June 20, 2019- State of New Mexico v. Oscar Arvizo, No. A-1-CA-33697

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~33697
5 	OSCAR ARVIZO,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana H. Zamora, District Judge
9 Hector H. Balderas, Attorney General
10 Olga Serafimova, Assistant Attorney General
11 	Santa Fe, NM
12 M. Anne Kelly, Assistant Attorney General
13 	Albuquerque, NM 	·
•'•'\, •1,.
14 for Appellee
15 Bennett J. Baur, Chief Public Defender
16 ·Santa Fe, NM
17 	Steven J. Forsberg, Assistant Appellate Defender
18 	Albuquerque, NM
19 for Appellant
20 	MEMORANDUM OPINION
21 	VARGAS, Judge.
)
22 	{t} 	Defendant appealed his convictions for criminal sexual contact of a minor
23 	(CSCM) in the second degree by a person in authority, CSCM in the third degree by
Court of Appeals of New Mexico
Filed 6/20/2019 11:37 AM

1 a person in authority, pursuant to NMSA 1978, Section 30-9-13(B)(2)(a), (C)(2)(a)
2 (2003), and intimidation of a witness, pursuant to NMSA 1978, Section 30-24-
3 3(A)(3) (1997). Defendant raised the following issues: (1) tlie State violated his right
4 to a speedy trial, (2) the State failed to present sufficient evidence to support his
5 convictions for CSCM, (3) the State failed to present sufficient evidence to support
6 his conviction for intimidation of a witness, (4) the district court erred in excluding
7 evidence 	under 	our rape 	shield rule, 	(5) 	the 	district 	court 	erred 	in 	limiting
8 Defendant's impeachment of A.B., (6) the district court erred in permitting Dr.
9 Renee Ornelas to testify regarding A.B.'s medical examination, (7) the district court
10 erred in ordering an inadequate remedy for the destruction of evidence; (8) the State
11 	committed prosecutorial misconduct by referring to A.B. as a "victim" in its rebuttal
12 argument, (9) the trial judge erred in recusing himself prior to sentencing without
13 	stating a basis for his recusal, and (10) cumulative error requires reversal.
14 	{2} 	This Court previously considered the first three arguments and held that while
15 	the 	State presented sufficient evidence to 	support Defendant's 	conviction for
16 intimidating a witness and did not violate Defendant's right to a speedy trial, it failed
17 to present sufficient evidence to support his convictions for CSCM. See State v.
18 Arvizo (Arvizo I), No. 33,697, 2016 WL 3970910, mem. op. -,r-,r 17, 24-25, 33, (N.M.
19 Ct. App. June 11, 2016) (non-precedential). Given our holdings on these issues, we
20 declined to address the remaining arguments. Id. -,r 7. Our Supreme Court reversed,
2

1 holding 	that 	the 	State 	presented 	sufficient 	evidence 	to 	support 	Defendant's
2 convictions for CSCM, and reinstated Defendant's convictions for second and third- ·
3 degree CSCM before remanding the case to this Court "to decide any remaining
4 unaddressed appellate issues raised by [the d]efendant." State v. Arvizo (Arvizo II),
5 2018-NMSC-026, 125, 417 P.3d 384. We affirm.
6 	{3} 	Because this is a memorandum opinion and the parties are familiar with the
7 facts and procedural history of the case, we reserve discussion of the pertinent facts
8 within the context of Defendant's arguments.
9 DISCUSSION
10 	Rape Shield Rule
11 	{4} 	Defendant first contends the district court erred in excluding evidence bearing
12 up~n A.B.'s "motive to lie," under both the Confrontation Clause and the rules of
13 	evidence. 	In particular, Defendant proffered evidence that 	he 	observed A.B.
14 engaging in oral sex with a teenage male, D.B, and that A.B. made false accusations
15 	against Defendant in anticipation that he would report what he saw to A.B. 's parents.
16 "It is well settled that our appellate courts generally review evidentiary matters for
17 an ·abuse of discretion." State v. Montoya, 2014-NMSC-032, 115, 333 P.3d 935.
18 	However, we review "challenges to rulings excluding evidence proffered by the
19 defense de novo where the objections are based on Sixth Amendment confrontation
20 rights." Id. ( emphasis, internal quotation marks, and citation omitted).
3

