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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. 32,856
5 SHAILA RIVERA,
6 Defendant-Appellant,
7 and
8 STATE OF NEW MEXICO,
9 Plaintiff-Appellee,
10 v. No. 32,875
11 EDWIN SANCHEZ,
12 Defendant-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 14 Sheri A. Raphaelson, District Judge
15 Hector H. Balderas, Attorney General 16 Santa Fe, NM 17 M. Victoria Wilson, Assistant Attorney General 18 Albuquerque, NM
19 for Appellee 1 L. Helen Bennett 2 Albuquerque, NM
3 for Appellant Rivera 4 Law Works LLC 5 John A. McCall 6 Albuquerque, NM
7 for Appellant Sanchez
8 MEMORANDUM OPINION
9 SUTIN, Judge.
10 {1} A jury found Shaila Rivera and Edwin Sanchez (Defendants) guilty of multiple
11 crimes arising out of an incident in which they acted together to beat and hogtie
12 Heather Archuleta (Victim) and that culminated in Sanchez raping her. In separate
13 appeals, both of which are addressed in this Opinion, Defendants seek reversal of their
14 convictions. In their respective briefs, Defendants raise a number of identical issues
15 related to various evidentiary rulings made by the district court. Additionally, Rivera
16 argues that the court erred in precluding her from presenting evidence that Victim was
17 a police informant and that the court erred by not allowing her counsel to explain to
18 the jury why she used a cell phone during trial. Sanchez argues that the district court
19 made additional erroneous evidentiary rulings, that his right to be free from double
20 jeopardy was violated, that the court erred in denying a proffered jury instruction, that
2 1 he received ineffective assistance of counsel, and that he was prejudiced by
2 cumulative error.
3 {2} We conclude that none of the issues raised by Defendants in their respective
4 appeals demonstrates error. We affirm Defendants’ convictions.
5 BACKGROUND
6 {3} The sufficiency of the evidence presented by the State to support Defendants’
7 convictions is not attacked on appeal, accordingly, we present an abbreviated
8 statement of the relevant background facts only to provide context for our discussion.
9 {4} Victim and Defendants first met at a friend’s house in 2008. Approximately two
10 years later, Rivera and Victim became friends, and after “hanging out” together for
11 about three days, Rivera invited Victim to live with her and Sanchez after Victim and
12 Victim’s sister had a fight. Victim lived with Rivera and Sanchez for three days when
13 Rivera told Victim that she could only continue living with her and Sanchez if Victim
14 agreed to a “threesome.” Victim’s friend, Matthew Padilla, overheard Rivera’s
15 ultimatum to Victim, and because Victim did not want to have a threesome with
16 Defendants, Padilla invited Victim to live with him instead. Victim moved into
17 Padilla’s home and soon Victim and Padilla became a couple.
18 {5} The events at issue in this trial began with the exchange of text messages on
19 September 26, 2010, between Victim’s phone and Sanchez’s phone that were initiated
3 1 by Sanchez’s offer to help Victim if she ever needed anything. When Sanchez’s initial
2 text message was sent to Victim’s phone, Padilla had the phone, and Victim was out
3 of the room. Posing as Victim and using Victim’s phone, Padilla responded to
4 Sanchez’s text message and asked Sanchez for an $80 loan. When Padilla told Victim
5 that he was trying to get Sanchez to give Victim $80, Victim joined Padilla in texting
6 Sanchez. What followed was a text message exchange during which, among other
7 things, Padilla and Victim concocted a false story about Victim having borrowed
8 money from someone that she was afraid of and that she needed Sanchez to quickly
9 loan her $80 so that she could pay the alleged imaginary debt. Eventually Sanchez
10 invited Victim to his house to collect the $80.
11 {6} Padilla drove Victim to Defendants’ house and parked out of sight with
12 instructions from Victim to follow Defendants’ vehicles if either left the house. When
13 Victim was inside the house, Sanchez grabbed her and said “now,” and Rivera came
14 out of the back room. Together, Defendants beat Victim, threw her to the ground, and
15 stripped her. Rivera held Victim down while Sanchez got some rope and “hogtied”
16 Victim. After Victim was hogtied, both Defendants digitially penetrated Victim’s
17 vagina. Sanchez retrieved a gun from his truck and hit Victim in the head with it.
18 Sanchez then carried Victim, who was still naked and hogtied, to his truck. Rivera
4 1 instructed Sanchez to “get rid of” and “dump” Victim, and she announced that she
2 would shampoo Victim’s blood out of the carpet.
3 {7} Sanchez drove away from the house with Victim in his truck, and when he saw
4 Padilla’s car, he threatened to shoot both Victim and Padilla in the head if Victim
5 “[made] a move.” Padilla began following Sanchez’s truck, but he got pulled over by
6 the police because his car had a broken headlight. Sanchez drove Victim to a rest area
7 in Ojo Caliente where he raped her. After the rape, Sanchez told Victim that because
8 “there was something about” Victim, he could not kill her but he used his cell phone
9 to photograph her. He told Victim that he was going to keep the photograph, and if he
10 heard anything about what had happened, he would send her the photograph to remind
11 her of what could happen. Sanchez gave Victim her clothes but he kept her cell phone
12 and dropped her off on the side of the road in the vicinity of Victim’s friend’s house.
