State v. Samora , 2016 NMSC 31 ( 2016 )


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    integrity of this document
    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'04- 16:45:38 2016.09.26
    IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
    Opinion Number: 
    2016-NMSC-031
    Filing Date: August 8, 2016
    Docket No. S-1-SC-34733
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    ANTHONY SAMORA,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Ross C. Sanchez, District Judge
    Bennett J. Baur, Chief Public Defender
    J.K. Theodosia Johnson, Assistant Appellate Defender
    Santa Fe, NM
    for Appellant
    Hector H. Balderas, Attorney General
    Steven H. Johnston, Assistant Attorney General
    Santa Fe, NM
    for Appellee
    OPINION
    CHÁVEZ, Justice.
    {1}      Defendant Anthony Samora was accused of luring a sixteen-year-old male into his
    truck by deception, driving him to a secluded location in Albuquerque, and then forcibly
    penetrating him in the anus. A jury convicted Defendant of second-degree criminal sexual
    penetration in the commission of a felony (CSP-felony), contrary to NMSA 1978, Section
    30-9-11(E)(5) (2007, amended 2009), and first-degree kidnapping, contrary to NMSA 1978,
    Section 30-4-1(A)(4) (2003). Due to sentencing enhancements, Defendant was sentenced
    to life imprisonment with the possibility of parole after thirty years for his CSP-felony
    1
    conviction plus a consecutive eighteen-year sentence for his kidnapping conviction. In this
    direct appeal, Defendant brings a variety of challenges to both convictions, including a
    challenge to the district court for omitting that the sexual act must have been non-consensual
    when instructing the jury on CSP-felony.
    {2}     Because we conclude that it was fundamental error to omit the phrase “without
    consent” from the jury instructions relevant to CSP-felony, we must reverse Defendant’s
    CSP conviction. The same fundamental error also infected the jury’s findings with respect
    to Defendant’s intent to inflict a sexual offense against the alleged victim, and we must
    therefore also reverse Defendant’s kidnapping conviction. Accordingly, we remand this case
    to the district court, where Defendant may be retried on both charges.
    I.     BACKGROUND
    {3}     J.Z.1 was at a bus stop in downtown Albuquerque “bugging people for money” so
    that he could catch a bus home. Defendant approached him, stated that he knew J.Z.’s
    family, and offered to give J.Z. a ride home. J.Z. got into Defendant’s pickup truck, and
    Defendant started driving.
    {4}      J.Z. testified that he soon noticed that Defendant was not driving J.Z. toward his
    house. J.Z. told Defendant he was driving the wrong way, and Defendant did not respond.
    Defendant eventually stopped the truck in a remote location under a highway underpass.
    Defendant then punched J.Z. in the head, and J.Z. became “dizzy.” Defendant pulled down
    J.Z.’s pants, maneuvered him into a receptive position, got on top of J.Z., and penetrated
    J.Z.’s anus with his penis. J.Z. further testified that he tried to escape by opening the
    passenger-side door of Defendant’s truck, but the door would not open. After a few minutes
    Defendant ejaculated and said, “Now I can take you home.” Defendant dropped off J.Z. on
    the west side of Albuquerque at a gas station near a Walmart. J.Z. testified that he was afraid
    to call the police because he did not want to be arrested for a probation violation. He also
    testified that he fought back throughout the encounter but that Defendant threw him around
    and overpowered him. J.Z. was sixteen years old at the time of the alleged crime.
    {5}     Two days later, J.Z. was arrested for absconding from juvenile probation. In jail, J.Z.
    told a counselor that he had been sexually assaulted. J.Z. went through a sexual assault
    1
    Although some mention of the alleged victim’s name was inevitable at trial, we do
    not refer to him by name here because “the constitution and laws of New Mexico require that
    we respect ‘the victim’s dignity and privacy throughout the criminal justice process,’ ” State
    v. Allen, 
    2000-NMSC-002
    , ¶ 2 n.1, 
    128 N.M. 482
    , 
    994 P.2d 728
     (quoting N.M. Const. art.
    II, § 24(A)(1)), and because the alleged victim was a child under NMSA 1978, Section 32A-
    1-4(B) (2005, amended 2016), since state law affords some degree of confidentiality in child
    abuse and neglect cases. See generally NMSA 1978, § 32A-4-33 (2005, amended 2016); see
    also Allen, 
    2000-NMSC-002
    , ¶ 2 n.1.
    2
    nurse examination (SANE exam) four days after the alleged attack. During the SANE exam,
    a nurse took swabs from J.Z.’s anus, penis, and mouth. The nurse found no evidence of any
    injuries on his body, and no DNA from Defendant was found on the swabs.
    {6}     After his release from custody about thirty days later, J.Z. told Jennifer Brown, his
    big sister under the Big Brothers Big Sisters program, what had happened to him and
    described his attacker, including the fact that the attacker wore a GPS monitor on his belt.
    Ms. Brown located a photograph of Defendant and Defendant’s address on a website, and
    from that website photograph J.Z. recognized Defendant as his attacker. J.Z. drove to the
    address listed on the website, and J.Z. identified Defendant’s truck as the truck in which he
    was attacked. State employees later matched the locations and sequence of Defendant’s GPS
    coordinates to those described in J.Z.’s story.
    {7}     Defendant was indicted on two counts of criminal sexual penetration in the second
    degree “by the use of force or coercion on a child thirteen to eighteen years of age” (CSP-
    force/coercion). Section 30-9-11(E)(1). Each count was alternatively charged as CSP-
    felony. Section 30-9-11(E)(5). Defendant was also charged with criminal sexual contact
    of a minor in the fourth degree (CSC), contrary to NMSA 1978, Section 30-9-13(D)(1)
    (2003), and kidnapping, contrary to Section 30-4-1(A)(4). With respect to an allegation that
    Defendant forced J.Z. to engage in fellatio or touched J.Z.’s penis without his consent, the
    jury unanimously found Defendant not guilty of CSP-felony or CSP-force/coercion and not
    guilty of the charge of CSC. The jury also unanimously found Defendant guilty of CSP-
    felony with respect to the allegation of anal penetration and guilty of kidnapping. The jury
    hung on whether Defendant was guilty of CSP-force/coercion with respect to the allegation
    of anal penetration.
    {8}      At a separate sentencing proceeding, see NMSA 1978, § 31-18-26 (1996), the jury
    unanimously found by a preponderance of the evidence that Defendant had been convicted
    of two violent sexual offenses pursuant to NMSA 1978, Section 31-18-25(F) (1997,
    amended 2015), and was accordingly subject to a mandatory enhancement by a sentence of
    life imprisonment. Defendant was sentenced to nine years imprisonment enhanced by a term
    of life imprisonment with the possibility of parole in thirty years for the second-degree CSP-
    felony conviction and to eighteen years imprisonment for first-degree kidnapping, to be
    served consecutively.
    II.    DISCUSSION
    A.      Defendant’s Right to a Speedy Trial Was Not Violated
    {9}    The Sixth Amendment to the United States Constitution guarantees that “[i]n all
    criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” See also N.M.
    Const. art. II, § 14 (“[T]he accused shall have the right to . . . a speedy . . . trial.”).
    Preventing prejudice to the accused is at the heart of the speedy trial right, which also
    emanates from “the concomitant ‘societal interest in bringing an accused to trial.’ ” State
    3
    v. Serros, 
    2016-NMSC-008
    , ¶ 4, 
    366 P.3d 1121
     (quoting State v. Garza, 
    2009-NMSC-038
    ,
    ¶ 12, 
    146 N.M. 499
    , 
    212 P.3d 387
    ). To determine whether the accused has been deprived
    of his speedy trial right, this Court follows the four-factor test established by the United
    States Supreme Court in Barker v. Wingo, 
    407 U.S. 514
     (1972), and considers “(1) the length
    of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant’s
    assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the
    delay.” Garza, 
    2009-NMSC-038
    , ¶ 5 (citing Barker, 
    407 U.S. at 530
    ). The Court “weigh[s]
    these factors according to the unique circumstances of each case in light of ‘the State and the
    defendant’s conduct and the harm to the defendant from the delay.’ ” Id. ¶ 5 (quoting Garza,
    
