May 20, 2019- State of New Mexico v. Joseph L. Mondragon, No. A-1-CA-35899

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW +\'IEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35899
5 JOSEPH L. MONDRAGON,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Fred T. Van Soelen, District Judge 	/
9 Hector H. Balderas, Attorney General
10 Anita Carlson, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
· 13 	Bennett J. Baur, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	DUFFY, Judge.
19 	{1} 	A jury convicted Defendant Joseph Mondragon of eight counts of criminal
20 	sexual contact of a minor (CSCM) (Counts 1-4, 8, 10, 11, and 13) and-three counts
21 	of criminal sexual penetration (CSP) (Counts 5, 6, and 12). Defendant raises the
22 following issues on appeal: (1) double jeopardy and due process violations; (2)
23 	sufficiency of the evidence for certain convictions; (3) error in allowing the State to
Court of Appeals of New Mexico
Filed 5/20/2019 1:23 PM

1 amend the indictment; and (4) improper admission of vouching testimony. We
2 conclude that the evidence was insufficient to support Defendant's conviction under
3 Count 11. The remaining convictions are affirmed.
4 BACKGROUND
5 	{2} 	Alfonso and Jennifer, parents of the minor victims in this case, discovered
6 sexually explicit text messages from Defendant, Alfonso's middle-aged cousin, to
7 their ten-year old daughter (A;B.1) on her phone in December 2013. Alfonso
8 contacted the police and further investigation by detectives and a Sexual Assault
9 Nurse Examiners (SANE) nurse revealed evidence that Defendant had sexually
10 abused all three of their daughters, A.B.1 (ten years old at trial), A.B.2 (nine years
11 	old at trial), and V.B (seventeen years old at trial), to varying degrees from 2010 to
12 	2013.
13 	{3} 	The daughters and their brother, M.B, who. was not a victim in this case,
14 testified a,t trial about specific incidents of abuse with particularity, describing what
15 	occurred, where the abuse. occurred, and their ages when the abuse began. Their
16 testimony also suggested that the abuse was ongoing and occurred periodically from
17 2010 to 2013. During this three-year period, the family lived at five different
18 	addresses: Defendant's trailer (Trailer) in 2010, a house on Rosa Street, a house on
19 	Sheridan, a house on Cypress, and finally their current address (Current House),
20 where the family lived in December 2013 when Defendant's text messages to A.B.l
·2

1 were discovered. Alfonso and Jennifer testified that Defendant stayed with the
2 family at each of these residences at some point and was often trusted to babysit the
3 children while they were away. We reserve further discussion of the pertinent facts
4 for our analysis.
5 {4} 	The jury found Defendant guilty of eight counts of CSCM in the second
6 degree, contrary to NMSA 1978, Section 30-9-13(B) (2003): four involving A.B.l
7 (child under 13) (Counts 1, 2, 3, and 4), three involving A.B.2 (child under 13)
8 (Counts 8, 10, and 11 ), and one involving V.B. (child thirteen to eighteen by person
9 in a position of authority) (Count. 13). The jury also convicted Defendant of two
10 counts of CSP in the first degree, contrary to NMSA 1978, Section 30-9-1 l(D)
11 	(2009) involving A.B.1 (child under 13) (Counts 5 and 6), and one count of CSP in
12 the second degree, contrary to Section 30-9-1 l(E) involving V.B. (child thirteen to
13 	eighteen by use of force or coercion) (Count 12).
14 DISCUSSION
15 	I. 	Due Process and Double Jeopardy
16 	{5} 	Defendant argues that his right to due process and his right to be free from
17 double jeopardy were violated by his convictions for multiple "carbon-copy" counts
18 	based on factually indistinguishable incidents. Specifically, Defendant argues that
19 his convictions for three counts of CSCM committed against A.B.1 (Counts l, 2,
20 and 3), and three counts ofCSCM committed against A.B.2 (Counts 8, 10, and 11)
3

