State v. Ochoa

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. A-1-CA-31243 5 JOHN ERIC OCHOA, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Mike Murphy, District Judge

9 Hector H. Balderas, Attorney General 10 Sri Mullis, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge.

1 {1} This case comes to us on Defendant’s motion to recall mandate and to address 2 the five remaining issues in his appeal in light of the Supreme Court’s opinion in State 3 v. Ochoa, 2017-NMSC-031, 406 P.3d 505, which reversed this Court’s 2014 decision 4 reversing Defendant’s convictions for violation of his constitutional right to a speedy 5 trial. See State v. Ochoa, 2014-NMCA-065, 327 P.3d 1102. 6 {2} Defendant was convicted of one count of interference with communications, 7 contrary to NMSA 1978, Section 30-12-1 (1979) and two counts of criminal sexual 8 contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13 (2003), 9 stemming from allegations that Defendant engaged in sexual abuse of his daughter, 10 EO. For the following reasons, we affirm. 11 {3} Defendant raises the following issues: (1) that the district court denied 12 Defendant his constitutional right to present a defense when it prohibited him from 13 presenting expert testimony and permitted the State to put on its own expert; (2) that 14 the district court erred in denying Defendant’s motion for a severance; (3) that the 15 State failed to disclose EO’s recantation; (4) that the district court erred in refusing to 16 instruct the jury on unlawfulness as an element of CSCM; and (5) that as a result of 17 the State’s failure to instruct the jury on the issue of unlawfulness, the State failed to 18 present sufficient evidence to support Defendant’s convictions for CSCM. Because 19 this is a memorandum opinion and the parties are familiar with the facts and

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1 procedural posture of the case, we set forth only such facts and law as are necessary 2 to decide the merits.

3 BACKGROUND 4 {4} Defendant was charged in an indictment with sixteen felony and misdemeanor 5 counts relating to alleged acts of sexual abuse of four of his children—JD, KO, IO, 6 and EO—in April and May 2008. The State filed a nolle prosequi on three counts 7 prior to trial: two counts of CSCM of IO and one count of attempted criminal sexual 8 penetration of EO. After a trial on the remaining thirteen counts, the jury found 9 Defendant guilty of two counts of CSCM of EO and one count of interference with 10 communications. The jury either acquitted or hung on the remaining ten counts. 11 Defendant appeals. 12 {5} Because this is a memorandum opinion, additional factual and procedural 13 background is provided in our analysis as required. 14 DISCUSSION

15 I. The District Court Did Not Deny Defendant His Constitutional Right to 16 Present a Defense

17 {6} Defendant contends that “[i]n excluding Dr. [Alexander J.] Paret’s, [Ph.D.] 18 testimony concerning the safehouse interviews, including the leading questions used 19 and the resulting suggestibility-evidence supporting the theory of defense, the

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1 [district] court abused its discretion and denied [Defendant] his fundamental right to 2 due process and a fair trial.” In addition, Defendant argues that the error in excluding 3 Dr. Paret’s testimony was “further compounded when it erroneously allowed 4 Detective Irma Palos of the Las Cruces, New Mexico Police Department, to offer her 5 unqualified opinion that in her training and experience it is not unusual for children 6 to fail” to make full disclosures. Finally, Defendant argues that even assuming the 7 district court correctly excluded Dr. Paret from testifying, it should have allowed 8 Defendant additional time to find a new expert. 9 A. The District Court Did Not Abuse Its Discretion 10 {7} Rule 11-702 NMRA provides that “[a] witness who is qualified as an expert by 11 knowledge, skill, experience, training, or education may testify in the form of an 12 opinion or otherwise if the expert’s scientific, technical, or other specialized 13 knowledge will help the trier of fact to understand the evidence or to determine a fact 14 in issue.” Three requirements must be satisfied for expert testimony to be admissible 15 under Rule 11-702: (1) that the expert be qualified; (2) that the testimony be of 16 assistance to the trier of fact; and (3) that the expert’s testimony be about scientific, 17 technical, or other specialized knowledge with a reliable basis. See State v. Alberico, 18 1993-NMSC-047, ¶¶ 43-45, 116 N.M. 156, 861 P.2d 192. “The admission of expert 19 testimony lies in the discretion of the trial court.” Loper v. JMAR, 2013-NMCA-098,

