April 23, 2020- State of New Mexico v. Roy Brown, No. A-1-CA-37337

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37337	4
ROY BROWN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY	7
Donna J. Mowrer, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Gregory B. Dawkins, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
B. ZAMORA, Judge.	18
{1} 	Defendant Roy Brown appeals his convictions for two counts of criminal	19
sexual penetration (CSP); aggravated battery; burglary; and resisting, evading, or	20
obstructing an officer. Defendant argues that the district court (1) erred in failing to	21
suppress Victim’s identification of Defendant; (2) abused its discretion in admitting	22
Court of Appeals of New Mexico
Filed 4/23/2020 10:06 AM

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DNA evidence; (3) failed to dismiss the case for prosecutorial misconduct; (4) erred	1
in failing to vacate one of his CSP convictions on double jeopardy grounds; and (5)	2
improperly used Defendant’s prior felony conviction to enhance his sentence as a	3
habitual offender. Defendant also argues that cumulative error requires reversal. We	4
affirm.	5
BACKGROUND	6
{2} 	In June 2016, Victim awoke to an attacker she later identified as Defendant	7
“smothering [her] with a cushion” and hitting her with a glass liquor bottle. Victim	8
was unable to fight Defendant off, who penetrated her vaginally with his penis,	9
unsuccessfully tried to penetrate her vagina with the bottle, and “put his fingers in	10
[her] anus.” Victim continued to struggle and tried to pull Defendant’s hair, but he	11
did not have any. At one point, Victim told Defendant that she had to use the	12
bathroom, and Defendant followed her. 	While in the bathroom, Victim told	13
Defendant that someone was outside, which confused him. Victim then managed to	14
escape, and as she fled, she heard Defendant “yelling . . . something in English,”	15
which she did not understand, as she only spoke Spanish. When Victim turned back	16
to look at Defendant, a passing car with its headlights on drove by, allowing her to	17
see Defendant, “the expression on his face,” and that he was a tall man wearing a	18
tank top and boxer shorts. Victim ran to a nearby house and called the police.	19

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{3} 	Sergeant Mark Morrison arrived on scene and spoke with Victim, who	1
provided a physical description of Defendant and stated she may have scratched him	2
during the attack. Sergeant Morrison testified that less than five minutes later,	3
Deputy Chris McCasland reported on the radio that they had found Defendant—who	4
matched the description given by Victim. Deputy McCasland contacted Defendant	5
outside Victim’s trailer and observed Defendant to be “pretty intoxicated,” “very	6
confrontational,” without pants, and with fresh scratches on his legs and arm. Victim	7
was shown a photograph of Defendant and positively identified him as her attacker.	8
Defendant was subsequently arrested.	9
{4} 	At the conclusion of the trial, Defendant was convicted. The district court	10
sentenced Defendant as a habitual offender based on two prior convictions.	11
Defendant now appeals.	12
DISCUSSION	13
I. 	Motion to Suppress Identification of Defendant	14
{5} 	Defendant argues that Victim’s in-court identification was tainted by the	15
unduly suggestive “cell phone photograph” and should have been suppressed. As we	16
explain below, we disagree.	17
{6} 	At the crime scene, a single photograph of Defendant was shown to Victim,	18
and she positively identified him as her attacker. Defendant filed a motion to	19
suppress Victim’s on-scene identification and subsequent in-court identification	20

4
because the proper procedure was not followed by the police and the photo	1
identification was unreliable. At the suppression hearing, the district court found	2
that, under the totality of the circumstances, the suggestiveness of Defendant’s	3
identification did not “give rise to the likelihood of an irreparable misidentification.”	4
{7} 	Our review of the district court’s ruling on a motion to suppress is “a mixed	5
question of fact and law.” State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188	6
P.3d 95 (internal quotation marks and citation omitted). While we “defer to the	7
[district] court’s purely factual assessment,” we are not bound by the district court’s	8
“application of law to the facts.” State v. Johnson, 2004-NMCA-058, ¶ 12, 135 N.M.	9
567, 92 P.3d 13. “In reviewing the admissibility of showup identification, we	10
analyze whether the procedure used was so impermissibly suggestive as to give rise	11
to a very substantial likelihood of irreparable misidentification and, if so, whether	12
the identification is nonetheless reliable under the totality of the circumstances.” Id.	13
¶ 13. To assess the reliability of a witness’s identification, “courts weigh the	14
corrupting effect of the suggestive identification” against five factors. Patterson v.	15
LeMaster, 2001-NMSC-013, ¶ 20, 130 N.M. 179, 21 P.3d 1032 (internal quotation	16
marks and citation omitted). Those factors are (1) the witness’s opportunity to view	17
the attacker at the time of the crime, (2) the witness’s degree of attention at the time	18
of the crime, (3) the accuracy of the witness’s pre-identification description, (4) the	19

