July 31, 2013 – State v. Bernardino Romero, No. 30,607

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: July 31, 2013
NO. 	30,607
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BERNARDINO ROMERO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, Judge
Gary K. King, Attorney General
Yvonne Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Tania Shahani, Assistant Public Defender
Santa Fe, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant Bernardino Romero appeals his conviction and sentence for criminal
sexual contact of a minor (CSCM), under NMSA 1978, Section 30-9-13(C)(1) (2003).
Defendant contends that the district court erred by (1) allowing an amendment to the
indictment during the trial, (2) refusing to require the State to disclose its expert’s
assessment of Defendant’s polygraph examination result, and (3) issuing a shotgun
jury instruction. 	We address each issue in turn and, for the reasons stated herein,
affirm.
I. 	BACKGROUND
{2} 	The facts in this case are undisputed. Defendant and Victim were neighbors.
When Victim was eleven years old, she told her mother that Defendant engaged in
inappropriate sexual conduct with her when she was about five or six years old.
Victim subsequently repeated her assertions to a law enforcement official as well as
to an investigator from the New Mexico Public Defender Department. 	Consistent
with Victim’s statements during those interviews, the State charged Defendant with
two counts of criminal sexual penetration of a minor (CSPM) (counts one and two).
Based on Victim’s additional claim that Defendant forced her to touch his penis, the
State also charged him with CSCM (count three) and a single count of aggravated

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indecent exposure (count four).
{3} 	In preparation for trial, defense counsel arranged for Defendant to undergo a
polygraph examination. The polygrapher asked Defendant three questions during the
examination, each based on the content of Victim’s interviews. He asked Defendant:
(1) “Did you ever put your penis into [Victim’s] vagina[?]”; (2) “Did you ever
penetrate [Victim’s] vagina to any extent?”; and (3) “Did [Victim] ever touch your
penis with her hand?” 	Defendant answered each query in the negative, and his
polygrapher determined that the data produced during the examination revealed to a
ninety 	percent 	degree 	of 	certainty 	that 	Defendant’s 	responses 	were 	truthful.
Following disclosure of the polygraph result, the State sought and was granted a
continuance in order to have its own polygraph expert analyze the results.
{4} 	At trial, the State elected not to give notice of or call an expert witness
regarding the polygraph or to offer evidence of any alternative evaluation of
Defendant’s polygraph result. Nor did the State disclose to Defendant any findings
its own expert may have prepared. Despite being unaware of the information, if any,
produced by the State’s polygrapher, Defendant asserted that the State withheld
relevant Brady material in the form of its polygrapher’s opinion and during trial
sought disclosure of any such evidence. 	See Brady v. Maryland, 373 U.S. 83, 87
(1963) (holding that “the suppression by the prosecution of evidence favorable to an

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accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).
The State responded that it was not required to disclose its expert’s findings because
that expert was never listed as a witness. The State further argued that disclosure was
unwarranted because Defendant had not sought information regarding, or an interview
with, the State’s polygrapher prior to trial. The district court denied Defendant’s oral
motion for disclosure, finding that although the information sought was relevant,
defense counsel should have specifically sought discovery or subpoenaed the State’s
expert before trial commenced.
{5} 	At trial, Victim was the State’s only witness able to testify regarding the
specific acts of sexual abuse alleged in each count. 	As to count one, Victim’s
testimony varied in content from her assertions of penetration made during interviews
prior to trial. Instead, she maintained only that Defendant rubbed his “private part”
against hers, making skin-on-skin contact. 	Following the State’s presentation of
evidence, Defendant sought a directed verdict dismissing all charges, noting
specifically that there was insufficient evidence to support the CSPM alleged in count
one. 	Without objection from Defendant, the State moved to amend count one to
charge the lesser-included offense of CSCM based on Victim’s trial testimony.
{6} 	Following trial, at which Defendant also testified and denied ever having

