June 29, 2022- State of New Mexico v. Fermin Moreno-Ortiz, No. A-1-CA-39180

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

_ Court of Appeals of New Mexico
Opinion Number: Filed 6/29/2022 10:58 AM

Filing Date: June 29, 2022 Al. we [Ee |
Mark Reynolds

No. A-1-CA-39180

STATE OF NEW MEXICO,
Plaintiff-Appellee,

V.

FERMIN MORENO-ORTIZ,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Carrie Cochran, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Fermin Moreno-Ortiz appeals his conviction for one count of	3
criminal sexual penetration (CSP) in the third degree, contrary to NMSA 1978,	4
Section 30-9-11(F) (2009). Defendant challenges the sufficiency of the evidence	5
supporting his conviction and argues that a witness’s statement offered by the	6
prosecution that Defendant is “savage and tries to hook up with all the girls” is	7
inadmissible character evidence requiring reversal.	8
{2} 	We conclude that sufficient evidence in the record supports Defendant’s	9
conviction, and that, although the witness’s statement was character evidence which	10
was inadmissible under Rule 11-404(A)(1) NMRA, Defendant did not object.	11
Because its admission was not plain error requiring reversal, we affirm Defendant’s	12
conviction.	13
BACKGROUND	14
{3} 	The charges in this case arose when Victim attended a party in a house	15
Defendant shared with friends. Victim was acquainted with Defendant, but testified	16
that she had no interest in dating him. Carlos Nagdi, a young man whom Victim was	17
attracted to and with whom she had once before had a sexual encounter, was also in	18
attendance. Everyone at the party was drinking. Both Nagdi and Victim testified that	19

2
they had quite a lot to drink that night. Nagdi estimated that he had more than twenty	1
drinks.	2
{4} 	At one point, Victim was feeling “really drunk” and moved into the den to	3
sleep it off. Nagdi followed her and they began making out. Nagdi and Victim agreed	4
that this conduct was consensual. Victim testified that she “blacked out” and the next	5
thing she remembers was waking up in Defendant’s bedroom. She testified that	6
when she “came to,” Nagdi was in front of her with his penis in her mouth, and	7
Defendant was behind her, penetrating her vaginally. Victim testified that she	8
consented to sex with Nagdi but not with Defendant. Victim reported the incident to	9
police early the following morning.	10
{5} 	Nagdi was called to the stand by the prosecution. He testified that he had	11
consensual sex with Victim in Defendant’s bedroom. He claimed Victim was	12
interactive and engaged the entire time. He admitted, however, that he was so drunk	13
at the time he could not remember parts of the sexual encounter.	14
{6} 	Nagdi was interviewed at the police station the morning after the party. The	15
interview was not offered or admitted into evidence at trial. Nagdi, however, was	16
asked by the prosecution on direct examination whether during the police interview	17
he had made the statement that “[Defendant] is savage and tries to hook up with all	18
the girls.” Nagdi denied making that statement. Later the prosecutor questioned	19
Detective Guerrero, one of the officers who interviewed Nagdi, about whether Nagdi	20

3
had made the statement during his interview at the police station. Detective Guerrero	1
contradicted Nagdi, testifying that she recalled Nagdi making that statement.	2
Defendant did not object to this testimony.	3
{7} 	Defendant was found guilty of third degree criminal sexual penetration (force	4
or coercion). On appeal, Defendant argues (1) the evidence is insufficient to support	5
his conviction; and (2) the admission of Nagdi’s statement that “[Defendant] is	6
savage and tries to hook up with all the girls” requires reversal.	7
DISCUSSION	8
I. 	Sufficient Evidence in the Record Supports Defendant’s Conviction	9
{8} 	Defendant argues that his conviction is not supported by sufficient evidence	10
in the record. Specifically, Defendant claims that the State failed to prove that Victim	11
was unconscious, asleep or physically helpless when Defendant had sex with her and	12
that even if Victim was unconscious, asleep or physically helpless, Defendant knew	13
or had reason to know of her condition. Defendant points to Nagdi’s testimony that	14
Victim was responsive while he was having sex with her and claims that the term	15
“blacked out,” which was used by the Victim, is ambiguous and can refer to being	16
unconscious or instead to being unable to remember, while behaving normally.	17
{9} 	The State argues that the Victim’s use of the terms “blacked out” and “came	18
to” generally refers to being unconscious or physically helpless, and that the	19
inference drawn by the jury that Defendant knew or should have known about	20

