State v. Atencio

The slip opinion is the first version of an opinion released by the Chief Clerk of the
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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: August 26, 2024

4 NO. S-1-SC-38869

5 STATE OF NEW MEXICO,

6 Plaintiff-Petitioner/Cross-Respondent,

7 v.

8 HOWARD ATENCIO,

9 Defendant-Respondent/Cross-Petitioner.

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Karen L Townsend, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 Counsel for Petitioner/Cross-Respondent

16 Bennett J. Baur, Chief Public Defender
17 Nina Lalevic, Assistant Appellate Defender
18 Santa Fe, NM

19 Counsel for Respondent/Cross-Petitioner

20 CONSOLIDATED WITH

21 NO. S-1-SC-39565
1 STATE OF NEW MEXICO,

2 Plaintiff-Petitioner,

3 v.

4 ZAENAN CHIARAMONTE,

5 Defendant-Respondent.

6 ORIGINAL PROCEEDING ON CERTIORARI
7 Courtney Bryn Weaks, District Judge

8 Hector H. Balderas, Attorney General
9 Maris Veidemanis, Assistant Attorney General
10 Santa Fe, NM

11 Counsel for Petitioner

12 Bennett J. Baur, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 Counsel for Respondent
1 OPINION

2 VARGAS, Justice.

3 {1} In its renowned decision, Miranda v. Arizona, the United States Supreme

4 Court held in relevant part that an individual must be informed prior to questioning

5 of the “right to the presence of an attorney.” 384 U.S. 436, 479 (1966). Because

6 Defendants in both cases before us, Defendant Atencio in State v. Atencio, 2021-

7 NMCA-061, 499 P.3d 635, and Defendant Chiaramonte in State v. Chiaramonte, A-

8 1-CA-40543, mem. op. (N.M. Ct. App. Aug. 22, 2022) (nonprecedential), raise the

9 same legal issue challenging the adequacy of the Miranda warnings, we consolidated

10 the appeals in our grant of certiorari. Rule 12-317(B) NMRA (consolidation); Rule

11 12-502 NMRA (certiorari jurisdiction). This consolidated case presents a matter of

12 first impression addressing whether the following warnings, in relevant part, satisfy

13 Miranda: Atencio was advised, “you have a right to a lawyer”; Chiaramonte was

14 advised, “You have the right to an attorney and have him/her present while you are

15 being questioned.” Guided by United States Supreme Court precedent, we hold that
1 both warnings satisfy Miranda.1 In so holding, we adopt State v. Serna, 2018-

2 NMCA-074, 429 P.3d 1283, because it is consistent with Miranda and addresses

3 many, though not all, of the issues before us. Accordingly, we reverse the Court of

4 Appeals’ holdings that Atencio and Chiaramonte were not adequately apprised of

5 their Miranda rights. Finally, Defendant Atencio challenges the sufficiency of the

6 evidence to support his convictions. For the reasons that follow, we affirm the Court

7 of Appeals on this issue.

8 I. BACKGROUND

9 {2} Because the consolidated cases present a question of law, we only briefly

10 summarize the underlying factual circumstances relevant to resolve that question.

11 We include additional facts as necessary in our analysis to address Defendant

12 Atencio’s sufficiency claim.

13 A. State v. Atencio

14 1. Facts

15 {3} The victim in Atencio (C.Y.) was a ten year old boy. In June of 2017, C.Y.

1
Both Defendant Atencio and Defendant Chiaramonte ask this Court to
consider broader protections provided by the New Mexico Constitution. In light of
Defendants’ concessions that the issue was not preserved, we decline to address it.
See Princeton Place v. N.M. Hum. Servs. Dep’t, 2022-NMSC-005, ¶ 23, 503 P.3d
319 (explaining that our consideration of unpreserved issues is discretionary).

2
1 moved with his mother (Mother) and three siblings into a trailer in Kirtland, New

2 Mexico. Atencio lived in the trailer next door to C.Y. Upon learning that Mother’s

3 former neighbor may have sexually abused C.Y., Father reported the alleged abuse

4 to law enforcement. Eventually, the case was assigned to Detective Babadi of the

5 San Juan County Sheriff’s Office, who identified Atencio as a suspect. In 2018,

6 Detective Babadi asked Atencio to come to the sheriff’s office to discuss an

7 unrelated incident reported by Atencio. After Detective Babadi and Atencio

8 discussed that incident, Detective Babadi told Atencio that he wanted to discuss the

9 present case.

10 {4} Prior to questioning, Detective Babadi read Atencio the following Miranda

11 rights from a form: “You have the right to remain silent; anything you say may be

12 used against you; you have a right to a lawyer; and if you cannot afford a lawyer one

13 will be provided free.” After reading Atencio his rights, Detective Babadi placed the

14 same form in front of Atencio on the table, asking him if he understood. Atencio

15 confirmed he understood. Detective Babadi proceeded to ask Atencio if he could

16 read out loud and confirmed that he could read and write. Detective Babadi told

17 Atencio he was not confirming this information to insult his intelligence, but to

18 ensure that Atencio knew his rights. In response, Atencio pulled the paper toward

19 himself and read out loud: “I understand these rights as given above. I waive them

3
1 and agree to answer questions put to me by the police.” Detective Babadi asked

2 Atencio if he understood what he just read; Atencio confirmed and signed the

3 advisement form.

4 {5} During the interview, Atencio admitted—among other things—that he saw

5 C.Y. every day during the four or five months that they lived next door to each other

6 in Kirtland and that he had touched C.Y.’s penis between twenty and thirty times.

7 2. Procedural history

8 {6} Defendant Atencio was charged as relevant here with one count of criminal

9 sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section 30-9-

10 11(D)(1) (2009), and twenty-five counts of criminal sexual contact of a minor in the

11 second degree (CSCM), contrary to NMSA 1978, Section 30-9-13(B)(1) (2003).

12 {7} Prior to trial, the State filed a motion to admit Detective Babadi’s interview

13 of Atencio, asserting that Atencio was “properly Mirandized and his statements were

14 knowingly, intelligently, and voluntarily made.” Defendant Atencio did not respond

15 and, after a hearing on the motion, “the district court ruled that it ‘[saw] no problems

16 at all with this Miranda waiver and any statements [were] going to be allowed [at

17 trial].’” Atencio, 2021-NMCA-061, ¶ 11. Detective Babadi’s interview of Atencio

18 was admitted at trial, and he was subsequently convicted of one count of CSPM and

19 twenty-one counts of CSCM. Defendant Atencio appealed to the Court of Appeals,

4
1 asserting: (1) the warnings he received were inadequate, (2) assistance of counsel

2 was ineffective 2 if the Court of Appeals determined that his challenge of the

3 adequacy of the Miranda warnings was not preserved, and (3) the evidence was

4 insufficient.

5 {8} The Court of Appeals first focused on Defendant Atencio’s objection at the

6 evidentiary hearing, concluding that the issue of the adequacy of the warnings was

7 not preserved because his objection below was “focused squarely on whether his

8 Miranda waiver was knowing, intelligent, and voluntary—not whether his Miranda

9 warnings were in fact adequate.” Id. ¶¶ 14, 16. As a result, the Court examined the

10 adequacy of the warnings under the fundamental error standard. Id. ¶ 34. Ultimately,

11 the Court of Appeals held that the warnings given to Atencio were defective

12 “because they did not clearly convey to Atencio that he had a right to presence of

13 counsel prior to, and during, his interview.” Id. ¶ 30. The Court of Appeals explained

14 that its holding “does not impose a requirement that Miranda warnings must include

15 specific language that an individual subject to custodial interrogation has the right

2
The Atencio Court of Appeals did not address Defendant Atencio’s
ineffective assistance of counsel claim “in light of [its] holding regarding the
admission of [Atencio]’s statements,” Atencio, 2021-NMCA-061, ¶ 3, and
Defendant Atencio does not challenge that determination or otherwise raise the issue
before this Court.

