October 30, 2025- State of New Mexico v. Gonzalo Calderon, No. A-1-CA-41121

OCR transcription for search; preserved printed pages are authoritative

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico Filed 10/30/2025 7:18 AM
Filing Date: October 30, 2025
Mark Reynolds
No. A-1-CA-41121
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V.
GONZALO CALDERON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY George Eichwald, District Court Judge
Raúl Torrez, Attorney General Teresa Ryan, Assistant Solicitor General Santa Fe, NM
for Appellee
16 17 18 19 20
Rothstein Donatelli LLP Wouter Zwart Marc M. Lowry Albuquerque, NM
for Appellant
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

OPINION	1
YOHALEM, Judge.	2
{1} 	A jury found Defendant Gonzalo Calderon guilty of two counts of criminal	3
sexual penetration (CSP) in the second degree (child age 13-18) (force or coercion),	4
in violation of NMSA 1978, Section 30-9-11(E)(1) (2009). Defendant asks this	5
Court to reverse his convictions, arguing that (1) there is insufficient evidence of	6
Defendant’s use of “physical force” to cause or perpetrate the nonconsensual	7
penetration of Victim; (2) Section 30-9-11(E)(1) is unconstitutionally vague because	8
it does not provide fair warning that a person can be convicted of nonconsensual	9
sexual penetration of a child age thirteen to eighteen by “physical force,” when the	10
“physical force” used to perpetrate the penetration was no greater than that used in	11
consensual intercourse; and (3) the district court erred in admitting internet searches	12
extracted from Defendant’s cellphone using Cellebrite software because the State	13
failed to establish with expert testimony the scientific basis and reliability of the	14
Cellebrite software, or in the alternative, the searches were either irrelevant, under	15
Rule 11-401 NMRA, or unduly prejudicial, under Rule 11-403 NMRA. Because we	16
find all of these arguments to be without merit, we affirm Defendant’s convictions.	17
DISCUSSION	18
{2} 	We group the issues raised in this case concerning the construction of the term	19
“physical force” together, and then discuss the evidentiary issues concerning the	20

2
admission of internet searches downloaded from Defendant’s cellphone. We provide	1
the factual and procedural background relevant to each set of issues at the outset of	2
each discussion.	3
I. 	CSP Is Caused or Perpetrated by “Physical Force” When Any Degree of	4
Physical Force, However Minimal, Is Used to Penetrate an Unwilling	5
Victim	6
A. 	Background	7
{3} 	Seventeen-year-old Victim and Defendant’s teenage daughter (Daughter)	8
were best friends. Victim, who was living with her grandmother in Santa Fe, New	9
Mexico, visited Daughter, who lived in Rio Rancho, New Mexico, often. Victim	10
knew Defendant and Daughter’s mother well, had stayed overnight often at the	11
family’s home, and had gone camping with the family.	12
{4} 	Around three o’clock in the morning on November 17, 2019, after spending	13
an evening with her boyfriend, Victim arrived at Defendant’s home, where she had	14
made plans to spend the night with Daughter. The girls went to Daughter’s bedroom	15
and talked for about an hour before going to sleep. Victim slept on an air mattress,	16
which was on the floor next to the bed where Daughter slept.	17
{5} 	Victim testified that she was awakened by flashing lights and a clicking noise	18
that she described as sounding like a camera. She then felt Defendant massaging her	19
foot and her lower leg. Victim testified that she was frightened, and was trembling.	20
She described being in a state of shock, unable to move. Defendant removed the	21

3
blanket covering Victim. Apparently noticing that Victim was trembling, Defendant	1
asked if she was cold. She replied that she was.	2
{6} 	Defendant left the bedroom and returned with another blanket, which he put	3
over Victim. He then got under the blankets next to her on the air mattress and	4
proceeded to touch Victim’s legs, chest, and buttocks, before falling asleep with his	5
hand on Victim’s chest.	6
{7} 	After about fifteen minutes, Defendant woke up and left the room. He returned	7
a while later. Defendant did not say anything to Victim. This time, Defendant	8
removed the blanket covering Victim and pulled down Victim’s pants slowly. 1
9
Defendant lay down beside Victim and began to masturbate, rubbing himself against	10
her and touching Victim’s vaginal and anal areas with his fingers. Defendant touched	11
his penis against both Victim’s labia and anus. Victim described stiffening all her	12
muscles, trying to resist Defendant’s touch. Defendant continued this for ten to	13
fifteen minutes. Defendant then pulled up Victim’s pants, put a blanket over her, and	14
left the room.	15
{8} 	Defendant soon returned to the bedroom a fourth time, during which he	16
removed both Victim’s pants and underwear. Victim testified that Defendant	17
1 Victim testified that she was wearing underwear under her pants. Her
testimony is not clear about whether Defendant also removed her underwear during
this third encounter. During their fourth encounter, Victim testified both pants and
underwear were removed.

4
inserted his fingers into her “vaginal and anal area,” and touched her up her leg,	1
thighs, and hips. Victim felt him pressed against her, masturbating himself. Victim	2
stated that Defendant penetrated her labia with both his fingers and his penis. This	3
went on for ten to fifteen minutes. Defendant pulled up Victim’s pants, left the	4
bedroom, and did not return.	5
{9} 	Victim was awake the rest of the night. Daughter was in her bed, asleep, the	6
entire time. Victim left Defendant’s home early that morning and drove to her	7
grandmother’s house in Santa Fe. When she told her grandmother what had	8
happened, her grandmother called the police. The New Mexico State Police began	9
an investigation, led by a case agent who served as the primary investigator. 2
10
Defendant was charged with two counts of second degree CSP under Section 30-9-	11
11(E)(1): Count 1 for Defendant’s penetration of Victim’s vagina by a finger, and	12
Count 2 for Defendant’s penetration of Victim’s vulva by a penis.	13
{10} 	Section 30-9-11(E)(1) provides:	14
E. 	[CSP] 	in 	the 	second 	degree 	consists 	of 	all 	[CSP]	15
perpetrated:	16
(1) 	by the use of force or coercion3 on a child thirteen	17
to eighteen years of age. (Emphasis added.)	18
2 A Sexual Assault Nurse Examiner (SANE) nurse examined Victim. The
SANE exam revealed no physical injuries; however, DNA swabbed from Victim’s
labia revealed a DNA profile that matched Defendant’s.
3We italicize the statutory phrase force or coercion throughout the rest of this
opinion for ease of reading instead of using quotation marks.

