1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,081
10 WILLIAM ZAMORA,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Denise Barela Shepherd, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Anne Kelly, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Allison H. Jaramillo, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 WECHSLER, Judge. 1 Defendant William Zamora appeals his convictions for two counts of criminal
2 sexual contact of a minor (CSCM) and one count of contributing to the delinquency
3 of a minor (CDM). Defendant argues that (1) the district court erred by allowing the
4 hearsay testimony of Nurse Rosella Vialpando regarding statements that the victim
5 made in an examination several weeks after the incident, (2) the State impermissibly
6 commented on Defendant’s right to silence by inquiring about his refusal to take a
7 polygraph test without a lawyer present, (3) the two convictions for CSCM violated
8 the constitutional protections against double jeopardy because they arose out of a
9 single continuous incident, (4) the conviction for CDM and convictions for CSCM
10 violate the constitutional protections against double jeopardy because they arose out
11 of a single continuous incident, (5) the district court erred by introducing evidence of
12 prior, uncharged allegations against Defendant during sentencing, and (6) the district
13 court erred in denying Defendant’s motion for reconsideration of sentence and
14 refusing to run his sentences concurrent. We affirm.
15 BACKGROUND
16 Defendant was convicted of two counts of CSCM and one count of CDM. The
17 convictions arose out of a series of events that took place while the victim was staying
18 with her grandmother. At trial, the victim testified that Defendant lives with her
19 grandmother. The victim testified that Defendant touched her vagina while on the
2 1 couch watching television at her grandmother’s house. He later touched her again
2 shortly thereafter in the car on the way to a gas station to get candy. After returning
3 home from the gas station, Defendant touched the victim a third time. The touches
4 were the basis of the CSCM convictions. The victim also testified that on the drive
5 to the gas station, Defendant took out his penis and asked the victim to touch it.
6 Defendant’s CDM conviction arose out of these actions.
7 HEARSAY TESTIMONY OF SEXUAL ASSAULT NURSE EXAMINER 8 (SANE)
9 Over Defendant’s hearsay objection, the State offered the testimony of
10 Vialpando, a family nurse practitioner, as an expert in the field of “‘child abuse sexual
11 evaluations.’” Vialpando specializes in evaluations and examinations of children and
12 developmentally delayed adults who have been victims of sexual abuse. Vialpando
13 testified that she examined the victim several weeks after the incident when law
14 enforcement referred the victim’s parents to her after an investigation of the incident.
15 She testified that her examinations typically begin with a “history,” which she
16 described as an interview regarding the details of the alleged incidents of sexual
17 abuse. The purpose of the history is to assist Vialpando in determining “what parts
18 of the body to look at, and it also determines which test I’m going to do” during the
19 subsequent examination. In addition, Vialpando also questions the victim on the
20 identity of the perpetrators for the purpose of “assessing [the] safety of the child.”
3 1 Vialpando testified that the victim told her that Defendant “had given her a bad
2 touch” more than once during the history. According to Vialpando’s testimony, the
3 victim told her that Defendant touched her in the vaginal area with his hand and over
4 her clothes while in the car on the way to the gas station to get candy. The victim
5 further told her that Defendant took his penis out and asked her to touch it on the drive
6 to the gas station as well. Asked whether Defendant had touched her any other time,
7 the victim told Vialpando that “[Defendant] ‘touched me at home.’” Based on this
8 history, Vialpando testified that she ordered tests for sexually transmitted diseases on
9 the victim because of the potential for exchange of bodily fluids and gave the victim’s
10 mother a list of referrals for therapy. Defendant argues that Vialpando’s testimony
11 regarding the victim’s history was inadmissible hearsay designed to bolster the
12 victim’s testimony and that the district court erred in allowing the testimony as
13 “[s]tatements for purposes of medical diagnosis or treatment” under Rule 11-803(D)
14 NMRA.
15 We review the admission of evidence under an abuse of discretion standard.
16 State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. An abuse of
17 discretion occurs when the district court’s decision is clearly against the logic and
18 effect of the facts and circumstances of the case. State v. Lucero, 98 N.M. 311, 314,
19 648 P.2d 350, 353 (Ct. App. 1982).
4 1 In State v. Mendez, 2010-NMSC-044, __ N.M. __, 242 P.3d 328, our Supreme
2 Court recently addressed whether a SANE nurse’s testimony regarding statements of
3 an alleged sexual abuse victim was admissible under Rule 11-803(D). Our Supreme
4 Court held that a district court must “sift[] through statements, piece-by-piece, making
5 individual decisions on each one . . . to evaluate the trustworthiness of each . . .
