State v. Luna

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ______________ 3 Filing Date: December 13, 2017 4 A-1-CA-34709 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 GAVINO LUNA, 9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 11 Daniel Viramontes, District Judge

12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 Jane A. Bernstein, Assistant Attorney General 15 Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender 18 Kimberly Chavez Cook, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 1 OPINION 2 HANISEE, Judge. 3 {1} Defendant Gavino Luna was convicted by a jury of (1) criminal sexual contact 4 of a minor (Child under 13) (CSCM) in the third degree, (2) intimidation of a witness, 5 (3) unlawful exhibition of motion pictures to a minor, and (4) contributing to the 6 delinquency of a minor (CDM) for forcing a minor to “engage in sexual acts and 7 watch pornographic movies[.]” He was sentenced to eleven-and-one-half years’ 8 incarceration, less one day, to be followed by parole for five years to life. Defendant 9 appeals his convictions, challenging: (1) his right to be free from double jeopardy, (2) 10 the adequacy of two jury instructions given, (3) the sufficiency of the evidence 11 supporting his convictions, (4) the admission of certain lay testimony, and (5) the 12 admission of specific expert testimony. We affirm in part, reverse in part, and remand 13 for further proceedings. 14 BACKGROUND 15 {2} Defendant’s convictions stem from events that occurred the afternoon of May 16 3, 2013, when Defendant was looking after J.C. (Child), a nine-year-old boy, and 17 Child’s twelve-year-old sister because Child’s mother was hospitalized. Defendant 18 lived with Child’s grandmother. According to Child, Defendant showed Child “ugly” 19 movies that showed photographs of women “showing themselves.” Child could not

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1 recall details of the movie, such as what the women in the movie were doing, but he 2 explained that the women in the movie were wearing “red” clothes “like . . . you wear 3 outside” and that they kept their clothing on. There were no other people in the 4 pictures with the women. Child did not like the movies because he found them “very 5 ugly” because they “showed . . . all of [the] parts . . . of the women.” Child did not 6 want to look at the photos and movies and tried to leave the room but was not 7 allowed; Child thought that if he ran, Defendant would get mad. 8 {3} Child also testified that at one point, Defendant pulled down Defendant’s 9 shorts and showed Child his “parts,” which Child explained meant Defendant’s penis. 10 Child could not recall whether Defendant made Child touch any of Defendant’s 11 “parts,” but he remembered that Defendant touched Child’s penis two times: once 12 with his hand, and once with his mouth. The contact occurred over Child’s clothing 13 and was not skin-to-skin. This made Child feel “very bad[].” 14 {4} Defendant told Child not to tell anyone and that he would take Child far away 15 and leave Child there if Child told anyone. Child was afraid of Defendant and 16 approximately one week after the incident told his mother what happened. Child’s 17 mother contacted the Deming, New Mexico Police Department, and Defendant was 18 subsequently charged with and tried for criminal sexual penetration of a minor 19 (CSPM) in the first degree, CSCM, intimidation of a witness, CDM, and unlawful

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1 exhibition of motion pictures to a minor. The district court granted Defendant’s 2 motion for a directed verdict on the CSPM charge based on a lack of sufficient 3 evidence to support the charge but allowed all other counts to go to the jury. The jury 4 convicted Defendant on all submitted counts, after which the district court entered 5 judgment and sentenced Defendant. This appeal followed. 6 DISCUSSION 7 {5} Defendant makes the following challenges on appeal: (1) Defendant’s 8 convictions for CSCM, unlawful exhibition, and CDM violate his Fifth Amendment 9 right to be free from double jeopardy; (2) the district court fundamentally erred in 10 instructing the jury as to the elements of unlawful exhibition of motion pictures to a 11 minor and CSCM; (3) there was insufficient evidence to support Defendant’s 12 convictions for unlawful exhibition of motion pictures, CDM, and intimidation of a 13 witness; (4) the district court committed plain error in admitting the lay testimony of 14 Detective Sergio Lara, the investigating officer, who testified that he recovered a 15 “pornographic” video from Defendant’s house; and (5) the district court committed 16 plain error in admitting the expert testimony of Sylvia Aldaz-Osborn, a forensic 17 interviewer who was allowed to watch and comment on Child’s videotaped 18 deposition when it was shown to the jury during trial. We address each issue in turn.

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1 I. Whether Defendant’s Convictions for CDM, CSCM, and Unlawful 2 Exhibition of Motion Pictures to a Minor Violate His Right to Be Free 3 from Double Jeopardy

4 {6} Defendant contends that the sentence imposed by the district court violates his 5 Fifth Amendment right to be free from double jeopardy because the conduct 6 underlying his CDM conviction is identical to that used as the basis for his CSCM 7 and unlawful exhibition of motion pictures convictions. Defendant argues that the 8 CDM statute is generic and multipurpose, requiring us to analyze his claim using the 9 modified Blockburger approach articulated in State v. Gutierrez, 2011-NMSC-024, 10 ¶ 58, 150 N.M. 232, 258 P.3d 1024 . Such approach, Defendant argues, leads to the 11 conclusion that the Legislature did not intend to punish separately Defendant’s 12 unitary conduct as specifically charged and argued by the State. The State contends 13 that the CDM statute, while broad in scope, is not “unacceptably vague” and, 14 therefore, we need not follow Gutierrez’s modified Blockburger approach. Thus, the 15 State urges us to apply Blockburger’s strict elements test that was used in State v. 16 Trevino, 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172, a pre-Gutierrez case 17 holding that there was no double jeopardy violation for CDM and CSCM convictions. 18 The State argues that Trevino should continue to control. We disagree. Under the 19 current state of the law, we agree with Defendant that Gutierrez is now controlling, 20 and we reverse his CDM conviction.

