State v. Bustillos

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,354 5 ISRAEL BUSTILLOS, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Reed Sheppard, District Judge

9 Gary K. King, Attorney General 10 Yvonne M. Chicoine, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 D. Chipman Venie 14 Albuquerque, NM

15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 {1} On December 22, 2007, Defendant’s five-month-old daughter, Baby Geovanny,

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1 died while in Defendant’s care. Baby Geovanny’s autopsy revealed she had died of 2 blunt force trauma to her head. Defendant was charged with one count of child abuse 3 resulting in death or great bodily harm, intentionally inflicted, negligently inflicted, 4 or negligently permitted, and an additional count of child abuse because the autopsy 5 revealed older injuries as well. The jury found Defendant guilty of one count of child 6 abuse, negligently caused death or great bodily harm, in violation of NMSA 1978, 7 Section 30-6-1(D) (2009), and acquitted Defendant of the remaining charges. This 8 appeal followed. We affirm. 9 ANALYSIS 10 {2} Defendant raises the following seven issues on appeal:(1) the State failed to 11 provide sufficient evidence that Defendant negligently caused Baby Geovanny’s death 12 beyond a reasonable doubt; (2) the testimony of the supervising forensic pathologist 13 regarding Baby Geovanny’s autopsy violated the Confrontation Clause; (3) the trial 14 court erred in not permitting Defendant to introduce evidence of pertinent character 15 traits; (4) the trial court erred in denying Defendant’s request for a continuance so that 16 his expert could testify in person; (5) the trial court erred in allowing the testimony of 17 a rebuttal witness; (6) the trial court erred in denying Defendant’s motion for a new 18 trial due the rebuttal witness’s alleged perjury; and (7) the prosecutor committed 19 reversible error under Brady for allegedly failing to produce exculpatory evidence. We

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1 address each issue in turn below. 2 1. Sufficiency of the Evidence 3 {3} Defendant argues that the evidence presented at trial was insufficient to support 4 the guilty verdict for child abuse negligently causing Baby Geovanny’s death. After 5 an examination of the record, we conclude that the evidence was sufficient and affirm. 6 A. Facts 7 {4} On the morning of December 22, 2007, police responded to a 911 call that an 8 infant (Baby Geovanny) had stopped breathing. Paramedics were already present and 9 administering CPR on Baby Geovanny when police arrived. Defendant told police that 10 he was caring for Baby Geovanny and his two-year-old son while his girlfriend, the 11 children’s mother, went to work. He said that Baby Geovanny had recently been 12 diagnosed with an ear infection and was acting fussy that morning. He also said that 13 he had given her a bath to try to sooth her and placed her in her crib, before cooking 14 breakfast for his son. Defendant told police that he then realized that Baby Geovanny 15 had stopped crying. When he went to check on her, he found that she was not 16 breathing and was cold to the touch. He then called Baby Geovanny’s maternal 17 grandmother, Lucy Hermosillo, and told her Baby Geovanny was not breathing. Ms. 18 Hermosillo asked him why he was calling her instead of 911. She then sped to 19 Defendant’s apartment. According to Ms. Hermosillo, it took her three to five minutes

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1 to arrive, and evidence showed Defendant called 911 after she arrived. Defendant told 2 police he had panicked. Ms. Hermosillo performed CPR until the paramedics arrived. 3 The attempts to resuscitate Baby Geovanny failed and she died at the scene. 4 {5} Baby Geovanny’s autopsy revealed that although the only sign of external 5 injury was a superficial scratch on her back by her neck that showed signs of healing, 6 she had several internal injuries that indicated she had suffered head trauma. Her 7 internal injuries included a hemorrhage deep in her brain, a laceration or tear on her 8 brain, and two recent bruises on her skull. She also had older injuries, including 9 hemorrhages around her optic nerves that were covered in new blood indicative of 10 recent trauma on top of old injury, a subdural hematoma that was at least four days old 11 but also had fresh blood on it that could have come from the day she died, a brain 12 hemorrhage on the front part of her brain, a rib fracture callus, and a pelvic fracture 13 callus. 14 {6} The forensic pathologist from the Office of the Medical Investigator (OMI) that 15 supervised the autopsy, Dr. Michelle Barry-Aurelius, testified that in her opinion Baby 16 Geovanny died of blunt force trauma to the head and the manner of death was 17 homicide. She explained that shaking a baby, throwing a baby, or hitting a baby’s 18 head against something hard can cause optic nerve sheath hemorrhages and that 19 shaking a baby or a head impact could have caused the tear on her brain. She also