5
{11} 	The case was tried in October 2022 with Victim testifying as described. After	1
the State presented its case in chief, Defendant made a motion for directed verdict,	2
claiming that there was a “complete lack of evidence” from which force or coercion	3
could be inferred. Defendant alleged that Victim did not testify to the use of either	4
physical force or coercion by Defendant. The district court denied Defendant’s	5
motion, concluding that the evidence was legally sufficient for the matter to go to	6
the jury.	7
{12} 	The jury was instructed that to convict Defendant of CSP in the second degree,	8
they must find, for Count 1:	9
1. 	[D]efendant caused the insertion, to any extent, of a finger into	10
the vagina of [Victim];	11
2. 	[D]efendant used physical force or physical violence;	12
3. 	[Victim] was at least [thirteen] but less than [eighteen] years old;	13
4. 	[D]efendant’s act was unlawful;	14
5. 	This happened in New Mexico on or about November 17, 2019.	15
The jury instructions for Count 2 were identical to the quoted instructions for Count	16
1, with the exception of the first paragraph, which stated, “[D]efendant caused the	17
insertion, to any extent, of a penis into the vulva of [Victim].” The jury was also	18
instructed 	that 	Defendant 	must 	have 	acted 	intentionally 	and 	that 	the 	word	19
“unlawful,” in paragraph four in the above-quoted instruction on the elements of the	20

6
offense, meant that the act “must have been done without consent and with the intent	1
to arouse or gratify sexual desire.”	2
{13} 	The jury convicted Defendant of both counts of second degree CSP, in	3
violation of Section 30-9-11(E)(1), finding both sexual penetration by fingers and	4
by penis; lack of consent by Victim; and the use of physical force or physical	5
violence.	6
B. 	Standard of Review	7
{14} 	Because Defendant’s challenge to the sufficiency of the evidence on appeal is	8
based 	on 	his 	construction 	of 	Section 	30-9-11(E)(1), 	and 	specifically 	on 	his	9
construction of the first statutory definition of force or coercion in NMSA 1978,	10
Section 30-9-10(A)(1) (2005)—which defines force or coercion as “the use of	11
physical force or physical violence”—we first address legislative intent as to the	12
meaning of the phrase “the use of physical force or physical violence.”	13
{15} 	Questions of statutory construction are issues of law that we review de novo.	14
State v. Holt, 2016-NMSC-011, ¶ 9, 368 P.3d 409. Only after reviewing the	15
construction of the statutory terms under a de novo standard, do we then proceed to	16
apply a substantial evidence standard of review to determine whether the verdict is	17
supported by sufficient evidence in the record. See State v. Chavez, 2009-NMSC-	18
035, ¶ 11, 146 N.M. 434, 211 P.3d 891.	19

7
{16} 	New Mexico’s principles of statutory construction instruct that we look first	1
to the text of the statute as “the primary, essential source of its meaning.” NMSA	2
1978, § 12-2A-19 (1997). “In interpreting statutes, we should read the entire statute	3
as a whole so that each provision may be considered in relation to every other part,”	4
in a way that facilitates the operation of the statute and the achievement of the	5
Legislature’s goals. N.M. Pharm. Ass’n v. State, 1987-NMSC-054, ¶ 8, 106 N.M.	6
73, 738 P.2d 1318. We must also consider the history and background of the statute,	7
attempting to discern the purpose the Legislature seeks to achieve. See State v. Smith,	8
2004-NMSC-032, ¶¶ 9-10, 136 N.M. 372, 98 P.3d 1022.	9
{17} 	We note at the outset that we have the benefit of guidance from precedent both	10
from our Supreme Court and this Court construing our CSP statutes. In State v.	11
Stevens, our Supreme Court undertook a comprehensive review of the history of	12
New Mexico’s CSP statutes, going back to the origin of the crime of rape in the	13
common law. 2014-NMSC-011, ¶¶ 24-41, 323 P.3d 901. Given the complex history	14
of the law of CSP, the Court emphasized the origins, legislative history, and	15
motiving purposes of the CSP statutes in ascertaining the meaning of statutory terms,	16
rather than focusing on the meaning of individual words. See id. ¶ 24 (noting that	17
our appellate courts “have struggled with trying to determine legislative intent by	18
simply parsing individual words and phrases of the [CSP] statute”). Stevens cautions	19
that looking solely to the plain meaning of the words used in our CSP statute is likely	20

8
to result in a construction “contrary to the spirit of the statute” and thus contrary to	1
the Legislature’s intent. Id. ¶ 15 (internal quotation marks and citation omitted).	2
C. 	Legislative Intent in Including “Physical Force or Physical Violence” as	3
One of the Definitions of Force or Coercion	4
{18} 	“[CSP]” is defined generally in Section 30-9-11(A):	5
A. 	[CSP] is the unlawful and intentional causing of a person	6
to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse	7
or the causing of penetration, to any extent and with any object, of the	8
genital or anal openings of another, whether or not there is any	9
emission.	10
{19} 	Section 30-9-11(E)(1) provides:	11
E. 	[CSP] 	in 	the 	second 	degree 	consists 	of 	all 	[CSP]	12
perpetrated:	13
(1) 	by the use of force or coercion on a child thirteen to	14
eighteen years of age.	15
{20} 	Force or coercion, as used throughout the CSP statute is defined in Section	16
30-9-10(A) to mean:	17
(1) 	the use of physical force or physical violence;	18
(2) 	the use of threats to use physical violence or physical force	19
against the victim or another when the victim believes that there is a	20
present ability to execute the threats;	21
(3) 	the 	use 	of 	threats, 	including 	threats 	of 	physical	22
punishment, kidnapping, extortion or retaliation directed against the	23
victim or another when the victim believes that there is an ability to	24
execute the threats;	25
(4) 	the perpetration 	of [CSP] or 	criminal 	sexual 	contact	26
[(CSC)] when the perpetrator knows or has reason to know that the	27

9
victim is unconscious, asleep or otherwise physically helpless or suffers	1
from 	a 	mental 	condition 	that 	renders 	the 	victim 	incapable 	of	2
understanding the nature or consequences of the act; or	3
(5) 	the perpetration of [CSP] or [CSC] by a psychotherapist	4
on [their] patient, with or without the patient’s consent, during the	5
course of psychotherapy or within a period of one year following the	6
termination of psychotherapy.	7
The CSP statute does not define either the phrase “physical force” or the word	8
“force.”	9
{21} 	Defendant’s statutory construction argument focuses narrowly on the plain	10
meaning of the phrase “the use of physical force,”4 the first of the five definitions of	11
force or coercion listed in Section 30-9-10(A), and even more narrowly on the	12
meaning of the word “force.” To bolster his argument that “physical force” must	13
mean force sufficient to overcome a victim’s resistance rather than merely the force	14
required for unwilling sexual penetration, Defendant turns to the various dictionary	15
definitions of the word “force,” settling on a definition of “force” as a “powerful and	16
violent action that compels someone to do something.” We note that the definitions	17
of “force” in Webster’s Third New International Dictionary focus not only on	18
4Neither party here has claimed that Defendant used “physical violence.” The
definition of force or coercion found in Section 30-9-10(A)(1)—by “the use of
physical force or physical violence”—separates “physical force” and “physical
violence” with the disjunctive word “or.” “As a rule of construction, the word ‘or’
should be given its normal disjunctive meaning unless the context of a statute
demands otherwise.” Elite Well Serv., LLC v. N.M. Tax. & Revenue Dep’t, 2023-
NMCA-041, ¶ 14, 531 P.3d 635 (internal quotation marks and citation omitted). We,
therefore, focus our discussion solely on the meaning of “physical force.”

