January 08, 2009 – State of New Mexico v. Tom Dietrich, No. 25,220

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: January 8, 2009
NO. 25,220
STATE OF NEW MEXICO,

Plaintiff-A ppellee,
V.
TOM DIETRICH,

Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
Kenneth G. Brown, District Judge

Gary K. King, Attomey General
Chris Conlee, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Susan Roth, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	Defendant Tom Dietrich was convicted of criminal sexual contact of a minor
(CSCM) and two counts of contributing to the delinquency of a minor (CDM)
following a jury trial. The victims that testified in the jury trial were R.P. and C.L.
Another victim, J.O., did not show up for trial, and ten criminal counts relating to him
were dropped. Defendant was also convicted of two counts of sexual exploitation of
children following a bench trial. On appeal, Defendant contests convictions arising
from both trials, raising nine points of error. 	We affirm, addressing each of
Defendant’s points of error in turn.
FACTS AND PROCEDURAL HISTORY
{2} 	This case began in May 2002, when Defendant reported that his house had been
burglarized. Detective James Harris began an investigation into the reported burglary
and interviewed Defendant’s neighbors. 	Defendant had listed one of the alleged
victims in this case, J.O., as a suspect in the burglary. Detective Harris went to the
scene of the burglary and spoke with neighbors who reportedly had been seen with
J.O. The detective related that Defendant listed two other people as potential suspects
in the burglary and claimed that all three people had access to Defendant’s residence.
Detective Harris discovered that all three suspects had “free rein in and out of the

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residence” and were living with Defendant on and off.
{3} 	Detective Harris first made contact with J.O. on May 30, 2002. At first, J.O.
concealed his identity. He later made an allegation that Defendant tried to rape him.
The investigation of the burglary thereafter developed into an investigation about
sexual misconduct on the part of Defendant. Detective Harris subsequently obtained
search warrants for Defendant’s residence that resulted in evidence inculpatory to
Defendant’s being seized. Defendant was indicted on July 25, 2002, and his jury trial
commenced on November 3, 2003. We discuss pertinent facts as they relate to each
issue below.
DISCUSSION
1. 	Affidavit
{4} 	Defendant argues that the affidavit for the search warrants was insufficient
because 	it 	was 	based 	on 	unreliable 	information, 	violating 	his 	right 	against
unreasonable searches and seizures under the Fourth Amendment and the New
Mexico Constitution. Defendant’s brief refers to “the affidavit” for the first of three
search warrants that Detective Harris obtained. 	At trial, Defendant objected to
evidence obtained under all warrants. 	We note that the factual information in the
affidavit for the first search warrant formed a common basis for all warrants, and we
address the sufficiency of the one affidavit as it affects the three warrants executed on

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Defendant’s premises. Before trial, Defendant sought to have evidence against him
suppressed based on deficiencies in the warrants. 	The district court denied
Defendant’s motion to suppress.
Standard of Review
{5} 	The district court applies “a de novo standard of review to a magistrate’s
determination that an affidavit for a search warrant alleges facts sufficient to constitute
probable cause.” State v. Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587.
This Court conducts the same review as the district court. State v. Gonzales, 2003-
NMCA-008, ¶ 13, 133 N.M. 158, 61 P.3d 867. We limit our review to the contents
of the affidavit and apply a common-sense reading, considering the document as a
whole “to determine whether the issuing judge made an . . . independent determination
of probable cause based on sufficient facts.” Nyce, 2006-NMSC-026, ¶ 8 (alteration
in original) (internal quotation marks and citation omitted); see State v. Steinzig, 1999-
NMCA-107, ¶ 14, 127 N.M. 752, 987 P.2d 409. 	The affidavit presented to the
magistrate must demonstrate “probable cause to believe that a crime is occurring or
that seizable evidence exists at a particular location.” 	Nyce, 2006-NMSC-026, ¶ 9.
The magistrate’s decision, however, must have been objectively reasonable, which is
of special import when considering the search of a home. Id. ¶¶ 11-12.
{6} 	Probable cause “may be [based on] hearsay in whole or in part, provided there

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is a substantial basis for believing the source of the hearsay to be credible and for
believing that there is a factual basis for the information furnished.” State v. Cordova,
109 N.M. 211, 214, 784 P.2d 30, 33 (1989) (emphasis omitted) (internal quotation
marks and citation omitted); Rule 5-211(E) NMRA. 	Double hearsay can support
probable cause. See State v. Perea, 85 N.M. 505, 509, 513 P.2d 1287, 1291 (Ct. App.
1973). Defendant contests the reliability of the information that made up the affidavit
and its substance. We therefore review the information and its legal sufficiency de
novo. Steinzig, 1999-NMCA-107, ¶ 15 (“[W]hether the contents of an affidavit are
legally sufficient is a question of law which we review de novo.”).
The Investigation
{7} 	The following facts were contained in the affidavit submitted to the magistrate
in this case. Detective Harris was a full-time, salaried, and certified law enforcement
officer investigating a burglary that Defendant reported at his house. After Detective
Harris began the investigation of the burglary, he received the name of one suspect,
J.O., and made contact with him. J.O. responded to Detective Harris’s questioning
about his relationship with Defendant by stating: “That mother fucker [sic] tried to
rape me.” J.O. stated that he had spent time living with Defendant from the time he
was thirteen until as recently as May of 2002. 	He also alleged that Defendant
repeatedly made sexual advances toward him, had sodomized him before he reached

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the age of eighteen, and had taken “nude or sexually explicit pictures of him . . .
without his consent,” pictures that could be found on Defendant’s computer. J.O. told
Detective Harris to contact J.B., an inmate at the juvenile detention center in
Albuquerque, ostensibly to corroborate J.O.’s statements.
{8} 	When Detective Harris questioned J.B. at the juvenile detention center, J.B.
declined to make any statements. 	Detective Harris spoke to an employee of this
detention center, unnamed in the affidavit, who told the detective that there had been
other similar allegations made against Defendant. This employee also told Detective
Harris about an incident in which Defendant had delivered a cupcake to J.B. with a
note stating “I am your daddy.”
{9} 	Detective Harris spoke with J.O.’s girlfriend Darlene Gonzales, who told the
detective that after she had an altercation with J.O., Defendant told her that he was
going to drug J.O. “to the point of incapacitation and then have sex with him.”
{10} 	Detective Harris further spoke with a person referred to in the affidavit as the
supervisor in charge of adult probation and parole in Valencia County. Harris was
told that although Defendant had worked there, he had been discharged for
“misconduct” involving clients. The detective also spoke with unnamed persons at
the sheriff’s office in Valencia County. One sheriff’s deputy who had responded to
reports of parties at Defendant’s home found “numerous young juvenile males”

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present. Another unnamed sheriff’s deputy reported to the detective that he had dealt
with Defendant, that Defendant had “three or four young [male] juveniles” with him
on that occasion, and that he believed that there was alcohol present. The deputy also
believed those juveniles to have been clients within the juvenile probation system.
Additionally, when Detective Harris contacted the game and fish department of Sierra
County, he discovered that Defendant had been arrested for contributing to the
delinquency of a minor during an incident near Elephant Butte Lake.
{11} 	J.O. also made allegations that Defendant was reporting burglaries in order to
defraud his insurance company and that Defendant had previously reported that his
home was burglarized. Detective Harris checked three reports filed by Defendant and
noted several inconsistencies among them, including the possible listing of duplicate
items. Detective Harris requested a search warrant based on all of these facts, and the
magistrate judge authorized it.
Hearsay, Named and Unnamed Informers
{12} 	“[I]t is necessary that the affidavit provide a factual basis for the informant’s
personal knowledge,” such as dealings with or observations of the defendant. State
v. Baca, 97 N.M. 379, 381, 640 P.2d 485, 487 (1982). When facts provided by an
informer are independently corroborated, we accord greater weight to the informer’s
credibility. See Steinzig, 1999-NMCA-107, ¶ 21. Identifying an “informant” by name