13 {8} Defendants were tried together before a jury for a number of crimes arising out
14 of this incident. Sanchez was convicted of two counts of second degree criminal
15 sexual penetration, contrary to NMSA 1978, Section 30-9-11(E)(3) (2009), aggravated
16 battery without great bodily harm, contrary to NMSA 1978, Section 30-3-5(A), (B)
17 (1969), kidnapping, contrary to NMSA 1978, Section 30-4-1(A)(3) or (4) (2003),
18 conspiracy to commit aggravated battery inflicting great bodily harm or with a deadly
19 weapon, contrary to NMSA 1978, Section 30-28-2(A), (B)(3) (1979) and Section 30-
5 1 3-5(C), and interference with communications, contrary to NMSA 1978, Section 30-
2 12-1(D) (1979). Rivera was convicted of aggravated battery without great bodily
3 harm, contrary to Section 30-3-5(A) and (B), conspiracy to commit aggravated battery
4 inflicting great bodily harm or with a deadly weapon, contrary to Section 30-28-2(A),
5 (B)(3) and Section 30-3-5(C), assault, contrary to NMSA 1978, Section 30-3-1(B)
6 (1963), tampering with evidence, contrary to NMSA 1978, Section 30-22-5(A), (B)(1)
7 (2003), and kidnapping, contrary to Section 30-4-1(A)(3) or (4).
8 {9} Defendants appeal their convictions, and we address both appeals in this
9 Opinion. Defendants claim that the district court abused its discretion in a number of
10 its evidentiary rulings. We conclude that Defendants’ evidentiary issues do not
11 demonstrate an abuse of discretion by the district court. Additionally, Rivera argues
12 that she was prejudiced by the district court’s decision to not permit her to explain to
13 the jury why she was looking at a cell phone during trial. And Sanchez additionally
14 argues that he was prejudiced by the court’s denial of a requested jury instruction, that
15 he received ineffective assistance of counsel, that his convictions violated double
16 jeopardy, and that cumulative error warrants reversal of his convictions. We conclude
17 that Defendants’ respective arguments do not demonstrate grounds for reversal.
6 1 DISCUSSION
2 I. Evidentiary Issues
3 {10} As to the evidentiary issues raised by both Defendants, we consider their
4 arguments together. Arguments raised by one Defendant but not the other are
5 addressed in separately denoted sections.
6 {11} We review evidentiary issues for an abuse of discretion. State v. Apodaca,
7 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. “An abuse of discretion occurs
8 when the ruling is clearly against the logic and effect of the facts and circumstances
9 of the case.” Id. (internal quotation marks and citation omitted). “We cannot say the
10 trial court abused its discretion by its ruling unless we can characterize it as clearly
11 untenable or not justified by reason.” Id. (internal quotation marks and citation
12 omitted).
13 A. Evidentiary Issues Raised by Both Defendants
14 1. Victim’s Sexual History
15 {12} New Mexico has a “strong public policy . . . to prevent unwarranted intrusions
16 into the private affairs of victims of sex crimes[,]” and “trial courts should remove
17 from the jury the temptation to pass judgment upon rape victims whenever possible.”
18 State v. Johnson, 1997-NMSC-036, ¶ 21, 123 N.M. 640, 944 P.2d 869 (internal
7 1 quotation marks and citation omitted). New Mexico’s rape shield statute, NMSA
2 1978, § 30-9-16(A) (1993), provides that
3 [a]s a matter of substantive right, in prosecutions [of criminal sexual 4 offenses], evidence of the victim’s past sexual conduct, opinion evidence 5 of the victim’s past sexual conduct[,] or of reputation for past sexual 6 conduct, shall not be admitted unless[] and only to the extent that the 7 court finds that[] the evidence is material to the case and that its 8 inflammatory or prejudicial nature does not outweigh its probative value.
9 Such evidence is also generally precluded by Rule 11-412(A)(1) NMRA, pursuant to
10 which evidence offered to prove that a victim engaged in other sexual behavior is not
11 admissible in a criminal proceeding involving sexual misconduct except where it is
12 material and relevant, and it is more probative than prejudicial. See Rule 11-412(B),
13 (C) (stating the exception to the general rule of inadmissability and the procedure used
14 to determine admissibility). The rape shield law and corresponding rule apply to all
15 sexual conduct. Johnson, 1997-NMSC-036, ¶ 19.
16 {13} Prior to trial, Sanchez filed a motion by which he sought to introduce evidence
17 that Victim, who was almost twenty years old when she was attacked by Defendants,
18 had, when she was thirteen years old, reported that she was raped and that the police
19 report from the rape indicated that Victim had suffered injuries to the back of her
20 head. In the present case, Victim reported to police that she had been hit on the back
21 of the head during the attack, but her hospital records did not reflect any head injury.
22 Sanchez’s counsel theorized that because of the prior rape, Victim might have hyper-
8 1 reacted to Defendants’ attack of her, and she might believe that something happened
2 in this case that actually did not. Thus, Sanchez’s counsel argued the prior rape was
3 relevant to Victim’s credibility and memory and to Sanchez’s defense. The district
4 court concluded that there was not enough similarity between the prior rape and the
5 attack here to support the defense theory that “this whole thing is a flashback,” and
6 therefore, evidence of the prior rape would be admitted only if Victim brought it up.
7 On appeal, Defendants argue that the district court abused its discretion in excluding
8 the evidence of Victim’s prior rape.
9 {14} Rivera argues that evidence of the prior rape was relevant to Victim’s
10 credibility, but Rivera does not argue that the evidence was material to the charges or
11 that its probative value outweighed any prejudicial effect as required for admissibility
12 under Section 30-9-16(A) or Rule 11-412(B). As such, Rivera has failed to establish
13 that the court erred in its determination that the evidence of the prior rape was not
14 admissible. See Johnson, 1997-NMSC-036, ¶ 1 (stating that where the defendant has
15 failed to demonstrate that evidence of the victim’s prior sexual conduct is material and
16 that it is more probative than inflammatory or prejudicial, the rape shield law and
17 corresponding rule preclude its admission).
