September 30, 2019- State of New Mexico v. Alberto Cruz, No. A-1-CA-35877

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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-35877	4
ALBERTO CRUZ,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Benjamin Chavez, District Judge	8
Hector H. Balderas, Attorney General	9
Eran Sharon, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
MJ Edge, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
B. ZAMORA, Judge.	18
{1} 	Defendant Alberto Cruz appeals his convictions for two counts of criminal	19
sexual penetration of a minor (CSPM) (Counts 1 and 2), contrary to NMSA 1978,	20
Section 30-9-11(D) (2009), and one count (Count 3) of criminal sexual contact of a	21
minor (CSCM), contrary to NMSA 1978, Section 30-9-13(C) (2003). On appeal,	22
Court of Appeals of New Mexico
Filed 9/30/2019 8:54 AM

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Defendant argues that: (1) there was insufficient evidence to support the jury’s	1
convictions; (2) the district court erred in rejecting his proposed jury instruction on	2
jury unanimity; and (3) prosecutorial error deprived him of a fair trial. Unpersuaded,	3
we affirm.	4
BACKGROUND	5
{2} 	Defendant and Sharon (Mother) had five children together, including S.C.	6
(Victim). Before being charged in this case, Defendant, a truck driver, would take	7
three of the children, including Victim, on the road with him. At times, Victim would	8
go on trips with Defendant by herself. The trips were mainly to places out-of-state	9
and would last for a few days. In addition to these trips, Victim would stay with	10
Defendant overnight in hotels and in a mobile home he lived in.	11
{3} 	In January 2014 Victim disclosed to her Mother that Defendant touched her	12
inappropriately, 	which 	prompted 	Mother 	to 	call 	the 	police. 	Defendant 	was	13
subsequently charged with three counts of CSPM, or in the alternative CSCM, and	14
one count of CSCM, or in the alternative attempt to commit a felony, for incidents	15
occurring on or between July 16, 2011, and June 1, 2013. At trial, Victim recounted	16
multiple incidents where Defendant touched her inappropriately. Victim testified	17
that the first time Defendant touched her occurred in Defendant’s truck when Victim	18
awoke to discover Defendant had removed her pants and underwear and was	19
touching both the inner and outer part of her private area with his fingers. A similar	20

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incident occurred in a bed at a hotel a few weeks later. In addition, Victim testified	1
that 	Defendant 	inappropriately 	touched 	her 	on 	numerous 	other 	occasions 	in	2
Defendant’s truck, his mobile home, and in hotels. Victim also described sexual	3
abuse that occurred at her Mother’s house, in which Defendant took Victim’s hand	4
and placed it on “his private part.”	5
{4} 	By 2012, Defendant had moved out of the family home after Sa.C., one of	6
Victim’s sisters, alleged Defendant sexually and physically abused her. Defendant	7
filed a motion in limine in Victim’s case seeking to exclude testimony regarding the	8
sexual abuse of Sa.C., which the district court granted. Consequently, at trial in this	9
case, the jury was informed only that Defendant had moved out of the family home	10
in 2012. Following his convictions on two of the CSPM counts and the one count of	11
CSCM,1 Defendant appealed.	12
DISCUSSION	13
I. 	There Was Sufficient Evidence to Support Defendant’s Convictions	14
{5} 	Defendant 	argues 	that 	there 	was 	insufficient 	evidence 	to 	support 	his	15
convictions. We review the record to determine “whether substantial evidence of	16
either a direct or circumstantial nature exists to support a verdict of guilt beyond a	17
reasonable doubt with respect to every element essential to a conviction.” State v.	18
1 After the district court dismissed the original Count 3 (CSPM) on a directed
verdict, the CSCM charge was then renumbered to Count 3, which was originally
charged as Count 4.