1 are based on course-of-conduct evidence rather than separate, distinct incidents. We
2 review Defendant's due process and double jeopardy arguments de novo'. See State
3 v. Dominguez, 2008-NMCA-029, 1 5, 143 N.M. 549, 178 P.3d 834 (reviewing
4 similar due process and double jeopardy arguments de novo).
5 	{6} 	"Procedural due process under the Fourteenth Amendment to the United
6 States Constitution requires the [s]tate to provide reasonable notice of charges
7 against a person" such that criminal defendants have a fair opportunity to prepare a
8 defense and to protect themselves from double jeopardy. Id. In order to satisfy the
9 requirements of due process and fair notice, every. count in an indictment must be
10 linked to a particular, distinguishable criminal act. Id. 111, 10. This Court has held
11 	that notice is adequate when a child or other witness provides facts to identify
12 specific incidents of abuse. Id. 110. We remain mindful that "there exists a profound
13 	tension between the defendant's constitutional rights to notice of the charges against
14 him and to present a defense, and the state's interest in protecting those victims who
15 	need the most protection." State v. Baldonado, 1998-NMCA-040, 1 20, 124 N.M.
16 745,955 P.2d214 (internal quotation marks and citation omitted). Moreover, we can
17 appreciate that "young children cannot be held to an adult's ability to comprehend
18 and recall dates and other specifics[,]" and, consequently, "have been less vigorous
19 in requiring specificity as to time and place when young children are involved than
4

1 would usu·ally be the case where an adult is involved." Id. 	'if'if 20, 21 	(internal
2 quotation marks and citation omitted).
3 {7} 	In this case, of the counts challenged by Defendant on appeal, only Counts 1
4 and 2 are identical-involving the same alleged conduct, victim, and charging
5 period. Defendant did not request a bill of particulars or statement of facts before
6 trial, nor did he at any time before trial claim that he had insufficient information to
7 prepare his defense. See State v. Altgilbers, 1989-NMCA-106, 'if 46, 109 N.M . .453,
8 786 P .2d 680 (declining to consider lack of notice for the first time on appeal,
9 particularly since the defendant did not request a statement of facts before trial).
10 Indeed, before trial, Defendant received discovery of the victim's interviews through
11 	the State's production of the SANE reports. And upon an examination of the
12 evidence at trial as set forth below, we find no due process or double jeopardy
13 	violation in this case.
14 	{8} 	Counts 1, 2, and 3 charged Defendant with criminal sexual contact of A.B.1,
15 	a minor under the age of thirteen. A.B .1 testified that Defendant touched her private
16 parts for the first time when she was five or six years old and that it happened in
17 Defendant's room in the Trailer. A.B.l testified that Defendant touched her "many
18. times," and indicated that there were between ten and fifteen incidents of abuse, with
19 the last incident occurring on December 8th, 2013, when A.B.1 was 7 years old,
20 according to testimony from the SANE nurse who examined A.B.1 on the day after
5

1 that incident. 	A.B. l, 	however, 	testified with particularity 	about 	four 	distinct
2 incidents of abuse that occurred: (1) in Defendant's room in the Trailer, where he
3 touched her "lower privates" with his hand "under her clothes"; (2) in the living
4 room of her "old house"; (3) in the bedroom of her "old house"; and (4) in the
5 family's Current House. The SANE nurse testified that A.B.1 told her that Defendant
6 put his fingers into her vagina and anus and that it hurt badly. She further testified
7 that an examination of A.B.1 on the day after the last incident of abuse revealed that
8 her vaginal opening beyond the labia was red and irritated and her urine showed
9 signs of an infection.
10 	{9} 	Similarly, Counts 8 and 	10 charged Defendant with committing CSCM
11 	against A.B.2, a minor under the age of thirteen. A.B.2 testified that she was six
12 years old the first time Defendant touched her, and that he touched her like "ten or
13 	... fifteen times," both under her clothes and on top of her clothes. She, however,
14 described two distinguishable acts-one incident that occurred on the floor of the
15 	Trailer, which involved Defendant touching the "front part" of her privates, and one
16 	incident that occurred on the couch at the Current House, where he reached up her
17 	skirt and touched her "front part." As we discuss below, we reverse Count 11 for
18 	lack of substantial evidence and, accordingly, do not consider it in our analysis here.
19 	{to} 	Because all of these counts have distinguishing factual bases, we reject
20 Defendant's argument that these counts should have been charged under a single
6

