May 30, 2019- State of New Mexico v. Michael Cox, No. A-1-CA-35997

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No~ A-1-CA-35997
5 MICHAEL COX,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 Jerry H. Ritter, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	Laurie Blevins, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 .Bennett J. Baur, Chief Public Defender
15 	Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 	MEMORANDUM OPINION
19 M. ZAMORA, Chief Judge.
20 	{t} 	Michael Cox (Defendant) appeals his conviction for second-degree criminal
21 	sexual contact of a minor (CSCM) under 13 years of age, contrary to NMSA 1978,
22 Section 30-9-13(B)(l) (2003). Defendant raises six issues: (1) insufficient evidence;
Court of Appeals of New Mexico
Filed 5/30/2019 11:21 AM

1 (2) improper admission _of the Victim's prior consistent statements; (3) improper
.2 	admission of lay testimony regarding the Victim's change in behavior after the
3 CSCM and not allowing Defendant to rebut this testimony with evidence of the
4 Victim's medical history; (4) improper denial of Defendant's motion for new trial;
5 (5) cumulative error; and (6) ineffective assistance of counsel. We affirm.
6 	{2} 	Defendant's conviction was based in part on testimony that he touched his
7 then-girlfriend's five-year-old daughter (Victim) on her vagina on July 7, 2014.
8 Victim testified to the following events at trial. Victim and Defendant, who was her
9 mother's (Mother) boyfriend at the time, were sitting alone on Mother's bed in the
10 bedroom while Mother was showering. Defendant reached under Victim's shorts
11 	and underwear, and touched and pushed her "cuca" with his four fingers "too hard"
12 and that it "hurt" and she felt "horrible." Victim described her "cuca" as the front,
13 	private part of her body where she goes pee. Victim told Defendant to stop and he
14 told her to be quiet and-did not stop. After touching her "for kind of a long time,"
15 	Defendant stopped, smelled his hand, and went to the kitchen where he washed his
16 hands in the kitchen sink.
17 	{3} 	After her Mother got out of the shower, Victim walked across the street to
18 where her grandmother (Grandmother) and other extended family members live.
19 Later that evening, while being bathed, Victim told Grandmother what Defendant
20 did to her while she was on the bed with him. Grandmother and Aunt Blanca drove
2

1 Victim to the hospital for a medical exam by a sexual assault nurse examiner
2 (SANE). While on the way to the hospital, Victim again told her Grandmother and
3 her Aunt Blanca about what Defendant did to her. The next day, Victim told a
4 Safehouse forensic interviewer what happened. Defendant testified that "all the
5 allegations [of CSCM and CSPM-were] false."
6 	{4} 	At trial, the jury was instructed on the elements of both criminal sexual
7 penetration of a minor (CSPM) under the age of thirteen and the lesser-included ·
8 crime of criminal sexual contact of a minor (CSCM) under the age of thirteen. The
9 jury found Defendant guilty of CSCM. This appeal followed.
10 {5} 	Because this is a memorandum opinion and the parties are familiar with the
11 	facts and procedural history of the case, we reserve further discussion of pertinent
12 facts for our analysis.
13 	DISCUSSION
14 I. 	The State Presented Sufficient Evidence to Sustain the Guilty Verdict
15 	{6} 	In reviewing sufficiency of the evidence, "we must view the evidence in the
16 light most favorable to the guilty verdict, indulging all reasonable inferences and
17 resolving all conflicts in the evidence in favor of the verdict." State v. Holt, 2016-
18 NMSC-011, 120, 368 P.3d 409 (internal quotation marks and citation omitted). "In
19 that light, the Court determines whether any rational trier of fact could have found
20 the essential elements 	of the crime beyond a reasonable doubt." 	Id 	(internal
3

1 quotation marks and citation omitted). In conducting our inquiry, we do not reweigh
2 the evidence or substitute our judgment for that of the fact-finder. State v. Montoya,
3 	2005-NMCA-078,, 3, 137 N.M. 713, 114 P.3d 393. "Jury instructions become the
4 law of the case against which the sufficiency of the evidence is to be measured."
5 State 	v. 	Jackson, 	2018-NMCA-066, 	, 	22, 	429 	P.3d 	674, 	cert denied, 	2018-·
6 NMCERT- _ 	(No. S-1-SC-37267, Oct. 15, 2018).
7 	{7} 	To find Defendant guilty of CSCM, the jury had to find: (1) Defendant
8 touched or applied force to Victim's unclothed mons pubis, and/or mons veneris,
9 vulva and/or vagina; (2) Victim was a child under the age of thirteen; and (3) it
10 happened in New Mexico on or about July 8, 2014. See § 30-9-13(B)(l); see also
11 	UJI 14-925 NMRA. Defendant argues that the State failed to prove that he was the
12 perpetrator or that the allegations were not fabricated by Victim. 1 Defendant directs
13 	us to evidence he believes was sufficient to support an acquittal, consisting of: (1)
14 his denial of the allegations; (2) he and Mother had been broken up at the time of the
15 	alleged incident; (3) Victim told the Safehouse interviewer "I forgot all the other
16 story" thus demonstrating that "she was repeating what someone else told her to
17 say"; and (4) the recorded cell phone conversation also "showed that [Victim] was
18 coached into saying that [Defendant] touched her private area." The State argues that
1
Although Defendant reserves the argument related to insufficient evidence
for later in the brief in chief, for the purposes of brevity and clarity, we address it
first.
4