    2009-NMSC-038
    , ¶ 13). “In reviewing a district court’s ruling on a speedy trial violation
    claim, we defer to the court’s findings of fact, and we weigh and balance the Barker factors
    de novo.” Id. ¶ 20.
    1.      Length of the delay
    {10} The Court must first determine whether the length of the delay is presumptively
    prejudicial. “The first factor, the length of delay, has a dual function: it acts as a triggering
    mechanism for considering the four Barker factors if the delay crosses the threshold of being
    presumptively prejudicial, and it is an independent factor to consider in evaluating whether
    a speedy trial violation has occurred.” Serros, 
    2016-NMSC-008
    , ¶ 22 (internal quotation
    marks and citation omitted). Defendant was arrested and indicted on September 8, 2008, and
    his trial began on November 12, 2013. The State therefore failed to bring the case to trial
    for more than five years. This delay is presumptively prejudicial, regardless of the
    complexity of the case. See Serros, 
    2016-NMSC-008
    , ¶¶ 21-23 (determining that a delay
    of more than four years was “presumptively prejudicial irrespective of the case’s
    complexity”). This sixty-two-month delay is extraordinary and weighs heavily against the
    State. Because the delay is presumptively prejudicial, we must consider the remaining
    Barker factors. Serros, 
    2016-NMSC-008
    , ¶ 22.
    2.      Reasons for the delay
    {11} The Court must evaluate “the reason the government assigns to justify the delay,”
    which “may either heighten or temper the prejudice to the defendant caused by the length
    of the delay.” Id. ¶ 29 (internal quotation marks and citation omitted). If the State
    deliberately attempts to delay the trial to hamper the defense, the delay weighs heavily
    against the State. Id. Negligent or administrative delay must be considered because “the
    ultimate responsibility for such circumstances must rest with the government,” although such
    delay is not weighed as heavily against the State. Id. (internal quotation marks and citation
    omitted). However, “[a]s the length of delay increases, negligent or administrative delay
    weighs more heavily against the State.” Id. Finally, “ ‘appropriate delay,’ justified for ‘a
    valid reason, such as a missing witness,’ is neutral and does not weigh against the State.”
    Id. (quoting Garza, 
    2009-NMSC-038
    , ¶ 27). Delay caused by a defendant weighs against
    that defendant. See Vermont v. Brillon, 
    556 U.S. 81
    , 90, 94 (2009) (holding that the
    defendant’s “deliberate attempt to disrupt proceedings” weighed heavily against the
    4
    defendant).
    {12} In this case, the pretrial delay can be grouped into three time periods: (1) from
    September 8, 2008 until April 2010; (2) from April 2010 until September 2011; and (3) from
    September 2011 until trial in November 2013.
    {13} During the first time period, the parties individually or jointly filed at least a dozen
    motions for continuance stating a variety of reasons, including to negotiate a plea deal that
    potentially included other charges against Defendant, to prepare for trial, and to complete
    discovery. Defendant either stipulated to each of the State’s motions or did not oppose them.
    For the first time on appeal, Defendant asserts that he stipulated to or jointly filed the
    numerous motions for continuance which stated as grounds the need to continue plea
    discussions because of the apparent policy of the Second Judicial District Attorney’s Office
    that only allowed plea negotiations prior to the victim being interviewed. This is the same
    policy that we previously disfavored in Serros because “it is well settled that the possibility
    of a plea agreement does not relieve the State of its duty to pursue a timely disposition of the
    case.” 
    2016-NMSC-008
    , ¶¶ 69, 71-72 (citing State v. Maddox, 
    2008-NMSC-062
    , ¶ 26, 
    145 N.M. 242
    , 
    195 P.3d 1254
     (“The State must affirmatively seek to move the case to trial, even
    while plea negotiations are pending.”)). Here, the plea negotiations were complicated and
    delayed by Defendant’s admission to a parole violation on June 2, 2009, the filing of
    additional criminal sexual penetration charges against Defendant in September 2009, and the
    parties’ effort to reach a plea deal with respect to all charges pending against Defendant and
    not just the charges in this case. There is no evidence that the State deliberately delayed the
    case during this time, and therefore these nineteen months from September 8, 2008 until
    April 2010 weigh only slightly against the State.
    {14} During the second time period, Defendant concedes that he was responsible for
    delaying the trial from April 2010 until February 2011. However, Defendant was also
    responsible for the delay from March 2011 until April 2011 because his attorney missed a
    hearing and filed a motion for a continuance due to a scheduling conflict in another case.
    On May 2, 2011, Defendant filed a request for judicial recusal. This motion was denied, and
    the judge found that the motion was filed for the purpose of delaying the trial. On May 6,
    2011, Defendant petitioned this Court to issue an extraordinary writ reversing the district
    judge. We denied the writ on May 27, 2011. The time relating to Defendant’s petition for
    an extraordinary writ cannot be weighed against the State, and in any event, Defendant
    accepted responsibility for this delay. The district court set the trial for September 6, 2011;
    therefore, we hold that Defendant is solely responsible for the seventeen-month delay from
    April 2010 to September 2011.
    {15} The third time period, the twenty-six-month delay from September 2011 until
    November 2013, involved the district court’s consideration of numerous motions filed by
    both parties and an appeal to this Court. The State appealed an order which excluded a
    statement Defendant made to his counselor, Tewana Bell, which Bell later relayed to police
    officers. In that statement, Defendant told Bell that he had sex with someone whose
    5
    description was consistent with the physical characteristics of the alleged victim. The
    district court entered its order on December 15, 2011 excluding Defendant’s statement
    because of the psychotherapist-patient privilege. See Rule 11-504 NMRA.
    {16} The State then filed a notice of appeal with the district court on December 16, 2011.
    The State appealed to the Court of Appeals, which transferred the appeal to this Court
    pursuant to State v. Smallwood, 
    2007-NMSC-005
    , ¶ 11, 
    141 N.M. 178
    , 
    152 P.3d 821
    ,
    because Defendant, if found guilty, might be sentenced to life in prison. For speedy trial
    purposes in weighing the responsibility assigned to a party for delay caused by an
    interlocutory appeal, courts may consider several factors, including “the strength of the
    Government’s position on the appealed issue, the importance of the issue in the posture of
    the case, and—in some cases—the seriousness of the crime.” United States v. Loud Hawk,
    