18 {15} Sanchez argues that the prior rape was “a traumatic experience which was
19 sufficient to cause [post-traumatic stress disorder or] PTSD that arguably had an effect
9 1 on [Victim’s] mental state” and that the jury should have considered “[t]he implication
2 that [Victim] may have suffered from PTSD from her prior rape which may have
3 affected her state of mind concerning her alleged head injury[.]”
4 {16} Sanchez’s argument resembles the argument raised by the defendant and
5 rejected by this Court in State v. Hueglin, 2000-NMCA-106, ¶ 25, 130 N.M. 54, 16
6 P.3d 1113. In Hueglin, the defendant, who was appealing his criminal sexual
7 penetration convictions, argued that the district court abused its discretion by
8 prohibiting him from inquiring into the victim’s sexual history, specifically an alleged
9 prior rape. Id. ¶¶ 1, 25. The defendant argued that he wanted to inquire into the earlier
10 rape because he believed that “it actually occurred and that [the v]ictim was somehow
11 recalling the violence of that rape and applying it to her encounter with [the
12 d]efendant.” Id. ¶ 26 (alteration and internal quotation marks omitted). The defendant
13 did not provide expert testimony to support his theory. Id. This Court held that the
14 district court did not abuse its discretion in prohibiting the defendant’s inquiry into the
15 alleged prior rape because “[i]n the absence of expert testimony explaining how the
16 prior incident would have affected [the v]ictim’s recollection of her encounter with
17 [the d]efendant, [the d]efendant would have been inviting the jury to engage in
18 speculation based on lay psychology.” Id.
10 1 {17} Here, as in Hueglin, Sanchez’s argument is not supported by expert testimony.
2 Thus, like the defense theory in Hueglin, Sanchez’s theory that Victim suffered PTSD
3 from the alleged prior rape that may have affected her testimony in the present case
4 is mere speculation grounded in lay psychology. On this record, we cannot conclude
5 that the district court erred in denying Sanchez’s motion to present evidence of
6 Victim’s alleged prior rape.
7 {18} Defendants also argue that the district court erred by failing to admit evidence
8 of Victim’s sexual promiscuity, evidence that Victim had prostituted herself for drugs
9 and money, and evidence that she had “stripped and danced around naked for cocaine
10 at a party.” Rivera makes the generalized assertion that the foregoing evidence was
11 relevant to Victim’s “bias and credibility[,]” and Sanchez argues that evidence of
12 Victim’s “past sexual history . . . was integral to the [d]efense’s premise that the sex
13 between [Victim and Sanchez] was not nonconsensual.” Defendants also argue that
14 the at-issue evidence was relevant to rebut Victim’s testimony that she was not the
15 “type of girl” to have sex with Sanchez.
16 {19} From Defendants’ briefing, we understand their shared theory of relevance to
17 be that Victim’s sexual history was relevant and admissible to support a theory that
18 either, in accordance with her alleged history of prostitution, Victim prostituted
19 herself to Sanchez, or consistent with her reputation for promiscuity, she engaged in
11 1 consensual sex with him. Neither theory supports admissibility of evidence of
2 Victim’s past sexual conduct in the context of this case. See § 30-9-16(A); Rule 11-
3 412(B).
4 {20} In order to introduce evidence of Victim’s alleged prior acts of prostitution, her
5 character for unchastity, or her sexual propensities, a defendant must make a showing
6 that there is evidence to support a theory of fabrication. See Johnson, 1997-NMSC-
7 036, ¶¶ 8, 11, 39. The possibility that a sexual assault victim may have engaged in
8 prostitution on other occasions does not support an inference that she had a reason to
9 fabricate an accusation of rape. Id. ¶ 38. For evidence of a victim’s sexual history to
10 be relevant in a rape case, “[t]he evidence offered should be relevant to a defense
11 theory other than a theory based on propensity[.]” Id. ¶ 34. In the present case where
12 the only theory of relevance was Victim’s alleged propensity toward prostitution or
13 promiscuity, the district court did not abuse its discretion in ruling that Victim’s
14 sexual history was inadmissible.
15 {21} On a final note regarding Victim’s sexual history, we observe that Defendants
16 invoke the Confrontation Clause in their arguments pertaining to the admissibility of
17 this evidence for the first time on appeal. Defendants fail to demonstrate whether and
18 if so how they preserved any argument at trial that their confrontation rights were
19 implicated by the district court’s decision not to admit evidence of Victim’s sexual
12 1 history. See Rule 12-213(A)(4) NMRA (requiring the appellant’s brief in chief to
2 include a statement of preservation as to each issue raised, along with citations to the
3 proceedings below); State v. Garcia, 2013-NMCA-005, ¶ 9, 294 P.3d 1256
4 (recognizing that the appellate court is not required to consider unpreserved
5 constitutional arguments); State v. Romero, 2013-NMCA-101, ¶ 19, 311 P.3d 1205
6 (stating that filing a motion for a new trial does not constitute preservation). As such,
7 we do not consider Defendants’ Confrontation Clause arguments. See State v.
8 Montoya, 2014-NMSC-032, ¶¶ 14-15, 333 P.3d 935 (stating that when a defendant’s
9 evidentiary challenge in the district court is based on constitutional rights to
10 confrontation, the appellate court conducts a de novo review; otherwise, the appellate
11 court reviews the issue for an abuse of discretion). We conclude the district court did
12 not abuse its discretion in excluding Victim’s sexual history.
13 2. Prior Bad Acts
14 {22} Prior to trial, Sanchez sought permission to cross-examine Victim at trial
15 regarding her arrest, along with Padilla, for commercial burglary pending in Rio
16 Arriba County, as well as charges pending in Santa Fe for having allegedly stolen
17 items from a retail store and wrecking into a vehicle during a high-speed police chase.
