April 23, 2019- State of New Mexico v. Eusebio Jasper, No. A-1-CA-34704

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE 0~ NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-34704
5 EUSEBIO JASPER,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 	Stephen K. Quinn, District Judge
9 Hector H. Balderas, Attorney General
10 Eran Sharon, Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellee
13 	Law Offices of Jennifer J. Wernersbach, P.C.
14 Jennifer J. Wernersbach
15 	Albuquerque, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	M. ZAMORA, Chief Judge.
19 	{t} 	Eusebio Jasper (Defendant) appeals his conviction on charges of first degree
20 	criminal sexual penetration of a child under thirteen (CSP I), in violation ofNMSA
21 	1978, Section 30-9-11 (D)(l) (2009), and second degree criminal sexual penetration
22 	of a minor by the use of force or coercion on a child thirteen to eighteen years of age
Court of Appeals of New Mexico
Filed 4/23/2019 11:05 AM
Mark Reynolds

1 (CSP 11), in violation of Section 30-9-1 l(E)(l ). Defendant argues that the district
2 court erred by: ( 1) impermissibly allowing the State to impeach Defendant with a
3 prior conviction and inadmissible evidence; and (2) failing to properly instruct the
4 jury on the charge of CSP II. We affirm Defendant's convictions.
5 BACKGROUND
6 	{2} 	Victim moved in to her grandmother's home in Clovis, New Mexico when
7 she was around eleven years old. Grandmother's boyfriend, Defendant, also lived in
8 the one-bedroom house with them. When Victim was twelve years old, Defendant
9 	began to have sexual intercourse with her. This abuse continued past Victim's
10 	thirteenth birthday.
11 	{3} 	Victim 	testified 	that 	she 	did 	not want to 	have 	sexual 	intercourse 	with
12 	Defendant, but felt that she had to because he had threatened to hurt her and her
13 	family. Victim later testified that she told a lie about what Defendant did to her
14 	because she was afraid that Defendant would carry out his threats.
15 	{4} 	Victim learned she was pregnant at age thirteen during a visit with a doctor
16 	for 	stomach 	pain. 	Victim 	told 	her 	doctor 	that 	Defendant 	got 	her 	pregnant.
17 Immediately after Victim gave birth, law enforcement swabbed Victim and the baby
18 	for DNA testing. Law enforcement sought a DNA swab from Defendant, which he
19 gave voluntarily. At trial, a DNA analyst testified that Defendant is the father of
20 	Victim's baby by a probability of 99.99 percent. The midwife testified that the baby
2

1 would have been conceived between August 20, 2010 and September 1, 2010 when
2 	Victim was twelve years old.
3 	DISCUSSION
4 	I. 	Impeachment of Defendant
5 {S} 	Defendant first argues that he was 	improperly impeached with his 	pnor
6 	second degree murder conviction that was over ten years old. Second, he challenges
7 the State's use, under the guise of impeachment, of Defendant's letter to the district
8 court, which questioned the results of a privately arranged DNA test, as an improper
9 	means of backdooring inadmissible evidence to the jury. Defendant seeks reversal
10 	of his convictions, arguing that the admissions of this evidence were not harmless
11 	error because those errors affected the jury's verdict. We address each argument in
12 tum.
13 	A.
14 	{6}
Standard of Review
"The admission or rejection of impeaching testimony going to the credibility
15 	of a witness is largely in the discretion of the trial court[.]" State v. Buchanan, 1966-
16 	NMSC-045, 	,-f 	10, 	76 	N.M. 	141, 412 P.2d 565. 	"We 	review the 	trial 	court's
17 	evidentiary rulings for abuse of discretion[,]" which "occurs when the ruling is
18 	clearly against the logic and effect of the facts and circumstances of the case." State
19 	v. Rojo, 1999-NMSC-001, ,-f 41, 126 N.M. 438, 971 P.2d 829 (internal quotation
20 	marks and citations omitted). " We cannot say the trial court abused its discretion by
3

