A-1-CA-37753 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed gue) 11:26 AM

Plaintiff-Appellee, fon rs
Mark Reynolts
Vv. No. A-1-CA-37753
ROBERT WOODY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Douglas R. Driggers, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Jim Darnell, P.C.

Jim Darnell

James Jeep Darnell

Cris Estrada
El Paso, TX

for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
43 Defendant Robert Woody appeals from his conviction of misdemeanor
criminal sexual contact (CSC), in violation of NMSA 1978, Section 30-9-12(D)

(1993). Defendant raises two issues on appeal: (1) there was insufficient evidence to

support his conviction, and (2) the district court abused its discretion in denying his
motion for a new trial based on newly discovered evidence. We affirm.
BACKGROUND

3 Because this is a memorandum opinion and the parties are familiar with the
facts and procedural history of this case, we briefly set out the following facts and
reserve discussion of additional facts as necessary for our analysis. At trial, Victim
testified that he scheduled an appointment with Defendant, a neurologist, after he
started experiencing blackouts, seizures, and memory problems. Victim was
eighteen years old at the time. Upon entering the examining room at Defendant’s
office, Defendant directed Victim to remove his shirt. The examination did not seem
out of the ordinary at first, with Defendant feeling Victim’s neck and seeing how
Victim walked. However, Defendant then directed Victim to remove his pants and
underwear and began rubbing Victim’s penis and testicles, asking Victim if he liked
the way Defendant was touching him. Defendant also held and squeezed Victim’s
testicles, which Victim explained were prosthetics he received after a dog mauled
his genitalia as an infant. This lasted for approximately two minutes. When Victim
got dressed after the examination, Defendant kissed Victim on the neck and told him
that he loved him. Defendant also hugged Victim, pressing his erect penis against
Victim in the process. No other witnesses were present during the examination.

Defendant testified in his defense, largely disputing Victim’s version of the events

that took place in the examination room and insisting that any examination of
Victim’s genitals was medically proper.

433, The jury found Defendant guilty of one count of CSC. Victim read a victim
impact statement at Defendant’s sentencing several months later, in which he
described various traumatic events that occurred both before and after his
appointment with Defendant. Following Victim’s testimony, Defendant moved for
a new trial on the basis that the traumatic events Victim revealed in his victim impact
statement called his testimony at trial into question. The district court denied
Defendant’s motion, and this appeal followed.

DISCUSSION

Sufficiency of the Evidence

4 We first address Defendant’s sufficiency argument. Section 30-9-12(A)
defines CSC as “the unlawful and intentional touching of or application of force,
without consent, to the unclothed intimate parts of another who has reached his
eighteenth birthday[.]” Section 30-9-12(E), in turn, defines “intimate parts” as “the
primary genital area, groin, buttocks, anus or breast.” Consistent with the applicable
uniform jury instruction, UJI 14-915 NMRA, the district court instructed the jury to
find Defendant guilty of CSC if they found beyond a reasonable doubt that, among
other things: (1) “[D]efendant touched or applied force to the unclothed penis and

testicles of [Victim] without [Victim’s] consent’; (2) “[D]efendant used physical

force”; and (3) “[D]efendant’s act was unlawful[.]” See UJI 14-915, use note 3
(requiring the instruction to “[nJame one or more of the following parts of the
anatomy touched: ‘groin,’ ‘anus,’ ‘buttocks,’ “breast, ‘mons pubis,’ “penis,”

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‘testicles,’ ‘mons veneris,’ or ‘vulva’ ”). The district court also provided the jury
with the definition of “testicles” listed in UJI 14-981 NMRA, which states that “[t]he
‘testicles’ are the male sex glands which are located in a sac known as the scrotum.
The testicles are round or oval and produce the male sperm.” See UJI 14-915, use
note 3 (requiring the district court to provide a definition of the described body parts
if a definition is provided in UJI 14-981 or the jury requests one).

{53}, Defendant’s sufficiency challenge focuses on the first element of the jury
instructions requiring the jury to find that he touched Victim’s penis and testicles.
Defendant does not claim there was insufficient evidence that he touched Victim’s
penis. However, because the jury instructions required the State to prove that
Defendant touched Victim’s penis and testicles, Defendant argues the State failed to
present sufficient evidence to support the first element because Victim had prosthetic
testicles incapable of “produc[ing] the male sperm.” See UJI 14-981. In other words,
Defendant argues that the State was required to prove that Victim’s testicles satisfied
the given definition of testicles in addition to the underlying elements of CSC.

