September 30, 2019- State of New Mexico v. Jeremy Jaramillo, No. A-1-CA-35780

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-35780	4
JEREMY JARAMILLO,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Christina P. Argyres, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Meryl E. Francolini, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
The Law Office of Scott M. Davidson, Ph.D., Esq.	14
Scott M. Davidson	15
Albuquerque, NM	16
for Appellant	17
MEMORANDUM OPINION	18
BOGARDUS, Judge.	19
{1} 	Defendant Jeremy Jaramillo appeals from his conviction by a jury of two	20
counts of criminal sexual penetration in the first degree (child under thirteen), three	21
counts of criminal sexual contact of a minor in the second degree (child under	22
Court of Appeals of New Mexico
Filed 9/30/2019 9:06 AM

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thirteen),1 three counts of criminal sexual penetration in the second degree (child	1
thirteen to eighteen) (person in position of authority), and three counts of criminal	2
sexual contact of a minor in the second degree (child thirteen to eighteen) (person in	3
position of authority). On appeal, Defendant raises due process and double jeopardy	4
arguments, challenges three of the district court’s evidentiary rulings, and contends	5
that cumulative error deprived him of a fair trial. For the reasons that follow, we	6
reverse one of Defendant’s convictions for criminal sexual contact of a minor in the	7
second degree (child thirteen to eighteen) (person in position of authority) and	8
otherwise affirm.	9
BACKGROUND	10
{2} 	The following facts are taken from the evidence presented at Defendant’s	11
second trial.2 Although Defendant was not Victim’s biological father, he took on the	12
role of a father to her. At the time of the incidents that led to Defendant’s charges,	13
Defendant was married to Victim’s mother (Mother). At some point, Defendant and	14
1 These charges stem from incidents involving two children. The counts
challenged by Defendant in this appeal relate only to the incidents involving Victim.
Therefore, we do not further address the incident involving the other child in this
opinion.
_____________________
2 Defendant was first tried in August 2011. After the State presented its
evidence during the first trial, the parties stipulated to dismissal with prejudice of
one count of criminal sexual penetration of a minor in the first degree and one count
of criminal sexual contact of a minor in the second degree. A mistrial was declared
after the jury was unable to reach a unanimous verdict on the remaining counts, and
the State reserved its right to retry Defendant.

3
Mother separated and lived apart; however, Defendant still had contact with Victim,	1
spent time at her home, and maintained a parental role with her.	2
{3} 	Victim testified that Defendant first abused her when she was eleven or twelve	3
years old. Victim reported that they were living in apartments in Albuquerque at the	4
time and that the abuse occurred in Mother’s room. Victim testified that Defendant	5
stuck his hand in her pants and inserted a finger inside of her. Victim also reported	6
that Defendant touched her breast area at the same time. After that first incident,	7
Victim testified that it happened frequently in other rooms in the apartment. Victim	8
recalled a second specific incident in the apartment that occurred in her bedroom.	9
Victim testified that Defendant put his hand in her shirt and touched her breasts.	10
Victim further testified that Defendant put his hand underneath her clothes and	11
underwear and inserted his fingers inside her again during that incident.	12
{4} 	Victim testified that Defendant’s abuse continued after their family had	13
moved to a two-story house on the west side of Albuquerque and testified to three	14
specific incidents that occurred at that house. The first two incidents occurred when	15
she was around thirteen years old and the third incident occurred when she had just	16
turned fourteen. First, Victim testified that Defendant put his fingers inside of her	17
vagina while she was in her bedroom. Second, Victim testified that on Halloween,	18
while she was out of school for teachers’ conferences, Defendant touched her breasts	19
and genitals both on top and under her clothes while she was in Mother’s room.	20