1 {5} 	New Mexico's rape shield rule, Rule 11-413(A) NMRA (1990)1, provides
2 that:
3
4
5
6
7
[E]vidence of the victim's past sexual conduct ... shall not be admitted
unless, and only to the extent that -the court finds, that evidence of the
victim's past sexual conduct is material and relevant to the case and that
its inflammatory or prejudicial nature does not outweigh its· probative
value.
8 Under this rule, "a defendant must show sufficient facts to support a particular theory
9 	of relevance to enable the [district] court to competently assess the constitutional
10 significance of that theory." State v. Stephen F., 2008-NMSC-037,, 7, 144 N.M.
11 	360, 188 P.3d 84 (internal quotation marks and citation omitted). Our Supreme Court
12 established "a five-factor framework to aid the court in determining whether the
13 	defendant has adequately established his theory of relevance." Id. , 8. Under this
14 framework, the district court determines:
15
16
17
18
19
20
( 1) whether there is a clear showing that the complainant committed the
prior acts; (2) whether the circumstances of the prior acts closely
resemble those of the present case; (3) whether the prior acts are clearly
relevant to a material issue, such as identity, intent, or bias; (4) whether
the evidence is necessary to the defendant's case; and (5) whether the
probative value of the evidence outweighs its prejudicial effect[.]
1
Rule 11-413 (1990) was amended and renumbered in 2012 as Rule 11-412
NMRA, "effective for all cases pending or filed on or after June 16, 2012[.]"
Supreme Court Order No. 	12-8300-015 (2012); see Rule 	11-412 Comm. cmt.
("Changes to the renumbered rule were intended to be stylistic only and not intended
to change the rule in any substantive way.").
4

1 State v. Johnson, 1997-NMSC-036, ,r,r 27, 28, 123 N.M. 640, 944 P.2d 869. "[A]
2 showing sufficient under this framework establishes a constitutional right to present
3 evidence otherwise excluded by our [rule]." Stephen F., 	2008-NMSC-037,. ,r 8
· 4 ( alteration, internal quotation marks, and citation omitted).
5 	{6} 	Defendant argues that the district court applied the wrong evidentiary standard
6 when it determined under the first Johnson factor that "no clear showing [had] been
7 made [that A.B.] committed the prior acts." We need not address the issue of which
8 evidentiary standard controls under the first Johnson factor; however, as the district
9 	court's ruling was also predicated on the third Johnson 	factor-relevance to a
10 material issue-which, if correct, is dispositive of the matter. See Johnson, 1997-
1 l 	NMSC-036, if 27.
12 {7} 	Defendant's theory of relevance for the evidence of A.B. 's prior sexual
13 	conduct was relevant to her motive to lie. He argued that, unbeknownst to A.B.,
14 Defendant observed her engaging in oral sex with D.B., Defendant then told A.B.'s
15 	cousin what Defendant saw, and A.B.'s cousin later told A.B. Thus, Defendant
16 argues, A.B. "had a motive to lie and did so in order to preempt [Defendant] from
17 reporting her conduct to her strict parents."
18 	{8} 	The 	district court found that Defendant failed to 	demonstrate 	a "nexus
19 between the evidence and his theory," noting Defendant's failure to introduce
20 evidence that A.B. knew of Defendant's observation before A.B. accused Defendant
5

1 of sexual abuse. Indeed, defense counsel conceded in the hearing on Defendant's
2 Rule 11-413 motion that "[t]he incident [with D.B.] occurred before the allegations
3 	in this case-or before the disclosure, but after the allegations[.]" (Emphasis added.)
4 Absent some evidence demonstrating that A.B. knew of Defendant's observation
5 before she made the accusation against Defendant, we are unable to conclude that
6 the district court erred in finding there was no nexus between the evidence of A.B.'s
7 sexual conduct and Defendant's theory that such conduct motivated her to fabricate
8 her accusation against Defendant. 	See Stephen 	F., 	2008-NMSC-03 7; 11 8, 	3 6
9 ( explaining that the district court may look to "whether the prior acts are clearly
10 relevant to a material issue, such as identity, intent, or bias[,]" and that a defendant
11 	must support his or her theory of relevance "with adequate facts showing a nexus
12 ·between his [.or her] proffered evidence and.his [or her] theory" (internal quotation
13 	marks and citation omitted)). Accordingly, we conclude the district court did not err
14 in excluding the evidence of A.B.'s prior sexual conduct.
15 	Impeachment of A.B.
16 	{9} 	Defendant next argues that the district court improperly limited Defendant's
17 ability to impeach A.B. when it ruled that Defendant must first confront A.B. with
18 her out-of-court statements before impeaching her with those statements. We review
19 the district court's ruling for an abuse of discretion. See State v. 	Gomez, 2001-
20 NMCA-080; 112, 131 N.M. 118, 33 P.3d 669 ("Abuse of discretion is the standard
6