1 its ruling unless we can characterize it as clearly untenable or not justified by
2 	reason." Id. (internal quotation marks and citations omitted).
3 	{7} 	"Improperly admitted evidence is not grounds for a new trial unless the error
4 	is determined to be harmful." State v. Tollardo, 2012-NMSC-008, ,-r 25, 275 P.3d
5 	110; see also Scott v. Brown, 1966-NMSC-135, ,-r 20, 76 N.M. 501, 416 P.2d 516
6 	("An appellate court does not correct harmless error."). We note that Defendant,
7 here, is challenging an evidentiary error. "For purposes of harmless error review,
8 violations of the rules of evidence are a non-constitutional error." State v. Armijo,
9 	2014-NMCA-013, ,-r 13, 316 P.3d 902. "[A] non-constitutional error is harmless
10 when there is no reasonable probability the error affected the verdict." Tollardo,
11 	2012-NMSC-008, ,-r 36 (internal quotation marks and citation omitted). 	"[T]he
12 	reasonable 	probability 	standard 	requires 	a 	greater degree 	of likelihood 	that 	a
13 	particular 	error 	affected 	a 	verdict" 	than 	reasonable 	possibility 	standard 	for
14 constitutional errors. Id. (internal quotation marks and citation omitted).
15 	{8} 	In determining "the likely effect of the error, courts should evaluate all of the
16 	circumstances surrounding the error. This requires an examination of the error itself,
17 	which [may] ... include an examination of the source of the error and the emphasis
18 	placed upon the error." Id. ,-r 43. Of course, evidence of a defendant's guilt separate
19 	from the error may often be relevant, even necessary, for a court to consider, since
20 	it will provide context for understanding how the error arose and what role it may
4

1 have played in the trial proceedings." Id. Courts may also examine "the importance
2 	of the erroneously admitted evidence in the prosecution's case," and "whether the
3 error was cumulative or instead introduced new facts." Id. 	(alterations, internal
4 quotation marks, and citation omitted).
5 B. 	Even if the District Court Allowed Testimony About Defendant's Prior
6 	Conviction in Error, It Was a Harmless Error
7
8 	{9} 	Defendant argues that the district court erred by allowing the State to impeach
9 him with a prior second degree murder conviction that was over ten years old. During
10 trial, after having provided prior written notice of its intention, the State informed
11 	Defendant and the district court that it planned to impeach Defendant with his 1989
12 	conviction if Defendant were to testify that he did not have any convictions. The
13 	State further represented that it would not use the prior conviction if Defendant did
14 not open the door with his testimony and that the State would seek a ruling from the
15 	district court prior to asking about any convictions. Defense counsel agreed that if
16 	Defendant opened the door, the prior felony conviction, without specifics, could be
17 raised.
18 	{IO} 	After Defendant's direct examination, there was a bench conference to discuss
19 this impeachment issue. Despite Defendant not having testified that he had never
20 	been convicted of past crimes, or otherwise having opened the door, the district court
21 	ruled that "given the fact that credibility is crucial here, [the court] will allow the
22 	State to ask the question but not specify the actual offense." The parties agreed that
5

1 defense counsel, and not the State, would ask Defendant about the prior conviction.
2 	Without waiving his objection, defense counsel continued his direct examination of
3 Defendant.
4
5
6
7
8
9
Defense Counsel:
Defendant:
Defense Counsel:
Defendant:
Defense Counsel:
Defendant:
You have a prior conviction, correct?
Yes sir.
And this was-what year was it?
It was in [19]87.
And, that was [not] for a sex crime though, was it?
No sir.
10 	{1 t} 	For purposes of our analysis of this issue, we assume without deciding that
11 	the district court erred in admitting evidence of Defendant's prior conviction under
12 Rule 11-609(8) NMRA. See State v. White, 1994-NMCA-084, ,I 14, 118 N.M. 225,
13 	880 P.2d 322 ("Because we conclude that the error was harmless, we may assume,
14 without deciding, that [the d]efendant is correct in his contention that there was
15 	error."). We begin by noting that Defendant is challenging an evidentiary error,
16 which is subject to non-constitutional harmless error analysis on a case-by-case
17 	basis. See Tollardo, 2012-NMSC-008, ,I 44. This includes a consideration of the
18 evidence of Defendant's guilt and consideration of the facts and circumstances
19 surrounding the alleged error. See id. ,I,I 36, 43.
20 	{12} 	Defendant argues that the introduction of Defendant 's prior conviction was
21 	not harmless error because it was the only evidence presented of Defendant's
22 	criminal past and there was a reasonable probability that the conviction evidence
23 	affected the verdict. This was particularly noteworthy, Defendant argues, because
6

