A-1-CA-35160 | Omnilex

Testo completo

Court of Appeals of New Mexico
Filed 5/7/2019 8:14 AM
Mark Reynolds

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Court of Appeals of New Mexico
Filed 5/7/2019 8:14 AM

Mark
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO .

STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. No. A-1-CA-35160
BRIAN HARRIS PALMER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Charles W. Brown, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Kennedy, Hernandez & Associates, P.C.
Paul J. Kennedy
Arne R. Leonard
Elizabeth A. Harrison
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
M. ZAMORA, Chief Judge.

44) Brian Harris Palmer (Defendant) appeals his convictions and sentencing for

criminal sexual penetration in the second degree (CSP II) and kidnapping, contrary

to NMSA 1978, Section 30-9-11(E)(3) (2009), and NMSA 1978, Section 30-4-

£4
eynolds ;

1(A)(4) (2003), respectively. Defendant challenges his convictions on the following
grounds: (1) double jeopardy; (2) insufficient evidence of CSP II and kidnapping;
(3) undue restriction on his right to confront an adverse witness; (4) ineffective
assistance of counsel; and (5) cumulative error. We affirm.

BACKGROUND

2} Victim testified that, on the evening of June 6, 2014, around 7:20 p.m., she
went for a walk after work in the area of San Mateo and Montgomery on a route that
she regularly walked because it was well-lit and the stores are always open. She also
testified that one block north of that intersection, a man assaulted her. That evening,
she walked past a man waiting at a bus stop, who was bent down to talk to someone
waiting for the bus. As she “got to the [red] light that was on the path to turn down
toward Walgreens,” she felt like someone was following her or walking behind her.
That person got closer to her, “[a]n arm’s length, maybe,” and said “hi” to her. In
her testimony, she described the man as “about 5°8”, more or less. He looked like he
was drugged or was drunk... . [A]t that moment when he said hello to me and I
turned around and I saw him, I was scared because it was the same person who I saw
at the bus stop.” The light changed, and Victim began to cross the street, with the
man walking at her side.

{3} At trial, Victim described that as soon as she had crossed the street, “this

person grabbed me [from behind] and—grabbed me, hugged me, and held my arms

up.” Then, she testified that while still being held by him, “[t]his person took a few
more steps and then he turned around where that sign is going down into the parking
lot.” She testified that, after that, “he threw me down to the ground and then he put
himself on top of my legs.” The man then “pull[ed] down my clothing and my pants,
including my underclothes, and he got on top of my legs. . . . His knees were on each
side of mine and he was pressing my legs with his.” Then, she testified, “He was
touching my private parts. He was trying to do it many times.” “[W]ith his right
hand, he had put his [fingers] in [Victim’s] vagina.” When asked whether his fingers
went inside her vagina, she said, “[n]ot all the way, but he did touch the entrance of
my vagina.” Victim saw some shrubs and rocks, and “threw the rocks in his face,”
pushed him, and after he got off of her, the man “walked off to the parking lot.”
Victim got up, pulled up her pants, began yelling for help, and called 911.

(4; A nearby taxi driver heard Victim’s screams for help and assisted her. The
taxi driver, along with an on-site security guard and Victim, followed Defendant,
who was on foot, for a few blocks until police arrived. Victim positively identified
Defendant at the scene as the man who attacked her while he sat on the curb in
handcuffs. Victim testified that her left hand was injured as a result of the assault,
stating, “I imagine that while I was looking for something to defend myself, that I

hurt myself on the shrubs or some rocks.”

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{5} The jury returned a verdict of guilty as to criminal sexual penetration causing
personal injury (CSP ID) and kidnapping. In response to the three special verdict
questions related to kidnapping, the jury found that Defendant: (1) did not
voluntarily free Victim in a safe place, (2) inflicted physical injury upon Victim, and
(3) committed a sexual offense upon Victim. Defendant was sentenced to eighteen
years’ imprisonment for kidnapping and nine years for CSP II, to run concurrently.
Because this is a memorandum opinion and the parties are familiar with the facts
and procedural history of this case, we reserve discussion of additional pertinent
facts for our analysis.

DISCUSSION

I. Defendant’s Convictions for Both Kidnapping and CSP II Do Not Violate
the Prohibition Against Double Jeopardy

{6} “Double jeopardy presents a question of law, which we review de novo.” State
v. Sotelo, 2013-NMCA-028, § 18, 296 P.3d 1232 (internal quotation marks and
citation omitted). “However, where factual issues are intertwined with the double
jeopardy analysis, we review the trial court’s fact determinations under a deferential
substantial evidence standard of review.” State v. Rodriguez, 2006-NMSC-018, { 3,
139 N.M. 450, 134 P.3d 737.