    474 U.S. 302
    , 315 (1986). Applying the Loud Hawk analysis, we conclude that the delay
    from the filing of the appeal until our disposition should weigh neutrally because there were
    no unusual delays. First, the State certified that the appeal was not taken for the purpose of
    delay and that the evidence would have been substantial proof of a material fact. Second,
    we are persuaded that the evidence was important because, if admitted, it served as evidence
    that Defendant admitted to having sex with someone who had the specific characteristics of
    the alleged victim. Third, it illustrated the seriousness of a crime that Defendant could be
    subjected to a sentence of life in prison if he were found guilty. Ultimately, this Court issued
    a dispositional order affirming the district court. State v. Samora, No. 33,394, dispositional
    order of affirmance ¶ 13 (N.M. Sup. Ct. Aug. 29, 2013).
    {17} Further, the three and one-half months of motions from September 6, 2011 until
    December 16, 2011 and the two and one-half months between our dispositional order and
    the actual trial on November 12, 2013 are administrative delays which weigh, if at all, only
    slightly against the State.
    {18} To summarize how we have weighed the reasons for the delay, twenty-five months
    weigh slightly against the State, seventeen months weigh against Defendant, and twenty
    months weigh neutrally. Considered together, the parties bear a similar responsibility for
    the delays, and this factor weighs only slightly against the State.
    C.      Assertion of the right
    {19} Under this factor, “[w]e accord weight to the frequency and force of the defendant’s
    objections to the delay and analyze the defendant’s actions with regard to the delay.” State
    v. Spearman, 
    2012-NMSC-023
    , ¶ 31, 
    283 P.3d 272
     (internal quotation marks and citation
    omitted). This inquiry is “closely related to the other Barker factors, because ‘[t]he strength
    of [the defendant’s] efforts will be affected by the length of the delay, to some extent by the
    reason for the delay, and most particularly by the personal prejudice, which is not always
    readily identifiable, that [the defendant] experiences.’ ” Garza, 
    2009-NMSC-038
    , ¶ 31
    (quoting Barker, 
    407 U.S. at 531
    ) (alterations in original). Further, “[t]he timeliness and
    vigor with which the right is asserted may be considered as an indication of whether a
    6
    defendant was denied needed access to [a] speedy trial over his objection or whether the
    issue was raised on appeal as [an] afterthought.” Serros, 
    2016-NMSC-008
    , ¶ 76 (second and
    third alterations in original) (internal quotation marks and citation omitted).
    {20} Defendant did not meaningfully assert his right, and therefore this factor does not
    support his speedy trial claim. Defendant made a pro forma assertion of his right on October
    30, 2008, when the Public Defender Department entered its appearance on his behalf. The
    only other time he asserted the right was five years later in his October 25, 2013 motion to
    dismiss on speedy trial grounds. Considered alone, these two assertions would often be
    enough to weigh this factor slightly in favor of Defendant. See, e.g., Spearman, 2012-
    NMSC-023, ¶¶ 32-33 (holding that the defendant’s initial pro forma assertion along with a
    motion to dismiss based on a speedy trial violation weighed against the State). However,
    Defendant’s assertions of the right were mitigated by his acquiescence to, and responsibility
    for, numerous delays. See Garza, 
    2009-NMSC-038
    , ¶ 34 (holding that the defendant’s
    assertion of the right at the outset of the case along with a motion to dismiss based on a
    speedy trial violation weighed “slightly” in the defendant’s favor where the assertion was
    not “mitigated . . . by any apparent acquiescence to the delay” by the defendant). In this
    case, Defendant either stipulated to or did not oppose the State’s numerous motions for a
    continuance and was himself responsible for seventeen months of delay. Admittedly, it is
    difficult to determine whether Defendant only stipulated to the continuances because of the
    district attorney’s policy of not allowing plea deals after pretrial interviews with victims.
    In the petition for continuance filed on December 4, 2009, the State noted that “Defendant
    has chosen to forgo pretrial interviews of the victims until all written discovery is complete
    in both cases and to encourage a more favorable plea offer from the State.” This may
    suggest that Defendant at least partially stipulated to the continuances because of the district
    attorney’s policy. Further, in the petition for continuance filed on March 3, 2010, the State
    said that “[t]he parties are in the process of setting up pretrial interviews and preparing for
    trial in both cases should negotiations fall through . . . .” While this also may suggest that
    Defendant stipulated due to the policy, it is certainly not conclusive. If Defendant felt
    compelled to concur in the State’s motions for a continuance because of the district
    attorney’s policy, he could have stated so in a pleading to the district court so that the court
    could consider Defendant’s position in assessing whether to grant or deny the motion. We
    are left to speculate whether Defendant truly felt compelled to stipulate to the continuances
    or whether his counsel simply decided it was not urgent to conduct pre-trial interviews
    because Defendant had access to J.Z.’s safehouse interview and could prepare his case on
    that basis. Defendant also demonstrated a lack of concern for his speedy trial right by
    delaying his trial for seventeen months. Defendant’s assertion of his speedy trial right only
    at the very beginning and very end of the pretrial period, his continued stipulations to the
    State’s continuances, and his own significant contributions to the delay all show that his
    assertion of his speedy trial right was only an afterthought, and therefore this factor does not
    weigh in his favor.
    D.     Prejudice
    7
    {21} This Court must analyze three separate interests to determine whether Defendant
    suffered prejudice: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety
    and concern of the accused; and (iii) to limit the possibility that the defense will be
    impaired.” Garza, 
    2009-NMSC-038
    , ¶ 35 (internal quotation marks and citation omitted).
    Defendant must make a particularized showing of prejudice to demonstrate a violation of any
    of the three interests. Id. ¶¶ 35, 37. Because some oppression and anxiety are inevitably
    suffered by every defendant awaiting trial, “we weigh this factor in the defendant’s favor
    only where the pretrial incarceration or the anxiety suffered is undue.” Id. ¶ 35.
    {22} Here, Defendant has not asserted any particularized prejudice, such as identifying a
    witness whose memory may have been impaired by the delay. See Serros, 
    2016-NMSC-008
    ,
    ¶ 92 (holding that the inability to interview the very young victim for four years prejudiced
    the defendant’s ability to defend himself at trial). Nor has Defendant made a particularized
    showing that he suffered undue anxiety or oppressive pretrial incarceration. Furthermore,
    despite being incarcerated for more than five years while awaiting trial in this case,
    Defendant would have been incarcerated on the new CSP charge brought in September 2009,
    and other serious criminal charges were also brought against him a year into the pendency
    of this case. Cf. id. ¶¶ 88-91 (determining that the defendant being held in segregated
    protective custody on a single charge for over four years was extremely prejudicial). We
    hold that Defendant did not articulate any particularized prejudice that he suffered as a result
    of the lengthy delay in this case.
    5.     Balancing the factors
    {23} To find a speedy trial violation without a showing of actual prejudice, the Court must
    find that the three other Barker factors weigh heavily against the State. Garza, 2009-NMSC-
    038, ¶ 39. While the extraordinary length of the delay in this case weighs heavily against
    the State, the reasons for the delay weigh only slightly against the State, and Defendant did
    not meaningfully assert his speedy trial right. Therefore, we conclude that there was no
    speedy trial violation. Accordingly, we must examine Defendant’s other claims.
    B.     The District Court Committed Fundamental Error by Failing to Instruct on the
    Consent Element of CSP-Felony
    {24} The district court instructed the jury that to convict Defendant of CSP, CSC, or
    kidnapping, the jury must find beyond a reasonable doubt that he committed an act that was
    “unlawful.” The jury instructions defined an unlawful act as follows: “For the act to have
    been unlawful it must have been done with the intent to arouse or gratify sexual desire or to
    intrude upon the bodily integrity or personal safety of [J.Z.].” This instruction reflected UJI
    14-132 NMRA, except that it failed to include the bracketed phrase “without consent,”
    which would have clarified that any sexual contact between J.Z. and Defendant had to be
    non-consensual for the jury to determine that Defendant’s act was “unlawful.”
    {25}   If unlawfulness is at issue, then consent is an essential element of CSP-felony. CSP
    8
    is defined, in relevant part, as “the unlawful and intentional causing of a person to engage
    in . . . anal intercourse . . . whether or not there is any emission.” Section 30-9-11(A). The
    crime of CSP-felony requires that CSP be perpetrated “in the commission of any other
    felony.” Section 30-9-11(E)(5). In State v. Stevens, we examined historical sources relevant
    to CSP-felony and determined that the Legislature “has never deviated from the common law
    approach of criminalizing only those sex acts that are perpetrated on persons without their
    consent, either as a matter of fact or, in the case of children or other vulnerable victims, as
    a matter of law.” 
    2014-NMSC-011
    , ¶ 27, 
    323 P.3d 901
    . Accordingly, we concluded that
    the CSP-felony offense was intended to criminalize only “sexual acts perpetrated on persons
    without their consent . . . .” Id. ¶ 39 (emphasis added). Therefore, to convict under this
    provision, the jury must determine that the underlying felony was “committed against the
    victim of, and . . . assist[ed] in the accomplishment of, sexual penetration perpetrated by
    force or coercion against a victim who, by age or other statutory factor,” did not or could not
    give lawful consent. Id.
    {26} Here, the State provided the unlawfulness jury instruction to the district court and
    argued that “without consent” had been properly omitted because the issue of consent was
    “legally irrelevant” to the unlawfulness of CSP-felony in this case under State v. Moore,
    
