State v. Schuessler ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 30,893
5 WARREN SCHUESSLER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Kenneth H. Martinez, District Judge
9 Gary K. King, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, NM
13 for Appellee
14 Bennett J. Baur, Acting Chief Public Defender
15 Will O’Connell, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
1 MEMORANDUM OPINION
2 BUSTAMANTE, Judge.
3 {1} Convicted of two counts of criminal sexual penetration of a minor (CSPM) and
4 two counts of criminal sexual contact with a minor (CSCM), Warren Schuessler
5 (Defendant) appeals. Defendant alleges that the district court erred in admitting
6 improper character evidence, that there was insufficient evidence of criminal sexual
7 contact, and that the jury convicted him of multiple indistinguishable counts. We
8 affirm.
9 BACKGROUND
10 {2} Defendant was indicted on eleven counts of molesting his niece (Child) and her
11 older sister. Defendant is seven years older than Child. Child also has a younger
12 sister. Prior to trial, the counts involving Child and her sister were severed. Thus, the
13 charges relevant to the present case are only those in which Defendant is accused of
14 sexual contact with Child when Child was between the ages of eleven and twelve. As
15 part of the order severing the counts involving Child’s sister, the district court ordered
16 exclusion of all evidence related to those charges. Additional facts are provided as
17 necessary to our discussion of Defendant’s arguments on appeal.
2
1 DISCUSSION
2 {3} Defendant makes six arguments. In his first point Defendant argues that, even
3 though evidence pertaining to the counts related to Child’s sister was supposed to be
4 excluded, “the State introduced evidence throughout the trial suggesting that
5 [Defendant] molested [Child’s] sisters . . . as well.” Defendant concedes that evidence
6 that he groomed Child for a sexual relationship with him by giving her alcohol and
7 drugs was permissible. But, he submits, evidence that he similarly groomed Child’s
8 sisters was inadmissible because it was tantamount to evidence that he had molested
9 the sisters. He asserts that evidence of grooming the sisters was “other bad acts
10 evidence” that should have been excluded under New Mexico’s rules of evidence.
11 Rule 11-404(B) NMRA.
12 {4} The State argues in response that the older sister’s testimony merely
13 corroborated Child’s testimony and therefore was not evidence of other “bad acts.”
14 It maintains that “[h]aving conceded that [use of the evidence of grooming of Child
15 was permissible], Defendant should not be permitted to turn around and deny that the
16 corroborating testimony of an eyewitness to the exact same events was reversible
17 error.”
18 {5} We review the district court’s rulings as to admission of testimony for abuse of
19 discretion. State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526,
3
1 overruled on other grounds by State v. Swick, 2012-NMSC-018, 279 P.3d 747. “An
2 abuse of discretion occurs when the ruling is clearly against the logic and effect of the
3 facts and circumstances of the case. We cannot say the trial court abused its discretion
4 by its ruling unless we can characterize it as clearly untenable or not justified by
5 reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal
6 quotation marks and citations omitted).
7 {6} Rule 11-404(B)(1) prohibits admission of “[e]vidence of a crime, wrong, or
8 other act . . . to prove a person’s character in order to show that on a particular
9 occasion the person acted in accordance with the character.” Such evidence is not
10 always prohibited, however. “[E]vidence of prior acts with the complaining witness
11 can directly bolster the complaining witness’s testimony by providing significant
12 corroboration. When used for such a purpose, this evidence is admissible and not
13 considered propensity evidence.” State v. Dietrich, 2009-NMCA-031, ¶ 42, 145 N.M.
14 733, 204 P.3d 748 (internal quotation marks and citation omitted). In addition, even
15 if not admissible for showing propensity to act in a certain way, “evidence [of other
16 acts] may be admissible for another purpose, such as proving motive, opportunity,
17 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
18 Rule 11-404(B)(2).
4
1 {7} Here, Child testified that Defendant gave her alcohol “[a]ll the time. As many
2 times as he had it[,]” and that he would give alcohol to both her and her older sister.