(7; Defendant was charged with CSP II. In order to prove that charge, the State
was required to show in relevant part that “[D]efendant caused the insertion to any

extent, of his finger, into the vagina or vulva of [Victim,]” he “used physical force

or physical violence[,]” and his “acts resulted in abrasions to [Victim’s] left hand[.]”
See UJI 14-949 NMRA; see also § 30-9-11(E)(3). Defendant was also charged with
kidnapping, which requires proof that “[D]efendant took, restrained, [or] confined
[Victim] by force, intimidation or deception[,]” and “[D]efendant intended to hold
[Victim] against her will to inflict death, physical injury or a sexual offense on
[Victim.]” See UJI 14-403 NMRA (1997);' see also § 30-4-1(A)(4). Defendant
argues that the jury relied on the same force or restraint to support his convictions
for CSP II and kidnapping, violating his right to be free from double jeopardy.

{833 The United States and New Mexico Constitutions both prohibit any person
from being “twice put in jeopardy” for the same offense. U.S. Const. amend. V;
N.M. Const. art. II, § 15. The double jeopardy prohibition against multiple
punishments “relates to two general categories of cases in which a defendant has
been charged with multiple violations of a single statute based on a single course of
conduct, known as ‘unit of prosecution* cases; and cases in which a defendant is
charged with violations of multiple statutes for the same conduct, known as ‘double-
description’ cases.” State v. DeGraff, 2006-NMSC-011, J 25, 139 N.M. 211, 131

P.3d 61. Because Defendant argues that his convictions arise from the same conduct,

' We note that UJI 14-403 was amended in 2015 to add an element requiring
the jury to find that the “restraint . . . was not slight, inconsequential, or merely
incidental to the commission of another crime” where there is a genuine issue of
incidental conduct. See UJI 14-403 use note 8 (2015); see also UJI 14-403 comm.
emt. (2015).

charged under different statutes, this is a double-description case. For
“double[-]description” cases, we apply the two-part test set forth in Swafford v.
State, 1991-NMSC-043, 9 9, 112 N.M. 3, 810 P.2d 1223, and decide: (1) whether
the conduct is unitary and (2) if so, whether the Legislature intended to punish the
offenses separately. “Only if the first part of the test is answered in the affirmative,
and the second in the negative, will the double jeopardy clause prohibit multiple
punishment in the same trial.” State v. Silvas, 2015-NMSC-006, J 9, 343 P.3d 616
(internal quotation marks and citation omitted).

{9} “When determining whether [a d]efendant’s conduct was unitary, we consider
whether [the dJefendant’s acts are separated by sufficient indicia of distinctness.”
DeGraff, 2006-NMSC-011, ¥ 27 (internal quotation marks and citation omitted).
“Conduct is unitary when not sufficiently separated by time or place, and the object
and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015-
NMSC-006, 4 10. “In our consideration of whether conduct is unitary, we have
looked for an identifiable point at which one of the charged crimes had been
completed and the other not yet committed.” DeGraff, 2006-NMSC-01 1, § 27. “The
proper analytical framework for determining unitary conduct is whether the facts
presented at trial establish that the jury reasonably could have inferred independent
factual bases for the charged offenses.” State v. Dominguez, 2014-NMCA-064, { 12,

327 P.3d 1092 (alteration omitted) (quoting State v. Franco, 2005-NMSC-013, ¥ 7,

137 N.M. 447, 112 P.3d 1104). “[T]he task is merely to determine whether the
conduct for which there are multiple charges is... distinguishable.” Swafford,
1991-NMSC-043, § 28.

{10} During trial, after the close of the State’s evidence, Defendant moved for a
directed verdict as to the kidnapping charge. The district court concluded, “I think
the evidence is,[] someone came up, grabbed [Victim] and threw her, forced her, or
pushed her, or whatever, however you want to characterize it, down on the rocks
there in the bushes.” Then, “that same person then pulled her pants down and either
did or attempted to penetrate her digitally.” In denying Defendant’s motion, the court
stated that “[t]he kidnapping was complete at the time she was restrained or confined
illegally.” We agree.