    2011-NMCA-089
    , 
    150 N.M. 512
    , 
    263 P.3d 289
    . Yet, as the State acknowledges on appeal,
    Moore is inapplicable to this case. Moore held that “the consent of a statutorily defined
    child is irrelevant to the unlawfulness element of CSP[-felony],” and it was therefore proper
    in Moore to omit the phrase “without consent” from the jury instructions when the alleged
    victim was fourteen years old and the defendant was forty-six years old. Id. ¶¶ 13-16. As
    we noted in Stevens, 
    2014-NMSC-011
    , ¶¶ 20, 40, Moore’s reference to a “ ‘statutorily
    defined child’ ” meant a child “below the age of consent.” The age of consent, and whether
    the lack of consent is an aspect of the unlawfulness element of CSP, varies statutorily
    depending on the perpetrator’s age, the child’s age, and other factors as follows. Under
    Section 30-9-11(D), any sexual penetration of a child under thirteen years old is first-degree
    CSP because the child cannot legally consent to sex. Section 30-9-11(E)(1) punishes as
    second-degree CSP any sexual penetration of a child between the ages of thirteen and
    eighteen years old by the use of force or coercion. Under that form of CSP, if the
    prosecution has proved that force or coercion was used by the perpetrator, it has also
    necessarily proved that the act was non-consensual, and a separate finding of a lack of
    consent is not required. See State v. Perea, 
    2008-NMCA-147
    , ¶ 9, 
    145 N.M. 123
    , 
    194 P.3d 738
     (“Consent of a child between the ages of thirteen and sixteen to engage in sexual
    intercourse is irrelevant where force or coercion is involved.”). Section 30-9-11(G)(1)
    punishes any sexual penetration, regardless of consent, where the child is between thirteen
    and sixteen years old and the perpetrator is at least eighteen years old, is at least four years
    older than the child, and is not the child’s spouse. See Moore, 
    2011-NMCA-089
    , ¶ 11
    (concluding that “[a child’s] consent or lack thereof is legally irrelevant” under Section 30-9-
    11(6)(1)). Finally, under Section 30-9-11(G)(2), consent is irrelevant when the child is
    between the ages of thirteen and eighteen years old and the perpetrator is a school employee
    or volunteer, the perpetrator is at least eighteen years old, is at least four years older than the
    child, and is not the child’s spouse, and the perpetrator learns while performing services for
    9
    the school that the child is a student at the school. Unlike in Moore, where the victim was
    fourteen years old, whether J.Z. consented to sex with Defendant was legally relevant to the
    CSP-felony charge because sixteen-year-old J.Z. could have legally consented to sex with
    Defendant. Therefore, the omission of “without consent” from the jury instructions was
    erroneous.
    {27} Because Defendant failed to object to the proffered jury instruction or otherwise
    preserve this issue at trial, we will only reverse if the omission of “without consent” was
    fundamental error. See Stevens, 
    2014-NMSC-011
    , ¶ 42. “Fundamental error only applies
    in exceptional circumstances when guilt is so doubtful that it would shock the judicial
    conscience to allow the conviction to stand.” 
    Id.
     (internal quotation marks and citation
    omitted). Under this standard, we must determine whether a reasonable juror would have
    been confused or misdirected “not only from instructions that are facially contradictory or
    ambiguous, but from instructions which, through omission or misstatement, fail to provide
    the juror with an accurate rendition of the relevant law.” State v. Benally, 
    2001-NMSC-033
    ,
    ¶ 12, 
    131 N.M. 258
    , 
    34 P.3d 1134
    . “In applying the fundamental error analysis to deficient
    jury instructions, we are required to reverse when the misinstruction leaves us with ‘no way
    of knowing whether the conviction was or was not based on the lack of the essential
    element.’ ” State v. Montoya, 
    2013-NMSC-020
    , ¶ 14, 
    306 P.3d 426
     (quoting State v. Swick,
    
    2012-NMSC-018
    , ¶ 46, 
    279 P.3d 747
    ).
    {28} “[I]f the instructions omitted an element which was at issue in the case, the error
    could be fundamental.” State v. Orosco, 
    1992-NMSC-006
    , ¶ 9, 
    113 N.M. 780
    , 
    833 P.2d 1146
    . Accordingly, we initially examine whether J.Z.’s consent was at issue in this case to
    determine whether the omission of this element could be fundamental error. Cf. id. ¶¶ 9-20
    (concluding that it was not fundamental error to omit the unlawfulness element of criminal
    sexual contact of a minor under age thirteen where there was no evidence putting the
    lawfulness of the alleged acts “in issue,” and therefore “no rational jury could have
    concluded that defendants had committed the acts without also determining that the acts
    were performed in the manner proscribed by law”). There is some evidence in the record
    that could have led the jury to infer that consent was at issue in this case. First, there was
    no evidence of physical injuries to corroborate J.Z.’s story that Defendant held him down
    and forced him to have sex. Second, during his interview with police Defendant did not deny
    having sex on May 25, 2008, so it would be possible to infer that he had consensual sex with
    J.Z. on that date. Third, Defendant’s rigorous cross-examination of J.Z. focused on J.Z.’s
    changing account of the alleged sexual assault and his alleged unreliability. If the jury
    believed that J.Z. was in some way unreliable or not telling the truth, the jurors could have
    reasonably concluded that Defendant and J.Z. went to a remote location and engaged in
    consensual sex. Based on this testimony, we conclude that there was sufficient evidence
    presented to the jury to put consent at issue in this case, and we must therefore determine
    whether the omission of this essential element was fundamental error.
    {29} Fundamental error occurs when jury instructions fail to inform the jurors that the
    State has the burden of proving an essential element of a crime and we are left with “no way
    10
    of knowing” whether the jury found that element beyond a reasonable doubt. Swick,
    