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sexually abused Victim, the jury deliberated approximately five-and-a-half hours
before the foreperson notified the district court that the jury was “having an
impossible time reaching a unanimous decision on any of the charges.” The district
court returned the jury to the courtroom and asked the foreperson: “Without advising
the [district court] which way the vote is going, can you give me a numerical
breakdown of the division[ for each count]?” The foreperson stated that the jurors
were divided eleven votes to one vote on count one, six votes to six votes on count
two, nine votes to three votes on count three, and eight votes to four votes on count
four. The district court then inquired, “Do you think if I sent you back into the jury
room to deliberate further, that you would be able to reach a verdict on one or more
of these counts?” The foreperson responded, “I believe that we might be able to reach
a unanimous decision on one count . . . [a]nd the rest, really not.” The district court
replied, “Well, I’ll have you return to the jury room to continue deliberations then.”
{7} 	Defense counsel did not immediately object to this colloquy or to the district
court’s instruction that the jury continue its deliberation. 	Approximately one-half
hour later, the jury returned a guilty verdict as to the lesser-included offense of
CSCM, which constituted the amended count one. The jury deadlocked with regard
to counts two through four, which were subsequently dismissed by the State.
Following his conviction, Defendant filed a motion for a new trial, arguing that the

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verdict was a product of the district court’s issuance of an impermissible shotgun
instruction. 	The court denied the motion and sentenced Defendant. 	This appeal
ensued.
II. 	DISCUSSION
A. 	The District Court Did Not Err in Permitting the State to Amend the
Indictment
{8} 	Defendant contends that his conviction should be vacated because he was
prejudiced when, during trial, the district court allowed the State to amend count one
from CSPM to CSCM. 	Defendant contends that the amendment constituted an
impermissibly prejudicial modification to the indictment, which as altered failed to
provide him with sufficient notice of the pending charges and therefore deprived him
of a fair opportunity to prepare a defense. 	Because Defendant failed to raise this
objection to the district court, we review only for fundamental error. 	Rule
12-216(B)(2) NMRA (providing an appellate court the discretion to review questions
of fundamental error or fundamental rights as an exception to the preservation rule);
State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621 92 P.3d 633; State v. Laney,
2003-NMCA-144, ¶ 47, 134 N.M. 648, 81 P.3d 591. 	For an error to be deemed
fundamental, it must go “to the foundation or basis of a defendant’s rights or must go
to the foundation of the case or take from the defendant a right which was essential
to his defense and which no court could or ought to permit him to waive.” 	State v.

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Gallegos, 2009-NMSC-017, ¶ 27, 146 N.M. 88, 206 P.3d 993 (internal quotation
marks and citation omitted).
{9} 	In a criminal case, the defendant “is entitled to know what he is being charged
with and to be tried solely on those charges. It is improper to instruct the jury as to
a crime not formally charged if that crime is not a lesser included offense of the crime
formally charged.” State v. Johnson, 103 N.M. 364, 371, 707 P.2d 1174, 1181 (Ct.
App. 1985). Rule 5-204(C) NMRA permits amendment of the indictment at trial only
so long as the ensuing charging variation conforms with the evidence of the case and
the particulars of the offense. 	Unless the amendment prejudices the defendant’s
substantial rights, it is not “grounds for . . . acquittal.” 	Rule 5-204(C). 	Prejudice
exists when the defendant is unable to reasonably anticipate from the indictment the
nature of the proof the state will produce at trial. State v. Marquez, 1998-NMCA-010,
¶ 20, 124 N.M. 409, 951 P.2d 1070. 	In seeking acquittal, the defendant must
demonstrate actual prejudice; the mere assertion of prejudice alone is insufficient to
establish error warranting reversal. Id.
{10} 	We conclude that as to count one, CSCM is a lesser-included offense of the
CSPM 	with 	which 	Defendant 	was 	charged. 	An 	offense 	is 	deemed 	to 	be
lesser-included only if the defendant cannot commit the greater offense, as it is
described in the indictment, without also committing the lesser offense. 	State v.

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Meadors, 121 N.M. 38, 45, 908 P.2d 731, 738 (1995). Under Section 30-9-13(A),
CSCM is defined as “the unlawful and intentional touching of or applying force to the
intimate parts of a minor.” The statute includes the genital area within the definition
of intimate parts. 	Id. 	As a matter of physiology, the intentional touching or the
application of force to the intimate parts of a minor is inherent in the criminal sexual
penetration of a minor. Here, Victim testified that the events underlying count one
involved skin-to-skin genital contact, a level of contact subsumed by the nature of the
penetration alleged in count one. 	As such, the charged penetration unavoidably
entailed contact to some extent. See State v. Paiz, 2006-NMCA-144, ¶ 52, 140 N.M.
815, 149 P.3d 579 (analyzing an offense where, physiologically, contact and
penetration overlapped based on the behavior described in the indictment). 	Thus,
CSCM constitutes a lesser-included offense of the CSPM charge, and Defendant was
on notice and could have anticipated that evidence of the CSCM would be presented
at trial.
{11} 	Defendant nonetheless contends that, had he known Victim would vary her
story from that which she had previously told and the district court would amend the
indictment to charge CSCM with respect to count one, he would have modified the
polygraph test to address questions related to the contact component of count one.
Notably, the case centered around Victim’s and Defendant’s conflicting testimony.