5
1 to counsel before and during questioning.” Id. ¶ 35. Rather, it “simply confirm[s]

2 that an individual subject to custodial interrogation must be informed that he has a

3 constitutional right, among others, to the ‘presence of an attorney, either retained or

4 appointed’ before and during questioning.” Id. The Court of Appeals’ explanation

5 of its holding is unclear because it sows confusion as to what precisely is required

6 of law enforcement moving forward. This confusion is highlighted by Defendant

7 Atencio’s view that the Court “held for the first time that police must explicitly warn

8 suspects of their right to have counsel present prior to and during questioning”

9 (emphasis added), which is at odds with the Court’s own language explaining that it

10 did “not impose” such a requirement, thus warranting our review.

11 {9} Finally, the Court of Appeals examined the sufficiency of the evidence. It held

12 that sufficient evidence supported each of Defendant Atencio’s convictions, Atencio,

13 2021-NMCA-061, ¶¶ 37, 49-51, relying upon this Court’s recent analysis in State v.

14 Lente, 2019-NMSC-020, 453 P.3d 416.

15 {10} The State appealed to this Court, contending the Court of Appeals erred in

16 concluding that the Miranda warning given to Atencio was inadequate. Defendant

17 Atencio filed a cross-appeal challenging the sufficiency of the evidence. We granted

18 certiorari.

19 B. State v. Chiaramonte

6
1 1. Facts

2 {11} Victim (ADLP) was an eleven year old girl who was sexually abused by

3 Chiaramonte when Chiaramonte was nearly twenty years old. Eventually, the abuse

4 was reported, and a detective interviewed Chiaramonte. Prior to conducting the

5 interview, the detective read Chiaramonte the following Miranda rights:

6 You have the right to remain silent. Anything you say can and will be
7 used against you in a court of law. You have the right to an attorney
8 and have him[/her] present . . . while you are being questioned. If you
9 cannot afford . . . an attorney, one will be appointed to you by the state
10 of New Mexico free of charge.

11 {12} Chiaramonte initialed and signed an advisement containing functionally the

12 same, above-quoted language.3 The “Advisement of Rights” form stated, “Before

13 we ask you any questions, you must understand your constitutional rights.” [Id.]

14 Directly below that statement followed a series of rights with a space for

15 Chiaramonte to initial each. The first four lines informed Chiaramonte of his

3
Although Defendant Chiaramonte refers to the oral and written advisements
interchangeably, and the State, district court, and Court of Appeals indicate that they
are the same, we note there are a couple differences that do not impact the meaning
of the warnings, including pronoun usage “him” versus “him/her” and what appear
to be two occurrences of inadvertently duplicative text. See Serna, 2018-NMCA-
074, ¶ 15 (“If a defendant has been told the substance of his constitutional rights, it
is not fatal if irrelevant words or words with no independent substance are omitted.”
(internal quotation marks and citation omitted)). For consistency, we refer to the
language contained in the written warning throughout the remainder of this opinion.

7
1 Miranda rights as outlined in the above-quoted language. [Id.] Additional lines

2 provided further explanation to Chiaramonte ensuring that he understood that “[a]t

3 any time you can exercise your rights and stop answering questions,” that “I have

4 been advised of and understand my Constitutional Rights,” and that “I have read and

5 understand my Constitutional Rights.”

6 {13} Chiaramonte initialed in the space next to each of these lines, signing and

7 dating directly below. The form contained two additional paragraphs labeled

8 “Waiver of Rights,” beneath which he again signed his name and entered the date.

9 The first paragraph stated, “I have read this statement of my rights and understand

10 what my Constitutional Rights are.” The second paragraph provided, “I am willing

11 to make a statement and answer questions. I understand and know what I am doing.

12 No promises or threats have been made against me and no pressure or coercion of

13 any kind has been used against me.” In total, Chiaramonte initialed nine times,

14 indicating he understood his rights and was willing to waive those rights while

15 speaking to the detective.

16 {14} During the interview, Chiaramonte admitted that he sexually abused ADLP.

17 2. Procedural history

18 {15} Defendant Chiaramonte was charged in relevant part with six counts of

19 CSPM. Defendant Chiaramonte filed a motion to suppress, asserting that the

8
1 Miranda warnings were inadequate because they did not convey that he had the right

2 to the presence of counsel prior to questioning. The district court granted Defendant

3 Chiaramonte’s motion to suppress, explaining that the Miranda warnings were

4 insufficient under Miranda, 384 U.S. 436, and Serna, 2018-NMCA-074. The district

5 court reasoned that the warnings “did not reasonabl[y] convey, explicitly or

6 implicitly, Mr. Chiaramonte’s right to counsel . . . [or] right to consult with counsel

7 prior to question[ing].” The State filed a motion for reconsideration, which the

8 district court denied. The State appealed to the Court of Appeals, arguing that the

9 district court erred in granting Defendant Chiaramonte’s motion to suppress.

10 {16} The Court of Appeals applied Serna, holding that the warning given to

11 Chiaramonte was inadequate because it “did not convey that [Chiaramonte] had the

12 right to counsel before being questioned.” Chiaramonte, No. A-1-CA-40543, ¶ 8. It

13 reasoned that the warning (“‘You have the right to an attorney and have him[/her]

14 present with you while you are being questioned.’”) did not convey Chiaramonte’s

15 right to counsel before being questioned because “[t]he word ‘while’ modified the

16 entire phrase, ‘You have the right to an attorney and have him present with you.’”

17 Id. This modification, the Court of Appeals explained, improperly “restrict[ed] that

18 right to during the time [Chiaramonte was] being questioned by officers.” Id.

19 (emphasis added).

9
1 {17} The State appealed, presenting one question for this Court’s consideration:

2 whether the Court of Appeals erred in its conclusion that the Miranda warning given

3 to Chiaramonte “was inadequate because it did not specify that he had the right to a

4 lawyer before questioning.”

5 II. DISCUSSION

6 A. Miranda Warnings

7 {18} The State raises the same contention in both appeals: that the Miranda

8 warnings were adequate. We review de novo this legal question, whether Atencio4

9 and Chiaramonte were adequately advised of their rights under Miranda. See State

10 v. Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024 (“The ultimate

4
While we agree that Defendant Atencio failed to preserve the issue, our
jurisprudence suggests that plain error is the appropriate standard of review rather
than fundamental error as applied by the Court of Appeals because the Court of
Appeals and Defendant Atencio frame the error as an improper admission of
evidence by the district court. See State v. Montoya, 2015-NMSC-010, ¶ 46, 345
P.3d 1056 (explaining when evidentiary questions, such as the admission of
testimony, may be reviewed for plain error). This distinction does not impact our
analysis because we ultimately conclude the Atencio district court did not err, let
alone commit plain or fundamental error; therefore, our analysis does not proceed
beyond the first step, which is the same under either standard of review. See State v.
Silva, 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192 (explaining that the
“first step in reviewing for fundamental error is to determine whether an error
occurred”), holding modified on other grounds by State v. Guerra, 2012-NMSC-
027, ¶ 11, 284 P.3d 1076; see also Michael H. Graham, Winning Evidence
Arguments § 103:9 Rule 103(e): plain error, December 2023, at 11 (“The first step
in a plain error analysis is to determine whether error occurred.”).

10
1 determination of whether a valid waiver of Miranda rights has occurred, however,

2 is a question of law which we review de novo.” (text only) 5 (citation omitted)); see

3 also State v. Verdugo, 2007-NMCA-095, ¶ 12, 142 N.M. 267, 164 P.3d 966 (noting

4 that the adequacy of Miranda warnings is a question of law subject to de novo

5 review).

6 1. Federal Miranda precedent

7 {19} In pertinent part, Miranda requires a person “subjected to questioning” to be

8 advised simply “that he has the right to the presence of an attorney.” 384 U.S. at

9 478-79. Defendants in this case do not dispute Miranda’s holding. To be sure,

10 Miranda clarified that the presence of an attorney includes the right to consult with

11 an attorney before and during questioning. 384 U.S. at 470 (“[T]he need for counsel

12 to protect the Fifth Amendment privilege comprehends not merely a right to consult

13 with counsel prior to questioning, but also to have counsel present during any

14 questioning if the [suspect] so desires.”). But Miranda makes clear there is no

15 requirement that a suspect receive a warning exactly to that effect. Instead, by way

16 of example, Miranda explained that the relevant portion of the warning given by the

The “(text only)” parenthetical indicates the omission of nonessential
5

punctuation⸺including internal quotation marks, ellipses, and brackets⸺that are
present in the text of the quoted source, leaving the quoted text otherwise unchanged.

