November 22, 2010 – State of New Mexico v. Elizar Urrutia Quinones, No. 28,607

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	NOVEMBER 22, 2010
NO. 28,607
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ELIZAR URRUTIA QUIÑONES,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	Defendant appeals his felony convictions for one count of intentional child
abuse resulting in death and two counts of intentional child abuse resulting in great
bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2004) (amended 2005 and
2009). We conclude that: (1) the district court properly denied Defendant’s motion
to suppress an incriminating statement he made to detectives, (2) the district court did
not abuse its discretion on two evidentiary rulings, (3) Defendant has not established
a prima facie case for ineffective assistance of counsel, (4) there was substantial
evidence supporting Defendant’s convictions for intentional child abuse, and (5) there
was no cumulative error. We therefore affirm.
BACKGROUND
{2} 	Defendant’s convictions stem from the death of his daughter, Diana, following
an incident that arose on January 11, 2005, when Diana was approximately six weeks
old. Defendant was allegedly changing Diana’s diaper after having fed her when he
noticed that she was unresponsive and had stopped breathing. Emergency personnel
responded to Defendant’s 911 call, and Diana was later air-lifted to a hospital in
Albuquerque, New Mexico, where her treating physicians concluded that she was
brain dead after having suffered extensive brain injuries. 	Diana’s other injuries

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included bucket-handle fractures of both femurs and several rib fractures, which her
physicians determined were older injuries at various stages of healing. Diana died
four days later as a result of her brain injuries. The State’s experts opined at trial that
Diana was a victim of shaken baby syndrome and that her injuries were the result of
child abuse.
{3} 	On January 12, 2005, while Diana was still being treated at the hospital,
detectives questioned Defendant and his wife regarding Diana’s injuries, and
Defendant stated that he had previously injured Diana on three separate occasions.
Shortly thereafter, Defendant was arrested and indicted on three counts of intentional
child abuse, contrary to Section 30-6-1(D). Defendant was tried twice; his first trial
resulted in a mistrial after the jury was unable to agree on a verdict on all three counts.
At his second trial, Defendant was convicted on all counts. Pursuant to New Mexico’s
habitual offender statute, NMSA 1978, Section 31-18-17 (2003), the district court
sentenced Defendant to a total of 27 years in prison followed by two years’ parole.
This appeal followed.
DISCUSSION
{4} 	Defendant raises six issues on appeal. He argues that: 	(1) the district court
erred in refusing to suppress Defendant’s incriminating statement, (2) the district court
erred in denying Defendant an opportunity to elicit testimony that his interrogator did

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not supply Defendant with an attorney during his interrogation, (3) the district court
erred in denying Defendant an opportunity to elicit testimony at trial about his non-
violent character, (4) Defendant was denied effective assistance of counsel because
his attorney failed to consult with or retain a defense expert on shaken baby syndrome,
(5) there was insufficient evidence to support Defendant’s convictions, and (6)
cumulative error deprived Defendant of a fair trial. 	We address each issue in turn
below.
1. 	Suppression of Defendant’s Incriminating Statement
{5} 	Defendant first contends that the district court erred in denying his motion to
suppress the incriminating statement he made during the second of his two encounters
with Detective Sheila Cunningham on the evening of January 12, 2005. Specifically,
Defendant argues that his statement should have been suppressed for three reasons:
(1) he did not knowingly and intelligently waive his previously invoked Fifth
Amendment right to counsel before he gave the incriminating statement during his
second encounter, (2) his statement was involuntarily given, and (3) the New Mexico
Constitution requires that interrogators supply an attorney once a defendant has
invoked his right to counsel.
{6} 	We 	begin 	by 	stating 	the 	facts 	surrounding 	the 	events 	of 	Defendant’s
interrogation. It is undisputed that at the request of Detective Cunningham, Defendant

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and his wife accompanied Detectives Cunningham and Larry Tafoya from the hospital
to the police station on the evening of January 12, 2005. Defendant and his wife were
placed in separate interview rooms, and Defendant was questioned by Detective
Cunningham. Before the questioning began, Defendant was given Miranda warnings
in full, and he signed a waiver of rights form. 	After Detective Cunningham had
questioned Defendant for some time regarding the serious nature of Diana’s injuries
and the events preceding Defendant’s 911 call, Defendant unequivocally asserted his
right to counsel. At this point, Detective Cunningham ceased the interrogation and
left the room.
{7} 	After being left alone in the interview room for approximately one hour,
Defendant knocked on the door and asked to speak with Detective Cunningham again
because he wanted to “take the blame for it.” When Detective Cunningham re-entered
the room, Defendant informed her that he had changed his mind about wanting an
attorney because of his wife and because he was tired. 	He then proceeded to
incriminate himself, stating that: (1) two days earlier, he had squeezed Diana’s head
“hard enough to hurt her”; (2) two weeks earlier, he had held Diana tightly and
squeezed hard enough to break her ribs; and (3) some time ago, he held Diana’s legs
too tightly while changing her diaper and then heard her legs pop. Before his first
trial, Defendant filed a motion to suppress this incriminating statement, which the