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1 A. The Blockburger Test 2 {7} The Double Jeopardy Clause of the Fifth Amendment, made applicable to New 3 Mexico by incorporation through the Fourteenth Amendment, “functions in part to 4 protect a criminal defendant against multiple punishments for the same offense.” 5 State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and 6 citation omitted). Cases “where the same conduct results in multiple convictions 7 under different statutes” are known as double description cases. Id. In a double 8 description case, we apply the two-part test set forth in Swafford v. State, 1991- 9 NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. We first ask “whether the conduct 10 underlying the offenses is unitary, i.e., whether the same conduct violates both 11 statutes.” Id. Here, the State does not dispute that the same conduct—Defendant’s 12 sexual contact of and exhibition of “pornographic” movies to Child—formed the 13 basis of his CDM, CSCM, and unlawful exhibition convictions. Thus, we turn to the 14 second part of the Swafford test and focus “on the statutes at issue to determine 15 whether the [L]egislature intended to create separately punishable offenses.” Id. 16 {8} Our Supreme Court has described legislative intent as “the touchstone of our 17 inquiry” because in this context “[i]t is well established that the Double Jeopardy 18 Clause does no more than prevent the sentencing court from prescribing greater 19 punishment than the [L]egislature intended.” Gutierrez, 2011-NMSC-024, ¶ 50

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1 (internal quotation marks and citations omitted). Unless the Legislature has clearly 2 and expressly authorized multiple punishments for the same conduct, we apply the 3 following test articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), 4 to determine intent: “[W]here the same act or transaction constitutes a violation of 5 two distinct statutory provisions, the test to be applied to determine whether there are 6 two offenses or only one[] is whether each provision requires proof of a fact which 7 the other does not.” Id. As our Supreme Court explained in Swafford:

8 The rationale underlying the Blockburger test is that if each statute 9 requires an element of proof not required by the other, it may be inferred 10 that the [L]egislature intended to authorize separate application of each 11 statute. Conversely, if proving violation of one statute always proves a 12 violation of another (one statute is a lesser included offense of another, 13 i.e., it shares all of its elements with another), then it would appear the 14 [L]egislature was creating alternative bases for prosecution, but only a 15 single offense.

16 Swafford, 1991-NMSC-043, ¶ 12. Importantly, Swafford explained that “the 17 Blockburger test is not a constitutional rule, but merely a canon of construction used 18 to guide courts in deciphering legislative intent.” Id. It, therefore, follows that the 19 starting point in a Blockburger analysis—looking to the statute’s language itself—is 20 consistent with the general rule of statutory construction that “[i]n analyzing 21 legislative intent, [courts] first look to the language of the statute itself.” Swick, 2012- 22 NMSC-018, ¶ 11; see State v. Suazo, 2017-NMSC-011, ¶ 16, 390 P.3d 674 23 (explaining that courts “begin with the plain language of the statute, which is the

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1 primary indicator of legislative intent.” (alteration, internal quotation marks, and 2 citation omitted)). It also follows that where the plain language of the statute is 3 ambiguous, we engage in further interpretation in order to glean legislative intent. See 4 State v. Almeida, 2011-NMCA-050, ¶ 11, 149 N.M. 651, 253 P.3d 941 (“[I]f a statute 5 is vague or ambiguous and cannot be interpreted by a simple consideration of the 6 statutory language, the court must look to other means of statutory interpretation.”). 7 {9} Historically, courts applied the Blockburger test by strictly comparing the 8 elements—evidenced by a statute’s plain language—of the challenged statutes. State 9 v. Lee, 2009-NMCA-075, ¶ 9, 146 N.M. 605, 213 P.3d 509 (“In applying the 10 Blockburger test, this Court compares the elements of each crime with the elements 11 of the other.”). However, in response to “the increasing volume, complexity, 12 vagueness and overlapping nature of criminal statutes[,]” the United States Supreme 13 Court modified the Blockburger analysis to account for the challenges to divining 14 legislative intent presented by multipurpose statutes that could be offended in 15 multiple ways and address various types of wrongs. Pandelli v. United States, 635 16 F.2d 533, 535-39 (6th Cir. 1980) (explaining the evolution of the Blockburger test 17 that occurred in Whalen v. United States, 445 U.S. 684 (1980), and Illinois v. Vitale, 18 447 U.S. 410 (1980)). Now, in cases involving a criminal statute that is generic, 19 multipurpose, vague, unspecific, ambiguous, and/or written in the alternative, we

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1 must engage in “statutory reformulation” by “narrow[ing] the statute to be analyzed 2 until it includes only the alternatives relevant to the case at hand.” Pandelli, 635 F.2d 3 at 538; Gutierrez, 2011-NMSC-024, ¶¶ 58-59. In effect, this modified approach 4 recognizes that comparing in the abstract ambiguous facial statutory elements fails 5 to provide requisite guidance to a court in determining legislative intent. See State v. 6 Franco, 2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104 (explaining that “a 7 statute that serves several purposes and has been written in the alternative may have 8 many meanings and a wide range of deterrent possibilities” and that “[u]nless we 9 focus on the relevant alternatives, we run the risk of misconstruing legislative intent” 10 (internal quotation marks and citation omitted)). As this Court has explained:

11 Analyzing statutory elements from the vantage point of the 12 particular case before the court . . . enables a reviewing court to remain 13 faithful to legislative intent to provide alternative means of prosecution 14 against a single category of wrongdoers, and to avoid the confusion and 15 injustice that may arise from looking at statutes in the abstract when 16 each statute contains an element which the other does not.

17 State v. Rodriguez, 1992-NMCA-035, ¶ 10, 113 N.M. 767, 833 P.2d 244. Thus, in 18 cases involving such statutes, a court considering a double jeopardy challenge must 19 rely on the state’s specific legal theory as the basis for establishing the proper 20 elemental comparison in applying the Blockburger test. See State v. Silvas, 2015- 21 NMSC-006, ¶ 14, 343 P.3d 616; State v. Gutierrez, 2012-NMCA-095, ¶ 14, 286 P.3d 22 608 (explaining that the modified Blockburger approach “applies when one of the

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1 statutes at issue is written with many alternatives, or is vague or unspecific” and that 2 “a reviewing court should look at the legal theory of the offense that is charged[] 3 instead of looking at the statute in the abstract when comparing elements under 4 Blockburger” (internal quotation marks and citation omitted)). Specifically, “we look 5 to the charging documents and jury instructions to identify the specific criminal 6 causes of action for which the defendant was convicted.” State v. Ramirez, 2016- 7 NMCA-072, ¶ 18, 387 P.3d 266, cert. denied, ___-NMCERT-___ (No. S-1-SC- 8 35949, July 20, 2016). Where “[n]either the indictment nor the jury instructions shed 9 any light on the [s]tate’s trial theory[,]” and/or to confirm our understanding of the 10 state’s theory, we may also look to the state’s closing argument for evidence of the 11 specific factual basis supporting its theory. Id. ¶¶ 17, 20; Silvas, 2015-NMSC-006, 12 ¶¶ 19-21 (explaining that “[o]ur reading of the [jury] instructions is confirmed when 13 we look to how the prosecutor asked the jury to apply [the] instructions” and 14 reviewing the prosecutor’s closing argument). By doing this, we may properly 15 identify the appropriate “provisions” for comparison that are at the heart of the 16 Blockburger test. See Blockburger, 284 U.S. at 304. 17 {10} If application of either approach to the Blockburger test “establishes that one 18 statute is subsumed within the other, the inquiry is over and the statutes are the same 19 for double jeopardy purposes—punishment cannot be had for both.” Swafford, 1991-