1 course-of-conduct theory. See Dominguez, 2008-NMCA-029,, 10 (holding that the
2 state 	may 	pursue 	prosecution 	of distinct 	offenses 	when 	they 	are 	based 	on
3 distinguishing facts or circumstances); State v. Gardner, 2003-NMCA-107, , 	28,
4 	134 N.M. 294, 76 P.3d 47 (indicating that separate charges were appropriate when
5 victims specifically described separate incidents of abuse); Altgilbers, 1989-NMCA-
6 106, , 	56 (upholding convictions for CSP and CSC when victims gave specific
7 accounts of the acts and the locations in which the acts occurred, even though they
8 could not provide specific dates). We, therefore, conclude that Defendant's due
9 process and double jeopardy rights have not been violated.
10 II. 	Sufficiency of the Evidence
11 	{11} 	Defendant argues that the evidence is insufficient to support his convictions
12 for Counts 5, 6, 12, and 13. "To determine whether the evidence presented was
13 	sufficient to sustain the verdict, we must decide whether substantial evidence of
14 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
15 	reasonable doubt with respect to every element essential to a conviction." State v.
16 Brietag, 1989-NMCA-019,, 9, 108 N.M. 368, 772 P.2d 898. We view the evidence
17 "in the light most favorable to the guilty verdict, indulging all reasonable inferences
18 and resolving all conflicts in the evidence in favor 	of the verdict." 	State 	v.
19 	Cunningham, 2000-NMSC-009,, 26, 128 N.M. 711, 998 P.2d 176. "[T]he jury is
20 free to reject Defendant's version of the facts[,]" State v. Rojo, 1999-NMSC-001,
7

1 ,r 19, 126 N.M. 438, 971 P.2d 829, and we do not consider the merit of evidence that
2 may have supported a different result. State v. Kersey, 1995-NMSC-054. ,r 11, 120
3 N.M. 517,903 P.2d 828.
4 A. 	Counts 5 & 6
5 	{12} 	Counts 5 and 6 are identical and charge Defendant with CSP in the first degree
6 of A.B.1, a child under the age of thirteen, for causing A.B.1 to engage in fellatio.
7 Section 30-9-1 l(D). Defendant argues that the evidence was insufficient to support
8 these two counts because A.B.1, a reluctant witness, denied engaging in fellatio.
9 Defendant contends that the remaining testimony was insufficient to support two
10 separate charges. We disagree.
11 	{13} 	The SANE nurse testified that A.B.1 told her that Defendant forced her to
12 perform fellatio on him but did not specify the number of times A.B.1 said she
13 	performed fellatio. All three of A.B.1 's siblings, however, described witnessing
14 separate instances in which A.B.1 appeared to be performing fellatio on Defendant.
15 	A.B.2 stated that she saw A.B.l underneath the blankets in M.B.'s room in the
16 daytime; Defendant's hand was pushing A.B.1 down and the blankets were going
17 up and down. V.B. testified that she saw Defendant and A.BJ on the living room
18 	couch at night with A.B.1 's head moving underneath the blankets. M.B. testified that
19 he saw Defendant and A.B.1 on the bed in M.B.'s room, under the sheets, with
8

1 A.B.1 's head going up and down. Pictures of the following texts messages sent from
2 Defendant to A.B.1 were also presented to the jury as exhibits:
3 	Only if u delete
4 	Don't. Let Nana read our texts
5 	Kill showu
6 	Do u want to learn?
7 	I want to teach u how to kiss
8 	Do u still delete
9 	Because I want u to
10 	I want u to suck it hard
11 	Wud u do it longer
12 	How long·
13 	My thing
14 	Will I still suck it
15 	So I can put it in u?
16 	U love me?
17 	I want to
18 	Don't let Nana read ur text
19 	U look pretty
20 	Not tonight but make sur u delete
21 	{14} 	Notwithstanding A.B.1 's denial and that the SANE nurse's testimony did not
22 specify the number of times A.B. l said she engaged in fellatio, the jury could
23 	reasonably have found that Defendant committed two distinct acts of CSP by forcing
24 A.B.1 to engage in fellatio based on her siblings' testimony. See State v. Orosco,
25 	1992-NMSC-006, ,-r 30, 	113 N.M. 780, 	833 	P.2d 1146 (concluding there was
26 sufficient evidence where the victim's prior inconsistent statements were adequately
27 corroborated); see also Rojo, 1999-NMSC-001, i-f 19 ("Contrary evidence supporting
28 	acquittal does not provide a basis for reversal because the jury is free to reject [the
9