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certainty of the witness, and (5) the time elapsed between the crime and the	1
identification. State v. Jacobs, 2000-NMSC-026, ¶ 30, 129 N.M. 448, 10 P.3d 127.	2
{8} 	Here, Defendant correctly points out that the use of a single photo was akin to	3
a showup identification. A showup identification occurs when a witness is asked if	4
they can identify a suspect that is already in custody of the police and still near the	5
scene of the crime. See State v. Padilla, 1996-NMCA-072, ¶ 16, 122 N.M. 92, 920	6
P.2d 1046. “Showup identifications are inherently suggestive, and their use should	7
be avoided.” Johnson, 2004-NMCA-058, ¶ 14 (internal quotation marks and citation	8
omitted). We agree with Defendant that the police’s use of only one photograph,	9
shown to Victim to “see if [it] was possibly the subject,” was suggestive. However,	10
even if it was suggestive for the deputy to show Victim a single photograph of	11
Defendant, we nevertheless conclude Victim’s identification of Defendant was	12
reliable under the totality of the circumstances.1
13
{9} 	First, Victim provided an accurate description of Defendant because she had	14
an ample opportunity to view him at the time of the crime. Victim saw Defendant	15
when she fled and was able to give a detailed pre-identification description of	16
1 Defendant argues that Victim’s identification is unreliable because she
described her attacker as a “white male.” However, Defendant’s only citation to the
record is to his opening statement at the suppression hearing. See State v. Pacheco,
2017-NMCA-014, ¶ 8, 388 P.3d 307 (“[S]tatements of counsel are not evidence.”
(internal quotation marks, and citation omitted)). Therefore, we do not address this
argument further.

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Defendant’s eyes, the expressions on his face, his height, build, and the fact that he	1
was wearing only his underwear. Additionally, Victim described Defendant as	2
“English-speaking, ha[ving] a . . . shaved head and . . . wearing a white . . . wife	3
beater.” The officers located Defendant standing outside of Victim’s trailer, wearing	4
a “light-grey wife-beater,” “no pants,” fresh scratches on his legs and arm with “very	5
short cut and balding” hair. There was no evidence that Victim was inebriated or	6
otherwise impaired during or after the attack; thus, Victim’s degree of attention	7
weighed in favor of admitting her identification of Defendant. Johnson, 2004-	8
NMCA-058, ¶ 20 (noting that without evidence that the “witness[’s] degree of	9
attention was impaired,” this factor “weighs toward reliability”). Finally, only a short	10
period of time had elapsed between the crime and Victim’s identification of	11
Defendant, which occurred the same night she was attacked and less than five	12
minutes 	after 	Victim 	provided 	Sergeant 	Morrison 	a 	detailed 	description 	of	13
Defendant. Victim also immediately identified Defendant after being shown the	14
photo by Sergeant Morrison. Given the totality of the circumstances, we hold that	15
the district court did not err in admitting Victim’s identification of Defendant. See	16
Padilla, 1996-NMCA-072, ¶ 20 (holding that “suggestiveness alone may be	17
inconsequential” in situations where a witness is the victim of an assault).	18