1 of review on appeal of a [district] court's ruling admitting a prior inconsistent
2 statement[,] pursuant to Rule 11-613 [NMRA]."); see also State v. Dominguez,
3 2007-NMSC-060, ,-r 19, 142 N.M. 811, 171 P.3d 750 (characterizing the district
4 court's ruling on a party's course of examination for impeachment purposes as a
5 matter within its discretion).
6 {10} 	Defendant cites three points at which he attempted to impeach A.B. with her
7 prior out-of-court statements. First, on cross-examination, defense counsel asked
8 A.B. whether "everybody was in the house when [Defendant] grabbed [her] butt[.]"
9 A.B. answered, "I know my mom and dad-maybe not even my mom, but my dad
10 and [my mom's sister] were in the living room. I can't tell you where everybody
11 	was." After defense counsel again asked whether "everybody was in the house,"
12 A.B. stated, "I don't know." After defense counsel asked A.B. if, during his pretrial
13 	interview with her, she said, "[E]verybody was in the house when [Defendant]
14 grabbed [her] butt[,]'-' she responded that she did not remember. The jury was
15 	excused, defense counsel played a recording of the pretrial interview for A.B., the
16 jury was brought back into the courtroom, and defense counsel asked A.B., "And
17 what you told me was, during our interview, that everybody was in the house, that
18 you did not know exactly where [Defendant's children] were?" A.B. stated, "What
19 I had said was, 'Everybody was in the house,' and then I said, 'Oh, wait. I don't
7

1 know.' Then I said, 'I don't know where [Defendant's children were],' and so I
2 wasn't sure, even then, who was in the house."
3 	{11} 	The second line of testimony upon which Defendant sought to impeach A.B.
4 was her response to whether she considered Defendant her uncle. A.B. testified,
5 "Well, that depends. Now, I don't, but then, [Defendant] was [her] uncle. He-I
6 mean, basically, still is, ifhe's still married to [my mother's sister]." Defense counsel
7 then asked A.B., "At [the pretrial] interview, when I asked you, 'Did you consider
8 [Defendant] your uncle,' you answered 'No,' correct?" A.B. stated that she did not
9 remember. The jury was again excused, defense counsel played a recording of the
10 pretrial interview, the jury was brought back into the courtroom, and defense counsel
11 	asked A.B., "So I'm going to ask you that question again. At my interview with you,
12 	I asked you, 'Did you consider [Defendant] your uncle?' And you said, 'No[,]'" to
13 	which A.B. answered, "Yes."
14 {12} 	The third line of testimony was in reference to a gesture A.B. made on direct-
15 	examination:
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17
18
19
20
21
Q: 	You said, during the direct[-]examination, that when [Defendant]
had his hand down there, that he was touching your outer lip of your
vagina?
A: 	Yes.
Q: 	And that his hand was rubbing and moving on top?
A: 	Yes.
8

1
2
3
4
5
Q: 	And you even did a little motion with your finger on top of your
hand-·
A: 	Yes.
Q: 	-for the jury to see?
A: 	Yes.
6 After the jury was excused, defense counsel played a recording of A.B.'s S.A.F.E.
7 House interview. The jury was brought back into the courtroom and defense counsel
8 continued:
9
10
11
12
13
14
15
Q: 	Now, when you were asked, by the S.A.F.E. House interviewer,
'Can you show me, like, what his hand was doing,' you put your hand
on your crotch, in front of your vagina, over your pants, and you said,
'His hand was, like, just there'-
A: 	Yes.
Q: 	-.and you made no motion?
A: 	Yes.
16 {13} 	With regard to A.B.'s first statement, we note that her testimony concerning
17 whether "everybody was in the house" was not inconsistent with her statement in
18 	defense counsel's pretrial interview. Because A.B.'s testimony on this particular
19 point was not inconsistent with her prior out-of-court statements, she could not be
20 impeached by her prior statements. See Rule 11-613 NMRA (1993) 2 ; State v.
2Rule 11-613 was amended in 2012, "effective for all cases pending or filed
on or after June 16, 2012." Supreme Court Order No. 12-8300-015; see also Rule
9