1 d]efendant's version of the facts."). We affirm Defendant's convictions for Counts
2 5 and 6.
3 B. 	Count 12
4 	{15} 	Defendant was convicted of Count 12, CSP in the second degree involving
5 V.B. by the use of force on a child thirteen to eighteen years of age. Section 30-9-
6 	1 l(E)(l). Defendant argues that this conviction should be reversed because the State
7 failed to present sufficient evidence to establish that Defendant used force, an
8 essential element of this charge.
9 	{16} 	"[F]orce or coercion" in the context of CSP is defined by statute as "the use
10 of physical force or physical violence[.]" Section 30-9-lO(A)(l). This Court has
11 	recognized that "[t]he issue is not how much force or violence is used, but. whether
12 the force or violence was sufficient to negate consent." State v. Huff, 1998-NMCA-
13 	075, ,-r 12, 125 N.M. 254, 960 P.2d 342; see id. ,-r 4 (finding sufficient evidence of
14 force when the defendant caused the victim pain by squeezing her breast and making
15 	it difficult for her to breathe); see also State v. Perea, 2008-NMCA-147, ,-r 12, 145
16 N.M. 123, 194 P.3d 738 (finding sufficient evidence of force when the defendant
17 isolated the victim by driving her to a secluded dirt road, removed the victim's pants·
18 	and locked the car doors before reclining her seat to climb on top of her~ and pushed
19 her legs apart and persisted when she told him to stop). "Physical or verbal resistance
· 20 	of the victim is not an element of force or coercion." Section 30-9-10(A)(5).
10

1 {17} 	In the present case, V.B. testified that she went to learn how to drive with
2 Defendant four or five times when she was thirteen or fourteen years old. V.B. stated
3 that Defendant would pick ~er and take her to a dirt road, and that the only way she
4 was allowed to drive was if she sat on his lap. Every time V.B. went with Defendant,
5 he would touch her upper and lower "lady parts." While she was in his lap, he would
6 put his hands inside her shirt and under her bra. She testified that he also put his hand
7 inside her pants and underwear to touch her "lady parts" and would also put his
8 fingers inside her vagina. V.B. told Defendant to stop and that it hurt but he did not
9 listen. In addition, the SANE nurse testified that V.B. told her Defendant had
10 touched V.B. and inserted his fingers into her vagina, which was "very painful."
11 	Based on the foregoing and in line with our prior holdings in Perea and Huff, we
12 conclude that a rational jury could have reasonably determined that Defendant used
13 	physical force in committing CSP against V.B. We affirm Defendant's conviction
14 for Count 12.
15 	C. 	Count 13
16 	{18} 	Defendant was convicted of Count 13, CSCM in the second degree involving
17 V.B. "Second-degree CSCM occurs when the perpetrator touches the unclothed
18 	intimate parts of a child thirteen to eighteen years of age and is in a position of
19 authority over the child and uses that authority to coerce the child to submit." State
20 v. 	Arvizo, 2018-NMSC-026, , 	14, 417 P.3d 384 (internal quotation marks and
11

1 citation omitted). Defendant argues that the evidence was insufficient to support the
2 jury's finding that he used his position of authority as a relative to coerce V.B. to
3 submit to sexual contact under Count 13. We disagree.
4 	{19} 	Section 30-:9-1 O(E) defines "position of authority" as "that position occupied
5 by a parent, relative, household member, teacher, employer or oth~r person who, by
6 reason of that position, is able to exercise undue influence over a child[.]" Section
7 30-9-lO(E). Defendant, as a· relative and godfather of V.B., meets this statutory
'
8 definition. See State v. Erwin, 2016-NMCA-032, ,-r 9, 367 P.3d 905 (stating that "a
9 perpetrator need only fall within any of the designated relationships [specified in
10 	Section 30-9-1 O(E)] to hold a position of authority"). Thus, the issue we must decide
11 	is whether there was sufficient evidence presented at trial to establish that Defendant
12 used his position of authority to coerce V.B. to submit to sexual contact.
13 	{20} 	"Coercion for the purposes of CSCM occurs when a defendant occupies a
14 position which 'enables [him] to exercise undue influence over the victim and that
15 	influence must be the means of ~ompelling submission to the contact. Such coercion
16 might take many forms but is less overtly threatening than physical force 	or
17 threats.'" 	Gardner, 	2003-NMCA-107, 	,-r 	22 	(quoting 	UJI 	14-926, 	Comm.
18 	commentary). "Submission to the request of an authority figure is coerced if it is
19 achieved through undue influence or affected by external forces." State v. Gillette,
20 	1985-NMCA-037, ,-r,-r 30-31, 102 N.M. 695, 699 P.2d 626 (finding that defendant
12