4
Day, 2008-NMSC-007, ¶ 15, 143 N.M. 359, 176 P.3d 1091 (internal quotation marks	1
and citation omitted). “We view the evidence in the light most favorable to the	2
verdict, resolving all conflicts therein and indulging all permissible inferences	3
therefrom in favor of the verdict.” Id. (internal quotation marks and citation omitted).	4
We will not “weigh the evidence, nor do we substitute our judgment for that of the	5
fact[-]finder so long as there is sufficient evidence to support the verdict.” Id.	6
(alteration, 	internal 	quotation 	marks, 	and 	citation 	omitted). 	Our 	analysis	7
“recognize[s] that the fact[-]finder is free to reject the defendant’s version of the	8
events.” Id. The jury instructions become the law of the case against which the	9
sufficiency of the evidence is measured. State v. Arrendondo, 2012-NMSC-013,	10
¶ 18, 278 P.3d 517.	11
{6} 	Defendant specifically argues there was insufficient evidence to establish that	12
Counts 1, 2, and 3 occurred within the charged timeframe—i.e., on or between July	13
16, 2011, and June 1, 2013—and that Count 1 happened in New Mexico. As we	14
explain below, we agree with the State that there was sufficient evidence to establish	15
these elements. Regarding timing, Victim testified that her birthdate was July 16,	16
2005. As to the first instance of CSPM (Count 1), Victim testified that she was seven	17
years old when the abuse occurred and acknowledged that she told a S.A.F.E. house	18
interviewer that she was six or seven years old when Defendant first touched her in	19
the truck. Victim also indicated that the instances in the hotel and mobile home, the	20

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conduct the jury could have relied on to convict under Counts 2 and 3, followed the	1
first incident in the truck. Additionally, Mother testified that Defendant had not seen	2
Victim since June 2013, shortly before Victim turned eight, precluding any	3
possibility that Defendant had touched Victim after that date. Based on this	4
testimony, the jury could have reasonably inferred that all of the crimes were	5
committed on or between July 16, 2011, Victim’s sixth birthday, and June 1, 2013,	6
approximately the last time Defendant saw Victim.	7
{7} 	We acknowledge that there were discrepancies in the testimony before the	8
jury regarding Victim’s exact age at the time Defendant committed each act.	9
Specifically, Defendant directs our attention to Victim’s testimony that Defendant	10
touched her when she was eight or nine, which would have placed the date of the	11
incident after June 1, 2013. However, “[w]hen parts of a witness’s testimony are	12
conflicting and ambiguous, it is the exclusive province of the jury to resolve the	13
factual inconsistencies in that testimony.” State v. Sena, 2008-NMSC-053, ¶ 11, 144	14
N.M. 821, 192 P.3d 1198 (alterations, internal quotation marks, and citation,	15
omitted)). Additionally, “it is not difficult to appreciate that young children cannot	16
be held to an adult’s ability to comprehend and recall dates and other specifics. The	17
predictable limitations of young witnesses should not be turned into a reason to	18
prevent prosecution of their abusers.” State v. Baldonado, 1998-NMCA-040, ¶ 20,	19
124 N.M. 745, 955 P.2d 214 (alteration, internal quotation marks, and citation,	20

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omitted). Based on the evidence presented at trial, the jury could have found the	1
instances of sexual misconduct charged in Counts 1, 2, and 3 occurred on or between	2
July 16, 2011, and June 1, 2013.	3
{8} 	Regarding the location of where the CSPM occurred as charged in Count 1,	4
Victim initially testified that she was not sure where Defendant and Victim were	5
when the crime occurred, but later testified that Defendant’s truck was parked at a	6
truck stop in Albuquerque. As we have noted above, the jury was free to believe	7
Victim’s testimony that Defendant touched her in Albuquerque. See Sena, 2008-	8
NMSC-053, ¶ 11. Accordingly, there were sufficient facts presented to the jury to	9
find the crime was committed in New Mexico.	10
{9} 	We therefore hold that there was sufficient evidence supporting Defendant’s	11
convictions.	12
II. 	Rejection of Defendant’s Unanimity Instruction for CSPM (Count 2)	13
Was Not Error	14
{10} 	Defendant next argues that the district court erred in rejecting his proposed	15
jury unanimity instruction. Specifically, Defendant requested that the jury be	16
instructed that “[i]n order to return a verdict of guilty on Count 2, you must be	17
unanimous as to the specific series of events or at least one event that has been	18
proved beyond a reasonable doubt.” We “review a [district] court’s rejection of	19
proposed jury instructions de novo, because the rejection is closer to a determination	20
of law than a determination of fact.” State v. Percival, 2017-NMCA-042, ¶ 8, 394	21