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Third, Victim testified that Defendant wanted her to allow Defendant to abuse her	1
in order to allow Victim to get her hair dyed. Victim reported that, while she was in	2
her room, Defendant put his hand under her shirt and touched her breasts. Victim	3
testified that Defendant also touched her vagina and inserted his fingers inside of	4
her.	5
{5} 	At the close of the State’s evidence, Defendant moved for a directed verdict	6
on all counts. The district court denied Defendant’s motion. Defendant then testified	7
in his own defense and denied doing the acts Victim testified to.	8
{6} 	The jury convicted Defendant on all counts. Defendant appeals.	9
DISCUSSION	10
I. 	There 	Is 	Insufficient 	Evidence 	to 	Support 	One 	of 	Defendant’s	11
Convictions of Criminal Sexual Contact of a Minor in the Second Degree	12
{7} 	While 	Defendant 	has 	not 	challenged 	the 	sufficiency 	of 	the 	evidence	13
supporting any of his charges, we exercise our discretion to sua sponte address	14
whether substantial evidence supports Defendant’s convictions because such an	15
inquiry implicates fundamental error and Defendant’s fundamental rights. See State	16
v. Clemonts, 2006-NMCA-031, ¶ 10, 139 N.M. 147, 130 P.3d 208 (“We sua sponte	17
raised the question whether there was sufficient evidence presented by the [s]tate to	18
satisfy each element set forth in [the jury instruction] because the [s]tate’s failure to	19
come forward with substantial evidence of the crime charged implicates fundamental	20
error and the fundamental rights of [the d]efendant.”). “The doctrine of fundamental	21

5
error is to be resorted to in criminal cases only for the protection of those whose	1
innocence appears indisputably, or open to such question that it would shock the	2
conscience to permit the conviction to stand.” State v. Barber, 2004-NMSC-019,	3
¶ 14, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted).	4
Having conducted a full review of the record of his trial, we conclude that one of	5
Defendant’s convictions for criminal sexual contact of a minor in the second degree	6
(child thirteen to eighteen) (person in position of authority) must be reversed. We	7
explain.	8
{8} 	In closing arguments, the State argued that Victim testified that on five	9
different occasions Defendant put his fingers inside of her and touched her breasts.	10
However, a review of Victim’s testimony demonstrates that was not the case. When	11
asked about the first incident that occurred in the two-story house when she was	12
thirteen years old, Victim testified that Defendant put his fingers inside of her vagina	13
while she was in her bedroom. When asked if Defendant did anything else on this	14
occasion, Victim responded, “Not that I remember.” Nowhere in the testimony that	15
followed did Victim ever state that Defendant touched her breasts on that occasion.	16
In contrast, Victim testified to four other occasions where Defendant touched her	17
breasts as well as digitally penetrated her. Because Victim’s testimony established	18
four distinct times that Defendant touched her breasts, not five, we conclude that just	19
four of Defendant’s convictions for criminal sexual contact of a minor in the second	20

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degree were supported by substantial evidence. Accordingly, we reverse one of	1
Defendant’s convictions for criminal sexual contact of a minor in the second degree	2
(child thirteen to eighteen) (person in position of authority).	3
{9} 	Our review of the record indicates that Defendant’s other charges are	4
supported by substantial evidence. We next address Defendant’s due process and	5
double jeopardy arguments to those convictions.	6
II. 	Defendant’s Due Process Arguments Are Unpreserved	7
{10} 	Defendant argues that a lack of specificity and differentiation between the	8
counts listed in the indictment violated his right to due process. Defendant also	9
argues that his right to due process was violated because the State’s evidence at trial,	10
as well as the jury instructions, failed to differentiate the evidence between the	11
counts.	12
{11} 	“Procedural due process under the Fourteenth Amendment to the United	13
States Constitution requires the [s]tate to provide reasonable notice of charges	14
against a person and a fair opportunity to defend.” State v. Dominguez, 2008-	15
NMCA-029, ¶ 5, 143 N.M. 549. 178 P.3d 834 (internal quotation marks and citation	16
omitted). “Procedural due process also requires that criminal charges provide	17
criminal defendants with the ability to protect themselves from double jeopardy.”	18
Id. 	(internal quotation marks and citation omitted). “We review questions of	19
constitutional law and constitutional rights, such as due process protections, de	20

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novo.” State v. Vargas, 2016-NMCA-038, ¶ 38, 368 P.3d 1232 (internal quotation	1
marks and citation omitted). However, “[d]ue process claims will not be addressed	2
when raised for the first time on appeal.” State v. Martinez, 2007-NMCA-160, ¶ 4,	3
143 N.M. 96, 173 P.3d 18.	4
{12} 	“To preserve an issue for review, it must appear that a ruling or decision by	5
the trial court was fairly invoked.” Rule 12-321(A) NMRA. Defendant argues that	6
he preserved his argument regarding the sufficiency of the indictment during his	7
motion for a directed verdict. However, nothing in Defendant’s directed verdict	8
motion indicated that the indictment itself was being challenged. Rather, Defendant	9
referenced specific counts listed in the indictment and argued that “the State has	10
failed 	to 	elicit 	proper 	testimony 	with 	any 	specificity.” 	(Emphasis 	added.)	11
Defendant’s directed verdict argument, therefore, was insufficient to preserve this	12
issue for review. Furthermore, we note that Defendant does not direct us to anywhere	13
in the record that he requested a statement of facts, pursuant to Rule 5-205(C)	14
NMRA. See State v. Salgado, 1967-NMSC-147, ¶ 3, 78 N.M. 165, 429 P.2d 363 (“A	15
defendant is protected [from issues arising from an insufficient criminal information]	16
by the right to request a bill of particulars, and a failure to request a bill of particulars	17
amounts to a waiver of defects in the information.” (citation omitted)); State v.	18
Huerta-Castro, 2017-NMCA-026, ¶ 12 n.3, 390 P.3d 185 (“While the terms ‘bill of	19
particulars’ and ‘statement of facts’ are used interchangeably in our jurisprudence,	20