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is a significant factor in determining the veracity or reliability of the information. See
id. ¶ 19. “[A] named informant has greater incentive to provide truthful information
because he or she is subject to unfavorable consequences for providing false or
inaccurate 	information 	to 	a 	greater 	degree 	than 	an 	unnamed 	or 	anonymous
individual.” Id.
{13} 	Defendant argues that the affidavit in this case was constitutionally inadequate
because it did not “satisfy the basis of knowledge or the credibility prong of the
Aguilar Spinelli test.” See generally Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli
v. United States, 393 U.S. 410 (1969). This Court noted in Steinzig that the strictures
of Aguilar-Spinelli “were aimed primarily at unnamed police informers.” 	Steinzig,
1999-NMCA-107, ¶ 19 (internal quotation marks and citation omitted). 	“If the
affidavit rests on hearsay—an informant’s report—what is necessary under Aguilar
is one of two things: the informant must declare either (1) that he has himself seen or
perceived the fact or facts asserted; or (2) that his information is hearsay, but there is
good reason for believing it[.]” Spinelli, 393 U.S. at 425 (White, J., concurring).
{14} 	J.O. was a citizen-informer named in an affidavit. 	All persons to whom
Detective Harris spoke were identified in the affidavit by name or position. 	The
information obtained by Detective Harris in further investigations and interviews with

1 “Everyone who gives information to the police might be called an ‘informant’ in the
broad sense of that word.” 2 Wayne R. LaFave, Search and Seizure § 3.3(a) (4th ed.
2004).
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several other informants1 following the allegations made by J.O. does not require the
same 	scrutiny 	required 	by 	Aguilar-Spinelli 	because 	that 	information 	merely
corroborated J.O.’s story of Defendant’s predilections and did not form the basis for
the allegations leading to probable cause to issue a warrant. The affidavit in this case
rests 	on 	first-hand 	accounts 	of 	Defendant’s 	crimes 	by 	citizen-informer 	J.O.
Corroboration obtained by Detective Harris in further investigation bolsters the
reliability of J.O.’s allegations.
J.O.’s Motivations
{15} 	Defendant makes much of the fact that Detective Harris’s investigation began
based on a report of a burglary committed in Defendant’s home and quickly
transformed into an investigation of Defendant himself based on allegations made by
J.O. Defendant’s argument insinuates that J.O. made allegations against Defendant
in order to turn the detective’s attention from himself and onto Defendant. 	This
implies that J.O. had a motive to lie and thus maintains that his information cannot be
reliable. While any or all of J.O.’s statements might have been true, the issue is the
extent to which Harris acquired and used sufficiently reliable information to continue
his investigation of all matters on which he acted. The fundamental inquiry in cases

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such as this one is whether the underlying circumstances show that the informant’s
information is reliable.
{16} 	Courts have looked at an informant’s motivation for telling the truth to
investigating officers when the informant is aware that if his information is false, he
could be held accountable for filing a false report. 	See People v. Rodriguez, 420
N.E.2d 946, 950 (N.Y. 1981) (noting that it would behoove a criminal defendant to
tell the truth about criminal activities of another because “[h]e must . . . have known
that sending the police on a fruitless errand would avail him of little[.]”); State v.
Thomas, 673 N.W.2d 897, 908-09 (Neb. 2004) (“[B]y identifying himself or herself
by name, the informant is put in the position to be held accountable for providing a
false report, which makes the informant more reliable.”). The New York Court of
Appeals noted in Rodriguez that the defendant’s situation of being in custody was “not
necessarily an indicator of his unreliability.” 420 N.E.2d at 950. Instead, the Court
noted, the defendant could have made his statement revealing the criminal activities
of another because he knew that the police would act on it. Id. Similarly, we do not
solely consider the circumstances under which a person who himself is the subject of
a criminal investigation makes a statement, but we also weigh the fact that the
informant provided his or her name and that subsequent investigation corroborated the
informant’s statements.

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A different rationale exists for establishing the reliability of named
“citizen-informers” as opposed to the traditional idea of unnamed police
contacts or informers who usually themselves are criminals. Information
supplied to officers by the traditional police informer is not given in the
spirit of a concerned citizen, but often is given in exchange for some
concession, payment, or simply out of revenge against the subject. The
nature of these persons and the information which they supply convey
a certain impression of unreliability, and it is proper to demand that some
evidence of their credibility and reliability be shown. One practical way
of making such a showing is to point to accurate information which they
have supplied in the past.
State v. Paszek, 184 N.W.2d 836, 842 (Wis. 1971).
{17} 	Further, even if it appears that the informant is seeking revenge, it does not
necessarily indicate a motive to falsify allegations. 	See People v. Isenberg, 367
N.E.2d 364, 366 (Ill. App. Ct. 1977) (rejecting the defendant’s contention that the
informant could not be reliable because he was seeking revenge on the defendant
based on the informant’s brother’s hospitalization and holding that the informant
could be considered an ordinary citizen); State v. Olson, 2003 MT 61, ¶ 27, 66 P.3d
297 (noting that even if a citizen-informant has mixed motives, his information can
still be reliable). While the fact that J.O. made allegations against Defendant while
being investigated for a burglary perpetrated on Defendant’s property casts doubt on
J.O.’s truthfulness, we cannot ignore that he remained a named informant and that
Detective Harris further investigated and received corroborating information.
{18} 	Indeed, in State v. Knight, 2000-NMCA-016, ¶ 21, 128 N.M. 591, 995 P.2d

11
1033, this Court considered the cooperation of a criminal defendant in providing
information to law enforcement officers when that information was later used in an
affidavit. We stated that the agreement, “when viewed together with the informant’s
efforts at cooperation, adds [to] rather than detracts from his reliability, thereby
reducing the risk of fabrication.” Id.
{19} 	J.O. was the citizen-informer in this case, providing information to Detective
Harris that was soon confirmed by Darlene Gonzales. Detective Harris also obtained
information from J.O. suggesting that Defendant had other inappropriate contact with
juvenile males. That information was also later confirmed by a staff member at the
juvenile detention center in Albuquerque and by persons at the sheriff’s office in
Valencia County and the game and fish department in Sierra County. From J.O.’s
statements that Defendant took unauthorized nude photographs of him and attempted
to rape him, the magistrate could reasonably infer that Defendant’s house could
contain evidence of those illegal activities. See Gonzales, 2003-NMCA-008, ¶¶ 12,
14 (“[W]e give deference to the magistrate’s reasonable factual inferences underlying
the probable cause determination.”). The magistrate could also reasonably infer that
there was evidence of drugs at Defendant’s house based on the statement of Darlene
Gonzales that Defendant intended to use drugs to facilitate a sexual encounter with
J.O.