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II. 	Admission of DNA Evidence	1
{10} 	Defendant argues the district court abused its discretion by admitting DNA	2
evidence at trial. Defendant specifically contends that the State’s expert’s testing	3
methodology “was unreliable” and her “methods of collection and analysis violated	4
best practices . . . within the scientific community[.]” The State argues that the issue	5
was not preserved below. Defendant does not appear to rebut the State’s assertion in	6
his reply brief, merely referencing the State’s DNA Laboratory Report as the	7
evidence that should have been excluded. Based on our review of the record, we	8
agree with the State.	9
{11} 	While Defendant filed a pretrial Daubert motion to exclude the State’s DNA	10
expert, he withdrew the motion three days later. Defendant does not indicate where	11
the issue was preserved, nor does Defendant ask us to review for plain error.2 See	12
State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829 (holding that the	13
appellate court will not search the record to find whether an issue was preserved	14
where the defendant failed to refer the court to the record). We therefore decline to	15
address this issue. See Rule 12-321(A) NMRA (“To preserve an issue for review, it	16
2Defendant has not claimed plain error as a result of the admission of the DNA
evidence. Application of the plain error doctrine by an appellate court constitutes an
“exercise of remedial discretion[, and] . . . [w]e decline to address the issue of plain
error” when the defendant has altogether failed to develop an argument or brief it.
State v. Abril, 2003-NMCA-111, ¶ 14, 134 N.M. 326, 76 P.3d 644 (internal quotation
marks and citation omitted), overruled on other grounds by State v. Torres, 2012-
NMCA-026, ¶ 38, 272 P.3d 689.

8
must appear that a ruling or decision by the [district] court was fairly invoked.”);	1
State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (“In order to preserve an	2
issue for appeal, a defendant must make a timely objection that specifically apprises	3
the [district] court of the nature of the claimed error and invokes an intelligent ruling	4
thereon.” (internal quotation marks and citation omitted)).	5
III. 	Prosecutorial Misconduct	6
{12} 	Defendant contends that multiple instances of prosecutorial misconduct	7
required dismissal of his charges by the district court. Below, Defendant filed	8
motions to dismiss based on alleged prosecutorial misconduct which were denied by	9
the district court. Specifically, Defendant argues that the State’s prosecutorial	10
misconduct 	warranted 	dismissal 	because 	the 	State 	(1) 	withheld 	exculpatory	11
evidence, (2) knowingly elicited false testimony at trial, and (3) intimidated	12
Defendant’s witness. The State contends that none of the alleged instances of	13
prosecutorial misconduct resulted in prejudice to Defendant. We address each	14
alleged instance of prosecutorial misconduct in turn.	15
{13} 	Because Defendant’s claims of prosecutorial misconduct were preserved	16
below, “we review the claim of error by determining whether the trial court’s ruling	17
on the claim was an abuse of discretion.” State v. Wildgrube, 2003-NMCA-108,	18
¶ 20, 134 N.M. 262, 75 P.3d 862. We evaluate whether the district court abused its	19
discretion “by overruling the defendant’s objection to the challenged conduct, or by	20

9
otherwise failing to control the conduct of counsel during trial.” State v. Loya, 2011-	1
NMCA-077, ¶ 13, 150 N.M. 373, 258 P.3d 1165 (internal quotation marks and	2
citation omitted).	3
A. 	Late Disclosure of Exculpatory Evidence	4
{14} 	We first determine whether the State violated Defendant’s due process right	5
by its untimely disclosure of the DNA lab report. The state violates a defendant’s	6
due process rights by withholding evidence favorable to the defense. State v.	7
Balenquah, 2009-NMCA-055, ¶ 12, 146 N.M. 267, 208 P.3d 912. To prove his right	8
to due process was violated the defendant must show (1) the evidence was withheld	9
by the prosecution, (2) the evidence was favorable to the defendant, and (3) the	10
evidence was material to his defense. Id. Importantly, the defendant is only “entitled	11
to a retrial where the prosecution suppressed, throughout the whole trial, exculpatory	12
evidence material to the guilt or punishment of the defendant.” State v. Miera, 2018-	13
NMCA-020, ¶ 26, 413 P.3d 491 (emphasis, internal quotation marks, and citation	14
omitted).	15
{15} 	Defendant concedes that he was provided the DNA evidence prior to trial,	16
despite the late disclosure. The State submitted multiple samples of bodily fluids	17
recovered from Defendant’s clothing, the liquor bottle, and Victim’s body for DNA	18
testing. After receiving the report regarding the DNA on November 7, 2016, the	19
State sent the results to the Roosevelt County Sheriff’s Office but inadvertently	20