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1 NMSC-043, ¶ 30; see also Gutierrez, 2011-NMSC-024, ¶ 60 (holding, after applying 2 the modified Blockburger approach, that the defendant’s armed robbery conviction 3 subsumed his unlawful taking of a motor vehicle conviction and thus vacating his 4 conviction for the lesser-included offense). If not, there is created a presumption that 5 multiple punishment may be had, which presumption “may be overcome by other 6 indicia of legislative intent.” Swafford, 1991-NMSC-043, ¶ 31. However, we only 7 turn to other means of determining legislative intent if the statutes in question 8 “survive Blockburger.” State v. Branch, 2016-NMCA-071, ¶¶ 24, 28, 387 P.3d 250, 9 cert. granted, ___-NMCERT-___ (No. S-1-SC-35951, July 28, 2016).

10 B. Whether We Should Apply the Blockburger Strict Elements Test or Follow 11 Gutierrez’s Modified Elements Approach

12 {11} Because the parties disagree whether the CDM statute falls within the reach of 13 Gutierrez, we begin by determining whether the CDM statute is the type of 14 statute—i.e., generic, multipurpose, ambiguous, vague or unspecific, or written in the 15 alternative—to which Gutierrez applies. 16 {12} The CDM statute provides that “[c]ontributing to the delinquency of a minor 17 consists of any person committing any act or omitting the performance of any duty, 18 which act or omission causes or tends to cause or encourage the delinquency of any 19 person under the age of eighteen years.” NMSA 1978, § 30-6-3 (1990). Our Supreme 20 Court has explained that where “many forms of conduct can support” a particular

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1 statutory element, that statute “is a generic, multipurpose statute that is vague and 2 unspecific, and we must look to the [s]tate’s theory of the case to inform what” 3 particular conduct is alleged in that particular case. Swick, 2012-NMSC-018, ¶ 25 4 (internal quotation marks omitted). Likewise, the presence of generic terms—such as 5 “any unlawful act”—that allow for “numerous forms of conduct that could fulfill that 6 requirement” necessarily render that statute subject to application of the modified 7 Blockburger approach. Branch, 2016-NMCA-071, ¶ 26. 8 {13} We have little difficulty concluding that the CDM statute qualifies for 9 application of the modified Blockburger approach. To begin with, the statute is a 10 quintessentially generic, multipurpose statute, as has long been recognized in New 11 Mexico case law. See State v. Pitts, 1986-NMSC-011, ¶ 10, 103 N.M. 778, 714 P.2d 12 582 (explaining that New Mexico courts have “recognized that the intent of the 13 Legislature in enacting [the CDM statute] was to extend the broadest possible 14 protection to children, who may be led astray in innumerable ways”); State v. 15 McKinley, 1949-NMSC-010, ¶ 12, 53 N.M. 106, 202 P.2d 964 (“The ways and means 16 by which the venal mind may corrupt and debauch the youth of our land, both male 17 and female, are so multitudinous that to compel a complete enumeration in any statute 18 designed for protection of the young before giving it validity would be to confess the 19 inability of modern society to cope with the problem of juvenile delinquency.”).

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1 Additionally, the statute is both vague and unspecific in that it criminalizes “any act” 2 or the omission of “any duty” when that act or omission results in a child’s 3 delinquency. Section 30-6-3 (emphasis added). These generic terms make it possible 4 for numerous forms of conduct to qualify as the requisite actus reus element of the 5 statute. Thus, absent “statutory reformulation” vis-à-vis the State’s legal theory in this 6 case, there is no way to engage in the meaningful elemental comparison that is at the 7 heart of the Blockburger test. See Pandelli, 635 F.2d at 538. In other words, until we 8 identify which of Defendant’s specific acts or omissions form the basis for the CDM 9 charge, there is no way to know whether other conduct for which Defendant was 10 criminally charged is separately punishable or if one charge subsumes the other. 11 C. Applying the Modified Blockburger Approach to the CDM Statute 12 {14} The jury was instructed that in order to convict Defendant of CDM, the State 13 had to prove:

14 1. [D]efendant forced [Child] to engage in sexual acts and 15 watch pornographic movies;

16 2. This caused or encouraged [Child] to conduct himself in a 17 manner injurious to his morals, health or welfare;

18 3. [Child] was under the age of 18;

19 4. This happened in New Mexico on or about the 3rd day of 20 May, 2013.

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1 From this it is apparent that the State’s theory of the “any act” element of CDM was 2 Defendant’s forcing Child “to engage in sexual acts and watch pornographic 3 movies[.]” See UJI 14-601, n.2 NMRA (requiring a description of the act or omission 4 of the defendant as part of the first element). Thus, under its theory as articulated in 5 the jury instruction, the State had to prove that Defendant forced Child to both engage 6 in sexual acts and watch pornographic movies in order to convict Defendant of CDM. 7 {15} While it used different terms in the CDM instruction, the State does not dispute 8 that “sexual acts” refers to the CSCM or that “watch pornographic movies” is the 9 same as unlawful exhibition of motion pictures. Importantly, the State points to no 10 alternative act or acts that could serve as the basis for proving the “any acts” element 11 of the CDM charge. See Swick, 2012-NMSC-018, ¶ 25 (explaining that even where 12 one must draw an inference from arguably vague charging documents and jury 13 instructions, “a prosecutor should not be allowed to defeat the constitutional 14 protections afforded by the double jeopardy clause by clever indictment drafting” 15 (alteration, internal quotation marks, and citation omitted)). The State also proffered 16 no additional testimony or evidence to prove CDM than it did to prove CSCM and 17 unlawful exhibition of motion pictures. See id. ¶ 26. 18 {16} The State’s only argument that Defendant’s multiple convictions survive a 19 modified Blockburger analysis is that the CDM statute contains an element that

