A-1-CA-34709 | Omnilex

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Filed

Court of Appeals of New Mexico
1/23/2018 10:17:17 AM
Offige of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO “"

Opinion Number:

Filing Date: January 23, 2018

A-1-CA-34709

STATE OF NEW MEXICO,
Plaintiff-Appellee,

GAVINO LUNA,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Daniel Viramontes, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender -

Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Reynolds

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OPINION
HANISEE, Judge. ©
fi}. The formal opinion filed in this case on December 13, 2017, is hereby
withdrawn, and this opinion is substituted in its place.
2} Defendant Gavino Luna was convicted by a jury of (1) criminal sexual contact
of a minor (Child under 13) (CSCM) in the third degree, (2) intimidation ofa witness,
(3) unlawful exhibition of motion pictures to a minor, and (4) contributing to the
delinquency of a minor (CDM) for forcing a minor to “engage in sexual acts and
watch pornographic movies[.]” He was sentenced to eleven-and-one-half years’
incarceration, less one day, to be followed by parole for five years to life. Defendant
appeals his convictions, challenging: (1) his right to be free from double jeopardy, (2)
the adequacy of two jury instructions given, (3) the sufficiency of the evidence
supporting his convictions, (4) the admission of certain lay testimony, and (5) the
admission of specific expert testimony. We affirm in part, reverse in part, and remand | .
for further proceedings.
BACKGROUND
3}, Defendant’s convictions stem from events that occurred the afternoon of May
3, 2013, when Defendant was looking after J.C. (Child), a nine-year-old boy, and

Child’s twelve-year-old sister because Child’s mother was hospitalized. Defendant

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lived with Child’s grandmother. According to Child, Defendant showed Child “ugly”
movies that showed photographs of women “showing themselves.” Child could not
recall details of the movie, such as what the women in the movie were doing, but he
explained that the women in the movie were wearing “red” clothes “like . | . you wear
outside” and that they kept their clothing on. There were no other people in the
pictures with the women. Child did not like the movies because he found them “very
ugly” because they “showed ... all of [the] parts... of the women.” Child did not
want to look at the photos and movies and tried to leave the room but was not
allowed; Child thought that if he ran, Defendant would get mad.

7a Child also testified that at one point, Defendant pulled down Defendant’s
shorts and showed Child his “parts,” which Child explained meant Defendant’s penis.
Child could not recall whether Defendant made Child touch any of Defendant’s
“parts,” but he remembered that Defendant touched Child’s penis two times: once
with his hand, and once with his mouth. The contact occurred over Child’s clothing
and was not skin-to-skin. This made Child feel “very bad[].”

{5} Defendant told Child not to tell anyone and that he would take Child far away
and leave Child there if Child told anyone. Child was afraid of Defendant and
approximately one week after the incident told his mother what happened. Child’s

mother contacted the Deming, New Mexico Police Department, and Defendant was

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subsequently charged with and tried for criminal sexual penetration of a minor

| (CSPM) in the first degree, CSCM, intimidation of a witness, CDM, and unlawful

exhibition of motion pictures to a minor. The district court granted Defendant’s
motion for a directed verdict on the CSPM charge based on a lack of sufficient
evidence to support the charge but allowed all other counts to go to the jury. The jury
convicted Defendant on all submitted counts, after which the district court entered
judgment and sentenced Defendant. This appeal followed.

DISCUSSION

{6 . Defendant makes the following challenges on appeal: (1) Defendant’s
convictions for CSCM, unlawful exhibition, and CDM violate his Fifth Amendment
right to be free from double jeopardy; (2) the district court fundamentally erred in
instructing the jury as to the elements of unlawful exhibition of motion pictures to a
minor and CSCM; (3) there was insufficient evidence to support Defendant’s
convictions for unlawful exhibition of motion pictures, CDM, and intimidation of a
witness; (4) the district court committed plain error in admitting the lay testimony of
Detective Sergio Lara, the investigating officer, who testified that he recovered a
“pornographic” video from Defendant’s house; and (5) the district court committed

plain error in admitting the expert testimony of Sylvia Aldaz-Osborn, a forensic

interviewer who was allowed to watch and comment on Child’s videotaped
deposition when it was shown to the jury during trial. We address each issue in turn.
I. Whether Defendant’s Convictions for CDM, CSCM, and Unlawful
Exhibition of Motion Pictures to a Minor Violate His Right to Be Free
From Double Jeopardy
{7} | Defendant contends that the sentence imposed by the district court violates his
Fifth Amendment right to be free from double jeopardy because the conduct
underlying his CDM conviction is identical to that used as the basis for his CSCM
and unlawful exhibition of motion pictures convictions. Defendant argues that the
CDM statute is generic and multipurpose, requiring us to analyze his claim using the
modified Blockburger approach articulated in State v. Gutierrez, 201 1-NMSC-024,
4 58, 150 N.M. 232, 258 P.3d 1024 . Such approach, Defendant argues, leads to the
conclusion that the Legislature did not intend to punish separately Defendant’s
unitary conduct as specifically charged and argued by the State. The State contends
that the CDM statute, while broad in scope, is not “unacceptably vague” and,
therefore, we need not follow Gutierrez’s modified Blockburger approach. Thus, the
State urges us to apply Blockburger’s strict elements test that was used in State v.
Trevino, 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172, a pre-Gutierrez case

holding that there was no double jeopardy violation for CDM and CSCM convictions. | -

The State argues that Trevino should continue to control. We disagree. Under the

current state of the law, we agree with Defendant that Gutierrez is now controlling,
and we reverse his CDM conviction.

A. The Blockburger Test

{8} The Double Jeopardy Clause of the Fifth Amendment, made applicable to New |
Mexico by incorporation through the Fourteenth Amendment, “functions in part to
protect a criminal defendant against multiple punishments for the same offense.”
State v. Swick, 2012-NMSC-018, { 10, 279 P.3d 747 (internal quotation marks and
citation omitted). Cases “where the same conduct results in multiple convictions
under different statutes” are known as double description cases. Jd. In a double
description case, we apply the two-part test set forth in Swafford v. State, 1991-
NMSC-043, 4 25, 112 N.M. 3, 810 P.2d 1223. We first ask “whether the conduct
underlying the offenses is unitary, i.e., whether the same conduct violates both
statutes.” Id. Here, the State does not dispute that the same conduct—Defendant’s
sexual contact of and exhibition of “pornographic” movies to Child—formed the
basis of his CDM, CSCM, and unlawful exhibition convictions. Thus, we turn to the
second part of the Swafford test and focus “on the statutes at issue to determine
whether the [L]egislature intended to create separately punishable offenses.” Jd.

