May 31, 2019- State of New Mexico v. Richard Allen Barreras, No. A-1-CA-37625

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 V. 	NO. A-1-CA-37625
5 RICHARD ALLEN BARRERAS,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Freddie J. Romero, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur , Chief Public Defender
13 	Gregory B. Dawkins, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	VARGAS, Judge.
18 	{t} 	Defendant appeals his conviction for criminal sexual penetration ( force or
19 coercion). This Court issued a notice of proposed disposition, proposing to affirm.
20 Defendant filed a memorandum in opposition, which we have duly considered.
21 	Unpersuaded, we affirm.
Court of Appeals of New Mexico
Filed 5/31/2019 9:00 AM

1 {2} 	On appeal, Defendant contends there was insufficient evidence for (1) lack of .
2 consent of Victim, who "appeared to consent," as well as (2) penetration, as Victim's
3 testimony was unclear as to when Defendant inserted a finger. [MIO 1] Defendant
4 also argues it was prosecutorial misconduct to state that Victim woke up with a finger
5 inside her, when the testimony was unclear as to whether she was awake when it
6 happened. [MIO 1]
7 	{3} 	Defendant has not asserted any facts, law, or argument persuading us that his
8 interpretations of consent are correct, and we see no reason to change the conclusions
9 we proposed based on the statutory and legal standards of consent laid out in our
10 	calendar notice. SeeStatev. Mondragon, 1988-NMCA-027, 110, 107N.M. 421,759
11 	P .2d 1003 (stating that a party responding to a summary calendar notice must come
12 	forward and specifically point out errors of law and fact, and the repetition of earlier
13 	arguments does not fulfill this requirement), superseded by statute on other grounds
14 	as stated in State v. Harris, 20 13-NMCA-03 l, 1 3, 297 P.3d 374. To the extent
15 	Defendant continues to argue that the alleged victim "did not know when he inserted
16 	his finger," we remain unpersuaded that such a nuance in timing would affect his
17 	conviction. 	[MIO 	4] 	Regarding 	Defendant's 	prosecutorial 	conduct 	argument,
18 	Defendant argues in the memorandum in opposition that any mischaracterization by
19 the prosecution in closing would be fundamental error as "a crime did not occur"
2

1 unless Victim was asleep when he penetrated her. [MIO 5] We reiterate that it was a
2 reasonable 	characterization based on the testimony that Victim woke 	up 	with
3 Defendant rubbing her vagina and inserted a finger, and we remain unpersuaded that
4 the comment rises to fundamental error. [CN 4, 7]
5 	{4} 	Based on the foregoing, we affirm.
6 	{5}
7
8
IT IS SO ORDERED.
9 WE CONCUR:
10 	9--~
11 	J. MILES HANISEE, Judge
12 	= 	'P i) 	~13 	MEGNP. DUFF~ 	e
3