11
1 FBI at that time—“‘that the person has . . . a right to counsel’”—was “consistent

2 with the procedure . . . delineate[d]” by the United States Supreme Court in Miranda.

3 Id. at 484 (citation omitted). Notably, those warnings do not expressly advise the

4 accused that counsel may be present during, or even before, interrogation. In other

5 words, under Miranda, the right to have counsel present prior to as well as during

6 questioning is adequately conveyed simply by informing a suspect of the right to

7 counsel. Accord 384 U.S. at 500 n.3 (Clark, J., dissenting) (“The [FBI’s] offer of

8 counsel is articulated only as ‘a right to counsel’; nothing is said about a right to

9 have counsel present at the custodial interrogation.”); see also United States v.

10 Clayton, 937 F.3d 630, 639 (6th Cir. 2019) (“Miranda, it bears reminding, merely

11 required that a [suspect] be informed of his right to ‘the presence of an attorney.’ . . .

12 But Miranda did not require a warning exactly to that effect. . . . And those warnings,

13 while advising of the right to counsel, conspicuously did not state expressly that

14 counsel may be present during interrogation.” (citation omitted)).

15 {20} After Miranda was decided in 1966, the United States Supreme Court

16 delivered three opinions addressing the adequacy of Miranda warnings, never

17 departing from that simple, generic warning. The first case in which it revisited

18 Miranda in this context is California v. Prysock, 453 U.S. 355 (1981), where at a

19 police interrogation the suspect was advised, “‘You have the right to talk to a lawyer

12
1 before you are questioned, have him present with you while you are being

2 questioned, and all during the questioning.’” Id. at 356. The United States Supreme

3 Court held that the warnings “fully conveyed [the suspect’s] rights” under Miranda.

4 Id. at 361. It explained that—in contrast with other cases where the right to counsel

5 was linked to a time in the future—“nothing in the warnings . . . suggested any

6 limitation on the right to the presence of appointed counsel different from the clearly

7 conveyed rights to a lawyer in general.” Id. at 360-61.

8 {21} In Duckworth v. Eagan, 492 U.S. 195 (1989), officers informed the suspect,

9 in relevant part, as follows: “‘You have a right to talk to a lawyer for advice before

10 we ask you any questions, and to have him with you during questioning.’” Id. at 198

11 (emphasis omitted). Officers also advised the suspect as follows: “‘We have no way

12 of giving you a lawyer, but one will be appointed for you, if you wish, if and when

13 you go to court.’” Id. (emphasis omitted). The Seventh Circuit in Duckworth

14 determined that the “‘if and when you go to court’” portion of the warning rendered

15 the entire warning defective because it denied the indigent suspect “‘a clear and

16 unequivocal warning of the right to appointed counsel before any interrogation’” and

17 linked that right “‘with a future event.’” Id. at 198 (citation omitted). The United

18 States Supreme Court reversed, holding that the warnings, “in their totality,” were

19 sufficient under Miranda. Id. at 205. It reasoned that the advice “‘if and when you

13
1 go to court’” simply anticipated the question about “when [the suspect] will obtain

2 counsel” that is commonly asked after a suspect receives Miranda warnings. Id. at

3 204.

4 {22} Most recently and of particular relevance to the consolidated case before us,

5 in Florida v. Powell, 559 U.S. 50 (2010), officers read a form to an arrested suspect

6 advising in relevant part of the “‘right to talk to a lawyer before answering any of

7 our questions.’” Id. at 54. The advisement also included what the Powell Court

8 referred to as a “catchall warning,” which stated, “‘[Y]ou have the right to use any

9 of these rights at any time you want during this interview.’” Id. at 55. Once again,

10 the United States Supreme Court held that the warnings satisfied Miranda because

11 the officers “did not ‘entirely omit’ any information Miranda required them to

12 impart.” Powell, 559 U.S. at 62 (brackets and citation omitted). The Powell Court

13 explained, “The first statement communicated that [the suspect] could consult with

14 a lawyer before answering any particular question, and the second statement

15 confirmed that he could exercise that right while the interrogation was underway.”

16 Id. Read together, “the two warnings reasonably conveyed [the suspect’s] right to

17 have an attorney present, not only at the outset of interrogation, but at all times.” Id.

18 {23} In reaching its holding, the Powell Court first articulated the question that had

19 been certified to the Florida Supreme Court: “‘Does the failure to provide express

14
1 advice of the right to the presence of counsel during questioning’” render the

2 Miranda warnings inadequate? Id. at 55 (emphasis added) (citation omitted). The

3 United States Supreme Court was not persuaded by the Florida Supreme Court’s

4 conclusion that the warning was misleading because “the temporal language—that

5 [the suspect] could ‘talk to a lawyer before answering any of [the officers’]

6 questions’—suggested [the suspect] could consult with an attorney only before the

7 interrogation started.” Id. at 63 (second alteration in original). Instead, the Powell

8 Court explained, “In context, . . . the term ‘before’ merely conveyed when [the

9 suspect’s] right to an attorney became effective—namely, before he answered any

10 questions at all. Nothing in the words used indicated that counsel’s presence would

11 be restricted after the questioning commenced.” Id. Therefore, even though the

12 warning given to the suspect in Powell did not expressly inform the suspect of the

13 right to the presence of counsel at all, let alone during questioning, the Powell Court

14 held that the warning was sufficient, reasoning as follows:

15 To reach the opposite conclusion, i.e., that the attorney would not be
16 present throughout the interrogation, the suspect would have to imagine
17 an unlikely scenario: To consult counsel, he would be obliged to exit
18 and reenter the interrogation room between each query. A reasonable
19 suspect in a custodial setting who has just been read his rights, we
20 believe, would not come to the counterintuitive conclusion that he is
21 obligated, or allowed, to hop in and out of the holding area to seek his
22 attorney’s advice.

23 Id. at 62.

15
1 {24} Further, the Powell Court compared the warnings given to the suspect in that

2 case with the warnings used by federal law enforcement agencies in general, and

3 more specifically, the FBI. Id. at 64. It explained that the warnings given by federal

4 agencies “explicitly advise suspects of the full contours of each Miranda right,

5 including the right to the presence of counsel during questioning.” Id. (text only)

6 (citation omitted). As to the warnings used by the FBI, the Powell Court labeled

7 them “exemplary.” Id. Those warnings state in pertinent part, “‘You have the right

8 to talk to a lawyer for advice before we ask you any questions. You have the right to

9 have a lawyer with you during questioning.’” Id. The Powell Court reasoned that,

10 while such advice is “admirably informative,” it is not “necessary to meet Miranda’s

11 requirements. Different words were used in the advice [the suspect] received, but

12 they communicated the same essential message.” Id.

13 {25} In other words, the warnings given by federal agencies and the FBI at the time

14 of the Court’s decision in Powell, which explicitly advised suspects of the right to

15 the presence of counsel during interrogation, conveyed the same essential message

16 as the warning given to the suspect in Powell, which did not explicitly advise him of

17 the right to the presence of counsel during interrogation. The United States Supreme

18 Court’s rationale in Powell reaffirms what that Court has repeatedly conveyed

19 regarding the required Miranda warnings: “In determining whether police warnings

16
1 were satisfactory, reviewing courts are not required to ‘examine [them] as if

2 construing a will or defining the terms of an easement. The inquiry is simply whether

3 the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda.”

4 Id. at 51 (alterations in original) (quoting Duckworth, 492 U.S. at 203 (internal

5 quotation marks omitted)).

6 2. State v. Serna

7 {26} Because the State, Defendants, and the Court of Appeals in both cases heavily

8 rely upon Serna, 2018-NMCA-074, we discuss it in some detail before concluding

9 that Serna is consistent with Miranda, thereby adopting it to apply to the

10 consolidated case before us today.