10
powerful or violent actions but also include: “strength or power of any degree that	1
is exercised without justification or contrary to law upon a person or thing”	2
(emphasis added), and “any power or agency . . . that makes an individual follow a	3
will not his own.” Force, Webster’s Third New Int’l Dictionary 887 (Unabridged ed.	4
2002). Given the wide range of definitions of “force,” including definitions that do	5
not focus on the amount of force but rather on overcoming an individual’s will, we	6
do not find Defendant’s reliance on selected definitions persuasive authority for	7
Defendant’s argument that our Legislature intended to define the term narrowly to	8
include only violent or powerful force or exertion. Heeding our Supreme Court’s	9
admonition about the danger of attempting to construe our CSP statute by taking a	10
word or phrase out of context, see Stevens, 2014-NMSC-011, ¶ 24, we turn to the	11
history of the use of physical force in our CSP law.	12
{22} 	Originally, under the common law, and under New Mexico CSP statutes in	13
place until 1975, a conviction of rape could not be based on the woman’s5 testimony	14
that the intercourse was involuntary: evidence that the victim had physically resisted	15
the penetration and proof that “her resistance [was] forcibly overcome,” id. ¶ 27, was	16
required to establish as a matter of fact that a sexual act was involuntary. See R.	17
5Only rape of a woman was then criminal in New Mexico. Stevens, 2014-
NMSC-011, ¶ 28. New Mexico’s CSP statutes were made gender-neutral by our
Legislature in 1975. See 1975 N.M. Laws, ch. 109, § 2 (stating that CSP is the
“unlawful and intentional causing of a person . . . to engage in sexual intercourse”
(emphasis added)).

11
Bruce Washburn, Rape Law: The Need for Reform, 5 N.M. L. Rev. 279, 282 (1975)	1
(explaining that “[a]t one time the state was required to prove that the woman had	2
resisted to her utmost, regardless of the circumstances”). The requirement that the	3
victim physically resist to her utmost meant that obtaining a conviction of rape	4
required the state to show that the defendant had overcome the victim’s resistance	5
with violent or powerful physical force. Additionally, juries at the time were	6
reluctant to convict of rape unless the defendant was shown to have used violence.	7
See Kenneth A. Cobb & Nancy R. Schauer, Michigan’s Criminal Sexual Assault	8
Law, 8. U. Mich. J.L. Reform 217, 220 n.30 (1974).	9
{23} 	In 1975, however, New Mexico enacted the original version of our current	10
CSP statute, see 1975 N.M. Laws, ch. 109, guided by Michigan’s then-recently	11
enacted Criminal Sexual Conduct Act, see 1974 Mich. Pub. Acts 266; Stevens, 2014-	12
NMSC-011, ¶ 28. Michigan’s statutory reform of its previous rape law, removed the	13
presumption of consent by the victim along with the requirement that the prosecution	14
rebut that presumption by proving that the victim resisted in order to establish that	15
the sexual act was nonconsensual and unwilling or involuntary. See W. Patrick	16
Dreisig, Criminal Law—Sexual Offenses—A Critical Analysis of Michigan’s Sexual	17
Conduct Act, 23 Wayne L. Rev. 203, 208-9 (1976) (comparing prior version of	18
Michigan CSP statute with the 1975 version). The reforms adopted by Michigan and	19
twenty-eight other states arose in large part from the recognition that requiring a	20

12
victim to forcefully resist the perpetrator endangered the victim, subjecting them to	1
powerful or violent physical force in response to their physical resistance. See	2
Stevens, 2014-NMSC-011, ¶ 28 (citing Dreisig, supra, at 204 n.8). Victims who did	3
not resist were found to suffer serious injury far less frequently than those who	4
resisted. See Washburn, supra, at 284.	5
{24} 	New Mexico’s 1975 sexual penetration statute adopted this new approach to	6
CSP, punishing sexual penetration, defined as the invasion of bodily integrity of	7
another 	committed 	without 	the 	lawful 	consent 	of 	the 	victim; 	removed 	the	8
presumption of consent and the requirement for proof of resistance by the victim;6
9
and added a requirement that the nonconsensual sexual penetration be perpetrated	10
by force or coercion. Force or coercion was broadly defined by our Legislature to	11
include not only “the use of physical force or physical violence,” but also the “use	12
of threats,” either of force or of financial loss or defamation; knowledge that the	13
victim 	is 	“unconscious” 	or 	otherwise 	unable 	to 	understand 	the 	“nature 	or	14
consequences of the act”; or taking undue advantage of the victim based on a	15
position of authority. 1975 N.M. Laws, ch. 109, § 1(A)(1)-(4).	16
6The express statement that “[p]hysical or verbal resistance of the victim is
not an element of force or coercion,” was adopted by our Legislature in 1975, see
1975 N.M. Laws, ch. 109, § 1(A)(4), and remains in the statute today, see § 30-9-
10(A).

13
{25} 	It is evident from this history, and from the current CSP statute’s five	1
definitions of force or coercion in Section 30-9-10(A), which include not only	2
penetration by “the use of physical force,” but also by threats of force, threats of	3
retaliation, extortion, physical inability to consent, or use of a position of authority,	4
that force or coercion is conduct of the defendant that provides evidence of the	5
elements of lack of consent and involuntary penetration of the victim without	6
requiring resistance by the victim or physical violence by the defendant. Compelling	7
or inducing a person to have sex against their will is all that is required for all but	8
the highest degrees of the crime, where the Legislature relied on harm to the victim	9
to increase the degree of the crime and the punishment imposed. See § 30-9-11(D)	10
(stating that first degree CSP requires CSP be perpetrated either “on a child under	11
thirteen years of age” or “by the use of force or coercion that results in great bodily	12
harm or great mental anguish to the victim”).	13
{26} 	Each subsection of Section 30-9-11(E), second degree CSP, the crime at issue	14
here—requires lack of consent by the victim, either as a matter of law (if the victim	15
is underage or incompetent) or as a matter of fact (if the victim can lawfully consent),	16
and also requires that the penetration be caused, or “perpetrated,” by force or	17
coercion sufficient to show that the sexual act was involuntary. In other words, the	18
jury must find that the victim did not or could not legally consent and that force or	19
coercion was used to overcome the victim’s unwillingness to engage in the act of	20

14
penetration. See § 30-9-11(E)(1). It follows from the Legislature’s clear statement at	1
the conclusion of Section 30-9-10(A)’s list of definitions of force or coercion that	2
“[p]hysical or verbal resistance of the victim is not an element of force or coercion,”	3
that where physical force is the type of force or coercion used by the defendant, the	4
“physical force” required depends on the circumstances and can be minimal, even	5
no more than that required for consensual sex, so long as the jury finds that,	6
considering all of the circumstances, the victim did not consent and the penetration	7
was involuntary.	8
{27} 	Our conclusion that the “physical force” used to commit felony CSP need not	9
be violent or powerful is not new. This Court previously construed the term	10
“physical force” under our related CSC statute, NMSA 1978, § 30-9-12 (1993). See	11
State v. Huff, 1998-NMCA-075, ¶ 9, 125 N.M. 254, 960 P.2d 342. We stated that	12
“physical force,” like the other elements of CSC, “describe[s] the quality of [a	13
d]efendant’s actions, but do[es] not require a particular quantum of force . . .[; ‘t]he	14
issue is not how much force or violence is used, but whether the force or violence	15
was sufficient to negate consent.’” Id. ¶ 12 (quoting the committee commentary for	16
UJI 14-902 NMRA (CSC)). Commentators on the law of rape have agreed that under	17
modern CSP statutes like New Mexico’s, “[t]he existence of forcible compulsion in	18
a rape case does not depend on the quantum of force that is applied but rather on	19
whether the act is consummated against the victim’s will.” 65 Am. Jur. 2d Rape § 3	20