{93 |Our Supreme Court has described legislative intent as “the touchstone of our

inquiry” because in this context “[i]t is well established that the Double Jeopardy

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Clause does no more than prevent the sentencing court from prescribing greater
punishment than the [L]egislature intended.” Gutierrez, 2011-NMSC-024, {| 50
(internal quotation marks and citations omitted). Unless the Legislature has clearly
and expressly authorized multiple punishments for the same conduct, we apply the
following test articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932),
to determine intent: “[W]here the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are
two offenses or only one[] is whether each provision requires proof of a fact which
the other does not.” Jd. As our Supreme Court explained in Swafford:

The rationale underlying the Blockburger test is that if each statute

requires an element of proof not required by the other, it may be inferred _

that the [L]egislature intended to authorize separate application of each

statute. Conversely, if proving violation of one statute always proves a

violation of another (one statute is a lesser included offense of another,

i.e., it shares all of its elements with another), then it would appear the

[L]egislature was creating alternative bases for prosecution, but only a

single offense.
Swafford, 1991-NMSC-043, { 12. Importantly, Swafford explained that “the
Blockburger test is not a constitutional rule, but merely a canon of construction used
to guide courts in deciphering legislative intent.” Jd. It, therefore, follows that the
starting point in a Blockburger analysis—looking to the statute’s language itself—is
consistent with the general rule of statutory construction that “[i]n analyzing

legislative intent, [courts] first look to the language of the statute itself.” Swick, 2012-

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NMSC-018, q{ 11; see State v. Suazo, 2017-NMSC-011, | 16, 390 P.3d 674
(explaining that courts “begin with the plain language of the statute, which is the
primary indicator of legislative intent.” (alteration, internal quotation marks, and
citation omitted)). It also follows that where the plain language of the statute is
ambiguous, we engage in further interpretation in order to glean legislative intent. See
State v. Almeida, 2011-NMCA-050, ¥ 11, 149 N.M. 65 1, 253 P.3d 941 (“[I]fa statute
is vague or ambiguous and cannot be interpreted by a simple consideration of the
statutory language, the court must look to other means of statutory interpretation.”).
{10} Historically, courts applied the Blockburger test by strictly comparing the
elements—evidenced by a statute’s plain language—of the challenged statutes. State
v. Lee, 2009-NMCA-075, { 9, 146 N.M. 605, 213 P.3d 509 (“In applying the
Blockburger test, this Court compares the elements of each crime with the elements
of the other.”). However, in response to “the increasing volume, complexity,
vagueness and overlapping nature of criminal statutes[,]” the United States Supreme
Court modified the Blockburger analysis to account for the challenges to divining
legislative intent presented by multipurpose statutes that could be offended in

multiple ways and address various types of wrongs. Pandelli v. United States, 635
F.2d 533, 535-39 (6th Cir. 1980) (explaining the evolution of the Blockburger test

that occurred in Whalen v. United States, 445 U.S. 684 (1980), and Illinois v. Vitale,

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447 US. 410 (1980)). Now, in cases involving a criminal statute that is generic,
multipurpose, vague, unspecific, ambiguous, and/or written in the alternative, we
must engage in “statutory reformulation” by “narrow[ing] the statute to be analyzed
until it includes only the alternatives relevant to the case at hand.” Pandelli, 635 F.2d
at 538; Gutierrez, 2011-NMSC-024, {J 58-59. In effect, this modified approach
recognizes that comparing in the abstract ambiguous facial statutory elements fails
to provide requisite guidance to a court in determining legislative intent. See State v.
Franco, 200S-NMSC-013, 4 14, 137 N.M. 447, 112 P.3d 1104 (explaining that “a
statute that serves several purposes and has been written in the alternative may have
many meanings and a wide range of deterrent possibilities” and that “[{uJnless we
focus on.the relevant alternatives, we run the risk of misconstruing legislative intent”
(internal quotation marks and citation omitted)). As this Court has explained:
Analyzing statutory elements from the vantage point of the
particular case before the court... enables a reviewing court to remain
faithful to legislative intent to provide alternative means of prosecution
against a single category of wrongdoers, and to avoid the confusion and
injustice that may arise from looking at statutes in the abstract when
each statute contains an element which the other does not.
State v. Rodriguez, 1992-NMCA-035, § 10, 113 N.M. 767, 833 P.2d 244. Thus, in
cases involving such statutes, a court considering a double jeopardy challenge must
rely on the state’s specific legal thesry as the basis for establishing the proper

elemental comparison in applying the Blockburger test. See State v. Silvas, 2015-

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NMSC-006, 7 14, 343 P.3d 616; State v. Gutierrez, 2012-NMCA-095, { 14, 286 P.3d
608 (explaining that the modified Blockburger approach “applies when one of the
statutes at issue is written with many alternatives, or is vague or unspecific” and that
“a reviewing court should look at the legal theory of the offense that is charged[]
instead of looking at the statute in the abstract when comparing elements under }
Blockburger” (internal quotation marks and citation omitted)). Specifically, “we look
to the charging documents and jury instructions to identify the ‘specific criminal
causes of action for which the defendant was convicted.” State v. Ramirez, 2016-
NMCA-072, 18, 387 P.3d 266, cert. denied, ___-NMCERT-__ (No. S-1-SC-
35949, July 20, 2016). Where “[n]either the indictment nor the jury instructions shed
any light on the [s]tate’s trial theory[,]” and/or to confirm our understanding of the
state’s theory, we may also look to the state’s closing argument for evidence of the
specific factual basis supporting its theory. Id. {¥ 17, 20; Silvas, 2015-NMSC-006,
q{ 19-21 (explaining that “lolur reading of the [jury] instructions is confirmed when
we look to how the prosecutor asked the jury to apply [the] instructions” and
reviewing the prosecutor’s closing argument). By doing this, we may properly
identify the appropriate “provisions” for comparison that are at the heart of the

Blockburger test. See Blockburger, 284 US. at 304.