.1 	Macias, 2009-NMSC-028, , 20, 146 N.M.' 378, 210 P.3d 804 ("To accomplish
2 impeachment by prior inconsistent statements, the attorney must first elicit in-court
3 testimony about a matter. If the testimony is inconsistent with a witness's prior ·
4 statement, the attorney confronts the witness with the prior statement."), overruled
5 on other grounds by State v. Tollardo, 2012-NMSC-008,, 37 n.6, 275 P.3d 110.
6 	{14} 	In the district court, Defendant relied on State v. Gonzales, 1992-NMSC-003,
7 ,, 21, 24-25, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds by State v.
8 Montoya, 2013-NMSC-020, , 2, 306 P.3d 426, as support for his argument that
9 A.B. 's testimony was impeachable. We are not persuaded. In Gonzales, the witness's
10 testimony at trial was inconsistent with her testimony at a preliminary hearing. 1992-
11 	NMSC-003,, 21. Following her inconsistent trial testimony, the witness stated that
12 	she could not remember her testimony at the preliminary hearing. Id. Our Supreme
13 	Court 	c.o'ncluded that the witness's "forgetfulness 	regarding the 	inconsistency
14 opened the door for the [s]tate to introduce evidence of the inconsistency." Id. , 24
J 5 (emphasis added). Thus, it was the witness's inconsistent statements, in conjunction
16 with her forgetfulness-rather than her forgetfulness in and of itself--that opened
.17 the door for impeachment with her prior statement. Here, however, A.B. gave no
18 	such inconsistent testimony. Neither her statement of fact regarding who was present
11-613 Comm. cmt. ("These changes are intended to be stylistic only. There is no
intent to change any result in any ruling on admissibility.").
10

1 at the house nor her testimony that she could not remember what she stated in the
2 pretrial interview were inconsistent with her out-of-court statement. See State v.
3 Astorga, 2015-NMSC-007, 1139-40, 343 P.3d 1245 ("In evaluating whether a
4 witness's trial testimony is inconsistent with the witne~s' s prior statement, the
5 question is ... simply whether the substance of the witness's trial testimony is
6 inconsistent with the prior statement." (emphasis and citations omitted)); Macias,
7 2009-NMSC-028, 121 (quoting State v. Spadafore, 	220 S.E.2d 655 (W.Va. 1975),
8 for the proposition that "where the witness does not te_stify contrary to his prior
9 statement but demonstrates an absence of memory, sμch prior statement must be
10 used sparingly to demonstrate lack of integrity in the witness or the reason for
11 	surprise to the party which calls him, but these legitimate purposes may not be used
12 	as a ruse for introducing inadmissible evidence''). As there was no inconsistent
13 	statement in this line of testimony, Defendant could not have impeached A.B. with
14 her 	out-of-court 	statement, 	and 	Defendant's 	argument 	that 	the 	district 	court
15 	improperly restricted his right to impeach A.B. on this line of questioning is without
16 merit.
17 	{15} 	To the extent the two other lines of testimony were inconsistent with A.B.'s
18 	out-of-court statements, we cannot say the district court erred in ruling that defense
19 counsel must first confront A.B. with her out-of-court statements before defense
20 counsel c~uld play the recording in the presence of the jury. Rule l l-613(B) (1993)
11

1 provides that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is
2 not admissible unless the witness is afforded an opportunity to explain or deny the
3 same and the opposite party is afforded an opportunity to interrogate the witness
4 thereon, or the interests of justice otherwise require." "Rule 11-613(8), permits
5 departure from the traditional, although often still preferred, method of confronting
6 a witness with his [or her] inconsistent statement prior to its introduction in[]to
7 evidence." Gomez, 2001-NMCA-080,, 14 (emphasis added). Here, however, the
8 district court saw fit to adhere to the traditional rule, requiring defense counsel to
9 present A.B. with her inconsistent out-of-court statements before impeaching her
10 with those statements. Accordingly, we conclude the district court did not abuse its
11 	discretion. See State v. Garnenez, 2015-NMCA-022,, 31, 344 P.3d 1054 ("It is
12 within the district court's discretion to control the order of witnesses, mode of
13 	interrogating 	witnesses, 	and 	presentation 	of 	evidence.". (alterations, 	internal
14 quotation marks, and citation omitted)); cf Dominguez, 2007-NMSC-060, , 19
15 	(explaining that it is within the district court's discretion to permit a party to depart
16 from the traditional method of confronting a witness with his or her inconsistent
17 statement).
18 	Dr. Ornelas's Expert Testimony
19 	{16} 	Defendant's next argument is that the district court erred in permitting Dr.
20 Ornelas to testify regarding her medical examination of A.B. 	because it was
12