15
(2025). American Jurisprudence’s commentary specifically rejects Defendant’s	1
primary argument that the physical force used must be more than that used in	2
consensual sexual intercourse: “Physical force need only be sufficient to support a	3
finding that the sexual activity was against the victim’s will; it need not be	4
substantially different or substantially greater than the force inherent in consensual	5
sexual activity.” Id. Our Supreme Court has repeatedly agreed. See State v. Martinez,	6
2021-NMSC-012, ¶ 21, 483 P.3d 590 (concluding that “the use of force or coercion	7
is inherent in the sexual penetration of a victim who is unable to consent” (emphasis	8
added)); see also State v. Apodaca, 2025-NMSC-015, ¶ 37, 572 P.3d 913 (noting	9
that “[t]he physical force or physical violence alternative of force or coercion does	10
not require the [s]tate to prove that a significant amount of strength or exertion was	11
used to perpetrate the sexual penetration; force or coercion simply means that the	12
victim did not consent”).	13
{28} 	It 	flows 	from 	our 	Legislature’s 	focus 	on 	nonconsensual, 	involuntary	14
submission to a sex act forced or compelled by a defendant’s conduct, that, where a	15
victim is a seventeen-year-old child who is initially asleep, then freezes and does not	16
physically or verbally resist out of fear, the jury reasonably can find that sexual	17
penetration, perpetrated with no more force than that used in consensual sexual	18
activity, was nonconsensual and involuntary, and, amounted to second degree CSP	19
under Section 30-9-11(E)(1).	20

16
{29} 	With this framework in mind, we review the record to determine whether	1
sufficient evidence supports the jury’s determination that Defendant perpetrated	2
CSP by the use of force or coercion, in this case specifically by the use of “physical	3
force.”	4
D. 	Sufficiency of the Evidence	5
{30} 	Defendant does not question the sufficiency of the evidence to support the	6
following findings by the jury: (1) Victim was seventeen years old at the time of the	7
offense, satisfying the statutory requirement that the victim be more than thirteen,	8
but less than eighteen years old; (2) Victim was legally capable of consent; (3)	9
Defendant penetrated Victim’s labia once with his penis and her vagina once with	10
his fingers; and (4) Defendant’s acts were unlawful (defined for the jury as without	11
Victim’s consent). The sole finding of fact made by the jury that Defendant contends	12
is without sufficient support in the evidence is the finding that “[Defendant] used	13
physical force.” We therefore focus solely on that finding.	14
{31} 	In reviewing for sufficiency of the evidence on appeal, we determine “whether	15
substantial evidence of either a direct or circumstantial nature exists to support a	16
verdict of guilt beyond a reasonable doubt with respect to every element essential to	17
a conviction.” State v. Baroz, 2017-NMSC-030, ¶ 9, 404 P.3d 769 (internal quotation	18
marks and citation omitted). “Substantial evidence is relevant evidence that a	19
reasonable mind might accept as adequate to support a conclusion.” Id. (internal	20

17
quotation marks and citation omitted). “In reviewing whether there was sufficient	1
evidence to support a conviction, we resolve all disputed facts in favor of the [s]tate,	2
indulge all reasonable inferences in support of the verdict, and disregard all evidence	3
and inferences to the contrary.” Id. We will “not weigh the evidence or substitute	4
our judgment for that of the fact[-]finder so long as there is sufficient evidence to	5
support the verdict.” See State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056	6
(alterations, internal quotation marks, and citation omitted).	7
{32} 	We measure the sufficiency of the evidence to establish sexual penetration by	8
“the use of physical force,” based on the broad meaning of the term “physical force,”	9
which includes the entire range of physical force from powerful to minimal, leaving	10
it up to the jury to determine whether the penetration of the victim was caused or	11
perpetrated involuntarily by the use of force, rather than with consent. When the	12
correct meaning of the term “physical force” is applied, it is readily apparent that the	13
jury’s finding that “[Defendant] used physical force” is supported by substantial	14
evidence in the record at trial.	15
{33} 	Victim testified that Defendant entered Daughter’s bedroom, where Victim	16
and Daughter were sleeping, around 4:00 a.m. Victim was awakened by seeing	17
flashes and hearing a camera-like clicking. Defendant then started rubbing her legs	18
and her feet. Defendant left Victim’s bedroom and returned multiple times. Each	19
time he left and returned, he intruded further on Victim’s bodily integrity. The last	20

18
time he visited the bedroom where Victim was sleeping, Victim testified that	1
Defendant removed the blanket covering her, pulled down her pants, including her	2
underpants, and penetrated her genitals with his finger and then with his penis.	3
Victim testified that she was so frozen in fear that she was unable to move. She	4
described tightening all her muscles and holding herself rigid to try to prevent	5
Defendant from penetrating her. Victim was adamant that she did not consent, that	6
the two penetrations were against her will, and were forced upon her by Defendant.	7
{34} 	This evidence is more than sufficient to support the jury’s finding that	8
Defendant penetrated Victim involuntarily, against her will, and therefore by the use	9
of “physical force.”7 We will not disturb the jury’s finding that Victim testified	10
credibly, that she did not consent, and that the sex act was perpetrated against her	11
will, and therefore by force. See State v. Nichols, 2006-NMCA-017, ¶ 9, 139 N.M.	12
72, 128 P.3d 500 (“[W]e do not substitute our judgment for that of the fact[-]finder	13
7Our conclusion is consistent with our holdings in Huff, 1998-NMCA-075 and
State v. Perea, 2008-NMCA-147, 145 N.M 123, 194 P.3d 738. We are not persuaded
by Defendant’s argument that the amount of physical force used in Huff and Perea
set a higher threshold for the use of force, which must be met in every case. Huff and
Perea simply find that there was sufficient evidence in those cases under the
particular facts and circumstances before the jury to support each jury’s finding that
the penetration was nonconsensual and perpetrated by physical force. See Huff,
1998-NMCA-075, ¶ 12 (holding that “physical force” under our CSP statute “do[es]
not require a particular quantum of force . . . [; t]he issue is not how much force or
violence is used, but whether the force or violence was sufficient to negate consent”).