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1 ¶ 18, 311 P.3d 1184. “An abuse of discretion arises when the evidentiary ruling is 2 clearly contrary to logic and the facts and circumstances of the case.” State v. Downey, 3 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 4 {8} “Under Rule 11-702, a witness must qualify as an expert in the field for which 5 his or her testimony is offered before such testimony is admissible.” Id. ¶ 26 (internal 6 quotation marks and citation omitted). “In order to testify, it must appear that an 7 expert witness has acquired sufficient knowledge, skill, training, or experience that 8 such testimony will aid the fact[-]finder, but no set criteria can be laid down to test 9 such qualifications.” Id. (internal quotation marks and citation omitted). “The use of 10 the disjunctive ‘or’ in Rule 11-702 permits a witness to be qualified under a wide 11 variety of bases, knowledge, skill, experience, training, or education, and underscores 12 that broad discretion intentionally is given to the [district] court to determine whether 13 expert testimony will assist the trier of fact.” Id. (internal quotation marks and citation 14 omitted). 15 {9} Here, Dr. Paret testified that he was trained in how to apply research in forensic 16 psychology. Dr. Paret employed this training in his work at Clinical Forensic 17 Neuropsychological Associates of New Mexico (CFNANM) as a specialist in 18 providing expert testimony and evaluations concerning competency to stand trial, 19 amenability to treatment, as well as assessing for dangerousness in children and

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1 adults. Dr. Paret also testified that he worked for four-and-a-half years at the Intensive 2 Crisis Counseling Program (ICCP) in Orlando, Florida, which was designed to help 3 children who had allegedly been sexually abused, where he received six months of 4 intensive training in performing interviews with children who had allegedly been 5 sexually abused using the “cognitive interviewing technique[.]” While working at 6 ICCP, Dr. Paret conducted over four hundred cognitive interviews of children who 7 allegedly suffered sexual abuse. However, Dr. Paret conceded that during his time at 8 CFNANM, he had never performed a safehouse interview, had never testified as an 9 expert witness in safehouse interview techniques in any state, and had never 10 previously engaged in a record review of safehouse interviews prior to Defendant’s 11 case. Dr. Paret also conceded that he had never received training, researched, or 12 published scholarship in the area of safehouse interviewing techniques, and that 13 neither his master’s thesis nor his Ph.D. dissertation concerned cognitive or safehouse 14 interviewing techniques. 15 {10} The district court ruled that while qualified to render opinions on the matters 16 of competency, dangerousness, and amenability to therapy, Defendant failed to 17 establish that Dr. Paret was qualified to render opinions on safehouse interview 18 techniques, with which he was unfamiliar, never studied, and had not employed. 19 Further, the district court also found, because Dr. Paret had not conducted a

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1 safehouse-type interview since 2002, it was not a subject of his expertise to critique 2 the particular safehouse interviews conducted in Defendant’s case. Under these facts, 3 the district court’s determination that Dr. Paret was not qualified to testify as an expert 4 in safehouse interview techniques was not clearly contrary to logic and the facts and 5 circumstances of the case. We therefore conclude that the district court did not abuse 6 its discretion excluding the testimony of Dr. Paret from trial. 7 {11} We also conclude that the district court did not abuse its discretion in permitting 8 Detective Palos to render the lay opinion that based on her training and experience, 9 it is not unusual for children to fail to make full disclosures. Opinion testimony by a 10 lay witness is “rationally based on the witness’s perception” and is “not based on 11 scientific, technical, or other specialized knowledge.” Rule 11-701(A), (C) NMRA. 12 To lay a foundation for her opinion, the State elicited testimony from Detective Palos. 13 Detective Palos testified that she had received training as a forensic interviewer for 14 physically and sexually abused children using the CornerHouse safehouse interview 15 method and personally conducted the safehouse interview of JD. Detective Palos 16 testified that she “had also received other training. I don’t know right off the top of my 17 head, but I attend any training that I possibly can regarding . . . sexual or physical 18 abuse.” Defendant argues that Detective Palos’s statement cannot constitute expert 19 testimony under Rule 11-702. The State argues that the Detective’s testimony was

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1 admitted as lay witness opinion testimony, not expert testimony. It appears from the 2 record that the district court accepted Detective Palos’s opinion testimony as a lay 3 witness. Defendant has provided us with no authority to demonstrate that the district 4 court erred when it considered Detective Palos’s statement as lay opinion testimony 5 in light of her particular experience as a police officer and forensic interviewer. 6 {12} Under these facts, Detective Palos’ opinion that “[n]o, it is not unusual for a 7 child to not disclose fully what happened or what they experienced” during an 8 interview was not inadmissible for lack of foundation. Accordingly, we conclude that 9 the district court did not abuse its discretion in admitting the opinion testimony of 10 Detective Palos.