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district court denied.
{8} 	A ruling on a motion to suppress evidence presents a mixed question of law and
fact. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. On appeal,
we “review[] factual findings under a substantial evidence standard, viewing the facts
in the light most favorable to the prevailing party, and we review de novo whether the
district court correctly applied the law to the facts.” State v. Slayton, 2009-NMSC-
054, ¶ 11, 147 N.M. 340, 223 P.3d 337. 	Whether a defendant has validly waived
his/her previously invoked right to counsel and whether a confession is voluntarily
given are legal determinations that we review de novo on appeal. 	See State v.
Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d 1177 (applying de novo
review to whether the defendant waived his Miranda rights); State v. Salazar,
1997-NMSC-044, ¶ 59, 123 N.M. 778, 945 P.2d 996 (applying de novo review to
whether a confession is voluntary).
{9} 	Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), in order to protect a
defendant’s right against self-incrimination, interrogators are required to inform a
suspect, before beginning questioning: (1) of the right to remain silent, (2) of the
prospect that any statement made may be used as evidence against him/her, and (3)
of the right to an attorney during an interrogation. Id. at 444. However, any of these
rights may be waived, “provided [that] the waiver is made voluntarily, knowingly and

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intelligently.” Id. When a defendant moves to suppress statements allegedly made
in violation of Miranda, “the [s]tate bears the burden of demonstrating by a
preponderance of the evidence that the defendant” made a voluntary, knowing, and
intelligent waiver. State v. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 P.2d
718. In doing so, “[t]he [s]tate must demonstrate that the waiver of rights was the
product of a free and deliberate choice rather than intimidation, coercion, or
deception” and also must show that the waiver “was made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it.” Id. (internal quotation marks and citation omitted). We review whether
such a waiver was made by evaluating “the totality of the circumstances and the
particular facts, including consideration of the mental and physical condition,
background, experience, and conduct of the accused, as well as the conduct of the
police.” 	Id. (internal quotation marks and citation omitted). Additionally, we must
indulge every reasonable presumption against waiver. Id.
a. 	Defendant’s Waiver of Previously Invoked Right to Counsel
{10} 	Defendant argues that he did not waive his previously invoked Miranda right
to counsel due to the “circumstances of [his] confinement” and the fact that the State
did not “actually produc[e] an attorney” after he invoked his right to counsel during
the first encounter with Detective Cunningham. In Edwards v. Arizona, 451 U.S. 477,

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484 (1981), the United States Supreme Court established the general rule regarding
further questioning after an accused has asserted his Fifth Amendment right to
counsel. “[W]hen an accused has invoked his right to have counsel present during [a]
custodial interrogation, a valid waiver of that right cannot be established by showing
only that he responded to further police-initiated custodial interrogation even if he has
been advised of his rights.” Id. at 484; see State v. Bailey, 2008-NMCA-084, ¶ 9, 144
N.M. 279, 186 P.3d 908. The Court held that an accused, “having expressed his desire
to deal with the police only through counsel, is not subject to further interrogation by
the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the police.”
Edwards, 451 U.S. at 484-85 (emphasis added). The Court went on to note that “a
valid waiver of an accused’s previously invoked Fifth Amendment right to counsel is
possible” if the “waiver was knowing and intelligent . . . under the totality of the
circumstances, including the necessary fact that the accused, not the police, reopened
the dialogue with the authorities.” Id. at 486, n.9; see State v. Boeglin, 100 N.M. 127,
131-32, 666 P.2d 1274 (Ct. App. 1983); see also State v. Post, 109 N.M. 177, 179-80,
783 P.2d 487, 489-90 (Ct. App. 1989).
{11} 	In the present case, Defendant does not dispute that Detective Cunningham
stopped questioning him and left the interrogation room after he invoked his right to