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1 testified the dying brain cells she saw in Baby Geovanny’s brain indicated that Baby 2 Geovanny would have been unconscious or comatose within seconds of the head 3 trauma and that Baby Geovanny survived in this comatose state for a few hours before 4 dying. Approximately three and one-half hours passed from the time the mother left 5 for work and the time Defendant called 911 to report that Baby Geovanny had stopped 6 breathing. 7 B. Standard of Review 8 {7} In examining Defendant’s claim, we review “whether substantial evidence 9 exists of either a direct or circumstantial nature to support a verdict of guilty beyond 10 a reasonable doubt with respect to each element of the crime charged.” State v. 11 Chavez, 2007-NMCA-162, ¶ 9, 143 N.M. 126, 173 P.3d 48. In making this 12 determination, “we must view the evidence in the light most favorable to the guilty 13 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 14 in favor of the verdict.” State v. Quinones, 2011-NMCA-018, ¶ 37, 149 N.M. 294, 248 15 P.3d 336 (internal quotation marks and citation omitted); accord State v. Reyes, 2002- 16 NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948, abrogated on other grounds by Allen 17 v. LeMaster, 2012-NMSC-001, 267 P.3d 806. “We do not weigh the evidence or 18 substitute our judgment for that of the fact finder so long as there is sufficient 19 evidence to support the verdict.” Chavez, 2007-NMCA-162, ¶ 9 (alteration, internal

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1 quotation marks, and citation omitted). 2 C. Discussion 3 {8} Defendant was convicted of criminally negligent child abuse resulting in death 4 or great bodily harm for Baby Geovanny’s death. Child abuse “consists of a person 5 knowingly, intentionally or negligently, and without justifiable cause, causing or 6 permitting a child to be . . . placed in a situation that may endanger the child’s life or 7 health.” See NMSA 1978, § 30-6-1(D)(1) (2009). In this context, “‘negligently’ 8 refers to criminal negligence and means that a person knew or should have known of 9 the danger involved and acted with a reckless disregard for the safety or health of the 10 child.” Section 30-6-1(A)(3). 11 {9} We review Defendant’s claim of insufficient evidence through the lens of the 12 jury instructions for negligent child abuse resulting in death or great bodily harm. See 13 Quinones, 2011-NMCA-018, ¶ 38 (“The sufficiency of the evidence is assessed 14 against the jury instructions because they become the law of the case.”). In order to 15 find Defendant guilty of this count, the jury was required to find that: (1) Defendant 16 caused Baby Geovanny “to be placed in a situation which endangered the life or 17 health of [Baby Geovanny]”; (2) Defendant “acted with reckless disregard and without 18 justification”; requiring a finding that Defendant knew or should have known that his 19 “conduct created a substantial and foreseeable risk”; that he disregarded that risk and

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1 that he “was wholly indifferent to the consequences of the conduct and to the welfare 2 and safety of [Baby Geovanny]”; (3) “[Defendant’s] actions or failure to act resulted 3 in the death of or great bodily harm to [Baby Geovanny]”; (4) [Baby Geovanny] was 4 under the age of 18”; and (5) “This happened in New Mexico on or about the 22nd 5 day of December, 2007.” See UJI 14-602 NMRA. 6 {10} Defendant contends that there was insufficient evidence to support a finding 7 that he was “wholly indifferent to the consequences of the conduct and to the welfare 8 and safety of [Baby Geovanny]” because he took at least four different actions trying 9 to save her. Defendant then describes the actions he took once he discovered that Baby 10 Geovanny was not breathing. He insists that the jury must have concluded that 11 Defendant did nothing when he found Baby Geovanny in medical distress in order to 12 find him guilty. He intimates his behavior amounted to ordinary negligence, which he 13 points out is not sufficient. See State v. Massengill, 2003-NMCA-024, ¶ 45, 133 N.M. 14 263, 62 P.3d 354 (“Our Supreme Court has determined that ‘the child abuse statute 15 contains no indication that the [L]egislature intended felony punishment to attach to 16 ordinary negligent conduct.’” (quoting Santillanes v. State, 1993-NMSC-012, ¶ 31, 17 115 N.M. 215, 849 P.2d 358)). However, Defendant’s arguments overlook the fact 18 that the jury may not have necessarily considered any of his actions after he found 19 Baby Geovanny unresponsive in reaching its guilty verdict. He was not convicted of