10
failed to disclose the report to Defendant until April 4, 2017. However, it is	1
undisputed that the State disclosed the DNA evidence to Defendant five months prior	2
to trial. See Balenquah, 2009-NMCA-055, ¶¶ 14-15 (concluding that evidence that	3
was made available to the defendant on the second day of trial was not considered	4
“suppressed” by the state). Because the State provided the DNA evidence to	5
Defendant, we need not address whether the evidence was favorable and material to	6
Defendant. See id. ¶ 13 (explaining that all three prongs must be met to establish a	7
right to due process violation). Thus, the district court did not abuse its discretion by	8
denying Defendant’s motion for a mistrial.	9
B. 	Deputy’s False Statement During Interrogation of Defendant	10
{16} 	Defendant argues the district court abused its discretion in denying his motion	11
for a mistrial because during trial the prosecutor knowingly elicited false testimony	12
from Deputy Brian Encinias. The district court is in the “best position to evaluate	13
the significance of any alleged prosecutorial errors.” State v. Trujillo, 2002-NMSC-	14
005, ¶ 49, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation	15
omitted). While Defendant is entitled to a fair trial, judges retain “wide discretion in	16
controlling the proceedings before them and a defendant is not entitled to a perfect	17
trial.” State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal	18
quotation marks and citation omitted).	19

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{17} 	Defendant’s argument that the deputy falsely told the jury, under oath, of	1
incriminating conduct by Defendant is unsupported by the record in this case. The	2
jury saw a video of Deputy Encinias interrogating Defendant during which the	3
deputy falsely stated that Defendant’s friend had told the deputy that Defendant left	4
Victim’s house, returned without his clothes on, and was out of breath. Before any	5
further testimony was elicited from the deputy, Defendant moved for a mistrial,	6
arguing the jury would be “unable to reach a fair verdict.” The district court denied	7
Defendant’s motion and instead instructed the jury that interrogators are “allowed to	8
state things that are not true during an interview.” Deputy Encinias then testified that	9
the statement was “not true” and that it was merely an “interview technique.”	10
{18} 	Defendant 	does 	not 	explain 	how 	the 	State 	“deliberate[ly] 	use[d] false	11
evidence” to obtain a conviction. See State v. Hogervorst, 1975-NMCA-028, ¶ 6, 87	12
N.M. 458, 535 P.2d 1084. The contested statement made by Deputy Encinias was	13
not testimony. Instead, it was a statement used as an “interview technique” during	14
an interrogation. More importantly, Deputy Encinias testified before the jury that the	15
statement made in the video was false. See State v. Garvin, 2005-NMCA-107, ¶ 29,	16
138 N.M. 164, 117 P.3d 970 (stating that the state has a “duty not to misstate the	17
facts,” and must clarify if a misstatement of fact occurs). Without any showing that	18
the district court’s limiting instruction and the State’s clarification of Deputy	19
Encinias’s testimony is “clearly against the logic and the effect of the facts and	20

12
circumstances of the case,” we cannot conclude that the denial of Defendant’s	1
motion for a mistrial was an abuse of discretion. See State v. Sutphin, 1988-NMSC-	2
031, ¶ 18, 107 N.M. 126, 753 P.2d 1314 (“[T]he power to declare a mistrial should	3
be exercised with the greatest caution” and requires a showing “of a clearly	4
erroneous decision.” (internal quotation marks and citation omitted)); see also State	5
v. Gallegos, 2009-NMSC-017, ¶ 29, 146 N.M. 88, 206 P.3d 993 (noting that district	6
courts have discretion to use “a variety of remedies” in order to cure any possible	7
prejudice that may occur in the minds of the jury).	8
C. 	Witness Intimidation	9
{19} 	Lastly, Defendant argues the State committed prosecutorial misconduct when	10
it intimidated his investigator, in violation of NMSA 1978, Section 30-24-3(A)	11
(1997). Section 30-24-3(A)(2) defines “intimidation of a witness” as “intimidating	12
or threatening any witness or person likely to become a witness . . . for the purpose	13
of preventing such individual from testifying to any fact, to abstain from testifying	14
or to testify falsely[.]” Specifically, Defendant contends the State provided the	15
defense investigator’s ex-husband with her phone number, which, placed the	16
investigator “in a state of physical fear and intimidation to the degree that she was	17
unable to assist defense counsel on the evening before her testimony or to	18
concentrate during her testimony the next day.” The State responds that there was	19
no evidence that anyone acting on behalf of the District Attorney’s office intended	20