1 some of the elements of the crime were decided purely based on the credibility of
2 Defendant and Victim. The State contends that if there was any error that it was
3 harmless because Victim testified "in great detail about [her] sexual encounters with
4 Defendant" 	and 	the 	prosecutor asked 	no 	follow-up 	questions 	about the 	prior
5 conviction, nor was it mentioned again. In essence, the State argues that, aside from
6 the credibility considerations of Defendant and Victim, the evidence of Defendant's
7 guilt was overwhelming. We agree.
8 	{13} 	Here, the jury was presented with abundant evidence to convict Defendant.
9 The jury instruction for CSP I required the State to prove beyond a reasonable doubt
10 "[D]efendant caused [Victim] to engage in sexual intercourse; ... [Victim] was a
11 	child under the age of thirteen (13); [and that it] happened in New Mexico on or
12 	between the 27th day of July, 2010 and the 8th day of September, 2010." The jury
13 	was presented evidence of the following: Victim became pregnant at the age of
14 twelve, she gave birth to a child at the age of thirteen, and there was a 99.9 percent
15 	probability that Defendant was the father of Victim's child. Based on this evidence,
16 it seems highly improbable that a brief mention of an unspecified prior conviction-
17 one not involving sex abuse, as defense counsel made clear in his questioning-
18 	played any role in Defendant's conviction for CSP I.
19 {14} 	The jury instruction for CSP II required the State to "prove ... beyond a
20 reasonable doubt ... [D]efendant caused [Victim] to engage in sexual intercourse;
7

1 [D]efendant threatened to hurt [Victim] or her family and [Victim] believed that
2 	[D]efendant would carry out the threat; [Victim] was at least thirteen (13) but less
3 than eighteen (18) years old; [and that it] happened in New Mexico on or between
4 the 8th day of September, 2010 and the 30th day of November, 2010." Again, the
5 evidence at trial clearly demonstrated Defendant's guilt with respect to each of the
6 elements. Victim testified that she felt that she had to have sexual intercourse with
7 Defendant because he threatened to hurt her and her family. Victim also testified that
8 she told a lie about what Defendant did to her because she was afraid that Defendant
9 would carry out his threats. It also seems highly improbable that the brief mention
10 	of the prior conviction played any role in Defendant's conviction of CSP II.
11 	{IS} 	In addition, the circumstances surrounding the error indicate that Defendant's
12 testimony about his prior conviction was nonspecific, and therefore less likely to
13 	influence the jury's determination. Defendant was only asked about the existence of
14 	a prior conviction, the year, and whether it was for a sexual offense, which it was
15 	not. The jury learned nothing about the type of crime or even that the nature of the
16 	past conviction was a felony. There was no follow-up questioning by either defense
17 counsel or the State, nor was the conviction utilized as part of the closing argument.
18 	Moreover, the evidence of the prior conviction did not seem particularly important
19 to the State's case, given that the State agreed to allow defense counsel to solicit the
20 	testimony from Defendant. Given that the State relied on Victim's testimony and
8

1 other 	evidence 	of 	guilt 	to 	secure 	a 	conviction, 	we 	conclude 	that 	there 	is
2 no "reasonable probability the error affected the verdict" convicting Defendant. See
3 	Tollardo, 2012-NMSC-008, ,r,r 36, 43 	(emphasis, 	internal 	quotation 	marks, 	and
4 	citation omitted); see also State v. Serna, 2013-NMSC-033, ,r 25 , 305 P.3d 936 ("We
5 can conclude, therefore, that the [sJtate did not exploit the erroneously admitted
6 	[prior conviction] at trial, nor did it make the evidence a significant part of its case
7 against 	[the 	d]efendant. 	Given the 	abundance 	of other 	evidence 	against 	[the
8 d]efendant, the [s]tate simply did not need to do so."). In light of the harmless nature
9 	of the alleged error, we affirm Defendant's conviction on this ground.
10 	C.
11
12 	{16}
The District Court's Abuse of Discretion in Allowing Defendant to Be
Impeached With a Letter He Wrote Was Also Harmless Error
Defendant' s original trial counsel told the district court during a pretrial
13 	conference that he was in the process of conducting an independent DNA paternity
14 test through a private lab. Defendant later sent a letter to the court complaining about
15 	his counsel, who then moved to withdraw from the case. At trial, and before
16 Defendant testified, the State sought a ruling on whether it could impeach Defendant
17 with the DNA test attached to the letter. The State noted that, in the letter, Defendant
18 	claimed his original counsel tried to "rig or alter the [DNA] testing." The State
19 	argued that the letter was a statement by a party opponent that the State could use to
20 	impeach Defendant if he testified that he did not get testing done or that he was not
9