18 Sanchez also sought to question Victim regarding subsequent and pending charges of
13 1 burglary, criminal damage to property, and conspiracy. All of the alleged incidents of
2 Victim’s criminal conduct had occurred after the events at issue in this case.
3 {23} Rule 11-404(B) NMRA provides that admission of “[e]vidence of a crime,
4 wrong, or other act . . . to prove a person’s character in order to show that[,] on a
5 particular occasion[,] the person acted in accordance with the character” is prohibited;
6 however, such evidence may be admissible to prove motive, opportunity, intent,
7 preparation, or plan. Rule 11-608(B)(1) NMRA provides that a witness’s character for
8 truthfulness may be attacked on cross-examination by inquiring into specific instances
9 of a witness’s conduct.
10 {24} Relying on Rules 11-404(B) and 11-608(B)(1), Sanchez argued at trial that
11 inquiry into these various alleged crimes was permissible during his cross-
12 examination of Victim to support his theory that Victim and Padilla were teamed up
13 and were trying to perpetrate a crime against Defendants by luring them to an ATM
14 in order to “shake them down” for money, as well as to show that Victim and Padilla
15 engaged in a pattern of criminal conduct, and therefore they were not credible. The
16 district court concluded that owing to the lack of similarity between the alleged act of
17 committing a commercial burglary and the defense theory that Victim and Padilla
18 were trying to “trick a friend or an ex-friend out of money,” Rule 11-404(B) did not
19 permit the inquiry. The district court also concluded that the inquiry was not
14 1 permissible under Rule 11-608(B)(1) because (1) Victim had not been convicted of
2 the crimes and therefore could not be impeached with convictions under Rule 11-609
3 NMRA; and (2) Victim would not admit under oath to having committed the charged
4 crimes, thus the inquiry would serve only to inform the jury of the alleged crimes and
5 would therefore have a prejudicial effect that outweighed its probative value. See Rule
6 11-609 (stating the circumstances under which a witness may be impeached by
7 evidence of a criminal conviction); see also Rule 11-403 NMRA (stating that “[t]he
8 court may exclude relevant evidence if its probative value is substantially outweighed
9 by a danger of . . . unfair prejudice”).
10 {25} On appeal, Defendants abandon their Rule 11-404(B) argument and argue only
11 that the district court erred in prohibiting Sanchez from inquiring into Victim’s alleged
12 crimes pursuant to Rule 11-608(B). In support of their argument that Victim’s
13 “specific instances of misconduct” that led to her arrest were permissible subjects of
14 cross-examination, Defendants cite State v. Wyman, 1981-NMCA-087, 96 N.M. 558,
15 632 P.2d 1196.
16 {26} In Wyman, this Court held that the district court did not err in permitting the
17 prosecutor to ask whether the defendant had committed a number of criminal acts
18 when he was a child. Id. ¶¶ 1-9. Although Rule 11-609 prohibits evidence of a
19 defendant’s juvenile adjudication, the Court reasoned that because no extrinsic
15 1 evidence of the adjudications was presented, Rule 11-609 did not apply; rather, Rule
2 11-608 applied, and pursuant to that rule, the prosecutor’s inquiry into the defendant’s
3 specific conduct was permissible. Id. ¶¶ 8-9.
4 {27} Wyman is not persuasive authority in the context of this case. Here, unlike
5 Wyman, Victim had been accused but not adjudged guilty of having committed certain
6 acts of conduct that Sanchez sought to raise on cross-examination. This is significant
7 because “[i]n considering the character of the prior conduct, the trial court must take
8 care to distinguish actual misconduct from a mere accusation of misconduct” because
9 “the only relevant circumstance is . . . the fact, not the mere charge, of having
10 misbehaved.” State v. Robinson, 1983-NMSC-040, ¶¶ 5-6, 99 N.M. 674, 662 P.2d
11 1341. Since Victim had been accused but not adjudged guilty of having committed the
12 alleged crimes, the district court did not abuse its discretion in determining that
13 Sanchez could not inquire into the alleged acts. See State v. Herrera, 1985-NMSC-
14 005, ¶ 20, 102 N.M. 254, 694 P.2d 510 (“The test is not whether the witness sought
15 to be impeached was arrested or charged with the misconduct but whether the witness
16 actually engaged in the misconduct. . . . [B]eing arrested, charged, or being a suspect
17 is not a prior act of misconduct.” (citation omitted)).
18 {28} Defendants also argue that the district court erroneously prohibited the
19 introduction of evidence that Victim had committed the “prior bad act” of soliciting
16 1 Sanchez to commit robbery. Defendants fail to provide record citations to demonstrate
2 preservation of this issue, Sanchez’s citations to an August 16th hearing do not
3 correspond with any hearing in the record proper, and Defendants fail to develop
4 arguments indicating what the evidence was, or how such evidence was to be
5 presented. This unclear, undeveloped, and apparently unpreserved argument will not
6 be considered. See Rule 12-213(A)(4) (requiring a statement of preservation and
7 citations to the record proper as to each argument raised in the brief in chief); State v.
8 Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.2d 1181 (declining to consider
9 an evidentiary argument that was factually undeveloped and unclear).
10 3. Character Evidence
11 {29} Defendants argue that the district court erred in not allowing them to present
12 evidence of Padilla’s history of violence toward women that would have supported the
13 defense theory that Victim’s injuries were the result of Padilla instead of Defendants.
14 Although Rivera does not present any authority in support of this argument, Sanchez
15 argues that the evidence was admissible pursuant to Rule 11-404.