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1 neither the CSCM nor unlawful exhibition statutes contains—namely that 2 Defendant’s acts “caused or encouraged [Child] to conduct himself in a manner 3 injurious to his morals, health or welfare”—meaning that the statutes are not 4 subsumed within each other. However, the State’s argument ignores that in order for 5 a statute not to be subsumed within another, each statute must require proof of a fact 6 which the other does not. See Blockburger, 284 U.S. at 304 (explaining that “the test 7 to be applied to determine whether there are two offenses or only one[] is whether 8 each provision requires proof of a fact which the other does not”). While it is true that 9 the CDM statute requires proof of an additional element, neither the CSCM nor 10 unlawful exhibition statute requires proof of anything more than what is required to 11 prove CDM as charged in this case.1 Cf. State v. Ramirez, 2016-NMCA-072, ¶¶ 18, 12 23-24, 387 P.3d 266 (explaining that the aggravated assault statute, NMSA 1978, 13 § 30-3-1(B) (1963), and the child endangerment statute, NMSA 1978, § 30-6-1(D) 14 (2009), each requires proof of something the other does not, thus concluding that the 15 statutes survived the modified Blockburger test), cert. denied, ___-NMCERT-___ 16 (No. S-1-SC-35949, July 20, 2016). Because the jury could—and, indeed,

17 1 Trevino is distinguishable because there our Supreme Court applied the pre-

18 Gutierrez strict Blockburger test and concluded that the generic CSCM statute 19 requires proof of an additional element—an unlawful sexual touching—that the 20 generic CDM statute does not. See Trevino, 1993-NMSC-067, ¶¶ 5-6.

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1 did—convict Defendant of CDM based on nothing more than the same evidence used 2 to convict Defendant of CSCM and unlawful exhibition of motion pictures, we hold 3 that Defendant’s conviction for CDM as charged in this case violates double 4 jeopardy. We reverse and remand with instructions to vacate Defendant’s CDM 5 conviction.

6 II. Whether the District Court Committed Fundamental Error in Instructing 7 the Jury

8 {17} Defendant challenges his convictions for (a) unlawful exhibition of motion 9 pictures to a minor and (b) CSCM based on the jury instructions given by the district 10 court. Because Defendant failed to object to the instructions, we review his challenges 11 for fundamental error only. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 12 258, 34 P.3d 1134 (“The standard of review we apply to jury instructions depends on 13 whether the issue has been preserved. If the error has been preserved we review the 14 instructions for reversible error. . . . If not, we review for fundamental error.” (citation 15 omitted)). “The doctrine of fundamental error applies only under exceptional 16 circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004- 17 NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. “An error is fundamental when it goes 18 to the foundation or basis of a defendant’s rights.” State v. Anderson, 2016-NMCA- 19 007, ¶ 8, 364 P.3d 306 (internal quotation marks and citation omitted), cert. denied, 20 2015-NMCERT-012 (No. A-1-CA-35591, Dec. 7, 2015). “We will not uphold a

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1 conviction if an error implicated a fundamental unfairness within the system that 2 would undermine judicial integrity if left unchecked.” Id. (internal quotation marks 3 and citation omitted). 4 {18} In instances of claimed instructional error, we seek to determine “whether a 5 reasonable juror would have been confused or misdirected by the jury instruction.” 6 Benally, 2001-NMSC-033, ¶ 12 (internal quotation marks and citation omitted). 7 “Juror confusion or misdirection may stem from instructions which, through omission 8 or misstatement, fail to provide the juror with an accurate rendition of the relevant 9 law.” Anderson, 2016-NMCA-007, ¶ 9 (internal quotation marks and citation 10 omitted). “The propriety of jury instructions given . . . is a mixed question of law and 11 fact[,]” which we review de novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 12 747, 228 P.3d 1167 (internal quotation marks and citation omitted).

13 A. The Unlawful Exhibition of Motion Pictures to a Minor Jury Instruction 14 Was Deficient

15 {19} Defendant argues that the district court fundamentally erred by failing to 16 properly instruct the jury regarding what it had to find in order to convict Defendant 17 of unlawful exhibition of motion pictures to a minor. We agree. 18 {20} NMSA 1978, Section 30-37-3 (1973) provides, “It is unlawful for any person 19 knowingly to exhibit to a minor . . . a motion picture, show or other presentation 20 which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse

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1 and which is harmful to minors.” Because there is no uniform jury instruction that 2 provides the essential elements of this offense, the district court was required to give 3 an instruction that “substantially follow[s] the language of the statute” in order to be 4 deemed sufficient. State v. Doe, 1983-NMSC-096, ¶ 8, 100 N.M. 481, 672 P.2d 654; 5 State v. Gunzelman, 1973-NMSC-055, ¶ 28, 85 N.M. 295, 512 P.2d 55 (explaining 6 that “[w]hen the terms of the statute itself define [an element of the crime], then an 7 instruction which follows the words of the statute is sufficient”), overruled on other 8 grounds by State v. Orosco, 1992-NMSC-006, ¶ 7, 113 N.M. 780, 833 P.2d 1146. 9 Following the language of Section 30-37-3, we discern the following elements that 10 together constitute the offense of unlawful exhibition: (1) The defendant knowingly 11 exhibited a motion picture, show or other presentation; (2) The exhibition was to a 12 minor; (3) The motion picture, show or other presentation depicts, in whole or in part, 13 nudity, sexual conduct or sado-masochistic abuse; and (4) The motion picture, show 14 or other presentation is harmful to minors. In other words, a person who knowingly 15 exhibits to a minor a motion picture containing nudity cannot be convicted under 16 Section 30-37-3 absent an additional finding that the motion picture was “harmful to 17 minors.” Mere depiction of nudity alone is not enough. 18 {21} Additionally, the Legislature specially defined the terms “nudity” and “harmful 19 to minors” as used in the Sexually Oriented Material Harmful to Minors Act, of

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1 which Section 30-37-3 is a part. See NMSA 1978, § 30-37-1 (1973) (defining terms 2 “[a]s used in this act”). “[N]udity” is defined as “the showing of the male or female 3 genitals, pubic area or buttocks with less than a full opaque covering, or the depiction 4 of covered male genitals in a discernibly turgid state[.]” Section 30-37-1(B). 5 “[H]armful to minors” is defined as:

6 [T]hat quality of any description o[r] representation, in whatever form, 7 of nudity, sexual conduct, sexual excitement or sado-masochistic abuse 8 when it:

9 (1) predominantly appeals to the prurient, shameful or morbid 10 interest of minors; and

11 (2) is patently offensive to prevailing standards in the adult 12 community as a whole with respect to what is suitable material for 13 minors; and

14 (3) is utterly without redeeming social importance for 15 minors[.]