1 coerced victim through his position of babysitter of the family home). "Common
2 sense and experience teaches us that children generally yield to the wishes of adults.
3 This is particularly true where an adult, such as an employer, has supervisory
4 control." State v. Trevino, 1991-NMCA-085, 16, 113 N.M. 804, 833 .P.2d 1170; see
5 id. 1 5 ("In light of [the] defendant's ability to place [the victim] in a confined,
6 private workstation and [the victim's] testimony that he was scared, we believe the
7 jury could infer that defendant used his position of authority to coerce [the victim]
8 to submit to the sexual contact."). "The exercise of undue influence resulting in the
9 submission to sexual contact can be inferred by a child's reluctance or fear to report
10 the sexual 'contact." Arvizo, 2018-NMSC-026, 121 (holding that the defendant's
11 	status as the victim's uncle combined with testimony from the victim that she did
12 not report the abuse because she was afraid to upset the family dynamic was enough
13 to infer that she had been "coerced through subtle social or domestic pressure on the
14 part of the perpetrator"); Trevino, 	1991-NMCA-085, 1 4 ("Use of a position of
15 	authority to coerce sexual contact may be proven inferentially.").
16 {21} 	There are several facts from which the jury could infer coercion. Defendant
17 was V.B. 's godfather and was often entrusted by her parents to babysit V.B. and her
18 	siblings. She testified that Defendant would take her out in his truck to "go driving"
19 on a secluded dirt road and that he would only let her drive if she sat on his lap. Like
20 the defendant in Trevino, Defendant used his position as an authority figure to place
13

1 V.B. into a situation where she would be· confined, isolated, and vulnerable. 1991-
2 NMCA-085, 1 4. V.B. testified that she was afraid of Defendant and so she never
3 told her parents that she did not want to go anywhere with him. A jury could
4 reasonably have inferred from this evidence that Defendant, based on his status as
5 an adult family member who was occasionally put in charge of the children, was
6 able to use his position of authority to accomplish. sexual contact with V.B .. See
7 Arvizo, 2018-NMSC-026, 121. We affirm Defendant's conviction for Count 13.
8 D. 	Remaining Counts
9 	{22} 	We exercise our discretion to examine whether sufficient evidence supported
10 Defendant's convictions out of concern that the State's failure to present substantial
11 	evidence of the crimes charged may implicate fundamental error. See State v.
12 	Clemonts, 2006-NMCA-031, 1 10, 139 N.M. 147_, 130 P.3d 208 ("We sua sponte
13 	raised the question whether there was sufficient evidence presented by the [s]tate to
14 satisfy each element set forth in [the jury instruction] because the [s]tate's failure to
15 	come forward with substantial evidence of the crime charged implicates fundamental
16 error and the fundamental rights of [the d]efendant."). "The doctrine of fundamental
17 error is to be resorted to in criminal cases only for the protection of those whose
18 	innocence appears indisputably, or open to such question that it would shock the
19 conscience to permit the conviction to stand." State v. Barber, 2004-NMSC-019,
20 1 14, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted).
14

1 This Court requested supplemental briefing by the parties on certain counts. Having
2 considered the supplemental briefing submitted by the parties on the sufficiency of
3 the evidence on Counts 1, 2, 3, 5, 6, 8, 10, and 11 and conducted a full examination
4 	of the record, we conclude that Count 11 must be reversed.
5 {23} 	Count 11 charged Defendant with CSCM of A.B.2 "on or about the 13th day
6 of October, 2013." From the 	State's supplemental briefing on this· count, we
7 understand that the charge relates to an incident that occurred right after V.B.'s
8 quinceafiera. However, no· evidence was introduced to identify who the victim was
9 in that incident or to establish any of the other essential elements of this charge. The
· 10 charging date in Count 11 is the date ofV.B.'s fifteenth birthday. On the second day
11 	of trial, Detective Smith, the investigating detective, was asked how he constructed
· 12 the charging periods in the indictment. After discussing the matter generally, he
13
14
15
16
17
stated:
[Detective Smith] One of the events in this case, with one of the
children, occurred right after older sister's quinceafiera. And she said,
at the quinceafiera, this is when ...
[Defense Counsel]: Objection, hearsay, Your Honor.
The prosecutor withdrew the statement but the trial judge did not strike it from
19 the record. There is no other testimony or evidence in the record to establish the
20 identity of the victim in the incident related to the quinceafiera. The only way the
21 	jury could have deduced that Detective Smith was referring to A.B.2 in his testimony
22 above was by looking at jury instructions, which identified her as the victim.
18 	{24}
15

