February 4, 2020- State of New Mexico v. Julian Selph, No. A-1-CA-37033

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37033	4
JULIAN SELPH,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
John A. Dean, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Emily Tyson-Jorgenson, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Santa Fe, NM	14
Steven J. Forsberg, Assistant Appellate Defender	15
Albuquerque, NM	16
for Appellant	17
MEMORANDUM OPINION	18
HANISEE, Chief Judge.	19
{1} 	Julian 	Selph 	(Defendant) 	appeals 	following 	two 	separate 	jury 	trial	20
convictions, which were informally consolidated by agreement into one judgment	21
and sentence for purposes of sentencing. Defendant’s appeal focuses on convictions	22
Court of Appeals of New Mexico
Filed 2/4/2020 9:26 AM

2
in his second jury trial wherein he was convicted of one count of criminal sexual	1
contact of a minor (CSCM) under thirteen, pursuant to NMSA 1978, Section 30-9-	2
13(B)(1) (2003); twelve counts of criminal sexual penetration (CSP) of a child under	3
thirteen, pursuant to NMSA 1978, Section 30-9-11(D)(1) (2009); seven counts of	4
criminal sexual contact of a minor (Person in Position of Authority (PPA)), pursuant	5
to Section 30-9-13(B)(2)(a); and one count of bribery or intimidation of a witness,	6
pursuant to NMSA 1978, Section 30-24-3 (1997).1 Defendant argues that (1) M.S.’s	7
(Victim) therapist improperly bolstered Victim’s testimony; (2) the therapist’s	8
testimony was minimally probative and irrelevant; (3) there was insufficient	9
evidence to support Defendant’s convictions and the charges violated his due	10
process and double jeopardy rights; and (4) there was vindictive prosecution.2 We	11
affirm.	12
1 Defendant was also convicted of child abuse and driving while intoxicated in
the first jury trial, D-1116-CR-2015-00450, however, the appeal focuses on the
CSCM, CSP, CSCM (PPA) charges in his second jury trial, D-1116-CR-2015-
00444.2 Defendant also raises the issue of ineffective assistance of counsel, but states
that the matter is best addressed in a habeas proceeding. We agree. See State v.
Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his
Court has expressed its preference for habeas corpus proceedings over remand when
the record on appeal does not establish a prima facie case of ineffective assistance
of counsel”).

3
BACKGROUND	1
{2} 	On April 24, 2015, at the age of thirteen, Victim threw herself out of a moving	2
truck, because her father, Defendant, was angry and she feared he was going to kill	3
her. Defendant drove away and was later stopped and ultimately charged with	4
driving under the influence and child abuse in his first jury trial. A passing female	5
motorist stopped to assist Victim and took her to the local hospital, where Victim	6
revealed that Defendant had sexually abused her. A few days later, during safe house	7
interviews, Victim revealed the details of the sexual abuse, which began when she	8
was about six years old.	9
{3} 	At trial, the State presented testimony from Victim, Victim’s mother, a police	10
detective, a crime scene investigator, as well as expert testimony from a forensic	11
scientist and Victim’s therapist. Ultimately, Defendant was convicted of all the	12
charges in the second jury trial and sentenced to a total term of imprisonment of	13
three hundred and forty-two years and three months followed by an indeterminate	14
term of parole, based on Defendant’s convictions in both jury trials.	15
{4} 	Because the parties are familiar with the factual and procedural background,	16
we reserve any further discussion of both as is necessary to our analysis.	17
I. 	The Admission of the Therapist’s Testimony Was Proper	18
{5} 	We begin by addressing whether the district court plainly erred in admitting	19
expert testimony that Victim’s behaviors were consistent with a child who has	20
experienced sexual trauma. Defendant argues that the testimony given by Victim’s	21