1 Victim's testimony as to the time, setting, and details of the abuse, without gaps in
2 memory, was sufficient to uphold the verdict. We agree.
3 	{8} 	First, although Defendant did deny committing CSPM or CSCM during his
4 testimony, the jury heard Victim testify that she was telling the truth when she
5 disclosed what Defendant had done to her in the bedroom, and heard Victim testify
6 during cross-examination that "nobody ever told [her] to say anything like this."
7 Mother also testified during cross-examination that she did not tell Victim "to say
8 anything about the Defendant putting his fingers in her vagina." Although Defendant
9 denied touching Victim's vagina, the jury sat as the finder of fact and judges of
10 credibility and chose to afford credibility to Victim. See State v. Fierro, 2014-
11 	NMCA;.004, 140,315 P.3d 319 (observing that the jury, not the appellate court must
12 "reconcile any conflicts in the evidence and determine where truth and credibility
13 	lies").
14 	{9} 	Second, Defendant directs us to his testimony that he and Mother were already
15 	broken up when Victim accused him of touching her vagina. Victim testified that
16 Defendant was dating and living with her Mother on the day he touched her vagina.
17 Grandmother testified that she saw Defendant coming out of Mother's trailer on the
· 18 	day she took Victim to the hospital. When defense counsel pressed Grandmother
19 about whether it is possible that she saw someone other than Defendant coming out
20 	of the trailer, she responded unequivocally: "No, it was him." Other family members
5

1 testified that they saw Defendant in front of Mother's house on the day Victim
2 disclosed what Defendant had done to her. Although Mother testified that she and
3 Defendant had broken up in early July, she also testified that that after the breakup,
4 Defendant had come back to the trailer twice and stayed over once. Based on this
5 testimony, it was reasonable for the jury to conclude that Defendant was still
6 involved with Mother to some degree and was in the trailer on the date Victim
7 disclosed that Defendant touched her vagina. See State v. Caudillo, 2003-NMCA-
8 042, 1 	7, 	133 	N.M. 	468, 	64 	P.3d 	495 	(stating that evidence 	of a direct or
9 circumstantial nature is sufficient if"a reasonable mind might accept [the evidence]
10 as 	adequate to 	support a conclusion." (internal quotation marks 	and citation
11 	omitted)).
12 	{to} 	Third, Defendant directs us to a section of Victim's Safehouse interview in
13 	which she stated she "forgot the rest of the story." Defense counsel asked Victim
14 during cross-examination whether she remembered making the statement during her
15 	Safehouse interview. Victim responded that she remembered and explained "[t]hat
16 meant that I forgot all the other things." Again, this statement was presented to the
17 jury and we will not substitute our judgment for the jury's judgment with respect to
18 the credibility of witnesses. See Montoya, 2005-NMCA-078, 13.
19 	{11} 	Fourth, Defendant contends the recorded cell phone conversation made while
20 Victim was driven to the hospital "showed that [Victim] was coached into saying
6

1 that [Defendant] touched her private area." Directing us to and quoting Maryland v.
2 	Craig, 497 U.S. 836,868 (1990) and State v. Ruiz, 2001-NMCA-097, 134, 131 NM
3 241, 34 P.3d 630, Defendant asserts the importance of proper interview techniques
4 as a predicate for eliciting accurate and consistent recollection from children, but ·
5 fails to develop this argument further. Defendant similarly fails to develop his
6 argument that this Court "must not rely on improper inference, surmise, or a cynical
7 speculation to fill the gaps in the State's proof." We therefore do not-consider these
8 arguments. See State v. Guerra, 2012-NMSC-014, 121,278 P.3d 1031 (explaining
9 that appellate courts are under no obligation to review unclear or undeveloped
10 arguments).
11 	{12} 	To the extent Defendant argues that his explanation should not be disregarded
12 in 	light 	of this 	Court's 	standard 	of review, 	we 	note 	that 	although there 	is
13 	corroborating 	evidence 	in 	this 	case, 	"[i]n 	prosecutions 	for 	criminal 	sexual
14 penetration, the testimony of the victim need not be corroborated and lack of
15 	corroboration has no bearing on weight to be given to the testimony." State v.
16 Nichols, 2006-NMCA-017, 1 10, 139 N.M. 72, 128 P.3d 500 (alterations, internal
17 quotation marks, and citation omitted); see id. 11 10, 31 (affirming conviction under
18 NMSA 1978, Section 30-9-15 (1975) without corroborating evidence). In essence,
19 Defendant presented his theory of fabrication to the jury, and the jury rejected it.
20 "When a defendant argues that the evidence and inferences present two equally
7