19
concerning the credibility of witnesses or the weight to be given their testimony.”	1
(internal quotation marks and citation omitted)).	2
E. 	Section 30-9-11(E)(1) is Not Unconstitutionally Vague	3
{35} 	We 	next 	address 	Defendant’s 	argument 	that 	Section 	30-9-11(E)(1) 	is	4
unconstitutionally vague, in violation of the Due Process Clauses of both the United	5
States and New Mexico Constitutions. Defendant contends that our CSP criminal	6
statute does not define the degree of physical force proscribed by Section 30-9-	7
11(E)(1) with sufficient clarity to put a person of ordinary intelligence on notice that	8
“physical force or physical violence” does not require violent or powerful physical	9
force, such as “[g]rabbing, pushing, punching, choking, or pinning someone down	10
to have sex.”8
11
{36} 	“We review a vagueness challenge de novo in light of the facts of the case and	12
the conduct which is prohibited by the statute.” State v. Anderson, 2021-NMCA-	13
031, ¶ 8, 493 P.3d 434 (internal quotation marks and citation omitted). “We apply a	14
two-part test for vagueness, considering whether the statute (1) fails to provide	15
persons of ordinary intelligence using ordinary common sense a fair opportunity to	16
determine whether their conduct is prohibited, or (2) fails to create minimum	17
8Defendant preserved his void-for-vagueness claim by filing his motion for
judgment notwithstanding the verdict, raising the same issue he now argues on
appeal. We note, however, that “we review void-for-vagueness constitutional claims
even when they are not preserved below.” State v. Chavez, 2019-NMCA-068, ¶ 11,
451 P.3d 115.

20
guidelines for enforcement and thus encourages subjective and ad hoc application of	1
the law.” Id. (internal quotation marks and citation omitted). “Our case law requires	2
that we exercise the strong presumption of constitutionality that underlies each	3
legislative enactment, and hold the party challenging constitutionality to its burden	4
of proving the statute is unconstitutional beyond all reasonable doubt.” Id. (text only)	5
(citation omitted). “Appellate courts have a duty to construe a statute in such a	6
manner that it is not void for vagueness if a reasonable and practical construction	7
can be given to its language.” Id. (internal quotation marks and citation omitted).	8
{37} 	Generally, we review a void-for-vagueness challenge “in light of the facts of	9
each particular case.” State v. Luckie, 1995-NMCA-075, ¶ 6, 120 N.M. 274, 901	10
P.2d 205. Given the facts described above, we are not persuaded that our CSP statute	11
is so vague and unclear that a person of ordinary intelligence would not understand	12
that forcing a nonconsenting seventeen-year-old child to engage in a sexual act	13
against her will is a felony, even if violence is not used to perpetrate the penetration.	14
{38} 	Furthermore, a statute is not vague simply because a term is not specifically	15
defined by the Legislature. See State v. Segotta, 1983-NMSC-092, ¶ 8, 100 N.M.	16
498, 672 P.2d 1129 (“Although the phrase is not defined in the legislative act, that	17
failure does not render the statute unconstitutionally va[gu]e.” (internal quotation	18
marks and citation omitted)). The change in our CSP statute in 1975, from requiring	19
the victim to physically resist, making the violence necessary to overcome that	20

21
resistance an implicit element of the crime, to focusing on whether the penetration	1
was perpetrated on a nonconsenting victim by the use of any degree of force or by	2
coercion, was the subject of widespread public discussion over many years. Fifty	3
years have passed since our Legislature adopted our current approach to CSP. In	4
addition, our Supreme Court and this Court have both addressed the meaning of the	5
phrase force or coercion in precedential opinions, explaining consistently that force	6
or coercion is inherent in sexual penetration that is nonconsensual. See Huff, 1998-	7
NMCA-075, ¶ 12 (“The issue is not how much force or violence is used, but whether	8
the force or violence was sufficient to negate consent.”); Apodaca, 2025-NMSC-	9
015, ¶ 37 (“The physical force or physical violence alternative of force or coercion	10
does not require the [s]tate to prove that a significant amount of strength or exertion	11
was used to perpetrate the sexual penetration; force or coercion simply means that	12
the victim did not consent.”).	13
{39} 	Contrary to Defendant’s argument, the language of our CSP statute does not	14
suggest that physical violence such as “[g]rabbing, pushing, punching, choking, or	15
pinning someone down to have sex” is an element of the second degree felony CSP	16
charged in this case. The use of physical force that causes physical harm to the victim	17
provides a separate basis for increasing the punishment for CSP. Compare § 30-9-	18
11(E)(1) (second degree CSP, requiring no bodily harm to victim), with § 30-9-	19

22
11(D)(2) (relying on “great bodily harm” as a means of elevating the crime to a first	1
degree felony).	2
{40} 	Defendant’s understanding of CSP to require that a defendant “apply physical	3
strength or violence in any way to overwhelm [Victim’s] physical resistance and	4
‘force’ her to have sex,” and his statement in his reply brief that “physical resistance	5
is relevant to whether any force was used,” is inconsistent with Section 30-9-10(A)’s	6
clear statement that neither physical nor verbal resistance of the victim are an	7
element of force or coercion, as well as with longstanding precedent from our	8
appellate courts explaining that “the issue is not how much force the defendant used	9
or whether the victim resisted physically or verbally,” see State v. Perea, 2008-	10
NMCA-147, ¶ 12, 145 N.M. 123, 194 P.3d 738, but just that force or coercion was	11
used, rather than the sexual act being engaged in voluntarily, with the victim’s	12
consent, see Huff, 1998-NMCA-075, ¶ 12. The ordinary person, using common	13
sense, would understand from both the statute and this precedent that the distinction	14
between CSP and ordinary noncriminal sexual intercourse is not the amount of force	15
used, but whether the sex act is consensual. See State v. Marquez, 2016-NMSC-025,	16
¶ 20, 376 P.3d 815 (“The felonious purpose of CSP . . . can be described as the	17
imposition of sexual activity on those who are not willing participants in fact or in	18
law.” (internal quotation marks and citation omitted)).	19

23
{41} 	In his briefs on appeal, Defendant also claims that the CSP law is vague	1
because a person of ordinary intelligence “faces the impossible task of determining	2
what type of ‘force’ each degree of CSP prohibits.” We are not persuaded by	3
Defendant’s assertion that the “type of force” prohibited varies with the degree of	4
CSP charged. Rather, in every instance where penetration “by the use of physical	5
force” is charged, that phrase has a uniform meaning. How much force is sufficient	6
to cause penetration without the consent of the victim, and against the victim’s will,	7
depends on the circumstances, not on the degree of the crime as Defendant claims.	8
If the victim is unconscious or, as in this case, awakened from sleep and frozen in	9
fear, the degree of force used may be no more than that normally required to achieve	10
penetration in consensual sex.	11
{42} 	Finally, Defendant points to confusion about what he claims is overlap	12
between the elements of statutory rape, see § 30-9-11(G)(1), a fourth degree felony,	13
and Section 30-9-11(E)(1), a second degree felony, claiming that these crimes can	14
be charged interchangeably by the prosecution (a consideration in the vagueness	15
analysis) if Section 30-9-11(E)(1) is not distinguished by the defendant’s use of	16
violent force. Defendant’s focus is on victims aged thirteen to sixteen, who are	17
protected by both statutes. Defendant’s argument ignores the essential difference	18
between statutory rape of a child between the age of thirteen and sixteen, see § 30-	19
9-11(G)(1), and second degree CSP when that crime is committed against a child	20