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1 child abuse due to medical neglect resulting in death or great bodily harm, where his 2 actions after finding his child in need of medical attention would have been relevant. 3 See, e.g., State v. Nichols, 2013-NMCA-___, ¶ 1, ___ P.3d ___ (No. 30,783, Dec. 20, 4 2013) (affirming the defendant’s conviction for child abuse due to medical neglect 5 resulting in death or great bodily harm in case where evidence showed that the 6 defendant knew or should have known his son needed medical treatment, failed to 7 obtain medical treatment, and that failure caused the infant’s death or great bodily 8 harm). 9 {11} In this case, the jury heard testimony that: Baby Geovanny died from a blunt 10 force injury to her head, which could have resulted from a blow, being struck by an 11 object, falling on an object, or being violently shaken; her brain injury was inflicted 12 with the force of falling out of a building over three stories high; the manner of death 13 was homicide; due to her brain injury Baby Geovanny would have “immediately to 14 within seconds be either comatose or difficult to arouse”; Baby Geovanny would have 15 survived in this comatose state for a minimum of two hours due to the hypoxic injuries 16 in her brain; Baby Geovanny was awake when her mother left for work; Baby 17 Geovanny was left in Defendant’s care for the three hours prior to her death, and that 18 the only other person present during this time, Defendant’s two-year-old son, could 19 not have caused Baby Geovanny’s injuries under the circumstances. This is all

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1 circumstantial evidence that Defendant was responsible for the injuries to Baby 2 Geovanny that killed her. The sheer volume and severity of the injuries support the 3 conclusion that he was wholly indifferent to her welfare and the consequences of his 4 actions when he inflicted the injuries. Viewing this evidence in the light most 5 favorable to the verdict, we conclude that a reasonable jury could have found that 6 Defendant committed criminally negligent child abuse resulting in Baby Geovanny’s 7 death. 8 2. Dr. Barry’s Testimony and the Confrontation Clause 9 {12} Defendant contends that because another pathologist, Dr. Timothy Williams, 10 actually performed Baby Geovanny’s autopsy, Dr. Barry was merely parroting another 11 expert’s findings and conclusions in violation of his Sixth Amendment right to 12 confront the witnesses against him. See U.S. Const. amend. VI (stating that every 13 criminal defendant “shall enjoy the right . . . to be confronted with the witnesses 14 against him”). The State responds that Defendant’s right of confrontation was not 15 violated because Dr. Barry testified to her own expert opinion based upon her personal 16 knowledge and review of the evidence. After reviewing the record, we agree with the 17 State. 18 A. Facts 19 {13} Dr. Williams was a forensic pathology fellow under the supervision of Dr.

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1 Barry when he performed Baby Geovanny’s autopsy. Dr. Williams testified at 2 Defendant’s grand jury indictment; he did not testify at Defendant’s trial. Instead, Dr. 3 Barry testified at trial regarding the injuries found in Baby Geovanny’s autopsy and 4 her opinion as to the cause and manner of death. 5 B. Standard of Review 6 {14} Defendant’s Confrontation Clause claim is an issue of law that we review de 7 novo. State v. Lasner, 2000-NMSC-038, ¶ 24, 129 N.M. 806, 14 P.3d 1282. 8 C. Discussion 9 {15} The Confrontation Clause bars out-of-court testimonial hearsay “‘unless the 10 witness is unavailable and the defendant had a prior opportunity to cross-examine the 11 witness.’” State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 12 (quoting State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280). “The 13 controlling question in a case involving an alternative expert witness . . . is whether 14 the analyst’s testimony ‘was an expression of his own opinion or whether he was 15 merely parroting’ or ‘merely repeating the contents of [the] report or the opinion of 16 the analyst who is unavailable for cross-examination.’” State v. Gonzales, 17 2012-NMCA-034, ¶ 16, 274 P.3d 151 (quoting Aragon, 2010-NMSC-008, ¶ 26). 18 Thus, whether Defendant’s right to confrontation was violated depends on whether 19 Dr. Barry related testimonial statements by Dr. Williams. See State v. Navarette,

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1 2013-NMSC-003, ¶ 7, 294 P.3d 435 (deciding that the defendant’s Confrontation 2 Clause claim rested on whether the testimony of the forensic pathologist who did not 3 perform the autopsy related any testimonial statements by the pathologist who 4 performed the autopsy). 5 {16} In Cabezuela, our Supreme Court addressed a similar situation, also involving 6 Dr. Barry, as the testifying expert in her capacity as the supervising forensic 7 pathologist, while a different forensic pathologist fellow, Dr. Bracey, actually 8 performed the autopsy. 2011-NMSC-041, ¶ 50. The Cabezuela Court ruled that there 9 was no error in admitting Dr. Barry’s testimony because the record showed “Dr. Barry 10 had personal knowledge of and participated in making the autopsy report findings by 11 virtue of her own independent participation in the microscopic exam, examination of 12 the body and the injuries, and examination of all the photographs.” Id. ¶ 52. The 13 Court noted that the defendant “had a full and fair opportunity to cross-examine Dr. 14 Barry to determine whether Dr. Barry had personal, first-hand knowledge of how Dr. 15 Bracey conducted the autopsy and what Dr. Bracey found by observing the autopsy.” 16 Id. 17 {17} By contrast, our Supreme Court found a Confrontation Clause violation when 18 the testifying forensic pathologist who did not perform the autopsy “relat[ed] 19 subjective observations recorded in an autopsy report as a basis for the pathologist’s