1 irrelevant and "highly prejudicial." ''Admission of expert testimony ... is a matter
2 within the sound discretion of the [district] court and will not be reve~sed absent a
3 showing of abuse of that discretion." State v. Sena, 2018-NMCA-037, 152,419 P.3d
4 	1240 (internal quotation marks and citation omitted), cert. granted, 2018-NMCERT-
5 _ 	(No. S-1-SC-36932, May 25, 2018). "An expert witness may testify if doing so
6 will help the trier of fact to understand the evidence or to determine a fact in issue."
7 Id. 	(internal quotation marks and citation omitted); 	see Rule 	11-702 NMRA.
8 "Whether expert testimony will assist the trier of fact is a question of relevance.''
9 Sena, 2018-NMCA-037, 152. Evidence is relevant if "it has any tendency to make
10 a fact more or less probable than it would be without the evidence, and ... the fact
11 	is of consequence in determining the action." Rule 11-401 NMRA. Even if it is
12 admissible under Rule 11-401, relevant evidence may still be excluded "if its
13 	probative value is substantially outweighed by a danger of ... unfair prejudice[.]"
14 Rule 11-403 NMRA.
15 	{17} 	At trial, Dr. Ornelas testified regarding her medical examination of A.B.,
16 conducted approximately seven months after Defendant sexually abused A.B. A.B. 's ·
17 mother informed Dr. Ornelas that A.B. was cutting herself, and that, after December
t:8 	2009 A.B. had anger and sleep issues, stomach pains, was "making statements
19 reflecting low self-esteem," appeared to be "sad all the time," and "did [not] want to
20 play with her friends." After taking A.B.' s history, Dr. Ornelas conducted a physical
13

1 examination on A.B. and found A.B. had a "normal exam," meaning the structures.
2 of her genital and anal area were normal, with the exception of one "normal variant."
3 Dr. Ornelas testified that a normal examination such as this is consistent with A.B.'s
4 history, her "pubertal development," and someone having touched A.B. 's vaginal
5 area. On cross-examination, Dr. Ornelas agreed that this finding is also consistent
6 with no sexual abuse having occurred.
7 	{18} 	The State argues Dr. Ornelas's testimony was probative because it established
8 that the results of the medical examination were not inconsistent with the charge of
9 CSCM. 	Defendant cites 	Dr. 	Ornelas's testimony that 	such results 	were 	also
10 consistent with no sexual abuse, and relies on State v. Garcia, 2005-NMSC-017,
11 	, 	12, 138 N.M. 1, 116 P.3d 72, for the proposition-used in the context of reviewing
12 	sufficiency of the evidence-that "evidence equally consistent with two hypotheses
13 	tends to prove neither." (alteration, internal quotation marks, and citation omitted).
14 However, as our Supreme Court has explained, "[a]ny doubt whether the evidence
15 	is relevant should be resolved in favor of admissibility." State v. Johnson, 2010-
16 NMSC-016,, 41, 148 N.M. 50,229 P.3d 523 (internal quotation marks and citation
17 omitted). Thus, while Dr. Ornelas's testimony may have also provided support for a
18 	proposition not intended by the State, we conclude the district court did not err in
19 	admitting her testimony as it was probative of the State's intended inference.
14

1 {19} · 	Defendant argues that because the State did not present physical evidence nor
2 testimony 	from 	third-party 	witnesses, 	Dr. 	Ornelas's 	testimony 	was 	"highly
3 prejudicial." 	However, 	"[u]nfair 	prejudice 	does 	not 	mean 	the 	damage 	to 	a
4 defendant's case that results from the legitimate probative force of the evidence;
5 rather it refers to evidence that tends to suggest decision on an improper basis." State
6 v. Anderson, 1994-NMSC-089, ,r 63, 118 N.M. 284, 881 P.2d 29. Defendant makes
7 no argument as to whether Dr. Omelas's testimony "tends to suggest decision on an
8 .improper basis," and we thus decline to review his Rule 11-403 argument further.
9 See State v. Guerra, 2012-NMSC-014, ,r 21,278 P.3d 1031 (explaining that we do
10 not review unclear or undeveloped arguments).
11 	{20} 	To the extent Defendant argues that Dr. Ornelas impermissibly vouched for
12 A.B., such argument is limited in his brief in chief to a heading labeled "Dr.
13 	Omelas'[s] vouching testimony was improperly admitted." Defendant does not
-
14 further develop this particular argument until his reply brief. We therefore decline
15 	to review this argument as well. See id.; State v. Simmons, 2018-NMCA-015, ,r 23,
16 409 P.3d 	1030 (declining to address arguments raised for the first time 	in a
17 defendant's reply brief), cert. denied, 	2017-NMCERT-_ (No. 	S-1-SC-36767,
18 Dec. 20, 2017).
15