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{20} 	In this case, we have numerous cooperating informants; and most do not share
J.O.’s motivations regarding Defendant. Rather, the majority were employees of state
agencies and were forthcoming with information about Defendant despite having
nothing to gain. The information provided by the informants corroborated accounts
by J.O. and Darlene Gonzales that Defendant was engaged in inappropriate conduct
with juvenile males. 	See State v. Turkal, 93 N.M. 248, 250, 599 P.2d 1045, 1047
(1979) (noting that an affidavit contained probable cause when personal information
provided by the informant was corroborated by other sources).
{21} 	Detective Harris went to the juvenile detention center in Albuquerque to speak
with J.B., and although J.B. declined to provide a statement, an employee there related
the incident involving the cupcake. We recognize that the employee at this detention
center was unnamed in the affidavit, but we do not find that particularly troubling.
The person is identified as an employee of a particular detention center who had a
face-to-face 	conversation 	with 	Detective 	Harris 	and 	gave 	detailed, 	specific
information. 	This was no anonymous or confidential informant but rather a
government employee talking about information within his official knowledge. See
Knight, 2000-NMCA-016, ¶ 20 (recognizing that information provided by a citizen-
informant, independently corroborated by police investigation and the naming of the
informant, along with independent corroboration considered with the facts and

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circumstances of the case “all may import sufficient veracity or reliability in a
particular instance”).
{22} 	Detective Harris also received confirmation that Defendant had been employed
by Valencia County in adult probation and parole and had been terminated due to
“misconduct” with clients. 	In addition, Detective Harris heard several allegations
about Defendant’s association with young juvenile males, and that several of those
instances included alcohol. 	The magistrate was entitled to consider reasonable
inferences from Defendant’s activities and the allegations made against him, despite
the potentially suspicious circumstances under which J.O. furnished his information.
Nyce, 2006-NMSC-026, ¶ 9. 	We conclude that there was enough independent
corroborating information, apart from J.O.’s allegations, for the magistrate to
determine that probable cause existed to search Defendant’s house for the items the
detective had been told he would find there. 	Id. ¶ 14 (“[O]rdinary, innocent facts
alleged in an affidavit may be sufficient if, when viewed together with all the facts and
circumstances, they make it reasonably probable that a crime is occurring in the place
to be searched.”).
{23} 	We hold that the affidavit was supported by probable cause and therefore that
the district court did not err in denying the motion to suppress.

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2. 	Filing Returns of Warrants With the Court After Execution
{24} 	Defendant argues that because the search warrants were not returned, filed in
court, or signed by a judge or clerk, the warrants are invalid and the evidence obtained
as a result of the warrants should be suppressed. 	Defendant relies on State v.
Montoya, 86 N.M. 119, 120, 520 P.2d 275, 276 (Ct. App. 1974), for his argument that
the failure to return a search warrant renders the warrant void.
{25} 	First, Montoya is of little precedential value in this case as this Court adopted
its partial dissent in State v. Malloy, 2001-NMCA-067, ¶ 15, 131 N.M. 222, 34 P.3d
611. 	Montoya held that the search warrant “had no direction on its face that it be
returned to the issuing judge and no such return was ever made,” rendering the
warrant invalid. 86 N.M. at 120, 520 P.2d at 276. However, in Malloy, this Court
noted that the purpose of the warrant requirement was “to provide the property owner
assurance and notice during the search” and that two levels of error apply to executing
a search warrant: fundamental error and merely technical error. 2001-NMCA-067,
¶ 11.
{26} 	Second, Defendant did not raise this argument in the district court; he raises it
here for the first time. Because he did not preserve the issue in the district court, we
review it only for fundamental error. State v. Cunningham, 2000-NMSC-009, ¶ 8, 128
N.M. 711, 998 P.2d 176. Fundamental error may be found upon one or more of the

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following bases: 	“there has been a miscarriage of justice,” the question of the
defendant’s guilt “is so doubtful that it would shock the conscience” to allow his
conviction to stand, or “substantial justice has not been done.” State v. Orosco, 113
N.M. 780, 784, 833 P.2d 1146, 1150 (1992). We may also hold that a fundamental
error has been committed where we determine that there was an “error . . . of such
magnitude that it affected the trial outcome.” State v. Jacobs, 2000-NMSC-026, ¶ 58,
129 N.M. 448, 10 P.3d 127. 	As our Supreme Court stated in Cunningham, 2000-
NMSC-009, ¶ 13, fundamental error applies only in those cases where a criminal
defendant’s innocence is in dispute or where allowing his conviction to stand “would
shock the conscience.” Id. (internal quotation marks and citation omitted).
{27} 	Defendant in this case received notice of the search warrants and signed the
inventories. He was aware of what was seized and had a copy of the warrants. He
does not assert a substantive problem with the execution of the warrants or the
evidence seized thereunder. Perea, 85 N.M. at 509, 513 P.2d at 1291 (holding that,
without a showing of prejudice, “an otherwise valid search warrant” will not be set
aside “because of defects in the return of the warrant”); Malloy, 2001-NMCA-067, ¶
11 (“Technical violations require suppression only if the defendant can show
prejudice or if there was a deliberate disregard of the rule by the police.”); see State
v. Wise, 90 N.M. 659, 662, 567 P.2d 970, 973 (Ct. App. 1977); State v. Baca, 87 N.M.

16
12, 15, 528 P.2d 656, 659 (Ct. App. 1974); Perea, 85 N.M. at 509-10, 513 P.2d at
1291-92 (holding that matters involving defects in the return of a warrant are
“ministerial acts which, even if defective or erroneous, do not require a search warrant
to be held invalid unless prejudice is shown”). The actions taken in this case comport
with the purpose of the rule, which was to provide Defendant with notice and
assurance during the search. Malloy, 2001-NMCA-067, ¶ 11.
{28} 	This is a longstanding view. In Rose v. United States, 274 F. 245, 250 (6th Cir.
1921), the Sixth Circuit stated that “[t]he failure of the officer to whom a search
warrant is directed to make a return thereof cannot invalidate the search or seizure
made by authority of such warrant.” The Sixth Circuit articulated that a return could
be made at any time after the warrant was executed, and thus, the defect could be
cured. 	Furthermore, such a defect “does not bear consequences of constitutional
dimension.” 	Malloy, 2001-NMCA-067, ¶ 21. 	Defendant did not object to this
technical defect below nor give the State an opportunity to cure it. 	Defendant’s
contention at this late juncture is without merit.
3. 	Evidence of an Uncharged Act: Rule 11-404(B) NMRA
{29} 	Defendant argues both fundamental error and abuse of discretion on the part of
the district court in allowing hearsay evidence of bad acts into evidence at the jury
trial. 	Defendant argues that the district court erred by allowing as evidence nude

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photographs of R.P. and C.L. and a bag containing sex toys. 	Defendant also
complains of testimony from O.L. concerning experiences with Defendant, including
a feeling by O.L. of having been drugged, and testimony from Detective Harris
concerning conversations that he had in the course of his investigations into sexual
allegations against Defendant.
Detective Harris’s Testimony
{30} 	Defendant concedes that he did not object at trial to the evidence of which he
now complains. Again, he seeks our review under the doctrine of fundamental error
and argues “that the admission of the bad act testimony deprived him of a fair trial.”
As we stated above, a fundamental error can be adjudged where a miscarriage of
justice has occurred, the result shocks the conscience, or substantial justice has been
denied. 	Orosco, 113 N.M. at 784, 833 P.2d at 1150. Also sufficient for us to hold
that a fundamental error has been committed is the determination of an “error . . . of
such magnitude that it affected the trial outcome.” Jacobs, 2000-NMSC-026, ¶ 58.
Absent “error [that] goes to the foundation . . . of the case or take[s] from the
defendant a right which was essential to his defense and which no court could or
ought to permit him to waive,” we will not reverse the district court. Cunningham,
2000-NMSC-009, ¶ 13.
{31} 	Detective Harris’s testimony of which Defendant now complains was as