3 She also testified that Defendant gave her and her older sister marijuana. The older
4 sister testified that Defendant gave her and Child alcohol and marijuana. Child’s
5 younger sister testified that Defendant drank with “[her] and [her] sisters,” that she
6 had observed Child and her older sister smoking marijuana with Defendant, and that
7 she had smoked marijuana with Defendant. The sisters’ testimony thus addressed
8 both that Defendant gave alcohol and marijuana to Child and that Defendant also gave
9 them to the sisters. Assuming without deciding that admission of this testimony was
10 contrary to Rule 11-404(B), we conclude that its admission was harmless. See State
11 v. Gallegos, 2005-NMCA-142, ¶ 32, 138 N.M. 673, 125 P.3d 652, aff’d in part, rev’d
12 in part on other grounds, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828 (stating that
13 we apply a harmless error analysis to improperly admitted evidence).
14 {8} “Improperly admitted evidence is not grounds for a new trial unless the error
15 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110.
16 Here, Defendant alleges a violation of the rules of evidence; the error alleged is
17 therefore non-constitutional, see State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301,
18 210 P.3d 198, overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 35, which
5
1 we review to determine whether “there [is] a reasonable probability that [the evidence]
2 contributed to the [defendant’s] conviction.”
3 To judge the “probable” effect of an evidentiary error,
4 courts must evaluate all circumstances surrounding the
5 error. We examine the error itself, including the source of
6 the error and the emphasis placed on the error at trial. To
7 put the error in context, we often look at the other, non-
8 objectionable evidence of guilt, not for a sufficiency-of-the-
9 evidence analysis, but to evaluate what role the error played
10 at trial. [In addition,] . . . courts may, depending upon the
11 circumstances of the cases before them, examine the
12 importance of the erroneously admitted evidence in the
13 prosecution’s case, as well as whether the error was
14 cumulative or instead introduced new facts. This is a case-
15 by-case examination.
16 State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215 (internal quotation marks and
17 citation omitted).
18 {9} Under this standard of review, we conclude that the admission of this testimony
19 was harmless. In the context of this twelve-day jury trial, we cannot say that there is
20 a reasonable probability that the sisters’ somewhat oblique references to provision of
21 alcohol and marijuana to them by Defendant “contributed to [D]efendant’s
22 conviction.” Id. (internal quotation marks and citation omitted). The testimony did
23 not play a major role in the prosecution’s case. First, the testimony complained of
24 constituted only a few minutes out of the entire trial and the State did not highlight the
25 sisters’ testimony that Defendant had given them alcohol and marijuana in opening
6
1 or closing arguments. Cf. id. ¶¶ 27-29 (holding that improperly admitted evidence
2 was harmful because “[t]actically, the [s]tate used the diary as a centerpiece of its
3 case[,]” including addressing the evidence in direct and cross-examination as well as
4 opening and closing arguments.).
5 {10} In addition, we note that the jury received instruction that there were no charges
6 against Defendant for conduct with the younger sister. After defense counsel objected
7 to a question of the younger sister, the district court instructed the jury that there had
8 been no allegations by the younger sister against Defendant of improper sexual
9 conduct. Even though the district court gave this instruction in the context of
10 testimony about the younger sister’s safe house interview, the instruction limits, if not
11 eliminates, the probability that the verdict would have been different without the
12 younger sister’s testimony that Defendant offered her marijuana.
13 {11} Further, the impact of the sisters’ testimony is minimal in light of the other
14 evidence adduced at trial. See id. ¶ 24 (“To put the error in context, we often look at
15 the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence
16 analysis, but to evaluate what role the error played at trial.”). Here, Child testified at
17 length about Defendant’s conduct and about her living arrangements before, during,
18 and after the charging period, including her mother’s debilitating alcohol use, the lack
19 of supervision by the mother, and Defendant’s visits to Child’s home and Child’s
7
1 visits to Defendant’s home. Other witnesses testified as to the same topics.
2 Defendant testified, denying that he sexually abused Child. Two experts testified, one
3 for the State and one for the defense, about the physical evidence of sexual abuse and
4 the significance of the lack of evidence of injury in Child’s examination. Under the
5 circumstances of this case, we conclude that there is no reasonable probability that the
6 testimony at issue contributed to Defendant’s convictions and that its admission was,
7 therefore, harmless.