11 B. The District Court Did Not Abuse Its Discretion in Denying Defendant’s 12 Request for Extra Time to Find a New Expert Witness

13 {13} “The trial court has broad discretion in granting or denying a motion for a 14 continuance, and absent a demonstrated abuse resulting in prejudice to the defendant, 15 there is no basis for reversal.” State v. Salazar, 2006-NMCA-066, ¶ 21, 139 N.M. 603, 16 136 P.3d 1013 (internal quotation marks and citation omitted). “An abuse of discretion 17 is a ruling that is clearly against the logic and effect of the facts and circumstances of 18 the case.” State v. Gonzales, ___-NMCA-___, ¶ 32, 406 P.3d 534, (internal quotation 19 marks and citation omitted), cert. denied, 2017-NMCERT-___ (No. S-1-SC-36577,

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1 Aug. 15, 2017). “[T]he burden of establishing an abuse of discretion rests with the 2 defendant.” State v. Sanchez, 1995-NMSC-053, ¶ 17, 120 N.M. 247, 901 P.2d 178. 3 {14} In reviewing the denial of a request for a continuance, appellate courts consider 4 the following factors: “(1) the length of the requested delay; (2) the likelihood that a 5 delay would accomplish the movant’s objectives; (3) the existence of previous 6 continuances in the same matter; (4) the degree of inconvenience to the parties and the 7 court; (5) the legitimacy of the motives in requesting the delay; (6) the fault of the 8 movant causing a need for the delay; and (7) the prejudice to the movant in denying 9 the motion.” Gonzales, ___-NMCA-___, ¶ 33. 10 {15} Considering these factors in light of the facts of this case, we conclude that the 11 district court did not abuse its discretion in denying Defendant’s request for additional 12 time to find a new expert witness. First, Defendant did not specify how much time he 13 needed to find a new expert. However, at the March 8, 2010 trial setting, when the 14 State first raised the issue of Dr. Paret’s qualifications, defense counsel stated that 15 “[w]hen we left the trial in October, I spoke with the State regarding Dr. Paret, and it 16 was my understanding that they were not going to challenge him as an expert. If I had 17 thought they were going to do that, I would have brought in Dr. Maxann Schwartz, 18 [Ph.D.], Dr. Paret’s co-worker on this.” Dr. Schwartz had been listed on Defendant’s 19 witness list since December 1, 2008. From these facts, we glean that if Defendant

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1 would have brought in Dr. Schwartz to replace Dr. Paret, the delay resulting from a 2 continuance to retain and prepare Dr. Schwartz for trial would likely have been 3 minimal, since she was apparently aware of and familiar with the case. As a result, this 4 factor weighs in favor of granting Defendant’s request for additional time. 5 {16} Second, the objective of Defendant’s request for additional time was to find a 6 new expert witness to testify on the issue of safehouse interviewing technique who 7 would satisfy the district court’s required qualifications. However, there is no 8 indication that the district court would find the new expert qualified to testify. As a 9 result, this factor weighs against granting Defendant’s request. 10 {17} Third, and as alluded to by the district court, multiple continuances (requested 11 by Defendant and the State) and rescheduling of the trial setting had been permitted, 12 resulting in significant delay in bringing Defendant’s case to trial. As a result, this 13 factor weighs against granting Defendant’s request for additional time. 14 {18} Fourth, in denying Defendant’s request for additional time, the district court 15 reasoned that Defendant had filed four motions to dismiss on speedy trial grounds, 16 Defendant had been “in jail a long time[,]” and that trial had been postponed multiple 17 times based on “unusual” circumstances. These facts support a conclusion that the 18 degree of inconvenience to both the parties and court as a result of granting

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1 Defendant’s request would have been high under the circumstances. As a result this 2 factor weighs against granting Defendant’s request for additional time. 3 {19} Defendant represented to the district court at the March 8, 2009 trial setting, 4 that it was his original belief that the State was not going to challenge the 5 qualifications of Dr. Paret. This created a legitimate reason to request additional time. 6 As a result, the fifth and sixth factors weigh in favor of granting Defendant’s request 7 for additional time. 8 {20} Finally, with regard to prejudice, Defendant argues that it was “incumbent” on 9 the district court to allow a continuance under the circumstances, citing March v. 10 State, 1987-NMSC-020, 105 N.M. 453, 734 P.2d 231, and arguing that although the 11 “denial of a motion for a continuance rests in the sound discretion of the court, . . . a 12 defendant has a fundamental, constitutional right to due process of the law” to 13 establish his defense. This argument is unpersuasive. In its May 5, 2010 ruling, in 14 which the district court found Dr. Paret unqualified to testify as an expert at trial, the 15 district court did not preclude an otherwise qualified expert from testifying on proper 16 safehouse interviewing techniques. Rather, the district court’s ruling left Defendant 17 free to retain a new expert prior to the commencement of trial on May 17, 2010. 18 Moreover, we reemphasize that at the March 8, 2010 trial setting, Defendant stated 19 that it would have been possible to substitute Dr. Schwartz for Dr. Paret, who had

