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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. 32,742 5 MARIO ALBERTO PINELA-MARQUEZ, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Teddy L. Hartley, District Judge
9 Gary K. King, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender 13 Sergio J. Viscoli, Assistant Public Defender 14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION 17 WECHSLER, Judge.
1 {1} Defendant Mario Alberto Pinela-Marquez appeals his conviction for second- 2 degree criminal sexual penetration. In our notice of proposed summary disposition, 3 we proposed to affirm. Defendant has filed a memorandum in opposition, which this 4 Court has duly considered. As we do not find Defendant’s arguments persuasive, we 5 affirm. 6 The Nurse’s Qualification as an Expert 7 {2} Defendant contends that the district court erred in qualifying a nurse as an 8 expert in forensic sexual examinations. [DS 7] In our notice of proposed summary 9 disposition, we proposed to hold that the district court did not abuse its discretion. 10 {3} In Defendant’s memorandum in opposition, he asserts that the nurse was not 11 qualified because, at the time of the first trial, the nurse had not yet completed the two 12 years of experience that are required to become certified as a SANE nurse. [MIO 14] 13 Instead, she had only completed one year. [MIO 14] However, the first trial resulted 14 in a mistrial due to juror misconduct, and the nurse’s testimony in that case is not at 15 issue here. Defendant also contends that the nurse had been a Sexual Assault Nurse 16 Examiner (SANE) nurse for less than a year at the time that she examined the victim 17 and that this examination was only her fifth independent examination. [MIO 14] 18 Nevertheless, we find no abuse of discretion. The nurse had been a nurse for thirteen 19 years prior to receiving her SANE nurse training, she had completed that training, and
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1 she was one year into the two-year certification process. To the degree that she was 2 not as experienced in forensic sexual examinations as other nurses, that was a proper 3 subject for cross-examination, but did not preclude the district court’s decision to 4 certify her as an expert in such examinations. Her training and experience were 5 adequate, even if minimally, to qualify her. 6 Testimony that the Victim’s Injuries Were Inconsistent with Consensual Sex 7 {4} Defendant argues that the nurse’s testimony that the victim’s injuries were 8 inconsistent with consensual sex was speculative and uncorroborated. [DS 8] In our 9 notice of proposed summary disposition, we proposed to hold that this claim of error 10 was not preserved, and that, even if it was preserved, the district court did not abuse 11 its discretion in admitting this evidence. 12 {5} In Defendant’s memorandum in opposition, he asserts that he did preserve this 13 issue, and that even if he did not, the admission of this evidence was plain or 14 fundamental error. [MIO 15-19] We are not persuaded that the issue was preserved. 15 Defendant conducted a voir dire of the nurse based on his objection to her 16 qualifications because she had conducted only five independent forensic sexual 17 examinations at the time that she examined the victim. [MIO 9-10] The district court 18 ruled that the nurse could testify as an expert. When, on direct examination, the nurse 19 testified that the victim’s injuries were inconsistent with consensual sex, Defendant
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1 apparently did not object. [MIO 11] Accordingly, Defendant failed to bring to the 2 attention of the district court any claim of error with respect to the admission of this 3 testimony, and therefore failed to preserve his objection. See State v. Varela, 1999- 4 NMSC-045, ¶¶ 25-26, 128 N.M. 454, 993 P.2d 1280 (discussing the need to make a 5 specific objection in order to preserve a claim of error). His objection to the nurse’s 6 lack of qualifications did not alert the district court to the argument he makes here. 7 See State v. Lucero, 1986-NMCA-085, ¶ 11, 104 N.M. 587, 725 P.2d 266 (Ct. App. 8 1986) (declining to review an issue because the district court “had no opportunity to 9 consider the merits of, or to rule intelligently on, the argument defendant now puts 10 before us”). 11 {6} Neither are we persuaded that the admission of the nurse’s testimony 12 constituted plain or fundamental error under the circumstances of this case. This 13 Court has previously held that plain error is to be used sparingly. State v. Torres, 14 2005-NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877. We apply the rule only in 15 evidentiary matters and “only if we have grave doubts about the validity of the verdict, 16 due to an error that infects the fairness or integrity of the judicial proceeding.” Id. 17 (internal quotation marks and citation omitted). Similarly, we will only find 18 fundamental error in a limited class of cases. Our discretion to reverse based on 19 fundamental error is exercised only to correct injustices that shock the conscience of