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follows:
[State] 	From the investigation that was provided to you, what did
you do next?
[Harris] 	[J.O.] also advised that I needed to go and make contact
with an individual at the juvenile detention center at Camino Nuevo. He
identified the subject as an inmate there by the name of [J.B.].
I went over to the Camino Nuevo and made contact with
[J.B.].
. . . .
[Harris] 	And he – I spoke with the adult probation – or I’m sorry –
the superintendent of Camino Nuevo and told him that I needed to speak
with this individual, [J.B.], that it was in reference to some allegations
that were made against [Defendant]. That individual stated that he had
also received some allegations and that at one point there was a note
left –
At this point, the prosecutor interrupted the answer and did not inquire further into
what the detective heard.
{32} 	On appeal, Defendant argues that this testimony about allegations against
Defendant that surfaced at the juvenile detention center at Camino Nuevo while
Detective Harris was investigating there was so “prejudicial” that it rose to the level
of fundamental error. We disagree. Defendant fails to point out how this testimony
resulted in any fundamental error other than to say “[i]t is hard to imagine evidence
that is more prejudicial.” This statement, without more, is merely conclusory.
{33} 	For instance, Defendant relies upon the holdings of both State v. Barber, 2004-

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NMSC-019, ¶¶ 16-17, 135 N.M. 621, 92 P.3d 633, and Cunningham, 2000-NMSC-
009, ¶ 13, for the proposition that fundamental error occurs whenever a defendant is
denied a fair trial, irrespective of the defendant’s apparent guilt or innocence. These
citations, as statements of law, are flawless, but such statements of law are as far as
Defendant goes. 	He makes no argument as to how, exactly, the inclusion of this
evidence resulted in fundamental unfairness, choosing instead to assert that the
evidence was “prejudicial.” Without a proper application of the law to the facts, we
must reject Defendant’s argument.
O.L.’s Testimony
{34} 	Defendant also argues that fundamental error occurred when O.L. was allowed
to testify about his experiences with Defendant, even though O.L. was not an alleged
victim at Defendant’s trial. 	O.L. testified about meeting Defendant at the juvenile
detention center, going to “hang out” at Defendant’s house, and going with Defendant
to Elephant Butte and getting arrested there while they were drinking. 	The State
contends that O.L.’s testimony was relevant to establish Defendant’s relationship with
C.L., O.L.’s brother, and the relationship among all three people.
{35} 	Defendant’s objection to the inclusion of O.L.’s testimony intertwines with his
objection to the testimony of Detective Harris. 	Just as he challenges Detective
Harris’s testimony, he likewise asserts the “prejudicial” effect of O.L.’s testimony.

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As we stated, this Court will reverse a conviction for fundamental error only where
the defendant demonstrates a miscarriage of justice, a conviction that shocks the
conscience, a denial of substantial justice, or an error of such magnitude that it affects
the outcome of the trial. Orosco, 113 N.M. at 784, 833 P.2d at 1150; Jacobs, 2000-
NMSC-026, ¶ 58. Defendant makes no such showing, choosing instead to rely on the
conclusory statement that the inclusion of this evidence was “prejudicial.”
Physical Evidence: Photographs and Sex Toys
{36} 	Before trial, Defendant moved to sever the sexual exploitation charges from the
charges of CSCM and CDM. Included in the motion were references to photographs
of the two victims who testified at trial, R.P. and C.L. In its response, the State argued
that the photographs were relevant and necessary to prove the charges against
Defendant and showed intent, motive, plan, preparation, and/or absence of mistake.
The district court severed the charges but ruled that the photographs of R.P. and C.L.
could be admitted during the jury trial, citing “compelling legal and factual reasons”
to allow the evidence.
{37} 	At trial, Defendant made an objection to the admission into evidence of items
seized under the warrants, noting that it was a continuing objection from the issues
raised during the pre-trial suppression hearing. Defendant also initially objected to
the admission into evidence of a bag containing sex toys that was taken from

21
Defendant’s home but later stipulated to the fact of its existence. However, Defendant
argued that the jury should not be able to see the contents of the bag. 	The court
admitted this evidence but postponed showing it to the jury. Defendant does not argue
that the jury ever saw the contents of the bag or that the bag’s contents were ever
described to the jury.
{38} 	Defendant merges his argument regarding both the photographs and the bag of
sex toys. Defendant argues that those pieces of evidence were prohibited propensity
and character evidence and that the district court failed to perform a balancing test to
determine whether the probative value of the evidence outweighed its prejudicial
effect as required by Rule 11-403 NMRA. Defendant argues that the State was using
the evidence “to show that [Defendant] acted in conformity with the sort of person
who would commit CSCM and CDM.” The State counters that the photographs were
relevant and admissible because they showed Defendant’s relationship with the
victims and went towards proving the element of “unlawfulness” in the CSCM charge.
{39} 	We review the admission of physical evidence of bad acts under an abuse of
discretion standard. See State v. Allen, 91 N.M. 759, 761, 581 P.2d 22, 24 (Ct. App.
1978) (noting that admission of such evidence was within the discretion of the trial
court); State v. Romero, 2006-NMCA-045, ¶ 73, 139 N.M. 386, 133 P.3d 842, aff’d,
2007-NMSC-013, 141 N.M. 403, 156 P.3d 694.

22
{40} 	“Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” 	Rule 11-
404(B). We consider two paramount factors in deciding whether the district court
abused its discretion in admitting the evidence: “whether the State made a sufficient
showing that the evidence would serve a legitimate purpose other than to show
character . . . and whether the probative value was substantially outweighed by the
danger of unfair prejudice or other factors.” 	State v. Jordan, 116 N.M. 76, 80, 860
P.2d 206, 210 (Ct. App. 1993).
{41} 	“A requisite element of the charged crime of CSCM is that the defendant’s
touch was ‘unlawful.’” 	State v. Kerby, 2007-NMSC-014, ¶ 26, 141 N.M. 413, 156
P.3d 704. “Unlawfulness may be proven by showing that defendant’s behavior was
done . . . to arouse or gratify sexual desire.” 	Id. (alteration in original) (internal
quotation marks and citation omitted). In State v. Jones, 120 N.M. 185, 188, 899 P.2d
1139, 1142 (Ct. App. 1995), this Court held that “evidence of other bad acts might be
admissible if a specific type of intent were at issue and the other bad acts bore on that
intent in a way that did not merely show propensity.” We went on to demonstrate an
example of when other bad act evidence might be admissible: “if the defendant were
accused of assault with intent to commit [criminal sexual penetration] and evidence
of other sexual assaults were offered to establish the defendant’s intent when grabbing

23
the victim.” 	Id. 	On the other hand, “[a] state of mind that continues over time and
governs otherwise unconnected acts is generally called a person’s character trait or
propensity.” State v. Aguayo, 114 N.M. 124, 129, 835 P.2d 840, 845 (Ct. App. 1992)
(internal quotation marks and citation omitted). 	“Admission of character traits to
prove that the defendant acted in accordance with those traits is, of course, exactly
what Rule 404(B) is designed to prohibit.” Id.
{42} 	On appeal, Defendant argues that “[t]he prejudice of having the jury see (and
hear about) nude photographs of [R.P. and C.L.], when the photos were not an element
of the CSCM and CDM charges, is unquestionable.” However, “[e]vidence of prior
acts with the complaining witness can directly bolster the complaining witness’s
testimony by providing significant corroboration.” State v. Landers, 115 N.M. 514,
519, 853 P.2d 1270, 1275 (Ct. App. 1992). 	When used for such a purpose, this
evidence is admissible and not considered propensity evidence. Id. The State argued
that the photographs would corroborate the victims’ testimony and demonstrate the
overall nature of the victims’ relationships with Defendant.
{43} 	At trial, R.P. identified nude photographs of himself that were found on
Defendant’s computer. 	R.P.’s testimony was limited to identifying himself in the
photographs and characterizing the photographs as nude depictions of himself and his
specific body parts. 	R.P. then testified that it was Defendant who took the