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4143 Ifapplication of either approach to the Blockburger test “establishes that one
statute is subsumed within the other, the inquiry is over and the statutes are the same
for double jeopardy purposes—punishment cannot be had for both.” Swafford, 1991-
NMSC-043, { 30; see also Gutierrez, 201 L-NMSC-024, {60 (holding, after applying
the modified Blockburger approach, that the defendant’s armed robbery conviction
subsumed his unlawful taking of a motor vehicle conviction and thus vacating his
conviction for the lesser-included offense). Ifnot, there is created a presumption that
multiple punishment may be had, which presumption “may be overcome by other
indicia of legislative intent.” Swafford, 1991-NMSC-043, { 31. However, we only |
turn to other means of determining legislative intent if the statutes in question
“survive Blockburger.” State v. Branch, 2016-NMCA-071, {ff 24, 28, 387 P.3d 250,
cert. granted, _-NMCERT-__(No. S-1-SC-35951, July 28, 2016).

B. Whether We Should Apply the Blockburger Strict Elements Test or Follow
Gutierrez’s Modified Elements Approach

{12} Because the parties disagree whether the CDM statute falls within the reach of
Gutierrez, we begin by determining whether the CDM statute is the type of
statute—i.e., generic, multipurpose, ambiguous, vague or unspecific, or written in the
alternative—to which Gutierrez applies.

13} The CDM statute provides that “[c]ontributing to the delinquency of a minor
consists of any person committing any act or omitting the performance of any duty,

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which act or omission causes or tends to cause or encourage the delinquency of any
person under the age of eighteen years.” NMSA 1978, § 30-6-3 (1990). Our Supreme
Court has explained that where “many forms of conduct can support” a particular
statutory element, that statute “is a generic, multipurpose statute that is vague and
unspecific, and we must look to the [s]tate’s theory of the case to inform what”
particular conduct is alleged in that particular case. Swick, 2012-NMSC-018, 4 25
(internal quotation marks omitted). Likewise, the presence of generic terms—such as
“any unlawful act”—\ that allow for “numerous forms of conduct that could fulfill that
requirement” necessarily render that statute subject to application of the modified
Blockburger approach. Branch, 2016-NMCA-071, § 26.

{144 We have little difficulty concluding that the CDM statute qualifies for
application of the modified Blockburger approach. To begin with, the statute is a
quintessentially generic, multipurpose statute, as has long been recognized in New
Mexico case law. See State v. Pitts, 1986-NMSC-011, § 10, 103 N.M. 778, 714 P.2d
582 (explaining that New Mexico courts have “recognized that the intent of the
Legislature in enacting [the CDM statute] was to extend the broadest possible
protection to children, who may be led astray in innumerable ways”); State v.
McKinley, 1949-NMSC-0 10, § 12,53 N.M. 106, 202 P.2d 964 (“The ways and means

by which the venal mind may corrupt and debauch the youth of our land, both male

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and female, are so multitudinous that to compel a complete enumeration in any statute
designed for protection of the young before giving it validity would be to confess the
inability of modern | society to cope with the problem of juvenile delinquency.”).
Additionally, the statute is both vague and unspecific in that it criminalizes “any act”
or the omission of “any duty” when that act or omission results in a child’s
delinquency. Section 30-6-3 (emphasis added). These generic terms make it possible
for numerous forms of conduct to qualify as the requisite actus reus element of the
statute. Thus, absent “statutory reformulation” vis-a-vis the State’s le gal theory in this
case, there is no way to engage in the meaningful elemental comparison that is at the
heart of the Blockburger test. See Pandelli, 635 F.2d at 538. In other words, until we
identify which of Defendant’s specific acts or omissions form the basis for the CDM

charge, there is no way to know whether other conduct for which Defendant was

criminally charged is separately punishable or if one charge subsumes the other. -

C. Applying the Modified Blockburger Approach to the CDM Statute
{15} The jury was instructed that in order to convict Defendant of CDM, the State
had to prove:

1. [D]efendant forced [Child] to engage in sexual acts and
watch pornographic movies;

2. This caused or encouraged [Child] to conduct himself in a
manner injurious to his morals, health or welfare;

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3. [Child] was under the age of 18;

4. This happened in New Mexico on or about the 3rd day of
May, 2013.

From this it is apparent that the State’s theory of the “any act” element of CDM was
Defendant’s forcing Child “to engage in sexual acts and watch pornographic
movies|[.]” See UJI 14-601, n.2 NMRA (requiring a description of the act or omission
of the defendant as part of the first element). Thus, under its theory as articulated in
the jury instruction, the State had to prove that Defendant forced Child to both engage
in sexual acts and watch pornographic movies in order to convict Defendant of CDM.
416 While itused different terms in the CDM instruction, the State does not dispute.
that “sexual acts” refers to the CSCM or that “watch pornographic movies” is the
same as unlawful exhibition of motion pictures. Importantly, the State points to no
alternative act or acts that could serve as the basis for proving the “any acts” element

of the CDM charge. See Swick, 2012-NMSC-018, § 25 (explaining that even where

‘one must draw an inference from arguably vague charging documents and jury

instructions, “a prosecutor should not be allowed to defeat the constitutional
protections afforded by the double jeopardy clause by clever indictment drafting”
(alteration, internal quotation marks, and citation omitted)). The State also proffered
no additional testimony or evidence to prove CDM than it did to prove CSCM and
unlawful exhibition of motion pictures. See id. § 26.

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7 The State’s only argument that Defendant’s multiple convictions survive a
modified Blockburger analysis is that the CDM statute contains an element that
neither the CSCM nor unlawful exhibition statutes contains—namely that
Defendant’s acts “caused or encouraged [Child] to conduct himself in a manner
injurious to his morals, health or welfare’—meaning that the statutes are not
subsumed within each other. However, the State’s argument ignores that in order for

a statute not to be subsumed within another, each statute must require proof of a fact

|| which the other does not. See Blockburger, 284 U.S. at 304 (explaining that “the test |

to be applied to determine whether there are two offenses or only one[] is whether
each provision requires proof ofa fact which the other does not”). While it is true that
the CDM statute requires proof of an additional element, neither the CSCM nor
unlawful exhibition statute requires proof of anything more than what is required to
prove CDM as charged in this case.! Cf State v. Ramirez, 2016-NMCA-072, 9f 18,
23-24, (explaining that the aggravated assault statute, NMSA 1978, § 30-3-1(B)
(1963), and the child endangerment statute, NMSA 1978, § 30-6-1(D) (2009), each

requires proof of something the other does not, thus concluding that the statutes

'Trevino is distinguishable because there our Supreme Court applied the pre-
Gutierrez strict Blockburger test and concluded that the generic CSCM statute
requires proof of an additional element—an unlawful sexual touching—that the
generic CDM statute does not. See Trevino, 1993-NMSC-067, {J 5-6.

survived the modified Blockburger test), cert. denied, _ -NMCERT-__ (No.S-1-
SC-35949, July 20, 2016). Because the jury could—and, indeed, did—convict
Defendant of CDM based on nothing more than the same evidence used to convict
Defendant of CSCM and unlawful exhibition of motion pictures, we hold that]
Defendant’s conviction for CDM as charged in this case violates double jeopardy. We
reverse and remand with instructions to vacate Defendant’s CDM conviction.