4
Victim’s condition was reasonable. We agree with the State and conclude that the	1
evidence was sufficient to support the jury’s verdict.	2
{10} 	In reviewing the sufficiency of the evidence, we begin by viewing “the	3
evidence in the light most favorable to the guilty verdict, indulging all reasonable	4
inferences and resolving all conflicts in the evidence in favor of the verdict.” State	5
v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and citation	6
omitted). We then consider “whether, after viewing the evidence in the light most	7
favorable to the prosecution, any rational trier of fact could have found the essential	8
elements of the crime beyond a reasonable doubt.” State v. Cunningham, 2000-	9
NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation	10
omitted). “Contrary evidence supporting acquittal does not provide a basis for	11
reversal because the jury is free to reject [the d]efendant’s version of the facts.” State	12
v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “The jury instructions	13
become the law of the case against which the sufficiency of the evidence is to be	14
measured.” Holt, 2016-NMSC-011, ¶ 20 (alterations, internal quotation marks, and	15
citation omitted).	16
{11} 	In this case, the jury was instructed that to find Defendant guilty of criminal	17
sexual penetration by force or coercion, they must find the following elements of the	18
crime beyond a reasonable doubt: “(1) [D]efendant caused [Victim] to engage in	19
sexual intercourse or anal intercourse; (2) [Victim] was unconscious, asleep or	20

5
physically helpless AND [D]efendant knew or had reason to know of the condition	1
of [Victim]; (3) This happened in New Mexico on or about April 21-22, 2016.” See	2
UJI 14-944 NMRA.	3
{12} 	Defendant 	admitted 	to 	engaging 	in 	sexual 	intercourse 	with 	Victim,	4
establishing the first element of the offense. Defendant argues that the second	5
element—that Victim was unconscious, asleep or physically helpless—was not	6
established by the evidence. This element requires the jury to assess Victim’s	7
condition at the time of the incident. Victim testified that she “blacked out” and did	8
not remember anything that happened from the time she started making out with	9
Nagdi in the den until she “came to” in Defendant’s bedroom to find Nagdi and	10
Defendant having sex with her.	11
{13} 	In addition to Victim’s testimony, the State called an expert witness, a	12
toxicologist, to testify about blood test results showing the amount of alcohol and	13
other substances Victim had in her body that night and the effect of those substances	14
on Victim at the time of the incident. The toxicologist estimated that Victim’s blood	15
alcohol content would have been at least 0.125 g/100mL approximately five hours	16
earlier when the incident at issue took place, well above the 0.08 g/100 mL	17
presumptive intoxication limit for driving a car. See NMSA 1978, § 66-8-102(C)(1)	18
(2016). The toxicologist also testified that Victim had taken a seizure medication	19

6
that, when combined with alcohol, can cause excessive sleeping, confusion, and	1
difficulties with memory or speaking.	2
{14} 	While Defendant concedes that this testimony was sufficient to prove that	3
Victim “blacked out,” he argues that being “blacked out” does not necessarily mean	4
that she was “unconscious, asleep or physically helpless,” as required by the jury	5
instruction, or that her appearance and conduct would necessarily put others on	6
notice that she was unable to consent. Defendant relies on Nagdi’s testimony that	7
Victim was awake and interacting with him for the entire sexual encounter. Nagdi,	8
however, also admitted that he did not recall long periods from that night, including	9
some of the time he was having sex with Victim, because he had at least twenty	10
drinks that night.	11
{15} 	Resolving all disputed facts in favor of the State and indulging all reasonable	12
inferences in support of the verdict, as we must, see Holt, 2016-NMSC-011, ¶ 20,	13
we conclude that the evidence is sufficient to support the jury’s conclusion that	14
Victim was “unconscious, asleep or physically helpless,” and that Defendant knew	15
or had reason to know of Victim’s condition. It was the duty of the jury to weigh the	16
evidence and to decide how to resolve the contradictions in Nagdi’s testimony. See	17
Romero v. H. A. Lott, Inc., 1962-NMSC-037, ¶ 11, 70 N.M. 40, 369 P.2d 777 (“Mere	18
inconsistencies or perhaps contradictions in the testimony of a witness only affect	19
his credibility and it is the duty of the trier of the facts to weigh the evidence,	20