{6} The State counters that the instruction’s use of the word “and” effectively

created an unnecessary element (1.e., that Defendant touched Victim’s penis in

addition to his testicles, as opposed to merely touching one or the other). The State
contends that the purported insufficiency of the evidence underlying this
unnecessary element does not require reversal so long as the State proved that
Defendant touched one of those body parts, either of which indisputably constitute
“intimate parts” under Section 30-9-12(E). Further, the State contends that even if it
was required to prove that Defendant touched Victim’s penis and testicles due to the
wording of the jury instructions, the fact that Victim’s testicles could not produce
sperm did not render the evidence insufficient because the definitional instruction
did not add an essential element. Concluding that the former argument is dispositive,
we need not address the latter.

{3} In reviewing a challenge to the sufficiency of the evidence, “[t]he relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Chavez, 2009-NMSC-035, § 11, 146
N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted). “The
reviewing court does not weigh the evidence or substitute its judgment for that of
the fact finder as long as there is sufficient evidence to support the verdict.” /d.
(internal quotation marks and citation omitted). Hence, we “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, § 26, 128 N.M. 711, 998 P.2d 176.

{33 | While we generally adhere to the principle that “[jJury instructions become
the law of the case against which the sufficiency of the evidence is to be measured], ]”
State v. Jackson, 2018-NMCA-066, § 22, 429 P.3d 674 (internal quotation marks
and citation omitted), the United States Supreme Court has made clear that “[the
law-of-the-case] doctrine does not bear on how to assess a sufficiency challenge
when a jury convicts a defendant after being instructed . . . on all charged elements
of a crime plus an additional element.” Musacchio v. United States, U.S. _,
___, 136 S. Ct. 709, 716 (2016). In such cases, “a sufficiency challenge should be
assessed against the elements of the charged crime, not against the erroneously
heightened command in the jury instruction.” /d. at 715.

{9} This conclusion stems from the principle that a reviewing court’s sufficiency
review is only “a limited inquiry tailored to ensure that a defendant receives the
minimum that due process requires: a meaningful opportunity to defend against the
charge against him and a jury finding of guilt beyond a reasonable doubt.” /d.
(internal quotation marks and citation omitted). Such a review does not depend on
how the jury was instructed, but rather “the legal question whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” /d.

(internal quotation marks and citation omitted). “When a jury finds guilt after being
instructed on all elements of the charged crime plus one more element, the jury has
made all the findings that due process requires.” /d. Thus, “failure to introduce
evidence of an additional element does not implicate the principles that sufficiency
review protects.” /d.

410} This Court has adopted the reasoning of Musacchio. See State v. Carpenter,
2016-NMCA-058, 4 16, 374 P.3d 744; see also State v. Lente, 2019-NMSC-020,
954, 453 P.3d 416 (quoting Musacchio in setting out sufficiency review standard).
In Carpenter, the defendant was charged with second degree murder and ultimately
convicted of the lesser included offense of involuntary manslaughter. 2016-NMCA-
058, §§ 1, 3. In addition to instructing the jury on the statutory elements of
involuntary manslaughter (as provided in the applicable uniform jury instruction),
the district court instructed the jury to find that “[the dJefendant committed an
unlawful act not amounting to a felony[.]” /d. § 7. It was unclear why the district
court departed from the uniform jury instruction to require this additional element.
Id.

fii; On appeal, the defendant challenged his conviction on the basis that
insufficient evidence supported this additional element. /d. § 9. Relying on

Musacchio, this Court affirmed the defendant’s conviction despite any purported

O~AI1NAn & WwW

insufficiency of the evidence supporting the extraneous element. /d. | 16. Similar to
the defendant in Musacchio, we noted,
[the djefendant d[id] not dispute that he was properly charged with the
statutory elements for involuntary manslaughter as a lesser included
offense to second degree murder; that he was given a meaningful
opportunity to defend himself against those charges; or that the
evidence was sufficient to convict him of the statutory elements of
involuntary manslaughter.
Id. § 16.
42} Taking our lead from Musacchio and Carpenter, we reject Defendant’s
contention that the State’s alleged failure to prove that Defendant touched Victim’s
testicles in addition to his penis requires reversal. Defendant does not dispute that
the jury was charged with finding all the statutory elements to convict him of CSC
(i.e., Defendant unlawfully and intentionally touched or applied force to Victim’s
“unclothed intimate parts” without consent). See § 30-9-12(A). Defendant does not
claim that the evidence was insufficient for a rational juror to convict Defendant of
CSC based on his touching of Victim’s penis. Nor does Defendant claim he was
deprived a meaningful opportunity to mount a defense against the charge.
3} Rather, Defendant argues that Musacchio and Carpenter are distinguishable
because the grand jury indictment in this case did not differ from the jury instructions

in that it also “requir[ed] both elements to be satisfied beyond a reasonable doubt.”