    2012-NMSC-018
    , ¶ 46; see also Rule 5-608(A) NMRA (“The court must instruct the jury
    upon all questions of law essential for a conviction of any crime submitted to the jury.”).
    However, we need not conclude that there was fundamental error despite the court’s failure
    to instruct on an essential element where “the jury’s findings, in light of the undisputed
    evidence in the case, necessarily establish that the [omitted] element was met beyond a
    reasonable doubt.” Orosco, 
    1992-NMSC-006
    , ¶ 15. For instance, in Stevens we held that
    it was not fundamental error to omit the element of unlawfulness from a CSP-felony
    instruction because the jury found beyond a reasonable doubt that the alleged sexual act
    occurred between the thirteen-year-old victim and the defendant’s boyfriend, who was at
    least ten years older than the victim, and that under those circumstances, the sexual act could
    not be other than unlawful. 
    2014-NMSC-011
    , ¶¶ 43-46. In other words, the jury’s finding
    in Stevens that the sexual act occurred beyond a reasonable doubt was necessarily also a
    finding that the act was unlawful beyond a reasonable doubt because the victim in that case
    could not legally consent to sex with that defendant, and there was no other evidence
    suggesting that the alleged sexual act could have been otherwise lawful, such as a touching
    for purposes of reasonable medical treatment. See 
    id.
     Further, in State v. Cunningham, the
    failure to instruct on the essential element of unlawfulness or self-defense was not
    fundamental error because the jury received a separate self-defense instruction containing
    the appropriate burden of proof and the jurors specifically found beyond a reasonable doubt
    that the defendant did not act in self-defense, a finding which also satisfied the essential
    element that was erroneously excluded. 
    2000-NMSC-009
    , ¶¶ 9, 20-22, 
    128 N.M. 711
    , 
    998 P.2d 176
    .
    {30} Turning to this case, to ascertain whether fundamental error occurred, we must
    “review the entire record, placing the jury instructions in the context of the individual facts
    and circumstances of the case, to determine whether the Defendant’s conviction was the
    result of a plain miscarriage of justice.” State v. Sutphin, 
    2007-NMSC-045
    , ¶ 19, 
    142 N.M. 191
    , 
    164 P.3d 72
     (internal quotation marks and citations omitted). The State argues that if
    the omission of the entire “unlawful” element was not fundamental error in Stevens, then the
    district court’s inclusion of that element and omission of only two words (“without consent”)
    cannot be fundamental error in this case. However, as we have previously discussed,
    unlawfulness is at issue in this case, where at age sixteen the alleged victim had passed the
    age of consent, unlike the thirteen-year-old victim in Stevens who legally could not consent
    pursuant to Section 30-9-11(G)(1), and the conclusion that no fundamental error occurred
    in Stevens is therefore not dispositive here. The State further contends that the jury’s other
    findings demonstrate that the jurors must have ultimately concluded that J.Z. did not consent
    to anal penetration by Defendant.
    {31} The jury convicted Defendant of kidnapping by finding beyond a reasonable doubt
    that J.Z. was taken, restrained, confined, or transported by force, intimidation, or deception
    by Defendant. As part of the kidnapping conviction, the jury also found that Defendant
    intended to hold J.Z. against his will to inflict death, physical injury, or a sexual offense on
    him. However, the jury’s conclusions regarding Defendant’s act of kidnapping do not
    11
    establish beyond a reasonable doubt that it considered Defendant’s separate act of anally
    penetrating J.Z. to have been non-consensual beyond a reasonable doubt, despite the fact that
    it found the anal penetration in this case to have taken place during the commission of
    kidnapping. The jury further found that Defendant committed a “sexual offense” against J.Z.
    during the kidnapping, despite the absence of a definition of “sexual offense” in the jury
    instruction. Therefore, the jury also could have reached this finding without an
    understanding that in this case, it had to find beyond a reasonable doubt that the anal
    penetration was non-consensual for Defendant’s act to constitute a sexual offense. Finally,
    the jury hung on an alternative CSP-force/coercion count with respect to Defendant’s anal
    penetration of J.Z. The only significant distinction between the jury instructions regarding
    CSP-force/coercion and those regarding CSP-felony was that the CSP-force/coercion
    instruction required the jury to additionally conclude beyond a reasonable doubt that
    Defendant used physical force, physical violence, or threats of physical force or physical
    violence against J.Z. While a finding that force or coercion was used during the sexual
    penetration is certainly not necessary to establish a lack of consent, if the jury had found this
    element beyond a reasonable doubt under the alternative count, we would have no
    misgivings in concluding that the jury also necessarily found beyond a reasonable doubt that
    the sexual penetration in this case was non-consensual. Yet the jury apparently hung on this
    very element, and we therefore cannot draw any definitive conclusions regarding the jury’s
    understanding of the role of consent from their findings regarding the CSP-force/coercion
    charge.
    {32} Moreover, we agree with Defendant that the juror questions submitted during trial
    hinted at juror confusion regarding the issue of consent. The record indicates that several
    juror questions were submitted to the district judge after the jurors were provided with the
    instructions. In one of those questions, a juror asked “[h]ow old you have to be to have
    consentual [sic] sex . . . ? We think [the SANE nurse] said the age was 13.” Indeed, the
    SANE nurse who examined J.Z. testified that the age of consent in New Mexico was
    thirteen. Another juror asked what it meant that Defendant’s act needed to be “unlawful,”
    and further stated that the term “seems conclus[ory] or unnecessary.” The district court
    responded to these questions by instructing the jurors, “you are to decide this case based on
    the testimony at trial and the jury instructions as a whole.” These questions indicate some
    level of confusion regarding the age of consent in New Mexico and the meaning of the
    “unlawful act” element of CSP-felony, and further support our conclusion that the jurors in
    this case may have been confused or misdirected as to whether Defendant could have still
    acted unlawfully if J.Z. had consented to sex. See Benally, 
    2001-NMSC-033
    , ¶ 12 (“Under
    [fundamental error review,] we seek to determine whether a reasonable juror would have
    been confused or misdirected by the jury instruction.” (emphasis added) (internal quotation
    marks and citations omitted)). Accordingly, we hold that in the circumstances of this case,
    it was fundamental error to omit the element of consent from the jury instructions that were
    relevant to CSP-felony.
    {33} Defendant only requests that his CSP-felony conviction be reversed as a result of this
    error. However, we are responsible for determining whether this fundamental error also
    12
    infected his conviction for kidnapping. See State v. Arrendondo, 
    2012-NMSC-013
    , ¶ 20,
    
