February 24, 2011 – State of New Mexico v. Archie Skinner, No. 28,815

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _February 24, 2011

NO. 28,815

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ARCHIE SKINNER,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Charles C. Currier, District J udge

Gary K. King, Attomey General
Santa Fe, NM
Francine A. Chavez, Assistant Attomey General

Albuquerque, NM
for Appellee

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM

for Appellant

OPINION
CASTILLO, Chief Judge.
{1} 	Defendant appeals his conviction of criminal sexual penetration of a minor
(CSPM). His primary contention is that the district court erred in allowing Dr. Karen
Carson, a pediatrician, to testify as to hearsay statements made by the child victim
(Child) during a sexual assault nurse examination (SANE exam). We hold that Dr.
Carson’s testimony concerning Child’s account of the abuse, as well as the
identification of Defendant as the perpetrator, was properly admitted pursuant to Rule
11-803(D) NMRA. 	Dr. Carson’s testimony regarding Child’s statements about a
drawing of a penis were admitted in error, but this error was harmless. Defendant
failed to preserve his argument that the drawing itself was inadmissible hearsay and
that Child’s statements were inadmissible because they were more prejudicial than
probative. We are unpersuaded by Defendant’s sufficiency of the evidence and Sixth
Amendment confrontation clause arguments. Accordingly, we affirm.
I. 	BACKGROUND
{2} 	Defendant was charged with two counts of CSPM, in violation of NMSA 1978,
Section 30-9-11 (2007) (amended 2009), and one count of criminal sexual contact
with a minor (CSCM), in violation of NMSA 1978, Section 30-9-13 (2003). All three
counts were based on allegations that Defendant engaged in sexual activity with Child

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who is his granddaughter and who was six years old at the time. Several witnesses
testified at Defendant’s trial, among them Child and Dr. Carson.
{3} 	Child took the stand and testified that Defendant put his hand underneath her
underwear, touched her vagina, and performed the act of cunnilingus on her. 	Dr.
Carson, who performed a SANE exam of Child shortly after the sexual abuse came
to light, also testified. Dr. Carson was asked what history she obtained from Child
during the exam in relation to Defendant. As she began testifying about what Child
told her, Defendant objected on grounds of hearsay and confrontation. The district
court asked the State for additional foundation, which the State provided. The district
court then overruled Defendant’s objection concluding that Dr. Carson was engaged
in medical diagnosis and treatment during the SANE exam and, thus, could testify as
to hearsay statements Child made during the exam pursuant to Rule 11-803(D) that
provides that statements made for purposes of medical diagnosis or treatment are not
excluded by the hearsay rule.
{4} 	After the ruling, Dr. Carson proceeded to explain that Child identified
Defendant as the perpetrator of the abuse and then described the nature and scope of
the abuse. Dr. Carson testified that Child told her that Defendant inserted his fingers
into her vagina and anus, that he performed cunnilingus on her, and that he made her
perform fellatio. 	Dr. Carson further testified that, after obtaining Child’s medical

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history, she studied Child’s vagina with specialized medical equipment and observed
that Child’s hymen had been torn in abnormal areas suggesting that Child’s vagina
had been deeply penetrated with either a finger or some other object.
{5} 	The district court also admitted, over Defendant’s objection, a drawing Child
made for Dr. Carson during the SANE exam. The drawing was of a penis, and Dr.
Carson testified that Child told her the drawing depicted Defendant’s penis.
Defendant objected that the drawing was irrelevant because Child had testified that
the drawing depicted her uncle’s penis.
{6} 	A directed verdict was granted as to the one count of CSCM and as to one of
the two counts of CSPM. The jury found Defendant guilty on the remaining count of
CSPM. Defendant was sentenced based on this conviction.
II. 	DISCUSSION
{7} 	On appeal, Defendant makes four arguments. First, Defendant argues that the
district court made several errors relating to the admissibility of the evidence.
Specifically, Defendant claims that the district court wrongly permitted Dr. Carson to
testify as to statements Child made during the SANE exam. Defendant also argues
that the district court erred in admitting the drawing Child drew during the SANE
exam. 	Third, Defendant argues that there was insufficient evidence to support the
conviction. Finally, Defendant argues, pursuant to State v. Franklin, 78 N.M. 127,