16 {30} Rule 11-404(A)(1) prohibits the admission of evidence of a person’s character
17 to prove that on a particular occasion the person acted in accordance with the character
18 or trait. However, Rule 11-404(B)(2) allows such evidence to be used for another
19 purpose such as proving motive or opportunity. In the present case, Sanchez asserts
17 1 that he intended to present evidence of Padilla’s history of violence toward women to
2 prove that Padilla had an “opportunity and motive” to beat Victim but his assertion is
3 not supported by any rational explanation of how Padilla’s historical treatment of
4 women would be relevant to that theory. Rather, Sanchez intended to use Padilla’s
5 history to attempt to persuade the jury that, in accordance with his character trait of
6 being violent toward women, he could have beaten Victim and caused the injuries at
7 issue in the present trial. Our conclusion is supported by Sanchez’s own assertion that
8 the evidence was probative of Padilla’s “habit, pattern, practice, and opportunity to
9 beat and injure [Victim].” As such, pursuant to Rule 11-404(A)(1), the evidence of
10 Padilla’s history of violence toward women was not admissible.
11 4. Rivera’s Cell Phone
12 {31} On the third day of trial, the district court informed the parties that more than
13 one juror had told the bailiff that they had observed Rivera using a cell phone during
14 the trial. For approximately half an hour, outside of the jury’s presence, the court and
15 the parties discussed Rivera’s use of the cell phone, as well as her subsequently
16 showing whatever was on the phone to Sanchez, and how to handle the issue going
17 forward. Finally, the court and the parties agreed to remove the battery and return the
18 cell phone to Rivera. In the course of the discussion, Rivera’s counsel informed the
18 1 court that he had just learned that the phone contained information that he wanted to
2 use at trial.
3 {32} Rivera testified at trial. Her counsel presented her with the cell phone so that
4 she could refresh her recollection about text messages sent to her by Victim. Rivera
5 then testified that Victim had sent two text messages to her, one stating, “I like you”
6 and another stating, “Maybe you can sleep with me tonight.” Following that
7 testimony, Rivera’s counsel moved to admit the cell phone into evidence, and the
8 court denied the motion stating that its reason for doing so was counsel’s late
9 disclosure of the evidence. Neither the phone nor its content had been disclosed to the
10 State by the defense.
11 {33} On appeal, Defendants argue that the district court erred by not admitting the
12 cell phone into evidence. Pursuant to Rule 5-502(A)(1) NMRA, Rivera had a duty to
13 disclose the “tangible objects” that she intended to introduce into evidence at trial.
14 This duty also applies to any evidence discovered during trial. See Rule 5-505(A)
15 NMRA. Where a party fails to abide by Rule 5-505(A), the district court may, as the
16 court did here, prohibit the introduction of the undisclosed evidence. Rule 5-505(B).
17 Sanchez’s counsel stated in court that she “had the phone and . . . gave it back to
18 Rivera today [April 11, 2012].” Therefore, the record reveals that Rivera’s counsel
19 purportedly learned of the text messages on the cell phone on April 11, 2012, five
19 1 days before he sought to introduce them at trial on April 16, 2012. Defendants offer
2 no explanation or excuse to explain why, within the five day interim, defense counsel
3 did not disclose the cell phone or its contents to the State as required by Rule 5-
4 505(A). We see no reason to conclude that the court abused its discretion by
5 prohibiting Rivera’s counsel from entering Rivera’s cell phone into evidence.
6 {34} Sanchez argues that the State improperly withheld the text messages on
7 Rivera’s cell phone from the defense, thereby committing prosecutorial misconduct.
8 Sanchez’s argument was raised for the first time on appeal and therefore will not be
9 considered. Furthermore, the State represented at trial that it was the defense that
10 failed to disclose the evidence, which is supported by the record.
11 5. Investigator Tim Dabbs’s Testimony
12 {35} Defendants argue that the district court erred in sustaining the State’s objection
13 to the testimony of Investigator Dabbs regarding his experiment with and observations
14 about the rope that Defendants used to “hogtie” Victim during the attack. Neither
15 Defendant provides citations to the record showing where in the proceedings they
16 sought to introduce Investigator Dabbs’s testimony in that regard, what the arguments
17 were in support of or in opposition to the testimony, or where the court’s ruling may
18 be found. We will not review this issue. See State v. Dominguez, 2014-NMCA-064,
20 1 ¶ 26, 327 P.3d 1092 (recognizing that this Court will not search the record for facts,
2 arguments, and rulings that may support a party’s arguments).
3 6. Photographs
4 {36} Defendants argue that the district court erred in admitting printed photographs
5 of Victim’s injuries because the photographs had been “digitally enhanced” or
6 “digitally altered” in a way that made the injuries appear worse than they actually
7 were. Building on that premise, they argue further that the photographs were not
8 “originals” admissible pursuant to Rule 11-1002 NMRA, but were instead,
9 inadmissible distortions. See id. (“An original . . . photograph is required in order to
10 prove its content[.]”). Defendants fail to cite any evidence in the record demonstrating
11 support for their argument that the photographs had been enhanced or altered.
12 Counsel’s arguments to that effect in the district court are not evidence. State v.
13 Hanson, 2015-NMCA-057, ¶ 15, 348 P.3d 1070 (“[T]he mere assertions and
14 arguments of counsel are not evidence[.]” (internal quotation marks and citation
15 omitted)).
16 {37} Victim testified that the photographs accurately reflected her injuries and her
17 appearance when the photographs were taken at the hospital. The Rules of Evidence
18 provide that a photograph printed from its original form constitutes an “original” of
19 that photograph. Rule 11-1001(D) NMRA. Because Defendants fail to demonstrate
21 1 support for their argument that the photographs were other than printed forms of the
2 original images, we cannot conclude that the district court abused its discretion in
3 admitting them.