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Defendant’s use of a polygrapher therefore bore the potential to bolster his trial
credibility. Moreover, Defendant asserts that in preparing his case, his understanding
was that he was not entitled to the lesser-included offense instruction of CSCM based
on Victim’s allegation of penetration and not contact. As such, Defendant explains
that his polygraph test, which for accuracy purposes consisted of only three questions,
was “tailored specifically to combat the charges in the indictment and [Victim]’s
repeated allegations . . . that supported counts [one through three].”
{12} 	Despite the post-amendment absence of precise harmony between the trial
evidence and the contents of Defendant’s pretrial polygraph examination, we cannot
conclude that the district court fundamentally erred in amending count one from
CSPM to CSCM. 	The mere fact that Defendant’s chosen trial tactics, including
preparation of expert testimony, focused on penetration rather than the contact
inherently involved in achieving penetration does not diminish the act of CSCM
within the CSPM offense with which Defendant was originally charged. By being so
charged, Defendant was on notice of the facts constituting the CSCM, for which he
was ultimately convicted. Meadors, 121 N.M. at 45, 908 P.2d at 738 (holding that if
the defendant could not commit the greater offense as it is described in the indictment
without committing the lesser offense, he should be fully aware of the potential
offenses he may face at trial and should have ample opportunity to prepare a defense).

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{13} 	We 	conclude 	that 	Defendant 	was 	not 	prejudiced 	by 	the 	indictment’s
amendment, 	nor 	did 	the 	amendment 	constitute 	fundamental 	error 	under 	the
circumstances of this case. 	Defendant was fairly on notice of the lesser included
offense, and it was his chosen trial tactic to “gear[] his defense to eliminat[e] the
CSPM charge completely.” 	See State v. Hester, 1999-NMSC-020, ¶ 11, 127 N.M.
218, 979 P.2d 729 (noting that it is not the role of an appellate court to second guess
trial tactics).
B. 	The District Court Did Not Err in Denying Defendant Access to Evidence
Produced by the State’s Polygraph Expert
{14} 	Defendant contends that the State violated Brady and Rule 5-501(A)(4) NMRA
when it refused to disclose information obtained from its expert regarding his
assessment of Defendant’s polygraph examination result. See Brady at 87; see also
Rule 5-501(A)(4) (stating that polygraph results and reports are subject to disclosure
by the state). In New Mexico, an assertion of a Brady violation is an allegation of
prosecutorial misconduct. See State v. Trujillo, 2002-NMSC-005, ¶¶ 48, 50, 131 N.M.
709, 42 P.3d 814. We review the district court’s ruling on prosecutorial misconduct
for abuse of discretion because it “is in the best position to evaluate the significance
of any alleged prosecutorial errors.” Id. ¶ 49 (internal quotation marks and citation
omitted). Under an abuse of discretion standard, the district court’s ruling should be
upheld unless it is arbitrary, capricious, or beyond reason. State v. Balenquah, 2009-

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NMCA-055, ¶ 11, 146 N.M. 267, 208 P.3d 912. 	In order to establish a Brady
violation, the defendant “must show that: (1) the prosecution suppressed evidence;
(2) the evidence was favorable to the accused; and (3) the evidence was material to the
defense.” Case v. Hatch, 2008-NMSC-024, ¶ 44, 144 N.M. 20, 183 P.3d 905 (internal
quotation marks and citation omitted).
{15} 	We conclude that Defendant cannot demonstrate the materiality element of the
Brady analysis. “[E]vidence is material [under Brady] only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Case, 2008-NMSC-024, ¶ 53 (alterations in
original) (internal quotation marks and citation omitted). 	When we evaluate
materiality under Brady, we look to the entire trial record to determine if the
conviction was obtained in violation of due process through a trial “tainted with
fundamental unfairness because certain evidence was not disclosed to the defense.”
State v. Baca, 115 N.M. 536, 541, 854 P.2d. 363, 368 (Ct. App. 1993) (internal
quotation marks and citation omitted). “Evidence that may first appear to be quite
compelling when considered alone can lose its potency when weighed and measured
with all the other evidence, both inculpatory and exculpatory.” Id. (internal quotation
marks and citation omitted).
{16} 	Even if the State’s polygraph expert’s findings were favorable to the defense,