{11} Here, the conduct underlying Defendant’s convictions for kidnapping and
CSP II is not unitary because independent factual bases support each offense. The
record establishes that the underlying acts for the two charges, while close in time
and place, occurred in different places: the kidnapping occurred on the sidewalk,
whereas the CSP II occurred on the landscaped area next to the sidewalk and in front
of the business sign. In addition, the nature of the physical force and restraint for
each crime was different. The kidnapping occurred when Defendant grabbed Victim
from behind, hugged her, and held her hands up. Defendant used separate physical

force in the commission of the CSP II: he put himself on top of Victim lower legs,

pulled her pants down, and then put his knees on either side of her legs while pressing
down on her legs with his. On these facts, a jury reasonably could have concluded
that the kidnapping was complete, and therefore factually distinct, at the point
Defendant grabbed and hugged Victim and held her arms up. See State v. McGuire,
1990-NMSC-067, 7 10, 110 N.M. 304, 795 P.2d 996 (“Once [the] defendant
restrained the victim with the requisite intent to hold her for service against her will,
he had committed the crime of kidnapping, although the kidnapping continued
throughout the course of [the] defendant’s other crimes[.]”); see also Dominguez,
2014-NMCA-064, ¥ 10 (“The crime of kidnapping is complete when the defendant,
with the requisite intent, restrains the victim, even though the restraint continues
through the commission of a separate crime.” (citing McGuire, 1990-NMSC-067,
4 10)). The fact that the statutes share the element of force is not dispositive of our
inquiry. See Dominguez, 2014-NMCA-064, § 10; see also State v. Allen, 2000-
NMSC-002, 4 70, 128 N.M. 482, 994 P.2d 728 (“Similar statutory provisions sharing
certain elements may support separate convictions and punishments where
examination of the facts presented at trial establish that the jury reasonably could
have inferred independent factual bases for the charged offenses.” (alteration,
internal quotation marks, and citation omitted)).

12}. Defendant nevertheless argues that even if separate conduct supported both

convictions, the jury instructions did not adequately differentiate the conduct

supporting the CSP II charge from the kidnapping charge. Defendant, citing our
holding in State v. Montoya, states that we must therefore presume that his
kidnapping and CSP II convictions are based upon the same evidence of force and
restraint. See 2011-NMCA-074, 7 39, 150 N.M. 415, 259 P.3d 820. We disagree.
{13}. In Montoya, the defendant was convicted of kidnapping and CSP II based on
sexual intercourse that occurred during the commission of either kidnapping or
aggravated burglary. Jd. § 35. On appeal, the defendant argued “that his
constitutional protection against double jeopardy was violated because he was
convicted of both CSP II (commission of a felony) and the predicate felony
underlying the CSP II conviction.” /d. | 28. We determined that the conduct
underlying the defendant’s convictions in Montoya was unitary. Id. § 39.

414 Here, unlike Montoya, the sexual assault charge did not require the jury to
find that the offense was committed during the commission of kidnapping, and we
do not harbor any similar concern that Defendant’s convictions were based upon the
same predicate conduct. The evidence in this case demonstrates that Defendant’s
acts were separated by sufficient indicia of distinctness and that the kidnapping was
complete before Defendant subsequently used force to commit CSP II. See Allen,
2000-NMSC-002, § 70 (“[I]f there was a basis for the jury to find factually distinct
bases for kidnapping [and] attempted CSP, . . . then the conduct is considered non-

unitary.”). We will not second-guess the jury’s factual conclusions. See State v.

Urioste, 2011-NMCA-121, 7 28, 267 P.3d 820 (affirming on the basis “that the jury
could reasonably have inferred an independent factual basis for all three of [the
djefendant’s convictions, and we do not second-guess the factual conclusions of a
jury”). Because we conclude that Defendant’s conduct was not unitary, we do not
proceed to the second Swafford prong, and we conclude that no double jeopardy
violation occurred here.

II. Defendant’s Convictions Were Supported by Sufficient Evidence

{15} “In reviewing sufficiency of the evidence, we must view the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.” State v. Holt, 2016-
NMSC-011, 20, 368 P.3d 409 (internal quotation marks and citation omitted). “In
that light, the Court determines whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” /d. (internal
quotation marks and citation omitted). “Contrary evidence supporting acquittal does
not provide a basis for reversal because the jury is free to reject [the d]efendant’s
version of the facts.” State v. Rojo, 1999-NMSC-001, 4 19, 126 N.M. 438, 971 P.2d
829. “Jury instructions become the law of the case against which the sufficiency of
the evidence is to be measured.” State v. Jackson, 2018-NMCA-066, § 22, 429 P.3d
674 (internal quotation marks and citation omitted), cert. denied, 2018-NMCERT-

___ (No. S-1-SC-37267, Oct. 15, 2018).

A. Kidnapping

{16} To find Defendant guilty of kidnapping, the jury had to find that Defendant:
(1) took, restrained, or confined Victim by force, intimidation, or deception; (2) and
intended to hold Victim against her will to inflict death, physical injury or a sexual
offense on her; (3) in New Mexico on or about June 6, 2014. See § 30-4-1(A)(4);
UII 14-403.