4 7. Cumulative Testimony
5 {38} Detective Brian Martinez of the City of Espanola Police Department and
6 Victim’s mother, Melba Trujillo, testified regarding statements that Victim made at
7 the hospital about the incident. Defendants argue that because Victim had already
8 testified about the incident, the district court abused its discretion under Rule 11-403
9 by admitting the testimony which, in their view, was cumulative and overly
10 prejudicial. Sanchez also argues that the testimony improperly bolstered Victim’s
11 credibility.
12 {39} Pursuant to Rule 11-403, the district court “may exclude relevant evidence if
13 its probative value is substantially outweighed by a danger of . . . unfair prejudice . . .
14 or needlessly presenting cumulative evidence.” The application of Rule 11-403,
15 including the decision whether to admit cumulative evidence, is left to the sound
16 discretion of the district court. See State v. Aaron, 1984-NMCA-124, ¶ 28, 102 N.M.
17 187, 692 P.2d 1336 (“Cumulative evidence, even if prejudicial, may be admitted in
18 the discretion of the trial court.”).
22 1 {40} The district court concluded that Detective Martinez’s and Trujillo’s testimony
2 was not cumulative, but that it was admissible to rebut the implied charge, raised by
3 defense counsel during cross-examination of Victim, that Victim was fabricating her
4 testimony. See Rule 11-801(D)(1)(b) NMRA (stating that testimony that is consistent
5 with the declarant’s testimony and “is offered to rebut an express or implied charge
6 that the declarant recently fabricated it or acted from a recent improper influence or
7 motive in so testifying” is admissible). The court also reasoned that because Victim
8 had been, in the court’s words, “cross-examined heavily” and because the veracity of
9 Victim’s testimony was “the actual substance of the case,” Detective Martinez’s
10 testimony was not cumulative.
11 {41} “Cumulative evidence is additional evidence of the same kind tending to prove
12 the same point as other evidence already given[.]” State v. Johnson, 2004-NMSC-029,
13 ¶ 38, 136 N.M. 348, 98 P.3d 998 (internal quotation marks and citation omitted).
14 However, “[t]o the extent [that] the evidence corroborates, and therefore strengthens,
15 the prosecution’s evidence, it cannot be deemed cumulative[.]” Id. ¶ 37 (internal
16 quotation marks omitted). In the present case, Detective Martinez’s and Trujillo’s
17 testimony was cumulative in the sense that it tended to prove the same point as
18 Victim’s testimony. However, because the testimony corroborated and strengthened
19 Victim’s testimony by showing that she had made prior statements that were
23 1 consistent with her testimony thereby rebutting defense counsel’s implication that
2 Victim’s testimony was fabricated, we cannot conclude that it was cumulative or
3 “needlessly presenting cumulative evidence” as contemplated by Rule 11-403. See
4 Johnson, 2004-NMSC-029, ¶ 37 (stating that the district court may exclude relevant
5 evidence on the ground that it constitutes the needless presentation of cumulative
6 evidence). As such, the district court did not abuse its discretion by admitting the
7 testimony.
8 {42} Finally, as to Detective Martinez’s and Trujillo’s testimony, we are not
9 persuaded by Sanchez’s argument that it improperly bolstered Victim’s credibility.
10 While it is not permissible to allow a witness to directly comment on a victim’s
11 credibility, incidental verification of her story or indirect bolstering of her credibility
12 is not improper. State v. Alberico, 1993-NMSC-047, ¶ 89, 116 N.M. 156, 861 P.2d
13 192. Neither Detective Martinez nor Trujillo improperly bolstered Victim’s testimony
14 by directly commenting on Victim’s credibility.
15 II. Arguments Raised Only by Rivera
16 1. Evidence That Victim Was a Police Informant
17 {43} Rivera claims that “[t]he [d]efense was precluded from introducing evidence
18 that [Victim] was an informant for the police even though the police officer for whom
19 she worked was the investigator on this case and supported her testimony by testifying
24 1 that it was corroborated by the evidence.” Rivera does not provide any argument or
2 authority to support a contention of error in this regard, and we will not guess at what
3 her argument may be. State v. Bernard, 2015-NMCA-089, ¶ 35, 355 P.3d 831 (“We
4 will not review unclear arguments[] or guess at what a party’s arguments might be.”
5 (alteration, internal quotation marks, and citation omitted)). We will not consider this
6 issue.
7 2. Whether Rivera Should Have Been Permitted to Explain Why She Used 8 a Cell Phone During Trial
9 {44} Rivera also argues that because she was not permitted to explain to the jury why
10 she and Sanchez were using a cell phone during trial, the jury “was left with an
11 impression of frivolity or lack of decorum that in all probability tainted [its] view of
12 Defendants and improperly influenced [its] verdict.” Defendants do not challenge the
13 sufficiency of the evidence that supported the jury’s guilty verdicts. In light of the
14 overwhelming evidence that Defendants acted together to attack and hogtie Victim
15 before Sanchez raped her, we will not assume, as Rivera suggests, that had Rivera
16 been permitted to explain why she and Sanchez used a cell phone during trial the
17 outcome of the trial would have been different. Rivera’s argument provides no ground
18 for reversal in the context of this case.
25 1 III. Issues Raised Only by Sanchez
2 1. The Content of Sanchez’s Cell Phone Records
3 {45} Sanchez sought to introduce the content of his cell phone records into evidence
4 via the testimony of Investigator Dabbs. The district court concluded that Investigator
5 Dabbs was not qualified to authenticate the phone records, and therefore he could not
6 testify as to the content of the records. Sanchez argues that the records were
7 admissible under Rule 11-803(6) NMRA and that the district court abused its
8 discretion by concluding otherwise.