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we note that ‘statement of facts’ is the term adopted in our Rules of Criminal	1
Procedure.”). Therefore, we conclude Defendant’s due process claim as it relates to	2
the indictment is unpreserved.	3
{13} 	We reach the same conclusion on Defendant’s jury instruction-related due	4
process claim. The district court went through every instruction with the parties and	5
specifically asked Defendant whether he had any objection. Defendant raised no	6
objection to any of the instructions except those concerning the three counts alleging	7
criminal sexual contact of a minor in the second degree (child under thirteen), to	8
which Defendant stated that he had no additional objections “that weren’t already	9
raised in the motion for directed verdict.” To reiterate, Defendant’s motion for	10
directed verdict challenged only the presentation of evidence related to specific	11
counts. Therefore, we conclude Defendant’s due process claim as it relates to the	12
jury instructions is also unpreserved.	13
{14} 	To the extent that Defendant’s due process arguments also present a double	14
jeopardy challenge, we turn to that challenge next.	15
III. 	Defendant’s Multiple Convictions Do Not Violate Double Jeopardy	16
{15} 	Defendant argues that neither the language of Section 30-9-11 nor the	17
language of Section 30-9-13 indicates that the Legislature “intended multiple	18
punishments for individual acts of sexual contact or sexual penetration.” Defendant	19

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further argues that there was not sufficient indicia of distinctness to support his	1
multiple convictions under those statutes.	2
{16} 	“A double jeopardy claim is a question of law that we review de novo.” State	3
v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M 644, 146 P.3d 289. “The constitution	4
protects against both successive prosecutions and multiple punishments for the same	5
offense.” State v. Branch, 2018-NMCA-031, ¶ 22, 417 P.3d 1141; see U.S. Const.	6
amend. V; N.M. Const. art. II, § 15. Defendant raises a unit-of-prosecution claim “in	7
which an individual is convicted of multiple violations of the same criminal statute.”	8
Bernal, 2006-NMSC-050, ¶ 7. “For unit-of-prosecution challenges, the only basis	9
for dismissal is proof that a suspect is charged with more counts of the same statutory	10
crime than is statutorily authorized.” Id. ¶ 13.	11
{17} 	In Herron, our Supreme Court stated that “Section 30-9-11 cannot be said as	12
a matter of law to evince a legislative intent to punish separately each penetration	13
occurring during a continuous attack absent proof that each act of penetration is in	14
some sense distinct from the others.” Herron v. State, 1991-NMSC-012, ¶ 15, 111	15
N.M. 357, 805 P.2d 624. The Court identified six factors that can inform such an	16
analysis:	17
(1) temporal proximity of penetrations (the greater the interval between	18
acts the greater the likelihood of separate offenses); (2) location of the	19
victim during each penetration (movement or repositioning of the	20
victim between penetrations tends to show separate offenses); (3)	21
existence of an intervening event; (4) sequencing of penetrations (serial	22
penetrations of different orifices, as opposed to repeated penetrations	23