4
therapist “constituted improper bolstering that was highly prejudicial and warrants	1
reversal.” We disagree.	2
{6} 	Because the issue was unpreserved, we review for plain error. See Rule 11-	3
103(E) NMRA (stating that the doctrine of plain error applies to evidentiary matters	4
and permits a court to “take notice of a plain error affecting a substantial right, even	5
if the claim of error was not properly preserved”). “The plain-error rule . . . applies	6
only if the alleged error affected the substantial rights of the accused.” State v.	7
Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (internal quotation marks and	8
citation omitted). Moreover, this Court “must be convinced that admission of the	9
testimony constituted an injustice that created grave doubts concerning the validity	10
of 	the 	verdict.” 	Id. 	(internal 	quotation 	marks 	and 	citation 	omitted). 	“[W]e	11
. . . examine the alleged errors in the context of the testimony as a whole.” Id.	12
(internal quotation marks and citation omitted).	13
{7} 	Defendant contends that the therapist’s testimony that Victim’s behavior was	14
“consistent” with sexual abuse improperly bolstered Victim’s credibility and that the	15
State’s 	line 	of 	questioning 	repeatedly 	emphasized 	Victim’s 	credibility 	and	16
unnecessarily extended the therapist’s opinion. Defendant also argues that the	17
therapist’s testimony regarding signs of trauma that were consistent with sexual	18
abuse and testimony regarding other causes of trauma were minimally probative and	19

5
highly prejudicial, and therefore should have been excluded as irrelevant evidence.3
1
The portion of the therapist’s testimony at issue is as follows:	2
State: 	So you have been treating [Victim], correct?	3
Therapist: 	I have.	4
State: 	And you’ve observed her behaviors?	5
Therapist: 	I have.	6
State: 	And are [Victim’s] behaviors consistent with a child who	7
has experienced trauma?	8
Therapist: 	Yes.	9
State: 	Are 	her 	behaviors 	consistent 	with 	a 	child 	who 	has	10
experienced sexual trauma?	11
Therapist: 	Yes ma’am.	12
State: 	And you have talked about differences in it being over	13
duration?	14
Therapist: 	Yes.	15
State: 	Are 	her 	behaviors 	consistent 	with 	a 	child 	who 	has	16
experienced sexual trauma over a long duration?	17
Therapist: 	Yes, ma’am.	18
State: 	Are 	her 	behaviors 	consistent 	with 	a 	child 	who 	has	19
experienced intense sexual trauma?	20
3 For the first time in his reply brief, Defendant challenges the expert’s passing
reference that Victim’s treatment was “related to sexual abuse.” “[T]he general rule
is that we do not address issues raised for the first time in a reply brief[.]”Mitchell-
Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65). We,
therefore, limit our analysis to arguments properly raised in Defendant’s brief in
chief.

6
Therapist: 	Yes, ma’am.	1
State: 	Are 	her 	behaviors 	consistent 	with 	a 	child 	who 	has	2
experienced severe sexual trauma?	3
Therapist: 	Yes, ma’am.	4
State: 	And are you treating her for this?	5
Therapist: 	Yes.	6
{8} 	We 	conclude 	that 	the 	therapist’s 	testimony 	was 	proper 	under 	our	7
jurisprudence regarding expert opinion testimony. See State v. Alberico, 1993-	8
NMSC-047, ¶¶ 84, 88 116 N.M. 156, 861 P.2d 192 (holding that expert opinion	9
testimony is admissible to establish that the alleged victim suffered from post-	10
traumatic stress disorder (PTSD) consistent with sexual abuse but inadmissible to	11
establish 	that 	the 	alleged 	victim is 	telling 	the 	truth 	or 	identify 	the 	alleged	12
perpetrator). Alberico is directly on point. The expert in that case was likewise	13
examined outside the presence of the jury initially, the judge determined that the	14
expert could testify about PTSD, and the expert’s testimony was limited to her	15
evaluation of the victim’s symptoms as “PTSD consistent with someone who	16
suffered from sexual abuse or rape.” 1993-NMSC-047, ¶ 10. Moreover, the expert	17
in Alberico “did not identify [the defendant] as the probable perpetrator or inculpate	18
him in any way” nor “establish that the alleged victim is telling the truth” and thereby	19
did not disturb “the jury’s function as arbiter of the witnesses’ credibility.” Id. ¶¶ 10,	20
84, 88. Our Supreme Court further explained “[i]ncidental verification of [the]	21