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129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d
1, 4-6 (Ct. App. 1985), that allowing Dr. Carson to testify about Child’s statements
during the SANE exam violated Defendant’s Sixth Amendment right to confrontation.
We address these matters in turn.
A. 	Evidentiary Matters
{8} 	“Generally speaking, a reviewing court defers to the trial court’s decision to
admit or exclude evidence and will not reverse unless there has been an abuse of
discretion. However, our review of the application of the law to the facts is conducted
de novo.” State v. Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232
(internal quotation marks and citation omitted). “A misapprehension of the law upon
which a court bases an otherwise discretionary evidentiary ruling is subject to de novo
review.” Id. We begin our analysis by examining Defendant’s arguments relating to
Dr. Carson’s testimony and then turn to Defendant’s claims concerning the drawing.
1. 	Statements by Child to Dr. Carson
{9} 	Relying on State v. Ortega, 2008-NMCA-001, ¶ 27, 143 N.M. 261, 175 P.3d
929, overruled in part by State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d
328, Defendant asserts that hearsay statements made by a victim of sexual abuse
during a SANE exam do not fall within Rule 11-803(D) as such statements are not for
the purpose of medical diagnosis or treatment but are primarily for evidentiary

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purposes to prosecute a crime. Accordingly, Defendant contends that the district court
improperly admitted Dr. Carson’s testimony concerning statements made by Child
during the SANE exam. 	However, our Supreme Court overruled Ortega to the
following extent: “Under [Ortega, 2008-NMCA-001, ¶¶ 16-27], hearsay statements
made to a [SANE] nurse . . . during an examination of a victim of alleged sexual
abuse, are rarely admissible at trial, even if some of those statements pertain to
‘medical diagnosis or treatment’ under Rule 11-803(D) . . ., and even if the declarant
testifies at trial.” Mendez, 2010-NMSC-044, ¶ 1. The Court concluded that “Ortega
went too far in its hearsay analysis and in categorically excluding statements made to
SANE nurses,” and “reverse[d] the evidentiary ruling of the trial court, and the
affirming opinion of the Court of Appeals that relied on Ortega,” which the Supreme
Court partially overruled. Mendez, 2010-NMSC-044, ¶ 1.
{10} 	“The hearsay rule excludes from admissible evidence statements that are
inherently untrustworthy because of the risk of misperception, failed memory,
insincerity, ambiguity, and the like.” 	Mendez, 2010-NMSC-044, ¶ 19. “There are,
however, numerous exceptions to the hearsay rule when statements made by an
out-of-court declarant nevertheless possess circumstantial guarantees of reliability
sufficient to make the statements trustworthy and admissible.” Id.; see Rule 11-802
NMRA (“Hearsay is not admissible except as provided by these rules . . . .”). Rule 11-

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803(D) is one such exception and provides:
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
. . . .
Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.
“The State bears the burden of laying the proper foundation for admitting statements
under Rule 11-803(D) and Rule 11-403 [NMRA].” Mendez, 2010-NMSC-044, ¶ 54.
{11} 	In Mendez, our Supreme Court overruled Ortega, in part, and clarified existing
law for applying Rule 11-803(D) as it relates to the admissibility of hearsay statements
elicited from a victim of sexual abuse during a SANE exam. Mendez, 2010-NMSC-
044, ¶¶ 13, 40-55. 	Defendant’s trial occurred before Mendez, and Defendant’s
submissions on appeal were also filed before Mendez had been issued. 	Mendez
explains that Ortega erroneously directed “courts to determine the purpose of the
encounter, instead of considering the substance of, and circumstances surrounding,
individual statements.” Mendez, 2010-NMSC-044, ¶ 39. This approach, our Supreme
Court determined, “is irreconcilable with previous hearsay opinions in which our
courts have focused on particular statements, determining in each instance the purpose
for which the statement was made.” 	Id. 	The Court acknowledged “the special