8 {12} Defendant’s second argument is that the district court erred in denying his
9 motion for a new trial after a detective testified that, after receiving a referral from the
10 Children, Youth and Families Department, she began investigating by “contact[ing]
11 the persons that were involved, the females that were involved, or their parents.”
12 Defendant characterizes this testimony as “unmistakable that the [d]etective was
13 referring to multiple female victims of sexual abuse” and that this testimony, in
14 combination with that of the sisters, “would have improperly induced the jury to
15 convict [him and therefore] the [district] court abused its discretion in failing to grant
16 a mistrial.” The State argues that (1) the statement was unobjectionable because
17 “[s]tating that more than one female was involved in the investigation is simply not
18 the same as saying that more than one female made allegations against Defendant[;]”
19 (2) the district court’s finding that the statement was not intentionally elicited by the
8
1 prosecution obviates the need for any analysis of whether the improperly admitted
2 evidence “could have induced the jury’s verdict[;]” and (3) the possible prejudicial
3 effect of the testimony was cured when the district court offered to give a curative
4 instruction.
5 {13} We review the denial of a motion for a new trial for an abuse of discretion.
6 Gallegos v. State Bd. of Educ., 1997-NMCA-040, ¶ 30, 123 N.M. 362, 940 P.2d 468.
7 If evidence of prior bad acts is improperly admitted inadvertently, “the prompt
8 sustaining of an objection and an admonition to disregard the witness’s answer cures
9 any prejudicial effect of the inadmissible testimony.” State v. Ruiz, 2003-NMCA-069,
10 ¶ 6, 133 N.M. 717, 68 P.3d 957. Even when the defendant refuses a curative
11 instruction, the district court’s offer of an instruction “is sufficient to cure any
12 prejudicial effect.” State v. Fry, 2006-NMSC-001, ¶ 53, 138 N.M. 700, 126 P.3d 516.
13 If the State intentionally sought the prohibited testimony, however, “we must
14 determine whether there is a reasonable probability that the improperly admitted
15 evidence could have induced the jury’s verdict.” Ruiz, 2003-NMCA-069, ¶ 6.
16 {14} Here, the district court determined that the statement was inadvertently elicited.
17 Similarly, we discern nothing in the State’s questioning of the detective that indicates
18 an intent to elicit reference to allegations against Defendant by people other than Child
19 and Defendant does not argue to the contrary. Cf. id. ¶¶ 8-9 (determining that the
9
1 prosecutor intentionally elicited prohibited testimony where it was clear “that the
2 witness was trying to avoid improper reference to the penitentiary” and “[r]ather than
3 accept[ing] that testimony,” the prosecutor pushed the witness to refer to the
4 penitentiary.). The district court offered a curative instruction, which was refused by
5 Defendant. We conclude that the district court’s offer, even if refused by Defendant,
6 was sufficient to address the possible prejudicial effect of the testimony. See Fry,
7 2006-NMSC-001, ¶ 53.
8 {15} Defendant’s remaining four arguments pertain to whether there was sufficient
9 evidence of distinct acts of CSCM or CSPM and whether his right to be free from
10 double jeopardy was violated. Before addressing these arguments, we make several
11 observations about the charges and the testimony. The indictment alleges four counts
12 of CSPM and two counts of CSCM that occurred between October 7, 2001 and July
13 17, 2003. These dates correspond to Defendant’s eighteenth birthday and the day
14 before Child’s thirteenth birthday, respectively. Thus, the State sought to specify a
15 charging period in which the alleged conduct would constitute CSPM in the fourth
16 degree and in which Defendant could be sentenced as an adult. See NMSA 1978, §
17 30-9-11(D)(1) (2009); NMSA 1978, §§ 31-18-15.1(G) (2009), -15.2 (1996). Two
18 counts alleged digital penetration of Child (CSPM) and two counts alleged sexual
19 intercourse with Child (CSPM). Two counts alleged that Defendant caused Child to
10
1 touch his penis (CSCM). The jury instructions for each two-count set of charges were
2 identical. The jury instructions for CSPM based on digital penetration permitted the
3 jury to convict for the step-down offense of CSCM. During trial, the State argued that
4 each type of contact occurred at least once when Child was eleven years old and at
5 least once when Child was twelve years old. The jury instructions did not, however,
6 require jurors to differentiate between acts occurring when Child was eleven and acts
7 occurring when Child was twelve, since the charging period in all of the instructions
8 were the same. Child testified that Defendant first began touching her sexually when
9 she was seven years old and that he continued to have sex with her until she was
10 thirteen years old.