8
counsel and that sometime later, Defendant knocked on the door to the interrogation
room and asked to speak with her again. Under Edwards, we conclude that Defendant
himself re-initiated contact with Detective Cunningham and expressed his desire to
speak with her again. We also note that both Detective Kennedy, who was observing
Defendant from outside the interview room, and Detective Cunningham reminded
Defendant that he had invoked his right to counsel. Despite this reminder, Defendant
voluntarily continued his second encounter with Detective Cunningham. We see
nothing in the circumstances of Defendant’s confinement indicating that Defendant’s
re-initiation of police contact was the result of any official coercion or pressure.
Therefore, we conclude that Defendant willingly and freely made a choice to waive
his previously invoked right to counsel. 	See Salazar, 1997-NMSC-044, ¶¶ 10, 63
(holding that the defendant knowingly and intelligently waived his previously invoked
right to counsel when he re-initiated contact with the police by asking them to return
to his hospital room so he could “tell his side of the story” and by not objecting when
the police actually returned to the room and again advised him of his Miranda rights
(internal quotation marks omitted)); cf. Post, 109 N.M. at 179-80, 783 P.2d at 489-90
(holding that the defendant’s incriminating statement should have been suppressed
because detectives continued questioning the defendant after he invoked his right to
counsel and without any re-initiation of contact by the defendant).

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{12} 	Defendant next argues that his incriminating statement should have been
suppressed because Detective Cunningham failed to re-read him Miranda warnings
when she re-entered the interview room at his request. Defendant relies on State v.
Greene, 91 N.M. 207, 572 P.2d 935 (1977), and Salazar in asserting that officers are
required to provide new and adequate Miranda warnings when a suspect initiates
contact with officers after having previously invoked his/her right to counsel.
Although we recognize that in certain circumstances officers have re-Mirandized
suspects during subsequent interrogations, this Court has never adopted a per se rule
requiring officers to do so. See State v. Gilbert, 98 N.M. 530, 533, 650 P.2d 814, 818
(1982) (stating that “[a] confession is not necessarily invalid because warnings as to
the right to remain silent and to counsel were not given in full each time the
interrogation process was resumed after interruption”). Instead, we believe the critical
inquiry is whether a suspect is still aware of the rights afforded to him under Miranda
when he resumes contact with officers. This can occur even in the absence of a new
set of Miranda warnings. See id. (concluding that a new set of Miranda warnings was
not required at the start of a second encounter between the defendant and officers
where Miranda warnings had been read a few hours earlier to the defendant on an
unrelated charge and the defendant had once before invoked his right to counsel and
officers had complied).

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{13} 	We conclude that Defendant was still aware of his constitutional rights under
Miranda when he re-initiated contact with Detective Cunningham. Only a few hours
had passed from the time Defendant was first read his Miranda rights and his second
encounter. He was given complete Miranda warnings at the start of his first encounter
with Detective Cunningham, and at that time, he verbally indicated that he understood
what his rights were and then he signed the initial waiver of rights form. 	More
importantly, he had previously invoked his right to counsel and was aware that
Detective Cunningham had honored his request by immediately ceasing the first
interrogation. 	See Salazar, 1997-NMSC-044, ¶¶ 10, 61 (determining that the
defendant understood what his Miranda rights were because he had previously
successfully invoked his right to counsel during an earlier encounter with law
enforcement). In addition, the detectives reminded Defendant that he had previously
invoked his right to counsel before they allowed him to voluntarily continue with any
further statements.
b. 	Voluntariness of Statement
{14} 	Defendant also challenges the State’s proof of the voluntariness of his
statement. We stated the general rule regarding voluntariness of a confession in State
v. Lobato, 2006-NMCA-051, ¶ 9, 139 N.M. 431, 134 P.3d 122.
A confession is involuntary only if official coercion has occurred.
Official coercion occurs when a defendant’s will has been overborne and

11
his capacity for self-determination [has been] critically impaired. 	If,
however, the confession is the product of an essentially free and
unconstrained choice by its maker, it may be used against the defendant
without offending due process. On appeal, we review the totality of the
circumstances to determine as a threshold matter of law whether the
[s]tate has proved by a preponderance of the evidence that [the
d]efendant’s confession was voluntary.
Id. (first alteration in original) (internal quotation marks and citations omitted).
{15} 	Defendant contends that his confession was not voluntarily given because he
was held in isolation for one-and-a-half hours, separated from his wife and not
allowed to communicate with her, and because he was told that “his fate . . . depended
[on] communications with the police in Las Cruces.” 	We are not persuaded.
Defendant fails to provide record support for the length of time he was allegedly held
in isolation. 	See State v. Garcia, 2009-NMCA-107, ¶ 23, 147 N.M. 150, 217 P.3d
1048 (stating that we do not consider arguments if the defendant fails to cite record
support). We note that during the time interval between both encounters, Defendant
was able to leave the interview room to use the restroom, and he twice asked for and
received status updates from Detective Kennedy. As for the inability to communicate
with his wife, Detective Kennedy testified that Defendant and his wife shouted back
and forth between their respective interview rooms and that they could hear each
other. Finally, Defendant does not demonstrate that any threats or coercive activity
occurred on the part of Detectives Cunningham and Kennedy when they informed him