4173} Defendant argues that the State did not present sufficient evidence of the first
element of kidnapping because any restraint by force used to commit the kidnapping
was incidental to the force used to commit the sexual offense. See State v. Trujillo,
2012-NMCA-112, 4 39, 289 P.3d 238 (concluding that evidence of a restraint
incidental to an aggravated battery was insufficient to support a conviction for
kidnapping). “The appellate courts have held consistently that the evidence of force
used in kidnapping must be independent of the evidence of force used in CSP.” Id.
q 11. Similarly, “the Legislature did not intend to punish as kidnapping restraints
that are merely incidental to another crime.” Jd. 39.

{18} Notwithstanding the higher deference afforded to the guilty verdict in a review
for sufficiency, we recognize that our sufficiency inquiry overlaps with our analysis
of unitary conduct under double jeopardy. See Dominguez, 2014-NMCA-064, §| 4
(“[O]ur resolution of [d]Jefendant’s double jeopardy argument is largely

determinative of his insufficiency of the evidence argument. Indeed in the context

of combined kidnapping and sexual offense convictions, these two areas of law have
generated considerable analytical overlap in our case law.” (citing Allen, 2000-
NMSC-002, 4] 62, 67)). For the reasons stated in our double jeopardy analysis, we
likewise reject Defendant’s contention that the force used to convict Defendant of
kidnapping was merely incidental to CSP II. In evaluating whether force is
incidental, “we must determine whether the force used during the other crime, in this
case CSP II, is the only evidence of force supporting both the kidnapping conviction
and the separate offense.” Jd. J 12. As already discussed, Defendant’s initial act of
force—grabbing Victim from behind to restrain her before sitting on her legs to
restrain her during the sexual assault—was not incidental to the force required to
commit the CSP II. See id. (relying on the conclusion that the defendant’s conduct
was non-unitary to conclude that “there was evidence of independent uses of force
and intimidation before the CSP that supported [the d]efendant’s kidnapping
conviction” (citing Allen, 2000-NMSC-002, { 67)).

{19} Defendant attempts to minimize the significant independence of his acts by
arguing that his purpose in restraining Victim was to stop her and descend on the
ground on top of her so he could “effect the sexual offense in the most
straightforward manner possible,” and that the assault occurred “within a few steps”
of the initial grabbing. The separate use of force, however, does not depend on the

distance traveled or amount of time that has passed but on the totality of the

circumstances. See Trujillo, 2012-NMCA-112, { 43 (stating that a conviction for
kidnapping based on “minimal movement or short confinement” would not be
precluded by the Court’s conclusion because “whether the restraint or movement is
incidental depends on the facts of each case, in light of the totality of surrounding
circumstances” (internal quotation marks and citation omitted)). Indeed, this Court
has previously upheld a conviction for kidnapping that occurred steps away from the
sexual assault. See, e.g., Dominguez, 2014-NMCA-064, ff 10, 12 (concluding that
the evidence supported independent uses of force and intimidation to support a
separate conviction for kidnapping where the defendant first pulled a gun from his
clothing and made threats to the victim, moved victim to the back bedroom, and then
used the gun to restrain her during the CSP). Considering the facts and circumstances
presented at trial in the light most favorable to the verdict, we conclude that there
was sufficient evidence of force, independent of the force used during the CSP II, to
support Defendant’s kidnapping conviction. See id. J 12 (concluding that, “[u]nder
no reading of Trujillo would [the d]efendant’s force . . . in effectuating the initial
restraint supporting the kidnapping conviction be considered ‘merely incidental’ to
the CSP II as a matter of law, nor was it the type of force ‘necessarily involved’ in
every CSP” (citation omitted)).

20} We decline to consider Defendant’s additional arguments related to the

sufficiency of the evidence for his kidnapping conviction based upon Victim’s

physical injuries as these arguments are inadequately developed and Defendant cites
no authority in support of his position. See State v. Guerra, 2012-NMSC-014, { 21,
278 P.3d 1031 (stating that the appellate courts are under no obligation to review
unclear or undeveloped arguments).

