June 22, 2021- State of New Mexico v. Harold Atencio, No. A-1-CA-38286

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: JUNE 22, 2021	3
No. A-1-CA-38286	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
HAROLD ATENCIO,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	10
Karen L. Townsend, District Judge	11
Hector H. Balderas, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Nina Lalevic, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 6/22/2021 12:06 PM

OPINION	1
MEDINA, Judge.	2
{1} 	This Court issued an opinion on June 3, 2021, which is hereby withdrawn and	3
replaced with this opinion, granting both the State and Defendant’s motions for	4
rehearing.	5
{2} 	Defendant 	appeals 	his 	convictions 	for 	one 	count 	of 	criminal 	sexual	6
penetration of a minor (CSPM), in violation of NMSA 1978, Section 30-9-11(D)(1)	7
(2009), and twenty-one counts of criminal sexual contact with a minor (CSCM), in	8
violation of NMSA 1978, Section 30-9-13(B)(1) (2003). On appeal, Defendant	9
contends that: (1) he received inadequate Miranda warnings and therefore, the	10
admission of his video recorded statement was error; (2) alternatively, his counsel	11
was ineffective for not challenging the adequacy of the Miranda warnings he	12
received; and (3) the “carbon-copy” charges, evidence presented, and instructions to	13
the jury violated his rights to due process, to be free from double jeopardy, and to a	14
unanimous jury verdict, and that the evidence was insufficient to support his multiple	15
CSCM convictions.	16
{3} 	Because the Miranda warnings Defendant received did not adequately convey	17
the right to the presence of an attorney prior to and during Defendant’s custodial	18
interview with law enforcement, we agree with Defendant that the admission of his	19
video recorded statements was error. There is, however, sufficient evidence to	20

2
support each of Defendant’s convictions and thus retrial is permitted. In light of our	1
holding regarding the admission of Defendant’s statements, we do not address	2
Defendant’s ineffective assistance of counsel claims, nor do we review his double	3
jeopardy challenges. We therefore reverse Defendant’s convictions and remand for	4
a new trial.	5
BACKGROUND	6
{4} 	The following facts were introduced at the pretrial motion hearing and at trial.	7
Victim (C.Y.) is the child of Kimberly G. (Mother) and Jeffrey Y. (Father). From	8
June 2017 until October 2017, while Father lived in Florida, C.Y. lived with Mother,	9
his stepfather, and three siblings—including his older sister (A.Y.)—in a rented	10
trailer in Kirtland, New Mexico. C.Y. was ten years old.	11
{5} 	Defendant lived in the trailer next door to C.Y.’s family. C.Y. testified that he	12
would go over to Defendant’s trailer every day and that they would watch movies	13
together. According to Mother, C.Y. stayed the night at Defendant’s trailer a few	14
times and would occasionally sneak over to visit Defendant without her permission.	15
{6} 	For 	reasons 	unrelated 	to 	this 	case, 	the 	Children, 	Youth 	and 	Families	16
Department (CYFD) removed C.Y. and A.Y. from Mother’s custody in October	17
2017. CYFD placed C.Y. and A.Y. in Father’s custody, and they moved to Florida	18
to live with him. Soon thereafter, Father became aware that a former neighbor may	19
have sexually abused C.Y. in New Mexico. Father reported the alleged abuse to law	20

3
enforcement, after which Safehouse interviews of C.Y. and A.Y. were conducted in	1
Florida. The case was assigned to Detective Nima Babadi of the San Juan County	2
Sheriff’s Office. During his investigation, Detective Babadi identified Defendant as	3
the suspect in the case.	4
{7} 	On March 20, 2018, Detective Babadi invited Defendant to come to the	5
sheriff’s department to discuss a residential burglary that Defendant had previously	6
reported. Detective Babadi and Defendant met in an interview room, and after a brief	7
discussion about the burglary, Detective Babadi informed Defendant that he wanted	8
to speak with him about another case.	9
{8} 	Prior to informing Defendant about his investigation into C.Y.’s disclosures	10
and prior to questioning Defendant about the reported sexual abuse, Detective	11
Babadi notified Defendant of his Miranda rights as follows, “You have the right to	12
remain silent; anything you say may be used against you. You have a right to a	13
lawyer; and if you cannot afford a lawyer, one will be provided for you.” Defendant	14
verbally acknowledged that he understood his rights and signed a waiver of rights	15
form indicating the same.1
16
{9} 	Detective 	Babadi 	proceeded 	to 	tell 	Defendant 	that 	he 	had 	“done 	his	17
homework,” that he knew Defendant had been touching C.Y., and that he just wanted	18
to know why Defendant had been touching C.Y. Defendant initially claimed that “if”	19
1 The waiver of rights form also included Miranda warnings.

