July 2, 2020- State of New Mexico v. David Boris, No. A-1-CA-38563

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Odyssey.
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-38563
5 DAVID BORIS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Douglas R. Driggers, 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 {1} Defendant appeals from the district court’s judgment and sentence, entered
19 after a jury trial in which Defendant was found guilty of four counts of criminal
20 sexual contact of a minor (CSCM) under thirteen. Unpersuaded by Defendant’s
Court of Appeals of New Mexico
Filed 7/2/2020 9:27 AM

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1 docketing statement, we issued a notice of proposed summary disposition, proposing
2 to affirm. Defendant has responded with a memorandum in opposition to our notice.
3 We remain unpersuaded and affirm.
4 {2} On appeal, Defendant challenges the sufficiency of the evidence to support his
5 CSCM convictions, arguing in his memorandum in opposition to our notice that
6 “there were no distinguishing facts in one alleged victim’s testimony between one
7 event and the other.” [MIO 1] We understand Defendant’s argument to be that
8 because F.C.’s testimony about the two allegations of CSCM did not differ in any
9 respect, the district court should have granted Defendant’s motion for a directed
10 verdict as to at least one count, under State v. Huerta-Castro, 2017-NMCA-026,
11 ¶¶ 25-30, 390 P.3d 185. [MIO 3-4] Defendant does not demonstrate that the
12 testimony and jury instructions in the current case were sufficiently similar to those
13 presented in Huerta-Castro to warrant reversal.
14 {3} As stated in our notice, both victims testified that within the alleged time frame
15 Defendant touched or rubbed their vaginal area over their clothes when they were
16 spending the night at Defendant’s and their grandmother’s house. [DS unnumbered
17 3-4] The testimony of K.C. indicated that Defendant had done this to her twice at
18 night after everyone else in the house had gone to bed; and the testimony of F.C. also
19 indicated that Defendant had done this to her on two occasions at night after she had

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1 gone to bed. [DS unnumbered 3-4] Neither Defendant’s docketing statement nor his
2 memorandum in opposition describes any other evidence presented, even though the
3 State’s witness list indicates that the State might have called at least four other people
4 to testify. [RP 36] Regardless, the testimony of a single witness may constitute
5 sufficient evidence to uphold a conviction. See, e.g., State v. Roybal,
6 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333. We see no reason why K.C.’s and
7 F.C.’s testimony would be insufficient to establish that Defendant touched each
8 child’s sexual organs on two occasions, for a total of four occasions within the
9 charged time frame. [RP 59-63] Accordingly, we reject Defendant’s challenge to the
10 sufficiency of the evidence to support his convictions.
11 {4} For the reasons stated in the notice and in this opinion, we affirm the district
12 court’s judgment and sentence.
13 {5} IT IS SO ORDERED.
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15 JULIE J. VARGAS, Judge
16 WE CONCUR:
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18 JENNIFER L. ATTREP, Judge
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20 KRISTINA BOGARDUS, Judge