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of the same orifice, tend to establish separate offenses); (5) [the]	1
defendant’s intent as evidenced by his conduct and utterances; and (6)	2
number of victims (. . . multiple victims will likely give rise to multiple	3
offenses).	4
Id. The court noted that “[e]xcept for penetrations of separate orifices with the same	5
object, none of these factors alone is a panacea, but collectively they will assist in	6
guiding future prosecutions under Section 30-9-11.” Herron, 1991-NMSC-012,	7
¶ 15. This Court also has applied these factors to determine whether sufficient indicia	8
of distinctness supports multiple charges under Section 30-9-13. State v. Haskins,	9
2008-NMCA-086, ¶ 17, 144 N.M. 287, 186 P.3d 916.	10
{18} 	During her testimony, Victim identified five distinct occasions, separated both	11
temporally and by location, when Defendant penetrated her with his fingers. On four	12
of those occasions, Victim testified that Defendant also touched her breasts. As such,	13
Victim’s 	testimony 	contained 	sufficient 	indicia 	of 	distinctness 	to 	support	14
Defendant’s five convictions for criminal sexual penetration and four charges for	15
criminal sexual contact. Accordingly, we conclude that Defendant’s convictions do	16
not violate double jeopardy.	17
IV. 	The District Court Did Not Abuse Its Discretion in the Evidentiary	18
Rulings Challenged by Defendant	19
A. 	Standard of Review	20
{19} 	“A [district] court’s decision to admit or exclude evidence is reviewed for an	21
abuse of discretion.” State v. Jackson, 2018-NMCA-066, ¶ 13, 429 P.3d 674. “An	22

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abuse of discretion occurs when the ruling is clearly against the logic and effect of	1
the facts and circumstances of the case.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126	2
N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). “We cannot	3
say the [district] court abused its discretion by its ruling unless we can characterize	4
it as clearly untenable or not justified by reason.” Id. (internal quotation marks and	5
citation omitted).	6
B. 	Excluding the Polygraph Examination Was Not an Abuse of Discretion	7
{20} 	Defendant argues that the district court erred by not admitting evidence that	8
he 	had 	twice 	passed 	a 	polygraph 	examination. 	In 	his 	argument, 	Defendant	9
acknowledges that, “[i]n New Mexico, the [district] court has discretion to admit	10
results of polygraph tests into evidence if certain conditions, designed to ensure the	11
accuracy and reliability of the test results, are met.” State v. Sanders, 1994-NMSC-	12
043, ¶ 24, 117 N.M. 452, 872 P.2d 870. Yet, Defendant fails to identify the	13
conditions or develop any argument as to whether those conditions are met in this	14
case. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (acknowledging	15
that appellate courts are under no obligation to review unclear or undeveloped	16
arguments). Nevertheless, we briefly discuss why the district court did not abuse its	17
discretion here.	18

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{21} 	After Defendant filed a notice of intent to introduce polygraph evidence, the	1
State moved to exclude the same or to compel an examination by a State expert.	2
Following a hearing on the State’s motion, the district court concluded that	3
[b]ecause of the failure to consult with . . . Defendant’s treating physical	4
and mental health providers, . . . Defendant’s suitability for polygraph	5
testing was not adequately determined, and Mr. Pierangeli was not	6
sufficiently informed as to the examinee’s background, health, and	7
other 	relevant 	information 	prior 	to 	conducting 	the 	polygraph	8
examinations.	9
Accordingly, 	the 	district 	court 	excluded 	the 	polygraph 	evidence 	because 	of	10
Defendant’s failure to comply with Rule 11-707(C)(3) NMRA.	11
{22} 	Rule 11-707(C) governs the admission of “[a] polygraph examiner’s opinion	12
as to the truthfulness of a person’s answers in a polygraph examination[.]” One of	13
the conditions required for admission is that “the polygraph examiner was informed	14
as to the examinee’s background, health, education, and other relevant information	15
prior to conducting the polygraph examination[.]” Rule 11-707(C)(3). At the hearing	16
on the State’s motion, Mr. Pierangeli testified that he questioned Defendant about	17
his medical conditions, mental health conditions, and the medications he takes. Mr.	18
Pierangeli testified to nine medications that Defendant said he was prescribed, which	19
included pain killers and a psychotropic drug. Mr. Pierangeli believed Defendant	20
had taken one of his medications, Vicodin, the night before the polygraph. Mr.	21
Pierangeli testified that he did not consult with any of Defendant’s current or	22