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that Las Cruces police would make the next decision regarding his interview after he
invoked his right to counsel. We note that Defendant was aware from the beginning
of his interview that the Las Cruces police department was involved and had made the
initial request that Detective Cunningham interview Defendant while he was in
Albuquerque. 	Consequently, because none of the interview circumstances that
Defendant refers to demonstrate official coercion, we conclude that Defendant’s
statement was voluntarily given. 	See State v. Muñoz, 1998-NMSC-048, ¶ 23, 126
N.M. 535, 972 P.2d 847 (explaining that this Court “determine[s] as a threshold matter
of law that the prosecution proved voluntariness by a preponderance of the evidence”).
c. 	State Constitution
{16} 	Defendant also argues that the New Mexico Constitution affords him greater
protection than the federal constitution. Specifically, Defendant argues that under the
New Mexico Constitution, interrogators have an obligation to “supply an attorney”
once a defendant has invoked his Fifth Amendment right to counsel. As Defendant
acknowledges, no such obligation exists under federal law. See, e.g., Miranda, 384
U.S. at 474 (“If the individual states that he wants an attorney, the interrogation must
cease until an attorney is present. 	At that time, the individual must have an
opportunity to confer with the attorney and to have him present during any subsequent
questioning. . . . This does not mean, as some have suggested, that each police station

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must have a ‘station house lawyer’ present at all times to advise prisoners”); see also
Edwards, 451 U.S. at 482, 485 (reiterating that officers have an obligation to cease an
interrogation once a suspect invokes his right to have counsel present during custodial
interrogation).
{17} 	“Under our interstitial approach to interpreting the New Mexico Constitution,
we may diverge from federal precedent where the federal analysis is flawed, where
there are structural differences between the state and federal governments, or because
of distinctive New Mexico characteristics.” State v. Garcia, 2009-NMSC-046, ¶ 27,
147 N.M. 134, 217 P.3d 1032. We conclude that Defendant has not presented any
arguments on appeal that are directed toward any of these three procedural reasons.
Though Defendant makes a blanket assertion that federal law on this issue “does not
go far enough in protecting a suspect’s right to due process of law,” he provides us
with no specific argument as to why the existing federal analysis is flawed. Defendant
also does not argue that there are any structural differences between our state and the
federal government or that distinctive New Mexico characteristics would militate in
favor of greater protections under our state constitution.
{18} 	To the extent that Defendant cites existing New Mexico precedent on this issue,
we remain unpersuaded because neither State v. Rascon, 89 N.M. 254, 550 P.2d 266
(1976), State v. Foster, 1998-NMCA-163, 126 N.M. 177, 967 P.2d 852, nor State v.

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Seward, 104 N.M. 548, 724 P.2d 756 (Ct. App. 1986), held that the New Mexico
Constitution’s counterpart to the fifth amendment of the federal constitution affords
greater protection to suspects who invoke a right to counsel during an interrogation.
See Rascon, 89 N.M. at 258, 260, 550 P.2d at 270, 272 (holding that the New
Mexico’s Public Defender Act, NMSA 1978, Sections 31-15-1 to -12 (1973, as
amended through 2001), does not create a statutory extension or expansion of a
detained individual’s constitutional right to counsel under either the federal or New
Mexico Constitutions and also stating, in relevant part, that a suspect’s fifth
amendment rights during an interrogation are not greater under the parallel provision
of the New Mexico Constitution); see also Foster, 1998-NMCA-163, ¶ 13-19
(holding that evidence of a defendant’s failure to mention in initial police interviews
the threats made on the day of the shooting had significant probative value as
impeachment, was admissible as a matter of New Mexico evidentiary law, and such
impeachment did not deny the defendant due process under Miranda); Seward, 104
N.M. at 554, 724 P.2d at 762 (holding that the New Mexico’s Public Defender Act
and the Indigent Defense Act, NMSA 1978, 31-16-1 to -10 (1968, as amended
through 1973), establish only mechanisms for indigents to obtain counsel in criminal
proceedings and that “[i]t is not within the [L]egislature’s purview to establish or
regulate constitutional or judicial procedural rights [to counsel] through these Acts”).