Il. Whether the District Court Committed Fundamental Error in Instructing
the Jury

18} Defendant challenges his convictions for (a) unlawful exhibition of motion
pictures to a minor and (b) CSCM based on the jury instructions given by the district
court. Because Defendant failed to object to the instructions, we review his challenges
for fundamental error only. See State v. Benally, 2001-NMSC-033, ¥ 12, 131 N.M.
258, 34 P.3d 1134 (“The standard of review we apply to jury instructions depends on
whether the issue has been preserved. If the error has been preserved we review the
instructions for reversible error. ... Ifnot, we review for fundamental error.” (citation
omitted)). “The doctrine of fundamental error applies only under exceptional
circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004-
NMSC-019, 7 8, 135 N.M. 621, 92 P.3d 633. “An error is fundamental when it goes
to the foundation or basis of a defendant’s rights.” State v. Anderson, 2016-NMCA-
007, J 8, 364 P.3d 306 (internal quotation marks and citation omitted), cert. denied,

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2015-NMCERT-012 (No. A-1-CA-35591, Dec. 7, 2015). “We will not uphold a
conviction if an error implicated a fundamental unfairness within the system that
would undermine judicial integrity if left unchecked.” Jd. (internal quotation marks
and citation omitted).

4193 In instances of claimed instructional error, we seek to determine “whether a
reasonable juror would have been confused or misdirected by the jury instruction.”
Benally, 2001-NMSC-033, {| 12 (internal quotation marks and citation omitted).
“Juror confusion or misdirection may stem from instructions which, through omission
or misstatement, fail to provide the juror with an accurate rendition of the relevant
law.” Anderson, 2016-NMCA-007, § 9 (internal quotation marks and citation
omitted). “The propriety of jury instructions given ... is amixed question of law and

fact[,|” which we review de novo. State v. Lucero, 2010-NMSC-011, 4 11, 147 N.M.

-747, 228 P.3d 1167 (internal quotation marks and citation omitted).

A. The Unlawful Exhibition of Motion Pictures to a Minor Jury Instruction
Was Deficient |

20} Defendant argues that the district court fundamentally erred by failing to
properly instruct the jury regarding what it had to find in order to convict Defendant
of unlawful exhibition of motion pictures to a minor. We agree.

233 NMSA 1978, Section 30-37-3 (1973) provides, “It is unlawful for any person
knowingly to exhibit to a minor... a motion picture, show or other presentation

which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse
and which is harmful to minors.” Because there is no uniform jury instruction that
provides the essential elements of this offense, the district court was required to give
an instruction that “substantially follow[s] the language of the statute” in order to be
deemed sufficient. State v. Doe, 1983-NMSC-096, § 8, 100 N.M. 481, 672 P.2d 654;
State v. Gunzelman, 1973-NMSC-055, § 28, 85 N.M. 295, 512 P.2d 55 (explaining
that “[w]hen the terms of the statute itself define [an element of the crime], then an
instruction which follows the words of the statute is sufficient”), overruled on other
grounds by State v. Orosco, 1992-NMSC-006, 4 7, 113 N.M. 780, 833 P.2d 1146.
Following the language of Section 30-37-3, we discern the following elements that
together constitute the offense of unlawful exhibition: (1) The defendant knowingly
exhibited a motion picture, show or other presentation; (2) The exhibition was to a
minor; (3) The motion picture, show or other presentation depicts, in whole or in part,
nudity, sexual conduct or sado-masochistic abuse; and (4) The motion picture, show
or other presentation is harmful to minors. In other words, a person who knowingly
exhibits to a minor a motion picture containing nudity cannot be convicted under
Section 30-37-3 absent an additional finding that the motion picture was “harmful to

minors.” Mere depiction of nudity alone is not enough.

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23 Additionally, the Le gislature specially defined the terms “nudity” and “harmful
to minors” as used in the Sexually Oriented Material Harmful to Minors Act, of
which Section 30-37-3 is.a part. See NMSA 1978, § 30-37-1 (1973) (defining terms
“[a]s used in this act”). “[N]udity” is defined as “the showing of the male or female
genitals, pubic area or buttocks with less than a full opaque covering, or the depiction
of covered male genitals in a discernibly turgid state[.]” Section 30-37-1(B).
“Harmful to minors” is defined as:

[T]hat quality of any description o[r] representation, in whatever form,

of nudity, sexual conduct, sexual excitement or sado-masochistic abuse

when it:

(1) predominantly appeals to the prurient, shameful or morbid
interest of minors; and

(2) is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable material for

minors; and

(3) is utterly without redeeming social importance for
minors[.]

Section 30-37-1(F). Neither definition was provided to the jury in this case. While the
failure to give a definitional instruction typically does not rise to the level of
fundamental error, in some cases it does. See State v. Mascarefias, 2000-NMSC-017,
qf 20-21, 129 N.M. 230, 4 P.3d 1221 (holding that the district court fundamentally

erred by failing to include a definition of “reckless disregard” in a case where failure

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to provide the definitional instruction “had the potential effect of confusing the jury
as to the proper standard of negligence to apply”); Anderson, 2016-NMCA-007, {ff 8-
19 (holding in a case involving a claim of self-defense that there was fundamental
error where the district court failed to provide the jury with the “no-retreat”
instruction because there was. evidence to support the instruction and the jury was
“misdirected” by the instructions issued). Importantly, failure to give a definitional
instruction when the term being defined “has a legal meaning different from the
commonly understood lay interpretation of [the term]” may result in jury confusion
that could place the verdict in doubt. Barber, 2004-NMSC-019, q{ 21-22. In such
instances, “we must place all the facts and circumstances under close scrutiny to see
whether the missing instruction caused such confusion that the jury could have
convicted [the d]efendant based upon a deficient understanding of the legal meaning
of [the term in question] as an essential element of the crime.” Jd. § 25.