1 {25} 	A.B.2's testimony established that she was six years old the first time
2 Defendant touched her (i.e., sometime in 2012), that she was touched a total of ten
3 to fifteen times, and that the abuse was ongoing when she was between the ages of
4 six and eight. She described two specific instances-one on the floor of the Trailer
5 and one on the couch at Current House-which form the bases of Counts 8 and 10.
6 Nothing in A.B:2 or any other witness's testimony links A.B.2 to the incident
7 occurring at V.B. 's quinpeafiera. Moreover, no evidence was introduced to establish
8 an act of touching to support this charge. In the absence of any evidence relating to
9 the essential elements of this charge, Count 11 is reversed.
10 	{26} 	As to the remaining convictions for Counts 1, 2, 3, 5, 6, 8, and 10, there was
11 	sufficient evidence of multiple, separate acts of CSCM and CSP presented at trial to
12 	support Defendant's convictions, and, 	as discussed previously, Defendant has
13 	advanced no meritorious due process or double jeopardy violations in this case.
14 Given this, and because this case does not present an exceptional circumstance
15 	where 	an 	indisputably 	innocent 	person 	has 	been 	convicted, 	the 	doctrine 	of
16 fundamental error does not compel further consideration or reversal of the remaining
17 convictions. See id. , 	8 ("The doctrine of fundamental en-or applies only under
18 	exceptional circumstances and only to prevent a miscarriage of justice."); State v.
· 19 Rodriguez, 1970-NMSC-073,, 10, 81 N.M. 503, 469 P.2d 148 ("The doctrine of
20 fundamental .error is to be resorted to in criminal cases only for the protection of
16

1 those whose innocence appears indisputably, or open to such question that it would
2 	shock the conscience to permit the conviction to stand."); State v. Stein, 	1999-
3 NMCA-065, ,-r 9, 127 N.M. 362, 981 P.2d 295 ("No error is more fundamental than
4 the conviction of an innocent person, and no· right of a party is more fundamental .
5 than the right not to be convicted when innocent. Accordingly, we have held that the
6 question of sufficiency of the evidence to support a conviction may be raised for the
7 first time on appeal.").
8 III. 	Amendment of Charges
9 {27} 	Defendant argues that the district court erred in allowing the State to amend
10 the charging document after the close of evidence. The district court permitted the
1 i 	State to amend the date range for Count 12 from October 13, 2011 to December 31,
12 2011, to October 13, 2011 to October 13, 2012, and to expand the list of body parts
13 	included in Count 10. Defendant contends that the modifications violated his due
14 process right to notice and prejudiced him in his ability to present an "uninvestigated
15 	alibi defense that he could have raised to the charges involving V.B."
16 	{28} 	Rule 5-204(C) NMRA allows the indictment.or information to be amended to
17 conform to the evidence "unless such variance prejudices substantial rights of the
18 	defendant." Prejudice exists when the defendant is unable to reasonably anticipate
19 from the indictment the nature of the proof the State will produce at trial. State v.
20 Marquez, 1998-NMCA-010, ,-r 20, 124 N.M. 409,951 P.2d 1070 ("A variance is not ·
17

1 fatal unless the accused cannot reasonably anticipate from the indictment what the
2 nature of the proof against him will be."). The charging document "need not contain
3 exacting detail as long as the defendant is given sufficient notice of the charges."
4 State v. Stevens, 2014-NMSC-Ol 1, 1 50, 323 P.3d 901 (affirming district court's
5 decision to allow the state to change the dates associated with the alleged offenses
6 after the defendant had presented an alibi defense at trial). A defendant's mere
7 assertion of prejudice from an amendment to the indictment is insufficient to warrant
8 reversal. 	Marquez, 	1998-NMCA-010, 	1 	20. 	"We 	review 	a 	district 	court's
9 	interpretation and application of Rule 5-204 de novo." State v. Branch, 201 O-NMSC-
10 042, 1 19, 148 N.M. 601, 241 P.3d 602, overruled on other grounds by State v.
11 	Tollardo, 2012-NMSC-008, 137 & n. 6, 275 P.3d 110.
12 	{29} 	Here, Defendant argues that he was prejudiced in his ability to present an
13 	uninvestigated alibi. In particular, Defendant asserts that, if he.had known about the
14 extended charging period, he could have argued he lost access to his employer's
15 	truck in March 2012 due to a DWI. Defendant argues that he did not investigate this
16 potential alibi because the initial charging period (October to December 2011) did
17 not include the period during which he supposedly lost access to the truck. We find
18 Defendant's argument unpersuasive. V.B. testified to two specific instances of
19 sexual abuse-one in which Defendant inserted his fingers in her vagina (Count 12)
20 	and one in which Defendant touched her breast (Count 13}-both of which occurred
18