1 reasonable hypotheses, 	one 	consistent with 	guilt and 	another 	consistent with
2 innocence, our answer is that by its verdict, the jury necessarily found the hypothesis
3 of guilt more reasonable than the hypothesis of innocence." Montoya, 2005-NMCA-
4 078, 1 3. We conclude that the State presented sufficient evidence in support of the
5 guilty verdict.
6 II. 	Any Error in Admitting Prior Consistent Statements Was Harmless
7 A. 	Abuse of Discretion
8 {13} 	"The admission or rejection of impeaching testimony going to the credibility
9 	of a witness is largely in the discretion of the trial court." State v. Buchanan, 1966-
10 NMSC-045, 1 10, 76 N.M. 	141, 412 P.2d 565. "We review the trial court's
11 	evidentiary rulings for· abuse of discretion[,]" which "occurs when the ruling is
12 clearly against the logic and effect of the facts and circumstances of the case." State
13 	v. Rojo, 1999-NMSC-001, 1 41, 126 N.M. 438, 971 P.2d 829 (internal quotation
14 marks and citation omitted). "We cannot say the trial court abused its discretion by
15 	its ruling unless we can characterize it as clearly untenable or not justified by
16 reason." Id. (internal quotation marks and citation omitted).
17 	{14} 	Defendant argues that the district court erred in admitting the following
18 	impermissible 	hearsay 	that 	repeated 	Victim's 	allegations: 	(1) 	Grandmother's
19 testimony that Victim told her Defendant touched her inside her underwear and then
20 smelled his hand; (2) the cell phone recording of Victim on the way to the hospital,
8

1 in 	_which 	Victim 	says Defendant touched her vaginal 	area; 	(3) Aunt Hilda's
2 testimony that Victim told her Defendant touched her; (4) the Safehouse forensic
3 interviewer's testimony that Victim demonstrated a movement of her clothing and
• 4 how Defendant smelled his four fingers; and (5) the video recording of Victim during
5 the Safehouse forensic interview, in which Victim repeats the allegations.
6 {15} 	Defendant contends that he did not argue at trial that the story was recently
7 changed or fabricated, but that it was fabricated from the beginning. He further
8 argues that the motive to fabricate-the break up between Mother and Defendant-
9 arose on July 4, and thus any 'Consistent statements were not made prior to the motive
10 to fabricate, and thus were unreliable. The State argues that the motive to fabricate
11 	arose after the Mother and Defendant ended their relationship, which did not occur
12 before the July 8 and 9 statements were made.
13 	{16} 	Based on the evidence, it is not clear when any potential improper motive first
-14 	arose, if at all. See State v. Casaus, 1996-NMCA-03 l, 119, 121 N.M. 481, 913 P.2d
15 	669 ("We appreciate the potent~al difficulties this construction creates for trial courts
16 in determining not only whether 'improper influence or motive' exists but also when
17 the motive originated."). Based on this record, and for purposes of our analysis of
18 this issue, we assume without deciding that the district court erred in admitting prior
19 consistent statements of Victim. See State v. 	White, 1994·-NMCA-084, 114, 118
20 N.M. 225, 880 P .2d 322 ("Because we conclude that the error was harmless, we may
9