4
he ever touched C.Y., such touching was accidental and he “never meant anything	1
by it.” Defendant eventually admitted that he had touched C.Y.’s penis between	2
twenty and thirty times, that he “didn’t really play with him that much,” and that he	3
had once briefly put C.Y.’s penis in his mouth. At the conclusion of the interview,	4
Detective Babadi arrested Defendant.	5
{10} 	Prior to trial, the State filed a motion entitled, “Motion to Admit Defendant’s	6
Statements 	to 	Law 	Enforcement,” 	asserting 	that 	“Defendant 	was 	properly	7
Mirandized and his statements were knowingly, intelligently, and voluntarily made.”	8
The State made no claim that Defendant was not the subject of a custodial interview.	9
Defendant did not file a written response to the motion.	10
{11} 	During the hearing on the State’s motion, Defendant argued that his Miranda	11
waiver was not knowing, intelligent, and voluntary. After hearing testimony from	12
Detective Babadi and reviewing Defendant’s video-recorded interview, the district	13
court ruled that it “[saw] no problems at all with this Miranda waiver and any	14
statements [were] going to be allowed [at trial].” Defendant’s interview with	15
Detective Babadi was admitted at trial. Defendant was convicted of one count of	16
CSPM and twenty-one counts of CSCM.	17
{12} 	Fifteen days after Defendant’s jury trial, the district court memorialized its	18
ruling 	from 	the 	bench 	on 	the 	admission 	of 	Defendant’s 	statements 	to 	law	19
enforcement. In a written order, the district court concluded, in part, that “Defendant	20

5
was not in custody and the advisement of rights under Miranda was not required.”	1
The district court further found that Detective Babadi was not legally required to	2
advise Defendant of his rights under the Fifth Amendment, but “[t]o the extent a	3
waiver 	of 	rights 	was 	required, 	Defendant’s 	written 	waiver 	was 	voluntarily,	4
knowingly[,] and intelligently executed.” This appeal followed.	5
DISCUSSION	6
I. 	Defendant’s Argument That His Miranda Warnings Were Inadequate	7
Was Not Preserved	8
{13} 	Defendant’s challenge to the district court’s admission of his video-recorded	9
statement is akin to an appeal of a denied motion to suppress. “The district court’s	10
denial of [a d]efendant’s motion to suppress evidence presents a mixed question of	11
fact and law.” State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. “This Court	12
reviews factual matters with deference to the district court’s findings if substantial	13
evidence exists to support them, and it reviews the district court’s application of the	14
law de novo.” Id.	15
{14} 	Defendant argues that the Miranda warnings he received were inadequate	16
because he was not informed of his right to consult with an attorney prior to being	17
questioned by Detective Babadi. Defendant acknowledges that this claim may be	18
unpreserved for review on appeal. We agree with Defendant that this issue was	19
unpreserved.	20

6
{15} 	In State v. Montoya, our Supreme Court explained that “[i]n order to preserve	1
an issue for appeal, a defendant must make a timely objection that specifically	2
apprises the trial court of the nature of the claimed error and invokes an intelligent	3
ruling thereon.” 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks	4
and citation omitted); see also Rule 12-321(A) NMRA (“To preserve an issue for	5
review, it must appear that a ruling or decision by the trial court was fairly	6
invoked.”).	7
We require parties to assert the legal principle upon which their claims	8
are based and to develop the facts in the trial court primarily for two	9
reasons: (1) to alert the trial court to a claim of error so that it has an	10
opportunity to correct any mistake, and (2) to give the opposing party a	11
fair opportunity to respond and show why the court should rule against	12
the objector.	13
State v. Gomez, 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1.	14
{16} 	Here, Defendant’s objection at the evidentiary hearing was focused squarely	15
on whether his Miranda waiver was knowing, intelligent, and voluntary—not	16
whether his Miranda warnings were in fact adequate. Miranda warnings are an	17
explanation of the constitutional rights afforded to individuals suspected of a crime	18
under the Fifth Amendment, whereas Miranda waivers are a renouncement of those	19
rights. See State v. Salazar, 1997-NMSC-044, ¶¶ 59-64, 123 N.M. 778, 945 P.2d	20
996 (describing the defendant’s challenges to both the adequacy of the Miranda	21
warnings he received and his waiver of those same rights); see also State v. Verdugo,	22
2007-NMCA-095, ¶ 13, 142 N.M. 267, 164 P.3d 966 (explaining that both Miranda	23

7
warnings and Miranda waiver must be proven by the prosecution in order to admit	1
evidence obtained from custodial interrogations). Because Defendant’s objection at	2
the evidentiary hearing focused on the waiver of his rights—which is not the same	3
argument he raises here on appeal—the issue of whether Defendant received	4
adequate Miranda warnings was unpreserved and we review only for fundamental	5
error. See State v. Bregar, 2017-NMCA-028, ¶ 29, 390 P.3d 212 (“[F]or an objection	6
to preserve an issue for appeal, it must appear that the appellant fairly invoked a	7
ruling of the district court on the same grounds argued in the appellate court.”	8
(emphasis added) (alterations, internal quotation marks, and citation omitted)).	9
{17} 	In State v. Cunningham, our Supreme Court explained that	10
[e]rror that is fundamental must be such error as goes to the foundation	11
or basis of a defendant’s rights or must go to the foundation of the case	12
or take from the defendant a right which was essential to his defense	13
and which no court could or ought to permit him to waive. Each case	14
will of necessity, under such a rule, stand on its own merits. The	15
doctrine of fundamental error is to be resorted to in criminal cases only	16
for the protection of those whose innocence appears indisputably, or	17
open to such question that it would shock the conscience to permit the	18
conviction to stand. Fundamental error only applies in exceptional	19
circumstances when guilt is so doubtful that it would shock the judicial	20
conscience to allow the conviction to stand.	21
2000-NMSC-009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and	22
citations omitted). “The first step in reviewing for fundamental error is to determine	23
whether an error occurred. If that question is answered affirmatively, we then	24
consider whether the error was fundamental.” State v. Silva, 2008-NMSC-051, ¶ 11,	25