B. CSPII

21} To find Defendant guilty of CSP II, the jury had to find (1) Defendant caused
the insertion to any extent of his finger into Victim’s vulva or vagina; (2) he used
physical force or physical violence; (3) his acts resulted in abrasions to Victim’s left
hand; (4) and he acted unlawfully; (5) in New Mexico on or about June 6, 2014. See
§ 30-9-11(E)(3); UJI 14-949. Vulva was defined in the jury instructions as “the
external parts of the female organ of sexual intercourse. It is composed of the major
and minor lips, the clitoris and the opening of the vagina.” UJI 14-981 NMRA.

1. Injury

22} Defendant argues that there is insufficient evidence to support the third
element of this charge because Victim testified that she imagined she hurt herself on
the shrubs or rocks while looking for something to defend herself, rather than as a
result of Defendant’s use of force. The State responds that Victim’s injury to her
hand is sufficient to support the conviction because it occurred as a result of the

sexual assault. We agree.

23} Defendant first argues that the injury must be caused by him through his use
of force and not as a result of Victim’s resistance to the attack. The sole case cited
by Defendant, State v. Barraza, does not stand for the proposition he argues, and we
will not consider propositions that are unsupported by citation to authority. See
1990-NMCA-026, § 11, 110 N.M. 45, 791 P.2d 799 (holding that there was
sufficient evidence to support jury’s verdict of CSP II where the victim’s personal
injury was proved by establishing she suffered mental anguish); see also State v.
Vigil-Giron, 2014-NMCA-069, J 60, 327 P.3d 1129 (“[A]ppellate courts will not
consider an issue if no authority is cited in support of the issue and that, given no
cited authority, we assume no such authority exists[.]”).

243 Defendant, focusing on Victim’s use of the word “imagine,” also argues that
Victim’s testimony is insufficient to establish that Defendant’s acts resulted in injury
to Victim. Defendant takes Victim’s testimony out of context. Victim testified that
she received injuries to her hand and back as a result of the assault. When asked,
“Do you know what happened to your hand to get that injury?” Victim testified, “I
imagine that while I was looking for something to defend myself, that I hurt myself
on the shrubs or some rocks.” Both Victim and the sexual assault nurse testified that
Victim did not have these abrasions prior to the sexual assault. Victim testified that
she has a permanent scar resulting from the abrasions on her left hand. Here, the jury

instructions required only that the jury find that Defendant’s acts resulted in the

abrasions. See NMSA 1978, § 30-9-10(D) (2005) (defining “personal injury” as
“bodily injury to a lesser degree than great bodily harm and includes, but is not
limited to, disfigurement, mental anguish, chronic or recurrent pain, pregnancy or
disease or injury to a sexual or reproductive organ”); Jackson, 2018-NMCA-066, § 2
(“Jury instructions become the law of the case against which the sufficiency of the
evidence is to be measured.” (internal quotation marks and citation omitted)).
Viewing the evidence in the light most favorable to the verdict, a rational jury could
find beyond a reasonable doubt that Victim suffered injury to her left hand as a result
of Defendant’s actions. See Rojo, 1999-NMSC-001, J 19 (“Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.”).

2. Penetration

25} Defendant also argues that the evidence was insufficient to establish the first
element of CSP II, digital penetration, and urges us to remand this case for
resentencing under the lesser included offense of criminal sexual contact. Defendant
argues that Victim did not mention penetration in her interview with police, only
that she was touched at the “opening of the vagina” or the side, and there was no
physical evidence of penetration. At trial, Victim testified that Defendant “had put
his [fingers] in my vagina.” When asked whether his fingers went inside her vagina,

she said, “[nJot all the way, but he did touch the entrance of my vagina.”