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previous physicians or mental health providers. Mr. Pierangeli further testified that	1
he was not trained in medicine, pharmaceuticals, or psychology.	2
{23} 	Although Mr. Pierangeli’s licensure and qualifications were not challenged,	3
Defendant was required to show that Mr. Pierangeli had the proper expertise to	4
evaluate the effect of Defendant’s mental and physical conditions on the polygraph.	5
See State v. Anthony, 1983-NMCA-148, ¶ 20, 100 N.M. 735, 676 P.2d 262 (“Even	6
though a polygraph examiner is licensed, and possesses the minimum qualifications	7
under . . . Rule [11-]707, a showing that a mental or physical condition exists in the	8
examinee at the time of the test requires an additional showing that the polygraph	9
examiner had the proper expertise to evaluate the effect of this condition on the	10
examinee.”). Defendant made no such showing. Thus, the district court could have	11
reasonably, and within its discretion, concluded that Mr. Pierangeli did not have such	12
expertise.	13
{24} 	Because we cannot characterize the district court’s decision “as clearly	14
untenable or not justified by reason[,]” Rojo, 1999-NMSC-001, ¶ 41 (internal	15
quotation marks and citation omitted), we conclude that the district court did not	16
abuse its discretion in excluding Defendant’s polygraph evidence.	17
C. 	The District Court Did Not Bar Testimony Regarding Text Messages	18
{25} 	Defendant 	next 	contends 	that 	the 	district 	court 	erred 	by 	preventing	19
Defendant’s “attorney from asking [Mother] about the contents of text messages she	20

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sent to him after her daughters alleged that he molested them.” 	Defendant’s	1
argument is contrary to the record. Not only did the district court allow Defendant’s	2
attorney to extensively question Mother about the text messages at issue, the court	3
overruled the State’s objection seeking to limit Mother’s testimony on the substance	4
of the text messages. We do not consider Defendant’s argument further. See Muse	5
v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“It is not our practice	6
to rely on assertions of counsel unaccompanied by support in the record. The mere	7
assertions and arguments of counsel are not evidence.”).	8
D. 	Defendant Fails to Develop and Failed to Preserve His Argument as to	9
the Admissibility of the Children’s Grandmother’s Previous Statement	10
{26} 	Defendant listed Sarah Sandoval, the children’s grandmother, as a trial	11
witness. At trial, Defendant acknowledged that Ms. Sandoval was under subpoena	12
and could testify, but indicated that Ms. Sandoval would not remember her previous	13
statement due to her having suffered a stroke. Defendant then argued for admission	14
of Ms. Sandoval’s previous statement in lieu of testimony on two grounds. First,	15
Defendant argued that Ms. Sandoval’s statement was admissible because, although	16
it was unsworn, she had promised to tell the truth. Second, Defendant argued that	17
the statement was admissible under the residual exception to the rule against hearsay.	18
The district court disagreed with both grounds and excluded Ms. Sandoval’s	19
previous statement.	20

15
{27} 	On appeal, Defendant contends that Ms. Sandoval was “unavailable to testify	1
at trial due to a stroke—she would not have remembered giving the [previous]	2
statement, much less hearing from the alleged victims that their stories were	3
fabricated.” Defendant argues that the district court’s exclusion of this evidence	4
“foreclosed an avenue of [his] defense” and “undermined [his] right to present his	5
own witnesses to establish a defense.”	6
{28} 	Even if we were to assume, without deciding, that Ms. Sandoval was	7
unavailable, Defendant fails to develop any argument as to why her previous	8
statement would be admissible. See Guerra, 2012-NMSC-014, ¶ 21. Furthermore,	9
Defendant presents different arguments in his briefing to this Court than those he	10
presented to the district court. See State v. Salazar, 2006-NMCA-066, ¶ 9, 139 N.M.	11
603, 136 P.3d 1013 (“[P]arties cannot change their arguments on appeal.”).	12
Therefore, 	we 	decline 	to 	address 	Defendant’s 	undeveloped 	and 	unpreserved	13
argument.	14
V. 	Defendant’s Conviction Did Not Result From Cumulative Error	15
{29} 	Concluding there was no error on the points he raised, we need not analyze	16
whether Defendant’s conviction resulted from cumulative error. 	See State v.	17
Vallejos, 1998-NMCA-151, ¶ 32, 126 N.M. 161, 967 P.2d 836 (“Because we have	18
rejected [the d]efendant’s assertions of error, we conclude that the doctrine of	19
cumulative error does not apply here.”).	20

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CONCLUSION	1
{30} 	We reverse and remand to the district court with instructions to dismiss one	2
of Defendant’s convictions for criminal sexual contact of a minor in the second	3
degree (child thirteen to eighteen) (person in position of authority). We affirm	4
Defendant’s remaining convictions.	5
{31} 	IT IS SO ORDERED.	6
_____________________________	7
KRISTINA BOGARDUS, Judge	8
WE CONCUR:	9
_____________________________	10
J. MILES HANISEE, Judge	11
_____________________________	12
ZACHARY A. IVES, Judge	13