8
144 N.M. 815, 192 P.3d 1192 (citations omitted). In order to determine whether an	1
error occurred with regard to the adequacy of the Miranda warnings in this case, we	2
first determine whether Miranda warnings were required.	3
II. 	Defendant Was in Custody for Purposes of Miranda	4
{18} 	“Prior to any custodial interrogation, a person must be warned that he has a	5
right to remain silent, that any statement he does make may be used as evidence	6
against him, and that he has a right to the presence of an attorney, either retained or	7
appointed.” State v. Widmer, 2020-NMSC-007, ¶ 12, 461 P.3d 881 (alteration,	8
internal quotation marks, and citation omitted). However, Miranda warnings only	9
apply when (1) the person is in custody; and (2) any questioning meets the legal	10
definition of interrogation. See id. ¶ 13. There is no dispute that Defendant was	11
interrogated, therefore the focus of our inquiry is whether Defendant was in custody	12
for purposes of Miranda during his interview.	13
{19} 	“Custody is defined as either (1) a formal arrest, or (2) a restraint on freedom	14
of movement of the degree associated with a formal arrest.” State v. McNeal, 2008-	15
NMCA-004, ¶ 10, 143 N.M. 239, 175 P.3d 333 (internal quotation marks and	16
citation omitted). To determine whether a suspect was in custody, we apply an	17
objective test: “[W]as there a formal arrest or restraint on freedom of movement of	18
the degree associated with a formal arrest[?]” State v. Wilson, 2007-NMCA-111,	19
¶ 14, 142 N.M. 737, 169 P.3d 1184 (internal quotation marks and citation omitted).	20

9
“Because the test is objective, the actual subjective beliefs of the defendant and the	1
officer as to whether the defendant is in custody are irrelevant.” Id. Rather, we	2
consider how “a reasonable man in the suspect’s position would have understood his	3
situation.” Id. (internal quotation marks and citation omitted).	4
{20} 	In the event that there is no formal arrest prior to questioning, “our appellate	5
courts engage in a fact-specific analysis of the totality of the circumstances under	6
which the questioning took place in order to decide whether the custody requirement	7
is met.” State v. Olivas, 2011-NMCA-030, ¶ 10, 149 N.M. 498, 252 P.3d 722. The	8
following 	factors 	guide 	our 	inquiry: 	“the 	purpose, 	place, 	and 	length 	of	9
interrogation[,] . . . the extent to which the defendant is confronted with evidence of	10
guilt, the physical surroundings of the interrogation, the duration of the detention,	11
and the degree of pressure applied to the defendant.” State v. Munoz, 1998-NMSC-	12
048, ¶ 40, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and citation	13
omitted).	14
{21} 	Defendant drove to the sheriff’s department on his own accord for the purpose	15
of discussing the burglary of his trailer with Detective Babadi. Defendant did not	16
know, however, that Detective Babadi also invited him to the sheriff’s department	17
because he wanted to speak with him about C.Y.’s disclosures. Contra Olivas, 2011-	18
NMCA-030, ¶ 13 (“We recognize that our courts have considered a defendant’s	19
willingness to meet with officers . . . to be a factor, among others, in favor of holding	20

10
that 	an 	interrogation 	is 	non-custodial.”). 	Because 	this 	factor 	alone 	is 	not	1
determinative as to custody, our analysis continues. See id.	2
{22} 	Once at the sheriff’s department, Defendant was interviewed by Detective	3
Babadi in a small interview room. The video recording of the interview reveals that	4
Defendant was not handcuffed, that Detective Babadi was dressed in plain clothes	5
with a firearm holstered to his side, and that no other officers were in the interview	6
room. We additionally observe there is no indication that the door was locked as	7
Detective Babadi stepped out of the interview room on more than one occasion	8
without the use of keys. See Munoz, 1998-NMSC-048, ¶ 43 (“There is no indication	9
the car doors were locked during the interrogation, or that [the defendant] was	10
prevented from leaving the car.”).	11
{23} 	The video recording further reveals that Detective Babadi sat across from	12
Defendant at a small table and then later moved between Defendant and the door.	13
See State v. Nieto, 2000-NMSC-031, ¶ 21, 129 N.M. 688, 12 P.3d 442 (“However,	14
the fact that the office was small, that [the d]efendant’s back was to the wall of the	15
office, that an officer was situated between [the d]efendant and the doorway, and	16
that the door was closed do not, in and of themselves, indicate a formal arrest or	17
suggest that [the d]efendant’s freedom of movement was restricted to an extent	18
consistent with a formal arrest.”); State v. Bravo, 2006-NMCA-019, ¶ 11, 139 N.M.	19
93, 128 P.3d 1070 (explaining that the officers’ positioning between the defendant	20

