July 1, 2019-State v. Leo Galicia, No. A-1-CA-37452

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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-37452
5 LEO GALICIA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
8 Jennifer E. Delaney, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 V ANZI, Judge.
18 	{1} 	Defendant appeals from the district court's judgment and sentence convicting
19 him for one count of criminal sexual contact of a minor (CSCM) under the age of
20 thirteen. Unpersuaded that Defendant established that the State failed to present
21 	suffic~ent evidence of CSCM, we issued a notice of proposed summary disposition,
Court of Appeals of New Mexico
Filed 7/1/2019 11:20 AM

1 proposing to affirm. Defendant has responded to our notice with a combined motion
2 to amend the docketing statement and memorandum in opposition. We deny the
3 motion to amend and affirm Defendant's conviction.
4 Motion to Amend
5 	{2} 	Defendant's motion to amend seeks to add an issue asking whether the district
6 court erred by allowing hearsay testimony from Victim's mother about Victim's
7 alleged diagnosis 	of post-traumatic stress disorder (PTSD) over the defense's
8 objection. [MIO 4] In cases assigned to the summary calendar, this Court will grant
9 a motion to amend the docketing statement to include additional issues if the motion
10 (1) is timely, (2) states all facts material to a consideration of the new issues sought
11 	to be raised, (3) explains how the issues were properly preserved or why they may be
12 raised for the first time on appeal, (4) demonstrates just cause by explaining why the
13 	issues were not originally raised in the docketing statement, and ( 5) complies in other
14 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ,, 7-8, 10-11,
15 	14-17, 100 N .M. 193, 668 P .2d 3 09. This Court will deny motions to amend that raise
16 issues that ·are not viable, even if they allege fundamental or jurisdictional error. See
17 Statev. Moore, 1989-NMCA-073, ,,36-51, 109N.M.119, 782P.2d91,superseded
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1 by rule on other grounds as recognized in State v. Salgado, 1991-NMCA-044,, 2,
2 	112 N.M. 537, 817 P.2d 730.
3 	{3} 	We 	deny 	Defendant's 	motion 	to 	amend 	because 	Defendant 	does 	not
4 demonstrate that the evidentiary issue he seeks to raise is viable. Defendant does not
5 state the question eliciting the objectionable testimony; he does not describe the
6 testimony that incited his objection; he does not recall the objection made; and does
7 not recall the district court's ruling. [MIO 5] The tape log indicates that Victim's
8 mother was testifying about the changes she saw in her daughter after the alleged
9 incident. [RP 177] Assuming Defendant is correct that the testimony of Victim's
10 mother also included hearsay, it appears Defendant likely objected on those grounds.
11 	[Id.] The record shows that the district court promptly responded to the objection and
12 	instructed the prosecutor to rephrase the question; thus, it appears the district court
13 	agreed with the objection. [Id.] It appears that thereafter Victim's mother testified that
14 Victim was diagnosed with PTSD and was in counseling. [Id.] The tape log suggests
15 that the district court may have mentioned something about the PTSD testimony, but
16 there is no indication that the district court admitted the testimony over a defense
17 objection, as Defendant suggests. [Id.; MIO 4] Neither the motion to amend nor the
18 record indicate that Defendant made any further objection or requested a curative
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1 instruction for the PTSD testimony. Thus, it appears that when Defendant objected
2 	on hearsay grounds and the district court agreed and ordered the prosecution to
3 rephrase to avoid further hearsay, Defendant obtained all the relief requested. See
4 State v. Laney, 2003-NMCA-144, il 34, 134 N.M. 648, 81 P.3d 591 (holding that
5 where a defendant objects, the trial court sustains the objection, and no further
6 remedy or curative instruction is requested, the relief sought was obtained).
7 {4} 	In addition, even assuming Defendant sufficiently objected to the hearsay
8 testimony about PTSD, Defendant does not establish a reasonable probability that the
9 testimony affected the verdict. See State v. Hnulik, 2018-NMCA-026, ,-r 24-25, _
10 P.3d 	_ 	(applying ·the 	non-constitutional 	harmless 	error analysis 	to 	hearsay
11 	statements). The tape log and motion to amend indicate that Victim's mother testified
12 about the change in Victim's behavior that she witnessed in her daughter after the
13 	incident. [MIO 5; RP 177] Also, Victim testified about the incident, which she stated
14 occurred when she was eleven; Victim accused Defendant of having committed the
15 	offense, who is her uncle and with whom she was close and very familiar; the incident
16 allegedly occurred when she was sleeping over at his house after he came home from
17 drinking that day; and, although there was conflicting testimony about whether
18 Victim knew another uncle, no one testified that the incident did not occur and no one
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1 contradicted her testimony about the incident. [RP 171-72, 174] Defendant does not
2 allege nor does he establish how, in light of the foregoing, there was a reasonable
3 probability that the brief hearsay testimony about Victim's diagnosis of PTSD [RP
4 	177] contributed to the verdict. We deny the motion to amend.
5 Sufficient Evidence
6 {5} 	Defendant continues to challenge the sufficiency of the evidence to support his
7 conviction for CSCM. [MIO 8-9] Our notice described the jury instructions against
8 which the evidence was measured, [CN 2] detailed this Court's understanding of the
9 evidence presented, [CN 3-4] and proposed to conclude that, under the applicable
10 standard of review, the evidence was sufficient. [CN 4] Defendant's memorandum in
11 	opposition does not assert that we erred in our understanding of the evidence·or the
12 instructions or the standard of review. [MIO 9] He contends that Victim may have
13 	been mistaken and complains that there was no testimony corroborating Victim's
14 account of the events.[~ 10]
15 	{6} 	Our Legislature has 	declared: 	"The testimony of a victim need not be
16 corroborated in prosecutions under Sections 2 through 5 [NMSA 1978, §§ 30-9-11
17 through 30-9-14 (1975 amended through 2007)] of this act and such testimony shall
18 be entitled to the same weight as the testimony of victims of other crimes under the
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1 Criminal Code." NMSA 1978, § 30-9-15 (1975); see § 30-9-13 (prohibiting the
2 criminal sexual contact of a minor). As we stated in our notice, this Court will not
3 reweigh the evidence on appeal and we will not substitute our judgment that of the
4 jury. See State v. Sutphin, 1988-NMSC-031, 123, 107 N.M. 126, 753 P.2d 1314 ("A
5 reviewing court may neither reweigh the evidence nor substitute its judgment for that
6 of the jury."); State v. Salas, 1999-NMCA-099, 1 13, 127 N.M. 686, 986 P.2d 482
7 (recognizing that it is for the fact-finder to resolve any conflict in the testimony of the
8 witnesses and to determine where the weight and credibility lie). We hold that the
9 evidence was sufficient to support Defendant's conviction for CSCM.
10 	{7} 	For the reasons stated in this opinion and in our notice, we affirm the district
11 	court's judgment and sentence.
12 	{8} 	IT IS SO ORDERED.
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15 	WE CONCUR:
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16 	.fo.~
17 J. MILES HANISEE, Judge
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