    278 P.3d 517
     (concluding that appellate courts have a responsibility to raise issues sua
    sponte when it is necessary to protect a party’s fundamental rights); see also State v.
    Cabezuela, 
    2011-NMSC-041
    , ¶ 39, 
    150 N.M. 654
    , 
    265 P.3d 705
     (“It is the fundamental right
    of a criminal defendant to have the jury determine whether each element of the charged
    offense has been proved by the state beyond a reasonable doubt.” (internal quotation marks
    and citations omitted)). We conclude that the error of omitting the element of consent from
    the jury instruction affected the kidnapping conviction. The jury instructions did not define
    the term “sexual offense” beyond providing the elements of CSP and CSC through other
    instructions. Because the jury may have been confused or misdirected as to whether
    consensual sex between J.Z. and Defendant could still be a sexual offense, then the jury’s
    finding under the kidnapping charge that Defendant intended to inflict death, physical injury,
    or a sexual offense on J.Z. was necessarily infected by the same potential confusion,
    affecting the verdict on the kidnapping charge in this case where there was not sufficient
    evidence to support the inference that Defendant intended to inflict death or a physical injury
    on J.Z. Therefore, because we cannot determine whether the jury found that the sexual act
    was non-consensual beyond a reasonable doubt, we must also reverse Defendant’s
    kidnapping conviction for fundamental error.
    {34} Because we have determined that we must reverse Defendant’s convictions for CSP-
    felony and kidnapping, we are required to determine whether sufficient evidence was
    presented to support these convictions to avoid double jeopardy concerns should the State
    seek to retry Defendant. State v. Dowling, 
    2011-NMSC-016
    , ¶ 18, 
    150 N.M. 110
    , 
    257 P.3d 930
    ; Cabezuela, 
    2011-NMSC-041
    , ¶ 40. “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.”
    Id. ¶ 42 (internal quotation marks and citation omitted). In doing so, 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.” Id. (internal quotation marks
    and citation omitted).
    {35} There was sufficient evidence to support Defendant’s kidnapping and CSP-felony
    convictions. In this case, the alleged victim’s testimony was by itself enough to establish
    every element of each offense beyond a reasonable doubt under a sufficiency of the evidence
    review. The jury could have reasonably inferred that Defendant took or transported J.Z. by
    deception based on J.Z.’s testimony that he got into Defendant’s truck because Defendant
    said that he would take J.Z. home. Alternatively, J.Z. also testified that when he tried to
    escape from Defendant’s truck, the door was locked—testimony from which the jurors could
    have reasonably concluded that Defendant confined J.Z. by force. Further, the jurors could
    have reasonably inferred that Defendant intended to hold J.Z. against J.Z.’s will to inflict a
    sexual offense against him based on J.Z.’s testimony that Defendant took him to a remote
    location, pulled down J.Z.’s pants, and then penetrated his anus. This evidence also supports
    a reasonable inference that Defendant caused J.Z. to engage in anal intercourse.
    Additionally, the jury also could have reasonably concluded that Defendant’s statement to
    13
    J.Z. after ejaculating—“Now I can take you home”—indicated that Defendant transported
    J.Z. to a remote location and confined him there for the purpose of inflicting a sexual offense
    on him. J.Z.’s testimony regarding the sexual act in this case also supported a reasonable
    inference that Defendant’s act against J.Z. was unlawful because the jury could have inferred
    that it was done without J.Z.’s consent and for the purpose of gratifying Defendant’s sexual
    desire or to intrude upon J.Z.’s bodily safety or integrity. Further, because J.Z.’s account
    supported a conviction for kidnapping, the jury could have reasonably determined that the
    CSP in this case was committed during the course of the kidnapping since the sexual
    penetration occurred while J.Z. was either being transported by deception or confined by
    force. Ultimately, if the jury believed J.Z.’s story regarding his encounter with Defendant,
    it could have reasonably found that every element of both crimes was met beyond a
    reasonable doubt. Therefore, Defendant may be retried on both charges.
    {36} Because we have determined that the omission of consent from the jury instructions
    rose to the level of fundamental error and requires reversal of both convictions, we need not
    reach the other issues raised by Defendant. However, to provide guidance on remand, we
    address (1) the admission of GPS evidence and online identification evidence, and (2) the
    scope of Defendant’s cross-examination of J.Z., but not any of the other arguments raised
    by Defendant. See State v. Allison, 
    2000-NMSC-027
    , ¶ 1, 
    129 N.M. 566
    , 
    11 P.3d 141
    (stating that the Court may address additional issues “[f]or guidance upon remand”); State
    v. Torres, 
    1999-NMSC-010
    , ¶ 8, 
    127 N.M. 20
    , 
    976 P.2d 20
     (same).
    III.   The District Court Did Not Abuse Its Discretion by Admitting Evidence
    Regarding J.Z.’s Identification of Defendant via the Internet or by Allowing
    Testimony Regarding the Fact that Defendant Was Subject to GPS Monitoring
    {37} Defendant claims that the district court abused its discretion by admitting evidence
    that he wore a GPS monitoring device and that J.Z. found Defendant’s picture, name, and
    address on an Internet website. Absent a clear abuse of discretion, we will not reverse a trial
    judge’s decision to admit evidence. State v. Apodaca, 
    1994-NMSC-121
    , ¶ 23, 
    118 N.M. 762
    , 
    887 P.2d 756
    . “An abuse of discretion occurs when the ruling is clearly against the
    logic and effect of the facts and circumstances of the case. We cannot say the trial court
    abused its discretion by its ruling unless we can characterize it as clearly untenable or not
    justified by reason.” 
    Id.
     (internal quotation marks and citations omitted).
    {38} Prior to trial, Defendant filed a motion to exclude any evidence that he wore a GPS
    tracker and was subject to GPS monitoring by the State, and any evidence that J.Z. identified
    Defendant while viewing New Mexico’s online sex offender registry. The district court ruled
    that the State could elicit the fact that Defendant was wearing a GPS device, but that it could
    not describe the nature of Defendant’s underlying conviction. The district court later
    specified that if the GPS monitoring information was elicited through the testimony of parole
    authorities, they should simply be introduced as employees of the State of New Mexico
    without any further detail. The district court further held that the State could introduce
    evidence that J.Z. found Defendant’s picture and other identifying information “on the
    14
    Internet,” but could not be more specific about the nature of the website.
    {39} As an initial matter, we reject Defendant’s argument that we should consider his offer
    to stipulate to being with J.Z. at the time and place of the alleged sexual assault as precluding
    the State’s need for the online identification and GPS evidence admitted by the district court.
    The State is “not bound to present its case to the jury through abstract stipulations,” despite
    a defendant’s offer to stipulate to certain facts. State v. Martinez, 
    1999-NMSC-018
    , ¶ 34,
    