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1 been listed on Defendant’s witness list since December 1, 2008, and was “Dr. Paret’s 2 co-worker on this.” Under these facts, we find the prejudice to Defendant as a result 3 of the denial of his request for additional time was low. As a result, this factor weighs 4 against granting Defendant’s request for additional time. 5 {21} We conclude that the district court’s denial of Defendant’s request was not 6 against the logic and effect of the facts and circumstances of the case, and therefore 7 did not result in an abuse of discretion. 8 II. The District Court Did Not Err in Denying Defendant’s Motion to Sever 9 {22} Defendant claims that the district court erred in denying his motion to sever 10 counts that involved the different victims, times, and circumstances under Rule 5- 11 203(C) NMRA (“If it appears that a defendant or the state is prejudiced by a joinder 12 of offenses or of defendants by the filing of a statement of joinder for trial, the court 13 may order separate trials of offenses, grant a severance of defendants, or provide 14 whatever other relief justice requires.”). Because of the district court’s ruling, the four 15 Ochoa children testified at Defendant’s trial. As a result, Defendant contends that 16 without severance of the counts,“the jury would believe [that] if he did one act, he 17 must [have been] guilty of the other acts” resulting in extreme prejudice. 18 {23} Additionally, Defendant contends, even assuming evidence of the offenses 19 involving the different victims in the case was admissible in separate trials under Rule

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1 11-404(B)(2) NMRA (providing that evidence of crimes, wrongs, or other bad acts of 2 a party “may be admissible [to prove] motive, opportunity, intent, preparation, plan, 3 knowledge, identity, absence of mistake, or lack of accident”), the probative value of 4 the evidence was substantially outweighed by the danger of prejudice under Rule 11- 5 403 NMRA (stating that “[t]he court may exclude relevant evidence if its probative 6 value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 7 issues, misleading the jury, undue delay, wasting time, or needlessly presenting 8 cumulative evidence”). This, Defendant argues, is because “[c]ases involving alleged 9 child sexual abuse inherently appeal to the passions of the jury.” 10 {24} New Mexico appellate courts “review a [district] court’s denial of a severance 11 motion for an abuse of discretion.” State v. Lovett, 2012-NMSC-036, ¶ 10, 286 P.3d 12 265. “One test for abuse of discretion in a failure to sever case is whether prejudicial 13 testimony, inadmissible in a separate trial, is admitted in a joint trial.” Id. ¶ 11 14 (alterations, internal quotation marks, and citation omitted). We assume, without 15 deciding, that the testimony of the children would not be cross-admissible in separate 16 trials limited to offenses for each child, and that the district court therefore abused its 17 discretion in denying Defendant’s motion for severance. But “[e]ven when the trial 18 court abuses its discretion in failing to sever charges, appellate courts will not reverse 19 unless the error actually prejudiced the defendant.” State v. Gallegos, 2007-NMSC-

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1 007, ¶ 18, 141 N.M. 185, 152 P.3d 828; see State v. Garcia, 2011-NMSC-003, ¶ 16, 2 149 N.M. 185, 246 P.3d 1057 (“The decision to grant a severance motion lies within 3 the [district court] judge’s discretion and will not be overturned on appeal unless the 4 joinder of offenses results in actual prejudice against the moving party.”). The moving 5 party “bears the burden of establishing that he [or she] was actually prejudiced by a 6 failure to sever.” Id. 7 {25} We therefore proceed to address whether Defendant was actually prejudiced as 8 a result of the failure to sever; or, in other words, whether denial of his motion to 9 sever constituted a harmless error. See Gallegos, 2007-NMSC-007, ¶¶ 37-38. 10 {26} In the context of an error in denying a motion to sever, the error is harmless 11 “when there is no reasonable probability the error affected the verdict.” State v. 12 Tollardo, 2012-NMSC-008, ¶¶ 36, 275 P.3d 110. The central inquiry of “whether an 13 error was likely to have affected the jury’s verdict” is required in a harmless error 14 review on a case-by-case analysis. See id. ¶¶ 42, 44. The courts are guided by the 15 following non-exhaustive list of factors:

16 Factors weighing in favor of prejudice include: (1) the prosecution 17 intertwining the offenses in opening statement, during its case-in-chief, 18 or in closing argument; (2) the defendant being found guilty on all 19 counts; (3) factual similarities linking the offenses; (4) offenses that are 20 inflammatory in nature; (5) unusually long and complex trials; and (6) 21 a conviction on a charge where the evidence is thin. On the other hand, 22 factors tending to show that a defendant was not prejudiced by going to 23 trial on the joined offenses include: (1) dissimilar offenses such that a

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1 jury would not confuse them; (2) the defendant being acquitted of some 2 charges; and (3) proper jury instructions that adequately make clear to 3 the jury that it must not consider evidence inadmissible to a particular 4 count when coming to a verdict on that count.