1 the father of Victim's child. The district court reserved its ruling on the issue until it
2 could hear Defendant's testimony.
3 	{17} 	Defendant testified at trial, and the State sought to impeach Defendant's
4 testimony with his letter and attached DNA test results, arguing that it was a
5 statement of a party opponent, showing that DNA testing was done and confirming
6 that Defendant was the father of Victim's child. Earlier in his testimony, on direct
7 examination, Defendant testified that he had faith in the judicial system. The State
8 argued that this testimony opened the door to impeachment because Defendant
9 accused his counsel in the letter of doctoring the test results, thus contradicting the
10 	statement that he had faith in the system. The district court allowed the State to
11 	impeach Defendant with the letter.
12 	{18} 	Defendant argues that the district court abused its discretion by allowing the
13 	State "to question [Defendant] about his letter to the court in a way that established
14 the truth of the DNA test results." The State conceded that this evidence was
15 	inadmissible. While we are not bound to accept the State's concession, see State v.
16 	Tapia, 2015-NMCA-048, ~ 31, 347 P.3d 738 (stating that appellate courts are not
17 	bound by the state's concession), we agree that the State improperly used the letter
18 	for purposes of impeaching Defendant's testimony. We tum to our consideration of
19 	whether the nonconstitutional error was harmless.
10

1 {19} 	Defendant contends that the district court's error was not harmless because
2 Defendant's letter "formed the basis of the [S]tate's theory of the case and narrative
3 to the jury-that [Defendant's] and [Victim's] own family were in denial in the face
4 	of overwhelming scientific evidence of his guilt." Defendant argues that the State
5 repeatedly brought up DNA and scientific evidence to prove that Defendant was the
6 father of Victim's baby. The State argues, again, that the admission of the letter and
7 attached DNA test was harmless because it merely confirmed that Defendant was
8 the father of Victim's child. Again, we agree with the State that the error was
9 harmless.
10 	{20} 	Here, the prosecution relied on ample alternative evidence in the presentation
11 	of its case that formed the basis of its theory that Defendant committed the crimes
12 	of CSP I and II. See Tollardo, 2012-NMSC-008,, 43 ("This requires an examination
13 	of the error itself, which ... could include an examination of the source of the error
14 and the emphasis placed upon the error."); see also Serna, 2013-NMSC-033,, 25
15 	("Importantly, 	our review 	of the 	record 	shows that neither side placed 	much
16 emphasis on the erroneously admitted evidence during trial."). For example, the
17 	State discussed scientific evidence throughout the trial in referring to the State's
18 	DNA test and corresponding results, which were corroborated by the State's DNA
19 analyst. Any confirmation of Defendant having fathered Victim's child was merely
20 	cumulative, and thus less likely to affect the jury's verdict.
11

1 {2t} 	Again, considering "the evidence of [D]efendant's guilt, separate from the
2 error," Tollardo, 2012-NMSC-008, 143, there was ample evidence of Defendant's
3 guilt. As such, there was no reasonable probability that the inadmissible evidence
4 contributed to Defendant's conviction. After evaluating "all of the circumstances
5 surrounding the error[,]" we conclude that there is no "reasonable probability the
6 error affected that verdict." Id. 1136, 43 (emphasis, internal quotation marks, and
7 citation omitted). Accordingly, we hold that it was harmless error for the district
8 court to allow the State to impeach Defendant with his letter and attached DNA test
9 results.
10 	II. 	Jury Instructions
11 	{22} 	Defendant argues that the district court failed to instruct the jury that in order
12 to find Defendant guilty of CSP II, it had to find that there was a causal link between
13 	Defendant's threats and him forcing Victim to engage in sexual intercourse. Because
14 Defendant did not preserve this issue below, we review only for fundamental error.
15 	See Rule 12-32l(B)(2)(c) NMRA; see also State v. Barber, 2004-NMSC-019, 1 8,
16 	135 N.M. 621, 92 P.3d 633 ("Because [the d]efendant failed to preserve any error
17 	... we review only for fundamental error.").
18 	A. 	Standard of Review
19 	{23} 	Fundamental error only occurs in "cases with defendants who are indisputably
20 innocent, 	and 	cases 	in 	which 	a 	mistake 	in 	the 	process 	makes 	a 	conviction
12