1 assume, without deciding~ that [the d]efendant is correct in his contention that there
2 was error."). 	We next tum to the question of whether the admission of these
3 statements was prejudicial. See State v. Tollardo, 2012-NMSC-008, 125,275 P.3d
4 	110 (holding that erroneously admitted evidence does not warrant a new trial unless
5 the error was harmful).
6 B. 	Harmless Error
7 {17} 	Defendant is challenging an evidentiary error. "For purposes of harmless error
8 review, violations of the rules of evidence are a non-constitutional error." State v.
9 Armijo, 2014-NMCA-013, 1 13, 316 P.3d 902. "[A] non-constitutional error is
10 harmless when there is no reasonable probability the error affected the verdict."
11 	Tollardo, 2012-NMSC-008, 1 36 (internal quotation marks and citation omitted).
12 "[T]he reasonable probability standard requires a greater degree of likelihood that a
13 	particular 	error 	affected 	a 	verdict" 	than 	reasonable 	possibility 	standard 	for
14 constitutional errors. Id. (internal quotation marks and citation omitted). "Defendant
15 	bears the initial burden of demonstrating that he was prejudiced by the error." State
16 v. Astorga, 2015-NMSC-007, 143,343 P.3d 1245.
17 	{18} 	Defendant has not carried this 	initial burden 	of establishing prejudice.
18 Defendant argues that the introduction of the statements was not harmless error
19 because it improperly amplified the State's evidence over and over again. This
20 conclusory assertion of prejudice is inadequate. Defendant has not cited any legal
10

1 authority to support his claim of prejudice. Nor has he articulated any theory about
2 why the challenged evidence was prejudicial. We are under no obligation to review
3 such unclear or undeveloped arguments, see Guerra, 2012-NMSC-014, 121, and we
4 decline to do so here.
5 III.
6
7
8 {19}
The 	District 	Court Did 	Not Plainly Err By 	Allowing 	Evidence 	of .
Observations of Change in Behavior and Excluding Evidence of Victim's
. Medical History
"We review evidentiary decisions by the district court for an abuse 	of
9 discretion." Nichols, 2006-NMCA-Ol 7, 120. An abuse of discretion "occurs when
10 the ruling is clearly against the logic and effect of the facts and circumstances of the
11 	case." Rojo, 1999-NMSC-001, 141· (internal quotation marks and citation omitted).
12 "We cannot say the trial court abused its discretion by its ruling unless we can
13 	characterize it as clearly untenable or not justified by reason." Id (internal quotation
14 marks and citation omitted).
15 	A. 	Lay Testimony About Victim's Change in Behavior
16 {20} 	While acknowledging that this case "did n9t involve an expert witness,"
17 Defendant argues that the State "attempted to do through lay witnesses ([Victim]' s
18 	family), what it could not do through the use of an expert ... show that [Victim]' s
19 symptomatic change in behavior after the alleged event evidenced that: ( 1) [Victim]
20 was telling the truth about being sexually abused; and (2) that [Defendant] was the
21 	perpetrator." Defendant argues that "this type of evidence" is similar to evidence of
11

1 child sexual abuse accommodation syndrome or CSAAS, which other jurisdictions
2 have determined may not be used to prove that the victim was a victim of a sexual
3 assault. 	Defendant further 	argues that the 	State "asked the jury to 	draw 	an
4 unsupported inference from this testimony and the district court should have
5 excluded the evidence." The State responds that the lay witnesses' testimony was
6 properly admitted because the lay witnesses testified to what they saw and did not
7 attempt to link Victim's changes in behavior to Defendant's CSCM.
8 {21} 	Grandmother testified that after the CSCM, Victim began having urination
9 accidents at school, stopped wanting to play with other children, and only wanted to
10 ·sleep. Later, during Aunt Blanca's testimony the State asked Aunt Blanca about the
11 	urination accidents after the incident. and Defendant objected. During a bench
12 conference, the district court overruled the objection, explaining that Defendant
13 	waived it by failing to object when Grandmother had similarly testified.
14 {22} 	Because Defendant failed to object to Grandmother's testimony about the
-15 	change in behavior, "we review this issue for plain error and look at whether the
16 testimony affected a substantial right of [the d]efendant." State v. Dylan.!,, 2009-
17 NMCA-027, ~ 15, 145 N.M. 719,204 P.3d 44; see State v. Barraza, 1990-NMCA-
18 	026, ~ 17, 110 N.M. 45, 791 P.2d 799 (noting that "[e]ven if defendant did not raise
19 proper objections at trial, he may be entitled to relief if the errors of which he
20 complains on appeal constituted plain error[.]"). "Plain error is an exception to the
12