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1 trial opinions, when the pathologist neither participated in nor observed the autopsy.” 2 Navarette, 2013-NMSC-003, ¶ 1 (emphasis added). In Navarette, the forensic 3 pathologist’s testimony as to his own conclusions based on his own observations from 4 photographs of entry and exit wounds was permitted. Id. ¶ 22 (explaining that “an 5 expert witness may express an independent opinion regarding his or her interpretation 6 of raw data without offending the Confrontation Clause”). However, a Confrontation 7 Clause violation resulted when he related other pathologist’s finding of the absence 8 of soot or stippling on the decedent because “[s]uch observations are not based on any 9 scientific technique that produces raw data, but depend entirely on the subjective 10 interpretation of the observer[.]” Id. ¶ 21. 11 {18} Defendant contends that the trial court erred by permitting Dr. Barry to 12 essentially read the contents of the autopsy report into the record in violation of his 13 right to confrontation. The four cases Defendant cites in support of this statement, 14 without explanation or argument, do not support his assertion that his confrontation 15 right was violated. See Gonzales, 2012-NMCA-034, ¶ 25 (refusing “to toss a blanket 16 ban on the testimony of an expert witness about the circumstances of the death of the 17 victim in those instances when the expert did not perform the autopsy” and explaining 18 that the admissibility in such situations depends on whether the testifying expert 19 permissibly forms an independent opinion based on the underlying raw data or

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1 impermissibly parrots the findings and conclusions of another expert); Cabezuela, 2 2011-NMSC-041, ¶ 52 (discussed above); State v. Jaramillo, 2012-NMCA-029, ¶¶ 1, 3 16, 272 P.3d 682 (holding that the autopsy report itself is inadmissible in cases where 4 the doctor who actually performed the autopsy does not testify),1 cert. denied, 2012- 5 NMCERT-002, 291 P.3d 1290; State v. Delgado, 2010-NMCA-078, ¶ 4, 148 N.M. 6 870, 242 P.3d 437 (concluding that the testimony of an analyst was improperly 7 admitted when it was “not clear that she was stating her own opinion based on the 8 underlying data and [the other analyst’s] notes, but rather relaying [the other analyst’s] 9 opinion and stating her approval of it”). 10 {19} Here, Dr. Barry participated in the autopsy in the same manner as she did in 11 Cabezuela. She testified that in her role as the supervising forensic pathologist, she 12 reviews the entire case with the fellow, examining the external body together, noting 13 any injuries, and reviewing all of the photos and microscopics so that the resulting 14 “autopsy report is a report of ours together.” Dr. Barry explained that she performed 15 an external examination of Baby Geovanny with Dr. Williams and described the skin 16 scrape she observed. She also testified that she examined the inside of Baby 17 Geovanny’s body, personally observing the rib fracture, petechiae on the thymus, 18 hemorrhages around the optic nerves, subdural hematoma on the dura of the brain, and

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19 The autopsy report itself was not admitted in the present case.

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1 the subarachnoid hemorrhage on the brain. Dr. Barry also testified that she examined 2 x-rays, photographs, and microscopics slides of Baby Geovanny’s injuries. 3 {20} Defendant’s lengthy description of all of the tasks Dr. Barry did not perform 4 during Baby Geovanny’s autopsy is irrelevant to this inquiry. How much she 5 participated could go to the weight of her testimony, not its admissibility. As we 6 stated, the key question is whether Dr. Barry related any of Dr. Williams’s 7 observations or conclusions or whether she based any of her own conclusions on any 8 of Dr. Williams’s subjective observations. Defendant cross-examined Dr. Barry at 9 length about her observations and conclusions, and indeed attempted to discredit her 10 medical opinion in several instances. Although Defendant makes the conclusory 11 statement that “Dr. Barry merely ‘parroted’ Dr. Williams’s findings into evidence,” 12 he fails to cite to any instance in the record where her testimony consisted of Dr. 13 Williams’s observations and conclusions rather than her own, and we could find none. 14 Because our review of the record demonstrated that Dr. Barry testified as to her own 15 personal observations and opinions and Defendant has not pointed to anything in the 16 record that shows otherwise, we conclude there was no error in admitting Dr. Barry’s 17 testimony. 18 3. Exclusion of Character Evidence 19 {21} Defendant also argues that the trial court erred in not permitting Defendant to

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1 introduce evidence of certain character traits.