11 {16} With this context in mind, we turn to Defendant’s specific arguments.
12 Defendant’s third argument is that “[t]here was no testimony of distinct acts of
13 CSC[M] that occurred within the time charged. Accordingly, [Defendant’s]
14 convictions for CSCM must be vacated.” To determine whether the evidence was
15 sufficient to support the CSCM convictions, we first view the evidence in the light
16 most favorable to the verdict. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756,
17 760 (1994). Then, we assess “whether the evidence viewed in this manner could
18 justify a finding by any rational trier of fact that each element of the crime charged has
19 been established beyond a reasonable doubt.” Id. (internal quotation marks and
11
1 citation omitted). “[A] reviewing court will not second-guess the jury’s decision
2 concerning the credibility of witnesses, reweigh the evidence, or substitute its
3 judgment for that of the jury.” State v. Lucero, 118 N.M. 696, 699, 884 P.2d 1175,
4 1178 (Ct. App. 1994).
5 {17} In essence, Defendant’s argument is that Child did not testify to acts of sexual
6 contact separate from that inherent in acts of sexual penetration that occurred during
7 the charging period. The State argues that Child’s specific testimony that Defendant
8 touched her vagina with his hand and then had sex with her and that Defendant had
9 sex with her multiple times when she was eleven and twelve years old supports the
10 CSCM convictions. We agree with the State that this evidence is sufficient to permit
11 the jury’s verdict as to the CSCM counts because this Court has previously held that
12 CSC and CSP convictions arising from unitary conduct are appropriate. See State v.
13 Pisio, 119 N.M. 252, 261, 889 P.2d 860, 869 (Ct. App. 1994) (stating that convictions
14 for CSP and CSC were “proper units of prosecution” even when they arose from
15 unitary conduct).
16 {18} In his fourth argument, Defendant maintains that the “[m]ultiple
17 undifferentiated sexual abuse charges that are factually indistinguishable violate[d]
18 [his] due process rights and protections against double jeopardy.” Citing State v.
19 Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92 and State v. Dominguez, 2008-
12
1 NMCA-029, 143 N.M. 549, 178 P.3d 834, Defendant argues that “[b]ecause the State
2 was unable to offer evidence that distinguished the generic, identical counts described
3 in the [identical] jury instructions, the resulting duplicative convictions must be
4 reduced to a single count [of each type].” He requests that we vacate one conviction
5 for CSCM and one conviction for CSPM.
6 {19} The right to due process of law stems from the Fourteenth Amendment to the
7 United States Constitution and “requires the State to provide reasonable notice of
8 charges against a person and a fair opportunity to defend.” Dominguez, 2008-NMCA-
9 029, ¶ 5 (internal quotation marks and citation omitted); see U.S. Const. amend XIV.
10 The right to due process also “requires that criminal charges provide criminal
11 defendants with the ability to protect themselves from double jeopardy.” Dominguez,
12 2008-NMCA-029, ¶ 5 (internal quotation marks and citation omitted). Following
13 these principles, “[an] indictment [is] defective [when] it provide[s] the defendant with
14 little ability to defend himself [because] the counts [are] not anchored to particular
15 offenses.” Tafoya, 2010-NMCA-010, ¶ 21 (internal quotation marks and citation
16 omitted). An insufficiently particular indictment offends the prohibition against
17 double jeopardy in two ways: first, it does not
18 permit the defendant to plead a conviction or an acquittal as a bar to
19 future prosecutions, and second, . . . “undifferentiated counts introduce[]
20 the very real possibility that [the defendant] would be subject to double
13
1 jeopardy in his initial trial by being punished multiple times for what
2 may have been the same offense.”
3 Dominguez, 2008-NMCA-029, ¶ 9 (second alteration in original) (quoting Valentine
4 v. Konteh, 395 F.3d 626, 634-635 (6th Cir. 2005)). Whether a defendant is at risk of
5 being convicted multiple times for the same conduct depends on whether the evidence
6 at trial supports multiple distinguishable counts. Tafoya, 2010-NMCA-010, ¶¶ 24, 25
7 (“[I]t is the evidence admitted at trial that must be reevaluated by the district court to
8 determine whether a criminal charge is sufficient to satisfy the due process
9 requirements under Dominguez.”).