1 general rule that parties must raise timely objection to improprieties at trial, and
2 therefore it is to be used sparingly." Dylan J., 2009-NMCA-027, 1 15 (internal
3 quotation marks and citation omitted). We apply the rule only in evidentiary matters
4 and "only if we have grave doubts about the validity of the verdict, due to an error
5 that infects the fairness or integrity of the judicial proceeding." Id (internal quotation
6 marks and citations omitted). "In determining whether there has been plain error, we
7 must examine the alleged errors in the context of the testimony as a whole." Id.
8 (omission, internal quotation marks, and citation omitted).
9 	{23} 	Defendant argues that this evidence impacted the verdict and resulted in
10 reversible error because the sexual assault exam and the veracity of Victim's
11 	statement were inconclusive. The State responds that Defendant failed to object to
12 certain parts of the testimony and because the jury had already heard the testimony,
13 	no reversible error resulted. Here, the State argues that the witnesses testified about
14 ·their personal observations and the change of behavior testimony was proper as long
15 	as the witnesses did not attempt to link the behaviors to the offense.
16 	{24} 	Although the admission of the lay witnesses' testimony concerning their
17 observations ofVictim's change in behavior might have posed some risk ofimproper
18 	inference by the jury, we do not conclude that the risks were sufficient to result in
19 ·plain error. See Barraza, 1990-NMCA-026, 110 (noting that "it might be improper
20 for the jury to infer from such studies that one suffering from those symptoms is
13

1 actually a victim of rape"). The essence of the testimony was to share how Victim's
2 behavior changed. The testimony about the change in behavior was limited and was
3 within the personal knowledge of the lay witnesses. See Rule 11-602 NMRA
4 (indicating that a witness may only testify to matters for which they have personal
5 knowledge). Our review of the record reveals that none of the witnesses testified that
6 Victim suffered from a syndrome, such as Rape Trauma Syndrome (RTS) or
7 CSAAS, which would have required the testimony of a qualified expert. See, e.g.,
8 State v. Alberico, 1993-NMSC-047, ~ 80, 116 N.M. 156, 861 P.2d 192 (concluding
9 that "allowing an expert to testify ... that the [alleged] victim's symptoms are
10 consistent with sexual abuse" is a purpose which "rest[s] on the valid scientific
11 	premise that victims of sexual abuse exhibit identifiable symptoms" and holding that
12 evidence of a Post-Traumatic Stress Disorder diagnosis was valid and probative of
13 	whether a rape occurred); State v. Newman, 1989-NMCA-086, ~~ 11, 13-17, 109
14 N.M. 263, 784 P.2d 1006 (holding that expert testimony by child therapist that the
15 	victim exhibited symptoms that were consistent in her experience with child abuse
16 victims was admissible to assist the jury to understand the behavior of sexually-
17 abused ·children). Nor did the witnesses testify that because Victim experienced
18 those symptoms, she was telling the truth; see, e.g., Barraza, 1990-NMCA-026, ~ 18
19 (concluding that "the chief risk of RTS testimony-that the jury will improperly
20 conclude that someone with the symptoms of RTS in fact is a rape victim-is not
14

1 substantial" where a therapist testified that the victim suffered from symptoms
2 consistent with symptoms suffered by other victims of sexual assault). Defendant
3 has not persuaded us to have grave doubts about the validity of the verdict required
4 for us to hold that Defendant's substantial rights were affected. Nor are we persuaded
5 that the testimony affected the fairness and integrity of the trial. Compare Dylan J.,
6 2009-NMCA-027, 	11 	18, 	19, 	32 	(holding 	that 	even 	though 	"any 	relevance
7 attributable to the· [expert's repeated] statements [concerning the identity of the
8 defendant] appears to be minimal when compared to the risk of prejudice to [the
9 d]efendant, 	since credibility was an important issue given the theme 	of [the
10 d]efendant's 	defense 	that 	the 	boys' 	testimony 	resulted 	from 	suggestive
11 	statements[,]" and a witness testified as to the victim's truthfulness, defendant failed
12 to prove that plain error resulted in both instances), with State v. Lucero, 1993-
13 	NMSC-064, 11 21-22, 116 N.M. 450, 863 P.2d 1071 (reversing and holding that
14 plain error resulted where expert who was retained by the State to ,·,evaluate the
15 	alleged victim's credibility and competency" testified that the vi~tim "had in fact
16 been molested[,]" "that it was the defendant who abused [her]," and that the victim's
17 statements were truthful).
18 B. 	Victim's Medical History
19 {25} 	Defendant argues that the district court erred in not allowing defense counsel
20 to establish that Victim "was in counseling, taking sleep medications, and had a
15