    127 N.M. 207
    , 
    979 P.2d 718
    . For example, in State v. Sarracino, this Court held that it was
    not an abuse of discretion to allow the State to elicit testimony regarding statements made
    by the defendant while threatening a couple with a gun when the defendant had offered to
    stipulate to making the statements and had claimed that the circumstances surrounding their
    admission would be impermissible evidence of prior bad acts. 
    1998-NMSC-022
    , ¶¶ 5, 21-
    22, 
    125 N.M. 511
    , 
    964 P.2d 72
    . In that case, we looked only to whether the evidence of this
    uncharged prior bad act fit within an exception to Rule 11-404(B) NMRA, and did not
    consider the defendant’s stipulation offer in our analysis. See Sarracino, 
    1998-NMSC-022
    ,
    ¶ 22. Similarly, in this case we need not consider Defendant’s offer to stipulate that he was
    with J.Z. at the times and places alleged to determine whether the GPS and online
    identification evidence was admissible under either Rule 11-404(B) or Rule 11-403 NMRA,
    or whether it improperly bolstered J.Z.’s testimony.
    {40} We also disagree with Defendant’s contention that admission of “[t]he fact that
    [Defendant] was on GPS monitoring and that his name and address were listed on a website
    inexorably leads to one conclusion: he was a convicted sex offender” and that this evidence
    was therefore improper evidence of prior bad acts under Rule 11-404(B). Rule 11-404(B)(1)
    excludes “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in
    order to show that on a particular occasion the person acted in accordance with [that]
    character.” This rule only “prohibits the use of otherwise relevant evidence when its sole
    purpose or effect is to prove criminal propensity.” State v. Gallegos, 
    2007-NMSC-007
    , ¶
    22, 
    141 N.M. 185
    , 
    152 P.3d 828
     (emphasis added). However, such “evidence may be
    admissible for another purpose, such as proving motive, opportunity, intent, preparation,
    plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2). In
    considering the online identification evidence in this case, the district court opined that
    “nowadays computer access and computer use is very common . . . . I’ve thought about the
    whole issue of computer access and computer use, and we’re in a new age, and it’s the 21st
    century, and it’s just a fact of life.” We hold that it was not an abuse of discretion for the
    district court to conclude that the limited information admitted regarding J.Z.’s identification
    of Defendant through online information did not constitute evidence of a crime, a wrong, or
    another act under Rule 11-404(B). The district court also determined that evidence of
    Defendant’s GPS coordinates on the date of the alleged crime and the fact that he was
    wearing a GPS tracking device were admissible because they showed “identity, opportunity
    and lack of mistake.” We again conclude that it was not an abuse of discretion in this case
    to admit limited evidence that Defendant was on GPS monitoring. The evidence did not
    have the sole purpose or effect of proving criminal propensity, but was instead probative to
    material facts in the case because (1) J.Z. testified that the person who assaulted him was
    15
    wearing a GPS monitor on his belt, which Defendant was required to wear; and (2)
    Defendant’s GPS coordinates placed him in the same locations where J.Z. claimed to have
    been assaulted.
    {41} We reject Defendant’s additional contention that the probative value of the online
    identification and GPS evidence was substantially outweighed by a danger of unfair
    prejudice from its admission under Rule 11-403. As we have previously discussed, the
    district court limited the online identification evidence presented at trial to completely
    exclude the fact that J.Z. found Defendant’s picture at an online sex offender registry. The
    district court did not abuse its discretion by admitting this limited version of J.Z.’s
    identification of Defendant because it was reasonable to conclude that the mere fact that J.Z.
    found Defendant’s picture, name, and address online, without any additional information,
    was completely unremarkable and neither reflected negatively on Defendant nor created a
    danger of unfair prejudice. Similarly, the GPS evidence was limited to prevent any mention
    of why Defendant was being monitored. Under the circumstances of this case, the generic
    information that Defendant was subject to GPS monitoring was not overly prejudicial, and
    contrary to Defendant’s suggestion, did not strongly imply that Defendant was a sex
    offender. During the hearing on Defendant’s motion to exclude, the district court concluded
    that individuals may wear a GPS device and be monitored by state employees for a variety
    of reasons, including pretrial monitoring programs and probation in cases not involving sex
    offenses. Indeed, during voir dire, two prospective jurors mentioned that they associated
    GPS monitoring with a DWI or other alcohol-related offense, but none of the prospective
    jurors mentioned any specific association with sex offenses. Thus, we do not conclude that
    there was an abuse of discretion in the district court’s admission of the information that
    Defendant was subject to GPS monitoring by the State, without anything more, because any
    prejudice to Defendant did not substantially outweigh the probative value of this evidence
    in identifying Defendant as J.Z.’s alleged attacker.
    {42} Finally, we reject Defendant’s contention that presenting the online identification and
    GPS evidence improperly bolstered J.Z.’s credibility. Evidence will be excluded as
    improper bolstering when it directly comments on a witness’s credibility, but not when it
    provides “[i]ncidental verification” of a witness’s story or only indirectly bolsters that
    witness’s credibility. State v. Alberico, 
    1993-NMSC-047
    , ¶ 89, 
    116 N.M. 156
    , 
    861 P.2d 192
    . For example, in State v. Lucero, a psychiatrist’s testimony was improper bolstering
    when she commented directly on the victim’s credibility, repeatedly mentioned that the
    victim claimed to have been assaulted by the defendant, and opined that the victim’s post-
    traumatic stress disorder was caused by sexual molestation. 
    1993-NMSC-064
    , ¶¶ 5-6, 15-17,
    
    116 N.M. 450
    , 
    863 P.2d 1071
    . However, in this case the GPS evidence and online
    identification evidence only corroborated J.Z.’s testimony; it did not comment directly on
    his credibility or impinge in any way on the jury’s role of assessing J.Z.’s story and
    determining whether he was telling the truth. Therefore, the admission of this evidence was
    not an abuse of the district court’s discretion.
    IV.    The District Court’s Limitation of Defendant’s Cross-Examination of J.Z. Was
    16
    Not an Abuse of Discretion and Did Not Violate Defendant’s Rights under the
    Confrontation Clause
    {43} Defendant argues that the district court erred by limiting his cross-examination of
    J.Z. Generally, “[t]he district court has broad discretion to control the scope of
    cross-examination, including the discretion to control cross-examination to ensure a fair and
    efficient trial.” State v. Bent, 
    2013-NMCA-108
    , ¶ 10, 
    328 P.3d 677
     (citation omitted). Prior
    to trial, the State filed a motion seeking to exclude Defendant from using any of J.Z.’s
    juvenile adjudications for impeachment purposes, to limit Defendant to only inquiring about
    the number of J.Z.’s felony convictions, and to exclude Defendant from using the names of
    any of those felonies with the exception of J.Z.’s conviction for commercial burglary. The
    record indicates that Defendant did not file a written response. The district court held a
    hearing on this motion and ruled that (a) the names of J.Z.’s juvenile adjudications were not
    to be presented to the jury; (b) Defendant could mention J.Z.’s violations of his juvenile
    probation right after the alleged incident with Defendant because that was “a matter of
    motive”; (c) Defendant could not cross-examine J.Z. regarding J.Z.’s convictions for
    possession of a firearm by a felon and contributing to the delinquency of a minor as a result
    of a DWI because “it confuses the jury, it gets [them] into a mini trial,” while J.Z.’s other
    felony convictions went to credibility and were fair game; (d) however, Defendant could
    refer to the existence of these other felony convictions without naming them; and (e)
    Defendant could ask about charges pending against J.Z., but could not detail those charges
    and could not bring in extrinsic evidence to prove them.
    {44} First, Defendant contends that it was improper to limit cross-examination regarding
    J.Z.’s prior convictions and his experience with the criminal justice system as an adult and
    as a juvenile. Under Rule 11-609(D) NMRA, prior juvenile adjudications are admissible for
    impeachment of a witness only when they are offered in a criminal case, the witness is not
    the defendant, an adult’s conviction for that offense would normally be admissible to attack
    credibility, and admitting the evidence is necessary to fairly determine guilt or innocence.
    At the hearing on the State’s motion, the district court indicated that Defendant could use
    J.Z.’s juvenile criminal history to show that J.Z. was in juvenile detention when he first
    accused Defendant and that his detention may have given him a motive to lie. At the
    hearing, Defendant agreed that he did not need to name J.Z.’s prior juvenile convictions, and
    the district court acknowledged that concession on the record. Therefore, Defendant did not
    properly preserve for appeal any objection with respect to the scope of permissible cross-
    examination regarding J.Z.’s juvenile convictions. See State v. Varela, 
    1999-NMSC-045
    ,
    ¶ 25, 
    128 N.M. 454
    , 
    993 P.2d 1280
     (“In order to preserve an error for appeal, it is essential
    that the ground or grounds of the objection or motion be made with sufficient specificity to
    alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then
    be invoked.” (internal quotation marks and citation omitted)).
    {45} As to J.Z.’s adult convictions, under Rule 11-609(A) the district court must admit
    prior adult convictions for impeachment purposes if (1) the conviction is for any crime that
    is punishable by imprisonment for more than a year, subject to the balancing test of Rule 11-
    17
    403, or (2) the conviction is for any crime involving a dishonest act or false statement. The
    district court permitted Defendant to refer by name to J.Z.’s felony convictions for
    commercial burglary, conspiracy to tamper with evidence, and a probation violation on the
    charge of receiving or transferring a stolen vehicle. The district court also exercised its
    discretion under Rule 11-609(A)(1) by preventing Defendant from mentioning by name
    J.Z.’s prior convictions for possession of a firearm by a felon and contributing to the
    delinquency of a minor under Rule 11-403. However, Defendant would still be allowed to
    refer to the existence of these other felony convictions without naming those offenses. On
    appeal, Defendant does not state which specific convictions he should have been allowed to
    name, but instead merely makes a general reference to the jury’s potential “misunderstanding
    of [J.Z.’s] possible motives and the extent to which he was familiar with the horse-trading
    aspect of the criminal justice system.” We hold that the district court did not abuse its
    discretion in limiting how Defendant could refer to two of J.Z.’s prior adult felony
    convictions. Contrary to Defendant’s arguments, the district court’s ruling still allowed
    Defendant to elicit that J.Z. had frequent encounters with the criminal justice system and to
    argue that J.Z. was exaggerating his story to get a deal on some of his other charges.
    {46} Second, Defendant asserts that it was an abuse of discretion for the district court to
    limit his cross-examination of J.Z. regarding how J.Z. made his living on the streets,
    including the fact that J.Z. “used and/or sold drugs.” The record reflects that Defendant
    elicited testimony from J.Z. that J.Z. was hustling, panhandling, and selling drugs to survive
    on the streets. The district court then cut off any additional questions from Defendant
    regarding how J.Z. made his living on the streets because the court reasoned that selling
    drugs and being homeless was impermissible character evidence that was not relevant to any
    issues either in the case or to J.Z.’s credibility. However, the district court later allowed
    Defendant to elicit testimony from J.Z. that he had a bad memory from using drugs,
    presumably because that testimony was relevant to the jury’s assessment of J.Z.’s reliability
    as a witness. Under these circumstances, we conclude that it was not an abuse of discretion
    for the district court to limit Defendant’s cross-examination regarding J.Z.’s homelessness
    or drug use since the specific issue of how J.Z. made his living on the streets was of minimal
    relevance to any issues either in the case or to J.Z.’s credibility.
    {47} Third, Defendant claims that it was an improper abuse of discretion for the district
    court to prevent Defendant from providing J.Z. with transcripts of his safehouse interview
    while J.Z. was on the stand to refresh J.Z.’s recollection and then impeach him with prior
    inconsistent statements. “The admission or exclusion of [an] inconsistent statement rests
    within the sound discretion of the trial court under the particular facts in this case and will
    not be reversed absent an abuse of that discretion.” State v. Davis, 
    1981-NMSC-131
    , ¶ 20,
    