2 A. Facts 3 {22} Defendant filed a motion in limine to determine the admissibility of substantive 4 character evidence through twenty character witnesses who would testify as to 5 Defendant’s possession or lack of up to thirteen character traits. The State responded 6 with a motion in limine to restrict the scope and quantity of the character evidence. At 7 a hearing addressing these motions, the trial court ruled that three of the proposed 8 character traits were pertinent: non-abusiveness, soft-heartedness for children, and 9 calmness toward children, and found that the other character traits recited in 10 Defendant’s motion were not pertinent and would not be allowed. 11 B. Standard of Review 12 {23} “[T]he admission or exclusion of character testimony is committed to the sound 13 discretion of the district court.” State v. Ruiz, 2007-NMCA-014, ¶ 44, 141 N.M. 53, 14 150 P.3d 1003. We therefore review the trial court’s exclusion of certain character 15 evidence for an abuse of discretion. Id. 16 C. Discussion 17 {24} “Generally speaking, evidence of a pertinent trait of character of the accused 18 in a criminal case may be introduced through reputation or opinion testimony.” Ruiz,

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1 2007-NMCA-014, ¶ 45 (internal quotation marks and citations omitted); see also State 2 v. Martinez, 2006-NMCA-148, ¶ 13, 140 N.M. 792, 149 P.3d 108 (“A criminal 3 defendant is allowed to introduce pertinent traits of his good character under the 4 exception in Rule 11-404(A)(1) [NMRA] out of concern for fairness.”), aff’d 2008- 5 NMSC-060, 145 N.M. 220, 195 P.3d 1232; Rule 11-404(A)(2); Rule 11-405(A) 6 NMRA. “[P]roof of character, to be relevant, must be confined to the nature of the 7 offense under charge and bear some pertinent analogy and reference to it.” State v. 8 Martinez, 2008-NMSC-060, ¶ 34, 145 N.M. 220, 195 P.3d 1232 (internal quotation 9 marks and citation omitted). 10 {25} Defendant asserts that the denied character evidence was pertinent to rebut the 11 State’s theory of the crime. He argues that he should have been able to introduce 12 evidence of his patience and lack of being quick to anger to rebut the theory that he 13 lost his patience with Baby Geovanny because she was fussy and either intentionally 14 or negligently killed her. Assuming that evidence that Defendant was patient and 15 even-tempered was relevant, it is within the discretion of the trial court to exclude 16 relevant evidence if it is needlessly cumulative, and the court permitted testimony 17 regarding his calmness and non-abusiveness. See Rule 11-403 NMRA. 18 {26} In addition, in order to respond to the State’s implication that Defendant’s delay 19 in calling 911 evidenced his guilty mind and contemplation of covering up his crime,

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1 Defendant argues it was error to deny evidence that he is a simple person who does 2 not plot and scheme. Defendant does not offer any explanation for how these traits are 3 pertinent to the crime of child abuse negligently resulting in death or great bodily 4 harm. Under these circumstances, we conclude that the trial court did not abuse its 5 discretion. 6 4. Denial of Defendant’s Motion for a Continuance 7 {27} Defendant next contends that the trial court erred in denying his motion to 8 continue the trial so that his expert witness could testify in-person. We disagree. 9 A. Facts 10 {28} Jury selection in this case began on Thursday, February 11, 2010, and the trial 11 was scheduled to run through Friday, February 26, 2010. Defendant had planned to 12 call his expert, Dr. John Plunkett, to testify on Friday, February 19th. On February 13 16th, when the State indicated it was not sure that it would be finished with its case 14 by Friday, the parties and the court decided it would be best to postpone Dr. Plunkett’s 15 testimony to the following Monday. When the court questioned whether defense 16 counsel had set Dr. Plunkett’s testimony for Monday, defense counsel responded that 17 he planned to wait until Monday to inform Dr. Plunkett when to come. At no time 18 during these discussions regarding moving Dr. Plunkett’s testimony did defense 19 counsel inform the court that Dr. Plunkett would not be able to testify during the

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1 second week of trial. 2 {29} As it turned out, Dr. Plunkett planned to attend and speak at a conference in 3 Seattle, Washington, during the second week of trial. As a result of Dr. Plunkett’s 4 scheduling conflict, Defendant filed a motion requesting to recess the trial from 5 February 23, 2010, to March 1, 2010, to allow time for Dr. Plunkett to testify in 6 person. In the motion, Defendant stated that he was “willing to entertain almost any 7 other solution to this problem other than a forced resting of his case” including Dr. 8 Plunkett testifying by phone or by video conference. Defense counsel told the court 9 that video conferencing Dr. Plunkett’s testimony would not be something he would 10 be “in a position to object to.” He also conceded that he had created the problem. 11 {30} The trial court refused to postpone the trial. However, it did accept Defendant’s 12 proposed remedy to arrange for Dr. Plunkett to testify via video conference. The State 13 advised the court that Defendant needed to waive Dr. Plunkett’s personal appearance. 14 Defense counsel stated he was not aware of that requirement, but responded “I want 15 [the video conference testimony] to happen. So to the extent I have to waive anything 16 to make it happen, I’m going to waive it.” Again, at the State’s urging and after giving 17 defense counsel time to confer with Defendant, the court addressed Defendant 18 personally about waiving Dr. Plunkett’s personal appearance, and Defendant agreed 19 to waive Dr. Plunkett’s personal appearance.