9 {46} Rule 11-803(6), governing the admissibility of records of a regularly conducted
10 activity, provides that a record of an act or condition is admissible if:
11 (a) the record was made at or near the time by—or from 12 information transmitted by—someone with knowledge,
13 (b) the record was kept in the course of a regularly conducted 14 activity of a business, institution, organization, occupation, or calling, 15 whether or not for profit,
16 (c) making the record was a regular practice of that activity, and
17 (d) all these conditions are shown by the testimony of the 18 custodian or another qualified witness, or by a certification[.]
19 {47} Sanchez argues that Investigator Dabbs, “being an investigator familiar with
20 obtaining cell phone records and the substance of cell phone records, would have been
21 able to authenticate [Sanchez’s cell phone] records as accurate cell phone records kept
26 1 in the course of business by the company Cricket wireless.” In order to provide a
2 foundation for the admission of business records, the witness must at least have
3 personal knowledge of the system by which the record is generated in order to testify
4 that the record was generated in keeping with a regular business practice. Roark v.
5 Farmers Group, Inc., 2007-NMCA-074, ¶¶ 24-29, 142 N.M. 59, 162 P.3d 896. We
6 are not persuaded that Investigator Dabbs’s experience obtaining cell phone records
7 or his familiarity with the substance of cell phone records qualified him to be a
8 foundation witness for the admission of Cricket’s business records.
9 {48} To the extent that Sanchez provides additional rationale for the records’
10 admissibility based upon another witness’s testimony about some aspect of the
11 records, we decline to review this argument owing to Sanchez’s failure to provide
12 record citations supporting his contentions. See Rule 12-213(A)(4) (requiring an
13 appellant to provide citations to the record proper in support of each argument raised
14 in his brief in chief); Dominguez, 2014-NMCA-064, ¶ 26 (recognizing that this Court
15 will not search the record for facts, arguments, and rulings that may support a party’s
16 arguments).
17 2. Cross-Examination of Detective Martinez
18 {49} Sanchez also argues that he was denied his right to confront and cross-examine
19 Detective Martinez by asking him on cross-examination whether, during his
27 1 investigation, he initially believed that Victim was prostituting herself and that
2 something had gone wrong in a “threesome” that Victim was having with Defendants.
3 Sanchez fails to cite to the record proper in support of this argument or to demonstrate
4 preservation, and we will not search the record on his behalf. See Rule 12-213(A)(4)
5 (requiring the appellant’s brief in chief to contain citations to the record proper
6 indicating preservation of each issue raised, as well as record citations relied on).
7 3. Victim’s Physical Condition During Trial
8 {50} Sanchez argues that he was unduly prejudiced by Victim’s unexplained physical
9 condition at trial. According to Sanchez, during trial, Victim’s face was swollen and
10 bruised, and her nose was injured. According to the State, Victim’s nose was swollen.
11 Sanchez sought to cross-examine Victim about the condition of her face, and in
12 response to an objection by the State, the district court prohibited Sanchez from doing
13 so. The court determined that the question was irrelevant and that it could cause
14 Victim to relate the prejudicial fact that she was then in jail because the injury was the
15 result of a jail fight.
16 {51} On appeal, Sanchez argues that the district court “effectively condoned the
17 likelihood of the jury being misled by the lack of explanatory evidence regarding
18 [Victim’s] more recent injuries[.]” We disagree. Victim testified in the present case
19 on April 9-10, 2012. The jury was instructed that Sanchez’s alleged crimes against
28 1 Victim occurred “on, or about, or between” September 26, 2010, and September 27,
2 2010. Victim testified that it took two to three weeks for the injuries that she sustained
3 as a result of Defendants’ having attacked her to heal completely and specifically
4 testified that her broken nose had healed within three weeks. Thus, within the context
5 of this case, we are not persuaded that the jury would have mistaken the injuries that
6 Victim exhibited at the time of trial as the effect of Defendants’ attack on her nineteen
7 months earlier. As such, we conclude that the district court did not abuse its discretion
8 in determining that Victim’s appearance at trial was not relevant in the present case.
9 4. Jury Instruction Issue
10 {52} Sanchez argues that the district court erred in denying a proposed jury
11 instruction regarding the testimony of a drug user. Sanchez fails to cite to the record
12 proper in support of his argument or to demonstrate preservation of this issue. See
13 Rule 12-213(A)(4) (requiring the appellant to cite to the record proper and to
14 demonstrate preservation in regard to each issue raised in his brief in chief). As such,
15 we will not consider this issue.
29 1 5. Ineffective Assistance of Counsel
2 {53} Sanchez also argues that he received ineffective assistance of counsel because
3 his counsel did not cross-examine Victim as to her sexual history. As discussed in an
4 earlier section of this Opinion, Sanchez’s counsel pursued a motion to cross-examine
5 Victim as to her sexual history but the district court denied the motion. In light of the
6 court’s ruling, we fail to see how Sanchez may reasonably argue that his counsel was
7 ineffective for failing to cross-examine Victim regarding her sexual history. Although
8 Sanchez reframes the issue in his reply brief by arguing that his counsel was
9 ineffective for failing to file an adequate rape shield “notice,” the record does not
10 support the notion that the adequacy of the rape shield notice affected the district
11 court’s ruling. Under the circumstances of this case, Sanchez’s ineffective assistance
12 of counsel claim is unpersuasive, not supported by the record, and we will not
13 consider it further.
14 6. Double Jeopardy
15 {54} “A double jeopardy challenge is a constitutional question of law [that] we
16 review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. “The
17 constitutional prohibition against double jeopardy protects against . . . multiple
18 punishments for the same offense.” State v. Mora, 2003-NMCA-072, ¶ 17, 133 N.M.