1 history of urinary tract infections (UTis)" for reasons unrelated to the incident, thus
2 giving the jury an incomplete picture and prejudicing his defense. 	The 	State
3 responded that the district court did not prohibit Defendant from asking about
4 Victim's medical history but did prohibit Defendant from inquiring about Victim's
5 counseling history to show psychological problems prior to the incident. We agree.
6 	{26} 	During Grandmother's cross-examination, defense counsel asked whether
7 Victim has "had urinary tract infections over several years," to which Grandmother
8 responded "No, not that I am know of." Grandmother also confirmed during cross
9 examination that Victim had been in counseling before the reported CSCM and
10 testified that she was not aware why Victim was in counseling or what Victim's
11 	medical issues were. Then, defense counsel attempted to ask Grandmother about
12 whether Victim took sleep medications. The district court sustained the State's
13 	objection on relevance grounds.
14 	{27} 	Defendant argues that the court excluded relevant evidence and prevented him
15 	from putting before the jury his theory of the case, thereby prejudicing his defense.
16 See State v. 	Orona, 	1979-NMSC-Oll, ,r,r 8, 	12, 92 N.M. 450, 589 P.2d 1041
17 (concluding that "[n]o more prejudice need be shown that the trial court's order may
18 h_ave made a potential avenue of defense unavailable to the defendant" in the context
19 	of a trial court's blanket prohibition and "absolute restriction on defense counsel's
20 access to the [s]tate's prospective witnesses"). In Defendant's attempt to prove that
16

I
I .
1 Victim's behavior was caused by something other than the CSCM, he asked
2 Grandmother 	about 	Victim's 	counseling 	history, 	suggesting 	preexisting
3 psychological issues, whether Victim took sleep medications, and whether she had
4 a history of UTis. Defendant claimed he needed this evidence in order to rebut the
5 State's evidence of Victim's condition. Grandmother did respond to Defendant's
6 questions about Victim's history of the UTis and counseling, so Defendant had some
7 opportunity to present this evidence.
8 	{28} 	However, the district court did prohibit Defendant from asking about sleep
9 medications, ·and we believe that this evidence was relevant because the State
. 	.
10 elicited testimony that on the day of the CSCM Victim fell asleep irr the afternoon,
11 	which was unusual. See Rule 11-401(8) NMRA ("Evidence is relevant if the fact is
12 	of consequence in determining the action."). Defendant had a right to present an
13 	alternative explanation,· and the district court's ruling prohibited Defendant from
14 doing so. However, this error was harmless because Victim falling asleep was a very
15 	small part of the State's case, and it is highly improbable that admission of the sleep
16 medication evidence would have changed the outcome. See Tollardo, 2012-NMSC-
17 008, 1 36 (noting that "a non-constitutional error is harmless when there is no
18 reasonable probabzlity the error affected the verdict").
19 	{29} 	The remaining issue is Defendant's challenge to the exclusion of additional
20 evidence pertaining to Victim's history of psychological counseling. In granting the
17

1 State's oral motion in limine on this subject, the district court stated that there was
2 "no logical relevance to ... counseling or any ... specific psychologica~ problem."
3 The district court further stated that "there was no witness ... or evidence to provide
4 necessary medical testimony that would link the self-urination [issue with anyl
5 psychological problem that may have existed prior to this [incident]." We believe
6 the district court ruled correctly. Merely having a history of counseling or a specific
7 psychological diagnosis was irrelevant. Testimony drawing a causal connection
8 between particular psychological diagnosis and Victim's behavior after the alleged
9 CSCM could have been relevant, but Defendant would have needed an expert to
10 present such testimony. 	Cf 	Alberico, 	1993-NMSC-047, ,-r 80 (concluding that
11 	"allowing an expert to testify ... that the [alleged] victim's symptoms are consistent
12 with sexual abuse" is a purpose which "rest[ s] on the valid scientific premise that
13 	victims of sexual abuse exhibit identifiable symptoms."); see also Rule 11-702
14 NMRA (providing that a qualified expert may testify if their scientific, technical or
15 	other specialized knowledge will help the trier of fact to understand the evidence or
16 to determine a fact in issue). There is no indication in the record that Defendant had
17 an expert available or ready to testify about Victim's medical history or the cause of
18 her urination 	accidents. 	Nor did Defendant proffer that any lay witness had
19 knowledge of Victim's behavior before the alleged CSCM that was similar to her
20 behavior after the alleged CSCM. Under the circumstances, the district court did not
18

1 err in prohibiting Defendant from presenting further evidence about Victim's history
2 	of counseling.
3 IV. 	Defendant's Motion for New Trial Was Properly Denied
4 	{30} 	Defendant argues that the district court erred in denying Defendant's motion
5 for new trial, in which he argued that Mother confessed to CYFD, Defendant's
6 father, and the Tularosa police department that she "had lied about Defendant's
7 having molested her daughter." Attached to the motion, as Exhibit A, was a letter
8 purported to be from Mother, which "[c]ounsel knew about ... prior to trial." Also
9 attached, as Exhibit B, was an affidavit from Mother's former high school classmate,
10 who was also Defendant's cousin, who recognized Mother's handwriting in the
11 	letter. Defendant further argued that the evidence "would have cast doubt on the
12 validity of the testimony against [Defendant], especially since there was no physi_cal
13 	evidence 	of 	any 	touching 	or 	penetration 	of the 	child 	by 	anyone-·whether
14 [Defendant] or anyone else" and thus, "it is probable that Defendant could have been
15 	acquitted" .had the jury known this information. The State argued in response that
16 the evidence was not newly discovered evidence within the meaning of the State v.
17 	Volpato, 1985-NMSC-Ol 7, 17, 102 N.M. 383,696 P.2d 471.
18 {31} 	The district court denied the request. The district court found that the letter
19 was too vague to be material under these circumstances; that it was not discovered
20 	since trial; and that even if it had not been in defense counsel's possession before
19