5 Lovett, 2012-NMSC-036, ¶ 56 (alteration, internal quotation marks, and citation 6 omitted). However, we only consider those factors that are relevant to a given case. 7 See id. ¶ 57. 8 {27} Considering the relevant factors, we conclude that Defendant was not actually 9 prejudiced by the district court’s denial of his motion to sever. There was some 10 intertwining by the State of the offenses involving the different Ochoa children in its 11 opening statement and closing argument. We also acknowledge that crimes involving 12 illegal sex acts against children are inherently inflammatory. See Gallegos, 2007- 13 NMSC-007, ¶ 43; State v. Montoya, 1993-NMCA-083, ¶ 17, 116 N.M. 72, 860 P.2d 14 202 (“Evidence that a defendant committed a prior illegal sex act against a child is 15 extremely prejudicial.”). However, these factors supporting actual prejudice are 16 negated by the factors weighing against actual prejudice. 17 {28} Specifically, the jury was instructed to “consider[] separately” each crime 18 charged in the indictment. This instruction made it clear to the jury not to consider 19 evidence of a particular count when coming to a verdict on other counts. This is 20 evident by the fact that of the thirteen counts that went to the jury, Defendant was 21 found guilty of only two counts of CSCM involving only one of the alleged victims,

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1 EO, as well as guilty of the single count of interference with communications. See 2 State v. Duffy, 1998-NMSC-014, ¶¶ 44-45, 126 N.M. 132, 967 P.2d 807 (holding that 3 even if the district court’s failure to sever drug paraphernalia and felony-murder 4 charges was an abuse of discretion, the defendant failed to establish that he was 5 actually prejudiced by the failure to sever where he was acquitted by the jury of the 6 paraphernalia charge), overruled on other grounds by Tollardo, 2012-NMSC- 7 008, ¶ 37; State v. Sero, 1970-NMCA-102, ¶¶ 7-8, 82 N.M. 17, 474 P.2d 503 (holding 8 that where jury acquitted the defendant of two of three counts of receiving stolen 9 property, the district court’s refusal to sever the three counts did not actually prejudice 10 the defendant). 11 {29} Accordingly, although we assume that the district court abused its discretion in 12 denying Defendant’s motion to sever, we conclude that Defendant was not actually 13 prejudiced by this presumed error, and it was therefore harmless.

14 III. The Argument That the State Failed to Disclose EO’s Claimed Recantation 15 Was Not Preserved

16 {30} Defendant claims that the State engaged in a violation of its obligations under 17 Brady v. Maryland, 373 U.S. 83 (1963) when it failed to turn over statements made 18 by EO in which her allegations against her father changed. Defendant contends that 19 because of the State’s failure to provide him with these statements, which he

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1 characterizes as a “recantation[,]” he was deprived of the ability to cross-examine and 2 impeach EO about the statements, warranting a new trial. 3 {31} Defendant’s claim arises from an exchange between EO and the prosecutor 4 during direct examination, during which the prosecutor asked EO whether her 5 grandma Ochoa buys her things. Defendant objected to the State’s question on 6 grounds of relevance. The district court sustained the objection, and the State asked 7 for a bench conference. At the bench conference, the prosecutor argued that she 8 believed that EO started “backing down” on her story when her grandma Ochoa came 9 back into her life, and that EO’s answer to the question of whether her grandma Ochoa 10 buys her things would “show the jury how she’s hesitant about some of the things 11 she’s discussing.” The district court then permitted the prosecutor to ask the question, 12 to which EO answered “[y]es.” 13 {32} The State responds that Defendant failed to preserve his claim of a Brady 14 violation by failing to specifically bring the issue to the attention of the district court. 15 We agree. See Rule 12-321 NMRA (“To preserve an issue for review, it must appear 16 that a ruling or decision by the trial court was fairly invoked.”); Trace v. Univ. of N.M. 17 Hosp., 2015-NMCA-083, ¶ 11, 355 P.3d 103 (“The principal purpose of this rule is 18 to alert the trial judge to the claimed error, giving the trial court an opportunity to 19 correct the matter.”). Here, Defendant objected to the State’s question to EO regarding

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1 whether her grandma Ochoa buys her things on grounds of relevance, but failed to 2 bring to the district court’s attention his contention of a Brady violation. Because 3 Defendant failed to preserve his claim of a Brady violation, we decline to address the 4 issue further. See State v. Plouse, 2003-NMCA-048, ¶ 56, 133 N.M. 495, 64 P.3d 522 5 (holding that the defendant failed to preserve a Brady violation where he “failed to 6 specifically raise the Brady issue or to invoke [the district court’s] ruling on the 7 issue”), abrogated on other grounds by State v. Garza, 2009-NMSC-038, ¶¶ 47-48, 8 146 N.M. 499, 212 P.3d 387.