1 Chouinard Remedy
2 	{21} 	Defendant also argues the district court's remedy for the loss of evidence was
3 inadequate. "New Mexico has adopted a three~part test to determine whether
4 deprivation of evidence is reversible error." State v. Chouinard, 1981-NMSC-096,
5 , 	16, 96 N.M. 658, 634 P.2d 680. The test considers whether (1) the state "either
6 breached some duty or intentionally deprived the defendant of evidence[,]" (2) the
7 lost or destroyed evidence was material, and (3) "[t]he suppression of this evidence
8 prejudiced the defendant." Id. 	(internal quotation marks and citation omitted).
9 "Where the loss [of evidence] is known prior to trial, there are two alternatives:
10 	[e]xclusion of all evidence which the lost evidence might have impeached, or
11 	admission with full disclosure of the loss and its relevance and import." Id. , 23.
12 "The choice between these alternatives must be made by the 	[district] ·cc;mrt,
13 	depending on its assessment of materiality and prejudice." Id. "Determination of
14 materiality and prejudice must be made on a case-by-case basis." Id., 25.
15 	{22} 	"We review a district court's remedy for lost or destroyed evidence for an
16 abuse of discretion." State v. Redd, 2013-NMCA-089, , 	18, 308 P.3d 1000. "An
17 abuse of discretion occurs when the ruling is clearly against the logic and effect of
18 the facts and circumstances of the case." Id. (internal quotation marks and citation
19 omitted). "Additionally, we view the evidence and the inferences drawn from that
20 evidence in favor of the district court's ruling." Id.
16

1 {23} 	Defendant filed a motion to dismiss his indictment based on the State's
2 destruction of a videotape of his police interview conducted by Detective Gerald
3 Shelden. Defendant stated in his motion that, during the interview, he "adamantly
4 denied" the allegation of sexual abuse, offered to take a polygraph test, and explained
5 that A.B. had a motive to fabricate her allegation because Defendant witnessed her
6 engaging in oral sex with D.B. While the videotape of Defendant's interview was
7 supposed to be saved to a DVD, the video did not properly record and thus the DVD
8 was "not readable." Defendant filed a motion to dismiss based on the "destruction
9 of evidence." The district court denied Defendant's motion, but ordered the parties
10 to submit an instruction to the jury regarding the destruction of-evidence and ruled
11 	that defense counsel could cross-examine Detective Shelden, who testified at trial
12 regarding the substance of the interview, on the equipment's malfunction;
13 	{24}. 	Defendant argues the evidence was material to his case because it could have
14 provided the jury with "an impartial recorder of [Defendant's] demeanor and
15 	statements during the questioning." Defendant asserts this 	evi~ence 	is highly
16 probative as it would serve to undermine A.B. 's account of the sexual abuse, as well
17 as Detective Shelden's account of what Defendant stated during the interview.
18 However, Defendant does not explain what characteristics of his demeanor during
19 the interview would undermine A.B.'s and Detectfve Sheldon's testimony. Thus,
20 any assertion that the jury's verdict was influenced because of its inability to view
17

1 Defendant's demeanor during the interview is speculative and fails to establish the
2 materiality of the evidence. See State v. Branch, 2018-NMCA-031,, 52,417 P.3d
3 	1141 (recognizing that the "mere possibility" that evidence might have helped the
4 defendant or affected the outcome of the trial "does not establish materiality"
5 (internal quotation marks and citation omitted)).
6 {25} 	Moreover, while cross-examining Detective Shelden, Defendant questioned
7 him about Defendant's level of cooperation during the interview, but chose not to
8 cross-examine Detective Shelden about Defendant's demeanor. Furthermore, as
9 Detective Shelden merely testified that Defendant denied the allegations against
10 him, the videotape would not have undermined Detective Shelden's account of what
11 	Defendant stated during the interview. Accordingly, we conclude Defendant failed
12 to establish prejudice resulting from the lost videotape. See State v. Duarte, 2007-
13 	NMCA-012, , 	11, 140 N.M. 930, 	149 P.3d 1027 (explaining that the missing
14 evidence's 	importance 	to 	the 	defendant 	is 	a 	component 	of prejudice 	under
15 	Chouinard).
16 {26} 	To the extent Defendant argues the videotape was material because it would
17 have provided the jury with Defendant's account of A.B.'s motive to lie, i.e., her .
18 prior sexual conduct with D.B., we have already concluded the district. court
19 appropriately excluded such evidence. The lost video recording of Defendant's
20 inadmissible testimony about A.B.'s prior sexual conduct was not material. See
18