11
and the doorway was “not, by itself, enough to make [the d]efendant’s interview	1
custodial”). Taken together, these factors do not weigh in favor of a determination	2
that Defendant was in custody. However, since the question of custody requires “a	3
fact-specific 	analysis 	of 	the 	totality 	of 	the 	circumstances 	under 	which 	the	4
questioning took place[,]” we continue our review of the circumstances surrounding	5
Defendant’s questioning. Olivas, 2011-NMCA-030, ¶ 10.	6
{24} 	In contrast to those factors just discussed, there are several factors that lead us	7
to conclude Defendant was in custody during his approximately 100-minute	8
interview. First, Detective Babadi never told Defendant that he was not under arrest,	9
nor that he could leave, or terminate the interview at any time. Compare id. ¶ 15	10
(explaining that the determination that the defendant was in custody was supported	11
by the fact that the interviewing officers did not tell the defendant “that he was not	12
under arrest, that he was free to leave the room if needed, or that he could terminate	13
the interview by choice”), with Munoz, 1998-NMSC-048, ¶ 31 (rejecting the	14
defendant’s suggestion that he was under arrest during 100-minute long interview in	15
part because an agent told the defendant he did not have to go with them, he did not	16
have to talk with them, he was not under arrest, and he would be free to leave at any	17
time).	18
{25} 	Second, we observe that Defendant was effectively prohibited from leaving	19
the interview room. When Detective Babadi told Defendant that he needed to use	20

12
the bathroom, Defendant immediately asked if he could also use the bathroom. Only	1
after Detective Babadi returned from the restroom himself did he allow Defendant	2
to leave the interview room under his escort. Defendant was thus not allowed to	3
leave the interview room unattended. Compare United States v. Cavazos, 668 F.3d	4
190, 194 (5th Cir. 2012) (concluding that the defendant was in custody in part	5
because “he was free to use the bathroom or get a snack, but followed and monitored	6
when he sought to do so”), with Grayer v. State, 647 S.E.2d 264, 269-70 (Ga. 2007)	7
(finding that the defendant was not in custody since he was allowed to take	8
unaccompanied bathroom breaks during the interview with police).	9
{26} 	Third, just one minute after Defendant asked Detective Babadi if he was going	10
to need a lawyer, Detective Babadi patted Defendant down for weapons. Unlike	11
State v. Smile, where this Court determined that the defendant was not in custody	12
even though he was frisked for safety purposes, Defendant was not in a public	13
location here but confined to an interview room. 2009-NMCA-064, ¶ 29, 146 N.M.	14
525, 212 P.3d 413; cf. State v. Javier M., 2001-NMSC-030, ¶ 19, 131 N.M. 1, 33	15
P.3d 1 (“[I]nvestigatory detentions . . . are generally public, temporary, and	16
substantially less coercive than custodial interrogations.”).	17
{27} 	Detective Babadi’s communications with Defendant ultimately compel a	18
determination that the custody requirement was met in this case. Immediately after	19
Detective Babadi informed Defendant of his Miranda rights, Detective Babadi	20

13
confronted Defendant with his knowledge of Defendant’s guilt and insisted that it	1
was not “if” Defendant molested C.Y., but “why.” Babadi also tried to obtain a	2
written confession from Defendant by requesting that he write C.Y. an apology letter	3
throughout the 100-minute interview and asked Defendant if there was any message	4
that he would like C.Y. to receive from Detective Babadi.2 Detective Babadi also	5
used powerful persuasive techniques, saying that he was “trying to help,” that he	6
was trying to determine if Defendant was an “evil person,” and by musing that	7
Defendant must have been in love with C.Y. since Defendant had never molested	8
his grandson. “A reasonable person faced with this degree of confrontational and	9
accusatory questioning would have believed that he/she was in custody.” Olivas,	10
2011-NMCA-030, ¶ 14.	11
{28} 	As the United States Supreme Court has explained, “ ‘custody’ is a term of art	12
that specifies circumstances that are thought generally to present a serious danger of	13
coercion.” Howes v. Fields, 565 U.S. 499, 508-09 (2012). Detective Babadi’s	14
interactions with Defendant—in the context of the attendant circumstances already	15
described—are 	emblematic 	of 	the 	coercive 	pressures 	inherent 	to 	custodial	16
interrogations that gave rise to the need for Miranda warnings. See Miranda v.	17
2 We observe that although Detective Babadi insisted that Defendant was not
required to write C.Y. a letter, his actions throughout the interview belie his words
as he instructed Defendant to write a letter on three separate occasions. Detective
Babadi also coached Defendant how to apologize to C.Y., insisting that Defendant
should not say sorry “if” he hurt C.Y. “[be]cause [C.Y.] knows what happened.”