13
to intimidate the defense investigator. The State points out that during the hearing	1
on Defendant’s motion for a mistrial, each of the State’s investigators testified that	2
they did not give the defense investigator’s phone number to her ex-husband and	3
made no attempt to threaten or intimidate her and thus the district court did not abuse	4
its discretion in denying Defendant’s motion for a mistrial.	5
{20} 	We observe that Defendant’s investigator testified on Defendant’s behalf and	6
that Defendant fails to point to any evidence demonstrating that the State provided	7
his investigator’s ex-husband with her phone number, the basis of his prosecutorial	8
misconduct claim. Nor does Defendant develop an argument as to why the State’s	9
purportedly intimidating actions affected his investigator’s testimony or what facts	10
were not elicited from the investigator as a result of the alleged intimidation. See	11
State v. Fernandez, 1994-NMCA-056, ¶ 41, 117 N.M. 673, 875 P.2d 1104 (stating	12
that to show intimidation of a witness, there must be an indication that the state’s	13
actions prevented the witness “from testifying to any fact” (internal quotation marks	14
omitted)). Thus, we decline to address this undeveloped argument. See State v.	15
Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (observing that appellate courts are	16
under no obligation to review undeveloped arguments).	17
IV. 	Double Jeopardy	18
{21} 	Defendant was convicted of two separate counts of CSP: one conviction for	19
penetrating Victim vaginally with his penis and another for penetrating Victim	20

14
anally with his fingers. Defendant argues that one of the CSP convictions should be	1
vacated because the two penetrations were close in time, with the same intent, in the	2
same location, and without any intervening events. The State argues there is no	3
double jeopardy violation because Defendant penetrated two different orifices.	4
{22} 	“A double jeopardy challenge is a constitutional question of law which we	5
review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Defendant’s	6
claim is a unit of prosecution double jeopardy claim, which occurs when “an	7
individual is convicted of multiple violations of the same criminal statute.” State v.	8
Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. Our Supreme Court has	9
observed that the language of the statute governing CSP convictions, NMSA 1978,	10
§ 30-9-11 (2009), “does not indicate unambiguously whether the [L]egislature	11
intended . . . to create a separate offense for each penetration occurring during a	12
continuous sexual assault.” Herron v. State, 1991-NMSC-012, ¶ 8, 111 N.M. 357,	13
805 P.2d 624. Therefore, “we determine whether a defendant’s acts are separated by	14
sufficient indicia of distinctness to justify multiple punishments under the same	15
statute.” Bernal, 2006-NMSC-050, ¶ 14 (internal quotation marks and citation	16
omitted). We begin by considering the following factors in determining whether	17
there were sufficient indicia of distinctness between the two penetrations:	18
(1) temporal proximity of penetrations (the greater the interval between	19
acts the greater the likelihood of separate offenses); (2) location of the	20
victim during each penetration (movement or repositioning of the	21
victim between penetrations tends to show separate offenses); (3)	22

15
existence of an intervening event; (4) sequencing of penetrations (serial	1
penetrations of different orifices, as opposed to repeated penetrations	2
of the same orifice, tend to establish separate offenses); (5) [the]	3
defendant’s intent as evidenced by his conduct and utterances; and (6)	4
number of victims[.] . . . Except for penetrations of separate orifices	5
with the same object, none of these factors alone is a panacea[.]	6
State v. McClendon, 2001-NMSC-023, ¶ 6, 130 N.M. 551, 28 P.3d 1092 (internal	7
quotation marks and citations omitted); see also State v. Wilson, 1993-NMCA-074,	8
¶ 9, 117 N.M. 11, 868 P.2d 656 (stating that “penetrations of separate orifices with	9
the same object constitute separate offenses”).	10
{23} 	Applying these factors, we agree with Defendant that the two penetrations	11
were close in time, in the same location, and were not accompanied with any	12
intervening events between the two penetrations given Victim’s testimony that she	13
was lying on a couch during both penetrations, that no intervening events occurred	14
between the two penetrations, and that she was unsure how long the struggle lasted.	15
However, Defendant penetrated two separate orifices: Victim’s anus and vagina.	16
Victim testified Defendant “penetrat[ed] my vagina” and “raped me . . . [with] his	17
penis.” Victim also testified that Defendant put his fingers in Victim’s anus during	18
the struggle. Defendant demonstrated his intent to separately penetrate Victim’s anus	19
because he attempted to rape her anally throughout the entire struggle. Because	20
“serial penetrations of different orifices, as opposed to repeated penetrations of the	21
same orifice, tend to establish separate offenses,” we conclude that the separate	22
penetrations were sufficiently distinct to constitute two separate crimes and as such,	23