7
victim’s story or indirect bolstering of her credibility, however, is not by itself	1
improper” since “[a]ll testimony in the prosecution’s case will tend to corroborate	2
and bolster the victim’s story to some extent[;]” however, “[d]irect comments on	3
[the] victim’s credibility” is “beyond the scope of permissible expert testimony.” Id.	4
¶ 89.	5
{9} 	In the present case, the therapist never stated that she believed Victim was	6
credible nor did she identify Defendant as the perpetrator of the trauma. Defendant	7
points to the State’s line of questioning as adding “emphasis” to Victim’s credibility	8
in order to distinguish the case from Alberico, but we are unpersuaded. The therapist	9
responded affirmatively to a line of questioning concerning whether Victim’s	10
symptoms were consistent with sexual abuse, as permitted by Alberico. See 1993-	11
NMSC-047, ¶ 10. The expert did not state that the symptoms were in fact caused by	12
sexual abuse, and even provided other potential causes of trauma including “physical	13
abuse, emotional neglect, and verbal abuse.” See State v. Salazar, 2006-NMCA-066,	14
¶ 8, 139 N.M. 603, 136 P.3d 1013 (stating that an expert may “give testimony	15
regarding symptoms that the victim suffers that are consistent with sexual abuse”	16
but not testimony “to establish . . . that the symptoms were in fact caused by sexual	17
abuse.”). Accordingly, the therapist’s testimony did not improperly bolster Victim’s	18
testimony.	19
{10} 	We also are unpersuaded by Defendant’s arguments that the expert testimony	20
was irrelevant and highly prejudicial and therefore should have been excluded under	21

8
Rules 11-401 and 11-403 NMRA. In Alberico, our Supreme Court held that	1
“testimony regarding a [victim]’s PTSD symptoms has the tendency to show that	2
she might have been sexually abused” and is indeed probative. 1993-NMSC-047,	3
¶ 76. “The fact that evidence prejudices [the] defendant is not grounds for its	4
exclusion.” State v. Watley, 1989-NMCA-112, ¶ 23, 109 N.M. 619, 788 P.2d 375.	5
To weigh against admission, the prejudice must be of a kind that is unfair. See State	6
v. Otto, 2007-NMSC-012, ¶ 16, 141 N.M. 443, 157 P.3d 8 (“The purpose of [Rule]	7
11-403 is not to guard against any prejudice whatsoever, but only against the danger	8
of unfair prejudice.”). And the unfair prejudicial effect must substantially outweigh	9
its probative value. See State v. Salgado, 1991-NMCA-111, ¶ 11, 112 N.M. 793, 819	10
P.2d 1351 (citing Rule 11-403). The therapist’s testimony here, like in Alberico, was	11
probative to show that Victim might have been sexually abused and the probative	12
value was not substantially outweighed by any unfair prejudicial effect.	13
{11} 	As to Defendant’s argument that the therapist’s testimony regarding other	14
possible causes of trauma is irrelevant, we disagree. Such testimony goes directly to	15
the question of whether or not Victim’s trauma stemmed from sexual abuse or other	16
potential causes. See Rule 11-401 (“Evidence is relevant if it has any tendency to	17
make a fact more or less probable than it would be without the evidence” and “the	18
fact is of consequence in determining the action.”); Coates v. Wal-Mart Stores, Inc.,	19
1999-NMSC-013, ¶ 37, 127 N.M. 47, 976 P.2d 999 (“Evidence is relevant if it tends	20