16 Section 30-37-1(F). Neither definition was provided to the jury in this case. While the 17 failure to give a definitional instruction typically does not rise to the level of 18 fundamental error, in some cases it does. See State v. Mascareñas, 2000-NMSC-017, 19 ¶¶ 20-21, 129 N.M. 230, 4 P.3d 1221 (holding that the district court fundamentally 20 erred by failing to include a definition of “reckless disregard” in a case where failure 21 to provide the definitional instruction “had the potential effect of confusing the jury 22 as to the proper standard of negligence to apply”); Anderson, 2016-NMCA-007, ¶¶ 8-

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1 19 (holding in a case involving a claim of self-defense that there was fundamental 2 error where the district court failed to provide the jury with the “no-retreat” 3 instruction because there was evidence to support the instruction and the jury was 4 “misdirected” by the instructions issued). Importantly, failure to give a definitional 5 instruction when the term being defined “has a legal meaning different from the 6 commonly understood lay interpretation of [the term]” may result in jury confusion 7 that could place the verdict in doubt. Barber, 2004-NMSC-019, ¶¶ 21-22. In such 8 instances, “we must place all the facts and circumstances under close scrutiny to see 9 whether the missing instruction caused such confusion that the jury could have 10 convicted [the d]efendant based upon a deficient understanding of the legal meaning 11 of [the term in question] as an essential element of the crime.” Id. ¶ 25. 12 {22} The jury in this case was instructed that in order to convict Defendant of this 13 offense, it had to find in pertinent part:

14 1. [D]efendant knowingly showed or exhibited motion pictures to 15 [Child];

16 2. The motion pictures depicted nudity and/or sexual conduct which 17 is harmful to minors; [and]

18 3. [Child] was under the age of eighteen[.] 19 The proffered instruction is deficient in at least two respects. First, it fails to identify 20 as a separate element that the motion picture “is harmful to minors” as we have

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1 concluded the statute requires. The phrase “which is harmful to minors” contained in 2 the second paragraph of the instruction arguably modifies only “sexual conduct” and, 3 at best, may also modify “nudity.” But the requisite finding a jury must make in order 4 to convict is that the exhibition prohibited by the statute, here a motion picture, is 5 harmful to minors. See § 30-37-3. Thus, as instructed, the jury could have convicted 6 Defendant for merely exhibiting to Child a motion picture that “depicted nudity” 7 without making an additional finding that the motion picture was “harmful to 8 minors.” Second, as previously noted the jury was not provided with the statutory 9 definitions of “nudity” and “harmful to minors.” In defining these terms, the 10 Legislature, in effect, established a special standard by which to determine whether 11 a criminal offense—as opposed to an exhibition that, while perhaps inappropriate and 12 ill-advised, is not harmful—has been committed. Where a district court fails to 13 adequately define the applicable standard necessary to support a finding of criminal 14 activity and it cannot be determined whether the jury applied the correct legal 15 standard and “delivered its verdict on a legally adequate basis[,]” fundamental error 16 may exist. Mascareñas, 2000-NMSC-017, ¶¶ 8-13, 16, 21. We review the evidence 17 in order to determine whether “under the facts adduced at trial, [an] omitted element 18 was undisputed and indisputable, and no rational jury could have concluded 19 otherwise.” State v. Lopez, 1996-NMSC-036, ¶ 13, 122 N.M. 63, 920 P.2d 1017

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1 (internal quotation marks and citation omitted). If the evidence does not indisputably 2 establish the missing element or elements, there exists fundamental error, and we 3 must reverse. See id. 4 {23} The only evidence to support Defendant’s conviction for unlawful exhibition 5 of motion pictures was Child’s testimony regarding what the movie Defendant 6 showed him depicted. Child testified that there were women in the movie wearing 7 “red” clothes “like . . . you wear outside[,]” that the women remained clothed, and 8 that there was no one in the movie with the women. He explained that he did not like 9 the movies “because they were very ugly” because they “showed . . . all of [the] parts 10 . . . of the women.” As he said “all of their parts[,]” Child, who was seated, made a 11 circling hand gesture in front of his upper body. Child could not recall what the 12 women in the movie were doing and provided no additional description of the 13 contents of the movie. Critically, the State offered no other evidence establishing 14 what the movie showed. While Detective Lara testified that he recovered a 15 video—which he described as “pornographic” in nature—from Defendant’s house 16 and answered “yes” when the prosecutor asked him whether what he saw on the video 17 was “consistent with what [he] had learned and expected to see from [his]

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1 investigation,” he provided no description of what was contained in the movie.2 We 2 also note that the State did not seek to show the jury the video Detective Lara 3 recovered. Cf. State v. Green, 2015-NMCA-007, ¶¶ 6, 26, 341 P.3d 10 (affirming the 4 defendant’s probation revocation for violating the prohibition against pornography 5 and sexually explicit material where images found on the defendant’s computer were 6 entered into evidence and which images this Court, like the district court, held to 7 depict “sexual activity and/or physical contact with unclothed female genitals or 8 buttocks”). 9 {24} It was the State’s burden to prove beyond a reasonable doubt that Defendant 10 exhibited to Child a motion picture, show or presentation that depicted “the male or 11 female genitals, pubic area or buttocks with less than a full opaque covering” and 12 which motion picture “(1) predominantly appeal[ed] to the prurient, shameful or 13 morbid interest of minors; . . . (2) is patently offensive to prevailing standards in the 14 adult community . . .; and (3) is utterly without redeeming social importance for 15 minors[.]” Sections 30-37-1(B), (F) and 30-37-3. We simply cannot say that Child’s

16 Defendant argues separately that it was plain error for the district court to

2

17 admit Detective Lara’s lay opinion as to the pornographic nature of the movie he 18 recovered from Defendant’s house based on Detective Lara’s failure to provide a 19 description of the video’s contents, i.e., because Detective Lara’s testimony lacked 20 a proper foundation. Because we reverse Defendant’s conviction for unlawful 21 exhibition of motion pictures for improper jury instructions, we do not address this 22 argument.