1 fundamentally unfair notwithstanding the apparent guilt of the accused." Barber,
2 2004-NMSC-019, ,r 17. When this Court reviews jury instructions for fundamental
3 error, we will only reverse the jury verdict if doing so is "necessary to prevent a
4 miscarriage of justice." State v. Sandoval, 2011-NMSC-022, ,r 13, 150 N.M. 224,
5 258 P.3d 1016 (internal quotation marks and citation omitted). In reviewing a district
6 court's failure to instruct, we must "determine whether a reasonable juror would
7 have been confused or misdirected by the jury instructions." Id. ,I 20 (alteration,
8 internal quotation marks, and citation omitted). "[J]uror confusion or misdirection
9 may stem ... from instructions which, through omission ... , fail to provide the
10 juror with an accurate rendition of the relevant law." State v. Benally, 2001-NMSC-
11 	033, ,r 12, 131 N.M. 258, 34 P.3d 1134. If we find error, we examine "the entire
12 	record, placing the jury instructions in the context of the individual facts and
13 	circumstances of the case, to determine whether the [d]efendant's conviction was
14 the result of a plain miscarriage of justice." Barber, 2004-NMSC-009, ,I 19 (internal
15 	quotation marks and citation omitted).
16 	{24} 	Jurors must be instructed on "all questions of law essential for a conviction of
17 	any crime submitted to the jury[,]" Rule 5-608(A) NMRA, and the failure to do so
18 	constitutes fundamental error. State v. Osborne, 1991-NMSC-032, ,I 10, 111 N.M.
19 	654, 808 P.2d 624. However, if it is clear that the evidence at trial established the
20 missing element, the fact that the jury was not instructed on the element is not
13

1 considered fundamental error. See State v. Orosco, 1992-NMSC-006, 112, 113 N.M.
2 780, 833 P.2d 1146 ("[W]hen a jury's finding that a defendant committed the alleged
3 act, under the evidence in the case, necessarily includes or amounts to a finding on
4 an element omitted from the jury's instructions, any doubt as to the reliability of the
5 conviction is eliminated and the error cannot be said to be fundamental.").
6 B. 	The Jury Was Properly Instructed on the Crime of CSP II
7 	{25} 	Consistent with UJI 14-956A NMRA, the jury was instructed as to all the
8 essential elements of second degree criminal sexual penetration on a child thirteen
9 to eighteen years of age, by force or coercion. The tendered jury instruction stated:
10
11
12
13
14
15
[T]o find [D]efendant guilty of criminal sexual penetration
of a child at least thirteen (13) but less than eighteen (18) years
old by use of coercion by a person in a position of authority as
charged in Count 2, the [S]tate must prove beyond a reasonable
doubt each of the following elements of the crime:
1. 	[D]efendant caused [Victim] to engage in sexual intercourse;
16 	2. 	[D]efendant threatened 	to 	hurt 	[Victim] 	or her 	family 	and
17 	[Victim] believed that [D]efendant would carry out the threat;
18 	3. 	[Victim] was at least thirteen (13) but less than eighteen (18)
19 	years old;
20 	4. 	This happened in New Mexico on or between the 8th day of
21 	September, 2010 and the 30th day of November, 2010.
22 	{26} 	Relying 	on 	Section 	30-9-1 l(E)(l) , 	Defendant 	claims 	the 	district 	court
23 	committed fundamental error in failing to include causation as an element of CSP II,
24 which the State is required to prove beyond a reasonable doubt. Defendant argues
14