19 746, 69 P.3d 256 (internal quotation marks and citation omitted). Sanchez argues that
30 1 the prohibition against double jeopardy requires reversal of one of his convictions for
2 criminal sexual penetration in the second degree, his conviction of kidnapping, and
3 his conviction of conspiracy to commit aggravated battery because all of those acts
4 were subsumed by his remaining conviction of criminal sexual penetration in the
5 second degree. Sanchez’s argument boils down to an assertion that he was punished
6 for the same conduct under multiple statutes, as such his double jeopardy argument
7 raises a double-description issue. See Swick, 2012-NMSC-018, ¶ 10.
8 {55} We analyze double-description issues using a two-part analysis in which we
9 consider (1) whether the convictions were premised on unitary conduct, and if so,
10 (2) whether the Legislature intended to punish the crimes separately. Id. ¶ 11.
11 “Conduct is unitary when not sufficiently separated by time or place, and the object
12 and result or quality and nature of the acts cannot be distinguished.” State v. Silvas,
13 2015-NMSC-006, ¶ 10, 343 P.3d 616.
14 {56} Sanchez argues that kidnapping and conspiracy to commit aggravated battery
15 were “predicate felonies” to the respective counts of second degree criminal sexual
16 penetration. “As such,” Defendant argues that (1) “the separate convictions for
17 kidnapping and conspiracy to commit aggravated battery [were] ‘subsumed’ into the
18 convictions for second degree criminal sexual penetration” and (2) “[t]he two
31 1 convictions for second degree criminal sexual penetration that remain constitute
2 unitary conduct as a result [of] the single act of kidnapping that binds them.”
3 {57} We begin by addressing Sanchez’s contention that kidnapping and conspiracy
4 to commit aggravated battery were subsumed by the criminal sexual penetration
5 convictions as predicate felonies, meaning that the two acts of criminal sexual
6 penetration occurred “in the commission of” the kidnapping and the conspiracy,
7 respectively. State v. Sotelo, 2013-NMCA-028, ¶ 19, 296 P.3d 1232 (explaining that
8 two offenses are unitary by definition where conviction depends upon a finding that
9 one crime occurred during the commission of another “predicate” crime).
10 {58} In the case now before us, the jury was provided with alternative theories of
11 criminal sexual penetration. One theory was that Sanchez committed the acts of
12 criminal sexual penetration “during the commission” of a kidnapping or a conspiracy.
13 See § 30-9-11(E)(5) (defining “criminal sexual penetration in the second degree” as
14 criminal sexual penetration perpetrated “in the commission of any other felony”). The
15 alternative theory was that Sanchez committed the acts using physical force or
16 physical violence and that his acts resulted in physical injury to Victim. See § 30-9-
17 11(E)(3) (defining “criminal sexual penetration in the second degree” as criminal
18 sexual penetration perpetrated “by the use of force or coercion that results in personal
19 injury to the victim”). Sanchez’s convictions were premised on the theory that he
32 1 perpetrated the criminal sexual penetration by the use of physical force or violence
2 and resulting in personal injury, contrary to Section 30-9-11(E)(3). Because Sanchez
3 was not convicted of criminal sexual penetration committed during a kidnapping or
4 during the commission of a conspiracy, we reject his argument that kidnapping and
5 conspiracy were “predicate felonies” subsumed by the respective acts of criminal
6 sexual penetration.
7 {59} Sanchez’s next argument, that the two criminal sexual penetration convictions
8 were unitary because a single kidnapping bound them, is equally unpersuasive. The
9 evidence at trial demonstrated that Sanchez perpetrated the digital penetration against
10 Victim while they were inside Defendants’ house and that Sanchez raped Victim
11 inside his truck after he carried her to the truck from the house and drove her to Ojo
12 Caliente. Because the two acts of criminal sexual penetration were separated both by
13 time and by the intervening event of moving Victim from the house to the truck and
14 driving her to Ojo Caliente, they were of a different character (one digital and one
15 penile penetration), they occurred in different places, and were not unitary. See
16 Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624 (stating that a
17 temporal interval, a different location of the victim, and intervening events are indicia
18 of non-unitary conduct in a criminal sexual penetration case and recognizing that
19 penetrations of a different nature (digital and penile) are further indicia of distinct
33 1 acts); see also Silvas, 2015-NMSC-006, ¶ 10 (recognizing that conduct is not unitary
2 when two actions are separated by time and place and the nature can be distinguished).
3 {60} In sum, Sanchez has failed to demonstrate that his separate convictions were
4 premised on unitary conduct. As such, without considering the issue of legislative
5 intent, we reject his double jeopardy argument. See Swick, 2012-NMSC-018, ¶ 11
6 (stating that legislative intent is only considered in cases of unitary conduct).
7 7. Cumulative Error
8 {61} Sanchez argues that the doctrine of cumulative error requires reversal of his
9 convictions. Sanchez has failed to demonstrate error, and therefore, there is no basis
10 upon which to conclude that cumulative error requires reversal in this case. State v.
11 Samora, 2013-NMSC-038, ¶ 28, 307 P.3d 328 (“Where there is no error to
12 accumulate, there can be no cumulative error.” (alteration, internal quotation marks,
13 and citation omitted)).
14 CONCLUSION
15 {62} As to both Defendants, we affirm their respective convictions.
16 {63} IT IS SO ORDERED.
17 __________________________________ 18 JONATHAN B. SUTIN, Judge
19 WE CONCUR:
34 1 _______________________________ 2 JAMES J. WECHSLER, Judge
3 _______________________________ 4 TIMOTHY L. GARCIA, Judge