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Accordingly, Defendant has not persuaded us that we have any basis to depart from
existing federal law.
2. 	District Court’s Evidentiary Rulings
{19} 	Defendant next challenges two of the district court’s evidentiary rulings,
arguing that the district court erred in: (1) refusing to allow Defendant to ask
Detective Cunningham whether she supplied Defendant with an attorney during the
interrogation; and (2) denying Defendant an opportunity to elicit testimony from his
relatives regarding his non-violent character. “Generally speaking, a reviewing court
defers to the [district] court’s decision to admit or exclude evidence and will not
reverse unless there has been an abuse of discretion. 	However, our review of the
application of the law to the facts is conducted de novo.” 	State v. Martinez, 2008-
NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232 (internal quotation marks and citation
omitted). “We cannot say the [district] court abused its discretion by its ruling unless
we can characterize it as clearly untenable or not justified by reason.” State v. Rojo,
1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and
citation omitted).
a. 	Detective Cunningham’s Testimony
{20} 	Defendant first contends that the district court abused its discretion when it
refused to allow him to ask Detective Cunningham during cross-examination whether

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she “ma[de] an attorney available to him” following his request for counsel during the
interrogation. Defendant argues that he should have been allowed to pursue this line
of questioning with Detective Cunningham because it was relevant to the issue of the
voluntariness of Defendant’s incriminating statement. At trial, the district court told
defense counsel that he could inquire about the voluntariness of the statement, but that
asking Detective Cunningham whether she made an attorney available to Defendant
was “the same thing as implying they [i.e., police officers] ha[d] a duty to make a
lawyer available to [Defendant].”
{21} 	We agree with Defendant that the voluntariness of his incriminating statement
was at issue. However, to the extent that we understand Defendant’s argument, we
are not persuaded that the district court abused its discretion on this evidentiary ruling.
The district court understood the law with respect to an officer’s duties during an
interrogation and the law regarding the voluntariness of a statement obtained after a
defendant has waived his right to counsel. Cf. State v. Elinski, 1997-NMCA-117, ¶
8, 124 N.M. 261, 948 P.2d 1209 (stating that a trial court abuses its discretion when
it exercises its discretion based on a misunderstanding of the law). The State is not
obligated to furnish counsel when, as happened in this case, officers cease an
interrogation because a defendant has asserted his fifth amendment right to counsel.
See Rascon, 89 N.M. at 258, 550 P.2d at 270 (stating that if a defendant asserts his

17
right to counsel during an interrogation, officers “may elect to question the suspect no
further, in which event the [s]tate is under no obligation to provide counsel at that
point in response to fifth amendment rights”). Thus, we conclude the district court
correctly applied the law to the facts when it sustained the State’s objection to defense
counsel’s question to Detective Cunningham.
b. 	Character Evidence
{22} 	Defendant also claims that the district court abused its discretion when it
refused to allow him to elicit testimony from his family members about his non-
violent character. Specifically, Defendant argues that the district court erred when it
refused to allow defense counsel to ask one of the defense witnesses whether she
knew if Defendant had “ever act[ed] violently towards anyone.” The State argues that
Defendant failed to preserve this issue for appeal because defense counsel withdrew
the question after the State’s objection to the question and later, defense counsel
approved the district court’s limiting instruction on the question.
{23} 	In order to preserve an issue for appeal, Defendant must make a timely
objection that specifically apprises the district court of the nature of the claimed error
and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128
N.M. 454, 993 P.2d 1280. “Both the district court and the [s]tate must be alerted to
the specific claim of error in order to allow the [s]tate a fair opportunity to respond,

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to show the district court why it should not rule in [the d]efendant’s favor, and to
allow the district court the opportunity to correct any mistake.” State v. Maez, 2009-
NMCA-108, ¶ 14, 147 N.M. 91, 217 P.3d 104. Preservation serves the purposes of
(1) allowing the trial court an opportunity to correct any errors, thereby avoiding the
need for appeal; and (2) creating a record from which this Court can make informed
decisions. See, e.g., Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38,
125 N.M. 748, 965 P.2d 332.
{24} 	On this issue, Defendant’s brief refers to events from the first trial. Our review
of the record on this issue, however, is limited only to the testimony from Defendant’s
second trial, which is the trial that resulted in his convictions. The transcript of the
second trial reveals that immediately after defense counsel asked Defendant’s sister-
in-law whether Defendant had ever acted violently toward anyone, the State objected
to the question on relevancy grounds. 	The following exchange then took place
between the parties and the district court:
[C]ourt: 	[To defense counsel:] [W]hat’s the relevancy of that question?
[Defense]: 	Propensity for violence.
[State]: 	May we approach?
[Defense]: 	Withdraw[n].
[C]ourt: 	Objection sustained.