14
Arizona, 384 U.S. 436, 467 (“[W]ithout proper safeguards the process of in-custody	1
interrogation 	of 	persons 	suspected 	or 	accused 	of 	crime 	contains 	inherently	2
compelling pressures which work to undermine the individual’s will to resist and to	3
compel him to speak where he would not otherwise do so freely.”).	4
{29} 	Based on the totality of the circumstances, we conclude that Defendant was	5
in custody during his interview with Detective Babadi. Because Defendant was in	6
fact subject to a custodial interrogation, we next turn to whether the Miranda	7
warnings he received were adequate.	8
III. 	The Miranda Warnings Defendant Received Were Inadequate	9
{30} 	Defendant argues that the Miranda warnings he received were inadequate	10
because he was not informed that “he had the right to counsel prior to and during	11
questioning.”3 For the reasons that follow, we conclude that the Miranda warnings	12
Defendant received were inadequate because they did not clearly convey to	13
Defendant that he had a right to presence of counsel prior to, and during, his	14
interview.	15
3 In his brief in chief, Defendant misquoted the Miranda warnings he received
from Detective 	Babadi 	by 	adding 	the 	temporal 	phrase 	“during 	any 	and 	all
questionings” with respect to the right to counsel. See Rule 12-318(A)(3) NMRA
(explaining that a brief in chief must include “a summary of the facts relevant to the
issues presented for review”). Counsel is reminded to craft their briefs in such a way
that we may be able to wholly rely on them as part of our substantive review of the
issues presented. Cf. Martinez v. Sw. Landfills, Inc., 1993-NMCA-020, ¶ 13, 115
N.M. 181, 848 P.2d 1108 (“Neither the appellee nor the reviewing court should have
to supplement the appellant’s presentation of the evidence.”).

15
{31} 	The Fifth Amendment’s protection against self-incrimination, as interpreted	1
by the United States Supreme Court in Miranda, requires that an individual subject	2
to custodial interrogation be informed that (1) “he has a right to remain silent”; (2)	3
“any statement he does make may be used as evidence against him”; (3) “he has the	4
right to consult with a lawyer and to have the lawyer with him during interrogation”;	5
and (4) “if he is indigent[,] a lawyer will be appointed to represent him.” 384 U.S.	6
at 444, 467-73 (emphasis added); see State v. Quiñones, 2011-NMCA-018, ¶ 9, 149	7
N.M. 294, 248 P.3d 336. “These warnings must be clearly conveyed to the individual	8
held for interrogation and are an absolute prerequisite before the interrogation can	9
begin.” State v. Serna, 2018-NMCA-074, ¶ 12, 429 P.3d 1283; see also State v.	10
Filemon V., 2018-NMSC-011, ¶ 48, 412 P.3d 1089 (“Miranda warnings must be	11
given in a manner that is clearly sufficient to grant the suspect an awareness of the	12
right so the suspect can make a knowing, intelligent and voluntary choice to speak.”).	13
{32} 	While no “talismanic incantation” of Miranda is required, warnings must—	14
as a rule—clearly convey to an individual his or her constitutional rights against self-	15
incrimination as provided for in Miranda. California v. Prysock, 453 U.S. 355, 359	16
(1981). As this Court observed in Serna, “[i]t is clear from both Miranda and	17
subsequent decisions by the United States Supreme Court that there is a right to have	18
and consult with counsel prior to questioning . . . . [and that t]his right must be	19
conveyed as part of the 	Miranda 	warnings.” 	Serna, 2018-NMCA-074, ¶ 18.	20

16
“Miranda requires that a person be warned, at least implicitly, that they have a right	1
to counsel prior to questioning.” Id. ¶ 21.	2
{33} 	Miranda 	warnings, at their very essence, are necessary to ensure that	3
individuals in custody faced with criminal prosecution know of their “precious	4
rights” under the Fifth Amendment. See Miranda, 384 U.S. at 442 (explaining that	5
the constitutional rights articulated in 	Miranda 	warnings were “fixed in our	6
Constitution only after centuries of persecution and struggle”). The communication	7
of the right to assistance of counsel and the protection against self-incrimination by	8
law enforcement, prior to a custodial interrogation, is critical given the “profound	9
impact” a confession may have on a jury at trial such that “we may justifiably doubt	10
its ability to put them out of mind[.]” Arizona v. Fulminante, 499 U.S. 279, 296	11
(1991) (internal quotation marks and citation omitted).	12
{34} 	The 	Miranda 	warnings 	provided 	to 	Defendant 	did 	not 	clearly 	advise	13
Defendant that he had a “right to the presence of an attorney” during his interview.	14
384 U.S. at 444. (Emphasis added.) Instead, Defendant was advised, that he had “a	15
right to a lawyer; and if you cannot afford a lawyer, one will be provided for you.”	16
Where, as here, “the balance of the warnings contain no ‘before questioning’	17
language—or any other language, for that matter—by which we could infer that the	18
full right to counsel was adequately conveyed,” and in the absence of language	19
informing Defendant that he had the right to presence of counsel, we cannot	20