    97 N.M. 130
    , 
    637 P.2d 561
    . During cross-examination, Defendant asked J.Z. whether J.Z.
    had stated during his safehouse interview that Defendant punched him. J.Z. responded, “I
    believe so.” Defense counsel asked J.Z. to show him where in the transcript he had made this
    statement. The State objected that showing J.Z. the transcript would be improper
    refreshment and improper impeachment. The district court sustained this objection and did
    not agree to Defendant’s proposal of letting J.Z. review the entire transcript because it would
    18
    have taken a significant amount of time and the issue was de minimus. Defendant was then
    allowed to resume his cross-examination of J.Z. regarding J.Z.’s safehouse statement, during
    which J.Z. stated that he was not sure what he said, that he may not have said it, and that he
    did not know if he said it. J.Z. finally agreed that he did not say that Defendant had punched
    him in the head during the interview. We conclude that the district court acted within its
    discretion to control cross-examination to ensure an efficient trial by denying Defendant’s
    request to have J.Z. review the entire transcript of the safehouse interview to confirm that
    he never said he was hit in the head, and instead requiring Defendant to continue to cross-
    examine J.Z. to elicit this statement through testimony. See Bent, 
    2013-NMCA-108
    , ¶ 10.
    {48} Fourth and finally, Defendant argues that these limitations on his cross-examination
    of J.Z. collectively violated Defendant’s rights under the Confrontation Clause. The
    Confrontation Clause “guarantees the right of an accused in a criminal prosecution to be
    confronted with the witnesses against him.” Davis v. Alaska, 
    415 U.S. 308
    , 315 (1974)
    (internal quotation marks and citation omitted). However, “the trial court retains wide
    latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . .
    cross-examination based on concerns about, among other things, harassment, prejudice,
    confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only
    marginally relevant.” State v. Smith, 
    2001-NMSC-004
    , ¶ 19, 
    130 N.M. 117
    , 
    19 P.3d 254
    (omission in original) (internal quotation marks and citation omitted). Although the extent
    of cross-examination is within the sound discretion of the district court, we still review de
    novo whether limits on cross-examination have violated the Confrontation Clause. 
    Id.
    {49} We disagree with Defendant’s argument that the limitations on cross-examination
    in this case were analogous to those limitations held to be violations of the Confrontation
    Clause by the United States Supreme Court in Davis. In Davis, the defendant, who was
    accused of stealing a safe, was prohibited from cross-examining a witness against him
    regarding the fact that the witness was on probation for burglary. 
    415 U.S. at 311-12
    . Davis
    held that the district court’s limitations on cross-examination of the witness violated the
    defendant’s confrontation rights because he was not permitted to produce evidence to create
    any record of the reason that the witness might potentially be biased or motivated to lie, such
    as the witness’s fear that the police might otherwise suspect the witness of committing the
    crime, based on his prior criminal history. See 
    id. at 317-18
    . Instead, “defense counsel
    should have been permitted to expose to the jury the facts from which jurors, as the sole
    triers of fact and credibility, could appropriately draw inferences relating to the reliability
    of the witness.” 
    Id.
     By contrast, here the district court’s limitations on cross-examination
    did not prevent Defendant from creating a record regarding potential credibility problems
    with J.Z.’s testimony. Indeed, the district court specifically did not limit Defendant’s cross-
    examination regarding J.Z.’s prior convictions for crimes of dishonesty, and permitted
    Defendant to elicit general information illustrating that J.Z. had significant experience with
    the criminal justice system and made his living by hustling on the streets, both of which also
    provided fodder for Defendant’s argument that J.Z. had motivations to fabricate his story.
    Therefore, we conclude that the district court’s exercise of discretion to limit the extent of
    Defendant’s cross-examination of J.Z. was proper and did not violate Defendant’s rights
    19
    under the Confrontation Clause.
    CONCLUSION
    {50} We reverse Defendant’s convictions for CSP-felony and kidnapping and remand to
    the district court, where Defendant may be retried on those charges.
    {51}   IT IS SO ORDERED.
    ____________________________________
    EDWARD L. CHÁVEZ, Justice
    WE CONCUR:
    ___________________________________
    CHARLES W. DANIELS, Chief Justice
    ___________________________________
    PETRA JIMENEZ MAES, Justice
    ___________________________________
    BARBARA J. VIGIL, Justice
    20
    

Document Info

Docket Number: 34,733

Citation Numbers: 2016 NMSC 31

Filed Date: 8/8/2016

Precedential Status: Precedential

Modified Date: 10/4/2016

Authorities (28)

State v. Davis , 97 N.M. 130 ( 1981 )

Davis v. Alaska , 94 S. Ct. 1105 ( 1974 )

State v. Benally , 131 N.M. 258 ( 2001 )

State v. Cunningham , 128 N.M. 711 ( 2000 )

State v. Torres , 127 N.M. 20 ( 1999 )

State v. Spearman , 2 N.M. 264 ( 2012 )

State v. Smith , 130 N.M. 117 ( 2001 )

State v. Allison , 129 N.M. 566 ( 2000 )

State v. Martinez , 127 N.M. 207 ( 1999 )

State v. Lucero , 116 N.M. 450 ( 1993 )

State v. Gallegos , 141 N.M. 185 ( 2007 )

State v. Smallwood , 141 N.M. 178 ( 2007 )

State v. Sarracino , 125 N.M. 511 ( 1998 )

State v. Apodaca , 118 N.M. 762 ( 1994 )

State v. Maddox , 145 N.M. 242 ( 2008 )

State v. Stevens , 2014 NMSC 11 ( 2014 )

State v. Moore , 150 N.M. 512 ( 2011 )

State v. Cabezuela , 150 N.M. 654 ( 2011 )

State v. Dowling , 150 N.M. 110 ( 2011 )

State v. Varela , 128 N.M. 454 ( 1999 )

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