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determine the credibility of the witness and the weight to be given the testimony,	1
and, where the truth lies.”). Whether Victim was “unconscious, asleep or physically	2
helpless,” and whether her condition was or should have been visible to Defendant	3
are questions of fact for the jury to decide based on all the evidence. The fact that	4
Victim’s statement that she “blacked out” was ambiguous and could have been	5
interpreted in a manner that might support acquittal, does not mean that the evidence	6
was insufficient to support the decision made by the jury. See Rojo, 1999-NMSC-	7
001, ¶ 19 (“Contrary evidence supporting acquittal does not provide a basis for	8
reversal because the jury is free to reject [the d]efendant’s version of the facts.”).	9
There is sufficient evidence in the record to support the jury’s verdict.	10
II. 	Although 	Nagdi’s 	Statement 	Was 	Inadmissible 	Character 	Evidence	11
Offered to Show Propensity, Its Admission Did Not Amount to Plain	12
Error Requiring Reversal	13
{16} 	Defendant next argues that Nagdi’s statement to the police that “[Defendant]	14
is savage and tries to hook up with all the girls” was inadmissible evidence of bad	15
character and that its admission requires reversal and remand for a new trial. The	16
State 	denies 	both 	that 	the 	statement 	was 	inadmissible, 	and, 	even 	if 	it 	was	17
inadmissible, that its admission was sufficiently prejudicial to require reversal. We	18
agree that the statement’s admission does not require reversal under the doctrine of	19
plain error.	20

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A. 	Standard of review	1
{17} 	The parties disagree about the proper standard of review on appeal. The State	2
claims that Defendant failed to object to either of the two instances where the	3
prosecution relied on the statement at trial. In the absence of an objection, the State	4
contends that this Court should review for fundamental error. Although Defendant	5
admits he made no objection to the prosecution’s second use of the statement in	6
questioning Detective Guerrero, he claims he objected to the original question to	7
Nagdi and argues that our review, therefore, should be for reversible error.	8
{18} 	Our review of the transcript shows that defense counsel did not object either	9
to the prosecution’s original question to Nagdi about whether he made this statement	10
in his police interview or to the prosecution’s subsequent questioning of Officer	11
Guerrero impeaching Nagdi’s denial. When a timely objection has not been made,	12
we review the admission of evidence for plain error.1 See State v. Lucero, 1993-	13
NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071 (stating that plain error applies to	14
evidentiary matters that were not brought to the attention of the district court); see	15
also Rule 11-103(E) NMRA (“A court may take notice of a plain error affecting a	16
substantial right, even if the claim of error was not properly preserved.”). To reverse	17
1Defendant objected later to a different question, which Defendant claimed
had 	been 	asked 	and 	answered 	previously. 	No 	objection 	was 	made 	to 	the
prosecution’s question about whether he recalled “telling Detective Guerrero that
[Defendant] is savage and tries to hook up with all the girls.”

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a conviction based on plain error, the reviewing court must be convinced that the	1
testimony was admitted in error and that its admission affected the “substantial	2
right[s]” of the accused. Rule 11-103(E). “[T]he Court must be convinced that	3
admission of the testimony constituted an injustice that created grave doubts	4
concerning the validity of the verdict.” State v. Montoya, 2015-NMSC-010, ¶ 46,	5
345 P.3d 1056 (internal quotation marks and citation omitted).	6
B. 	The Statement Was Improper Character Evidence Under Rule 11-	7
404(A)(1)	8
{19} 	We look first at whether the challenged statement was admitted in error. In	9
this case, the jury heard the statement twice: first when Nagdi was questioned by the	10
prosecutor, and again when the prosecution impeached Nagdi’s denial that he had	11
made the statement with Detective Guerrero’s contrary testimony. Defendant claims	12
that the statement that he “is savage and tries to hook up with all the girls” is evidence	13
of bad character, and that it was offered by the prosecution for the sole purpose of	14
showing that Defendant acted in conformance with his character by committing the	15
crime charged.	16
{20} 	Rule 11-404(A)(1) is designed to prohibit admission of negative character	17
traits to prove that a defendant acted in accordance with those traits. State v. Lucero,	18
1992-NMCA-107, ¶ 9, 114 N.M. 489, 840 P.2d 1255. In a criminal case, the	19
prosecution is not permitted to introduce negative character evidence if its sole aim	20
is 	proving 	the 	accused’s 	propensity 	to 	commit 	the 	crime 	charged. 	See 	id.	21