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Defense counsel then abandoned this line of questioning. 	Because Defendant
withdrew his question without alerting the district court and the State to any argument
that the question would have elicited proper character evidence under Rule 11-
404(A)(1) NMRA, Defendant failed to provide the district court with a factual or legal
basis on which to make an informed ruling that we can review on appeal. 	State v.
Frazier, 2007-NMSC-032, ¶ 38, 142 N.M. 120, 164 P.3d 1 (“A party cannot rely on
a withdrawn objection to preserve error.” (alteration omitted) (internal quotation
marks and citation omitted)).
{25} 	In addition, after defense counsel finished questioning the defense witness, the
State asked for a limiting instruction on the withdrawn question. 	Again, defense
counsel did not raise any objection to the State’s request, and he affirmatively stated
that he agreed with the district court’s proposed limiting instruction. Cordova v. Taos
Ski Valley, Inc., 121 N.M. 258, 263, 910 P.2d 334, 339 (Ct. App. 1995) (“A party who
has contributed, at least in part, to perceived shortcomings in a [district] court’s ruling
should hardly be heard to complain about those shortcomings on appeal.”).
{26} 	Because we conclude that the issue was not preserved for appeal, we decline to
address the parties’ arguments as to the merits of Defendant’s attempt to elicit
character evidence on his non-violent nature pursuant to Rule 11-404 and Rule 11-405
NMRA.

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3. 	Ineffective Assistance of Counsel
{27} 	Defendant argues that he was denied effective assistance of counsel because his
trial attorney failed to consult with, retain, or present the testimony of an expert
witness on shaken baby syndrome. Defendant contends that the “results of th[e] trial
would likely have been different if defense counsel had called or consulted with an
expert” and accordingly, he seeks reversal of his convictions or, in the alternative,
remand to the district court for an evidentiary hearing on defense counsel’s
effectiveness.
{28} 	We review claims of ineffective assistance of counsel de novo. 	State v.
Boergadine, 2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d 532. 	“To establish a
prima facie case of ineffective assistance of counsel, [the d]efendant must show that
(1) counsel’s performance was deficient in that it fell below an objective standard of
reasonableness; and (2) that [the d]efendant suffered prejudice in that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Aker, 2005-NMCA-063, ¶ 34, 137
N.M. 561, 113 P.3d 384 (internal quotation marks and citation omitted).
{29} 	To show deficient performance, Defendant must overcome the presumption that
counsel’s conduct was within “the wide range of reasonable professional assistance.”
State v. Dylan J., 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44 (internal

21
quotation marks and citation omitted). If we “can conceive of a reasonable trial tactic
which would explain the counsel’s performance, we [should] not find ineffective
assistance.” Id. ¶ 39 (internal quotation marks and citation omitted).
{30} 	A defendant must also affirmatively prove prejudice. 	See State v. Dietrich,
2009-NMCA-031, ¶ 84, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-
002, 145 N.M. 704, 204 P.3d 29. 	“[M]ere evidentiary prejudice is not enough.
Counsel’s deficient performance must represent so serious a failure of the adversarial
process that it undermines judicial confidence in the accuracy and reliability of the
outcome.” State v. Roybal, 2002-NMSC-027, ¶ 25, 132 N.M. 657, 54 P.3d 61.
{31} 	If a prima facie showing of ineffective assistance is made, the Court may
remand the case for an evidentiary hearing if unusual circumstances exist. Dylan J.,
2009-NMCA-027, ¶ 41. 	Our Supreme Court has expressed a preference for
ineffective assistance of counsel claims to be heard in habeas corpus proceedings
when the trial record does not contain sufficient evidence to allow for such a
determination on direct appeal. Id.
{32} 	Defendant argues that because expert testimony is an essential component of
cases involving shaken baby syndrome, his attorney’s failure to consult with or
present a defense expert at trial prevented him from challenging the State’s theory of
the case. 	Defendant asserts that a defense expert could have countered the State’s