24
photographs. 	R.P. also testified that when Defendant was taking the photographs,
some sexual activity took place between the two of them, and that he was either
sixteen or seventeen years old at the time. 	Defendant made no objection to the
testimony. C.L. also testified that Defendant took nude photographs of him, while he
was sleeping and without his permission. 	C.L. identified these photographs of
himself. Defendant made no objection to the testimony.
{44} 	Under the facts of this case and upon a careful review of the record, we hold
that the district court did not abuse its discretion in allowing into evidence
photographs of the victims and the victims’ testimony. The photographs corroborated
the victims’ testimony and provided context for the events that occurred. 	State v.
Mora, 1997-NMSC-060, ¶ 54, 124 N.M. 346, 950 P.2d 789 (“Photographs are
relevant and admissible for the purpose of clarifying and illustrating testimony.”
(internal quotation marks and citation omitted)); State v. Crump, 82 N.M. 487, 494-95,
484 P.2d 329, 336-37 (1971) (holding that other sexual acts committed by the
defendant were not independent of the charged crime, provided an explanation for the
crime, and were incidental to it). 	The photographs were relevant to the victims’
credibility, which Defendant attempted to attack during trial, and were not offered to
merely show Defendant’s character or propensity to commit the crimes charged.
Defendant has made no showing of an abuse of discretion or of prejudice. We hold

25
that the photographs were properly admitted.
{45} 	Defendant stipulated to admitting the bag containing sex toys into evidence.
In fact, when Detective Harris began describing the contents of the bag, the prosecutor
interrupted and asked him not to “delineate” the specific items. Defendant provides
no basis for us to determine that the district court erred, and we need not consider
issues not briefed. State v. Harbison, 2007-NMSC-016, ¶ 26, 141 N.M. 392, 156 P.3d
30.
4. 	Crawford and the Sixth Amendment
{46} 	Defendant argues that his Sixth Amendment rights were violated because he
was unable to cross-examine J.O. 	J.O. did not appear at Defendant’s trial.
Specifically, Defendant now objects to statements that came in through Detective
Harris. 	Detective Harris testified about what J.O. had alleged, including the rape
allegations and that J.O. had lived with Defendant on and off since he was thirteen.
Defendant did not object to this hearsay testimony at trial.
{47} 	Defendant argues that the statements amounted to fundamental error at trial
because Defendant was never able to cross-examine J.O. Because Defendant never
objected to the admission of the statements below, we review the statements and
determine whether their admission created fundamental error. 	Cunningham, 2000-
NMSC-009, ¶ 8; see State v. Martinez, 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160

26
P.3d 894 (reviewing a defendant’s Confrontation Clause claim for fundamental error
even though the issue was not preserved). “In a fundamental error analysis, where the
defendant has waived all error by failing to object, the Court’s goal is to search for
injustice.” 	State v. Benally, 2001-NMSC-033, ¶ 33, 131 N.M. 258, 34 P.3d 1134.
(Baca, J., dissenting).
{48} 	Detective Harris testified at trial that when he contacted him, J.O. made serious
allegations against Defendant.
[Harris] 	. . . . I asked [J.O.] if – I told him I needed to talk to [him]
in reference to a burglary [and] that I was a detective with the Los Lunas
Police Department. 	And that I was investigating a burglary that had
occurred at the house of [Defendant] and I needed to speak to [J.O.] in
reference to that. And I really needed to talk to him because I felt that
there might have been more to the – to the incident that was reported.
[State] 	And what did this individual inform you of next?
[Harris] 	At that time he opened the door. He asked he [sic] who I –
or he asked me what I meant by that statement. I asked him if he was
[J.O.], he state [sic] that had [sic] he was. I asked him to tell me what he
could tell me about the situation at [Defendant’s] home and he made a
statement to the effect that [Defendant] tried to rape him.
. . . .
[State] 	What did he mention to you about [Defendant]?
[Harris] 	He stated that – he stated that there was – you know, that he
had been with [Defendant] on and off since he was 13 years old, that he
had met [Defendant] at the juvenile detention center when [Defendant]
was employed at the juvenile detention center. He stated that he – that
on at least one occasion he had been drugged, that [Defendant] was

27
constantly trying to get him to do sexual favors for him.
At this point, the district court asked the State and defense counsel to approach the
bench. The district court judge remarked that he was “hearing a lot of hearsay” and
expressed concern that defense counsel was not objecting. 	Nevertheless, the
testimony continued.
{49} 	Later in his testimony, Detective Harris revisited his conversation with J.O.
[Harris] 	During my initial conversation with [J.O.], he also advised
that [Defendant] had taken nude and sexually explicit photographs of
him as well as other people and that he had placed them on his computer
using a digital camera.
. . . .
[Harris] 	. . . . I also spoke – I spoke with other people during my
investigation that lead [sic] me to believe that there may have been some
form of sexual misconduct going on.
{50} 	The Confrontation Clause of the Sixth Amendment to the United States
Constitution states, “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him[.]” The United States Supreme Court
further clarified the Confrontation Clause in Crawford v. Washington, 541 U.S. 36,
68 (2004), providing that in order for a testimonial hearsay statement to be admitted
at trial, the witness must be unavailable at trial and the defendant must have had a
prior opportunity to cross-examine the witness. While the Court did not provide a
definition for “testimonial,” it spelled out that the term “applies at a minimum to prior

28
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Id. 	The Court noted that “testimony” could be defined as a
“solemn declaration or affirmation made for the purpose of establishing or proving
some fact” and that an “accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.” 	Id. at 51 (internal quotation marks and citation omitted).
Crawford does not apply, however, where the testimonial statement is not offered to
prove the truth of the matter asserted. Id. at 59 n.9.
{51} 	We note that Defendant failed to preserve this confrontation issue in the district
court. We therefore analyze it only for fundamental error. Compare Romero, 2006-
NMCA-045, ¶¶ 15, 70 (indicating that preserved Crawford issues are analyzed under
a harmless error standard), with Martinez, 2007-NMSC-025, ¶ 25 (indicating that
unpreserved Crawford issues are reviewed for fundamental error only).
{52} 	We repeat the standard for fundamental error. 	A fundamental error occurs
where there has been a miscarriage of justice, the conviction shocks the conscience,
or substantial justice has been denied. Orosco, 113 N.M. at 784, 833 P.2d at 1150.
We may also conclude that a fundamental error has been committed upon a
determination that a trial court’s “error was of such magnitude that it affected the trial
outcome.” 	Jacobs, 2000-NMSC-026, ¶ 58. We hold that Defendant’s convictions

29
were just and that the district court’s admission of the statements in this case was
neither an error nor an influence on the trial outcome.
{53} 	The admission of Detective Harris’s statement regarding J.O. does not violate
Crawford. 	In order for a statement to be testimonial under Crawford, it must be
offered for the truth of the matter asserted—or in other words, it must be hearsay.
Wilson v. Sirmons, 536 F.3d 1064, 1111 (10th Cir. 2008). In Wilson, a police officer
(Officer Huff) testified and was questioned about his motivation for effecting the
traffic stop of the defendant Wilson. 	Id. 	Officer Huff testified that another officer
(Officer Meek) informed him that Wilson was driving an automobile that matched the
description of a vehicle previously used in a homicide. 	Id. 	On the basis of this
information, Officer Huff stopped Wilson, who was later arrested and charged with
homicide. 	Id. 	Wilson objected to Officer Huff’s testimony on the basis that it
violated his rights under Crawford. 	Id. 	But the Tenth Circuit rejected Wilson’s
argument, holding that Officer Huff’s testimony was offered only to demonstrate his
motivation for stopping Wilson, not to prove that the car Wilson drove was used in
a homicide. Id. The facts before us require a similar analysis. Like the Tenth Circuit
in Wilson, we have little difficulty concluding that Detective Harris’s statements were
not offered to prove the truth of the matter asserted. 	Detective Harris appeared at
J.O.’s home in order to investigate a burglary reported by Defendant. Upon being