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challenges posed by determining the admissibility of statements made” by victims
during SANE exams under Rule 11-803(D), but rejected “the notion that statements
can be categorically excluded based on the professional status or affiliation of the
individual to whom the statement is made.” 	Mendez, 2010-NMSC-044, ¶ 41. We
reject Defendant’s assertion that Child’s statements to Dr. Carson during the SANE
exam were categorically inadmissible as this claim is contrary to Mendez. We proceed
to evaluate these statements in light of the guidance provided in Mendez.
{12} 	Our Supreme Court explained in Mendez that “[t]wo underlying rationales
traditionally animate Rule 11-803(D).” 	Mendez, 2010-NMSC-044, ¶ 20. The first
rationale is the help-seeking motivation. 	Id. 	“[T]he declarant’s self-interest in
obtaining proper medical attention renders the usual risks of hearsay testimony . . .
minimal when associated with medical treatment.” Id. (omission in original) (internal
quotation marks and citation omitted). The second rationale is commonly referred to
as pertinence. Id. ¶ 21. “[I]f a statement is pertinent to a medical condition, such that
a medical care provider reasonably relies upon it in arriving at a diagnosis or
treatment, the statement is deemed sufficiently reliable to overcome hearsay
concerns.” Id. “Trustworthiness can be established under either rationale alone, or
some degree of both. In any event, trial courts are best suited to consider the relevant
facts and circumstances of a given case in order to make the ultimate determination.”

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Id. ¶ 23. 	Trial courts must closely scrutinize the exchange between the medical
provider and patient “to determine the statement’s overall trustworthiness under Rule
11-803(D) in light of the[se] two rationales.” 	Mendez, 2010-NMSC-044, ¶ 42. In
other words, “[t]he trial court must . . . carefully parse each statement made to a
[SANE nurse] to determine whether the statement is sufficiently trustworthy, focusing
on the declarant’s motivation to seek medical care and whether a medical provider
could have reasonably relied on the statement for diagnosing or treating the
declarant.” Id. ¶ 43.
{13} 	The hearsay statements proffered by Dr. Carson can be divided into three
discrete categories. The first is Dr. Carson’s testimony concerning Child’s account
of the nature and scope of the sexual abuse. The second is Dr. Carson’s testimony
regarding Child’s identification of Defendant as the perpetrator of the abuse. 	The
third is Dr. Carson’s testimony that Child stated the drawing she drew was of
Defendant’s penis. We analyze the admissibility of each category in turn.
{14} 	As to the first category, Mendez states that a “patient’s account of what
happened to her body helps medical care providers determine the best way to proceed
in diagnosing and ultimately treating any injury.” Id. ¶ 48. Mendez further indicates
that statements elicited from a victim of sexual abuse by a medical provider
concerning the nature of any body-to-body contact involved in the abuse, the

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possibility of any fluid-to-body contact occurring during the abuse, and any bodily
sensations experienced by the victim during the abuse may, under the context and
circumstances, relate directly to the victim’s help-seeking motivation and be pertinent
to medical diagnosis and treatment. Id. ¶¶ 44-45.
{15} 	The evidence shows that in the morning hours of November 8, 2007, Child was
taken to a doctor because she was experiencing vaginal pain. 	Officers from the
Roswell Police Department were summoned to the doctor’s office at around 10 a.m.
and were informed that Child had been sexually assaulted. 	Child was brought to
Esperanza House at 11:00 a.m. for an interview and then taken to Dr. Carson at
roughly 1:45 p.m. for the SANE exam.
{16} 	Dr. Carson testified that she complied with the statewide SANE protocols and
obtained a history of Child prior to conducting the physical examination. The State
asked Dr. Carson what purpose was served in her attempt to obtain Child’s history.
Dr. Carson responded that the purpose of obtaining Child’s medical history was to
diagnose Child and treat her physical complaints. Dr. Carson further testified that this
is something that all physicians do when a person with physical maladies seeks
treatment. Dr. Carson then described Child’s account of the nature and extent of the
abuse which, as previously described, involved vaginal and anal penetration,
cunnilingus, and fellatio. Dr. Carson testified that after she obtained this history, she