{26} We first address Defendant’s argument that the touching of the opening of the
vagina was not a penetration of the vagina. The CSP II statute defines criminal sexual
penetration as “the unlawful and intentional . . . causing of penetration, to any extent
and with any object, of the genital or anal openings of another[.]” Section 30-9-
11(A) (emphasis added); see UJI 14-949 use note 6 (“Name the part or parts of the
body: i.e., ‘vagina’, ‘penis’ or ‘anus’. The applicable definition or definitions from
[UJI] 14-981 must be given after this instruction.”). The jury was instructed to
consider penetration of either the vagina or vulva based on the district court’s
determination that “[rJeading the statute as a whole... [i]t’s my opinion that any
penetration will include penetration between the outer portions and through the
vagina. I’m going to let vulva stay in.” The jury was instructed on the definition of
“vulva” as including “the opening of the vagina.” UJI 14-981 (emphasis added)).
Because penetration “to any extent” of the vulva is sufficient to support a conviction
for CSP II in this case, a rational jury could find beyond a reasonable doubt that
Defendant caused a penetration to occur based upon Victim testimony that
Defendant’s fingers on his right hand touched the entrance of her vagina. See State
v. Tapia, 2015-NMCA-048, § 9, 347 P.3d 738 (“Applying the definitions of vagina
and vulva in light of the requirement that penetration minimally occur to any extent,
the testimony given by both victims, and the [physician’s assistant who examined

victim for evidence of sexual abuse] was sufficient to allow a jury to utilize its fact

finding autonomy to find that the [s]tate satisfied its evidentiary burden as to the
penetrative element of CSPM.”).

27; Second, Defendant points to inconsistent statements Victim gave to law
enforcement and the lack of DNA evidence to argue that, at most, a touching on the
side of the vagina is sufficient to support criminal sexual contact. Here, the jury was
presented with this lesser included offense and rejected it based on the evidence. See
Rojo, 1999-NMSC-001, § 19 (stating that we will not second-guess the jury’s verdict
based upon a defendant’s contrary theory supporting acquittal because “the jury is
free to reject [the dJefendant’s version of the facts”). Defendant further argues that
the fact that neither Victim’s nor Defendant’s DNA evidence was found on the other
person is dispositive of a lack of penetration and misidentification. This theory was
also presented to the jury, along with additional testimony by law enforcement
witnesses who observed Defendant “scrubbing” or “washing” his hands in the dirt
while he was handcuffed on the curb, which they were concerned could contaminate
any evidence of the sexual assault. In addition, the State’s DNA expert testified that
not every contact results in a transfer of enough DNA to be detected, and in some
cases could be washed away or removed through common contact with someone or
something else. “[R]esolving all conflicts in the evidence in favor of the verdict[,]”

Holt, 2016-NMSC-011, § 20, we affirm as to this element of CSP II.

—

3. Identity of perpetrator

28} Defendant further argues that there is insufficient evidence to establish that he
was the perpetrator because Victim’s and the taxi driver’s testimony was
inconsistent and based on a mere guess or conjecture, that there was a significant
distance between both Victim and the taxi driver and Defendant, and that Victim and
the taxi driver were distracted and lost sight of the attacker at various points.
Contrary to Defendant’s position, the record is filled with evidence of Victim’s
immediate identification of Defendant after the crime occurred, which is
summarized below.

293 Victim’s identification of Defendant was based upon direct eyewitness
testimony. Victim testified multiple times that she kept constant sight of Defendant,
briefly losing sight of him just before he was apprehended by police. She testified
that she was on the phone with 911 right after the assault until Defendant was
arrested by police, a total of about fifteen minutes. Defense counsel cross-examined
Victim regarding her identification of Defendant, confirming that she made it from
the inside of the taxicab, at night, at a distance of about three car lengths away from
Defendant. Victim admitted that she briefly lost sight of Defendant, but confirmed
on re-direct that she saw Defendant several times, “[a]t the bus stop, when he
attacked me, face-to-face, those two times... [and p]robably four or five times as

he was going on his route behind the store[.]”

30} The taxi driver also testified that he gave a description of Defendant to the
911 operator as he and Victim were following Defendant. He also explained that he
made eye contact with Defendant from about one hundred feet away and “could see
him very clearly.” He confirmed that he had no reason to believe he started following
a different person after briefly losing sight of Defendant because there were no other
people behind the store where Defendant was walking, and because the person he
was following was “dressed the same.” He further indicated that, although it was
getting dark, he had his headlights on.

31} Officer Jon Olguin explained that Defendant became a person of interest in
the investigation because “[Victim], the caller, had described [Defendant] in detail,
in the call. She had followed him from the point of the incident to where [officers]
had apprehended him.” Officer Olguin testified that he “asked [Victim] if that was
the guy she was following. She had indicated, yes, it was.” Laura Martin, the field
investigator who arrived on scene, photographed “a close-up of the right side of
[Defendant’s] face . . . indicating some injuries.” And Officer David Sprague
testified that he “saw a male subject that precisely matched the description that was
provided .. . of a male subject wearing blue jeans, a gray shirt, and a bald hea >
Taken together, the testimony at trial was sufficient to support the identification of

Defendant as the perpetrator.