30
questioned, J.O. stated, among other things, that Defendant tried to rape him and took
nude photographs of him. 	Defendant did not object to this testimony. 	And when
asked about the nature of this line of questioning, the State said it was attempting to
establish the reason why its investigation proceeded from burglary to sexual
misconduct. Although the court surmised that this testimony was “hearsay,” it never
made a ruling on the issue.
{54} 	Despite this speculation by the district court, we harbor little doubt that the
evidence was not hearsay; simply, it was not offered to prove the truth of the matter
asserted. The statements of J.O. were not offered to prove that he was the victim of
an attempted rape or that Defendant photographed him. Instead, they were offered to
demonstrate how the investigation proceeded from one of burglary to one of sexual
misconduct. Defendant’s dismissed charges only lend further support to our holding
that Defendant’s convictions were safely obtained. Defendant was charged with and
convicted of CSCM and CDM based on the testimony of the two victims of those
crimes, R.P. and C.L. Statements attributed to J.O. pertained to other charges that
were dismissed after the court determined that J.O. would not testify. Thus, J.O.’s
statements were not used to prove the elements of the offenses for which Defendant
was convicted.
{55} 	The admission of Detective Harris’s statements regarding J.O. does not

31
constitute fundamental error. Such a result should be clear from our analysis above,
which concludes that the admission of Detective Harris’s statements does not
constitute any error. 	Further, given the testimony of R.P. and C.L., Defendant’s
conviction for crimes of which they were the victims does not shock our conscience.
See Orosco, 113 N.M. at 784, 833 P.2d at 1150. 	Indeed, because the convictions
comport with well-settled constitutional protections, there is neither miscarriage of
justice nor denial of substantial justice. Id. Little probability exists that Defendant’s
case would have turned out differently had the testimony of Detective Harris been
excluded. Jacobs, 2000-NMSC-026, ¶ 58. We therefore affirm.
5. 	Sufficiency of the Evidence for CSCM and CDM involving R.P.
{56} 	Defendant argues that there was insufficient evidence to convict him of CSCM
and CDM involving R.P. 	Specifically, Defendant contends that R.P.’s testimony
“never pinned down the dates that [Defendant] allegedly touched his genital area,”
thereby making the evidence of CSCM “inherently improbable.” 	Defendant also
argues that R.P.’s testimony disavows that Defendant engaged in CDM because R.P.
never testified that Defendant encouraged him to do drugs or drink.
{57} 	We take a two-step approach in determining the sufficiency of the evidence.
State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). 	We begin by
reviewing the evidence in the light most favorable to the jury verdict and then make

32
a “legal determination of whether the evidence viewed in this manner could justify a
finding by any rational trier of fact that each element of the crime charged has been
established beyond a reasonable doubt.” 	Id. (internal quotation marks and citation
omitted). The evidence may be of either a direct or circumstantial nature. 	State v.
Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App. 1993). “This Court does
not consider the merit of evidence that may have supported a verdict to the contrary.”
State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393 (internal
quotation marks and citation omitted).
{58} 	To convict Defendant of the charge of CSCM in which R.P. was the victim, the
State had to prove beyond a reasonable doubt that
1. 	[Defendant] touched or applied force to the penis of [R.P.];
2. 	[Defendant] was a person who by reason of his relationship to
[R.P.] was able to exercise undue influence over [R.P.] and used
this authority to coerce him to submit to sexual contact;
3. 	[R.P.] was at least 13 but less than 18 years old;
4. 	This happened in New Mexico on or between the 1st day of
January 2000 and the 31st day of April 2000.
To convict Defendant of the charge of CDM in which R.P. was the victim, the State
had to prove beyond a reasonable doubt that
1. 	[Defendant] caused [R.P.] to engage in sexual contact and/or
underage drinking/drug use;
2. 	This caused [R.P.] to conduct himself in a manner injurious to the
morals, health or welfare of [R.P.];
3. 	[R.P.] was under the age of 18;
4. 	This happened in New Mexico on or between the 1st day of

33
January 2000 and the 31st day of April 2000.
{59} 	R.P. was born on May 8, 1982. 	During R.P.’s direct examination, the
prosecutor elicited testimony about salient events in R.P.’s life in order to determine
dates for events that occurred with Defendant. 	The prosecutor relied on where
Defendant was living during certain time periods and when R.P. was released from the
Bernalillo County youth detention facility. 	The testimony reflected that R.P. was
released to Defendant on February 10, 2000. R.P. testified that during his stay with
Defendant, he consumed alcohol, smoked marijuana, and used mushrooms. 	He
further testified that Defendant purchased the alcohol for him, and he remembered one
occasion when Defendant purchased marijuana. R.P. testified that while living with
Defendant he awoke on several occasions to find himself unclothed and Defendant
touching his penis. This occurred between February of 2000 and March of 2000.
{60} 	R.P. testified that he was again released to Defendant on March 29, 2000.
R.P.’s testimony indicated that he began drinking and smoking marijuana again. R.P.
testified that Defendant purchased alcohol and marijuana for R.P.’s use and that
Defendant made sexual advances towards him, similar to the advances that Defendant
had previously made. These events were established as having occurred before April
10, 2000, when R.P. was again placed in a detention facility.
{61} 	It is enough that the State provided the jury with approximate dates in which

34
the events described could have occurred. See State v. Altgilbers, 109 N.M. 453, 471,
786 P.2d 680, 698 (Ct. App. 1989) (“No juror need have a precise day in his or her
own mind in order to vote for conviction.”). 	The dates that were provided as an
approximate time line for the dates of the incidents with Defendant are well within the
charged time frame. As to the CDM charge, R.P.’s testimony that Defendant provided
and purchased drugs and alcohol for him satisfies the element of “caus[ing R.P.] to
engage in . . . underage drinking/drug use” whether or not Defendant “encouraged”
such use. R.P. testified that he was a heroin user during the time that he spent with
Defendant. Providing R.P. with more drugs and alcohol is sufficient evidence that
Defendant’s acts “caused [R.P.] to conduct himself in a manner injurious to [his]
morals, health or welfare.”
6. 	Impermissible Vouching
{62} 	Before trial, defense counsel argued that Sarah Kerrigan, a Ph.D. toxicology
specialist, should not have been allowed to testify. Defense counsel did not object to
Kerrigan’s qualifications as an expert witness but maintained a continued objection
to her testimony in general. On appeal, Defendant cites only to State v. Alberico, 116
N.M. 156, 169, 861 P.2d 192, 205 (1993), to support his argument but uses this
authority solely to point out that the admission of expert testimony lies within the
district court’s discretion. Defendant does not provide any particular objection or any

35
case law for his contentions that Kerrigan’s testimony was “pure vouching” and
“prejudicial.” Thus, we decline to address Defendant’s argument. State v. Rivera, 115
N.M. 424, 427, 853 P.2d 126, 129 (Ct. App. 1993) (noting that because the defendant
did not cite any authority supporting his contention, this Court need not consider it).
7. 	Addition of “New” Charge
{63} 	Defendant argues that he was never charged with the crime of sexual
exploitation by possession of child pornography, yet he was still convicted of two
counts of that crime. Defendant was indicted on five counts of possession of child
pornography with intent to distribute. 	Before the trial, the State unsuccessfully
attempted to amend this grand jury indictment to a charge of mere possession of child
pornography, a crime that made such possession a fourth degree felony if the child
was under eighteen years of age.
{64} 	At the bench trial, the district court dismissed three of the sexual exploitation
charges, noting that there was no evidence of distribution (as was required by the
statute in effect when those crimes allegedly occurred). However, the district court
found Defendant guilty of two counts of sexual exploitation by possession, noting that
the time frames for the corresponding criminal acts fell under the newer 2001 law,
which only required possession of pornography for conviction. Defendant argues that
the district court’s actions were improper and violated his due process rights.