1 Duarte, 2007-NMCA-012, , 	15 ("The test for materiality, the second factor, is
2 whether there is a reasonable probability that, had the evidence been disclosed to the
3 defense, the result of the proceeding would have been different." (internal quotation
4 marks and citation omitted)).
5 	{27} 	For the foregoing reasons, we conclude the district court did not abuse ·its
6 discretion in denying Defendant's motion to dismiss ahd ruling that the jury was to
7 be instructed on the destruction of the evidence and that Defendant could cross-
8 examine Detective Shelden on the subject.
9 Reference to A.B. as "Victim"
10 	{28} 	Defendant next contends the State, by referring to A.B. as a "victim," violated
11 	the district court's pretrial order, thereby warranting dismissal on grounds 	of
12 prosecutorial misconduct. We note that the district court granted in part and denied
13 	in part Defendarit's motion in limine, which sought to prohibit the State and its
14 witnesses from referring to A.B. as a "victim." The district court issued the following
· 15 	ruling: "Witness shall use name instead of word 'victim.' Attorneys shall instruct
16 witnesses not to use the term 'victim.' [Attorneys] shall not use charged terms like
17 	'child molester,' 'child rapist,' 'child abuser.' State may say [Defendant] molested
18 the child in closing arguments." During its rebuttal argument, the State used the term
19 "victim" on two occasions. In both instances, the State argued Defendant engaged
20 in "blaming the victim" in his closing argument. Nearly five months after the jury
19

1 returned its verdict, Defendant filed a motion to dismiss based on the State's
2 comments during rebuttal argument. The district court denied Defendant's motion.
3 {29} 	Because defense counsel did not object to the State's rebuttal argument at trial,
4 we review for fundamental error. See State v. Sosa, 2009-NMSC-056, 126, 147
5 N.M. 351,223 P.3d 348 ("Where counsel fails to object, the appellate court is limited
6 to a fundamental error review."). "An error is fundamental if there is a reasonable
7 probability that the error was a significant factor in the jury's deliberations in relation
8 to the rest of the evidence before them." State v. DeGraff, 2006-NMSC-011, 121,
9 	139 N.M. 211, 131 P.3d 61 (internal quotation marks and citation omitted).
10 {30} 	When reviewing whether the State's comments during closing arguments
11 	warrant reversal, three factors "carry great influence in our deliberations: (1) whether
12 the statement invades some distinct constitutional protection; 	(2) whether the
13 	statement is isolated and brief, or repeated and pervasive; and (3) whether the
14 	st.atement is invited by' the defense." Sosa, 2009-NMSC-056, 11 26, 27, 29, 33.
15 	"These three factors are useful guides, but in the final analysis context is paramount."
16 Id. 1 34. "Our courts also consider whether the evidence of guilt is overwhelming,
17 whether the improper statement is corrected by counsel or limited by the court, or
18 	whether the fact manipulated by the statement is determinative to the outcome of the
19 case." Sena, 2018-NMCA-037, 117. "The common thread running through the cases
20 finding reversible error is that the [state's] comments materially altered the trial or
20

1 likely confused the jury by distorting the evidence, and thereby deprived the accused
2 of a fair trial." Id. (alteration, internal quotation marks, and citation omitted).
3 {31} 	Defendant does not contend the State's comments invaded some distinct
4 constitutional protection. We therefore do not address this issue. See Garnenez,
5 2015-NMCA-022, 115 (explaining that "we do not review arguments not raised in
6 [the defendant's] brief in chief'). Moreover, the State's comments were brief and
7 restricted to a relatively limited portion of the State's rebuttal argument. And while
8 the State's rebuttal argument responded to Defendant's attack of A.B. 's credibility
9 based on the inconsistencies between her in- and out-of-court statements, the State's
10 use of the word "victim" to describe A.B. was not invited by the defense.
11 	{32} 	"Fundamental error occurs 	when 	prosecutorial 	misconduct 	in 	closing
12 statements compromises a defendant's right to a fair trial[.]" Sosa, 2009-NMSC-
13 	056, 135. To answer whether a comment made during closing arguments deprived
14 a defendant of a fair trial, "we review the comment in context with the closing
15 	argument as a whole and in the context of the remaining trial proceedings so that we
16 may gain a full understanding of the comments and their potential effect on the jury."
17 State v. Fry, 2006-NMSC-001, 150, 138 N.M. 700, 126 P.3d 516 (internal quotation
18 marks and citation omitted). In this instance, the State's comments did not deprive
19 Defendant of a fair trial. The State's comments in rebuttal argument were an attempt
20 to describe Defendant's closing argument wherein he called A.B.'s credibility into
21