1 in Defendant's truck. While the original charging period for Count 12 extended only
2 to December 31, 2011, the charging period for Count 13 extended from October 13,
3 2011 to October 1_3, 2012, well beyond the date ofDefendant's DWI in March 2012.
4 Given this, we have difficulty grasping how the amendment of the timeframe in
5 Count 12 prejudiced Defendant's ability to claim an alibi defense when he already
6 faced charges (Count 13) involving abuse in the truck after his DWI. In addition, we
7 agree with the district court that the incomplete alibi of not having a license for some
8 part of the amended time frame did not constitute a cognizable showing of prejudice,
9 observing that "having a revoked license does not keep someone from driving." The
10 amendment of the charging period for Count 12 did not prejudice Defendant. See
11 	Stevens, 2014-NMSC-O 11, 1 51 (stating that "mere speculation of how he would
12 have conducted his defense differently does not rise to the level of prejudice that is
13 	required for an acquittal" (internal quotation marks and citation omitted)).
14 {30} 	Defendant also asserts that he was prejudiced by the amendment of Count 10,
15 	which initially charged Defendant with touching only the breast of A.B.2 and was
16 amended to add her "groin, mons veneris, vulva, or vagina." Defendant did not
17 preserve this.claim of error so it is reviewed for fundamental error. See Rule 12-
18 	216(B)(2) NMRA (2016) 1 (providing an appellate court the discretion to review
1
Rule 12-216 was recompiled and amended as Rule 12-321 NMRA,
effective December 16, 2016.
19

1 questions 	of fundamental 	error 	or fundamental rights 	as 	an exception to the
2 preservation rule). Defendant argues on appeal that he was prejudiced by the
3 enlargement of body parts included in Count 10 because "he was not on notice to
4 defend against other types of touching for [C]ount [10]." We reject Defendant's
5 argument, as he was already on notice that he was accused of touching A.B.2's
6 vaginal area and buttocks in Counts 11 and 9. See Marquez, 1998-NMCA-010, 120
7 (finding that amendment did not prejudice the defendant b~cause he was aware of
8 the nature of the charges against him, knew the identity of the alleged victim, and
9 was aware of the mistake in the date from the beginning of the trial). Having failed
10 to establish prejudice, the amendment of Count 10 was not in error and does not rise
11 	to the level of fundamental error. See State v. Jaramillo, 1973-NMCA-029, 111, 85
· 12 N.M. 	19, 	508 	P.2d 	1316 	(concluding that variance 	between indictment and
13 	instructions did not rise to the level of fundamental error when there "is substantial
14 evidence in the record to support the verdict of the jury").
15 	IV. 	Vouching
16 {31} 	Defendant argues that the State elicited improper "vouching" testimony from
17 Detective Smith that referred to the children's credibility and to evidence not in the
18 record. Because these arguments were not preserved at the trial level, Defendant asks
19 us to review the admission of this testimony for plain. err.or. See Rule ll-103(E)
20 NMRA ("A court may take notice of a plain error affecting a substantial right, even
20