23} The jury in this case was instructed that in order to convict Defendant of this

offense, it had to find in pertinent part:

l. [D]efendant knowingly showed or exhibited motion pictures to
[Child];
2. The motion pictures depicted nudity and/or sexual conduct which

is harmful to minors; [and]

3. ° [Child] was under the age of eighteen[.]

The proffered instruction is deficient in at least two respects. First, it fails to identify
as a separate element that the motion picture “is harmful to minors” as we have
concluded the statute requires. The phrase “which is harmful to minors” contained in
the second paragraph of the instruction arguably modifies only “sexual conduct” and,
at best, may also modify “nudity.” But the requisite finding a jury must make in order
to convict is that the exhibition prohibited by the statute, here a motion picture, is
harmful to minors. See § 30-37-3. Thus, as instructed, the jury could have convicted
Defendant for merely exhibiting to Child a motion picture that “depicted nudity”
without making an additional finding that the motion picture was “harmful to
minors.” Second, as previously noted the jury was not provided with the statutory
definitions of “nudity” and “harmful to minors.” In defining these terms, the
Legislature, in effect, established a special standard by which to determine whether
a criminal offense—as opposed to an exhibition that, while pethaps inappropriate and
ill-advised, is not harmful—has been committed. Where a district court fails to
adequately define the applicable standard necessary to support a finding of criminal
activity and it cannot be determined whether the jury applied the correct legal
standard and “delivered its verdict on a legally adequate basis[,]” fundamental error
may exist. Mascarefias, 2000-NMSC-017, {§ 8-13, 16, 21. We review the evidence

in order to determine whether “under the facts adduced at trial, [an] omitted element

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was undisputed and indisputable, and no rational jury could have concluded
otherwise.” State v. Lopez, 1996-NMSC-036, § 13, 122 N.M. 63, 920 P.2d 1017
(internal quotation marks and citation omitted). Ifthe evidence does not indisputably
establish the missing element or elements, there exists fundamental error, and we
must reverse. See id.

24} The only evidence to support Defendant’s conviction for unlawful exhibition
of motion pictures was Child’s testimony regarding what the movie Defendant
showed him depicted. Child testified that there were women in the movie wearing
“red” clothes “like . . . you wear outside[,]” that the women remained clothed, and
that there was no one in the movie with the women. He explained that he did not like
the movies “because they were very ugly” because they “showed . . . all of [the] parts
... of the women.” As he said “all of their parts[,]” Child, who was seated, made a
circling hand gesture in front of his upper body. Child could not recall what the
women in the movie were doing and provided no additional description of the
contents of the movie. Critically, the State offered no other evidence establishing
what the. movie showed. While Detective Lara testified that he recovered a
video—which he described as “pornographic” in nature—from Defendant’s house
and answered “yes” when the prosecutor asked him whether what he saw on the video

was “consistent with what [he] had learned and expected to see from [his]

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investigation,” he provided no description of what was contained in the movie.” We
also note that the State did not seek to show the jury the video Detective Lara
recovered. Cf. State v. Green, 2015-NMCA-007, 9 6, 26, 341 P.3d 10 (affirming the
defendant’s probation revocation for violating the prohibition against pornography
and sexually explicit material where images found on the defendant’s computer were
entered into evidence and which images this Court, like the district court, held to
depict “sexual activity and/or physical contact with unclothed female genitals or
buttocks”).

25} It was the State’s burden to prove beyond a reasonable doubt that Defendant
exhibited to Child a motion picture, show or presentation that depicted “the male or
female genitals, pubic.area or buttocks with less than a full opaque covering” and
which motion picture “(1) predominantly appeal[ed] to the prurient, shameful or
morbid interest of minors; .. . (2) is patently offensive to prevailing standards in the
adult community . . .; and (3) is utterly without redeeming social importance for |.

minors[.]” Sections 30-37-1(B), (F) and 30-37-3. We simply cannot say that Child’s

"Defendant argues separately that it was plain error for the district court to
admit Detective Lara’s lay opinion as to the pornographic nature of the movie he
recovered from Defendant’s house based on Detective Lara’s failure to provide a
description of the video’s contents, i.e., because Detective Lara’s testimony lacked
a proper foundation. Because we reverse Defendant’s conviction for unlawful
exhibition of motion pictures for improper jury instructions, we do not address this
argument.

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testimony—or any other evidence in the record—indisputably establishes either of
these elements. Cf Barber, 2004-NMSC-019, F§ 29-30 (explaining that even if the
jury instruction was “defectively ambiguous without the definition of possession,” the
jury instructions as a whole—which required the state to prove that the defendant
intended to transfer methamphetamine—cured the ambiguity because the jury could
not have convicted the defendant of intent to transfer, which it did, without also
finding that he possessed the drugs); Lopez, 1996-NMSC-036, §§ 14, 17, 34
(explaining that despite the district court’s omission of the mens rea requirement—an
essential element—from the felony murder jury instruction, the element was
indisputably established by the defendant’s own testimony, thus no fundamental error
existed); Orosco, 1992-NMSC-006, ff 1, 19-20 (holding that failing to instruct on the
essential element of “unlawfulness” in two CSCM cases was not fundamental error
because “under the undisputed evidence of unlawfulness in the cases and the facts
upon which the juries relied to find that [the] defendants committed the acts, the juries
themselves effectively determined the existence of the omitted element’’).

26 There exists a distinct possibility that the jury convicted Defendant (1) without
finding all the required elements beyond a reasonable doubt—ie., that the motion
picture itself was “harmful to minors”—and (2) based on a misunderstanding of the

applicable legal standard—i.e., by applying common understandings of the terms

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“nudity” and “harmful to minors” rather than their statutory definitions. See State v.
Montoya, 2013-NMSC-020, { 14, 306 P.3d 426 (“In applying the fundamental error
analysis to deficient jury instructions, we are required to reverse when the
misinstruction leaves us with no way of knowing whether the conviction was or was
not based on the lack of the essential element.” (internal quotation marks and citation
omitted)); cf State v. Reed, 2005-NMSC-031, [ff 53,57, 138 N.M. 365, 120 P.3d 447
(explaining that even though the district court failed to give the “reckless disregard”
definitional instruction specifically for the child abuse charge, the error was harmless
because “[a] definitional instruction is not necessary if, as [a] matter of law, no
rational juror could find that a defendant acted with less than criminal negligence”).
We thus hold that the district court fundamentally erred in instructing the jury on the
charge of unlawful exhibition of motion pictures to a minor and reverse Defendant’s
conviction on that count.