{32}, When viewed in the context of the highly deferential standard of review, we
conclude that there was sufficient evidence to support the jury’s verdict on CSP II.
See Rojo, 1999-NMSC-001, § 19 (stating that we will not second-guess the jury’s
verdict based upon a defendant’s contrary theory supporting acquittal because “the
jury is free to reject [the dJefendant’s version of the facts’).

III. The District Court’s Exclusion of Evidence of U-Visa on Cross-

Examination Was Proper and Did Not Deprive Defendant of His Right to
Confront Adverse Witnesses

333} Defendant argues that the district court’s exclusion of evidence demonstrating
bias concerning Victim’s potential U-Visa application was an undue restriction on
his right to cross-examine Victim. He further argues that he was prejudiced because
the evidence was critical to his defense and very likely to influence the outcome of
the trial. However, the record before us is insufficient to permit our review. See Rule
11-103(A)(2) NMRA (providing that “[a] party may claim error in a ruling to...
exclude evidence only if the error affects a substantial right of the party and. . . if
the ruling excludes evidence, the party informs the court of its substance by an offer
of proof, unless the substance was apparent from the context”); State v. Rosales,
2004-NMSC-022, 20, 136 N.M. 25, 94 P.3d 768 (declining to review evidentiary
error where offer of proof was insufficient). Based on the record before us,
Defendant’s sole reference to this issue at trial was during Victim’s cross-

examination in which defense counsel asked her, “Did you apply for [U-Visa]?”

10
11
12
13
14
15
16
17
18
19
20

Counsel for the State objected and moved to strike, both of which the district court
sustained. There was nothing in the record to show that defense counsel made an
offer of proof. To further address this issue would require us to assume facts that are
not in the record before us such as whether Victim in fact had a U-Visa application
pending, whether Victim understood the benefits of such an application prior to
being the victim of a crime, and whether Victim was under the impression that an
appeal of a guilty verdict would grant her additional benefits. We decline to do so.

See State v. Fuentes, 2010-NMCA-027, § 29, 147 N.M. 761, 228 P.3d 1181 (refusing

to review the defendant’s argument that evidence should have been excluded under

Rule 11-403 NMRA where the defendant “neither explained how Rule 11-403

applies in this matter nor developed a factual basis that would allow us to evaluate

this claim”).

IV. Defendant Failed to Establish Ineffective Assistance of Counsel With
Respect to the Showup Identification and We Otherwise Lack the
Necessary Factual Record to Consider the Remaining Claims

34 We review ineffective assistance of counsel claims de novo. State v. Mosley,

2014-NMCA-094, 4 18, 335 P.3d 244. To establish an ineffective assistance of

counsel claim, the defendant must show “error by counsel and prejudice resulting
from the error.” State v. Grogan, 2007-NMSC-039, § 11, 142 N.M. 107, 163 P.3d

494. It is the defendant’s burden to demonstrate both incompetence and prejudice.

Id. First, error is shown if the “attorney’s conduct fell below that of a reasonably

competent attorney.” Jd. (internal quotation marks and citation omitted). Second,
prejudice is shown if “counsel’s deficient performance prejudiced the defense such
that there was a reasonable probability that the outcome of the trial would have been
different.” State v. Barela, 2018-NMCA-067, ¥ 17, 429 P.3d 961 (internal quotation
marks and citation omitted), cert. denied, 2018-NMCERT-___ (No. S-1-SC-37184,
Aug. 29, 2018). We begin with the general presumption that counsel’s representation
was effective. State v. Gonzales, 2007-NMSC-059, ¥ 14, 143 N.M. 25, 172 P.3d 162.
{35} Defendant first argues that trial counsel was ineffective in failing to move to
suppress Victim’s showup identification of Defendant. At trial, Victim testified that
she identified Defendant from the backseat of the taxicab, at night, while Defendant
was seated, handcuffed, and several car lengths away. Our Supreme Court has
previously held that a defense attorney’s failure to move to suppress a showup
identification was unreasonable and may satisfy the first prong of an ineffective
assistance of counsel test. See Patterson v. LeMaster, 2001-NMSC-013, 4 21, 130
N.M. 179, 21 P.3d 1032 (concluding that counsel was ineffective in failing to file a
motion to suppress showup identification because “[s]howup identifications are
inherently suggestive and should be avoided” (internal quotation marks and citation
omitted)). However, this case cannot be viewed in a vacuum.