1 trial, it could have been discovered through the exercise of due diligence. The court
2 also explained that it could not "find that it probably would have changed result."
3 Regarding Defendant's father's statement, the district court found that it could have
4 been discovered with due diligence because defense was aware 	of sharing of
5 information between Mother and Defendant's father and wife prior to trial and found
6 that it was mere impeachment evidence, thus failing to meet the st~dard in Volpato.
7 	{32} 	"Motions for new trials on the basis of newly discovered evidence are not
8 encouraged." State v. Desnoyers, 2002-NMSC-031, ~ 26, 132 N.M. 756, 55 P.3d
9 968, abrogated on other grounds by State v. Forbes, 2005-NMSC-027, ~ 6, 138
10 N.M. 264, 119 P.3d 144. The probability of the new evidence changing a verdict is
11 	a question "addressed to the sound discretion of the trial court." Id. "The denial of a
12 motion for a new trial is reviewed on appeal for a 'manifest abuse of discretion.' "
13 Id. (internal quotation marks and citation omitted). "Denial of a motion for a new
14 trial will only be reversed if the ruling of the trial court is arbitrary, capricious, or
15 	bey<?nd reason." Id. "A motion for a new trial in New Mexico on the basis of newly-
16 discovered evidence ... will not be granted unless the newly-discovered evidence is
17 such.that it fulfills all of the following requirements: (1) it will probably change the
18 result if a new trial is granted; (2) it must have been discovered since the trial; (3) it
19 could not have been discovered before the trial by the exercise of due diligence; (4)
20 it must be material; (5) it must not be merely cumulative; and (6) it must not be
20

1 merely impeaching or contradictory." 	Volpato, 	1985-NMSC-Ol 7, 1 	7 (citation
2 omitted). 	It 	is 	Defendant's 	burden 	to 	prove 	that 	the 	evidence 	met 	all 	six
3 requirements. Desnoyers, 2002-NMSC-031, 126,
4 	{33} 	We conclude that, at minimum, the first element was not met. Based on the
5 	testimony of Victim, her relatives, and Mother, Mother was not aware of the
6 allegations 	until 	several 	weeks 	after 	the 	investigation 	started. 	Had 	Mother
7 improperly influenced Victim to make the allegation, Mother likely would have been
8 aware of the disclosure or the underlying allegations prior to the disclosure. The fact
9 that Mother was not cooperative with law enforcement's investigation further
10 undercuts Defendant's argument. Mother's testimony at trial that she did not ever
11 	tell Victim to "say anything about the Defendant putting his fingers in her vagina,"
12 cannot be overcome by speculative evidence. We reject Defendant's argument that
13 	"the evidence demonstrates that [Victim]' s allegations were fabricated," because it
14 only discusses Mother's allegations, and Mother was not the person who reported
15 	Victim's disclosure. We conclude that the district court did not err by denying
16 Defendant's motion for a new trial.
17 V. 	The Doctrine of Cumulative Error Does Not Require Reversal
18 	{34} 	Defendant 	argues 	that 	his 	conviction 	should 	be 	reversed 	because 	his
19 conviction was tainted by cumulative errors, thereby depriving him of a fair trial.
20 "The doctrine 	of cumulative 	error reqmres 	reversal 	when a series 	of lesser
21