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1 the court, a term that has been used “both to describe cases with defendants who are 2 indisputably innocent, and cases in which a mistake in the process makes a conviction 3 fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. 4 Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633. “Error that is 5 fundamental must go to the foundation of the case or take from the defendant a right 6 which was essential to his defense and which no court could or ought to permit him 7 to waive.” State v. Reed, 2005-NMSC-031, ¶ 52, 138 N.M. 365, 120 P.3d 447 8 (internal quotation marks and citation omitted). 9 {7} In State v. Alberico, 1993-NMSC-047, ¶¶ 83, 91, 116 N.M. 156, 861 P.2d 192, 10 our Supreme Court held that an expert may testify that a victim has injuries consistent 11 with sexual assault, but that the expert may not testify that injuries were actually 12 caused by sexual assault. Testimony that an injury is consistent with sexual assault, 13 unlike testimony about causation, does not constitute improper vouching for the 14 credibility of the victim. Id. To the degree the nurse’s testimony may have bordered 15 on stating that the injuries were in fact caused by sexual assault because they were 16 inconsistent with consensual sex, we conclude that, viewing her testimony as a whole, 17 there was no plain or fundamental error. On cross-examination, Defendant questioned 18 the nurse about her statement that the victim’s injuries were inconsistent with 19 consensual sex. [MIO 12] She testified that injuries like the victim’s are likely to
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1 occur when there is a lack of sexual excitement, which results in a lack of lubrication 2 and blood return to the area. [MIO 12] She testified that this lack of sexual 3 excitement and lubrication is more consistent with non-consensual sex. [MIO 12] 4 She also testified that the pelvis is more likely to be tilted during consensual sex, 5 which reduces the likelihood of injury. [MIO 12] She also stated that it was possible 6 that such injuries could be caused by consensual sex between people who were drunk 7 or newer to sexual activity, or if the woman was older and therefore had less 8 lubrication. [MIO 12] Overall, the nurse’s testimony indicated that the injuries were 9 consistent with non-consensual sex, but could also result from other causes. 10 Accordingly, we find no plain or fundamental error requiring reversal. 11 {8} Defendant also suggests that the nurse’s testimony was not based on a scientific 12 technique that is founded on well-recognized scientific principles and therefore did 13 not meet the Daubert standard articulated in Alberico. [MIO 17] This issue was not 14 raised in Defendant’s docketing statement, and he did not move to amend the 15 docketing statement to seek to add this issue. See Rule 12-208(F) NMRA (permitting 16 the amendment of the docketing statement based upon good cause shown); State v. 17 Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out 18 requirements for a successful motion to amend the docketing statement). To the 19 degree that we might construe the addition of this argument as a motion to amend the
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1 docketing statement, Defendant has failed to demonstrate that he meets the 2 requirements for granting a motion to amend, including the requirement that the issue 3 sought to be added on appeal was preserved in the district court. 4 {9} In addition, even if the issue were properly before us, Defendant does not 5 explain why he believes that the standards set forth in Daubert and Alberico apply to 6 the nurse’s testimony about the victim’s injuries. When an area of expertise is not 7 scientific, New Mexico does not employ the Daubert-Alberico standards. See State 8 v. Torrez, 2009-NMSC-029, ¶ 21, 146 N.M. 331, 210 P.3d 228; State v. Aleman, 9 2008-NMCA-137, ¶ 6, 145 N.M. 79, 194 P.3d 110. Defendant has not explained why 10 the nurse’s testimony about her observations of the victim’s injuries and her training 11 about what kinds of injuries are consistent with non-consensual sex, are scientific 12 information that should be subject to the kind of peer review, testing, and evaluation 13 for rates of error that are required by Daubert and Alberico. Therefore, even if this 14 argument were properly before us, we would conclude that because Defendant has not 15 properly developed this argument, he has failed to demonstrate error on this basis. See 16 State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (explaining 17 that this Court does not review unclear or undeveloped arguments). 18 {10} Accordingly, for the reasons stated in this opinion and in our notice of proposed 19 summary disposition, we affirm.
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1 {11} IT IS SO ORDERED.
2 ________________________________ 3 JAMES J. WECHSLER, Judge
4 WE CONCUR:
5 ________________________________ 6 MICHAEL D. BUSTAMANTE, Judge
7 ________________________________ 8 CYNTHIA A. FRY, Judge