9 IV. The District Court’s Failure to Include the Element of Unlawfulness in the 10 Jury Instructions for Defendant’s Counts of CSCM Did Not Give Rise to 11 Reversible Error

12 {33} Defendant claims that the district court committed reversible error when it 13 refused to instruct the jury on unlawfulness as it related to his charges of CSCM. 14 Defendant argues that his testimony, “while appearing to deny any touching [of EO] 15 at all, when read in its entirety and in context clearly supports the view that he only 16 denied touching” her in a sexual manner, but did not deny touching her in a non- 17 sexual way. Because Defendant requested and was refused CSCM instructions 18 including the element of unlawfulness, Defendant’s claim was preserved and we 19 review for reversible error. See State v. Percival, 2017-NMCA-042, ¶ 8, 394 P.3d 979 20 (stating an alleged error is “preserved by the tender but refusal of an instruction” and

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1 “[i]f the alleged error has been preserved, we review for reversible error” (alterations, 2 internal quotation marks, and citation omitted)). 3 {34} We review a trial court’s rejection of requested jury instructions de novo. See 4 id. ¶ 8. “A jury instruction which does not instruct the jury upon all questions of law 5 essential for a conviction of any crime submitted to the jury is reversible error.” Id. 6 In State v. Osborne, the Supreme Court held “that unlawfulness is an essential element 7 of the offense of CSCM as defined by our [L]egislature.” 1991-NMSC-032, ¶ 16, 111 8 N.M. 654, 808 P.2d 624; see Section 30-9-13(A) (providing that “[c]riminal sexual 9 contact of a minor is the unlawful and intentional touching of or applying force to the 10 intimate parts of a minor or the unlawful and intentional causing of a minor to touch 11 one’s intimate parts” (emphasis added)). The Court revisited its holding in Osborne 12 in State v. Orosco, stating that the trial court does not err in failing to instruct the jury 13 on the element of unlawfulness in CSCM where the lawfulness of the defendant’s 14 actions is not in issue. See 1992- NMSC-006, ¶¶ 10-11, 18-20, 113 N.M. 780, 833 15 P.2d 1146. 16 {35} “To determine whether unlawfulness is ‘in issue,’ we consider whether there 17 was any evidence or suggestion in the facts, however slight, that could have put the 18 element of unlawfulness in issue.” State v. Luna, 2018-NMCA-025, ¶ 30, ___ P.3d 19 ___, (internal quotation marks and citation omitted), cert. denied, ___-NMCERT-___,

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1 (No. S-1-SC-36896, Mar. 16, 2018); See Orosco, 1992-NMSC-006, ¶ 10, (same). In 2 making this determination:

3 [w]e do not look to the defendant’s assertions alone [because] we 4 recognize that even if a defendant believed that he or she had performed 5 an innocent or lawful touching, the defendant might prefer, as a matter 6 of trial strategy or for some other reason, to deny that the incident 7 occurred rather than attempt to establish that the touching, though it may 8 have occurred, was lawful.

9 Orosco, 1992-NMSC-006, ¶ 10. 10 {36} In Osborne, the child claimed that the defendant “patted or rubbed her buttocks 11 on one occasion” while she was hugging the defendant goodnight and wearing 12 underwear and a long t-shirt. 1991-NMSC-032, ¶ 6. The “[d]efendant did not recall 13 ever touching [the child’s] bottom and said that while it was possible he might have 14 touched her bottom at some point, it would not have been in an inappropriate manner 15 or with an inappropriate intent.” Id. ¶ 7. The Court determined that the issue of 16 lawfulness was raised by this evidence, and that it therefore had no way of knowing, 17 “because of an erroneous instruction, . . . whether the conviction was or was not on 18 the basis that the touching was done ‘unlawfully.’ ” Id. ¶ 41 (internal quotation marks 19 and citation omitted). In other words, the “instructions failed to require the jury to 20 resolve the issue, raised in the evidence at trial, of whether [the] defendant’s touching 21 was done innocently as a mere affectionate pat or rub of [the child’s] bottom, or 22 whether it was done in a sexual or other improper manner.” Id. Accordingly, the Court