9
to make a fact in issue more or less probable and any doubt should be resolved in	1
favor of admissibility.”).	2
{12} 	Therefore, we conclude that the district court did not abuse its discretion by	3
admitting the therapist’s testimony.	4
II. 	There Was No Due Process Violation	5
{13} 	Defendant next argues that the multiplicative charging resulted in due process	6
and 	double 	jeopardy 	violations 	because 	there 	was 	insufficient 	evidence 	to	7
distinguish between the counts. We pause to note that Defendant’s arguments	8
regarding due process and double jeopardy were unclear and underdeveloped as they	9
were embedded within his arguments regarding the insufficiency of evidence. None	10
of Defendant’s arguments on these two issues were fully and properly articulated.	11
As a result, we are unable to fully discern Defendant’s arguments. While Appellate	12
courts are under no obligation to review unclear or undeveloped arguments, see State	13
v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031, to the extent we understand	14
Defendant’s arguments, we address whether the multiple charges differentiated only	15
by monthly intervals violated his due process and double jeopardy rights. We review	16
due process and double jeopardy challenges de novo, “deferring to the district	17
court’s findings of fact when they are supported by substantial evidence.” State v.	18
Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834; see also State v.	19
Lente, 2019-NMSC-020, ¶ 14, 453 P.3d 416.	20

10
{14} 	Defendant cites Dominguez for the proposition that a lack of specificity in	1
indictments and a victim’s testimony violate due process and double jeopardy. See	2
Dominguez, 2008-NMCA-029, ¶ 4. “[R]esident child molester” cases such as	3
Defendant’s present unique challenges, as our Supreme Court noted in its recent	4
decision in Lente, 2019-NMSC-020, ¶ 1. “The child victims in these cases are	5
usually the sole witnesses of the crimes perpetrated and, because of their age and the	6
frequency of the sexual abuse to which they are subjected, cannot provide detailed	7
accounts of the abuse but only generalized accounts of frequent sexual contact with	8
the defendant.” Id. Defendant contends that, as in Dominquez, the State only	9
presented evidence of an ongoing pattern of abuse instead of eliciting testimony from	10
Victim on specific instances of conduct. See Dominguez, 2008-NMCA-029, ¶ 4.	11
Defendant further argues that the State’s “indistinguishable subsets of charging	12
periods” as opposed to a longer charging period does not remedy the lack of	13
specificity and the insufficiency of evidence for each of the counts. Given our	14
Supreme Court’s recent clarification on resident child molester cases in Lente, we	15
disagree. See generally 2019-NMSC-020, ¶ 1.	16
{15} 	The charges at issue in the sixth amended criminal Information are as	17
follows4:	18
4 Defendant does not dispute the sufficiency of evidence for Count 1, CSCM
in the second degree between 6/1/08 and 12/31/10, Count 2, CSP in the first degree
between 1/1/11 and 8/31/13, and Count 21, bribery or intimidation of a witness in
the third degree, between 5/1/11 and 3/31/12. Defendant also does not dispute Count

11
Counts 	Degree 	Charge 	Date Range
3 	1st 	CSP (under 13) 	9/1/13 - 12/30/13
4 	1st 	CSP (under 13) 	10/1/13 - 10/31/13
5 	1st 	CSP (under 13) 	11/1/13 - 11/30/13
6 	1st 	CSP (under 13) 	12/1/13 - 12/31/13
7 	1st 	CSP (under 13) 	1/1/14 - 2/28/14
8 	1st 	CSP (under 13) 	3/1/14 - 3/31/14
9 	1st 	CSP (under 13) 	4/1/14 - 4/30/14
10 	1st 	CSP (under 13) 	5/1/14 - 5/31/14
11 	1st 	CSP (under 13) 	6/1/14 - 6/30/14
12 	1st 	CSP (under 13) 	7/1/14 - 7/31/14
13 	1st 	CSP (under 13) 	8/1/14 - 8/30/14
14 	2nd 	CSCM (PPA) 	9/1/14 - 9/30/14
15 	2nd 	CSCM (PPA) 	10/1/14 - 10/31/14
16 	2nd 	CSCM (PPA) 	11/1/14 - 12/31/14
17 	2nd 	CSCM (PPA) 	1/1/15 - 1/31/15
18 	2nd 	CSCM (PPA) 	2/1/15 - 2/28/15
19 	2nd 	CSCM (PPA) 	3/1/15 - 3/31/15
20 	2nd 	CSCM (PPA) 	4/1/15 - 4/25/15
Before trial, the district court denied Defendant’s motion to dismiss all counts except	1
Counts 1 (CSCM), 2 (CSP), 14 (CSCM (PPA)), and 21 (bribery or intimidation of a	2
witness), stating that all the counts charged were “differentiated, distinguished and	3
identified by date” so that Defendant was “placed on notice about exactly when the	4
acts are alleged to have occurred enabling him to mount his defense and satisfying	5
his right to due process.” The district court also explained that when a victim cannot	6
“testify to specific dates or identifying features or identifying circumstances of the	7
14, CSCM (PPA), however, he asserts that only one count should have been charged
during the entire period between 9/1/14 and 4/25/15.