11 {27} In Serna, officers advised the suspect that he had, in relevant part, “‘the right

12 to an attorney during any and all questionings.’” Id. ¶ 3. The Serna Court of Appeals

13 addressed whether “Miranda require[s] that a person subject to custodial

14 interrogation be warned of that person’s right to have counsel present prior to

15 questioning.” Id. ¶ 17. The Serna Court then answered this question in the

16 affirmative: “It is clear from both Miranda and subsequent decisions by the United

17 States Supreme Court that there is a right to have and consult with counsel prior to

18 questioning.” Id. ¶ 18. Consistent with Miranda, however, this right does not need

19 to be explicitly conveyed to the suspect. Id. ¶ 21 (“We conclude that Miranda

17
1 requires that a person be warned, at least implicitly, that they have a right to counsel

2 prior to questioning.”). Instead, the Serna Court explained that “one can reasonably

3 infer from an advisement referring to the right to the presence of counsel that the

4 right applies both before and during interrogation.” Id. ¶ 19.

5 {28} The State in Serna argued that it and the Supreme Court of New Mexico, as

6 well as the United States Supreme Court, “have all upheld on numerous occasions

7 warnings that simply apprised the suspect of a right to the presence of counsel, which

8 is a verbatim recitation of what Miranda noted was required.” Id. ¶ 19. The Court of

9 Appeals responded that such a warning, though not directly at issue in Serna, is

10 likely sufficient because it “contains no limitation on the right to counsel.” Id. It

11 explained, “The fact that courts have affirmed the use of the term ‘presence of

12 counsel’ does not mean that a suspect need not be advised of his right to counsel

13 prior to questioning . . . but rather that such language adequately conveys that right.”

14 Id. The Serna Court proceeded to address the warning given in that case, “‘the right

15 to an attorney during any and all questionings,’” id. ¶ 3, concluding that it was

16 inadequate because it “placed a misleading temporal limitation on the full right to

17 counsel under Miranda,” id. ¶ 25. In reaching its conclusion, the Serna Court

18 “simply reaffirm[ed] the traditional Miranda requirement that a suspect be apprised

19 of the full right to counsel without limitation.” Id.

18
1 {29} Thus, Serna is consistent with Miranda and its progeny because, unlike

2 Prysock, Duckworth, and Powell, where the suspect’s advisement included—either

3 explicitly or implicitly—his right to a lawyer before questioning, the warning given

4 to the suspect in Serna only informed the suspect of “‘the right to an attorney during

5 any and all questionings.’” Id. ¶ 3 (emphasis added). This warning was defective

6 because it failed to convey—explicitly or implicitly—that the suspect had the right

7 to an attorney before questioning. Id. ¶ 24. Therefore, unlike Powell, the officers in

8 Serna “entirely omit[ted] . . . information Miranda required them to impart.” Powell,

9 559 U.S. at 62.

10 {30} Because the reasoning in Serna is sound, consistent with United States

11 Supreme Court precedent, and none of the parties before the Court argue that Serna

12 is incorrect, we adopt Serna.

13 3. Atencio received adequate Miranda warnings

14 {31} Atencio was advised that he had the “‘right to a lawyer.’” We first examine

15 this warning in the context of United States Supreme Court precedent prior to

16 assessing the warning under Serna. Even though Defendant Atencio acknowledges

17 Miranda only requires that the accused be advised of the “‘right to the presence of

18 an attorney’” (quoting Miranda, 384 U.S. at 479), he contends that the warning he

19 received was too general, thereby failing to explicitly inform him of his right to speak

19
1 to an attorney before questioning as well as the right to have such attorney present

2 during questioning. Defendant Atencio first outlines Prysock and Duckworth,

3 concluding that the United States Supreme Court in both cases “affirmed that the

4 right to an attorney before and during questioning is required information in the

5 advisement” (emphasis added).

6 {32} However, federal precedent does not support Defendant Atencio’s position

7 that such precise language must be included in the advisement. In Prysock, the

8 United States Supreme Court explained that “Miranda itself indicated that no

9 talismanic incantation was required to satisfy its strictures.” Prysock, 453 U.S. at

10 359. To support its explanation that Miranda does not support a rigid or “precise

11 formulation” in “the form of the required warnings,” id., the Prysock Court relied

12 upon United States. v. Lamia, 429 F.2d 373, 375-76 (2d Cir. 1970). In Lamia, the

13 suspect was advised simply of the “‘right to an attorney.’” 429 F.2d at 376. The

14 Lamia Court held that the warning was sufficient because the suspect was informed

15 “without qualification that he had the right to an attorney.” Id. at 377. Notably, the

16 warning Atencio received (“a right to a lawyer”) was nearly identical to the warning

17 given to the suspect in Lamia, 429 F.2d at 376 (“‘the right to an attorney’”), and the

18 FBI warning endorsed in Miranda, 384 U.S. at 484 (“‘a right to counsel’”).

19 {33} Defendant Atencio next refers this Court to Powell, concluding that no United

20
1 States Supreme Court precedent has “found that a warning devoid of the right to the

2 presence of counsel was sufficient” and that each case before the United States

3 Supreme Court “mentioned the requirement that the suspect be informed of the right

4 to the presence of counsel.” In Defendant Atencio’s view, this supports his argument

5 that the warning he received, “a right to a lawyer,” was inadequate because it did not

6 include the word “presence.” The plain language of Powell does not support

7 Defendant Atencio’s position. As we explained in detail previously herein, the

8 warning given to the suspect in Powell did not expressly inform the suspect of the

9 right to the presence of counsel at all, let alone during questioning, and yet the

10 Powell Court held that the warning was sufficient because “[a] reasonable suspect

11 in a custodial setting who has just been read his rights” would have understood his

12 right to the presence of an attorney throughout the interrogation. 559 U.S. at 62; see

13 Clayton, 937 F.3d at 639-40 (relying upon Powell in concluding that the warning

14 given in that case was sufficient even though it did not “expressly” inform the

15 suspect of the right to counsel during questioning because “[i]t would be

16 ‘counterintuitive’ to think that both rights kicked in before questioning but

17 terminated the moment the officer started the interrogation”); see also Carter v.

18 People, 2017 CO 59M, ¶ 14, 398 P.3d 124, as modified on denial of reh’g (July 31,

19 2017) (concluding that the warning “‘You have the right to have an attorney’” was

21
1 sufficient because “the specific advisement of the [suspect]’s right to counsel . . . did

2 not include any temporal limitation that might even colorably be misunderstood to

3 restrict the exercise of that right relative to interrogation by the police”).

4 {34} Similar to Defendant Atencio’s view, Justice Stevens, in his dissent, deemed

5 the warning given in Powell to be insufficient and asserted that Miranda required a

6 suspect to be informed of the “separate and distinct right ‘to have counsel present

7 during any questioning.’” Powell, 559 U.S. at 75-76 (Stevens, J., dissenting)

8 (quoting Miranda, 384 U.S. at 470). The majority disagreed, responding, “We find

9 the warning in this case adequate, however, only because it communicated just what

10 Miranda prescribed.” Id. 559 U.S. at 62 n.5. Thus, the Powell Court approved of the

11 Miranda warning even though the warning did not explicitly advise the suspect in

12 that case of the right to the presence of an attorney. Powell, 559 U.S. at 62.

13 {35} Like the majority in Powell, we hold that the warning given to Atencio was

14 sufficient because it conveyed what Miranda required. The warning did not

15 “‘entirely omit’ any information Miranda required,” consistent with Powell, 559

16 U.S. at 62 (brackets and citation omitted). Nor did it improperly suggest any

17 temporal limitation by linking Atencio’s right to counsel “to a future point in time

18 after police interrogation,” consistent with Prysock, 453 U.S. at 360. And even if

19 this Court were inclined to agree with Defendants, we are bound by federal

22
1 precedent. See Fare v. Michael C., 442 U.S. 707, 717 (1979) (“[I]t is clear that ‘a

2 State may not impose . . . greater restrictions as a matter of federal constitutional

3 law when [the United States Supreme] Court specifically refrains from imposing

4 them.’” (omission in original) (citation omitted)).

5 {36} Pursuing a different line of argument, Defendant Atencio contends that the

6 warnings he received were inadequate when placed in the context of the events

7 surrounding his questioning. See State v. Salazar, 1997-NMSC-044, ¶ 61, 123 N.M.

8 778, 945 P.2d 996 (explaining that it is proper to consider “events surrounding the

9 questioning” in determining whether the warnings were adequate under Miranda).

10 In Defendant Atencio’s view, Detective Babadi demanded that he answer his

11 questions, instead of asking, and the warnings, in addition to the demand, “could

12 have easily led to Atencio not understanding that he could consult with counsel

13 before the questioning began.” Prior to questioning, Detective Babadi said, “I want

14 to hear your side of the story . . . you need to answer me some questions, OK?”