22
assertions that Defendant inflicted the injuries to his daughter, that the injuries were
sustained immediately, and that the injuries were indicative of shaken baby syndrome.
Defendant acknowledges, however, that the record reveals only that his trial attorney
did not present expert testimony at trial but does not “disclose what efforts, if any,
counsel made behind the scenes” with respect to consulting with or retaining a defense
expert.
{33} 	We agree with Defendant’s characterization of the trial record and conclude that
the evidence before us is not sufficient to allow us to determine whether defense
counsel’s performance was deficient, and if so, whether Defendant was prejudiced as
a result. On the basis of the record before us, we are not persuaded that Defendant has
established a prima facie case of ineffectiveness. We cannot state with certainty that
Defendant’s trial counsel did not retain or consult with a medical expert on shaken
baby syndrome. Although the record indicates that at some point during the pre-trial
proceedings, defense counsel made unsuccessful attempts to interview and consult
with experts, it is unclear whether Defendant’s attorney had subsequent success in this
endeavor. 	There is also no information in the record regarding defense counsel’s
efforts with respect to any potential defense experts during the time period between
the first and second trials. On this record, we will not speculate as to what happened
behind the scenes with respect to defense counsel’s decisions regarding potential

23
defense experts. See Dylan J., 2009-NMCA-027, ¶ 40 (“We are reluctant to attempt
to decide the issue [of trial counsel’s effectiveness] when we do not have before us all
of the facts needed for an informed decision.”).
{34} 	We note that our Supreme Court has “expressly rejected the contention that the
failure to introduce the testimony of an expert witness constitutes ineffective
assistance of counsel per se.” Lytle v. Jordan, 2001-NMSC-016, ¶ 44, 130 N.M. 198,
22 P.3d 666. We have generally required a defendant to show that a defense expert
was actually available to testify in support of the defense’s theory at trial. See State
v. Aragon, 2009-NMCA-102, ¶ 20, 147 N.M. 26, 216 P.3d 276 (“[W]e have required
a defendant to show that an expert would have been—not could have been—available
to testify at trial [for a prima facie case of ineffectiveness].”). Apart from Defendant’s
appellate counsel’s conjectures regarding what a defense expert could have testified
to in this case, there is nothing in the record to indicate that a defense expert was
actually available to testify in support of Defendant at trial and what the content of the
expert’s testimony would have been. See State v. Crain, 1997-NMCA-101, ¶ 33, 124
N.M. 84, 946 P.2d 1095 (concluding that the defendant had not made a prima facie
case because the record failed to establish that a defense expert was available to testify
in support of the defendant’s theory of the case).
{35} 	Defendant’s reliance on Aragon is misplaced because that case is factually

24
distinguishable from the factual record in this case. In Aragon, we concluded that the
defendant in a child abuse case had demonstrated a prima facie case of ineffectiveness
due to his trial counsel’s “failure to engage an expert for consultation, combined with
her failure to conduct adequate pre-trial interviews of the [s]tate’s experts.” 2009-
NMCA-102, ¶ 15. 	Here, we are not certain that Defendant’s trial counsel did not
consult with an expert or conduct pre-trial interviews. 	Moreover, in Aragon, we
concluded that expert testimony was the “crux” of the case. 	Id. ¶ 12. In this case,
however, the State did not rely exclusively on expert testimony to form the basis of
its case; it also had Defendant’s incriminating statements and Diana’s autopsy results
that it presented to the jury. Finally, in Aragon, there was evidence that the defense
theory had some support within the medical community, thereby establishing that an
expert could have been available to bolster the defense’s case. Id. ¶ 20. In this case,
there is no indication in the evidence from either trial that there was any medical
evidence supporting Defendant’s theories of the case.
{36} 	Thus, we conclude that Defendant has not demonstrated a prima facie case of
ineffectiveness. 	We clarify, however, that our determination does not preclude
Defendant from pursuing these arguments in a collateral proceeding for habeas corpus
relief, where he can develop a proper record. See State v. Bernal, 2006-NMSC-050,
¶ 36, 140 N.M. 644, 146 P.3d 289.

25
4. 	Sufficiency of the Evidence
{37} 	We next address Defendant’s contention that there was insufficient evidence
presented at trial to support his convictions for intentional child abuse. “In reviewing
the sufficiency of the evidence, we must view the evidence in the light most favorable
to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in
the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26,
128 N.M. 711, 998 P.2d 176. The relevant inquiry is “whether direct or circumstantial
substantial evidence exists and supports a verdict of guilt beyond a reasonable doubt
with respect to every element essential for conviction. 	We determine whether a
rational fact[]finder could have found that each element of the crime was established
beyond a reasonable doubt.” State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145
P.3d 86 (citations omitted).
{38} 	The sufficiency of the evidence is assessed against the jury instructions because
they become the law of the case. State v. Smith, 104 N.M. 729, 730, 726 P.2d 883,
884 (Ct. App. 1986). In order for the jury to find Defendant guilty of count one, child
abuse resulting in death or great bodily harm, the jury was required to find the
following elements beyond a reasonable doubt: 	(1) Defendant caused Diana to be
placed in a situation which endangered Diana’s life or health, or Defendant tortured
or cruelly punished Diana; (2) Defendant acted intentionally or with reckless