6 statement[], taking into consideration [the alleged victim’s] help-seeking motivation
7 and the pertinence of such statements to medical diagnosis or treatment.” Mendez,
8 2010-NMSC-044, ¶ 46. In so holding, Mendez, ¶ 1, overruled State v. Ortega, 2008-
9 NMCA-001, ¶¶ 16-27, 143 N.M. 261, 175 P.3d 929, which had previously held that
10 a SANE nurse’s testimony was categorically inadmissible because criminal
11 investigation is the primary purpose of the examinations. Our Supreme Court stated
12 that Ortega’s focus on the primary purpose of the examination was inconsistent with
13 Rule 11-803(D)’s dual rationales, which are (1) the inherent reliability of statements
14 by a declarant seeking medical treatment based on a declarant’s self-interest in
15 obtaining proper medical attention and (2) the inherent reliability of statements
16 reasonably relied upon and therefore pertinent to a medical diagnosis and treatment.
17 Mendez, 2010-NMSC-044, ¶¶ 39, 20-21.
18 We cannot say that the district court erred in allowing Vialpando to testify
19 regarding the details of the victim’s history. Vialpando’s testimony regarding the
5 1 victim’s statements on where Defendant touched her, in what manner he touched her,
2 and how many times he touched her are justified because they are pertinent to
3 diagnosis and treatment of the victim. Id. ¶ 48 (“Knowing the patient’s account of
4 what happened to her body helps medical care providers determine the best way to
5 proceed in diagnosing and ultimately treating any injury.”). Indeed, when asked why
6 she takes a history of each child, Vialpando testified that it “assist[s] . . . in diagnosing
7 and treating the patient . . . [b]ecause . . . it tells me what parts of the body to look at,
8 as well as which tests to order, and we also refer them out for counseling or therapy.”
9 Not only did Vialpando state that the history typically assists in diagnosis and
10 treatment, she testified that it assisted her in this particular case. She stated that “I did
11 my examination, and based on the information she gave me, I ordered lab tests.”
12 Testimony regarding the statements of the victim to Vialpando that identified
13 Defendant as the perpetrator are a separate issue. As the Mendez Court explained a
14 statement “specifically identifying [the d]efendant as her abuser presents a much more
15 difficult question.” Id. ¶ 51. “As a general matter, statements of . . . identity are
16 inadmissible under the hearsay exception for purposes of medical diagnosis or
17 treatment.” Id. ¶ 52. “However, . . . New Mexico recognizes an exception to this
18 principle where the identity of the perpetrator is pertinent to psychological treatment,
19 or where treatment involves separating the victim from the source of the abuse.” Id.
6 1 ¶ 53. Asked why she inquires about the identity of the alleged perpetrator as part of
2 the child’s history, Vialpando responded that she asks for the perpetrator’s identity in
3 “assessing for [the] safety of the child, which is one of the components of diagnosing
4 and treating.” We therefore cannot say that the district court erred in allowing
5 Vialpando’s testimony as to the victim’s statements regarding Defendant’s identity as
6 the perpetrator.
7 COMMENT ON RIGHT TO SILENCE
8 Defendant next argues that the State impermissibly commented on his right to
9 silence by inquiring on cross-examination about Defendant’s refusal to take a
10 polygraph test without his lawyer present and again in closing argument by stating
11 that Defendant could have obtained his own polygraph test. Indeed, on cross-
12 examination, the State asked Defendant, “[n]ow, you mentioned a polygraph test.
13 Isn’t it true that [the detective] had asked you, ‘[w]ould you be willing to take one this
14 time,’ when you met him, and you had stated, ‘[w]ell, I want my lawyer present if I’m
15 going to take one.’ Isn’t that right?” Further, in the rebuttal closing argument, the
16 State told the jury “[Defendant] brought up this idea of a polygraph. Well, we know
17 that when [Defendant] met with the detective, let’s take one now. No, let’s not take
18 one now. I want my lawyer here. Oh, that’s interesting. Okay. And you know what?
19 Last time the State checked, it’s a free country. If you want a polygraph, get a
7 1 polygraph. Get a polygraph. There’s no polygraph.”
2 Defendant concedes that he did not object to the State’s comments or inquiries
3 on Defendant’s invocation of the right to silence. We therefore review for
4 fundamental error. State v. DeGraff, 2006-NMSC-011, ¶ 12, 139 N.M. 211, 131 P.3d
5 61 (“In the absence of a timely objection from a defendant, comments on a
6 defendant’s . . . right to remain silent, are reviewed for fundamental error.”).
7 Generally, “[w]hen a defendant has invoked [his] right to remain silent after
8 being given Miranda warnings, use of that silence by the prosecution at trial violates
9 due process.” State v. Foster, 1998-NMCA-163, ¶ 11, 126 N.M. 177, 967 P.2d 852.
10 Our Supreme Court has held that a reference to a defendant’s refusal to take a
11 polygraph in a prosecutor’s opening statement is an impermissible comment on the
12 defendant’s right to silence. State v. Gutierrez, 2007-NMSC-033, ¶ 17, 142 N.M. 1,
13 162 P.3d 156. However, “New Mexico recognizes the ‘invited-response’ doctrine,”
14 under which a defendant may open the door to comments by a prosecutor that would
15 otherwise be reversible error. State v. Pennington, 115 N.M. 372, 381, 851 P.2d 494,
16 503 (Ct. App. 1993); cf. State v. Henry, 101 N.M. 266, 267, 681 P.2d 51, 52 (1984)
17 (“[I]t is also the rule that the prosecution may refer to the defendant’s failure to testify
18 if the door is opened by the defense.”).
19 The State’s comments on Defendant’s refusal to submit to a polygraph test
8 1 without a lawyer present were permissible under the invited-response doctrine because
2 Defendant “‘opened the door’” by his own argument. State v. Sosa, 2009-NMSC-056,
3 ¶ 33, 147 N.M 351, 223 P.3d 348. It was Defendant who first raised the issue of a
4 polygraph test not being taken in his opening argument. Defense counsel stated that
5 “[w]e could have expected a polygraph examination, perhaps, but that wasn’t done.”
6 Further, on direct examination of Defendant, the following exchange took place:
7 Q. Did you offer to submit to a polygraph examination?
8 A. Yes, I submitted to—I offered a detective a polygraph test.
9 Q. Were you able—ever afforded a polygraph examination in this case?
10 A. No.
11 It was only after this exchange that the State questioned Defendant on his invocation
12 of the right to a lawyer before submitting to a polygraph test on cross-examination.
13 Further, before the State mentioned Defendant’s refusal to submit to the polygraph test
14 without a lawyer present in rebuttal closing, defense counsel stated in closing that the
15 jury should consider the question of “why there wasn’t a polygraph in this case. There
16 wasn’t. And [Defendant] testified he was ready to take —he had asked for a
17 polygraph, so that didn’t happen. Would that have been helpful? Probably.”
18 DOUBLE JEOPARDY
19 Defendant argues that (1) his convictions of two counts of CSCM violated
9 1 double jeopardy protections because the conduct that was the basis for both counts
2 arose out of a single continuous incident, and (2) his convictions for CDM and CSCM
3 violated double jeopardy protections because the basis of both charges arose out of a
4 single continuous incident. In determining whether a defendant’s double jeopardy
5 rights were violated, we apply a de novo standard of review. State v. Bernal, 2006-
6 NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.
7 In addressing Defendant’s argument that his convictions for CSCM and CDM
8 violate double jeopardy, we apply a two-part test: (1) we examine whether the
9 conduct was unitary, meaning that the same criminal conduct is the basis for both
10 charges, and (2) if the conduct is unitary, we examine whether the Legislature
11 intended multiple punishments for unitary conduct by examining whether the elements
12 of one statute are subsumed by the other. Swafford v. State, 112 N.M. 3, 13-14, 810
13 P.2d 1223, 1233-34 (1991).
14 In State v. Trevino, 116 N.M. 528, 534, 865 P.2d 1172, 1178 (1993), our
15 Supreme Court addressed whether convictions for CSCM and CDM violate the test
16 enunciated in Swafford. It held that even if the conduct that served the basis for the
17 CSCM and CDM convictions was unitary, separate convictions for CDM and CSCM
18 do not violate double jeopardy because each charge requires proof of an element that
19 the other does not. Trevino, 116 N.M. at 534, 865 P.2d at 1178. Indeed, the jury in
10 1 the present case was instructed that the elements the State had to prove for conviction
2 of CSCM were that (1) Defendant touched or applied force to the groin or genital area
3 of the victim, (2) the victim was 12 years of age or younger, and (3) Defendant’s act
4 was unlawful. Further, the jury was instructed that the elements the State had to prove
5 for conviction of CDM were that (1) Defendant exposed his penis to the victim, (2)
6 this caused or encouraged the victim to conduct herself in a manner injurious to her
7 morals, health, or welfare, and (3) the victim was under the age of 18. As the CDM
8 conviction did not require the application of an unlawful touch, and the CSCM
9 conviction did not require that the State prove that the actions caused or encouraged
10 the victim to conduct herself in a manner injurious to her morals, health, or welfare,
11 the separate convictions did not violate double jeopardy, as each required a distinct
12 element.