Defendant further argues that the instant case 1s distinguishable because the given

instructions “did not diverge at all” from the uniform jury instructions. We disagree
with both contentions.

4} Regarding Defendant’s first point, we note that the grand jury indictment did
not “requir[e] both elements to be satisfied beyond a reasonable doubt.” Instead, the
relevant portion of the indictment alleged that Defendant “without consent,
touch[ed] or appl[ied] force to the unclothed intimate parts of [Victim], to wit: his
testicles and penis[.]” Defendant provides no authority for the proposition that an
indictment specifying multiple acts that, if proven, independently constitute a
violation of the same statute requires the State to prove each act in order to obtain a
conviction for the charged crime, and in fact such a position is inconsistent with the
purpose of an indictment. See State v. Blea, 1973-NMCA-013, § 11, 84 N.M. 595,
506 P.2d 339 (“The purpose of an indictment or information is: First, to furnish an
accused with such a description of the charge against him as will enable him to make
his defense and to avail himself of his conviction or acquittal against a subsequent
prosecution for the same offense; and second, that the court may be informed as to
the facts alleged so it may determine whether the facts are sufficient to support a
conviction, if one should be had.”). “When a party does not cite authority to support
an argument, we may assume no such authority exists.” State v. Vandever, 2013-
NMCA-002, 419, 292 P.3d 476. We, therefore, reject Defendant’s contention that

the indictment required the State to prove that Defendant touched Victim’s penis and

testicles in order to convict him of CSC. See State v. Ponce, 2004-NMCA-137, ¥ 36,
136 N.M. 614, 103 P.3d 54 (declining to address an assertion where the defendant
provided no authority in support of that assertion).

5} Regarding Defendant’s second point, we note that UJI 14-915 does not
specify whether the allegedly touched intimate parts must be listed in the disjunctive
or conjunctive, so for Defendant to state that the given instructions “did not diverge
at all” from the uniform jury instruction is inaccurate. Moreover, Defendant does
nothing to explain why this purportedly distinguishable fact should change the
outcome of this case. As in Musacchio and Carpenter, Defendant does not dispute
that the indictment included all the statutory elements for CSC, that he was given a
meaningful opportunity to defend himself against that charge, or that the evidence
was insufficient to convict him of the statutory elements of CSC. See Musacchio,
—_US.at__, 136 S. Ct. at 715-16; Carpenter, 2016-NMCA-058, 4 16. Having
been given no principled reason to depart from precedent, we reject Defendant’s

sufficiency argument.!

'Because Defendant does not contend that evidence was insufficient to convict
him of the statutory elements of CSC, we need not undertake a full sufficiency
review. See State v. Fuentes, 2010-NMCA-027, § 29, 147 N.M. 761, 228 P.3d 1181

(explaining that this Court need not consider undeveloped arguments).

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Motion for New Trial
{16} Defendant next challenges the district court’s denial of his motion for a new
trial based on Victim’s testimony at Defendant’s sentencing hearing. Specifically,
Defendant points to Victim’s testimony that he (1) “hallucinated that he had been
sexually molested on another occasion [after meeting with Defendant but before the
trial] and was hospitalized as a result” and (2) was “molested when he was less than
twenty[-]six . . . days old and [was] involved in the prosecution . . . of his father for
that assault.’” Finding no abuse of discretion, we affirm the district court’s denial of
Defendant’s motion for a new trial.
73 “Motions for new trials on the basis of newly discovered evidence are not
encouraged.” State v. Desnoyers, 2002-NMSC-031, § 26, 132 N.M. 756, 55 P.3d
968, abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC-
027, 96, 138 N.M. 264, 119 P.3d 144.

A motion for a new trial on grounds of newly-discovered evidence will

not be granted unless the newly-discovered evidence fulfills all of the

following requirements: 1) it will probably change the result if a new

trial is granted; 2) it must have been discovered since the trial; 3) it

could not have been discovered before the trial by the exercise of due

diligence; 4) it must be material; 5) it must not be merely cumulative;
and 6) it must not be merely impeaching or contradictory.

