point of error regarding evidentiary matters concerns the 3 testimony of Officer Ordonez. Defendant contends that the district court improperly 4 allowed Ordonez to suggest “that certain witnesses were more credible than others and 5 that [Defendant] had in fact committed the charged crimes.” Defendant admits that 6 this issue was unpreserved below and he provides no citation to the record 7 demonstrating exactly what testimony he finds objectionable. Generally, this Court 8 will not consider unpreserved issues. State v. Varela, 1999-NMSC-045, ¶ 25, 128 9 N.M. 454, 993 P.2d 1280. Furthermore, Defendant bears a duty to provide this Court 10 with citations to the record proper, Rule 12-213(A)(4) NMRA, and “[w]here there is 11 a doubtful or deficient record, every presumption must be indulged by the reviewing 12 court in favor of the correctness and regularity of the [trial] court’s judgment.” Rojo, 13 1999-NMSC-001 ¶ 53 (internal quotation marks and citation omitted). We therefore 14 refuse to consider this argument. 15 IV. Ineffective Assistance of Counsel 16 Defendant argues that he received ineffective assistance of counsel. In order 17 to successfully make such a claim for the first time on direct appeal, a defendant must 18 at least state a prima facie case for ineffective assistance, which requires two elements:

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1 first, that the attorney’s performance fell below that of one who is reasonably 2 competent; and second, that the attorney’s deficient performance prejudiced 3 defendant. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 4 Absent evidence to the contrary, we presume an attorney’s competence. State v. 5 Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. If the defendant can state 6 a prima facie case for ineffective assistance, we may remand the matter to the district 7 court for an evidentiary hearing. If he fails to do so, he must pursue his claim in a 8 habeas proceeding. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 9 61. Our courts have expressed a preference for pursuing ineffective assistance claims 10 in habeas proceedings. State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 11 P.2d 776 (“A record on appeal that provides a basis for remanding to the [district] 12 court for an evidentiary hearing on ineffective assistance of counsel is rare. 13 Ordinarily, such claims are heard on petition for writ of habeas corpus.”); see State 14 v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his 15 Court has expressed its preference for habeas corpus proceedings over remand when 16 the record on appeal does not establish a prima facie case of ineffective assistance of 17 counsel”). 18 Defendant fails to state a prima facie claim for ineffective assistance. He claims

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1 several shortcomings, among them, that his attorney failed to file motions in limine 2 prior to trial, that he did not cross-examine Victim regarding statements she allegedly 3 made to her sister, that he failed to present evidence that Victim was motivated to lie, 4 and that he inadequately reviewed Defendant’s statement to police with Defendant 5 prior to trial. Defendant fails to adequately argue with any particularity how such 6 shortcomings, if true, were unjustified, transgressed the standard of representation or 7 would call the jury’s verdict into question. As briefed, it is a speculative laundry list. 8 Furthermore, Defendant’s contentions are not properly supported by the record on 9 appeal. For these reasons, and given our preference for resolving such claims in 10 collateral proceedings, see Martinez, 1996-NMCA-109, ¶ 25, we hold that 11 Defendant’s ineffective assistance claim must be pursued, if at all, in a habeas corpus 12 proceeding. 13 V. Cumulative Error 14 Finally, Defendant argues that cumulative error requires reversal of his 15 convictions. This Court will reverse for cumulative error “when a series of lesser 16 improprieties throughout a trial are found, in aggregate, to be so prejudicial that the 17 defendant was deprived of the constitutional right to a fair trial.” State v. Duffy, 1998- 18 NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807. In this case, Defendant has failed to

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1 demonstrate any error, and when there is no error, “there is no cumulative error.” 2 State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d 1211. We therefore 3 reject Defendant’s cumulative error argument. 4 CONCLUSION 5 For the above reasons, we affirm Defendant’s convictions. 6 IT IS SO ORDERED.

7 ___________________________________ 8 RODERICK T. KENNEDY, Judge

9 WE CONCUR:

10 ____________________________ 11 CYNTHIA A. FRY, Chief Judge

12 ____________________________ 13 TIMOTHY L. GARCIA, Judge