36} In convictions involving showup identifications, we balance the

identification’s inherently suggestive nature against the presence of any sufficient

indicia of reliability. Jd. J§ 21-22. In Patterson, the perpetrator’s face and head were
covered throughout the robbery, the pre-identification descriptions did not match the
perpetrator, and the witness was uncertain about the identity of the perpetrator. Jd.
qj 23-25. In contrast, here, Victim described Defendant as he was leaving the scene
within seconds of the sexual assault, and she identified Defendant to police shortly
thereafter. She also maintained certainty that Defendant was her attacker. Here, the
evidence presented at trial establishes sufficient indicia of reliability. See id. { 20
(“When assessing the reliability of a showup identification, courts weigh the
corrupting effect of the suggestive identification against the witness’s opportunity to
view the criminal at the time of the crime, the attention the witness paid, the accuracy
of any pre-identification description, the witness’s level of certainty at the
identification, and the time between the crime and the identification.” (internal
quotation marks and citation omitted)). Given that any indicia of unreliability went
to the weight and credibility (as opposed to the admissibility) of Victim’s
identification of Defendant, a motion to suppress was unwarranted. Defendant has
therefore failed to make a prima facie showing of ineffectiveness based on defense
counsel’s failure to move to suppress the showup identification. See State v. Crocco,
2014-NMSC-016, J 24, 327 P.3d 1068 (concluding that the defendant failed to make
a prima facie showing of ineffectiveness where motion to suppress was without

merit).

{37} Moreover, rather than moving to suppress the showup identification, defense
counsel opted to present an expert to discuss the unreliability of showup eyewitness
identifications and the effect of stressful moments on a person’s memory. At trial,
Defendant’s sole witness was an expert in eyewitness identification who testified
extensively about showup identifications. He shared his opinions about factors that
can affect the reliability of showup identifications including, as Defendant has
suggested on appeal, the distance, the lighting, stress experienced by Victim,
memories related to people of a different race, and suggestibility of law
enforcement’s presentation of a suspect. This was a reasonable trial tactic that
explains counsel’s performance. See State v. Roybal, 2002-NMSC-027, 4 21, 132
N.M. 657, 54 P.3d 61 (“[I]f on appeal we can conceive of a reasonable trial tactic
which would explain the counsel’s performance, we will not find ineffective
assistance.”). Having failed to establish that his attorney’s performance fell below
an objective standard of reasonableness, Defendant’s claim fails.

38} Defendant further argues, pursuant to State v. Franklin, 1967-NMSC-151, ] 9,
78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, {J 17-24, 103
N.M. 655, 712 P.2d 1, that trial counsel was ineffective in handling many other
aspects of the trial. The record before us does not contain the facts necessary for a
full determination of these issues and therefore, the proper avenue for Defendant to

pursue those arguments is via habeas corpus proceedings. See State v. Morgan,

20
21

2016-NMCA-089, ¢ 17, 382 P.3d 981; see also Barela, 2018-NMCA-067, § 17
(“Our Supreme Court has expressed a preference for bringing ineffective assistance
claims through habeas corpus proceedings, rather than on direct appeal.”).

V. Defendant Was Not Deprived of a Fair Trial

39} Pursuant to Franklin, 1967-NMSC-151, 4 9, and Boyer, 1985-NMCA-029,
{| 17-24, Defendant further argues that his convictions should be reversed on the
alternative ground that they were tainted by plain or cumulative error. “The doctrine
of cumulative error requires reversal when a series of lesser improprieties throughout
a trial are found, in aggregate, to be so prejudicial that the defendant was deprived
of the constitutional right to a fair trial.” State v. Duffy, 1998-NMSC-014, ¥ 29, 126
N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo, 2012-
NMSC-008, § 37 n.6, 275 P.3d 110. Because we have already concluded that
Defendant’s claims are without merit, we conclude that Defendant was not deprived
of his right to a fair trial. See State v. Samora, 2013-NMSC-038, § 28, 307 P.3d 328
(“Where there is no error to accumulate, there can be no cumulative error.”
(alteration internal quotation marks, and citation omitted)).

CONCLUSION

{40} For the foregoing reasons, we affirm Defendant’s convictions.

413. ITISSO ORDERED. L
Mn. — a

M. MONICA ZAMORA: Thiet Judge

—

WE CONCUR:

SAA

JENNIFER L. ATTREP, Judge

May 7, 2019- State of New Mexico v. Brian Harris Palmer, No. A-1-CA-35160

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