*We take these quotations from Defendant’s brief. The State points out some
factual inaccuracies in Defendant’s characterization of Victim’s testimony at the
sentencing hearing. We need not delve into these inaccuracies, however, because
Defendant’s argument fails even if his characterization of the testimony is accurate.

State v. Garcia, 2005-NMSC-038, 48, 138 N.M. 659, 125 P.3d 638. It is the
defendant’s burden to prove that the evidence met all six requirements. See
Desnoyers, 2002-NMSC-031, 9 26. We review the denial of a motion for a new trial
for a “manifest abuse of discretion” and will only reverse if the district court’s ruling
is “arbitrary, capricious or beyond reason.” /d. (internal quotation marks and citation
omitted).

4183 Here, the district court found, among other things, that the newly discovered
evidence failed the sixth requirement because it was merely impeaching. We agree.
Evidence is merely impeaching if its sole purpose is to discredit the veracity of a
witness’s testimony or the accuracy or authenticity of documentary evidence. See
State v. Roybal, 1928-NMSC-055, § 17, 33 N.M. 540, 273 P. 919 (“The term
‘impeachment’ is confined by legal usage to efforts which tend primarily to show
that the witness is not worthy of belief, in narration; in short, that he lies.”); Impeach,
Black’s Law Dictionary (11th ed. 2019) (defining “impeach,” 1n relevant part, as
“It]o discredit the veracity of (a witness) . . . [or] challenge the accuracy or
authenticity of (a document)”); cf State v. Layne, 2008-NMCA-103, § 13, 144 N.M.
574, 189 P.3d 707 (“Impeachment . . . gives a party the opportunity to discredit a
witness, so the jury properly has a way to determine whether a witness is untruthful

or inaccurate.” (internal quotation marks and citation omitted)).

4193 Defendant argues the newly discovered evidence is not merely impeaching
“because it would show either: 1) that [Victim] could have imagined the occurrence
based on hallucinations .. . or 2) that [Victim] used the same modus operandi that
he had utilized in the past to convict his father and/or to avoid living situations he
did not like.” Defendant claims that proving either of these theories goes beyond
impeachment because it would “corroborate[ Defendant’s] account . . . that his
actions were simply a medical examination that was misperceived by [Victim.]” In
support of his argument, Defendant relies on State v. Volpato, 1985-NMSC-017, 102
N.M. 383, 696 P.2d 471. In Volpato, the newly discovered evidence came from a
witness claiming that she saw two Hispanic men leave the scene of a murder at the
defendant’s pharmacy—testimony which corroborated the defendant’s claim that
two Hispanic men shot his wife in the course of a robbery. /d. {| 3, 5-6. The district
court denied the defendant’s motion for a new trial on the basis that it was “merely
contradictory of other evidence.” /d. § 8. Our Supreme Court disagreed, stating,
“While it is certainly true that [the witness’s] testimony was contradictory of the
[s]tate’s evidence, her testimony regarding events occurring outside the store also
corroborate[d the defendant’s previously uncorroborated|] account of events inside
the store.” Jd. | 9.

20} In contrast to Volpato, the newly discovered evidence in this case does not

directly corroborate Defendant’s testimony. Rather, it would only corroborate

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Defendant’s testimony in the sense that it could theoretically discredit Victim’s
account of what happened. This is the very definition of impeachment. Indeed,
Defendant’s own arguments on appeal belie his assertion that this evidence would
serve to assist Defendant in any other way other than to impeach Victim’s credibility.
Defendant’s briefing is replete with arguments along the lines that he is entitled to
“a full testing of [Victim’s] reliability and credibility[,]” “[t]he believability of . . .
[ Victim] was clearly the greatest issue before the jury[,]” and the newly discovered
evidence would “compromise [ Victim’s] reliability to discern what really happened”
or his “credibility to tell the truth.” Because Defendant fails to show that the newly
discovered evidence is not merely impeaching and cannot, therefore, satisfy all six
requirements for a new trial based on newly discovered evidence, we need not
address the other factors and conclude that the district court did not abuse its
discretion by denying Defendant’s motion.

CONCLUSION

213 For the foregoing reasons, we affirm.

223 ITIS SO ORDERED.

fesgusta K.. tA LELALSS LO
“AC&UELINE R. MEDINA, Judge

—

WE CONCUR:

Z MMe

J. MILES HANISEE, Chief Judge

LRDUS, Judge

July 7, 2020- State of New Mexico v. Robert Woody, No. A-1-CA-37753

Gesamter Gesetzestext

OCR transcription for search; preserved printed pages are authoritative

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