12
alleged criminal conduct[,]” our case law does not require the State “to charge only	1
one count simply because a criminal act is repeated over and over again.”	2
{16} 	We agree with the district court’s reasoning, and we consider the present case	3
distinguishable from Dominguez because each charge is differentiated by date and	4
sufficiently narrow such that Defendant had proper notice to prepare his defense.	5
Dominguez, 2008-NMCA-029, ¶ 4. Due process requires that the State “provide	6
reasonable notice of charges against a person and a fair opportunity to defend . . .	7
[and] the ability to protect themselves from double jeopardy.” Dominguez, 2008-	8
NMCA-029, ¶ 5 (internal quotation marks and citations omitted); see also State v.	9
Baldonado, 1998-NMCA-040, ¶ 26, 124 N.M. 745, 955 P.2d 214 (providing a	10
multifactor test to evaluate the reasonableness of the “[s]tate’s efforts at narrowing	11
the time of the indictment and [to measure] the potential prejudice to the defendant	12
of the time frame chosen by the [s]tate”).	13
{17} 	In Dominguez, the ten counts of CSCM charged against the defendant were	14
indistinguishable from one another because they were exactly the same in every	15
respect, including the date range. Dominguez, 2008-NMCA-029, ¶¶ 1, 4. Concluding	16
that the charges violated both due process and double jeopardy, this Court affirmed	17
the dismissal of five counts for lack of specificity. Id. Here, however, the counts	18
were distinguished by monthly intervals, and although the State presented evidence	19
that the sexual abuse occurred every weekend, it elected to only charge one count	20
for every month or two month period that Defendant had custody of Victim on the	21

13
weekends. State v. Lente, 2019-NMSC-020 ¶ 22 (holding that the state’s decision to	1
charge by six-month intervals was not “flawed or in any way unlawful”). Also,	2
contrary to Defendant’s contention that the State’s evidence lacks specificity, Victim	3
testified with sufficient particularity as to the escalating nature of the sexual abuse.	4
See infra Section IV. In addition, although not argued by Defendant, our review of	5
the 	Baldonado 	factors 	confirms 	that 	the 	State’s 	indictment 	was 	sufficiently	6
particular. 	See 	1998-NMCA-040, ¶¶ 27, 29. 	Furthermore, Defendant has not	7
presented any evidence to demonstrate that he was unsure of the charges he faced or	8
somehow precluded from defending himself. See id. ¶ 20.	9
{18} 	We conclude there was no due process violation because the State properly	10
exercised discretion in electing the charges to prosecute and providing reasonable	11
notice of the charges to Defendant. We find support for our conclusion in our	12
Supreme Court’s observation that	13
while there is no hard and fast principle controlling how the [s]tate may	14
elect to divide the time during which sexual abuse occurs in resident	15
child molester cases, the absence of such a principle in no way	16
precludes line drawing. That line drawing is often necessary and an	17
appropriate exercise of the [s]tate’s authority to prosecute resident child	18
molesters in a manner that correctly reflects condemnation of lengthy	19
and repeated sexual abuse of children.	20
Lente, 2019-NMSC-020 ¶ 24.	21