23

1 testimony—or any other evidence in the record—indisputably establishes either of 2 these elements. Cf. Barber, 2004-NMSC-019, ¶¶ 29-30 (explaining that even if the 3 jury instruction was “defectively ambiguous without the definition of possession,” the 4 jury instructions as a whole—which required the state to prove that the defendant 5 intended to transfer methamphetamine—cured the ambiguity because the jury could 6 not have convicted the defendant of intent to transfer, which it did, without also 7 finding that he possessed the drugs); Lopez, 1996-NMSC-036, ¶¶ 14, 17, 34 8 (explaining that despite the district court’s omission of the mens rea requirement—an 9 essential element—from the felony murder jury instruction, the element was 10 indisputably established by the defendant’s own testimony, thus no fundamental error 11 existed); Orosco, 1992-NMSC-006, ¶¶ 1, 19-20 (holding that failing to instruct on the 12 essential element of “unlawfulness” in two CSCM cases was not fundamental error 13 because “under the undisputed evidence of unlawfulness in the cases and the facts 14 upon which the juries relied to find that [the] defendants committed the acts, the juries 15 themselves effectively determined the existence of the omitted element”). 16 {25} There exists a distinct possibility that the jury convicted Defendant (1) without 17 finding all the required elements beyond a reasonable doubt—i.e., that the motion 18 picture itself was “harmful to minors”—and (2) based on a misunderstanding of the 19 applicable legal standard—i.e., by applying common understandings of the terms

24

1 “nudity” and “harmful to minors” rather than their statutory definitions. See State v. 2 Montoya, 2013-NMSC-020, ¶ 14, 306 P.3d 426 (“In applying the fundamental error 3 analysis to deficient jury instructions, we are required to reverse when the 4 misinstruction leaves us with no way of knowing whether the conviction was or was 5 not based on the lack of the essential element.” (internal quotation marks and citation 6 omitted)); cf. State v. Reed, 2005-NMSC-031, ¶¶ 53, 57, 138 N.M. 365, 120 P.3d 447 7 (explaining that even though the district court failed to give the “reckless disregard” 8 definitional instruction specifically for the child abuse charge, the error was harmless 9 because “[a] definitional instruction is not necessary if, as [a] matter of law, no 10 rational juror could find that a defendant acted with less than criminal negligence”). 11 We thus hold that the district court fundamentally erred in instructing the jury on the 12 charge of unlawful exhibition of motion pictures to a minor and remand for a retrial 13 of this issue. See State v. Nevarez, 2010-NMCA-049, ¶ 30, 148 N.M. 820, 242 P.3d 14 387. 15 B. CSCM Jury Instruction 16 {26} Defendant argues the district court committed fundamental error in instructing 17 the jury regarding CSCM by failing to include as an essential element that 18 Defendant’s conduct was unlawful and provide the jury with the corresponding 19 instruction on unlawfulness. The State argues that the “unlawful” element contained

25

1 in UJI 14-925 NMRA, the uniform jury instruction for CSCM, need only be given “if 2 the evidence raises a genuine issue of the unlawfulness of the defendant’s actions.” 3 Id. Use Note 4. We agree with the State. 4 {27} Our Supreme Court has held that it is not fundamental error to fail to provide 5 the “unlawful” element of UJI 14-925 in a case where the element of unlawfulness 6 is not “in issue.” Orosco, 1992-NMSC-006, ¶ 10. To determine whether unlawfulness 7 is “in issue,” we consider “whether there was any evidence or suggestion in the facts, 8 however slight, that could have put the element of unlawfulness in issue.” Id. Where, 9 for example, there is evidence that the touching at issue may have been “innocent 10 behavior such as the touching of the intimate parts of a minor for purposes of 11 providing reasonable medical treatment to a child or nonabusive parental or custodial 12 care[,]” the unlawfulness of the touching is in issue and the jury must be instructed 13 accordingly. State v. Osborne, 1991-NMSC-032, ¶¶ 19-20, 31-33, 111 N.M. 654, 808 14 P.2d 654 (alteration, internal quotation marks, and citation omitted). However, where 15 the state presents evidence that the defendant touched or fondled a child’s intimate 16 parts or genitals and there are no facts in evidence “to suggest that the touchings, if 17 they occurred, might have involved the provision of medical care, custodial care or 18 affection, or any other lawful purpose[,]” unlawfulness is not “in issue.” Orosco, 19 1992-NMSC-006, ¶¶ 10, 11. That is because implicit in the jury’s determination that

26

1 the defendant committed a crime is a finding—based on the evidence in the 2 case—that the defendant’s conduct was unlawful. See id. ¶¶ 11-12. 3 {28} Here, the jury heard from Child that Defendant (1) showed Child movies with 4 women “showing . . . all of their parts,” which movies Child found “ugly,” (2) 5 exposed his own penis to Child, then (3) touched Child’s clothed penis with his hand 6 and mouth. Despite all this evidence, Defendant argues that “[t]here was no context 7 provided” and “no . . . evidence that the scenario was sexual.” Critically, he fails to 8 point to anything in the record, even something slight, that might suggest that 9 Defendant’s contact of Child’s penis was lawful. Cf. Osborne, 1991-NMSC-032, 10 ¶¶ 6-7 (describing the evidence of touching in that case and noting that the defendant 11 “did not recall ever touching [the child’s] bottom and said that while it was possible 12 he might have touched her bottom at some point, it would not have been in an 13 inappropriate manner or with an inappropriate intent”). Based on both the allegations 14 against Defendant and the evidence adduced at trial, there was no reason for the jury 15 to be instructed that it had to find Defendant’s conduct “unlawful” because there was 16 no basis upon which the jury could conclude that the touching was lawful. The jury’s 17 verdict thus must have been based upon Defendant’s having touched Child as the 18 evidence was presented, which necessarily incorporated a finding of unlawfulness.

27

1 Id. We, therefore, hold that the district court did not fundamentally err by failing to 2 instruct the jury with the “unlawful” element of UJI 14-925. 3 III. Whether Substantial Evidence Supports Defendant’s Convictions 4 {29} Defendant argues that the State failed to present sufficient evidence to sustain 5 his convictions for CDM, unlawful exhibition of motion pictures to a minor, and 6 intimidation of a witness. Because we have already reversed and remanded 7 Defendant’s convictions for CDM and unlawful exhibition of motion pictures to a 8 minor, we address only whether sufficient evidence supports his conviction for 9 intimidation of a witness. 10 {30} “The test for sufficiency of the evidence is whether substantial evidence of 11 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 12 reasonable doubt with respect to every element essential to a conviction.” State v. 13 Cabezuela, 2015-NMSC-016, ¶ 14, 350 P.3d 1145 (internal quotation marks and 14 citation omitted). Our review involves a two-step process in which we first “view the 15 evidence in the light most favorable to the guilty verdict, indulging all reasonable 16 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 17 v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then 18 “evaluate whether the evidence, so viewed, supports the verdict beyond a reasonable 19 doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. We disregard all