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1 B. Standard of Review 2 {31} “The grant or denial of a motion for a continuance rests within the sound 3 discretion of the trial court, and the burden of establishing an abuse of discretion rests 4 with the defendant.” State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 5 20 (internal quotation marks and citation omitted). “An abuse of discretion occurs 6 when the ruling is clearly against the logic and effect of the facts and circumstances 7 of the case. We cannot say the trial court abused its discretion by its ruling unless we 8 can characterize it as clearly untenable or not justified by reason.” State v. Salazar, 9 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135 (internal quotation marks and 10 citations omitted). “[The d]efendant must establish not only an abuse of discretion, 11 but also that the abuse was to the injury of the defendant.” Id. (internal quotation 12 marks and citation omitted); see also State v. Salazar, 2006-NMCA-066, ¶ 21, 139 13 N.M. 603, 136 P.3d 1013 (“The trial court has broad discretion in granting or denying 14 a motion for a continuance, and absent a demonstrated abuse resulting in prejudice to 15 the defendant, there is no basis for reversal.” (internal quotation marks and citation 16 omitted)). 17 C. Discussion 18 {32} In evaluating the denial of a motion to continue, we review whether the trial 19 court considered a number of factors, which we refer to as the Torres factors. 1999-

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1 NMSC-010, ¶ 10. Although not exclusive, id. ¶ 15, the Torres factors include

2 the length of the requested delay, the likelihood that a delay would 3 accomplish the movant’s objectives, the existence of previous 4 continuances in the same matter, the degree of inconvenience to the 5 parties and the court, the legitimacy of the motives in requesting the 6 delay, the fault of the movant in causing a need for the delay, and the 7 prejudice to the movant in denying the motion.

8 Id. ¶ 10. 9 {33} The record demonstrates that the trial court considered all of the Torres factors, 10 and gave the following reasons for denying the continuance: the issue could have been 11 avoided had defense counsel arranged for Dr. Plunkett to testify on Friday, February, 12 19th, as planned; Dr. Plunkett could have testified out of order, which was not 13 requested, or he could have testified on Monday, February 22nd, but the court was not 14 notified of a problem until late in the afternoon on February 22nd; that there have 15 been a number of continuances in this matter previously, with the last one at 16 Defendant’s request in order to arrange for his experts to testify. In addition, the court 17 had a murder trial scheduled for March 1st, which would have to be postponed; there 18 were already a number of continuances in that matter; that defendant had the right to 19 a speedy trial; and the prosecutor assigned to that case was being transferred to 20 another district at the end of that week-long trial. Considering all of the above reasons 21 for the trial court decision, we cannot characterize it “as clearly untenable or not 22 justified by reason.” See Salazar, 2007-NMSC-004, ¶ 10.

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1 {34} Moreover, the record does not support a finding of prejudice. Defendant 2 implies he was prejudiced by the court depriving him the opportunity to present his 3 witness in-person. Even if the trial court’s failure to rearrange its docket so that Dr. 4 Plunkett could testify in-person could be construed as prejudicial, Defendant cannot 5 complain. See State v. Handa, 1995-NMCA-042, ¶ 35, 120 N.M. 38, 897 P.2d 225 6 (“To allow a defendant to invite error and to subsequently complain about that very 7 error would subvert the orderly and equitable administration of justice.” (alterations, 8 internal quotation marks, and citation omitted)). We conclude Defendant has not met 9 his burden of establishing that the trial court abused its discretion. 10 5. Dr. Carole Jenny’s Testimony as a Rebuttal Witness 11 {35} Defendant raises three points of error related to the testimony by Dr. Carole 12 Jenny, whom the State called as a witness to rebut the testimony of Defendant’s 13 expert, Dr. Plunkett. In the first point, Defendant argues that the trial court erred in 14 permitting Dr. Jenny to testify as she was not a “true” rebuttal witness. 15 A. Facts 16 {36} The State advised Defendant prior to trial of its intent to call Dr. Jenny, an 17 expert in child abuse pediatrics, as a rebuttal witness to the testimony of Dr. Plunkett. 18 Defendant objected to the admissibility of her testimony, arguing she was not a true 19 rebuttal witness, and demanded an offer of proof by the State on what new matters