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there is no reasonable probability that a different outcome would have resulted had the
evidence been provided to Defendant. Defendant already possessed and presented
evidence from his own polygraph expert showing that Defendant was truthful in
denying Victim’s allegations with regard to the original counts of CSPM and CSCM
alleged in count three. The persuasiveness of this evidence seemingly contributed to
the jury’s inability to reach a unanimous decision on those charges, resulting in a
mistrial as to them. Additional information or testimony from the State’s polygraph
expert would at best have been cumulative to that presented by Defendant’s own
polygrapher.
{17} 	Furthermore, with regard to the amended count one for which Defendant was
convicted, Defendant concedes that the polygraph examination did not address the
component of contact inherent within the originally alleged penetration. 	Any
additional evidence derived from the State’s expert would likewise fail to support
Defendant’s testimony with regard to that charge, just as did Defendant’s own
polygrapher’s analysis. Thus, there is no reasonable probability that obtaining access
to the State’s polygraph expert would have resulted in a different trial outcome. See
Case, 2008-NMSC-024, ¶ 54 (noting that materiality is only present if the withheld
evidence introduces a reasonable doubt that did not already exist).
{18} 	We conclude that any evidence the State refused to disclose regarding

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Defendant’s polygraph examination would not have created a reasonable probability
of a different outcome in this case even if it were in accord with Defendant’s own
polygraph evidence. See id. ¶¶ 54-55 (refusing to find an abuse of discretion where
there was no reasonable probability that the verdict would differ even if the evidence
had been disclosed to the defense). 	We thus affirm on this ground. 	See State v.
Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.2d 828 (stating that an
appellate court will affirm the district court’s decision if it was right for any reason so
long as it is not unfair to the appellant to do so). Although we agree with the district
court that Defendant’s request in this regard was tardy, we reiterate that the State is
“obligated to make a reasonably diligent effort to comply with a legally proper
discovery request and may not obstruct another party’s access to evidence.” State v.
Chavez, 116 N.M. 807, 813, 867 P.2d 1189, 1195 (Ct. App. 1993); see Rule
5-501(A)(4) (“[T]he state shall disclose or make available to the defendant . . . any
results or reports of . . . polygraph examinations of the defendant[.]”).

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C. 	The District Court Did Not Err in Asking the Jury for a Numerical
Breakdown and in Directing the Jury to Continue Its Deliberations
{19} 	Defendant contends that his conviction should be reversed because the district
court erred in asking for a numerical breakdown of jury votes and by issuing an
impermissible shotgun instruction that “may have had an improper, coercive effect”
on a holdout juror. Since Defendant did not inform the district court of his objection
to the court’s communication with the jury until he filed his motion for a new trial five
days after the claimed erroneous jury instruction, this issue was not properly
preserved, and we therefore review the district court’s actions only for fundamental
error. 	See Rule 12-216(B)(2) (giving appellate courts the discretion to review for
fundamental error as an exception to the rule requiring issue preservation); see also
Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146
N.M. 853, 215 P.3d 791 (holding that a motion for a new trial is typically not
sufficient to preserve an issue that was not otherwise raised during the proceedings).
{20} 	As we discussed above, under the fundamental error standard of review, the
defendant must show the existence of circumstances that “shock the conscience”
owing to the fact that the defendant is indisputably innocent or because a mistake in
the process makes the conviction fundamentally unfair. 	Barber, 2004-NMSC-019,
¶ 17 (internal quotation marks and citation omitted). 	Since Defendant does not
contend that he is indisputably innocent, he must demonstrate that the “cumulative