1 if the claim of error was not properly preserved."); State v. Walters, 2007-NMSC-
2 050, ,r 18, 142 N.M. 644, 934 P .2d 282 ("In order to preserve an issue for appeal, a
·3 defendant must make a timely objection that specifically apprises the trial court of
4 the nature of the claimed error and invokes an intelligent ruling thereon." (internal
5 quotation marks and citations omitted)). To find plain error, "we must be convinced ·
6 that admission of the testimony constituted a~ injustice that creates grave doubts
7 concerning the validity of the verdict." State v. Lucero, 1993-NMSC-064, ,r 12, 116
8 N.M. 450, 863 P.2d 1071 (internal quotation marks and citation omitted). "Further,
9 in determining whether there has been plain error, we must examine the alleged
10 errors in the context of the testimony as a whole." State v. Montoya, 2015-NMSC-
l l 	010, ,r 46,345 P.3d 1056 (alteration, omission, internal quotation marks, and citation
12 omitted). Plain error is "an exception to the general rule that parties must raise timely
13 	objection to improprieties at trial," and therefore it is to be·used sparingly. State v.
14 	Torres, 2005-NMCA-070, if 9, 137 N.M. 607, 113 P.3d 877.
15 	{32} 	Our Supreme Court has previously evaluated claims of vouching or bolstering
16 in the context of improper statements. made by a prosecutor in "vouching for the
17 credibility 9f a witness, 	either by invoking the authority and prestige 	of the
18 prosecutor's office or by suggesting the prosecutor's special knowledge." State v.
19 Pennington, 1993-NMCA-037, ,r 27, 115 N.M. 372, 851 P.2d 494; see also State v.
20 Alberico, 	1993-NMSC-047, 	,r 	85, 	116 	N.M. 	156, 	861 · P.2d 	192 	("expressly
21

1 prohibit[ing] direct testimony regarding the credibility or truthfulness of the alleged ·
2 victim of sexual abuse").
3 {33} 	Defendant first argues that the prosecutor elicited vouching testimony when ·
4 he asked Detective Smith whether the charges against Defendant were based on the
5 OASIS interview and the SANE exam, to which the Detective responded, "yes, sir."
6 The OASIS interview and SANE exam were not admitted into evidence, although
7 the SANE nurse who performed the exam testified at trial. Defendant argues on
8 appeal that Detective Smith's status as a trained police officer suggested to the jury
9 that all of the charges were supported by evidence he observed in the unadmitted
10 	SANE report and OASIS interview and that they need not scrutinize each count. We
11 	disagree. Detective Smith only made a passing acknowledgement that he considered
12 the OASIS report and SANE exam, and both documents were the subject of witness
13 	testimony at other points during trial. Detective Smith's testimony did not amount
14 to improper vouching, nor, considering the context of the testimony as a whole, did
15 	its admission constitute an injustice that creates grave doubts concerning the validity
16 	of the verdict. See State v. Dylan J., 2009-NMCA-027, ,r 15, 145 N.M. 719,204 P.3d
17 44 ("examin[ing] the alleged [plain] errors in the context of the testimony as a
18 whole" (internal quotation marks and citation omitted)); see also Torres, 2012-
19 NMSC-016, ,r 9 (finding prosecutor's reference to citation that did not come into
20 evidence was improper but did not call for a mistrial).
22

1 {34} 	Defendant 	also 	argues 	that 	Detective 	Smith 	gave 	improper 	vouching
2 testimony regarding the credibility of the children's testimony when the prosecutor
3 asked, "Do you have any information during your investigation that these children
4 were unduly influenced in this case?" and he responded he responded "No. No sir,
5 not at all." The statement was elicited on redirect after defense counsel cross-
6 examined Detective Smith about whether it was protocol to interview children with
7 a parent present and whether that might influence the children's answers. Defendant
8 does not persuade us that Detective Smith's response emphasized or bolstered the
9 credibility of the children's testimony nor that its admission calls the validity of the
10 verdict into question, particularly in light of the totality of the evidence in this case.
11 	We conclude that Detective Smith's isolated statements do notconstitute plain error
12 requiring reversal. See Dylan J., 2009-NMCA-027, ,r 15("examin[ing] the alleged
13 	[plain] eITors in the context of the testimony as a whole." (internal quotations and
14 citation omitted)); Torres, 2005-NMCA-070, ,r 9 (stating that the plain error rule
15 	applies only in evidentiary matters and "only if we have grave doubts about the
16 validity of the verdict, due to an error that infects the fairness or integrity of the
17 judicial proceeding" (internal quotation marks and citation omitted)).
18 	CONCLUSION
19 	{35} 	For the aforementioned reasons, we reverse Defendant's conviction for Count
20 	11 	and remand this case to the district court with .instructions to vacate that
23

1 conviction and to resentence Defendant accordingly. We affirm the remaining
2 	convictions addressed in this appeal.
3 {36}
4
5
IT IS SO ORDERED.
6 WE CONCUR:
7 ~~~--=~~~==----~~~=:!::::~S:0-~-..==--
8 M. MONICA ZAMO 	, Chief Judge
9 	~& 	~10 JE ~ 	i:ATTREP,Judge
24