1 that this omission made it difficult to determine whether Defendant's threats were
2 used to force Victim to engage in sexual intercourse or whether the threats were used
3 to prevent her from reporting him. Because the tendered jury instruction put this
4 distinction at issue, Defendant argues, the omission of causation would confuse "a
5 reasonable juror by suggesting that they could convict [Defendant] ifhe had sex with
6 [Victim] and later threatened her if she told anyone about the intercourse."
7 	{27} 	Section 30-9-1 l(E)(l), in pertinent part, provides:
8 	Criminal sexual penetration in the second degree consists of all criminal
9 	sexual penetration perpetrated ... by the use of force or coercion on a
10 	child thirteen to eighteen years of age[.] ... Whoever commits criminal
11 	sexual penetration in the second degree when the victim is a child who
12 	is thirteen to eighteen years of age is guilty of a second degree felony
13 	for a sexual offense against a child[.]
14 Defendant argues that the current version of UJI 14-956A is flawed because it fails
15 	to adequately establish the requisite causal connection between Defendant's threat
16 	of physical violence and Victim engaging in sexual acts with him. Defendant
17 contends that Victim's inconsistent testimony demonstrates that the causal link was
18 	in dispute. In support of this argument, Defendant points to UJI 14-942 NMRA, the
19 jury instruction for CSP by force or coercion of an adult. See Section 30-9-11 (F)
20 ("Criminal sexual penetration in the third degree consists of all criminal sexual
21 	penetration perpetrated through the use of force or coercion not otherwise specified
22 	in this section."). Defendant argues that the tendered jury instruction omits the
15

1 element that the jury must find that coercion was the cause of the sexual intercourse
2 and therefore rendered an essential element of the crime ambiguous.
3 	{28} 	At trial, the State presented testimony from Victim that she did not want to
4 have sexual intercourse with Defendant, but that he threatened to hurt her and her
5 family, and she believed his threats, so she had sexual relations with him. Defendant,
6 for his part, testified that he did not threaten Victim. The question was before the
7 jury-whether or not Defendant threatened Victim and if he did threaten her, what
8 was his purpose for threatening her.
9 	{29} 	Here, there is no fundamental error. The statute prohibits all criminal sexual
10 penetration perpetrated by the use of force or coercion on a child thirteen to eighteen
11 	years of age. The tendered jury instruction required a finding that Victim was at least
12 	13 years old but less than eighteen years old, that Defendant caused Victim to engage
13 	in sexual intercourse, and threatened to hurt Victim or her family, and Victim
14 	believed that Defendant would carry out the threat. The tendered jury instruction
15 	was not an inaccurate rendition of Section 3 0-9-11 (E)( 1). See State v. Ortega, 2014-
16 NMSC-017, ,r 32, 327 P.3d 1076 ("Uniform jury instructions are presumed to be
17 correct."); see, e.g., State v. Simmons, 2018-NMCA-015, ,r,r 8, 12,409 P.3d 1030
18 	(rejecting the defendant's argument that the jury instruction for CSP II in the
19 commission of a felony must contain a causal link between the felony committed
20 and the CSP, and holding that no fundamental error occurred). A reasonable juror
16

1 would not be confused by the instruction. The connection between Defendant's
2 threats and the acts of CSP with a thirteen-year-old are so readily apparent that the
3 CSP II conviction does not shock our judicial conscience. See Simmons, 2018-
4 NMCA-015, 1 12 (determining that "a reasonable juror would not be confused by
5 the instruction, and the connection between the associated felonies and the acts of
6 CSP is so readily apparent that the CSP II-felony convictions do not shock the
7 judicial conscience"). Nor do we find a "fundamental unfairness" in the tendered
8 jury instruction. See State v. Cunningham, 2000-NMSC-009, 121, 128 N.M. 711,
9 998 P.2d 176 ("Parties alleging fundamental error must demonstrate the existence
10 	of circumstances that shock the conscience or implicate a fundamental unfairness
11 	within the 	system that would undermine judicial integrity 	if left unchecked."
12 	(internal quotation marks and citation omitted)).
13 	{30} 	Defendant also contends that Victim's conflicting testimony that sometimes
14 	Defendant would sweet talk her into having sexual relations and other times he
15 	would threaten her "presented a question that should have been decided by the jury."
16 Based on the flaws he perceives in the tendered jury instruction, Defendant argues
17 that this factual determination was removed from the jury's consideration. We
18 	disagree. Defendant's complaints about any inconsistencies in Victim's testimony,
19 the weight of the testimony, and her credibility were for the jury to determine and
20 not for consideration on appeal. See State v. Salas, 1999-NMCA-099, 113, 127 N.M.
17

1 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in
2 the testimony of the witnesses and to determine where the weight and credibility lie).
3 Accordingly, we hold that the district court properly instructed the jury on CSP II.
4 CONCLUSION
5 	{31} 	For the aforementioned reasons, we affirm Defendant' s convictions.
6 	{32} 	IT IS SO ORDERED.
7
8
9 	WE CONCUR:
..
12 	fo . ~
13 	J. MILES HANISEE, Judge
18
~
ief Judge