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1 were raised by Dr. Plunkett that required rebutting by the State. At the trial court’s 2 request, the State made a proffer, detailing the points from Dr. Plunkett’s testimony 3 the State planned to rebut through Dr. Jenny. The court ruled that Dr. Jenny was 4 allowed to testify as a rebuttal witness for the State. 5 B. Discussion 6 {37} “Genuine rebuttal evidence is not simply a reiteration of evidence in chief but 7 consists of evidence [o]ffered in reply to new matters.” State v. Manus, 1979-NMSC- 8 035, ¶ 38, 93 N.M. 95, 597 P.2d 280 (internal quotation marks and citation omitted), 9 overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 10 162. “The State is entitled to correct false impressions given to a jury by the defense 11 through rebuttal testimony.” State v. Simonson, 1983-NMSC-075, ¶ 31, 100 N.M. 12 297, 669 P.2d 1092. “Determining what is true rebuttal evidence, however, can be 13 difficult. Frequently true rebuttal evidence will, in some degree, overlap or coalesce 14 with the evidence in chief. Therefore, the question of admissibility of evidence on 15 rebuttal rests largely on the trial court’s discretion.” State v. Dominguez, 2007- 16 NMSC-060, ¶ 26, 142 N.M. 811, 171 P.3d 750 (internal quotation marks and citation 17 omitted), holding modified on other grounds by State v. Garcia, 2011-NMSC-003, 18 149 N.M. 185, 246 P.3d 1057. We will not disturb the admission of rebuttal evidence 19 on appeal “absent an abuse of that discretion.” Id. ¶ 25.

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1 {38} The State asserts that Defendant’s claim is unsupported by argument and should 2 therefore be deemed abandoned. We agree. Defendant fails to cite to any point in the 3 record to support his conclusory statement that “Dr. Jenny added nothing in rebuttal.” 4 See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (refusing to 5 respond to appellant’s “surface presentation” and stating that “[w]e will not search the 6 record for facts, arguments, and rulings in order to support generalized arguments”).

7 6. Dr. Jenny’s Alleged Perjury 8 {39} In Defendant’s second point of error related to Dr. Jenny’s testimony, he argues 9 that the trial court erred in denying his motion for a new trial on the ground that Dr. 10 Jenny had perjured herself by testifying that she had reviewed all of the slides retained 11 in the case. 12 A. Facts 13 {40} OMI prepared fifteen slide blocks containing microscopics of Baby Geovanny’s 14 tissues showing her injuries. These are the slides that Dr. Barry reviewed in reaching 15 her opinions. On February 2, 2010, the court ordered OMI to send five of the slide 16 blocks to Defendant’s expert, Dr. Plunkett. These were the original and only slide 17 blocks OMI possessed. Under court order, the slides were supposed to be returned to 18 OMI by February 12, 2010, so that they would be available during the trial. On

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1 February 23, 2010, the State had informed the trial court that OMI had not received 2 the slides. Defense counsel assured the court that they had been sent via overnight 3 mail and the problem was “on me.” 4 {41} On February 24, 2010, Dr. Jenny flew into Albuquerque and went to the OMI 5 to review the slides. Dr. Jenny testified the next day. In response to the State’s 6 question about what she had done in order to prepare her testimony, Dr. Jenny 7 testified that she “went to [OMI] and looked at all the pathological slides that were 8 retained from the case” on the previous evening. Prior to that, she had only read the 9 report on the slides, but had not actually reviewed the slides themselves. 10 {42} In fact, when Dr. Jenny reviewed the slides at OMI, the five slide blocks that 11 OMI had sent to Defendant’s experts still had not been returned as promised. 12 Defendant’s expert had sent the slides to defense counsel rather than to OMI, but there 13 is no evidence in the record indicating when defense counsel became aware that there 14 was a package for him at the post office waiting to be picked up. 15 {43} The State told defense counsel on March 1, 2010, that OMI had informed the 16 State that the slide blocks had not yet been returned. Defendant reported this 17 information to the court and signaled his intent to move for a new trial based on this 18 issue if the jury returned a guilty verdict. When the guilty verdict was returned, 19 Defendant filed a motion for a new trial based, in part, on Dr. Jenny’s alleged perjury.