14
effect of the district court’s actions and the circumstances under which they arose
were so egregious and so unduly coercive on the jury [as to cause the jury] to abandon
its honest convictions.” 	Laney, 2003-NMCA-144, ¶ 49; see State v. Rickerson, 95
N.M. 666, 667-68, 625 P.2d 1183, 1184-85 (1981) (reaffirming the rule that states that
convictions will be reversed only if the cumulative effect of the district court’s actions
had a coercive effect on the jury).
{21} 	Here, in response to a note from the jury foreperson indicating the jury was
“having an impossible time reaching a unanimous decision on any of the charges[,]”
the district court requested a numerical breakdown as to each count, indicating that it
should be done without revealing whether the votes were for conviction or acquittal.
The district court then inquired as to whether the jury would be able to reach a verdict
if the jury was sent back to deliberate further. In response to this question, the
foreperson indicated that the jury “might” be able to reach a unanimous decision with
regard to one of the counts. 	The district court then sent the jury back for further
deliberations. 	Defendant asserts that asking for a numerical breakdown and then
instructing the jurors to continue deliberations without admonishing the jurors not to
surrender their honest convictions amounted to an impermissible shotgun instruction
that could have coerced the holdout juror to abandon his honest convictions.
{22} 	The New Mexico Supreme Court has explained that, “[w]hile inquiry into the

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numerical division of the jury is not to be encouraged, it is not error per se. . . . [S]uch
inquiries are reversible error only when shown to have a coercive effect on the jury.”
Rickerson, 	95 	N.M. 	at 	668, 	625 	P.2d 	at 	1185 	(citation 	omitted); 	Laney,
2003-NMCA-144, ¶ 50. This is because “[t]he inquiry itself is not coercive since the
jury is already well aware of its numerical split.” Rickerson, 95 N.M. at 668, 625 P.2d
at 1185. To determine whether inquiry into numerical division has a coercive effect
on jurors, there are three considerations: “[(1)] whether any additional instruction or
instructions, especially a shotgun instruction, were given; [(2)] whether the [district]
court failed to caution a jury not to surrender honest convictions[;] and [(3)] whether
the [district] court established time limits on further deliberations with the threat of
mistrial.” 	Id. 	at 	667, 	625 	P.2d 	at 	1184. 	Furthermore, 	the 	district 	court’s
communication with the jury is proper as long as the determination of whether or not
it should deliberate further is left within the discretion of the jury. State v. McCarter,
93 N.M. 708, 710, 604 P.2d 1242, 1244 (1980). Shotgun instructions are prohibited
by the New Mexico Supreme Court out of concern for “the potentially coercive effect
it has on holdout jurors to abandon their convictions to arrive at a verdict with the
majority.” Laney, 2003-NMCA-144, ¶ 52.
{23} 	Under the circumstances of this case, we conclude that, cumulatively, the
district court’s conduct and actions did not have a coercive effect on any potential

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holdout jurors to abandon their honest convictions. Although asking for the numerical
breakdown of votes was not ideal, the district court appeared to have made the inquiry
so as to ascertain the “probability of agreement among the jury . . . pursuant to the
court’s duty to assure that a verdict is reached . . . and in determining whether further
deliberations are needed.” 	Rickerson, 95 N.M. at 668, 625 P.2d at 1185 (citation
omitted). And, the district court was careful in admonishing the foreperson to avoid
disclosing whether the votes were for or against conviction and the identities of the
jurors for or against conviction. 	See Laney, 2003-NMCA-144, ¶ 56 (noting that in
avoiding asking the jurors which way their vote fell, the district court avoided
targeting the holdout jurors).
{24} 	Moreover, the district court did not simply order the jury to continue
deliberations; rather, it asked whether further deliberations would help the jury reach
a verdict on any of the counts. 	As the jury foreperson indicated that further
deliberations could result in a verdict as to one of the counts, the district court’s
actions in sending the jury back for further deliberations was not so coercive as to
warrant a finding of fundamental error. Id. ¶¶ 49, 51, 55 (discussing and rejecting the
defendant’s arguments that sending the jury back to deliberate, despite ten jurors’
belief that they were hopelessly deadlocked, amounted to a “shotgun” instruction,
where the district court asked if the jurors could further deliberate and they expressed

17
their willingness to do so). And, although the district court neglected to admonish the
jurors not to abandon their honest convictions before returning to deliberations, the
court issued this instruction at the initial commencement of deliberations.
{25} 	After examining these cumulative circumstances, we cannot conclude that the
district court’s actions amounted to a shotgun instruction or were so egregious and so
unduly coercive on the jury as to cause it to abandon its honest convictions. A finding
of fundamental error is unwarranted.
III. 	CONCLUSION
{26} 	For the reasons explained above, we affirm Defendant’s conviction.
{27} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
CYNTHIA A. FRY, Judge