28

1 evidence and inferences that support a different result. See State v. Rojo, 1999- 2 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Our appellate courts “will not invade 3 the jury’s province as fact-finder by second-guessing the jury’s decision concerning 4 the credibility of witnesses, reweighing the evidence, or substituting its judgment for 5 that of the jury.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 6 (alterations, internal quotation marks, and citation omitted). 7 {31} The jury in this case was instructed, in pertinent part, that in order to convict 8 Defendant of intimidation of a witness, the State had to prove beyond a reasonable 9 doubt that Defendant “knowingly intimidated and/or threatened [Child] with the 10 intent to keep [Child] from truthfully reporting to a law enforcement officer or any 11 agency that is responsible for enforcing criminal laws information relating to the 12 commission or possible commission of . . . [CSCM.]” Intimidation of a witness may 13 be proven through circumstantial evidence, including the witness’s testimony that he 14 or she did not initially report an incident because the defendant had made a veiled 15 threat and was present in the room when the report first could have been made. In re 16 Gabriel M., 2002-NMCA-047, ¶¶ 22, 24-26, 132 N.M. 124, 45 P.3d 64. Particularly 17 in cases involving children, such testimony may be elicited by the use of leading 18 questions. See State v. Orona, 1979-NMSC-011, ¶ 28, 92 N.M. 450, 589 P.2d 1041

29

1 (“Leading questions are often permissible when a witness is immature, timid[,] or 2 frightened.”). 3 {32} Here, the State relied on the following exchange between the prosecutor and 4 Child to support Defendant’s conviction for intimidating a witness: 5 Q: Did [Defendant] tell you not to tell anyone [what happened]? 6 A: Yes.

7 Q: Did [Defendant] tell you he would do anything if you told 8 someone?

9 A: I don’t recall.

10 Q: Do you remember telling the police officer that [Defendant] said 11 he would take you far away and leave you there?

12 A: Yes, oh, yes, I do recall. 13 Q: Did [Defendant] tell you that? 14 A: Yes. 15 Q: Were you afraid of [Defendant]? 16 A: Yes. 17 Child also testified that he did not immediately tell his mother about the incident 18 because Defendant was present, but that once Defendant was gone, Child then 19 disclosed to his mother what Defendant did to him.

30

1 {33} Defendant contends that the prosecutor “simply spoon-fed [Child] the State’s 2 entire factual basis for intimidation of a witness[,]” thus diminishing “the evidentiary 3 value of [Child’s] testimony on the subject.” Defendant argues that under Orona, the 4 prosecutor’s leading questions and Child’s single-word affirmatory responses fail to 5 provide sufficient evidence to support Defendant’s conviction because the facts were 6 contained only in the prosecutor’s questions and thus were not evidence. See Orona, 7 1979-NMSC-011, ¶ 21 (explaining that “[d]eveloping testimony by the use of leading 8 questions must be distinguished from substituting the words of the prosecutor for the 9 testimony of the witness”). Orona is distinguishable, and Defendant’s reliance 10 thereon is misplaced. In Orona, defense counsel repeatedly objected to the 11 prosecutor’s use of leading questions of the complaining witness. Id. ¶¶ 15-18. While 12 the district court initially sustained the objections, it eventually permitted the witness 13 to be led. Id. ¶ 19. Thus, on appeal the defendant made an evidentiary—not 14 sufficiency—challenge and argued that the district court had abused its discretion in 15 allowing the prosecutor to lead the witness, an argument with which our Supreme 16 Court agreed under the particular facts of that case. Id. ¶ 30. 17 {34} Here, however, Defendant neither objected to the prosecutor’s leading 18 questions nor challenges on appeal the admissibility of the evidence elicited, yet 19 complains that the unobjected-to testimony is insufficient to support his conviction.

31

1 Defendant fails to cite any authority suggesting that a child-witness’s responses to a 2 prosecutor’s arguably leading questions, which garnered no objections, must be 3 disregarded in a sufficiency challenge, and we, therefore, assume none exists. See 4 State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will 5 not consider an issue if no authority is cited in support of the issue and that, given no 6 cited authority, we assume no such authority exists.”). Additionally, to the extent 7 Defendant’s argument—that the prosecutor’s use of leading questions “diminishes 8 the evidentiary value of [Child’s] testimony”—invites us to reweigh the evidence, we 9 decline to do so. See State v. Trujillo, 2002-NMSC-005, ¶ 28, 131 N.M. 709, 42 P.3d 10 814 (“We will not reweigh the evidence or substitute our judgment for that of the 11 jury.”). We note that much of Child’s testimony was developed through leading 12 questions—likely owing to the fact that Child frequently expressed confusion upon 13 being asked broad, open-ended questions—and that Child often could not “recall” 14 things when initially asked but eventually remembered when the prosecutor posed the 15 question slightly differently. Thus, Child’s exchange with the prosecutor regarding 16 the intimidation charge was typical of his testimony throughout and established not 17 only that Child remembered telling police that Defendant threatened Child but more 18 importantly a factual basis upon which the jury could conclude that Defendant, in 19 fact, threatened Child.

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1 {35} We conclude that from the record of Child’s testimony, the jury could 2 reasonably infer that Defendant intimidated Child with the intent to keep him from 3 reporting the incident to law enforcement. Thus, we affirm Defendant’s conviction 4 for intimidation of a witness.

5 IV. Whether the District Court Committed Plain Error by Admitting Certain 6 Expert Testimony

7 {36} At trial, the State’s first witness was Sylvia Aldaz-Osborn. Over Defendant’s 8 objection, the district court qualified Aldaz-Osborn as an expert in forensic 9 interviewing. Aldaz-Osborn was allowed to watch Child’s videotaped deposition as 10 it was played to the jury and was then questioned by the prosecutor. The prosecutor 11 asked Aldaz-Osborn to, based on her training and experience as a forensic 12 interviewer, describe in what sort of ways Aldaz-Osborn has seen children react to 13 trauma. Asking if she could use the video of Child’s deposition as an example, Aldaz- 14 Osborn stated, “When you saw [Child] going like this[, biting his lips,] that’s sort of 15 like he’s nervous to answer. . . . I would see that as getting nervous.” The prosecutor 16 then asked, “When children are interviewed, if they’re uncomfortable and nervous, 17 do they, in your experience, . . . develop certain coping mechanisms?” Aldaz-Osborn 18 answered, “Yes, ma’am, they do.” Asked to describe what sorts of things she has 19 observed and invited to use Child’s videotaped deposition as an example, Aldaz- 20 Osborn stated, “Well, I’ve seen what [Child] did with his mouth in going [(unknown