1 improprieties throughout a trial are found, in aggregate, to be so prejudicial that the
2 .defendant was deprived of the constitutional right to a fair trial." State v. Duffy, 1998-
3 NMSC-014, ,r 29, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by
4 	Tollardo, 	2012-NMSC-008, ,r 37 n.6. For the reasons discussed above, having
5 carefully reviewed the record and evidence, we conclude that Defendant was not
6 deprived of his right to a fair trial.
7 VI.
8
. 9 {35}
We 	Lack 	the 	Necessary 	Factual 	Record 	to 	Consider 	Defendant's
Ineffective Assistance of Counsel Claim
We review ineffective assistance of counsel claims de novo. State v. Mosley,
10 2014-NMCA-094, ,r 18, 335 P.3d 244. To establish an ineffective ·assistance of
11 	counsel claim, defendant must show "error by counsel and prejudice resulting from
12 the error." State v. Grogan, 2007-NMSC-039, ,r 11, 142 N.M; 107; 163 P.3d 494. A
13 	defendant bears the burden of demonstrating both incompetence and prejudice. Id.
14 First, error is shown if the "attorney's conduct fell below that. of a reasonably
15 	competent attorney." Id. (internal quotation marks and citation omitted). Second,
16 prejudice is shown if "counsel's deficient performance prejudiced the defense such
17 that there was a reasonable probability that the outcome of the trial would have been
18 different." State v. Barela, 2018-NMCA-067, ,r 17,429 P.3d 961 (internal quotation
19 marks and citation omitted). We begin with the general presumption that counsel's
20 representation was effective. See State v. Gonzales, 2007-NMSC-059, ,r 14, 143
21 	N.M. 25, 172 P.3d 162.
22

1 {36} 	Defendant argues that trial counsel was ineffective in failing to call an expert
2 to testify regarding how suggestive interview techniques can lead to false reports
3 and prejudice resulted because "the jury did not know how to accurately assess the
4 information presented." In addition, Defendant argues that defense counsel should
5 have called an expert or Victim's doctor to "discuss [Victim's] history of [UTis] and
6 yeast infections and that symptoms of a yeast infection· can present in the same
7 manner as described the [Victim]'s aunts and grandmother." The evidence in the
8 record indicates that defense counsel argued three motions to continue trial on the
· 9 basis that he was planning to call a psychologist who could view the interviews of
10 Victim to determine if the interviews were unreliable or unduly suggestive. At the
11 	scheduling conference .discussing the third motion to continue, the court denied the
12 motion stating that defense had more than enough time to get ready for trial and
13 	noted in the written order that "[a]ll deadlines have passed and no required reports
14 of any expert have been disclosed to the State." Then, despite a late disclosure and
15 	motion to strike filed by the State, defense counsel indicated that the testimony of
16 the defense's expert, Dr. Noah K. Kaufman, would be limited to his conclusions and
17 observations about the Safehouse forensic interview. Three weeks later, and a few
18 days before trial, defense counsel indicated without explanation that the defense
19 would not call Dr. 	Kaufman at trial. 	Defense counsel also indicated without
23

1 explanation that he would not call Dr. Schneider, 2 who was previously disclosed as
2 a witness for the defense.
3 {37} 	At the outset," '[w]e note that our Supreme Court has 'expressly rejected the
4 contention that the failure to introduce testimony of an expert witness constitutes
5 ineffective assistance of counsel per se.'" State v. Quinones, 2011-NMCA-018,
6 134, 149 N.M. 294, 248 P.3d 336 (quoting Lyle v. Jordan, 2001-NMSC-016, 144,
7 130 N.M. 198, 22 P.3d 666). Here, Defendant has similarly failed to provide any
8 indication as to whether an expert was available to testify as well as the content of
9 the expert's testimony. See id. 134 (concluding the defendant did not make a prima
10 facie case of ineffective assistance of counsel because there was "nothing in the
11 	record to indicate that a defense expert was actually available to testify in support of
12 	[the d]efendant at trial and what the content of the expert's testimony would have
13 	been"). Based on the record before us, Defendant has failed to demonstrate either
14 incompetence or prejudice.
15 	{38} 	We reject Defendant's contention that State v. Aragon, 2009-NMCA-102, 14 7
16 N.M. 26, 216 P.3d 276 controls our analysis. In Aragon, this Court concluded that
17 the defendant demonstrated a prima facie case of ineffective assistance of counsel
18 "based on [counsel: s] failure to engage an expert for consultation, combined with
2It is not clear from the record whether this individual was intended to be
qualified as expert at trial or what would be the content of the anticipated testimony.
24

1 her failure to conduct adequate pre-trial interviews of the State's experts." Id. 'if 15.
2 Aragon is distinguishable because expert testimony was the crux of the state's case.
3 See id. Whereas here, the State did not rely on expert testimony at all.
4 	{39} 	We conclude that Defendant has failed to demonstrate a prima facie case of
5 ineffective assistance of counsel. However, our holding today does not preclude
6 Defendant from pursuing his arguments and developing a proper record in a habeas
7 corpus proceeding. See State v. Bernal, 2006-NMSC-050, 1 36, 140 N.M. 644, 146
8 P.3d 289.
9 CONCLUSION
10 	{40} 	For the foregoing reasons, we affirm Defendant's conviction.
11 	{41} 	IT IS SO ORDERED.
12
13
14 WE CONCUR:
UELINE ·R. MEDINA, Judge
25