14
III. 	There Was No Double Jeopardy Violation	1
{19} 	Consistent with our determination that Defendant received proper notice of	2
the charges, we similarly conclude that there was no double jeopardy violation. We	3
briefly explain.	4
{20} 	Multiplicity is a common objection in resident molester cases because	5
charging several counts of the same offense raises a double jeopardy question. Id.	6
¶¶ 25-26. In analyzing a double jeopardy claim, we must determine “whether the	7
facts undergirding each count can be treated as a distinct unit of prosecution” and	8
“whether the Legislature intended to punish each statutory violation separately.” Id.	9
¶ 26 (alteration, internal quotation marks, and citation omitted). In Lente, our	10
Supreme Court recognized that “[t]here can be no question that our Legislature did	11
indeed 	intend 	for 	different 	acts 	of 	criminal 	sexual 	penetration 	and 	contact	12
perpetrated against a child on different and discrete dates over a course of years to	13
constitute discrete violations of the statutes here implicated.” Id. ¶ 30. The Court	14
then explicitly concluded that, “multiplicity [was] not a concern in [the] case.” Id.	15
The defendant’s indictment in Lente alleged that “he engaged in specific sex acts	16
with [the victim] during specific, consecutive, six-month intervals” with “no specific	17
form of sexual abuse . . . alleged to have occurred more than once in any given	18
interval.” The Court ultimately held that the “interval” charging practice avoided the	19
problem of “carbon-copy” counts, or counts that are “in no way differentiated from	20
one another[,]” and concluded such differentiation avoided any notice objections to	21

15
the indictment and therefore, any double jeopardy question. Id. ¶¶ 47-49. For the	1
same reasons relied upon in Lente, we hold there was no double jeopardy violation	2
in Defendant’s case.	3
IV. 	There Was Sufficient Evidence for Each Conviction	4
{21} 	Defendant relatedly argues that there was insufficient evidence to support his	5
convictions for one count of CSCM, twelve counts of CSP, and seven counts of	6
CSCM (PPA), and contends that there should have been only three counts charged	7
for the entire period of alleged sexual abuse. We are unpersuaded.	8
{22} 	“The test for sufficiency of the evidence is whether substantial evidence of	9
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	10
reasonable doubt with respect to every element essential to a conviction.” State v.	11
Montoya, 2015-NMSC-010, ¶ 52 (internal quotation marks and citation omitted).	12
“We view the evidence in the light most favorable to the verdict, resolving all	13
conflicts and indulging all inferences in favor of the verdict. We do not reweigh the	14
evidence or substitute our judgment for that of the fact finder” when there is	15
sufficient evidence to support the verdict. State v. Gipson, 2009-NMCA-053, ¶ 4,	16
146 N.M. 202, 207 P.3d 1179. “The jury is free to reject [the d]efendant’s version	17
of the facts[,]” and “this Court cannot consider the merit of evidence that may have	18
supported a different result.” Id.	19
{23} 	Defendant concedes that there is sufficient evidence for three counts—one	20
count of CSCM, one count of CSP, and one count of CSCM (PPA). However, he	21

16
claims there was insufficient evidence to establish Counts 3-13 of CSP and Counts	1
14-20 of CSCM (PPA) as charged in the sixth amended criminal information	2
because Victim’s testimony did not specify dates or otherwise distinguish between	3
the counts. We disagree.	4
{24} 	Victim testified that every weekend, starting on Friday and ending on Sunday,	5
she visited Defendant. During these visits, he would touch her, force her to perform	6
oral sex on him, touch and “rub his balls,” and he would “jack off” into the crack	7
between the beds. Victim also stated that the sexual abuse would occur about twice	8
a weekend, sometimes more than once a night after the custody arrangement	9
changed. See Lente, 2019-NMSC-020, ¶ 69 (holding that statements “that specific	10
acts of sexual abuse occurred ‘twice a month’ or ‘every time [the victim and the	11
defendant] went camping’ are sufficient” to establish the number of proscribed acts	12
committed to support each of the counts alleged in the indictment). Here, the State	13
charged only one count for every month or two months during the period at issue	14
(when Defendant had custody of the Victim on weekends), and Victim testified that	15
the conduct occurred every weekend, which is sufficient to establish the number of	16
charges in the indictment. Victim’s mother thereafter clarified that the custody	17
agreement was modified in September 2013 such that Victim visited Defendant on	18
the weekends and stated that Defendant never went a full month without exercising	19
his visitation. Although some of Victim’s responses regarding the sequence of sexual	20
acts or her age during specific instances suggested a lack of certainty, we disregard	21