16
there was no double jeopardy violation. See Herron, 1991-NMSC-012, ¶ 15; see also	1
Wilson, 1993-NMCA-074, ¶ 9 (“[T]he acts of anal intercourse, sexual intercourse,	2
and at least one instance of fellatio constitute separate offenses under Herron.”).	3
V. 	Use of Prior Conviction for Habitual Offender Enhancement	4
{24} 	Defendant contends that the district court erred in denying his motion to	5
exclude his prior convictions for sentencing purposes. He argues that the evidence	6
used by the State of his conviction for burglary in 2010 was unreliable given his	7
mother’s testimony that the booking photo from the 2010 conviction was of	8
Defendant’s brother. We conclude there was substantial evidence to support the	9
district court’s ruling.	10
{25} 	“We review the sufficiency of the evidence presented in habitual offender	11
proceedings under a substantial evidence standard of review.” State v. Bailey, 2008-	12
NMCA-084, ¶ 23, 144 N.M. 279, 186 P.3d 908. Substantial evidence is defined as	13
“such relevant evidence as a reasonable mind might accept as adequate to support a	14
conclusion[.]” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 66	15
(internal quotation marks and citation omitted). The state must prove the following	16
elements to establish a defendant is a habitual offender: “(1) [the] defendant must be	17
the same person, (2) convicted of the prior felony, and (3) less than ten years have	18
passed since the defendant completed serving his or her sentence, probation or parole	19
for the conviction.” Bailey, 2008-NMCA-084, ¶ 23 (internal quotation marks and	20

17
citation 	omitted). 	The 	State 	has 	the 	burden 	to 	prove 	these 	elements 	by 	a	1
preponderance of the evidence. See State v. Simmons, 2006-NMSC-044, ¶ 10, 140	2
N.M. 311, 142 P.3d 899. Given Defendant’s argument, we focus our analysis on the	3
first element.	4
{26} 	In this case, the State presented evidence that during a plea colloquy for a	5
burglary that occurred in 2010, Defendant admitted he was the person convicted.	6
During the colloquy, Defendant also admitted having twin children, and the State	7
established at the sentencing hearing in this case that Defendant was the only one	8
among his siblings who had twin children. Further, Defendant’s former probation	9
officer testified that Defendant’s brother’s name was listed as an alias for Defendant.	10
While it is true that Defendant presented conflicting testimony, “[w]e view the	11
evidence in the light most favorable to the lower court’s decision, resolve all	12
conflicts and indulge all permissible inferences to uphold that decision, and	13
disregard all evidence and inferences to the contrary.” State v. Trujillo, 2009-	14
NMCA-128, ¶ 13, 147 N.M. 334, 222 P.3d 1040. Accordingly, we hold that there	15
was substantial evidence to support the district court’s finding that Defendant was	16
the person who was convicted of commercial burglary in 2010.	17

18
VI. 	Cumulative Error	1
{27} 	Lastly, Defendant argues that the alleged errors, taken together, constitute	2
cumulative error, which “requires reversal of a defendant’s conviction when the	3
cumulative impact of errors which occurred at trial was so prejudicial that the	4
defendant was deprived of a fair trial.” State v. Samora, 2013-NMSC-038, ¶ 28, 307	5
P.3d 328 (internal quotation marks and citation omitted). However, as Defendant	6
failed to show that the district court erred, we hold there was no cumulative error.	7
See id. (“Where there is no error to accumulate, there can be no cumulative error.”	8
(alteration, internal quotation marks, and citation omitted)).	9
CONCLUSION	10
{28} 	For the foregoing reasons, we affirm.	11
{29} 	IT IS SO ORDERED.	12
_________________________________	13
BRIANA H. ZAMORA, Judge	14
WE CONCUR:	15
_________________________________	16
LINDA M. VANZI, Judge	17
_________________________________	18
JACQUELINE R. MEDINA, Judge	19