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performed an external and internal examination of Child’s body. 	Dr. Carson
discovered that Child had no external injuries but had sustained penetrating injuries
to her vagina which corroborated Child’s claim that she had been vaginally penetrated
with either a finger or some other object.
{17} 	In our view, the State laid a sufficient foundation to permit us to conclude that
the district court did not abuse its discretion in ruling that Child’s statements to Dr.
Carson about the nature and scope of the abuse were admissible under Rule 11-
803(D). 	The evidence indicates (1) that Dr. Carson was attempting to identify
whether Child was injured when Dr. Carson asked Child to describe the nature and
scope of the abuse, (2) that Child’s statements about the scope of the abuse were
pertinent to her health and treatment, and (3) that it was reasonable for Dr. Carson to
rely on Child’s statements in attempting to identify Child’s injuries. Indeed, during
her physical examination of Child, Dr. Carson found injuries in the areas of Child’s
body where Child claimed she had been penetrated. 	Dr. Carson’s testimony
concerning Child’s account of the scope and nature of the abuse was properly
admitted.
{18} 	We turn now to the second category of Dr. Carson’s testimony—Child’s
identification of Defendant as the perpetrator of the sexual abuse. Mendez instructs
that “statements of fault or identity are inadmissible under the hearsay exception for

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purposes of medical diagnosis or treatment because they are not pertinent to treatment
or diagnosis[,]” but there is an exception: 	victim statements involving the
identification of the abuser may be admissible under Rule 11-803(D) where the
identity of the abuser is pertinent to psychological treatment or where treatment
involves separating the victim from the abuser. Mendez, 2010-NMSC-044, ¶¶ 52-53.
{19} 	At trial, the State presented evidence that Defendant served as a caregiver for
Child during the period of time preceding Child’s complaint of vaginal pain. 	Dr.
Carson stated that Child told her that Defendant was her “Papa,” thus alerting Dr.
Carson to the probability that Defendant was Child’s relative. 	This evidence is
sufficient to permit us to conclude that Dr. Carson would need to know if Defendant
was the source of the sexual abuse so as to prevent Child from being returned to
Defendant’s care and further harmed. See id. ¶ 53 (“[I]nformation that a child sexual
abuser is a member of the patient’s household is reasonably pertinent to a course of
treatment that includes removing the child from the home.” (internal quotation marks
and citation omitted)). We conclude that Dr. Carson’s statement that Child told her
Defendant was the perpetrator of the abuse was also properly admitted under Rule 11-
803(D).
{20} 	The last category of hearsay at issue here is Dr. Carson’s statement that Child
told her that the drawing she drew was of Defendant’s penis. 	At trial, Dr. Carson