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1 The trial court found that there was “no evidence that Dr. Jenny committed perjury” 2 and denied the motion. We affirm. 3 B. Standard of Review 4 {44} “The trial court has broad discretion in granting or denying a motion for new 5 trial, and such an order will not be reversed absent clear and manifest abuse of that 6 discretion.” State v. Guerra, 2012-NMSC-027, ¶ 18, 284 P.3d 1076 (internal 7 quotation marks and citation omitted); see also State v. Huber, 2006-NMCA-087, ¶ 8 27, 140 N.M. 147, 140 P.3d 1096 (“We will not disturb the trial court’s denial of a 9 motion for a new trial unless the ruling is arbitrary, capricious or beyond reason.” 10 (internal quotation marks and citation omitted)). Again, we will not find an abuse of 11 discretion unless the trial court decision “is clearly against the logic and effect of the 12 facts and circumstances of the case” and therefore “clearly untenable or not justified 13 by reason.” Salazar, 2007-NMSC-004, ¶ 10. 14 C. Discussion 15 {45} “Perjury consists of making a false statement under oath, affirmation or penalty 16 of perjury, material to the issue or matter involved in the course of any judicial . . . 17 proceeding or matter, knowing such statement to be untrue.” NMSA 1978, § 30- 18 25-1(A) (2009). Although “a defendant should be granted a new trial if perjury of a 19 material witness against him is later discovered” it is imperative that courts “act with

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1 great reluctance and with special care and caution before accepting the truth of a claim 2 of perjury.” State v. Betsellie, 1971-NMSC-076, ¶ 12, 82 N.M. 782, 487 P.2d 484. 3 The evidence must “affirmatively establish the perjury in such clear and convincing 4 manner as to leave no room for reasonable doubt that perjury was committed.” Id. 5 6 {46} Defendant argues that the trial court erred in denying his motion for a new trial 7 based on Dr. Jenny’s alleged perjury. His argument appears to be solely based on the 8 fact that Dr. Jenny said she saw all the slides retained in the case when in fact she only 9 saw the slides in OMI’s possession and OMI did not have all of the slides in its 10 possession. The trial court found that Dr. Jenny testified that she had reviewed all of 11 the slides “that were retained from the case” and that OMI had not “retained” the 12 missing slides since it had sent them to the defense expert. However, even if her 13 statement could be construed to be factually untrue, it does not constitute perjury 14 unless she “[knew] such statement to be untrue” when she said it. Section 30-25-1(A). 15 There is no evidence in the record that Dr. Jenny was not aware she had not seen all 16 of the slides in the case. Defendant fails to meet his burden, pointing to no evidence, 17 let alone “clear and convincing” evidence, that perjury was committed. The trial court 18 did not abuse its discretion in denying Defendant’s motion for a new trial. 19 7. Exculpatory Evidence

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1 {47} Finally, Defendant argues that the district court erred in denying his motion for 2 a new trial based on the State’s alleged Brady violation. 3 A. Facts 4 {48} In addition to the perjury allegations, Defendant’s motion for a new trial also 5 set forth grounds for a new trial arguing that if the State knew that Dr. Jenny had not 6 reviewed all of the slides, it was required to disclose that information prior to Dr. 7 Jenny’s testimony. The trial court found that there was “nothing to indicate” that the 8 State had withheld information about the missing slides from Defendant and denied 9 the motion on this ground as well. 10 B. Standard of Review 11 {49} As we did for the previous issue, we review the denial of a motion for a new 12 trial for an abuse of discretion. Guerra, 2012-NMSC-027, ¶ 18. 13 C. Discussion 14 {50} Defendant’s argument rests on the State’s duty to turn over exculpatory 15 evidence to the defendant in a criminal case. See Rule 5-501(A)(6) NMRA (“[T]he 16 state shall disclose or make available to the defendant . . . any material evidence 17 favorable to the defendant which the state is required to produce under the due process 18 clause of the United States Constitution.”); Brady v. Maryland, 373 U.S. 83, 87 (1963) 19 (holding that “the suppression by the prosecution of evidence favorable to an accused

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1 upon request violates due process where the evidence is material either to guilt or to 2 punishment”). He begins by asserting, “If the State knew, prior to her testimony, that 3 Dr. Jenny had not reviewed ‘all the slides,’ the State was required to turn over that 4 information prior to Dr. Jenny’s examination.” (Emphasis added.) And he concludes 5 the discussion on this issue by stating, “The State knew that Dr. Jenny had not 6 reviewed all of the slides.” At no point in between does Defendant point to any 7 evidence in the record that would support the transition from mere speculation to fact. 8 He thus fails to rebut the district court’s finding that there was nothing to show that 9 the State knew prior to Dr. Jenny’s testimony that she had not reviewed all of the 10 slides in the case. Therefore, Defendant has not met his burden and we again 11 conclude the trial court did not abuse its discretion. 12 CONCLUSION 13 {51} The trial court is affirmed. 14 {52} IT IS SO ORDERED.

15 _____________________________ 16 MICHAEL E. VIGIL, Judge

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1 WE CONCUR:

2 ___________________________________ 3 CYNTHIA A. FRY, Judge

4 _________________________________ 5 LINDA M. VANZI, Judge