36
Rule 5-204(A) NMRA states in part:
The court may at any time prior to a verdict cause the complaint,
indictment or information to be amended in respect to any . . . defect,
error, omission or repugnancy if no additional or different offense is
charged and if substantial rights of the defendant are not prejudiced.
Thus, we are faced with a two-part test of the propriety of the district court’s actions
that determines: (1) whether an additional or different offense was charged and (2)
if any substantial rights of Defendant were prejudiced. See id.
{65} 	The original indictment charged Defendant with five counts of sexual
exploitation of children in violation of NMSA 1978, Section 30-6A-3(A) (1993). The
indictment alleged in the first count, and similarly in the others, that Defendant
did intentionally distribute or possess with intent to distribute a visual or
print medium depicting a prohibited sexual act or simulation of such an
act where one of the participants in that act was a child under the age of
eighteen years knowing or having reason to know that the medium
depicted a prohibited sexual act or simulation of such an act[.]
The current version of Section 30-6A-3(A) states that
[i]t is unlawful for a person to intentionally possess any obscene visual
or print medium depicting any prohibited sexual act or simulation of
such act if that person knows or has reason to know that the obscene
medium depicts any prohibited sexual act or simulation of such act and
if that person knows or has reason to know that one or more of the
participants in that act is a child under eighteen years of age.
§ 30-6A-3(A) (2001) (amended 2007). Pursuant to the 2001 amendment, Subsection
(A) required the State to prove only that Defendant possessed the photographs. Under

37
the previous version reflected in the original indictment, the State was not only
required to prove that Defendant possessed the photographs but also that he
intentionally distributed or intended to distribute the photographs. Essentially, the
State had one less element to prove as a result of the change in the statute.
{66} 	Defendant argues that in effect an entirely new charge was added to his
indictment, in violation of Rule 5-204(A). 	Defendant cites State v. Roman, 1998-
NMCA-132, ¶ 9, 125 N.M. 688, 964 P.2d 852, to support his argument. Defendant
contends that he was prejudiced by the district court’s actions, because his intention
was to “attack the possession with intent to distribute and distribution element charged
in the grand jury indictment.”
{67} 	“[I]t is permissible to amend an information to conform to evidence introduced
in support of the charge made in the information.” 	Id. ¶ 11. 	Amendment of an
information “to include lesser included offenses” is also permissible. Id. We consider
the district court’s actions as an amendment of the information because the otherwise
adequate information in the indictment was supplemented by the new version of the
statute. Id. ¶ 12. The amendment did not add any additional elements to the charge
and did not bring in matters that were not directly at issue on any of the charges. Id.
¶ 13; see State v. Armijo, 90 N.M. 614, 618, 566 P.2d 1152, 1156 (Ct. App. 1977)
(excluding matters that “went beyond the issues in the case”). It did not substantially

38
alter the nature of the case before the court. See In re Garrison P., 2002-NMCA-094,
¶ 9, 132 N.M. 626, 52 P.3d 998.
{68} 	“An ‘included offense’ is one which has some, but not all, of the elements of
the greater offense and does not have any elements not included in the greater offense,
so that it is impossible to commit the greater offense without necessarily also
committing the included offense.” State v. Hamilton, 107 N.M. 186, 188, 754 P.2d
857, 859 (Ct. App. 1988). It is clear that the new statute included all of the elements
of the old statute except the element of intent to distribute. Therefore, we hold that
the amendment did not charge an “additional or different offense.” 	See Rule 5-
204(A).
{69} 	We now turn to whether the amendment of the indictment information
prejudiced Defendant’s substantial rights. Defendant argues that he was on notice that
he would be defending against the old statute, which included the element of intent
to distribute, and that his defense was to attack that element. “A variance between the
crime charged and the offense for which defendant was convicted will not be deemed
to be fatal unless the defendant could not reasonably have anticipated from the
indictment or information, the nature of the charges and proof against him.”
Hamilton, 107 N.M. at 189, 754 P.2d at 860. It is clear that Defendant knew that he
was indicted for possessing photographs of nude boys on his computer.

39
{70} 	The amended indictment information from August 21, 2002, included five
counts charging “[s]exual [e]xploitation of [c]hildren,” abbreviated as “[p]ossession”
in the indictment. Each count described the crime of sexual exploitation of a child as
intentional distribution or possession with the intent to distribute “visual or print
medi[a] depicting a prohibited sexual act or simulation of such an act where one of the
participants in that act was a child under the age of eighteen [or sixteen] years.” Each
charge also referred to the statute as “[Section] 30-6A-3(A).” The State divided the
charges into five groups based on the year in which the photographs were allegedly
downloaded onto Defendant’s computer. 	Each charge represented that Defendant
engaged in the prohibited act over the course of a year, for the calendar years of 1997,
1999, 2000, and 2001, through June 6, 2002.
{71} 	During the May 6, 2004, bench trial on the five counts of sexual exploitation
of a child, the district court dismissed the charges relating to 1997, 1999, and 2000.
The charges that remained for 2001 and 2002 fell under the 2001 amendment of the
sexual exploitation statute that made mere possession a crime. Defendant knew what
the State was prepared to offer as evidence against him, and because the amended
information filed in 2002 cited the correct statute, we fail to see how Defendant could
not have reasonably known what he would be defending against.
{72} 	On March 30, 2004, more than five weeks before the bench trial at which

40
Defendant was convicted of two counts of sexual exploitation of a child, the State
filed a motion to amend the grand jury indictment to reflect the changes in the statute
that became effective on July 1, 2001, giving Defendant further notice. The amended
indictment confirmed the statutes and the previously admitted evidence on which the
State would base its case. We therefore hold that Defendant was not charged with an
“additional or different” offense and that his “substantial rights” were not prejudiced.
See Rule 5-204(A).
8. 	Amended Criminal Information
{73} 	Defendant argues that Counts 16, 19, and 22 in the first grand jury indictment,
three CDM counts relating to C.L., were withdrawn by the prosecutor and later
“improperly resurrected.” Defendant argues that the counts were withdrawn because
the grand jury did not find probable cause to support them but that those same counts
reappeared in the amended grand jury indictment as Counts 14, 15 and 16. At the
hearing on a motion to dismiss those counts, the prosecutor told the district court that
he “misspoke as to [the grand jury] not finding probable cause” and that the grand jury
properly indicted on all of the CDM counts. The prosecutor asked the district court
to look at the transcript from the grand jury as a whole in determining whether to drop
the charges. Later in the hearing the prosecutor dropped two of the three counts of
CDM relating to C.L., noting that those counts occurred in a different county, but kept

41
one count, noting that there was a dispute as to which county it occurred in.
Defendant was convicted of that charge of CDM.
{74} 	Defendant’s argument focuses on Stirone v. United States, 361 U.S. 212, 216-
17 (1960), and on State v. Trivitt, 89 N.M. 162, 169, 548 P.2d 442, 449 (1976), for the
proposition that a defendant cannot be tried on charges that were not included in the
indictment against him. 	Neither case Defendant relies on addresses the situation
before us: whether the grand jury can return an indictment for counts that have been
withdrawn by the prosecution. It is clear that the original indictment and the amended
indictment included the charge of CDM related to C.L. upon which Defendant was
convicted.
{75} 	The State concedes that during the grand jury proceedings, the prosecutor
initially withdrew the three CDM charges. 	The State argues that despite this
withdrawal, it “later gave the grand jurors the option to consider any of those
charges,” which resulted in their finding probable cause for all three counts.
Therefore, the State contends, the grand jury returned indictments for those charges.
At the hearing, the State argued that its compliance with State v. Ulibarri, 1999-
NMCA-142, 128 N.M. 546, 994 P.2d 1164, rendered the indictments valid.
{76} 	In Ulibarri, this Court held that one of the most basic functions of the grand
jury was “to investigate the matter for which it is called and to determine from the