15 Atencio responded, “OK.” The detective proceeded to read Atencio his rights,

16 including, as relevant here, his “right to a lawyer.” After reading Atencio his rights,

17 Detective Babadi placed the same form in front of Atencio on the table, asking him

18 if he understood. Atencio confirmed he understood. Detective Babadi proceeded to

19 ask Atencio if he could read out loud and confirmed that he could read and write.

23
1 Detective Babadi explained he was not confirming such information to insult

2 Atencio’s intelligence but to ensure he knew his rights. Then, Atencio read out loud:

3 “I understand these rights as given above. I waive them and agree to answer

4 questions put to me by the police.” Detective Babadi proceeded to ask Atencio if he

5 understood what he just read; Atencio confirmed and signed the advisement form.

6 {37} Examining the warnings in the context of these surrounding events, we are

7 unpersuaded that Detective Babadi engaged in any conduct that would reasonably

8 lead Atencio to believe that he could not consult with a lawyer before questioning—

9 and Defendant Atencio does not refer us to any precedent suggesting otherwise, so

10 we assume none exists. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031

11 (providing that where no authority is cited we may assume none exists). Instead, it

12 is clear Detective Babadi took care to ensure that Atencio understood his rights.

13 Atencio himself read out loud and subsequently signed that he understood and

14 agreed to waive his rights, one of them being his right to a lawyer, prior to answering

15 any questions from the detective.

16 {38} We now consider Defendant Atencio’s argument under Serna. As previously

17 discussed, the Atencio Court of Appeals first focused on the portion of Serna

18 explaining that Miranda warnings include the right to consult with a lawyer prior to

19 interrogation. Atencio, 2021-NMCA-061, ¶¶ 31-32. The Atencio Court proceeded to

24
1 rely upon Serna to conclude that, like Serna, the warning given to Atencio was

2 inadequate because “‘the balance of the warnings contain[ed] no before questioning

3 language—or any other language, for that matter—by which we could infer that the

4 full right to counsel was adequately conveyed.’” Id. ¶ 34 (quoting Serna, 2018-

5 NMCA-074, ¶ 24 (emphasis added)).

6 {39} The Court of Appeals misapplied Serna in Defendant Atencio’s case by

7 failing to recognize that the fundamental issue with the Miranda warning in Serna

8 was the inclusion of misleading temporal language, “‘You have the right to an

9 attorney during any and all questionings.’” Serna, 2018-NMCA-074, ¶ 3 (emphasis

10 added). Serna was careful to highlight that the temporal language was “pivotal,”

11 explaining that the word “‘during’ modifies the phrase ‘you have a right to an

12 attorney’ and restricts that right to the duration of any questioning by law

13 enforcement.” Id. ¶ 23. Serna concluded, “[B]y implying that the right to counsel

14 would be effective only during the interrogation, the warnings given by [the officer

15 to the suspect] placed a misleading temporal limitation on the full right to counsel

16 under Miranda.” Id. ¶ 25.

17 {40} Nothing in Serna, however, suggests that the inadequacy of the Miranda

18 warning in that case stemmed from anything other than the insertion of misleading

19 temporal language implying that the suspect did not have the right to counsel prior

25
1 to interrogation. Rather, the Serna Court explained that a general Miranda warning

2 implies a right to counsel prior to questioning. Id. ¶¶ 21-22. “That is, one can

3 reasonably infer from an advisement referring to the right to the presence of counsel

4 that the right applies both before and during interrogation.” Id. ¶ 19 (emphasis

5 added). Stated in slightly different terms, a Miranda warning without any improper

6 temporal limitation (like the one given to Atencio, for example) “adequately

7 conveys” that a suspect has the right “to the presence of counsel . . . before and

8 during interrogation.” Id.; accord Prysock, 453 U.S. at 360-61 (stating that “nothing

9 in the warnings given [to the suspect] suggested any limitation on the right to the

10 presence of appointed counsel different from the clearly conveyed rights to a lawyer

11 in general.” (emphasis added)).

12 {41} In sum, the Miranda warning given to Atencio informed him of his “right to

13 a lawyer.” Under Serna, the warning given to Atencio was adequate because “one

14 can reasonably infer” from an advisement referring to “the right to a lawyer” the

15 same as “one can reasonably infer from an advisement referring to the right to the

16 presence of counsel that the right applies both before and during interrogation.”

17 Serna, 2018-NMCA-074, ¶ 19 (emphasis added). Therefore, the advisement of the

18 right to an attorney, like the advisement of “the right to remain silent”—which

19 Defendant Atencio does not argue is misleading or that it was inadequate even

26
1 though it did not explicitly inform him of his right to remain silent before as well as

2 during questioning—confirms that Atencio received adequate warnings under

3 Miranda. See, e.g., Carter, 2017 CO 59M, ¶ 14 (relying upon the general nature of

4 the warning, “‘the right to remain silent,’” to support that the warning the suspect

5 received in that case, “‘You have the right to have an attorney,’” satisfied Miranda).

6 4. Chiaramonte received adequate Miranda warnings

7 {42} Chiaramonte was advised that he had “the right to an attorney and have

8 him/her present while you are being questioned.” Defendant Chiaramonte contends

9 that this warning was inadequate because it placed an improper temporal limitation

10 on his right to counsel, suggesting that the right did not apply before questioning. As

11 with Defendant Atencio’s case, we first examine the warning given to Chiaramonte

12 in the context of United States Supreme Court precedent prior to assessing the

13 warning under Serna.

14 {43} We begin our discussion by highlighting that the warning given to

15 Chiaramonte is strikingly similar to the warning Miranda approved of, informing a

16 suspect of “the right to consult with a lawyer and to have the lawyer with him during

17 interrogation.” Miranda, 384 U.S. at 471. And as previously discussed, the actual

18 form that the warning can take is flexible; the Miranda Court also approved of

19 warnings advising a suspect of “the right to the presence of an attorney,” id. at 479,

27
1 and, in the case of the FBI warnings at that time, of “‘a right to counsel,’” id. at 484.

2 Since Miranda, the United States Supreme Court has taken every opportunity to

3 reaffirm its flexible approach to evaluating the form of a Miranda warning. See, e.g.,

4 Prysock, 453 U.S. at 359 (“Miranda itself indicated that no talismanic incantation

5 was required.”); Duckworth 492 U.S. at 203 (“Miranda warnings are not themselves

6 rights protected by the Constitution but are instead measures to insure that the right

7 against compulsory self-incrimination is protected. Reviewing courts therefore need

8 not examine Miranda warnings as if construing a will or defining the terms of an

9 easement.” (text only) (citation omitted)); Powell, 559 U.S. at 60 (“The four

10 warnings Miranda requires are invariable, but this Court has not dictated the words

11 in which the essential information must be conveyed.”).

12 {44} Contrary to this flexible approach, Defendant Chiaramonte raises the same

13 argument Defendant Atencio raised, relying upon Prysock and Duckworth to

14 establish that, in his view, both cases “affirmed that the right to an attorney before

15 and during questioning must be included in the advisement” (emphasis added). We

16 disagree. As previously discussed in detail, Prysock explained that Miranda neither

17 requires talismanic language nor does it support a rigid or “precise formulation” in

18 “the form of the required warnings.” Prysock, 453 U.S. at 359. And Prysock, id., in

19 its reliance on Lamia where the warning given simply advised the suspect of “the

28
1 right to an attorney,” Lamia, 429 F.2d at 375-77, is incompatible with Defendant

2 Chiaramonte’s assertion that the warning must expressly state that a person has the

3 right to an attorney before and during questioning.

4 {45} Contrary to Defendant Chiaramonte’s formulaic assertions, the United States

5 Supreme Court in Duckworth once again disapproved of a rigid approach to the form

6 of the warning. See 492 U.S. at 203 (“The inquiry is simply whether the warnings

7 reasonably convey to a suspect his rights as required by Miranda.” (brackets and

8 internal quotation marks omitted) (quoting Prysock, 453 U.S. at 361)). Adhering to

9 the appropriate inquiry established in Duckworth, the warning given to Chiaramonte

10 that he had “the right to an attorney and have him/her present while [he was] being

11 questioned” (emphasis added) reasonably conveyed his rights under Miranda. The

12 first clause, “You have the right to an attorney,” provided the general right, and the

13 second clause, advising Chiaramonte that his attorney could be “present while [he

14 was] being questioned,” simply confirmed that his attorney could be present during

15 questioning.