13 In addressing Defendant’s argument that the two convictions for CSCM
14 violated double jeopardy, we examine whether Defendant’s acts that served the basis
15 for each conviction are unitary, meaning that they are not separated by a sufficient
16 indicia of distinctiveness. Bernal, 2006-NMSC-050, ¶ 14. Defendant concedes that
17 the basis of one conviction was for touching the victim in the car on the way to the gas
18 station and the second was for touching the victim at her grandmother’s home. Our
19 Supreme Court has identified a number of factors to apply in determining whether
11 1 conduct was unitary. See Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628
2 (1991) (directing courts to consider the (1) the temporal proximity between acts, (2)
3 the location or movement between acts, (3) the existence of an intervening event, (4)
4 the sequencing of the acts and in sexual abuse cases, whether the acts were to the same
5 orifice of the victim, (5) the defendant’s intention, and (6) the number of victims).
7 Using these factors as a guide, Defendant’s touch at the victim’s grandmother’s
8 home and the touch in the car on the way to the gas station have a sufficient indicia
9 of separateness for two convictions and are therefore not unitary. First, the acts were
10 separated by the time it took Defendant to invite the victim to go to the gas station and
11 get her into the vehicle. Second, each touch took place at a separate location. Third,
12 the acts were separated by the existence of intervening events, specifically Defendant
13 inviting victim to the gas station to get candy and getting the victim into his vehicle.
14 The cases Defendant relies upon are distinguishable. In State v. Segura, 2002-
15 NMCA-044, ¶¶ 1, 5, 132 N.M. 114, 45 P.3d 54, this Court reversed the defendant’s
16 convictions of two counts of CSCM for twice pulling the victim’s hand toward his
17 groin. The only separation between the acts was the victim pulling her hand away and
18 the defendant making sexually suggestive comments. Id. ¶ 4. Similarly, in State v.
19 Laguna, 1999-NMCA-152, ¶ 38, 128 N.M. 345, 992 P.2d 896, the basis for separate
12 1 CSCM convictions was evidence that the defendant rubbed the victim’s leg, moving
2 up toward his crotch several times “in a continual manner.” Noting that the touchings
3 occurred over a very short period of time and there were no intervening events, this
4 Court held that the defendant could only be convicted of one count of CSCM. Our
5 present case is therefore distinguishable by the time between the touchings, the
6 intervening events, and the different locations of the touchings that formed the basis
7 of the separate convictions.
8 SENTENCING ISSUES
9 Defendant argues that the district court erred by considering evidence of prior,
10 uncharged allegations that Defendant had previously touched children during the
11 sentencing hearing. Defendant maintains that the allegations of prior, uncharged
12 conduct were inadmissible pursuant to Rules 11-403 and 11-404(B) NMRA.
13 However, the rules of evidence do not apply in “sentencing by the court without a
14 jury.” Rule 11-1101(D)(2) NMRA. It was therefore proper for the district court to
15 consider the prior allegations during sentencing.
16 Defendant also asserts that the district court erred in denying his motion for
17 reconsideration, in which he asked the court to run his sentences concurrent instead
18 of consecutive. Though Defendant asserts that the district court violated his due
19 process rights in refusing to reconsider his sentence, he fails to cite authority
13 1 supporting his argument. We therefore will not consider this argument. See In re
2 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that when
3 a party cites no authority to support an argument, we may assume no such authority
4 exists); ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10,
5 125 N.M. 244, 959 P.2d 969 (stating that this Court will not consider propositions that
6 are unsupported by citation to authority).
7 CONCLUSION
8 For the foregoing reasons, we affirm.
9 IT IS SO ORDERED.
10 ________________________________ 11 JAMES J. WECHSLER, Judge
12 WE CONCUR:
13 __________________________________ 14 MICHAEL D. BUSTAMANTE, Judge
15 __________________________________ 16 ROBERT E. ROBLES, Judge