24
between the age of thirteen and sixteen, § 30-9-11(E). Under second degree CSP,	1
the Legislature added to Section 30-9-11(E)(1) the requirement that the defendant	2
use force or coercion. Although both second degree CSP and fourth degree CSP	3
overlap regarding victims age thirteen to sixteen, the two crimes are distinguished	4
by whether the child willingly participates. Our Legislature has made sexual	5
penetration of a child under the age of sixteen—someone who cannot consent as a	6
matter of law—a fourth degree felony if evidence shows that the child voluntarily	7
participates. See § 30-9-11(G)(1). If, however, a defendant engages in sexual	8
intercourse with a child age thirteen to sixteen who does not voluntarily participate,	9
necessarily using force or coercion, the degree of the crime is increased to a second	10
degree felony. See § 30-9-11(E)(1). There is nothing “nonsensical” about the	11
Legislature’s decision to punish statutory rape of a child between the ages of thirteen	12
and sixteen, accomplished against the will of the child, more severely than sexual	13
penetration with the child’s agreement.	14
{43} 	Defendant has failed to persuade this Court that an ordinary person of	15
common intelligence did not have fair warning from both statutory language and	16
case precedent that his conduct in this case was a crime, punishable as a felony, or	17
that there is any overlap in the definition of each crime. We, therefore, reject	18
Defendant’s vagueness challenge to Section 30-9-11(E)(1).	19

25
II. 	The District Court Did Not Err in Admitting the Internet Search History	1
Extracted From Defendant’s Cellphone	2
{44} 	Defendant challenges the admission of evidence of the dates, times, and	3
contents of internet searches extracted from his cellphone on two grounds. First,	4
Defendant argues that the State was required to establish a foundation for the	5
admission of the downloaded data by having a qualified expert in computer	6
technology explain how the Cellebrite software works and establish its reliability	7
before the downloaded internet searches could be admitted into evidence. We	8
conclude that the district court did not abuse its discretion by admitting the cellphone	9
data under Rule 11-702 NMRA because the Cellebrite software has been generally	10
accepted as reliable and, therefore, the court need not conduct a reliability hearing	11
in every proceeding where that technology is used.	12
{45} 	Second, Defendant challenges the admission of the content downloaded from	13
his cellphone as irrelevant, under Rule 11-401, or unduly prejudicial, under Rule 11-	14
403. The Cellebrite report admitted into evidence showed that Defendant searched a	15
pornographic website for “[s]leeping teens ass penetrated” a few hours after the	16
assault on Victim, and searched for “New Mexico State Investigations people list”	17
and “[h]ow long does it take for a rape investigation,” along with other related topics,	18
on December 10, 2019, before being informed that Victim had accused him of CSP	19
and that law enforcement was investigating. Because Defendant did not timely	20

26
object on the grounds of relevance and undue prejudice argued on appeal, we review	1
for plain error and conclude that reversal is not required.	2
{46} 	After explaining the relevant factual background of the Cellebrite search, we	3
address each of Defendant’s arguments in turn.	4
A. 	Background	5
{47} 	In early December 2019 the agent assigned to lead the investigation into	6
Victim’s sexual assault allegations obtained a search warrant for Defendant’s	7
cellphone. Before contacting Defendant about Victim’s allegations, the agent went	8
to Defendant’s house on December 10, 2019, to execute the warrant. When no one	9
answered the door, the agent left his card with a note asking Defendant to contact	10
him, without including any information about the reason for the contact.	11
{48} 	Law 	enforcement 	successfully 	executed 	the 	search 	warrant 	and 	took	12
Defendant’s cellphone into custody the next day, the afternoon of December 11,	13
2019, during a traffic stop. The agent interviewed Defendant at that time and	14
explained the nature of the investigation. The State introduced a videotape of that	15
interview into evidence at trial. During the interview, Defendant admitted that he	16
had approached Victim during a family camping trip and asked her whether she	17
would date him, and that she had told him no. He claimed that nothing had happened	18
the night of the alleged sexual assault: he had simply covered Victim with a blanket	19
because she was cold and returned to his own bed.	20

27
{49} 	The case agent testified at trial that he used a commercial computer software	1
program called Cellebrite to extract and read the data on Defendant’s cellphone. The	2
search warrant authorized the agent to examine and copy pictures, text messages,	3
and call logs from Defendant’s cellphone from the day of the camping trip to the day	4
of the sexual assault. Following that search, the agent obtained an amended search	5
warrant a few days later allowing him to examine Defendant’s search history.	6
{50} 	Using Cellebrite software, the agent prepared an extraction report listing, in	7
readable form, the internet searches on Defendant’s cellphone that had been	8
downloaded by the program. The report showed that Defendant had used his	9
cellphone to search a pornographic website for the phrase “[s]leeping teens ass	10
penetrated” on November 17, 2019, later on the day the charged crimes occurred. In	11
addition, the Cellebrite report showed that the following six searches were made on	12
December 10, 2019, the day before the warrant was served:	13
1. 	New Mexico State Police Investigations people list[;]	14
2. 	New Mexico State Investigations people list[;]	15
3. 	Criminal Investigation Section/NMSU Police Department, New	16
Mexico State University[;]	17
4. 	New Mexico State Investigations[;]	18
5. 	What to expect from criminal justice system[;]	19
6. 	How long does it take for a rape investigation.	20
{51} 	Prior to trial, Defendant filed a motion in limine to exclude the agent’s	21
testimony both about the procedure employed to extract the data from his cellphone	22
and about the downloaded content, claiming that the State was required by Rule 11-	23

28
702 to present the testimony of a qualified computer technology expert to explain	1
how the Cellebrite software worked and to offer scientific evidence of the program’s	2
reliability before the cellphone searches could be admitted into evidence. In addition	3
to arguing that the cellphone searches were inadmissible under Rule 11-702,	4
Defendant also claimed that the searches were irrelevant under Rule 11-401 because	5
their reliability had not been established. Finally, in an amended motion in limine	6
filed just before trial began, Defendant argued that his search for “[s]leeping teens	7
ass penetrated,” was unfairly prejudicial under Rule 11-403 because he was not	8
accused of anal sex with Victim.	9
{52} 	The morning of trial, the district court heard argument on Defendant’s	10
motions in limine. The district court denied the relevant motions, noting that the	11
question of admissibility would depend upon the evidence introduced at trial and	12
reserving any ruling.	13
{53} 	At trial, the agent was the only witness called by the State concerning the data	14
downloaded from Defendant’s cellphone. The agent testified that he had been trained	15
to use Cellebrite to extract cellphone data, and had used it close to forty times in his	16
job as a law enforcement officer. He testified that Cellebrite is programmed to detect	17
any problem downloading the data, and requires the user to restart the extraction	18
process from the beginning if a problem is detected. According to the agent, the	19