16 {46} Defendant Chiaramonte next relies upon Powell, contending that Powell,

17 Duckworth, and Prysock all “affirmed the requirement that the suspect be informed

18 of the right to the presence of counsel.” We agree that the portion of Powell

19 Defendant Chiaramonte refers us to, 559 U.S. at 59, reiterates that Miranda’s third

29
1 warning includes “‘the right to the presence of an attorney.’” Defendant

2 Chiaramonte is incorrect, however, in his contention that Powell requires that a

3 “suspect be informed of the right to the presence of counsel” because, once more,

4 the suspect in Powell was never expressly informed of the right to the “presence” of

5 counsel. Instead, the suspect in Powell was only informed of the “‘right to talk to a

6 lawyer before answering any of our questions,’” id. at 54, and that “‘[y]ou have the

7 right to use any of these rights at any time you want during this interview.’” Id. at

8 55 (alteration in original). Despite the absence of any reference in the warning to the

9 presence of counsel, the Powell Court held that the warning was sufficient based

10 upon what it reasonably conveyed to the suspect. Id. at 62.

11 {47} We therefore fail to see how the warning given to Chiaramonte⸺which

12 informed him, “Before we ask you any questions, . . . [y]ou have the right to an

13 attorney and have him/her present while you are being questioned,” and which

14 included the catchall warning, “[a]t any time you can exercise your rights and stop

15 answering questions”⸺could be insufficient when the sufficient warning given in

16 Powell only informed the suspect of the “‘right to talk to a lawyer before answering

17 any of our questions,’” id. at 54, and included a catchall warning that “‘[y]ou have

18 the right to use any of these rights at any time you want during this interview.’” Id.

19 at 55. Contrary to Defendant Chiaramonte’s position, the Powell Court explained,

30
1 “The first statement communicated that [the suspect] could consult with a lawyer

2 before answering any particular question, and the second statement confirmed that

3 he could exercise that right while the interrogation was underway.” Id. at 62. When

4 read “[i]n combination, the two warnings reasonably conveyed [the suspect’s] right

5 to have an attorney present, not only at the outset of interrogation, but at all times.”

6 Id. We reach the same conclusion here. The first clause of the warning contained no

7 temporal limitation, communicating that Chiaramonte had “the right to an attorney,”

8 and the second clause, “have him/her present while you are being questioned,” in

9 the words of Powell, “confirmed that he could exercise that right while the

10 interrogation was underway.” Id. at 62. When read together, as Powell dictates, the

11 warning reasonably conveyed his right to the presence of an attorney “at all times.”

12 Id. To conclude that the warning given to Chiaramonte did not convey the right to

13 the presence of counsel would result in the same “counterintuitive conclusion”

14 rejected in Powell itself. Id. at 62-63 (rejecting the conclusion that the warning failed

15 to communicate the right to the presence of an attorney even though it was not

16 explicitly stated because a “reasonable suspect in a custodial setting who has just

17 been read his rights, we believe, would not come to the counterintuitive conclusion

18 that he is obligated, or allowed, to hop in and out of the holding area to seek his

19 attorney’s advice”).

31
1 {48} The State holds out State v. Nave, 821 N.W.2d 723, 737 (Neb. 2012), and

2 People v. Snaer, 758 F.2d 1341, 1343 (9th Cir. 1985), as two cases where the court

3 approved of warnings similar to those given to Chiaramonte, arguing that these cases

4 support the conclusion that the warning given to Chiaramonte was adequate, as well.

5 We agree with the State that an examination of the warnings given to the suspects in

6 Nave and Snaer is informative in light of the similarity between those warnings and

7 the warning given to Chiaramonte, and we note the Serna Court’s reliance upon

8 Nave and Snaer as well. See 2018-NMCA-074, ¶ 21.

9 {49} In Nave, the suspect received the following warning: “‘You have the right to

10 consult with a lawyer and have the lawyer with you during the questioning.’” 821

11 N.W.2d at 734. The defendant in Nave argued that the warning was defective

12 because it did not inform him that he “had a right to appointed counsel both before

13 and during interrogation and that the police did not inform him that he could exercise

14 that right at any time.” Id. The Nave Court first discussed United States Supreme

15 Court precedent establishing that it “‘never indicated that the rigidity of Miranda

16 extend[ed] to the precise formulation of the warnings given.’” Id. at 735 (alteration

17 in original) (quoting Prysock, 453 U.S. at 359). Ultimately, the Nave Court

18 concluded that the warnings were sufficient because, “although the Miranda

19 warnings did not expressly state that [the suspect] was entitled to appointed counsel

32
1 before questioning, that information was obviously implied from the warnings which

2 the police read to him.” Id. at 727.

3 {50} Similarly in Snaer, officers gave the following warning: “‘You have a right to

4 consult with a lawyer and to have a lawyer present with you while you are being

5 questioned.’” 758 F.2d at 1342. The defendant argued that the warning was defective

6 because he was not adequately informed of his right to consult with and have an

7 attorney present before questioning began. Id. Relying upon Prysock, as Nave did,

8 the Ninth Circuit in Snaer held that “the first part of that sentence read in the context

9 of the latter half of the sentence does adequately convey notice of the right to consult

10 with an attorney before questioning.” Id. at 1343.

11 {51} The warnings given in Nave and Snaer are nearly identical in substance to the

12 warning given to Chiaramonte: “You have the right to an attorney and have him/her

13 present while you are being questioned.” But Defendant Chiaramonte contends that

14 Nave and Snaer are distinguishable because, in those cases, the suspect was advised

15 that he had the right to “‘consult’” with an attorney, instead of being advised of the

16 general “‘right to an attorney,’” and that this difference renders the warning that

17 Chiaramonte received defective. According to Defendant Chiaramonte, the word

18 “‘consult’ implies a more significant right to counsel” because “‘consult’” means

19 “consultation which . . . take[s] place prior to questioning.” We disagree. We do not

33
1 view the word “consult” to denote any sort of temporal requirement or limitation.

2 Consult merely means, as the definition cited in Defendant Chiaramonte’s brief

3 indicates, “‘to get information or advice.’” A suspect could just as easily consult

4 with a lawyer during, or even after, questioning. To accept the reasoning that the

5 right to an attorney is insufficient, whereas the right to consult with an attorney is

6 sufficient would run afoul of Miranda, which requires only that a suspect be advised

7 of the “right to the presence of an attorney,” 384 U.S. at 444, and would contradict

8 subsequent United States Supreme Court precedent explaining that a warning does

9 not have to be “the clearest possible formulation” to satisfy “Miranda’s right-to-

10 counsel” requirement. Powell, 559 U.S. at 63.

11 {52} The State contends that, even if Defendant Chiaramonte prefers the warnings

12 given in Nave and Snaer, courts are not “looking to crown the best formulation [of

13 a Miranda warning], declaring all others deficient.” Clayton, 937 F.3d at 641. We

14 agree. Courts are simply examining the warning to see “whether a ‘commonsense

15 reading’ of the actual language employed meets the aims of Miranda.” Id. (quoting

16 Powell 559 U.S. at 64). As Clayton explained, engaging in a determination of what

17 particular instruction best conveys a person’s rights under Miranda “is reminiscent

18 of the formalistic quibbling criticized in Duckworth, Prysock, and Powell. As those

19 cases instruct, courts are not in the business of dictating the ‘precise formulation of

34
1 the warnings given a criminal [suspect].’” Id. at 640 (quoting Prysock, 453 U.S. at

2 359).