27 Whether the State may retry Defendant depends on whether there was sufficient
evidence presented at trial to support a conviction under the erroneous instruction

given at trial.’ See State v. Dowling, 2011-NMSC-016, J 18, 150 N.M. 110, 257 P.3d

*Defendant develops no argument that the evidence was insufficient to convict
him under the erroneous instruction. Rather, Defendant’s sufficiency challenge
analyzes the evidence in light of a properly given instruction, which has no bearing
on our review. See State v. Rosaire, 1996-NMCA-115, 4§ 20-21, 123 N.M. 250, 939

P.2d 597 (explaining that we review “the evidence in light of the defective jury
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930 (“We review [a dlefendant’s [sufficiency of the evidence] claim under the
erroneous instruction provided to the jury at trial.”). “[O]ur review of the sufficiency
of the evidence is analytically independent from the issue of the defect in the jury
instruction.” Rosaire, 1996-NMCA-115, 20. “We review sufficiency of the evidence
on appeal from a highly deferential standpoint.” Dowling, 2011-NMSC-016, § 20.
“The evidence is to be viewed in the light most favorable to the [s|tate, resolving all
conflicts and making all permissible inferences in favor of the jury’s verdict.” Jd.

{28} As'stated previously, the jury in this case was instructed that it had to find,
among other elements that Defendant does not challenge, that Defendant exhibited
to Child a motion picture that “depicted nudity and/or sexual conduct which is
harmful to minors[.]” Child testified that the movie “showed . . . all of [the] parts...
of the women” and that Child found the images to be “very ugly.” Defendant himself
concedes that Child’s “description of what he viewed suggests ... that he watched
a video in which women exposed themselves fully” and that “lay jurors may consider
‘harmful to minors’ ” material contained in mainstream movies that “contain very real

depictions of violence and sexual conduct.” Viewed in the light most favorable to the

instruction given below” and holding that “where the trial court errs by failing to
instruct the jury on an essential element of the crime, retrial following appeal is not
barred if the evidence below was sufficient to convict the defendant under the
erroneous jury instruction”).

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State, we conclude that the jury could infer from Child’s testimony both that the
movie “depicted nudity” and that the nudity depicted was “harmful to minors.”
Because there was sufficient evidence to convict Defendant of unlawful exhibition’
of motion pictures to a minor under the erroneous jury instruction, there is no bar to
retrying him on that count. See id. J 47.

B. CSCM Jury Instruction

729} Defendant argues the district court committed fundamental error in instructing
the jury regarding CSCM by failing to include as an essential element that
Defendant’s conduct was unlawful and provide the jury with the corresponding
instruction on unlawfulness. The State argues that the “unlawful” element contained
in UJI 14-925 NMRA, the uniform jury instruction for CSCM, need only be given “if
the evidence raises a genuine issue of the unlawfulness of the defendant’s actions.”
Id. Use Note 4. We agree with the State.

{30} Our Supreme Court has held that it is not fundamental error to fail to provide
the “unlawful” element of UJI 14-925 in a case where the element of unlawfulness
isnot “in issue.” Orosco, 1992-NMSC-006, J 10. To determine whether unlawfulness
is “in issue,” we consider “whether there was any evidence or suggestion in the facts,
however slight, that could have put the element of unlawfulness in issue.” Jd. Where,

for example, there is evidence that the touching at issue may have been “innocent

behavior such as the touching of the intimate parts of a minor for purposes of
providing reasonable medical treatment to a child or nonabusive parental or custodial
care[,]” the unlawfulness of the touching is in issue and the jury must be instructed
accordingly. State v. Osborne, 1991-NMSC-032, 7 19-20, 31-33, 111 N.M. 654, 808
P.2d 654 (alteration, internal quotation marks, and citation omitted). However, where
the state presents evidence that the defendant touched or fondled a child’s intimate
parts or genitals and there are no facts in evidence “to suggest that the touchings, if
they occurred, might have involved the provision of medical care, custodial care or
affection, or any other lawful purpose[,]” unlawfulness is not “in issue.” Orosco,
1992-NMSC-006, ff 10, 11. That is because implicit in the jury’s determination that
the defendant committed a crime is a finding—based on the evidence in the
case—that the defendant’s conduct was unlawful. See id. J§ 11-12.

31} Here, the jury heard from Child that Defendant (1) showed Child movies with
women “showing . . . all of their parts,” which movies Child found “ugly,” (2)
exposed his own penis to Child, then (3) touched Child’s clothed penis with his hand
and mouth. Despite all this evidence, Defendant argues that “[t]here was no context
provided” and “no . . . evidence that the scenario was sexual.” Critically, he fails to
point to anything in the record, even something slight, that might suggest that

Defendant’s contact of Child’s penis was lawful. Cf Osborne, 1991-NMSC-032,

“" 6-1 (describing the evidence of touching in that case and noting that the defendant
“did not recall ever touching [the child’s] bottom and said that while it was possible
he might have touched her bottom at some point, it would not have been in an
inappropriate manner or with an inappropriate intent”). Based on both the allegations
against Defendant and the evidence adduced at trial, there was no reason for the jury
to be instructed that it had to find Defendant’s conduct “unlawful” because there was
no basis upon which the jury could conclude that the touching was lawful. The jury’s
verdict thus must have been based upon Defendant’s having touched Child as the
evidence was presented, which necessarily incorporated a finding of unlawfulness.
Id. We, therefore, hold that the district court did not fundamentally err by failing to
instruct the jury with the “unlawful” element of UJI 14-925.

Ill. Whether Substantial Evidence Supports Defendant’s Convictions

32} Defendant argues that the State failed to present sufficient evidence to sustain
his convictions for CDM, unlawful exhibition of motion pictures to a minor, and
intimidation of a witness. Because we have already reversed and remanded
Defendant’s convictions for CDM and unlawful exhibition of motion pictures to a

minor, we address only whether sufficient evidence supports his conviction for

intimidation of a witness.