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testified that Child volunteered to draw the drawing during the SANE exam. 	Dr.
Carson stated that she does not ask patients undergoing SANE exams to make
drawings, but she allowed Child to make the drawing in this instance because Child
volunteered to do so. Dr. Carson testified that after Child drew the drawing, Child
told Dr. Carson it was a drawing of Defendant’s penis.
{21} 	The record provides no guidance as to how Child’s assertion that the drawing
was of Defendant’s penis might have assisted Dr. Carson in her efforts to diagnose or
treat Child’s injuries. Dr. Carson merely testified that Child asked to draw a drawing,
she did so, and then she claimed it was of Defendant’s penis. 	Without more, we
cannot conclude that the State met its foundational burden as to the admissibility of
this statement under Rule 11-803(D).
{22} 	Even though admission of this evidence was error, we conclude that this error
was harmless. The standard for harmless error review in the evidentiary context is
summarized in State v. Branch, 2010-NMSC-042, 148 N.M. 601, 241 P.3d 602.
There, our Supreme Court provided the following guidance.
Given that the error in this case was an evidentiary error, we employ the
non-constitutional 	standard 	for 	the 	harmless 	error 	analysis. 	[A]
non-constitutional error is harmless when there is no reasonable
probability the error affected the verdict. 	Reviewing courts consider
three factors when determining whether an error is harmless: [W]hether
there is: (1) substantial evidence to support the conviction without
reference 	to 	the 	improperly 	admitted 	evidence; 	(2) 	such 	a
disproportionate volume of permissible evidence that, in comparison, the

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amount of improper evidence will appear minuscule; and (3) no
substantial conflicting evidence to discredit the State’s testimony. These
factors are considered in conjunction with one another . . . [and] provide
a reviewing court with a reliable basis for determining whether an error
is harmless.
Id. ¶ 15 (alterations in original) (omission in original) (internal quotation marks and
citations omitted).
{23} 	As to the first factor, there was substantial evidence other than Dr. Carson’s
improperly admitted statement regarding the drawing to support Defendant’s
conviction. The jury was instructed that, to find Defendant guilty of CSPM, they were
required to find: 	(1) that Defendant caused Child to engage in cunnilingus or that
Defendant caused the insertion of his finger, to any extent, into Child’s vagina; (2)
that Child was twelve years of age or younger; and (3) that this happened in New
Mexico on or about November 6, 2007. Child testified that Defendant touched her
vagina and performed cunnilingus on her. Dr. Carson similarly testified that Child
stated during the SANE exam that Defendant inserted his finger into her vagina and
anus and performed cunnilingus on her. Dr. Carson’s examination of Child’s vagina
revealed evidence that Child’s vagina had been penetrated with either a finger or some
other object.
{24} 	Turning to the second factor, we determine that Dr. Carson’s improperly
admitted testimony appears minuscule in comparison to the permissible evidence just

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described. As detailed above, the testimony regarding the drawing was insignificant
in relation to the permissible evidence admitted.
{25} 	The third factor relates to other evidence in the case. While there was some
evidence of Child’s untruthfulness, there was no substantial conflicting evidence to
discredit the testimony presented by the State. 	Moreover, Defendant submitted
evidence in the form of testimony from various family members that Child had a
reputation for being untruthful. 	The conflict between Child’s testimony as to the
drawing and that of Dr. Carson provided support for Defendant’s theory. Although
Defendant contends that Dr. Carson’s testimony as to the drawing corroborated
Child’s account, this is not the case. Child’s other testimony regarding the abuse was
corroborated by Dr. Carson’s testimony, but Child’s identification of the penis in the
drawing contradicted Dr. Carson’s testimony and in doing so, aided Defendant in
presenting his theory of the case.
{26} 	Accordingly, after weighing the factors, we conclude that there was no
reasonable probability that the admission of Dr. Carson’s testimony concerning
Child’s statements about the drawing during the SANE exam affected the verdict. The
district court committed harmless error in admitting this evidence.
{27} 	Before proceeding to the next issue on appeal, we address Defendant’s
contention that Dr. Carson’s hearsay statements should be excluded under Rule 11-