17
reasonably conclude, under the facts of this case, that Detective Babadi adequately	1
conveyed to Defendant that he had the right to have a lawyer present prior to, and	2
during, his interview with law enforcement, if he so desired. Serna, 2018-NMCA-	3
074, ¶ 24 (emphasis added); see Miranda, 384 U.S. at 471. Someone in Defendant’s	4
position could easily understand the warning to refer to his right to counsel if he was	5
charged with a crime, not to a right to the presence of counsel before and during	6
questioning. With an imperfect understanding of his rights, Defendant could not	7
have validly waived his Miranda rights. See Verdugo, 2007-NMCA-095, ¶ 13.	8
Under the facts of this case, we conclude that the district court committed	9
fundamental error when it admitted the video recording of Defendant’s highly	10
inculpatory statements to Detective Babadi at trial. Because of this fundamental	11
error, we reverse Defendant’s convictions.	12
{35} 	Our holding today does not impose a requirement that Miranda warnings must	13
include specific language that an individual subject to custodial interrogation has the	14
right to counsel before and during questioning. Cf. 	Prysock, 453 U.S. at 355	15
(explaining that verbatim incantation of Miranda warnings was not required by the	16
case itself, nor necessary to serve the purposes underlying Miranda warnings).	17
Rather, we simply confirm that an individual subject to custodial interrogation must	18
be informed that he has a constitutional right, among others, to the “presence of an	19
attorney, either retained or appointed” before and during questioning. Miranda, 384	20

18
U.S. at 444. “Only through such a warning is there ascertainable assurance that the	1
accused was aware of this right.” Id. at 472.	2
IV. 	Defendant’s Ineffective Assistance of Counsel Claim Does Not Need to	3
Be Reached	4
{36} 	Defendant alternatively argues that his counsel was ineffective for not	5
challenging the adequacy of his Miranda warnings in the proceedings below. Since	6
we reverse Defendant’s convictions as a matter of fundamental error, Defendant	7
would be entitled to no more relief than he has already received were he to prevail	8
on this issue. Accordingly, we need not address his ineffective assistance of counsel	9
claim. See, e.g., State v. Stanley, 2001-NMSC-037, ¶ 44, 131 N.M. 368, 37 P.3d 85	10
(“In light of the reversal of the [other] issues, we do not review [the d]efendant’s	11
ineffective assistance of counsel claim[.]”).	12
V. 	Sufficient Evidence Supports Each of Defendant’s Convictions	13
{37} 	Defendant argues that his “carbon-copy charges” violated his rights to due	14
process and to be free from double jeopardy because there was insufficient evidence	15
to distinguish between the counts. 4 Although we reverse each of Defendant’s	16
4 We note that Defendant’s due process and double jeopardy arguments are
unclear as these arguments are embedded within his insufficient evidence argument.
Although 	appellate 	courts 	are 	under 	no 	obligation 	to 	review 	unclear 	or
underdeveloped arguments, to the extent that we understand Defendant’s arguments,
we address whether Defendant’s indictment included carbon-copy charges that
violated his due process and double jeopardy rights. See State v. Guerra, 2012-
NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that appellate courts are not required
to review unclear or undeveloped arguments).

19
convictions because of the erroneous admission of his recorded statements, we	1
address Defendant’s claims regarding the sufficiency of the evidence to the extent	2
necessary to ensure retrial is allowed.	3
{38} 	To begin, a review of the charging history against Defendant is necessary to	4
our analysis.	5
{39} 	Defendant was initially charged with ten counts of CSP resulting in great	6
bodily harm or emotional anguish, contrary to Section 30-9-11(D)(2), and thirty	7
counts of CSCM, contrary to Section 30-9-13(B)(1).5 Each count of CSP and CSCM	8
identified an offense date of “on or about or between June 1, 2017 and October 14,	9
2017.” An amended criminal information was later filed by the State to amend the	10
CSP charges to CSPM.	11
{40} 	Prior to trial, Defendant moved to dismiss nine counts of CSPM and twenty-	12
nine counts of CSCM as violative of his due process and double jeopardy rights. In	13
response, the State filed a second amended criminal information, which included one	14
count of CSPM with an offense date of June 1, 2017, and twenty-five counts of	15
CSCM. The second amended criminal information reflects the State’s intent to	16
5 Defendant 	was 	also 	charged 	with 	one 	count 	of 	contributing 	to 	the
delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990).

20
distinguish each CSCM charge by distinct five-day time periods between August 1,	1
2017 and October 12, 2017.6
2
{41} 	As a preliminary matter, we note that counts twenty through twenty-six in the	3
second amended criminal information contain typographical errors with respect to	4
the five-day charging periods. These typographical errors appear to have been	5
undetected until now as neither party alerted the district court of the errors, nor raise	6
the errors on appeal. Because neither party has claimed prejudice in this regard, we	7
need not address these errors any further. See Rule 5-204(A) NMRA (“A complaint,	8
indictment, or information shall not be deemed invalid, nor shall the trial, judgment,	9
or other proceedings thereon be stayed, arrested, or in any manner affected, because	10
of any . . . error . . . therein which does not prejudice the substantial rights of the	11
defendant upon the merits.”); see also Rule 5-204(D) (“No appeal, or motion made	12
after verdict, based on any such defect, error, omission, repugnancy, imperfection,	13
variance, or failure to prove surplusage shall be sustained unless it is affirmatively	14
shown that the defendant was in fact prejudiced in the defendant’s defense on the	15
merits.”).	16
{42} 	Notwithstanding the amended charges in the second amended criminal	17
information, Defendant maintained his motion to dismiss all but one count of CSCM.	18
6 On the face of the second amended criminal information, the State explained
in part that “specific different days have been alleged for each count to differentiate
the CSC[M] counts.”