10 {20} Child testified that Defendant had sex with her when she was eleven years old
11 and when she was twelve years old. Although at one point she stated she could not
12 remember a specific instance in each of those years, at another point in her testimony
13 she testified about a specific instance of sexual abuse after her grandmother died,
14 including the location of the incident, details about which family members were in the
15 house at the time, what she and Defendant were drinking at the time, and what they
16 were doing before the sexual activity began. She also testified that Defendant had sex
17 with her “more than once” when she was eleven and “more than one time” when she
18 was twelve. In addition, she testified that Defendant began having sex with her when
19 she was seven years old and continued until she was thirteen years old. Child also
20 stated that the sexual abuse occurred in different locations, designated at trial as “the
14
1 two-story house” (where Defendant lived) and “the blue house” (where Child lived).
2 A number of witnesses testified about the dates that Child lived in the blue house and
3 visited the two-story house, as well as the dates that Defendant lived in the two-story
4 house. Although there are some conflicts in the testimony, it appears that at least a
5 portion of the charging period overlaps with these periods, which themselves overlap
6 with Child’s eleventh and twelfth years. See State v. Sena, 2008-NMSC-053, ¶ 11,
7 144 N.M. 821, 192 P.3d 1198 (stating that appellate courts must assume the trier of
8 fact resolved conflicts in the testimony in favor of the prevailing party).
9 {21} This testimony is sufficient to satisfy due process. Child’s testimony about a
10 specific incident of sexual penetration supports a single CSPM count. Her testimony
11 about a pattern of conduct in addition to that incident supports another CSPM count.
12 The State also distinguished between the two CSPM counts through Child’s testimony
13 that Defendant had sex with her multiple times in each of her eleventh and twelfth
14 years, which indicates a pattern of conduct in each year. Thus, the evidence at trial
15 sufficiently distinguished between the two CSPM counts on either of these bases. See
16 State v. Altgilbers, 109 N.M. 453, 466, 786 P.2d 680, 693 (Ct. App. 1989) (stating that
17 the State is not required to choose “between either one count in toto or one count for
18 each act” and that “[t]he charging pattern that best reconciles the community’s interest
19 in proper enforcement of the laws and the interest . . . in fairness to the defendant may
15
1 well be a charging pattern fitting between the two extremes.”). Similarly, the two
2 CSCM counts are distinguished by Child’s testimony about a specific instance of
3 touching preceding sexual intercourse and that “[i]t [(sexual intercourse)] pretty much
4 happened the same way every time. He’d start with touching me, and then, that’s
5 when it progressed.” Like the CSPM counts, this testimony supports one count for
6 a specific instance and one count for a pattern of conduct. The identical CSCM and
7 CSPM counts did not violate the prohibition against double jeopardy.
8 {22} Defendant’s fifth argument is that the jury instructions “allowed the jury to use
9 the same acts to support four convictions” such that “[Defendant] may have been
10 punished multiple times for . . . the same offense.” Defendant relies on Griffin v.
11 United States, 502 U.S. 46 (1991) and State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92,
12 99 (Ct. App. 1994), aff’d in part, set aside in part by State v. Olguin, 120 N.M. 740,
13 741, 906 P.2d 731, 732 (1995) to argue that “this Court [must] vacate all but one
14 count of CSP[M].”
15 {23} When a jury instruction allows conviction on alternate theories, one of which
16 would violate double jeopardy, the protections against double jeopardy are violated
17 unless it is clear from the record that the jury convicted only on the adequate ground.
18 State v. Montoya, 2011-NMCA-074, ¶ 39, 150 N.M. 415, 259 P.3d 820. In Olguin,
19 this Court relied on Griffin to explain the differences between a verdict in which one
16
1 of the alternate bases is factually inadequate and a verdict in which one of the alternate
2 bases is legally inadequate. Olguin, 118 N.M. at 97-98, 879 P.2d at 98-99. Reversal
3 is not required in the former case when at least one of the bases for conviction was
4 supported by sufficient evidence. Id. at 98, 879 P.2d at 99. In contrast, reversal is
5 required when one of the bases is contrary to law, such as when “the action in question
6 is protected by the Constitution, is time barred, or fails to come within the statutory
7 definition of the crime.” Id. (quoting Griffin, 502 U.S. at 59).
8 {24} As discussed, the instructions for counts one and two are identical and the
9 instructions for counts three and four are identical. Although the State’s theory at trial
10 was that one count of digital penetration and one count of sexual intercourse occurred
11 when Child was eleven and one count of each type occurred when Child was twelve,
12 the jury instructions all include the same twenty-one month charging period which
13 overlaps with but does not align precisely with Child’s eleventh and twelfth years. In
14 addition, the jurors asked several questions during deliberations. Specifically, in a
15 note to the district court, they stated, “Our issue regards the separation of [c]ounts
16 [one and two] from [c]ounts [three and four].” They then asked, “Regarding [c]ounts
17 [three and four], does sexual intercourse inherently include applying a force or
18 touching the vagina of [Child]?” and “Regarding [c]ounts [one and two], is sexual
19 contact limited to touching or applying a force by hand?” The district court refused
17
1 defense counsel’s request to instruct the jury that counts one and two required them
2 to find that Defendant had touched Child by hand and instead told the jury to rely on
3 the instructions already given.
4 {25} Defendant argues that these questions indicate that the jury “was considering
5 convicting [Defendant] for CSC[M] based on something other than a manual touching,
6 which under the testimony provided them would be the touching inherent in the sexual
7 intercourse for which they separately convicted him in [c]ounts [three] and [four].”
8 He maintains there is no contrary evidence from which to “dismiss the . . . possibility”
9 that the jury convicted Defendant “four times for the same conduct.” Defendant
10 overstates the situation. At most, the jurors’ questions might be read to indicate that
11 they questioned whether Defendant could be convicted twice for CSCM for touching
12 inherent in the two sexual intercourse counts. These questions would imply at most
13 two possible duplicate convictions, not three, as Defendant argues. In any case, we
14 do not agree that any of the convictions require reversal. Even if we accept
15 Defendant’s argument that the jury convicted him of CSCM based on touching
16 associated with sexual intercourse, we have determined that such a verdict does not
17 violate double jeopardy and is, therefore, not legally inadequate. See Pisio, 119 N.M.
18 at 261, 889 P.2d at 869.
18
1 {26} In his final argument, Defendant contends that, should this Court decline to
2 vacate both CSCM convictions and one CSPM conviction on the grounds discussed
3 above, we should at least vacate the CSCM convictions because the jury’s questions
4 indicated “an intolerable quantum of confusion” in the deliberations. See State v.
5 DeSantos, 89 N.M. 458, 462-63, 553 P.2d 1265, 1269-70 (1976). To the extent
6 Defendant’s argument is that the jury was confused as to whether they could convict
7 Defendant for CSCM based on touching inherent in sexual intercourse, we have
8 concluded that the verdict was not inappropriate because it was not error to do so.
9 Defendant does not elaborate on other ramifications of the alleged confusion nor
10 direct us to alternate authority. “We decline to review such an undeveloped
11 argument.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339,
12 110 P.3d 1076.
13 {27} Finally, we note the extraneous commentary in the State’s answer brief and
14 caution advocates to avoid language that is overly dramatic, snide, and/or belittling
15 of opposing counsel’s arguments because it is both unnecessary and unhelpful. See
16 Hagen v. Faherty, 2003-NMCA-060, ¶ 21, 133 N.M. 605, 66 P.3d 974 (“We think the
17 parties’ arguments in this case could have been made more effectively if they were
18 less strident and more tailored as a logical refutation of the other side’s arguments.”).
19 CONCLUSION
19
1 {28} Having found no reversible error in the district court, we affirm Defendant’s
2 convictions.
3 {29} IT IS SO ORDERED.
4
5 MICHAEL D. BUSTAMANTE, Judge
6 WE CONCUR:
7 _________________________________
8 RODERICK T. KENNEDY, Chief Judge
9 _________________________________
10 J. MILES HANISEE, Judge
20