3 {53} We next address Serna’s application to Defendant Chiaramonte’s case. The

4 Chiaramonte Court of Appeals viewed the warning in a fashion similar to Defendant

5 Chiaramonte’s, relying upon Serna to support its holding that the warning was

6 inadequate because it failed to convey Chiaramonte’s full spectrum of rights under

7 Miranda. Chiaramonte, No. A-1-CA-40543, ¶ 8. It reasoned that the warning given

8 to Chiaramonte, like the warning in Serna, “did not convey that [Chiaramonte] had

9 the right to counsel before being questioned.” Id. The warning was improper,

10 according to the Court of Appeals, because “[t]he word ‘while’ modifies the phrase

11 ‘you have the right to an attorney and have him present with you,’” thus “restrict[ing]

12 that right to during the time [Chiaramonte] is being questioned.” Id. We disagree

13 that the word “while” modified the entire warning. The first clause (“You have the

14 right to an attorney”) advised Chiaramonte of a general right, and the second clause

15 (“and have him/her present while you are being questioned”) was merely an

16 illustration or example of that right. More importantly, the Chiaramonte Court’s

17 view is at odds with the Court of Appeals’ reasoning in Serna, cases relied upon in

18 Serna, and the United States Supreme Court precedent we have outlined in this

19 opinion.

35
1 {54} First, in Serna, the suspect did not receive a warning with two distinct clauses,

2 as Chiaramonte did. Instead, the Serna suspect was advised only that he had the right

3 to an attorney “‘during any and all questioning.’” 2018-NMCA-074, ¶ 23. The Serna

4 Court explained that such a warning contained no “‘before questioning’ language—

5 or any other language, for that matter—by which [it] could infer that the full right to

6 counsel was adequately conveyed.” Id. ¶ 24. Additionally, it is worthwhile to

7 highlight that there was a second Miranda warning given in Serna. This second

8 warning was not dispositive because the statements at issue were given between the

9 two warnings, rendering the first warning the focus of the Court’s inquiry. Id. ¶ 30.

10 Nonetheless, the Serna Court went out of its way to explain that it would “be remiss”

11 if it did not highlight the contrast between the two warnings. Id. ¶ 26. (“Not only

12 does the second Miranda warning advise [the d]efendant of his ‘right to talk to a

13 lawyer and . . . the right to have him present with [him] while being questioned’ but

14 also that ‘[i]f [he] cannot afford a lawyer, one will be appointed to [him] before any

15 questionings.’” (alterations and omission in original)). Like the Miranda warning

16 given to Chiaramonte in this case, the second Miranda warning in Serna contained

17 both a general portion of the warning, “the ‘right to talk to a lawyer,’” and a more

18 specific portion of the warning, the suspect’s “‘right to have him present with [him]

19 while being questioned.’” Id. Notably, the Serna Court did not identify the word

36
1 while as limiting the suspect’s general “‘right to talk to a lawyer.’”

2 {55} Here, in contrast with the first Miranda warning given in Serna (“‘You have

3 the right to an attorney during any and all questionings.’” Id. ¶ 3.), the warning given

4 to Chiaramonte did contain “other language . . . by which [one] could infer that the

5 full right to counsel was adequately conveyed,” id., ¶ 24, namely, a general warning

6 that Chiaramonte had “the right to an attorney.” Further, the warning conveyed that

7 Chiaramonte must understand his rights “[b]efore we ask you any questions” and

8 explained that Chiaramonte had the ability to both exercise his rights and stop

9 questioning “[a]t any time” (emphasis added).

10 {56} Though informed by Serna, our holding is rooted in Miranda itself. In

11 Miranda, the United States Supreme Court took no issue with a warning informing

12 a suspect of “the right to consult with a lawyer and to have the lawyer with him

13 during interrogation,” Miranda, 384 U.S. at 471. Therefore, we do not take issue

14 under federal law with the warning given to Chiaramonte, that he had “the right to

15 an attorney and have him/her present while you are being questioned.” We hold that

16 Chiaramonte received sufficient warnings under Miranda. As United States

17 Supreme Court Miranda jurisprudence requires, we reach our holding by concluding

18 that the warnings “in their totality, satisfied Miranda,” Duckworth, 492 U.S. at 205;

19 Powell, 559 U.S. at 61, based on what they “reasonably conveyed,” 559 U.S. at 62.

37
1 {57} Having concluded that both Atencio and Chiaramonte received adequate

2 warnings under Miranda, we proceed to examine whether there was sufficient

3 evidence to support Defendant Atencio’s convictions.

4 B. Sufficiency of the Evidence

5 {58} As amended, the State separated each of Defendant Atencio’s CSCM charges

6 into five-day increments “to differentiate” each count, starting on June 1, 2017, and

7 concluding on October 12, 2017. Defendant Atencio contends that the evidence was

8 insufficient to support twenty-one counts of CSCM.

9 1. Standard of review

10 {59} “Sufficiency review is an essentially legal endeavor and addresses whether

11 the government’s case was so lacking that it should not have even been submitted to

12 the jury.” Lente, 2019-NMSC-020, ¶ 54 (internal quotation marks and citation

13 omitted). In assessing the sufficiency of the evidence, this Court “‘considers only

14 the legal question whether, after viewing the evidence in the light most favorable to

15 the prosecution, any rational trier of fact could have found the essential elements of

16 the crime beyond a reasonable doubt.’” Id. (citation omitted). We will not “‘reweigh

17 the evidence [or] substitute [our] judgment for that of the jury.’” State v. Graham,

18 2005-NMSC-004, ¶ 7, 137 N.M. 197, 109 P.3d 285 (citation omitted). “Rather, the

19 question is whether, viewing all of the evidence in a light most favorable to

38
1 upholding the jury’s verdict, there is substantial evidence in the record to support

2 any rational trier of fact being so convinced.” Id. “‘[S]ubstantial evidence means

3 such relevant evidence as a reasonable mind might accept as adequate to support a

4 conclusion.’” Id. (alteration in original) (citation omitted).

5 2. Unique nature of sufficiency challenges in child sex abuse cases

6 {60} Assessing the sufficiency of the evidence in sex abuse cases involving

7 children presents unique challenges because “[t]hese cases generally involve

8 defendants who have regular access to and control over children whom they sexually

9 abuse in secrecy for long periods of time.” Lente, 2019-NMSC-020, ¶ 1.

10 Additionally, the “child victims in these cases are usually the sole witnesses of the

11 crimes perpetrated and, because of their age and the frequency of the sexual abuse

12 to which they are subjected, cannot provide detailed accounts of the abuse.” Id.

13 Instead, we explained in Lente, children “typically testify to repeated acts of

14 molestation occurring over a substantial period of time but are generally unable to

15 furnish specific details, dates or distinguishing characteristics as to individual acts

16 or assaults.” Id. ¶ 55 (text only) (citation omitted).

17 {61} Children often testify in such a manner for a number of reasons. “First, unlike

18 adults, children cannot easily link experiences to dates or other specific points in

19 time.” Id. ¶ 56. “Second, when sexual abuse is repeated and frequent, isolating any

39
1 particular instance of abuse becomes a significant challenge for child victims.” Id. ¶

2 57. “Third, children may subconsciously desire to forget the abuse, and this may

3 explain why they make forgetful, unretentive, and perhaps even unintentionally

4 uncooperative witnesses.” Id. ¶ 58 (internal quotation marks and citation omitted).

5 Finally, “children have limited exposure to sexual activity and limited vocabularies

6 and are, therefore, incapable of testifying about sexual anatomy and sexual

7 encounters with the specificity expected of adults.” Id. ¶ 59.

8 3. Examining the evidence

9 {62} In light of these challenges, the Lente Court adopted three requirements to

10 determine the sufficiency of the evidence to support multiple convictions in child

11 sex abuse cases. First, “the child victim must describe the proscribed act or acts

12 committed with sufficient specificity to establish that unlawful conduct did in fact

13 occur and to permit a jury to differentiate between the various types of sex acts to

14 which the child victim was subjected.” Id. ¶ 68. Second, “the child must describe the

15 number of proscribed acts committed with sufficient certainty to support each of the

16 counts alleged in the information or indictment.” Id. ¶ 69. Third, “the child must

17 describe the general time period in which the proscribed acts occurred.” Id. ¶ 70.

18 {63} The requirements in Lente focus on testimony from the child because, often,

19 the child is the sole witness. Id. ¶ 1. But—contrary to the implication drawn by

40
1 Defendant Atencio in his briefing before this Court that the testimony from C.Y.