21
After 	a hearing 	on 	the motion, 	the district 	court 	entered 	an 	order 	denying	1
Defendant’s motion to dismiss finding in part that,	2
3. 	Defendant’s argument that he is unable to tell what count	3
applies to what particular conduct is unavailing where, as here, each	4
count is alleged to have occurred at a time distinct from every other	5
count charged.	6
. . . .	7
6. 	Due process as to the charging document is not offended	8
when . . . Defendant is informed against by the State in its criminal	9
information of criminal sexual activity . . . Defendant has allegedly	10
acknowledged as occurring [twenty-five] to [thirty] times. It is the	11
combined anticipated evidence by which the [four]-month charging	12
period has been chopped into [twenty-five] counts of CSCM; evidence	13
of which . . . Defendant has been apprised.	14
{43} 	In State v. Lente, 2019-NMSC-020, 453 P.3d 416, our Supreme Court	15
“provided new guidance on evaluating due process, multiplicious double jeopardy,	16
and sufficiency of the evidence challenges in ‘resident child molester cases’[.]”7
17
State v. Costillo, 2020-NMCA-051, ¶ 27, 475 P.3d 803. A prerequisite to judicial	18
review of an indictment or criminal information challenged on due process and	19
multiplicity grounds, as Lente explained, is that the defendant “must have ‘filed	20
pretrial objections to the [charging instrument] or demanded any additional pretrial	21
specification of the charges’–i.e., seeking a bill of particulars—before 	trial.”	22
7 Resident child molester cases are those that “generally involve defendants
who have regular access to and control over children whom they sexually abuse in
secrecy for long periods of time.” Lente, 2019-NMSC-020, ¶ 1.

22
Costillo, 2020-NMCA-051, ¶ 28 (quoting Lente, 2019-NMSC-020, ¶ 16). Where, as	1
here, there is no record of Defendant pursuing a challenge to the charging instrument	2
on due process or notice grounds, our review of Defendant’s double jeopardy and	3
due process claims is precluded. 8 See Costillo, 2020-NMCA-051, ¶ 28 (“A	4
defendant who fails to object to the indictment on notice or due process grounds is	5
precluded from first doing so after trial.” (alterations, internal quotation marks, and	6
citation omitted)). Nevertheless, Defendant and the State are “free to pursue	7
whatever course of action they consider to be warranted under Lente on remand,	8
including issues related to the remaining charges contained within the criminal	9
information.” Id.	10
{44} 	Although we decline to review Defendant’s due process and double jeopardy	11
claims for the reasons explained, we review the sufficiency of the evidence to ensure	12
that retrial is not barred. See State v. Post, 1989-NMCA-090, ¶ 22, 109 N.M. 177,	13
783 P.2d 487 (“If all of the evidence, including the wrongfully admitted evidence,	14
is sufficient, then retrial following appeal is not barred [by double jeopardy].”).	15
8 Our review of the record reveals that at no point did Defendant demand a bill
of particulars. To the extent that Defendant filed a motion to dismiss certain CSPM
and CSCM counts as violative of his due process rights, we do not understand
Lente’s requirement that a defendant “file[] pretrial objections to the indictment or
demand[] any additional pretrial specification of the charges” to be satisfied by the
filing of a motion to dismiss as was the case here. Lente, 2019-NMSC-020, ¶ 16.

23
{45} 	“The test for sufficiency of the evidence is whether substantial evidence of	1
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	2
reasonable doubt with respect to every element essential to a conviction.” Montoya,	3
2015-NMSC-010, ¶ 52 (internal quotation marks and citation omitted). In reviewing	4
the sufficiency of the evidence, we consider all the evidence admitted, even that	5
which was wrongly admitted. See Post, 1989-NMCA-090, ¶ 22. We “view the	6
evidence in the light most favorable to the guilty verdict, indulging all reasonable	7
inferences and resolving all conflicts in the evidence in favor of the verdict.”	8
Cunningham, 2000-NMSC-009, ¶ 26. We disregard all evidence and inferences that	9
support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438,	10
971 P.2d 829.	11
{46} 	As our Supreme Court has explained, the prosecution of resident child	12
molesters presents unique challenges. See Lente, 2019-NMSC-020, ¶ 1 (“The	13
prosecution of resident child molesters presents unique challenges rarely present in	14
prosecution for other crimes.” (alteration, internal quotation marks, and citation	15
omitted)). Central to such prosecutorial challenges is that “[t]he child victims in	16
these cases are usually the sole witnesses of the crimes perpetrated and, because of	17
their age and the frequency of the sexual abuse to which they are subjected, cannot	18
provide detailed accounts of the abuse but only generalized accounts of frequent	19
sexual contact with the defendant.” Id.	20