29
program appeared to function correctly when he extracted the data from Defendant’s	1
cellphone.	2
{54} 	Defendant timely objected two times to testimony about the nature of	3
Defendant’s internet searches, and was then allowed a continuing objection by the	4
court. Defendant’s objections renewed his pretrial argument that under Rule 11-702	5
expert testimony concerning Cellebrite’s scientific reliability was needed to lay a	6
foundation for the admission of Defendant’s internet searches. The district court	7
overruled these objections and admitted both the Cellebrite report and the agent’s	8
testimony about Defendant’s internet searches into evidence. Defendant made no	9
objection at trial under either Rule 11-401 or Rule 11-403.	10
B. 	Expert 	Testimony 	Was 	Not 	Required 	to 	Establish 	the 	Scientific	11
Reliability of Cellebrite Software	12
{55} 	Defendant argues on appeal that the evidence downloaded from his cellphone	13
was inadmissible without the testimony of a qualified scientific expert to establish	14
its scientific reliability. When an argument is preserved by timely objection, as it	15
was here, we review the admission of scientific evidence for an abuse of discretion.	16
See State v. Fuentes, 2010-NMCA-027, ¶ 22, 147 N.M. 761, 228 P.3d 1181 (“[T]he	17
rule in this [s]tate has consistently been that the admission of expert testimony or	18
other scientific evidence is peculiarly within the sound discretion of the [district]	19
court and will not be reversed absent a showing of abuse of that discretion.” (internal	20
quotation marks and citation omitted)). A trial court abuses its discretion if its	21

30
decision is manifestly erroneous, arbitrary, unwarranted, or is “clearly against the	1
logic and effect of the facts and circumstances before the court.” State v. Alberico,	2
1993-NMSC-047, ¶¶ 58, 63, 116 N.M. 156, 861 P.2d 192.	3
{56} 	Rule 11-702, our evidentiary rule governing admission of expert testimony,	4
imposes a requirement on the trial court to act as a gatekeeper, determining whether	5
scientific evidence is both sufficiently reliable, and sufficiently relevant to help the	6
jury reach accurate results. Fuentes, 2010-NMCA-027, ¶ 23. A hearing outside the	7
presence of the jury is often required to enable the court to ensure that the three	8
prerequisites for the admission of technical or scientific testimony are met: (1) the	9
expert is qualified; (2) the testimony proffered will assist the trier of fact; and (3) the	10
testimony concerns scientific, technical, or other specialized knowledge with a	11
reliable basis. Id. The third factor is the sole factor at issue here.	12
{57} 	New Mexico courts generally evaluate the reliability of scientific data by	13
considering the factors set forth in the United States Supreme Court’s opinion in	14
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), factors	15
adopted by our Supreme Court in Alberico, 1993-NMSC-047, ¶ 51. These factors	16
include an analysis of whether the technique is grounded in traditional scientific	17
principles and whether there are studies addressing the validity and reliability of the	18
technique and assessing the rate of error. Id.	19

31
{58} 	Although 	the 	reliability 	of 	unusual 	or 	complex 	scientific 	testimony 	is	1
evaluated with a hearing on the reliability of the expert’s methodology, both the	2
United States Supreme Court and our appellate courts have recognized that “‘in	3
ordinary cases where the reliability of an expert’s methods is properly taken for	4
granted,’” the reliability requirement may be met without “‘unnecessary reliability	5
proceedings.’” See Fuentes, 2010-NMCA-027, ¶ 26 (quoting Kumho Tire Co. v.	6
Carmichael, 526 U.S. 137, 152 (1999)). Kumho provides that a trial court retains	7
“discretionary authority needed both to avoid unnecessary ‘reliability’ proceedings	8
in ordinary cases where the reliability . . . is properly taken for granted, and to require	9
appropriate proceedings in the less usual or more complex cases where cause for	10
questioning . . . reliability arises.” Id.	11
{59} 	In determining whether, in a particular case, the reliability of the science could	12
properly be taken for granted without expert testimony, this Court looks to whether	13
the reliability of the science in question has long been accepted and, in particular,	14
whether other federal or state courts have admitted the scientific evidence at issue	15
without requiring a reliability hearing. See Fuentes, 2010-NMCA-027, ¶¶ 25-27	16
(relying on the longstanding acceptance of analysis of markings on bullets to identify	17
the gun from which the bullet was fired, and federal case law admitting this evidence	18
without expert testimony establishing its reliability). Fuentes held that where there	19
is long use and acceptance by law enforcement and the public in New Mexico, and	20

32
widespread acceptance by courts around the country, the trial court does not abuse	1
its discretion in concluding that such evidence is generally accepted. Id. Fuentes	2
holds that if a defendant believes that there is cause for questioning the reliability of	3
the science or technology despite its general acceptance, the burden is on the	4
defendant to support the request for a reliability hearing with a showing that there is	5
some reason to doubt the reliability of that science or technology. See id. ¶ 28 (stating	6
that the burden is on the defendant to “make an affirmative showing that there is	7
some reason to doubt the reliability of that science before a district court is obligated	8
to require a reliability hearing”).	9
{60} 	Although our appellate courts have not yet considered whether the reliability	10
of data extracted from a cellphone using the Cellebrite software can, in the usual	11
case, be taken for granted, other states and many federal appellate courts have	12
admitted Cellebrite downloads in relatively uncomplicated criminal cases without	13
conducting a reliability hearing. In its opinion in Wright v. State, 618 S.W.3d 887,	14
893 (Tex. App. 2021), for example, the Texas Court of Appeals found that no expert	15
testimony is required to provide a reliability predicate for the use of Cellebrite	16
software because software programs for downloading data are commonly used and	17
well understood by the public and the courts. The Texas court found that there was	18
little danger that jurors would be misled by testimony about the use of this well-	19
known type of software. Id. The court relied on Texas law, which, like New Mexico	20

33
law, acknowledges that “matters of common knowledge can be recognized without	1
a prior determination of reliability.” Id. (internal quotation marks and citation	2
omitted).	3
{61} 	The Supreme Judicial Court of Massachusetts similarly relied on the extensive	4
experience of the public with programs like Cellebrite that download and transfer	5
data from one computer system to another to find that it is common knowledge that	6
these programs can be relied on to accurately copy data onto another device. See	7
Commonwealth v. Caruso, 67 N.E.3d 1203, 1218 (Mass. 2017). There, the defendant	8
challenged the reliability of evidence pertaining to electronic files that the police	9
obtained pursuant to searches of the defendant’s computer showing (1) “dates upon	10
which certain files on the computer were last accessed; and (2) still images of files	11
displayed on the computer monitor (screen[]shots).” Id. The court concluded that a	12
jury “may rely on their own common sense and life experience in their role as	13
fact[-]finders” to determine the reliability of the technology because such technology	14
is “commonly and reasonably relied on.” Id. Further, the Massachusetts court found	15
the defendant had presented no evidence questioning the reliability of the program,	16
and that, therefore, the police officer’s testimony was sufficient to establish the	17
foundation for admission of the downloaded data. Id. at 1219.	18
{62} 	The federal circuit courts of appeals that have addressed the reliability of the	19
Cellebrite program have also admitted the data downloaded by the program without	20