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1 held that the district court’s failure to instruct the jury on the element of unlawfulness 2 constituted fundamental error. See id. ¶¶ 41, 43. 3 {37} In contrast, in Orosco (two consolidated appeals), the Court determined that the 4 district court’s failure to instruct the jury on the element of unlawfulness in CSCM did 5 not give rise to fundamental error, where none of the facts put the element of 6 lawfulness at issue. See 1992-NMSC-006, ¶¶ 18-19. The first defendant “was alleged 7 to have fondled the child’s intimate parts in the restroom of a bar.” Id. ¶ 11. The 8 second defendant was alleged to have “fondled” a child “for three hours in defendant’s 9 truck.” Id. Both defendants denied that any touching took place. Under the facts of 10 these cases, the Court reasoned, the evidence of unlawfulness upon which the jury 11 relied was undisputed and the jury was able to “effectively determine[] the existence 12 of the omitted element.” Id. ¶ 19. Accordingly, the Court held that “in neither case did 13 the [district] court improperly remove the issue of unlawfulness from the jury.” Id. ¶ 14 18; see also Luna, 2018-NMCA-025, ¶ 31 (holding that where the child testified the 15 defendant exposed his own penis to the child, then touched the child’s clothed penis 16 with the defendant’s hand and mouth, the evidence did not put the lawfulness of the 17 defendant’s alleged touchings in issue; and the district court’s failure to give the jury 18 a CSCM instruction including the element of unlawfulness did not give rise to 19 fundamental error).

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1 {38} In State v. Landers, a case we described as a “middle ground” between Osborne 2 and Orosco, the child testified that between the ages of eleven and thirteen years old, 3 the “defendant came to her room to wake her for school, he would lift her nightgown 4 and put his hand down her panties.” 1992-NMCA-131, ¶¶ 2, 6, 115 N.M. 514, 853 5 P.2d 1270, overruled on other grounds by State v. Kerby, 2005-NMCA-106, ¶¶ 28-29, 6 138 N.M. 232, 118 P.3d 740. This occurred almost daily for two years. Landers, 7 1992-NMCA-131, ¶ 2. The child also stated that on one occasion, “when she was in 8 the bathroom, [the] defendant forced her to her hands and knees and rubbed his penis 9 against her vaginal area.” Id. The defendant “denied that he sexually touched the 10 [child] while waking her up and denied the occurrences of the incident in the 11 bathroom.” Id. ¶ 3. The defendant also stated that “if he ever touched” the child, “it 12 was always in a fatherly way.” Id. ¶ 6. Under these facts, we reasoned that:

13 although [the] defendant contended that all touching of the [child] was 14 colorably lawful, there was no evidence from which the jury could infer 15 that the particular touchings that the [S]tate sought to prove were lawful. 16 The only way to view [the] defendant’s evidence is that he did not touch 17 the [child] whatsoever in the manner the [S]tate alleged and that all of 18 his other touchings were lawful. Because [the] defendant did not allege 19 that the particular touchings forming the basis for the charges of CSCM 20 were lawful, we conclude that the issue of the lawfulness of those 21 touchings was not at issue.

22 Id. ¶ 7. Accordingly, we held that the district court’s failure to give the lawfulness 23 instruction was not fundamental error. Id.

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1 {39} Considering the testimony of EO and Defendant, we conclude that the 2 lawfulness of Defendant’s actions toward EO was not in issue. EO testified that during 3 a hug between she, IO, and Defendant that Defendant put his hands in her pants and 4 underwear and squeezed the skin of her “bottom[,]”—i.e., her buttocks, and did this 5 to her on “two or three” other separate occasions.When questioned about the specific 6 touchings alleged by his children, including EO, Defendant stated that he “didn’t do 7 any kind of sexual anything with any of [his] children” and that he “never touched any 8 of [his] children in an improper way or [in] any sexual manner. It’s such a disgusting 9 thing.” Defendant testified further that “[t]he truth of the situation was there was no 10 sexual or anything at all with regards to myself and the children,” that he “never 11 touched any of [his] children in a sick or perverted way[,]” and that he had “never” 12 engaged in “criminal sexual type of contact” with his children. 13 {40} The facts of this case are similar to the facts of Osborne, where the defendant 14 was alleged to have patted or rubbed the child’s buttocks while giving her a hug and 15 claimed that while he may have touched her buttocks at some point, it would not have 16 been in an inappropriate manner or with an inappropriate intent. See 1991-NMSC-032, 17 ¶¶ 6-7. Under these facts, in Osborne, our Supreme Court held that the district court 18 erred fundamentally in failing to instruct the jury on the element of unlawfulness in 19 the offense of CSCM. Id. ¶¶ 41, 43. Further, every parent touches their child, and a