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P.3d 979 (alteration, internal quotation marks, and citation omitted). “If the alleged	1
error has been preserved, we review for reversible error. . . . A jury instruction which	2
does not instruct the jury upon all questions of law essential for a conviction of any	3
crime submitted to the jury is reversible error.” Id. (internal quotation marks and	4
citation omitted). Further, “[w]e review jury instructions to determine whether a	5
reasonable juror would have been confused or misdirected by the jury instructions.	6
We consider jury instructions as a whole, not singly.” State v. Montoya, 2003-	7
NMSC-004, ¶ 23, 133 N.M. 84, 61 P.3d 793 (citation omitted).	8
{11} 	Defendant argues that the jury may have reached a verdict that was not	9
unanimous as to Count 2, because some jurors may have convicted Defendant for	10
one incident of sexual abuse, while other jurors may have convicted Defendant for	11
an entirely different incident of sexual abuse. As we explain, we disagree that the	12
district court’s rejection of Defendant’s proposed instruction was reversible error	13
and conclude that it was sufficient for the district court to give only the “standard	14
unanimity instruction.” See UJI 14-6008 NMRA (“Your verdict must represent the	15
considered judgment of each juror. In order to return a verdict, it is necessary that	16
each juror agrees. Your verdict must be unanimous.”).	17
{12} 	The State charged Defendant with CSPM in Count 2 based on a continuing	18
course of conduct, which was permissible. See State v. Tafoya, 2010-NMCA-010,	19
¶ 30, 147 N.M. 602, 227 P.3d 92 (stating “[a] defendant’s distinguishable charges	20

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may be based on various distinct incidents or may be based on a general allegation	1
of wrongful conduct that continually occurred”); State v. Dominguez, 2008-NMCA-	2
029, ¶ 10, 143 N.M. 549, 178 P.3d 834 (stating “if the [s]tate can only support its	3
indictment with a child’s statements regarding a defendant’s course of conduct and	4
does not have enough specific information to charge distinct incidents of abuse, the	5
[s]tate is still able to go forward with the prosecution since . . . evidence of a course	6
of conduct will support a single count of abuse”). Here, the jury was instructed to	7
distinguish between the conduct that formed the basis of Count 1, i.e., the first	8
incident of CSCM that occurred in the truck, and the ongoing conduct that formed	9
the basis of Count 2. Specifically, the jury was instructed that to find Defendant	10
guilty of Count 2 it must find “ongoing conduct” that did “not includ[e] the conduct	11
charged in Count 1.” Based on Victim’s testimony, there was sufficient evidence for	12
the jury to convict Defendant of the ongoing sexual misconduct that occurred	13
separate from the conduct giving rise to Count 1. Victim’s testimony that Defendant	14
penetrated her vaginal area during each incident, including in Defendant’s motel	15
rooms and mobile home, provided sufficient evidence to support evidence of	16
continual sexual abuse.	17
{13} 	Defendant contends that the testimony established different incidents that	18
could provide proof of a course of conduct and “[d]epending on how jurors parsed	19
and reconciled the testimony, they could have reasonably believed there was	20

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something to warrant a guilty verdict on Count 2, without ever having to agree on	1
what.” We are unpersuaded by Defendant’s contention. As established above, it was	2
permissible for the State to proceed on a single count based on a continuing course	3
of conduct. Moreover, “[t]he state need only prove all the elements of the offense,	4
and it is not an element of the crime that it have some distinguishing characteristic.”	5
State v. Altgilbers, 1989-NMCA-106, ¶ 55, 109 N.M. 453, 786 P.2d 680. A “victim’s	6
inability to distinguish the individual acts [does] not render [the victim’s] testimony	7
so inherently suspect as to be insufficient to support a conviction.” Id. Defendant’s	8
same argument has been rejected in the context of verdicts resulting from alternative	9
theories presented for a single charge. In that context, we held that if “alternative	10
theories of guilt are put forth under a single charge, jury unanimity is required only	11
as to the verdict, not to any particular theory of guilt.” See State v. Godoy, 2012-	12
NMCA-084, ¶ 6, 284 P.3d 410 (“[A] jury’s general verdict will not be disturbed in	13
such a case where substantial evidence exists in the record supporting at least one of	14
the theories of the crime presented to the jury.” (internal quotation marks and citation	15
omitted)). We explained further that, in returning general verdicts, “jurors should	16
[not] be required to agree upon a single means of commission, because different	17
jurors may be persuaded by different pieces of evidence, even when they agree upon	18
the bottom line.” Id. ¶ 7 (internal quotation marks and citation omitted).	19