2 alone must satisfy the requirements—the Lente Court’s analysis makes clear that it

3 is appropriate to consider testimony from other witnesses to satisfy each

4 requirement. See, e.g., id. ¶ 78 (relying upon the child’s mother’s testimony, in part,

5 to satisfy the first requirement of the test); see also Graham, 2005-NMSC-004, ¶ 13

6 (explaining that appellate review for sufficiency of the evidence views “the evidence

7 as a whole”).

8 {64} Prior to assessing whether the evidence satisfies each requirement in detail,

9 we first highlight the most significant evidence present in this case—evidence that

10 was not present in Lente—Defendant Atencio’s admissions. In his interview at the

11 sheriff’s department, Atencio admitted that he saw C.Y. every day during the four

12 or five months when they lived next door to each other in Kirtland, that C.Y. “stayed

13 the night lots of times” and that he got C.Y. ready for school almost every morning,

14 that he had touched C.Y.’s penis between twenty and thirty times, and that he put

15 C.Y.’s penis in his mouth once. See State v. Martinez, 2007-NMCA-160, ¶¶ 13-14,

16 143 N.M. 96, 173 P.3d 18 (highlighting the importance of the suspect’s admission

17 in examining the sufficiency of the evidence).

18 {65} Examining the evidence in the context of the Lente requirements leads to only

19 one reasonable conclusion: the evidence was sufficient. Under the first Lente

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1 requirement, C.Y. must have described the acts with specificity sufficient to

2 establish that the conduct occurred and permit the jury to differentiate between the

3 various sex acts. Lente, 2019-NMSC-020, ¶ 68. Defendant Atencio does not

4 challenge his CSPM conviction, so the only alleged sex act at issue is second degree

5 CSCM. Under the relevant portion of Section 30-9-13(B)(1), “[c]riminal sexual

6 contact of a minor in the second degree consists of all criminal sexual contact of the

7 unclothed intimate parts of a minor perpetrated . . . on a child under thirteen years of

8 age.” C.Y. was ten years old at the time of the abuse. C.Y. testified that Atencio

9 “touched [his] private parts,” including C.Y.’s penis, under his clothes every day that

10 he went to Atencio’s trailer. C.Y. further testified that Atencio did “bad stuff” to his

11 private parts, like putting C.Y.’s penis in Atencio’s mouth. A.Y., C.Y.’s sister,

12 testified that, on one occasion, she saw Atencio’s hands in C.Y.’s pants and C.Y.’s

13 hands in Atencio’s pants. The testimony established that Atencio forced C.Y. to

14 engage in distinguishable sex acts. See Lente, 2019-NMSC-020, ¶ 78.

15 {66} Second, C.Y. must have described the “number of sex acts committed with

16 sufficient certainty to support each of the counts alleged in the indictment.” Id. ¶ 79.

17 Under this Lente requirement, “[s]tatements to the effect that specific acts of sexual

18 abuse occurred ‘twice a month’ or ‘every time we went camping’ are sufficient.” Id.

19 ¶ 69. Again, Atencio admitted that he saw C.Y. every day during the four or five

42
1 months that they lived next door to each other in Kirtland. He admitted that C.Y.

2 “stayed the night lots of times” and that he got C.Y. ready for school almost every

3 morning. He admitted he touched C.Y.’s penis between twenty and thirty times and

4 that he put C.Y.’s penis in his mouth once. C.Y. testified that he would go to

5 Atencio’s trailer “every day” and “every day” that C.Y. would go there, Atencio

6 touched his penis under his clothing. In other words, C.Y. went to Atencio’s house

7 every day for four to five months. On each of those days, Atencio touched C.Y.’s

8 penis. This testimony was sufficiently specific to support the jury’s finding that

9 Atencio touched C.Y.’s penis twenty-one times in five months.

10 {67} Under the final Lente requirement, this Court must evaluate whether C.Y.

11 described the general time period in which the proscribed acts took place. Id. ¶ 83.

12 As with the second requirement, the Lente Court provided examples: “The summer

13 before my fourth grade” or “during each Sunday morning after he came to live with

14 us” are sufficiently specific. Id. ¶ 70 (text only) (citation omitted). In Lente, the child

15 testified that the abuse “occurred two or three times a week for almost the entirety

16 of the forty-and-one-half month indictment period.” Id. ¶ 83. The Lente Court held

17 that this was sufficient because the child’s “statement [was] not meaningfully

18 different than a child’s estimation that sex abuse occurred each summer or each

19 camping trip.” Id. The only difference between the two statements, the Lente Court

43
1 explained, was that “they prove she was subjected to significant amounts of abuse,

2 amounts perhaps far in excess of what other children in these types of cases

3 experience.” Id. In our estimation, C.Y.’s experience appears to be close to that of

4 the child in Lente.

5 {68} But instead of the abuse occurring two or three times a week, as in Lente, C.Y.

6 testified that he was abused “every day.” Defendant Atencio is correct that C.Y. did

7 not specifically “say every day for how long a [time] period.” Defendant Atencio

8 fails to address, however, that his own admission defines the general period of abuse.

9 During his interview, Atencio told the police that C.Y.’s family lived next door to

10 him for four or five months, but maybe longer. To the extent Atencio’s own

11 admission conflicts with C.Y.’s testimony that Atencio and C.Y. lived next door to

12 each other for two and a half years, in reviewing the sufficiency of the evidence, we

13 “indulge all [such] reasonable inferences in support of the verdict, and disregard all

14 evidence and inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126

15 N.M. 438, 971 P.2d 829. Furthermore, the testimony provided by C.Y.’s parents

16 establishes that C.Y. lived next door to Atencio from the beginning of June 2017

17 until October 2017.

18 {69} And yet, according to Defendant, this evidence was “insufficiently specific”

19 to support multiple counts because “C.Y. could not provide even the bare minimum,

44
1 the ‘general time period’ during which these alleged acts occurred.” Instead,

2 Defendant Atencio views the evidence as insufficient to support multiple counts

3 because the State relied upon “course-of-conduct evidence” that “describes a pattern

4 of events rather than discrete incidents.” Defendant’s argument again ignores Lente,

5 where this Court recently explained that when “the prosecution persuades the jury

6 to believe the child victim’s testimony that he or she was subjected to multiple acts

7 of sexual abuse over a long period of time, the prosecution will have necessarily

8 proven beyond a reasonable doubt that the defendant committed a specific act.”

9 Lente, 2019-NMSC-020, ¶ 66 (internal quotation marks and citation omitted).

10 {70} Like the defendant in Lente, Defendant Atencio appears to argue that, because

11 the conduct in this case “describes a pattern of events,” i.e., conduct so egregious

12 that a child could not differentiate among all of the different times/days when the

13 alleged abuse occurred, Defendant Atencio is shielded from multiple charges. We

14 explained that the defendant in Lente, like Defendant Atencio, “fails to acknowledge

15 that [the child’s] inability to provide specific details about [the] abuse is, in part, a

16 product of [the defendant’s] own making. He sexually abused [the child] so

17 frequently that the details of particular abuse are clouded in [the child’s] mind.” Id.

18 ¶ 77. As in Lente, Atencio “created a circumstance and now complains of its

19 existence.” Id. Defendant Atencio “seeks to transform his repeated violations of the

45
1 criminal laws into a shield.” Id. We will not tolerate such an attempt. Viewing the

2 evidence as a whole, there is substantial evidence in the record to convince any

3 rational trier of fact that Atencio abused C.Y. every day for four to five months, thus

4 satisfying the final requirement. The evidence presented in support of Defendant

5 Atencio’s convictions was sufficient.

6 III. CONCLUSION

7 {71} For the foregoing reasons, we affirm the Atencio Court of Appeals in part and

8 reverse in part. The warnings given to Atencio were adequate under Miranda,

9 warranting such reversal. And there was sufficient evidence to support Defendant

10 Atencio’s convictions, warranting the affirmance. Because the warnings given to

11 Chiaramonte were adequate under Miranda, we reverse the Chiaramonte Court of

12 Appeals. We remand both cases to the district court for proceedings consistent with

13 this opinion.

14 {72} IT IS SO ORDERED.

15
16 JULIE J. VARGAS, Justice

17 WE CONCUR:

18
19 DAVID K. THOMSON, Chief Justice

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1
2 MICHAEL E. VIGIL, Justice

3
4 C. SHANNON BACON, Justice

5
6 MARY MARLOWE SOMMER, Judge,
7 sitting by designation

47