I
1 question. Moreover, the thrust of the State's rebuttal argument wa~ to highlight the
2 significance 	of A.B.'s 	behavior following 	the 	incident 	of sexual 	abuse, 	her
3 relationship with D.B., Defendant's intimidation of A.B., J)etective Shelden's
4 credibility, and the consistency of A.B. 's in- and out-of-court statements. Viewing
5 the State's brief comments in context with the rebuttal argument as a whole, as well
6 as the evidence of guilt presented by the State, see Arvizo II, 2018-NMSC-026,
7 ,r,r 23-24, Arvizo I, 2016 WL 3970910, mem. op. ,r,r 24, 33, we conclude the State's
8 comments did not deprive Defendant of a fair trial. We therefore affirm the district
9 court's 	order denying Defendant's 	motion to 	dismiss 	based on prosecutorial
10 misconduct during closing argument.
11 	Recusal
12 	{33} 	Defendant argues he is entitled to resentencing or, alternatively, a record from
13 	the district court regarding the basis for the trial judge's recusal after the close of
14 trial but prior to sentencing. "[R]ecusal rests within the discretion of the trial judge,
15 	and will only be reversed upon a showing of an abuse of that discretion." State v.
16 Riordan, 2009-NMSC-022, ,r 6, 146 N.M. 281,209 P.3d 773.
17 	{34} 	Defendant relies on Sims v. Ryan, 1998-NMSC-019, ,r 9, 125 N.M. 357, 961
18 P.2d 782, for the_proposition that "[g]enerally, an unusual or exigent circumstance
19 must exist for a different judge to impose a sentence[,]" and that he _is entitled to
20 either resentencing by the trial judge or a record regarding the basis for the trial
22

1 judge's recusal because neither the trial nor sentencing judge inade findings about
2 unusual or exigent circumstances. However, Sims involved the original judge's
3 sentencing of a defendant after the defendant pleaded guilty to DWI, followed by
4 the municipal court's presiding judge voiding the original judge's sentence because
5 the original judge did not adhere to the presiding judge's unwritten policy for DWI
6 offenses. Id. , 2. Our Supreme Court noted that the presiding judge did not argue the
7 existence of any unusual or exigent circumstances, and he was therefore incapable
8 of voiding the original judge's sentence. Id. ,, 9, 11. Such circumstances are not
9 present in this case, and Sims is therefore inapplicable;
10 {35} 	Without providing any evidence in support of his contention, Defendant
11 	argues that "it is a reasonable inference that. something occurred during the trial
12 requiring the [trial judge] to recuse [himself]." Although the district court's notice
13 	of recusal did not state the reasons for recusal, "we must presume, in the absence of
14 any evidence to the contrary, that [the judge] is doing so in full conformity with his
15 [or her] duty." Gerety v. Demers, 1978-NMSC-097,, 11, 92 N.M. 396, 589 P.2d
·16 	180; see In re Schwartz, 2011-NMSC-019, , 20, 	149 N.M. 721, 255 P.3d 299
17 (extending the holding in Gerety that a judge may issue a notice of recusal without
18 	stating the reasons for such action). We are therefore unable to conclude the trial
19 judge abused his discretion in recusing himself, and we decHne to remand for
.20 resentencing or supplementing the record.
· 23

1 Cumulative Error
2 	{36} 	Defendant's final argument is that cumulative error mandates reversal of his
3 convictions. "The doctrine of cumulative error applies when multiple errors, which
4 by themselves do not constitute reversible error, are so serious in the aggregate that
5 they cumulatively deprive the defendant of a fair trial." State v. Salas, 201 O-NMSC-
6 028, , 39, 	148 N.M. 	313, 236 P.3d 32 (internal quotation marks and citation
7 omitted). As there was no error in Defendant's case, he received a fair trial and his
8 claim of cumulative error is without merit. See id. , 40 (concluding that where there
9 is 	no 	error, 	the 	defendant therefore 	received a 	fair trial 	and the 	defendant's
10 cumulative error claim fails).
11 	CONCLUSION
12 	{37} 	The judgment and sentence are affirmed.
13 	{38} 	IT IS SO ORDERED.
14 	~a~t£~15 	IEJ. vAGAi,J ge
16 WE CONCUR:
17 if{lzrL- ~r~
18 	STINA BotARDus, Judge
24