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403 NMRA. 	Specifically, Defendant argues that Dr. Carson’s status as an expert
shrouded her testimony in an air of trustworthiness and impinged on the jury’s role
as 	factfinder. 	We 	decline 	to 	entertain 	this 	argument 	because 	“Defendant’s
brief-in-chief fails to include the requisite statement regarding preservation” regarding
this argument. 	State v. Harrison, 2010-NMSC-038, ¶ 11, 148 N.M. 500, 238 P.3d
869; see Rule 12-213(A)(4) NMRA.
2. 	Drawing
{28} 	We now turn to Defendant’s arguments concerning the admissibility of the
drawing itself. In his brief-in-chief, Defendant provides three grounds for his position
that the drawing was inadmissible: (1) because it was based on the inadmissible
statements of Dr. Carson, (2) because allowing Dr. Carson to testify to the drawing
allowed improper validation of the exhibit, and (3) because it was irrelevant.
Defendant did not preserve the first two claims; thus, we will not address them on
appeal. 	See Rule 12-216(A) NMRA (“To preserve a question for review it must
appear that a ruling or decision by the district court was fairly invoked[.]”).
{29} 	As to relevancy, Defendant maintains that because there was no admissible
testimony linking the drawing to Defendant, the drawing itself was irrelevant and was
therefore wrongly admitted. We disagree. As we have explained in paragraph 25,
Defendant’s theory of the case was that Child had a reputation for being untruthful

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and that the accusations against Defendant were false. 	Child’s testimony that the
drawing depicted her uncle’s penis would tend to show that she had seen her uncle’s
penis. 	This could raise a question regarding the veracity of her testimony that
Defendant was the perpetrator. Viewed in this light, we cannot see how such evidence
was relevant because this evidence tends to show precisely what Defendant wanted
the jury to believe—that Child had lied. The drawing was relevant, and we reject
Defendant’s arguments to the contrary.
C. 	Sufficiency of the Evidence
{30} 	Defendant contends that the evidence was insufficient to “allow a rational trier
of fact to find him guilty of” the one count of CSPM of which he was convicted. “The
test for sufficiency of the evidence is whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-
005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation
omitted). We set forth the jury instruction and described the evidence supporting the
conviction in the preceding section of this opinion and need not do so again here.
Rather, we focus on Defendant’s arguments.
{31} 	Defendant asserts that the evidence was insufficient to support the verdict
because Child’s credibility is dubious and because Child testified that her family

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members instructed her to identify Defendant as the source of the abuse. This line of
argument is unavailing. “As an appellate court, we do not substitute our judgment for
that of the factfinder concerning the credibility of witnesses or the weight to be given
their testimony.” State v. Nichols, 2006-NMCA-017, ¶ 9, 139 N.M. 72, 128 P.3d 500
(internal quotation marks and citation omitted). 	“Contrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [the
d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.
438, 971 P.2d 829.
{32} 	Defendant also claims that, while the medical evidence indicates that Child
suffered a penetrating injury to her vagina, there was no evidence to connect
Defendant with the injury. We disagree. Child testified that Defendant touched her
vagina with his finger. Dr. Carson testified that during the SANE examination Child
claimed that Defendant penetrated her vagina with his finger. 	Moreover, the jury
instruction indicates that Defendant could be convicted of CSPM for either inserting
his finger into Child’s vagina to any degree or by causing Child to engage in
cunnilingus. Putting aside the evidence that Defendant penetrated Child’s vagina with
his finger, there was also evidence presented that Defendant caused Child to engage
in cunnilingus. We reject Defendant’s assertion that the evidence was insufficient to
support the conviction.

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D. 	Confrontation
{33} 	Defendant’s final argument is submitted pursuant to Franklin and Boyer. He
asserts that his Sixth Amendment right to confrontation was violated when the district
court allowed Dr. Carson to testify about the statements Child made during the SANE
exam. This argument is without merit as Child testified in this case, and Defendant
did have an opportunity to face Child at trial and cross-examine her. Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1987) (observing that the confrontation clause provides
criminal defendants the right to physically face those who testify against them and the
right to conduct cross-examination).
III. 	CONCLUSION
{34} 	For the foregoing reasons, the judgment of the district court is affirmed.
{35} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

LINDA M. VANZI, Judge

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