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1 statement by a parent that she or he has never touched their child in an inappropriate 2 manner is still, in effect, a statement that the parent has touched their child. This is 3 why Orosco teaches that we do not look to the defendant’s assertions alone in 4 determining whether the lawfulness of a defendant’s touchings were at issue, since 5 “even if a defendant believed that he or she had performed an innocent or lawful 6 touching, the defendant might prefer, as a matter of trial strategy or for some other 7 reason, to deny that the incident occurred rather than attempt to establish that the 8 touching, though it may have occurred, was lawful.” Orosco, 1992-NMSC-006, ¶ 10. 9 {41} We cannot ignore this Court’s pronouncement in Landers that it is insufficient 10 to raise the issue of the lawfulness of a defendant’s alleged inappropriate touchings, 11 in the context of CSCM, by denying the specific acts underlying the State’s charges, 12 but testifying that any other touching that may have occurred was for a lawful 13 purpose. See 1992-NMCA-131, ¶¶ 6-7. As referenced above, Defendant’s testimony 14 denied the specific actions forming the basis of the State’s CSCM charges against him 15 involving EO, but also affirmatively stated that he had never touched his children, 16 including EO, in an unlawful manner. As a result, following Landers, where the 17 defendant denied touching the child in the inappropriate manner alleged by the State, 18 but admitted that any touching of the child that occurred was in a fatherly way, we 19 also conclude here that there was no evidence presented at trial from which the jury

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1 could infer that the particular touchings alleged by the State against Defendant 2 involving EO were lawful. Accordingly, we conclude that Defendant was not entitled 3 to an instruction on the offense of CSCM including the element of unlawfulness as to 4 the State’s charges relating to EO.

5 V. Sufficient Evidence Supported Defendant’s Convictions for Two Counts 6 of CSCM Against EO

7 {42} Defendant finally argues that his convictions for CSCM against EO were 8 unsupported by sufficient evidence. Defendant contends that unlawfulness is an 9 essential element of CSCM, and that because the jury was not instructed on the 10 element of unlawfulness, the State completely failed to prove an essential element of 11 the offense. However, unlawfulness is only an essential element of CSCM when the 12 unlawfulness of a defendant’s actions is at issue. See UJI 14-925 NMRA, Use Note 4 13 (stating an instruction including the element that “[t]he defendant’s act was unlawful” 14 essential element of CSCM “if the evidence raises a genuine issue of the unlawfulness 15 of the defendant’s actions”); Orosco, 1992-NMSC-006, ¶¶ 10-11. However, we have 16 concluded above that the evidence presented at trial did not put in issue the lawfulness 17 of Defendant’s touchings of EO. 18 {43} In jury trials, the jury instructions are the law of the case against which the 19 sufficiency of the evidence is to be measured. See State v. Duttle, 2017-NMCA-001, 20 ¶ 18, 387 P.3d 885. Here, the jury was instructed that in order to find Defendant guilty

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1 of CSCM of a child under the age of thirteen against EO, as alleged in counts 10 and 2 11 of the indictment, the State was required to prove beyond a reasonable doubt that 3 two instances occurred in which:

4 1. [D]efendant touched or applied force to the unclothed buttocks 5 of [EO];

6 2. [EO] was 12 years of age or younger;

7 3. This happened in New Mexico on or between the 14th day of April, 8 2008, and the 12th day of May, 2008.

9 As referenced above, EO testified that on two or three separate occasions, Defendant 10 put his hands in her pants and underwear and squeezed the skin of her “bottom,” and 11 the evidence was that EO was under the age of twelve at the time. Viewing this 12 evidence in the light most favorable to the guilty verdicts, and indulging all reasonable 13 inferences and resolving all conflicts in the evidence in favor of the verdicts, we 14 conclude that substantial evidence supported Defendant’s convictions for two counts 15 of CSCM against EO beyond a reasonable doubt. See State v. Carrillo, 2017-NMSC- 16 023, ¶ 42, 399 P.3d 367 (stating that in reviewing a challenge to the sufficiency of 17 evidence supporting a conviction, appellate courts “view the evidence in the light most 18 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 19 conflicts in the evidence in favor of the verdict” (internal quotation marks and citation 20 omitted)); State v. Suazo, 2017-NMSC-011, ¶ 32, 390 P.3d 674 (stating that the 21 central consideration in sufficiency of evidence review is whether substantial

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1 evidence, direct or circumstantial, exists to support a verdict beyond a reasonable 2 doubt as to all essential elements of the crimes for which the defendant was 3 convicted). 4 CONCLUSION 5 {44} For the foregoing reasons we affirm Defendant’s convictions for CSCM and 6 interference with communications. 7 {45} IT IS SO ORDERED.

8 ________________________________ 9 MICHAEL E. VIGIL, Judge

10 WE CONCUR:

11 ____________________________ 12 M. MONICA ZAMORA, Judge

13 ____________________________ 14 DANIEL J. GALLEGOS, Judge