34
a reliability hearing. In its opinion in United States v. Williams, the Court of Appeals	1
for the Fifth Circuit surveyed the federal court decisions. 83 F.4th 994, 996-98 (5th	2
Cir. 2023). The court in Williams concluded that, without exception, “[e]very circuit	3
that has addressed this question,” going back to 2014, found that “the mere use and	4
understanding of a Cellebrite extract at trial,” id. at 997-98, does not require expert	5
testimony for its admission. See also United States v. Jimenez-Chaidez, 96 F.4th	6
1257, 1269 (9th Cir. 2024) (concluding in a Ninth Circuit case decided after	7
Williams that the use of programs like Cellebrite for downloading data from one	8
device so it can be read on another device to be so common that such programs are	9
readily understandable by a jury without expert opinions “about the software’s	10
technical processes or reliability”).	11
{63} 	Here, Defendant presented no particular reason either to the district court, or	12
now on appeal, to doubt the reliability of the Cellebrite software. Given the	13
widespread 	acceptance 	of 	Cellebrite 	software 	(and 	similar 	data 	transferring	14
platforms) 	by 	state 	and 	federal 	courts, in 	addition 	to 	the agent’s 	testimony	15
establishing his training and use of the program in extracting the data from	16
Defendant’s cellphone, we conclude that the district court did not abuse its discretion	17
in admitting Defendant’s downloaded internet searches without requiring expert	18
testimony to establish the reliability of the Cellebrite software.	19

35
C. 	The Admission of Defendant’s Internet Searches Was Not Plain Error	1
{64} 	In addition to his challenge under Rule 11-702, Defendant also challenges the	2
admission of the internet searches extracted from his cellphone under Rules 11-401	3
and 11-403, claiming that both his November 17, 2019 internet search on the date of	4
the sexual assault, and his six internet searches on December 10, 2019, are irrelevant	5
or, if relevant, unfairly prejudicial.	6
{65} 	The State claims that Defendant failed to preserve an objection to the	7
admission of this evidence under either Rule 11-401 or Rule 11-403. Our review of	8
the record shows that Defendant’s sole objection to the admission of his December	9
10, 2019 internet search history, regarding investigations of rape in New Mexico	10
was his expert testimony objection under Rule 11-702. The relevance and unfair	11
prejudice objections raised on appeal were not preserved. Although Defendant did	12
object to the admission of his “[s]leeping teens ass penetrated” search in his second	13
motion in limine, citing Rule 11-403, Defendant failed to renew this objection at	14
trial. Our Supreme Court has held, “[b]y their very nature, motions in limine do not	15
sufficiently preserve an issue because the rulings on them are subject to change,	16
depending on the nature of the relevant evidence at trial.” State v. Carrillo, 2017-	17
NMSC-023, ¶ 23, 399 P.3d 367. Thus, by not objecting at trial, Defendant failed to	18
preserve his Rule 11-401 and Rule 11-403 objections, whether they were raised at	19
the motion in limine stage or not.	20

36
{66} 	Recognizing that his relevance and undue prejudice arguments may not be	1
preserved, Defendant asks this Court to review the admission of his internet searches	2
for plain error. “A court may take notice of a plain error affecting a substantial right,	3
even if the claim of error was not properly preserved.” Rule 11-103(E) NMRA. We	4
will reverse for plain error only where we find that there is “(1) error, that is (2)	5
plain, and (3) that affects substantial rights.” State v. Hill, 2008-NMCA-117, ¶ 21,	6
144 N.M. 775, 192 P.3d 770 (internal quotation marks and citation omitted). To	7
reverse a conviction under the plain error doctrine, “this Court must be convinced	8
that admission of the testimony constituted an injustice that creates grave doubts	9
concerning the validity of the verdict.” Id. (internal quotation marks and citation	10
omitted).	11
{67} 	Our plain error review requires us first to determine whether there was	12
obvious error in admitting the evidence. See id. ¶ 21. We begin with the admission	13
of Defendant’s December 10, 2019, internet searches for information about rape	14
investigations in New Mexico. Defendant alleges that this evidence is not relevant	15
to any issue. Rule 11-401(A) defines “relevant evidence” as evidence having “any	16
tendency to make a fact more or less probable than it would be without the	17
evidence.” We are not persuaded that there was obvious error in admitting this	18
evidence as relevant to Defendant’s defense, which was that he never engaged in	19
sexual contact with Victim. His search for rape investigations in New Mexico prior	20

37
to being told that he was being investigated for the rape of Victim shows a	1
consciousness of guilt that is inconsistent with his defense. The fact that Defendant	2
argued that there were other reasons he searched for information about rape or that	3
he might have heard about the claims earlier does not undercut the relevance of this	4
evidence—the jury resolves conflicts in the evidence. Finding no error in the	5
admission of this evidence, we need not determine whether the district court’s	6
admission of the evidence affected Defendant’s substantial rights. See Hill, 2008-	7
NMCA-117, ¶¶ 21-22 (considering first whether there was error).	8
{68} 	We move next to Defendant’s claim of plain error in the admission of his	9
search for “[s]leeping teens ass penetrated.” Defendant argues that this internet	10
search should have been excluded under Rule 11-403 because “its probative value	11
is substantially outweighed by [the] danger of . . . unfair prejudice.” Defendant	12
claims that the mention of anal penetration in his internet search was unfairly	13
prejudicial because he was not charged with anal penetration of Victim.	14
{69} 	We are not persuaded that unfair prejudice outweighed the relevance of	15
Defendant’s internet search. The central issue at trial was whether Victim’s	16
testimony that Defendant sexually assaulted her at night, awakening her from sleep,	17
was credible. Defendant denied any sexual assault. Given the close proximity in time	18
to the charged crime, and the reference to penetration of “[s]leeping teens,”	19
something uncannily similar to Victim’s allegations, this internet search was highly	20

38
relevant to the key question before the jury. Moreover, although Defendant was not	1
charged with anal penetration, Victim testified without objection that Defendant	2
“inserted his fingers into [her] vaginal and anal area.” Further, the trial court	3
mitigated any unfair prejudice related to the mention of anal penetration by limiting	4
the State’s questioning about the DNA testing of Victim to avoid any suggestion of	5
uncharged anal penetration. We note that “[t]he purpose of Rule 11-403 is not to	6
guard against any prejudice whatsoever, but only against the danger of unfair	7
prejudice.” State v. Otto, 2007-NMSC-012, ¶ 16, 141 N.M. 443, 157 P.3d 8	8
(alteration, internal 	quotation 	marks, and 	citation 	omitted). 	The prejudice to	9
Defendant here was neither irrelevant to the issues before the jury nor so unduly	10
prejudicial that its admission was obvious error.	11
CONCLUSION	12
{70} 	Not persuaded by Defendant’s claims of error, we affirm.	13
{71} 	IT IS SO ORDERED.	14
_____________________________	15
JANE B. YOHALEM, Judge	16

—

WE CONCUR:

fucjustins 4. Moco

CGUELINE R. MEDINA, Chief Judge

2 MbMn—

J. MILES HANISEE, Judge

39