26
disregard; (3) Defendant’s actions or failure to act resulted in Diana’s death; (4) Diana
was under the age of 18; and (5) this happened in New Mexico on or about January
11, 2005. In order to find Defendant guilty of counts two and three, child abuse which
did not result in death or great bodily harm, the jury was required to find the following
elements beyond a reasonable doubt: (1) Defendant caused Diana to be placed in a
situation which endangered her life or health, or Defendant tortured or cruelly
punished Diana by causing her femurs to be fractured [count 2] or by causing her ribs
to be fractured [count 3]; (2) Defendant acted intentionally or with reckless disregard;
(3) Diana was under the age of 18; and (4) this happened in New Mexico on or
between December 4, 2004, and January 10, 2005.
{39} 	We conclude that there was sufficient evidence to support the jury’s verdict as
to all three counts. 	Defendant’s wife testified at trial that Defendant was the last
person with Diana before Diana stopped responding and went into respiratory distress
on the evening of January 11, 2005. The State presented extensive medical testimony
from Diana’s treating physicians as to the nature of her injuries after she was
transported by emergency personnel to the hospital. Dr. Crowley, Diana’s treating
physician, testified that Diana’s injuries included a traumatic brain injury, rib
fractures, and bucket-handle fractures of both of her femurs; that her rib and femur
fractures were at different stages of healing; and that she stopped breathing within

27
minutes of suffering the traumatic brain injury. Dr. Crowley testified that Diana’s
injuries were consistent with child abuse. Additionally, the State presented Diana’s
autopsy results, which had concluded that the manner of Diana’s death was homicide
and that Diana had suffered a rapid acceleration-deceleration injury consistent with
“shaken impact syndrome.” Dr. Paul, the pathologist who performed Diana’s autopsy,
opined that Diana “died of multiple blunt force injuries, . . . head injuries, rib
fractures, and femur fractures as a result of child abuse.” The State also presented
photographic evidence of Diana’s injuries. 	Moreover, the State presented the
testimony of Detective Cunningham, who testified regarding the incriminating
statements Defendant made during his interrogation. 	Defendant told Detective
Cunningham that he had picked Diana up and squeezed her “[h]ard enough to hurt
her” a couple of weeks before she died. He admitted to pulling Diana’s legs while
changing her diaper and hearing them pop a few weeks before her death. 	He also
admitted that he had squeezed Diana’s head on the morning of January 11. Viewing
the evidence in the light most favorable to the verdicts, we conclude that a reasonable
jury could have found that Defendant committed intentional child abuse.
{40} 	On appeal, Defendant re-asserts his innocence and contends that the State’s own
experts testified that Defendant’s acts of squeezing Diana while hugging her and
squeezing her head did not cause her fatal injuries. However, “[o]n appeal, we will

28
not reweigh the evidence nor substitute our judgment for that of the fact[]finder
provided that there is sufficient evidence to support the verdict.” 	State v. Collins,
2007-NMCA-106, ¶ 29, 142 N.M. 419, 166 P.3d 480. The jury was free to disregard
the allegedly contrary expert testimony that Defendant claims supports his innocence.
Rojo, 1999-NMSC-001, ¶ 19 (“Contrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject [the d]efendant’s version
of the facts.”).
5. 	Cumulative Error
{41} 	Lastly, Defendant argues that cumulative error deprived him of a fair trial. The
cumulative error doctrine calls for reversal of a conviction “when the cumulative
impact of the errors that occurred at trial was so prejudicial that the defendant was
deprived of a fair trial.” See Bailey, 2008-NMCA-084, ¶ 26 (alteration omitted). The
cumulative error doctrine is strictly applied and may not be successfully invoked if the
record as a whole demonstrates that the defendant received a fair trial. 	State v.
Trujillo, 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814. When we find that no
error occurred, “there is no cumulative error.” State v. Aragon, 1999-NMCA-060, ¶
19, 127 N.M. 393, 981 P.2d 1211. Because we have rejected Defendant’s assertions
of error in the proceedings before the district court, we conclude that the doctrine of
cumulative error does not apply in the present case.

29
CONCLUSION
{42} 	For the foregoing reasons, we affirm Defendant’s convictions.
{43} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge