State v. Otero ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39181
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ABRAHAM R. OTERO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Court Judge
Raúl Torrez, Attorney General
Van Snow, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Charles D. Agoos, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
BACA, Judge.
{1} Defendant Abraham Otero appeals his conviction of criminal sexual penetration
(CSP) of a minor (child thirteen to sixteen), contrary to NMSA 1978, Section 30-9-
11(G)(1) (2009). On appeal, Defendant raises four issues: (1) the district court failed to
enter a mistrial when it was informed about “culturally insensitive” remarks made during
jury deliberations; (2) the State presented insufficient evidence to establish that
Defendant knew Victim (M.M.) was under sixteen years of age; (3) allowing a medical
provider to testify about M.M.’s age violated the Confrontation Clause; and (4) the
district court committed reversible error by granting the prosecution’s motion to amend
the indictment. After careful consideration of Defendant’s issues, we affirm.
{2} Because this is an unpublished memorandum opinion written solely for the
benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794
P.2d 361, and the parties are familiar with the factual and procedural background of this
case, we omit a background section and leave the discussion of the facts for our
analysis of the issues.
DISCUSSION
I. Juror Bias
{3} Following a day-and-a-half long trial, the jury retired for deliberations at
approximately 11:45 a.m. At approximately 1:15 p.m., the district court came back on
the record and announced that there was a verdict. The district court judge then stated,
“I guess there’s also some tension in the jury room. Some culturally insensitive remarks
were made by one or two jurors and that enraged the other jurors. I think we’re
physically separating the group right now.” The district court asked if either side wanted
to address that issue, at which point the State recommended that standard polling be
conducted. The district court then asked defense counsel if further motions would be
made on this issue and the defense responded, “No.” The jury returned to the
courtroom for taking of the verdict and for polling. The verdicts were unanimous.
Defense counsel then approached the bench and expressed concern about whether
standard polling was the appropriate remedy.
{4} During its polling of the jury, the district court asked each member of the jury if
the verdict was their own, if the verdict was that of all twelve members of the jury, and if
all twelve members participated in deliberation; each juror responded affirmatively.
Following the trial, there is no indication in the record that Defendant’s attorney spoke
with any of the jurors about the incident and did not seek a new trial. Apart from the
district court’s characterization of the alleged “culturally insensitive” remarks, what was
actually said in the jury room and by which juror is unknown.
{5} On appeal, Defendant contends that racially biased statements and violence
infected the jury deliberation and asks that this Court reverse his conviction on this
basis. The State contends that Defendant waived his claim of jury bias, invited any
error, and otherwise failed to preserve his claim of error. The State further argues that
even if review is appropriate on appeal, Defendant does not meet the standard he
advances in his briefing. Because we agree with the State on this point, we do not
address its other contentions about waiver, invited error, and preservation. Citing
Commonwealth v. McCalop, 152 N.E.3d 1114 (Mass. 2020), among other authorities,
Defendant claims that he made a prima facie showing that the jury had been “exposed
to statements that infected the deliberative process with racially or ethnically charged
language or stereotypes.” See id. at 1124. In light of this prima facie showing,
Defendant contends, the district court judge had a duty to inquire into the claims of
racial bias and violence. Assuming, without deciding, that Defendant advances the
appropriate standard to apply under the circumstances, his claim of error fails because
there is no evidence in the record that bears out his assertions. See Sanders v. Est. of
Sanders, 1996-NMCA-102, ¶ 1, 122 N.M. 468, 927 P.2d 23 (assuming without deciding
a legal issue because it is not outcome-determinative).
{6} The brief statement from the district court judge that one or two jurors made
“culturally insensitive” remarks and that the group of jurors was being physically
separated is the extent of the record on the matter. We do not know the nature of the
remarks—whether they were racially motivated or not—and we do not know why jurors
were being physically separated. Defendant did not take any action apart from stating
his concerns to the district court. He did not investigate the incident to flesh out the
details or seek remedial action if he believed it was necessary. Cf. Acosta v. Shell W.
Expl. & Prod., Inc., 2013-NMCA-009, ¶ 39, 293 P.3d 917 (stating that Rule 11-606(B)
NMRA has not been used as a per se bar against consideration of any statement made
by a juror), rev’d on other grounds, 2016-NMSC-012, ¶ 2, 370 P.3d 761. That is,
Defendant did nothing to develop the record in support of his claims of error on appeal.
See Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146
N.M. 853, 215 P.3d 791 (“It is the duty of the appellant to provide a record adequate to
review the issues on appeal.”).
{7} In light of this record, we are unable to conclude that the district court had an
obligation to sua sponte investigate the matter or otherwise committed error. See id.(“Upon a doubtful or deficient record, every presumption is indulged in favor of the
correctness and regularity of the trial court’s decision, and the appellate court will
indulge in reasonable presumptions in support of the order entered.” (internal quotation
marks and citation omitted)); Michaluk v. Burke, 1987-NMCA-044, ¶ 25, 105 N.M. 670,
735 P.2d 1176 (“Where the record on appeal is incomplete, the ruling of the trial court is
presumed to be supported by the evidence.”).
II. Sufficiency of Evidence
{8} Next, Defendant argues that there is insufficient evidence to prove beyond a
reasonable doubt that Defendant knew that M.M. was not sixteen years old when he
engaged in sexual intercourse with her. Defendant points to the fact that the State did
not present any witnesses who were at the party or who knew Defendant and M.M. The
State responds that the jury is free to reject Defendant’s version of the facts, may
reasonably infer from photographs of M.M., and rely on “their ordinary knowledge and
experience concerning [thirteen] year-old girls” to find that Defendant knew that M.M.
was not sixteen years old when he had sex with her.
{9} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Montoya, 2021-
NMCA-006, ¶ 11, 482 P.3d 1285 (internal quotation marks and citation omitted). “Jury
instructions become the law of the case against which the sufficiency of the evidence is
to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883.
“We view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
Montoya, 2021-NMCA-006, ¶ 11 (internal quotation marks and citation omitted). “The
relevant question is whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks and
citation omitted). We do “not weigh the evidence and may not substitute [our] judgment
for that of the fact[-]finder so long as there is sufficient evidence to support the verdict.”
State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. “Contrary
evidence supporting acquittal does not provide a basis for reversal because the jury is
free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶
19, 126 N.M. 438, 971 P.2d 829. “An appellate court does not evaluate the evidence to
determine whether some hypothesis could be designed which is consistent with a
finding of innocence.” Sutphin, 1988-NMSC-031, ¶ 21. “When a defendant argues that
the evidence and inferences present two equally reasonable hypotheses, one
consistent with guilt and another consistent with innocence, our answer is that by its
verdict, the jury has necessarily found the hypothesis of guilt more reasonable than the
hypothesis of innocence.” State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114
P.3d 393.
{10} Here, the jury was instructed that to find Defendant guilty of criminal sexual
penetration of a child thirteen to sixteen, it must find that Defendant did not act under an
honest and reasonable belief that M.M. was sixteen years of age. See UJI 14-962
NMRA. There is no dispute that Defendant had sex with M.M. on July 4, 2016, and that
she was thirteen years old at the time. In addition to viewing photographs of M.M., the
jury heard M.M.’s voice during a telephone call she had with Defendant while Defendant
was in jail months after the incident. Defendant testified that M.M.’s mother, Sarah, was
his uncle’s stepdaughter; Defendant had known Sarah for many years prior to the
incident; and Defendant knew Sarah had children. Defendant testified that he had spent
time with M.M. and her mother prior to July 4, 2016. At trial, Defendant admitted that he
lied to Detective Chavez during the interview, but he was not lying to the jury on the
stand. Additionally, Defendant concedes that he stipulated to M.M.’s actual age at trial.
Reviewing the evidence at trial, we conclude the evidence was sufficient for a rational
trier of fact to reject Defendant’s version of events and to find that Defendant knew that
M.M. was not sixteen years old on July 4, 2016, when he had sex with her.
III. Defendant’s Remaining Claims of Error
{11} Defendant raises two other points of error. Specifically, Defendant contends that
allowing a medical provider to testify about M.M.’s age violated the Confrontation
Clause, even though he stipulated to M.M.’s age, and that the district court committed
reversible error by granting the prosecution’s motion to amend the indictment,
notwithstanding that Defendant did not make a showing of actual prejudice. To the
extent these claims of error are preserved and properly before this Court, after
consideration of the briefing, the record, and relevant law, we conclude they are without
merit and provide no basis for reversal. We, therefore, decline to address them further.
See Aguilar v. State, 1988-NMSC-004, ¶ 1, 106 N.M. 798, 751 P.2d 178 (summarily
disposing of certain issues based on their lack of merit).
CONCLUSION
{12} For these reasons we affirm.
{13} IT IS SO ORDERED.
GERALD E. BACA, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
MICHAEL D. BUSTAMANTE, Judge,
retired, sitting by designation