33

1 gesture)], or maybe they cry. Sometimes I’ve even seen them laughing because 2 they’re so nervous. Sometimes they won’t sit down.” The prosecutor then asked, “Do 3 they cope in certain ways, or have you seen them cope in certain ways, when they 4 don’t really want to relive what happened to them?” Aldaz-Osborn responded, “Yes, 5 ma’am, I have.” When the prosecutor asked, “And what did you observe in the video 6 with [Child]?” Aldaz-Osborn answered, “Him trying to recall incidents and saying he 7 didn’t remember.” 8 {37} While Defendant objected to the district court’s qualification of Aldaz-Osborn 9 as an expert witness in forensic interviewing, he failed to object to the admissibility 10 of any of her specific testimony. On appeal, Defendant does not argue that the district 11 court abused its discretion in qualifying Aldaz-Osborn as an expert witness3 but 12 instead contends that the district court erred by admitting Aldaz-Osborn’s testimony 13 regarding “the alleged meaning behind [Child’s] observable behavior” in Child’s 14 videotaped deposition. Conceding that he failed to object to the specific aspects of 15 Aldaz-Osborn’s testimony of which he now complains, Defendant acknowledges that

16 Defendant’s two passing references in his briefs to defense counsel’s

3

17 objections at trial and rote recitations of the “abuse of discretion” standard of review 18 for preserved arguments are insufficient to warrant further consideration by this 19 Court. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031(explaining that 20 appellate courts are under no obligation to review unclear or undeveloped 21 arguments).

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1 we review this part of his challenge for plain error only. See State v. Montoya, 2015- 2 NMSC-010, ¶ 46, 345 P.3d 1056 (explaining that where the defendant did not 3 preserve an objection to the admission of expert testimony, courts review “for plain 4 error”). 5 {38} Plain error is an error that “affects a substantial right” of the accused. Rule 11- 6 103(A) NMRA; Montoya, 2015-NMSC-010, ¶ 46. “To find plain error, [an appellate 7 court] must be convinced that admission of the testimony constituted an injustice that 8 created grave doubts concerning the validity of the verdict.” Id. (internal quotation 9 marks and citation omitted). “In determining whether there has been plain error, we 10 must examine the alleged errors in the context of the testimony as a whole.” State v. 11 Dylan J., 2009-NMCA-027, ¶ 15, 145 N.M. 719, 204 P.3d 44 (omission, internal 12 quotation marks, and citation omitted). Where there exists “ample evidence outside 13 of [the complained-of expert] testimony to support the jury’s finding of guilt[,]” it is 14 not plain error to admit such testimony. Montoya, 2015-NMSC-010, ¶ 49. 15 {39} Defendant primarily complains about Aldaz-Osborn’s testimony regarding 16 Child’s inability to remember certain details during his deposition, arguing that 17 Aldaz-Osborn’s “expert testimony gave the jury an unfounded basis to reach an 18 inference contrary to common sense[,] i.e., that a claimed lack of memory is 19 indicative of a traumatic memory.” Defendant points to “at least ten instances where

35

1 [Child] stated . . . he could not recall something[.]” However, as Defendant 2 acknowledges, the vast majority of those instances related to the details of what the 3 videos Defendant exhibited to Child showed, and we have already held that 4 Defendant’s unlawful exhibition conviction must be reversed. With respect to the 5 evidence supporting Defendant’s convictions for CSCM and intimidation of a 6 witness, we conclude that Child’s testimony alone supports the jury’s findings of 7 guilt. While it is true that it is plain error to allow an expert on direct examination to 8 “repeat to the jury [a] complainant’s statements, made to the expert during [an] 9 evaluation,” because such testimony “amounts to an indirect comment on the alleged 10 victim’s credibility[,]” that is not what happened in this case. State v. Lucero, 1993- 11 NMSC-064, ¶ 19, 116 N.M. 450, 863 P.2d 1071. Here, the jury heard Child’s 12 statements about what happened directly from Child through his videotaped 13 deposition. The jury had the independent opportunity to observe Child’s 14 behaviors—including biting his lips—and the full context in which he could not 15 remember certain details. As discussed in the previous section, while Child initially 16 could not recall Defendant’s threat to him, he displayed clear and immediate 17 recollection of the threat as soon as the prosecutor asked a follow-up question and 18 then confirmed that Defendant, indeed, had so threatened him. Child also had no 19 difficulty recalling and never hesitated in affirmatively answering questions about

36

1 whether Defendant had touched Child’s penis. The only time Child stated that he 2 could not recall something related to the touching was in response to the prosecutor’s 3 question, “Did [Defendant] touch your part over your clothes or under your clothes?”4 4 But Child definitively and repeatedly stated that Defendant had touched Child’s 5 penis, making Aldaz-Osborn’s statement that she saw Child “trying to recall incidents 6 and saying he didn’t remember” irrelevant to the jury’s determination that Defendant 7 was guilty of CSCM. We thus hold that the admission of Aldaz-Osborn’s testimony 8 did not affect a substantial right of Defendant or create grave doubts concerning the 9 validity of the CSCM and intimidation verdicts, and, as a result, no plain error 10 warranting reversal exists. 11 CONCLUSION 12 {40} For the foregoing reasons, we affirm Defendant’s convictions for CSCM and 13 intimidation of a witness, reverse Defendant’s convictions for CDM and unlawful

14 Child’s later testimony clarified that the touching occurred “outside” of his

4

15 clothes and was not skin-to skin. As such, the district court instructed the jury as to 16 CSCM in the third degree rather than CSCM in the second degree as the State had 17 originally charged in order to conform to the evidence elicited at trial. Compare 18 NMSA 1978, § 30-9-13(C) (2003, amended 2004) (providing that CSCM in the third 19 degree “consists of all criminal sexual contact of a minor” (emphasis added)), with 20 § 30-9-13(B) (providing that CSCM “in the second degree consists of all criminal 21 sexual contact of the unclothed parts of a minor” (emphasis added)).

37

1 exhibition of motion pictures to a minor, and remand for further proceedings in light 2 of this opinion. 3 {41} IT IS SO ORDERED.

4 _________________________________ 5 J. MILES HANISEE, Judge

6 WE CONCUR:

7 _________________________________ 8 MICHAEL E. VIGIL, Judge

9 _________________________________ 10 TIMOTHY L. GARCIA, Judge