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(“Testimony 	which 	amounts 	to 	evidence 	of 	a 	defendant’s 	bad 	character 	or	1
disposition to commit the crime charged is clearly inadmissible.”). Such evidence is	2
disallowed, not because character evidence lacks relevance, but because, although	3
relevant, it has a substantial prejudicial effect. State v. Martinez, 2008-NMSC-060,	4
¶ 23, 145 N.M. 220, 195 P.3d 1232; see also State v. Rackley, 2000-NMCA-027,	5
¶ 12, 128 N.M. 761, 998 P.2d 1212 (“Evidentiary rules restricting the use of	6
propensity evidence reflect a judgment that the probative value of such evidence is	7
outweighed by unfair prejudice, confusion and waste of time.”).	8
{21} 	Although the State generally denies that it questioned Nagdi about the	9
statement to suggest that Defendant had a propensity to act consistently with Nagdi’s	10
negative description of his character, the State offers no legitimate purpose for	11
admitting this statement of bad character. The State fails to articulate any permissible	12
consequential fact it was attempting to prove with Nagdi’s statement. See State v.	13
Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828 (holding that a	14
permissible purpose must be articulated).	15
{22} 	Although articulating no permissible purpose justifying admission of the	16
statement, the State claims that its questioning of Detective Guerrero was justified	17
to impeach Nagdi and undermine his credibility. This Court in Lucero, however,	18
rejected as improper the state’s successful attempt in that case to introduce	19
inadmissible evidence of prior misconduct by claiming it was impeachment of the	20

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defendant’s denial that misconduct had occurred. 1992-NMCA-107, ¶ 14. Lucero	1
noted that allowing impeachment using otherwise inadmissible evidence of bad	2
character “permitted the [s]tate to introduce a collateral, irrelevant, and potentially	3
prejudicial issue into the case.” See id.; see also State v. Ross, 1975-NMCA-056,	4
¶¶ 6-9, 88 N.M. 1, 536 P.2d 265 (disallowing impeachment with testimony about	5
bad character because it would have been inadmissible under Rule 11-404 on direct	6
examination).	7
{23} 	We hold, therefore, that the challenged statement was inadmissible evidence	8
of bad character, which had no purpose other than showing that Defendant acted	9
consistently with his bad character, committing the crime charged. Such a statement	10
was inadmissible, both when offered on direct examination and when used to	11
impeach Nagdi’s denial that he made the statement.	12
C. 	Admission of the Statement Does Not Amount to Plain Error	13
{24} 	Having held that Nagdi’s statement was inadmissible character evidence, we	14
now turn to the second prong of the plain error analysis: whether the admission of	15
the evidence creates “grave doubts concerning the validity of the verdict” or the	16
fairness of the trial. See Montoya, 2015-NMSC-010, ¶ 46. “Plain error is an	17
exception to the general rule that parties must raise timely objection to improprieties	18
at trial, and therefore it is to be used sparingly.” State v. Dylan J., 2009-NMCA-027,	19
¶ 15, 145 N.M. 719, 204 P.3d 44 (internal quotation marks and citation omitted).	20

12
{25} 	In this case, we conclude that the plain error doctrine does not demand	1
reversal. Defendant’s conviction turned primarily on whether Victim was too	2
impaired to consent to have sex and whether the extent of her impairment should	3
have been obvious to Defendant. The statement that “[Defendant] is savage and tries	4
to hook up with all the girls” suggests only that Defendant looks for an opportunity	5
to have sex, not that he has forcible sex or sex with nonconsenting people. Defendant	6
did not deny seeking and having sex with Victim; the questions for the jury focused	7
on Victim’s level of intoxication and consciousness and on whether her inability to	8
consent would have been apparent to a reasonable person. We, therefore, conclude	9
that the admission of this statement did not create substantial prejudice to Defendant	10
concerning either the validity of the verdict or the fairness of the trial required to	11
constitute plain error.	12
CONCLUSION	13
{26} 	For the reasons stated, we affirm Defendant’s conviction.	14
{27} 	IT IS SO ORDERED.	15
_________________________________	16
JANE B. YOHALEM, Judge	17

—

WE CONCUR:

oMule—

J. MILES HANISEE, Chief Judge

PreelO fae.

GERALD E. BACA, Judge

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