33} “The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Cabezuela, 2015-NMSC-016, § 14, 350 P.3d 1145 (internal quotation marks and
citation omitted). Our review involves a two-step process in which we first “view the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State
v. Cunningham, 2000-NMSC-009, J 26, 128 N.M. 711, 998 P.2d 176. We then
“evaluate whether the evidence, so viewed, supports the verdict beyond a reasonable
doubt.” State v. Garcia, 2016-NMSC-034, J 24, 384 P.3d 1076. We disregard all
evidence and inferences that support a different result. See State v. Rojo, 1999-
NMSC-001, 9 19, 126 N.M. 438, 971 P.2d 829. Our appellate courts “will not invade
the jury’s province as fact-finder by second-guessing the jury’s decision concerning
the credibility of witnesses, reweighing the evidence, or substituting its judgment for
that of the jury.” State v. Garcia, 201 1-NMSC-003, 475, 149 N.M. 185, 246 P.3d 1057
(alterations, internal quotation marks, and citation omitted).

{34 The jury in this case was instructed, in pertinent part, that in order to convict
Defendant of intimidation of a witness, the State had to prove beyond a reasonable

doubt that Defendant “knowingly intimidated and/or threatened [Child] with the

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intent to keep [Child] from truthfully reporting to a law enforcement officer or any
agency that is responsible for enforcing criminal laws information relating to the
commission or possible commission of . . . [CSCM.]” Intimidation of a witness may
be proven through circumstantial evidence, including the witness’s testimony that he
or she did not initially report an incident because the defendant had made a veiled
threat and was present in the room when the report first could have been made. In re
Gabriel M., 2002-NMCA-047, 4] 22, 24-26, 132 N.M. 124, 45 P.3d 64. Particularly
in cases involving children, such testimony may be elicited by the use of leading
questions. See State v. Orona, 1979-NMSC-011, § 28, 92 NM. 450, 589 P.2d 1041
(“Leading questions are often permissible when a witness is immature, timid[,] or
frightened”),
{35} Here, the State relied on the following exchange between the prosecutor and
Child to support Defendant’s conviction for intimidating a witness:

Q: Did [Defendant] tell you not to tell anyone [what happened]?

A: Yes.

Q: Did [Defendant] tell you he would do anything if you told
someone?

A: I don’t recall.

Q: Do-you remember telling the police officer that [Defendant] said
he would take you far away and leave you there?

12.

A: Yes, oh, yes, I do recall.

Q: Did [Defendant] tell you that?
A: Yes.

Q: Were you afraid of [Defendant]?
A: Yes.

Child also testified that he did not immediately tell his mother about the incident
because Defendant was present, but that once Defendant was gone, Child then
disclosed to his mother what Defendant did to him.

{36} Defendant contends that the prosecutor “simply spoon-fed [Child] the State’s
entire factual basis for intimidation of a witnessf,]” thus diminishing “the evidentiary
value of [Child’s] testimony on the subject.” Defendant argues that under Orona, the
prosecutor’s leading questions and Child’s single-word affirmatory responses fail to
provide sufficient evidence to support Defendant’s conviction because the facts were
contained only in the prosecutor’s questions and thus were not evidence. See Orona,
1979-NMSC-011,921 (explaining that “[d]eveloping testimony by the use of leading
questions must be distinguished from substituting the words of the prosecutor for the
testimony of the witness”). Orona is distinguishable, and Defendant’s reliance
thereon is misplaced. In Orona, defense counsel repeatedly objected to the

prosecutor’s use of leading questions of the complaining witness. Id. {J 15-18. While

the district court initially sustained the objections, it eventually permitted the witness
to be led. Jd. § 19. Thus, on appeal the defendant made an evidentiary—not
sufficiency—challenge and argued that the district court had abused its discretion in
allowing the prosecutor to lead the witness, an argument with which our Supreme
Court agreed under the particular facts of that case. Id 30.

37; Here, however, Defendant neither objected to the prosecutor’s leading
questions nor challenges on appeal the admissibility of the evidence elicited, yet
complains that the unobjected-to testimony is insufficient to support his conviction.
Defendant fails to cite any authority suggesting that a child-witness’s responses to a
prosecutor’s arguably leading questions, which garnered no objections, must be
disregarded in a sufficiency challenge, and we, therefore, assume none exists. See
State v. Vigil-Giron, 2014-NMCA-069, § 60, 327 P.3d 1129 (“[A]ppellate courts will
not consider an issue if no authority is cited in support of the issue and that, given no
cited authority, we assume no such authority exists.”). Additionally, to the extent
Defendant’s argument—that the prosecutor’s use of leading questions “diminishes
the evidentiary value of [Child’s] testimony”—invites us to reweigh the evidence, we
decline to do so. See State v. Trujillo, 2002-NMSC-005, § 28, 131 N.M. 709, 42 P.3d
814 (“We will not reweigh the evidence or substitute our judgment for that of the

jury.”). We note that much of Child’s testimony was developed through leading

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questions —likely owing to the fact that Child frequently expressed confusion upon | |
being asked broad, open-ended questions—and that Child often could not “recall”
things when initially asked but eventually remembered when the prosecutor posed the
question slightly differently. Thus, Child’s exchange with the prosecutor regarding
the intimidation charge was typical of his testimony throughout and established not
only that Child remembered telling police that Defendant threatened Child but more
importantly a factual basis upon which the jury could conclude that Defendant, in
fact, threatened Child.

38} We conclude that from the record of Child’s testimony, the jury could
reasonably infer that Defendant intimidated Child with the intent to keep him from
reporting the incident to law enforcement. Thus, we affirm Defendant’s conviction
for intimidation of a witness.