42
evidence if there is probable cause to believe an offense has been committed.” Id. ¶
10 (alteration omitted) (internal quotations marks and citation omitted). “While the
grand jury should not be the tool of the prosecuting authority to manipulate at will,
neither should it be subject to undue interference with its deliberative and decisional
process.” 	Id. (internal quotation marks and citation omitted). 	The grand jury is a
separate and distinct body from the executive and judicial departments of government.
Id. ¶ 11. It is empowered to “order that evidence be produced over and above that
initially presented by the State.” Id.
{77} 	Defendant’s argument challenges the grand jury process and the manner in
which Defendant’s indictments arose. 	See id. ¶ 13. 	Unlike Ulibarri, we are not
convinced in this case that the prosecutor’s action of keeping the CDM charges in the
amended indictment (despite having indicated that he would be withdrawing them)
went to the heart of the grand jury’s function and responsibility. 	Cf. id. ¶ 15. The
grand jury was appropriately guided, despite returning an indictment that was contrary
to the State’s belief in the necessity to withdraw the CDM counts. Defendant received
his notice that he was subject to charges of CDM in both the first indictment and the
amended indictment, and we disagree with Defendant’s claim that he was prejudiced
by the grand jury’s return on the charges. See, e.g., id. ¶ 18.
{78} 	We are guided by NMSA 1978, Section 31-6-10 (1979), which states in

43
pertinent part:
Before the grand jury may vote an indictment charging an offense
against the laws of the state, it must be satisfied from the lawful evidence
before it that an offense against the laws has been committed and that
there is probable cause to accuse by indictment the person named, of the
commission of the offense so that he may be brought to trial therefor.
It is clear that the purpose of the grand jury proceedings is to determine whether there
is probable cause to indict the person named. The prosecutor’s role in the grand jury
proceedings is to assist the process. See UJI 14-8001 NMRA. “The district attorney
will not, however, guide or otherwise influence the grand jury.” 	Id., Committee
commentary (Assistance for grand jury.). 	It is ultimately up to the grand jury to
decide whether probable cause existed for the various counts. Because the grand jury
determined that probable cause existed for the CDM counts relating to C.L., it was
within the discretion of the prosecutor to keep those counts alive for the amended
criminal indictment. 	The counts were properly included in the indictment against
Defendant, and therefore we affirm his conviction for CDM.

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9. 	Ineffective Assistance of Counsel
{79} 	Defendant contends that he received ineffective assistance of counsel, citing
multiple incidents from the trial. In determining whether a defendant has received
ineffective assistance of counsel, we apply the test of whether “defense counsel
exercised the skill of a reasonably competent attorney.” State v. Talley, 103 N.M. 33,
36, 702 P.2d 353, 356 (Ct. App. 1985). Additionally, the defendant must show that
incompetent representation prejudiced his case. State v. Crain, 1997-NMCA-101, ¶
24, 124 N.M. 84, 946 P.2d 1095. 	Without a showing demonstrating both
incompetence and prejudice, defense counsel is presumed competent. 	Talley, 103
N.M. at 36, 702 P.2d at 356; Jacobs, 2000-NMSC-026, ¶ 48 (“Counsel is presumed
competent unless a defendant succeeds in showing both the incompetence of his
attorney and the prejudice resulting from the incompetence.”). We consider the record
as a whole when determining whether a defendant has received ineffective assistance
of counsel. State v. Lewis, 104 N.M. 677, 680, 726 P.2d 354, 357 (Ct. App. 1986).
In considering a claim of ineffective assistance, the duties of
counsel are considered. These duties include loyalty, avoiding a conflict
of interest, consulting with defendant on important decisions, keeping
defendant informed of important developments, and using skill and
knowledge to render the trial a reliable adversarial testing process. The
benchmark for judging any claim of ineffectiveness must be whether
counsel’s 	conduct 	so 	undermined 	the 	proper 	functioning 	of 	the
adversarial process that the trial cannot be relied on as having produced
a just result.

45
Talley, 103 N.M. at 36, 702 P.2d at 356 (internal quotation marks and citation
omitted).
{80} 	Defendant complains about his defense counsel’s failure to move for a mistrial
when it was discovered that J.O. would not be testifying, failure to object to bad act
evidence, stipulation to testimony about the photographs found on Defendant’s
computer, and failure to call the notary of an affidavit signed by R.P. when R.P.
testified contrary to the affidavit. Defendant argues that the instances he recites “call
for a presumption of ineffective assistance of counsel.” Defendant further argues that
his defense counsel’s ineffectiveness led to Defendant’s convictions.
{81} 	“A prima facie case for ineffective assistance of counsel is not made if there is
a plausible, rational strategy or tactic to explain the counsel’s conduct.” Jacobs, 2000-
NMSC-026, ¶ 49. “A reviewing court will not attempt to second guess that [conduct].
An attorney’s decision to object to testimony or other evidence is a matter of trial
tactics.” Id. (citation omitted).
{82} 	Defendant’s first contention, that defense counsel should have moved for a
mistrial once it was discovered the J.O. would not be testifying, is without merit. The
charges relating to J.O. were dropped upon learning that J.O. would not be testifying.
See, e.g., State v. Newman, 109 N.M. 263, 268, 784 P.2d 1006, 1011 (Ct. App. 1989)
(holding that it was not ineffective assistance of counsel where defense counsel

46
requested an admonition instead of a mistrial). Defense counsel did not object to the
hearsay testimony relating to J.O. when it came in through Detective Harris, even after
an obvious attempt by the district court to bring the testimony to defense counsel’s
attention as hearsay. 	This suggests that defense counsel was aware that hearsay
testimony had come in but saw no merit in requesting a mistrial because the hearsay
testimony related to the nonappearing victim of the dropped charges. 	At the
beginning of Detective Harris’s cross-examination, defense counsel brought out J.O.’s
allegations again, ostensibly to impeach J.O. through Detective Harris. Furthermore,
defense counsel did not “entirely fail[] to subject the prosecution’s case to meaningful
adversarial testing.” 	Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis omitted)
(internal quotation marks and citation omitted). To impeach J.O. through Detective
Harris and to discover the tenor of Detective Harris’s investigation is exactly what
defense counsel attempted to do.
{83} 	As to Defendant’s other contentions, we note that defense counsel was an active
participant at the trial, attempting to impeach the credibility of the witnesses, filing
pre-trial motions addressing numerous counts of the indictment, filing a motion to
suppress, and participating in hearings arising from his motions. See, e.g., Newman,
109 N.M. at 268, 784 P.2d at 1011 (finding the defendant’s claim of ineffective
assistance of counsel unpersuasive when defense counsel acted “vigorously” on the

47
defendant’s behalf). 	We will not further “review the record to see how many
objections were raised by defense counsel or how clever was the cross-examination
of the state’s witnesses. To be effective, counsel need not be a wizard. Some cases
are simply hard to defend.” State v. Brazeal, 109 N.M. 752, 757, 790 P.2d 1033, 1038
(Ct. App. 1990).
{84} 	“[E]ven if counsel’s performance was constitutionally defective, the defendant
must still affirmatively prove prejudice.” Id. Defendant has failed to show that his
counsel was ineffective in representing him or that his case was prejudiced by his
counsel’s representation.
CONCLUSION
{85} 	We affirm Defendant’s convictions.
{86} 	IT IS SO ORDERED.
________________________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

JONATHANB. SUTIN, Chief Judge

MICHAEL D. BUSTAMANTE, Judge