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{14} 	Based on the foregoing, we conclude that the district court’s rejection of	1
Defendant’s unanimity instruction as to the course of conduct in Count 2 was not	2
reversible error.	3
III. 	The Prosecutor’s Misstatements During Closing Arguments Did Not	4
Deprive Defendant of a Fair Trial	5
{15} 	Defendant argues the district court abused its discretion in denying his motion	6
for a mistrial based on two misstatements made by the prosecutor during closing	7
argument. During the State’s closing argument, the prosecutor mistakenly referred	8
to Sa.C., Victim’s sister, instead of Victim on two occasions but quickly corrected	9
her misstatements.	10
{16} 	We review a district court’s denial of a motion for mistrial based on	11
prosecutorial misconduct under an abuse of discretion standard. State v. Sosa, 2009-	12
NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348. “Our ultimate determination of this	13
issue rests on whether the prosecutor’s improprieties had such a persuasive and	14
prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.”	15
State v. Montgomery, 2017-NMCA-065, ¶ 11, 403 P.3d 707 (internal quotation	16
marks and citation omitted). “Our Supreme Court has identified three factors to	17
consider when reviewing questionable statements made during closing arguments	18
for reversible error: “(1) whether the statement invades some distinct constitutional	19
protection; (2) whether the statement was isolated and brief, or repeated and	20
pervasive; and (3) whether the statement was invited by the defense.” Id. ¶ 13	21

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(internal quotation marks and citation omitted). In considering these factors, we	1
evaluate the statements objectively “in the context of the prosecutor’s broader	2
argument and the trial as a whole.” Sosa, 2009-NMSC-056, ¶ 26.	3
{17} 	As to the first factor, Defendant fails to identify what distinct constitutional	4
protection the prosecutor’s comments implicated. He asserts only that “[t]he	5
comments invaded a distinct constitutional right,” his right to a fair trial. However,	6
Defendant cites no authority in support of this assertion, and we assume none exists.	7
See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts	8
will not consider an issue if no authority is cited in support of the issue and that,	9
given no cited authority, we assume no such authority exists.”).	10
{18} 	As to the second and third factors, while we recognize that Defendant did not	11
invite the prosecutor’s statements, the two comments were isolated. Further, the jury	12
was not privy to Defendant’s other case or the underlying allegations that he sexually	13
abused Sa.C. because the district court had excluded that information. To the extent	14
these comments were improper, we cannot say that they rise to the level of depriving	15
Defendant of a fair trial when the prosecutor made only two brief missteps and	16
quickly corrected them. See Montgomery, 2017-NMCA-065, ¶ 13 (“Where . . . an	17
improper statement is corrected by counsel . . . reversible error is less likely.”); cf.	18
State v. Brown, 1997-NMSC-029, ¶ 23, 123 N.M. 413, 941 P.2d 494 (“The general	19
rule is that an isolated comment made during closing argument is not sufficient to	20

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warrant reversal.”). Therefore, we conclude the district court did not abuse its	1
discretion in denying Defendant’s motion for a mistrial.	2
CONCLUSION	3
{19} 	For the foregoing reasons, we affirm.	4
{20} 	IT IS SO ORDERED.	5
_____________________________	6
BRIANA H. ZAMORA, Judge	7
WE CONCUR:	8
____________________________	9
JENNIFER L. ATTREP, Judge	10
____________________________	11
MEGAN P. DUFFY, Judge	12