IV. Whether the District Court Committed Plain Error by Admitting Certain
Expert Testimony

(393 At trial, the State’s first witness was Sylvia Aldaz-Osborn. Over Defendant’s
objection, the district court qualified Aldaz-Osborn as an expert in forensic
interviewing. Aldaz-Osborn was allowed to watch Child’s videotaped deposition as
it was played to the jury and was then questioned by the prosecutor. The prosecutor
asked Aldaz-Osborn to, based on her training and experience as a forensic
interviewer, describe in what sort of ways Aldaz-Osborn has seen children react to

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trauma. Asking if she could use the video of Child’s deposition as an example, Aldaz-
Osborn stated, “When you saw [Child] going like this[, biting his lips,] that’s sort of
like he’s nervous to answer. .. . | would see that as getting nervous.” The prosecutor
then asked, “When children are interviewed, if they’re uncomfortable and nervous,
do they, in your experience, ... develop certain coping mechanisms?” Aldaz-Osborn
answered, “Yes, ma’am, they do.” Asked to describe what sorts of things she has |
observed and invited to use Child’s videotaped deposition as an example, Aldaz-
Osborn stated, “Well, I’ve seen what [Child] did with his mouth in going [(unknown
gesture)], or maybe they cry. Sometimes I’ve even seen them laughing because
they’re so nervous. Sometimes they won’t sit down.” The prosecutor then asked, “Do
they cope in certain ways, or have you seen them cope in certain ways, when they
don’t really want to relive what happened to them?” Aldaz-Osborn responded, “Yes,

ma’am, I have.” When the prosecutor asked, “And what did you observe in the video

with [Child]?” Aldaz-Osborn answered, “Him trying to recall incidents and saying he

didn’t remember.”
{40} While Defendant objected to the district court’s qualification of Aldaz-Osborn
as an expert witness in forensic interviewing, he failed to object to the admissibility

of any of her specific testimony. On appeal, Defendant does not argue that the district

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court abused its discretion in qualifying Aldaz-Osborn as an expert witness’ but
instead contends that the district court erred by admitting Aldaz-Osborn’s testimony
regarding “the alleged meaning behind [Child’s] observable behavior” in Child’s
videotaped deposition. Conceding that he failed to object to the specific aspects of
Aldaz-Osborn’s testimony of which he now complains, Defendant acknowledges that
we review this part of his challenge for plain error only. See State v. Montoya, 2015-
NMSC-010, 4 46, 345 P.3d 1056 (explaining that where the defendant did not
preserve an objection to the admission of expert testimony, courts review “for plain
error’).

{41} Plain error is an error that “affects a substantial right” of the accused. Rule 11-
103(A) NMRA; Montoya, 2015-NMSC-010, 46. “To find plain error, [an appellate
court] must be convinced that admission of the testimony constituted an injustice that
created grave doubts concerning the validity of the verdict.” /d. (internal quotation
marks and citation omitted). “In determining whether there has been plain error, we

must examine the alleged errors in the context of the testimony as a whole.” State v.

“Defendant’s two passing references in his briefs to defense counsel’s
objections at trial and rote recitations of the “abuse of discretion” standard of review
for preserved arguments are insufficient to warrant further consideration by this
Court. See State v. Guerra, 2012-NMSC-014, 4 21, 278 P.3d 1031(explaining that
appellate courts are under no obligation to review unclear or undeveloped
arguments).

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Dylan J., 2009-NMCA-027, § 15, 145 N.M. 719, 204 P.3d 44 (omission, internal
quotation marks, and citation omitted). Where there exists “ample evidence outside
of [the complained-of expert] testimony to support the jury’s finding of guilt[,]” it is
not plain error to admit such testimony. Montoya, 2015-NMSC-010, { 49. |

42}, Defendant primarily complains about Aldaz-Osborn’s testimony regarding
Child’s inability to remember certain details during his deposition, arguing that
Aldaz-Osborn’s “expert testimony gave the jury an unfounded basis to reach an
inference contrary to common sense[,] i.e., that a claimed lack of memory is
indicative of a traumatic memory.” Defendant points to “at least ten instances where
[Child] stated . . . he could not recall something[.]” However, as Defendant
acknowledges, the vast majority of those instances related to the details of what the
videos Defendant exhibited to Child showed, and we have already held that
Defendant’s unlawful exhibition conviction must be reversed. With respect to the
evidence supporting Defendant’s convictions for CSCM and intimidation of a
witness, we conclude that Child’s testimony alone supports the jury’s findings of
guilt. While it is true that it is plain error to allow an expert on direct examination to
“repeat to the jury [a] complainant’s statements, made to the expert during [an]
evaluation,” because such testimony “amounts to an indirect comment on the alleged

victim’s credibility[,]” that is not what happened in this case. State v. Lucero, 1993-

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NMSC-064, 9 19, 116 N.M. 450, 863 P.2d 1071. Here, the jury heard Child’s
statements about what happened directly from Child through his videotaped
deposition. The jury had the independent opportunity to observe Child’s
behaviors—including biting his lips—and the full context in which he could not
remember certain details. As discussed in the previous section, while Child initially
could not recall Defendant’s threat to him, he displayed clear and immediate
recollection of the threat as soon as the prosecutor asked a follow-up question and
then confirmed that Defendant, indeed, had so threatened him. Child also had no
difficulty recalling and never hesitated in affirmatively answering questions about
whether Defendant had touched Child’s penis. The only time Child stated that he
could not recall something related to the touching was in response to the prosecutor’s.
question, “Did [Defendant] touch your part over your clothes or under your clothes?”
But Child definitively and repeatedly stated that Defendant had touched Child’s

penis, making Aldaz-Osborn’s statement that she saw Child “trying to recall incidents |

*Child’s later testimony clarified that the touching occurred “outside” of his
clothes and was not skin-to skin. As such, the district court instructed the jury as to
CSCM in the third degree rather than CSCM in the second degree as the State had
originally charged in order to conform to the evidence elicited at trial. Compare
NMSA 1978, § 30-9-13(C) (2003, amended 2004) (providing that CSCM in the third
degree “consists of all criminal sexual contact of a minor” (emphasis added)), with
§ 30-9-13(B) (providing that CSCM “in the second degree consists of all criminal
sexual contact of the unclothed parts of a minor” (emphasis added)).

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and saying he didn’t remember” irrelevant to the jury’s determination that Defendant
was guilty of CSCM. We thus hold that the admission of Aldaz-Osborn’s testimony
did not affect a substantial right of Defendant or create grave doubts concerning the

validity of the CSCM and intimidation verdicts, and, as a result, no plain error

‘warranting reversal exists.

CONCLUSION

43} For the foregoing reasons, we affirm Defendant’s convictions for CSCM and
intimidation of a witness, reverse Defendant’s convictions for CDM and unlawful
exhibition of motion pictures to a minor, and remand for further proceedings in light
of this opinion.

445 ITIS SO ORDERED.

2 Mde~

J. MILES HANISEE, Judge

WE CONCUR:

CHAEL E. VAGIL, Judge

. GARCIA, Judge

2H Coes

January 23, 2018- State of New Mexico v. Gavino Luna, No. A-1-CA-34709

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