24
{47} 	In these types of cases, “a child victim in a resident child molester case must,	1
at a minimum, provide testimony satisfying the following three requirements for	2
multiple convictions to survive sufficiency review”: (1) “the child victim must	3
describe the proscribed act or acts committed with sufficient specificity to establish	4
that unlawful conduct did in fact occur and to permit a jury to differentiate between	5
the various types of sex acts to which the child victim was subjected”; (2) “the child	6
must describe the number of proscribed acts committed with sufficient certainty to	7
support each of the counts alleged in the information or indictment”; and (3) “the	8
child must describe the general time period in which the proscribed acts occurred.”	9
Id. ¶¶ 67-70.	10
{48} 	C.Y.’s testimony sufficiently established that Defendant committed multiple	11
instances of criminal sexual contact and at least one instance of criminal sexual	12
penetration. When asked to explain on direct examination what happened between	13
him and Defendant, C.Y. testified as follows,	14
[State]: Tell [the] jury what happened.	15
[C.Y.]: He touched my private parts.	16
[State]: Okay. When you say your private parts, do you have a word for	17
that?	18
[C.Y.]: No.	19
[State]: Would he touch your private parts under your clothes or over	20
your clothes?	21

25
[C.Y.]: Under.	1
[State]: Under your clothes. Okay. And is one the private parts . . . of	2
you know when you go pee, is that the private part he was touching?	3
[C.Y.]: Yes.	4
[State]: How often would he do that when you went over there, [C.Y.]?	5
[C.Y.]: Every day.	6
[State]: When you went over there?	7
[C.Y.]: Yes.	8
[State]: Did he ever do anything else to you?	9
[C.Y.]: No.	10
[State]: Did he ever touch your private parts with anything else?	11
[C.Y.]: No.	12
[State]: Okay. So, he just touched you?	13
[C.Y.]: Yes.	14
. . . .	15
[State]: You said he touched your private parts, and did he use his hands	16
to touch your private parts?	17
[C.Y.]: Yes.	18
[State]: Did he ever use any other party of his body to touch your private	19
parts?	20
[C.Y.]: No.	21
[State]: [C.Y.], tell [the] jury what the word “suck” means.	22

26
[C.Y.]: It means he does bad stuff to your private parts.	1
[State]: He does bad stuff to your private parts, how?	2
[C.Y.]: He touches it and other stuff like that.	3
[State]: And what other stuff is that?	4
[C.Y.]: He puts his mouth, he puts your private part in his mouth.	5
[State]: Did that happen here?	6
[C.Y.]: Yes.	7
[State]: Do you know when it happened?	8
[C.Y.]: I don’t remember that.	9
{49} 	Defendant relies on the fact that C.Y. did not recall living in Kirtland, nor did	10
C.Y. accurately recall the time of year during which he moved next door to	11
Defendant to support his contention that there was insufficient evidence to support	12
his multiple convictions. Although C.Y.’s testimony lacked certainty in regards to	13
the timing of when he resided in New Mexico, the testimony by Mother and Father	14
that C.Y. lived in Kirtland next to Defendant for four months in 2017 adequately	15
defines the time period of the abuse.	16
{50} 	Mother’s 	testimony 	regarding 	the 	frequency 	of 	C.Y.’s 	presence 	at	17
Defendant’s trailer corroborates C.Y.’s testimony, as does A.Y.’s testimony that she	18
once walked into Defendant’s trailer and saw Defendant’s hands in C.Y.’s pants and	19
C.Y.’s hands in Defendant’s pants. See Lente, 2019-NMSC-020, ¶ 62 (“When a	20

27
young child is the victim of a crime, it is often impossible to ascertain the exact date	1
when the crime occurred. He or she may have only a vague sense of the days of the	2
week, the months of the year, and the year itself.” (internal quotation marks and	3
citation omitted)). Moreover, we disregard all inferences to the contrary to upholding	4
the jury’s verdict. See Rojo, 1999-NMSC-001, ¶ 19.	5
{51} 	Of particular importance to our conclusion that sufficient evidence supports	6
Defendant’s multiple convictions are his own inculpatory statements. See State v.	7
Martinez, 2007-NMCA-160, ¶ 13, 143 N.M. 96, 173 P.3d 18 (“Important to our	8
evaluation of the evidence is [the d]efendant’s admission.”). In his interview at the	9
sheriff’s department, Defendant admitted to Detective Babadi that he had touched	10
C.Y.’s penis between twenty and thirty times and that he had put C.Y.’s penis in his	11
mouth at least once. Defendant’s own admission regarding the number of times he	12
had touched C.Y.’s penis and had put C.Y.’s penis in his mouth—taken together	13
with the testimony of C.Y., A.Y., and Mother—provides sufficient evidence from	14
which a jury could find twenty-one separate instances of CSCM and one instance of	15
CSPM.	16
CONCLUSION	17
{52} 	For the foregoing reasons, we conclude that the district court fundamentally	18
erred when it admitted Defendant’s video-recorded statements at trial because	19

28
Detective Babadi did not adequately apprise Defendant of his Miranda rights. We	1
reverse Defendant’s convictions and remand for a new trial.	2
{53} 	IT IS SO ORDERED.	3
______________________________	4
JACQUELINE R. MEDINA, Judge	5
WE CONCUR:	6
___________________________	7
BRIANA H. ZAMORA, Judge	8
___________________________	9
JANE B. YOHALEM, Judge	10