17
all inferences contrary to upholding the verdict. State v. Pitner, 2016-NMCA-102,	1
¶ 6, 385 P.3d 665 (“This Court evaluates the sufficiency of the evidence . . . viewing	2
the evidence in the light most favorable to the verdict, resolving all conflicts and	3
indulging all permissible inferences in favor of upholding the conviction, and	4
disregarding all evidence and inferences to the contrary.” (internal quotation marks	5
and citation omitted)). Moreover, as a matter of public policy, we refuse to render	6
“a child victim’s testimony [as] per se insufficient to support convictions in resident	7
child molester cases” because such “effectively insulates the most egregious child	8
molesters from prosecution for multiple crimes . . . and creates an atmosphere where	9
‘one act offenders’ are treated in the same manner as repeat molesters.” Lente, 2019-	10
NMSC-020, ¶ 62 (internal quotation marks and citation omitted).	11
{25} 	In addition, the testimony of the forensic scientist and the police detective also	12
corroborated Victim’s testimony since the house and the mattresses were found	13
exactly as described. The portion of the mattress into which Defendant ejaculated	14
according to Victim’s statements, was found to be saturated with semen, and the	15
DNA matched Defendant’s. Viewing the evidence in the light most favorable to the	16
verdict and disregarding all evidence and inferences to the contrary, we conclude	17
that the evidence suffices to uphold all of Defendant’s convictions. Gipson, 2009-	18
NMCA-053, ¶ 4.	19

18
V. 	There Was No Vindictive Prosecution	1
{26} 	Defendant next contends that there was vindictive prosecution because the	2
State charged additional counts allegedly in retaliation after Defendant rejected a	3
plea deal. We are unpersuaded.	4
{27} 	Because Defendant raises the issue of vindictive prosecution for the first time	5
on appeal, it is unpreserved, and we review only for fundamental error. See Rule 12-	6
321 (B)(2) NMRA (providing appellate court discretion as an exception to the	7
preservation rule to review questions involving fundamental error or fundamental	8
rights). Fundamental error “must go to the foundation of the case or take from the	9
defendant a right which was essential to his defense and which no court could or	10
ought to permit him to waive” and applies “only under exceptional circumstances	11
and only to prevent a miscarriage of justice.” State v. Barber, 2004-NMSC-019, ¶ 8,	12
135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted).	13
{28} 	“[T]o establish a claim of vindictive prosecution, [D]efendant must show	14
either: (1) actual vindictiveness or (2) a reasonable likelihood of vindictiveness,	15
which then raises a presumption of vindictiveness.” State v. Brule, 1999-NMSC-	16
026, ¶ 10, 127 N.M. 368, 981 P.2d 782 (emphasis, internal quotation marks, and	17
citation omitted). If Defendant establishes either prong, the burden shifts to the State	18
“to justify its decision with legitimate, articulable, objective reasons.” Id. (internal	19
quotation marks and citation omitted). The central inquiry is whether the prosecutor	20
committed an act “that would not have occurred but for hostility or punitive animus	21

19
toward the defendant because he exercised a specific legal right. Id. (alteration,	1
internal quotation marks, and citation omitted).	2
{29} 	Defendant states that the specific legal right which prompted the additional	3
charges was Defendant’s exercise of his “right to a jury trial,” and emphasized that	4
“the prosecutor acknowledged that as the reason for the amendment.” in this regard,	5
however, Defendant points only to the prosecutor’s statement to the district court	6
that “[Defendant] was supposed to [plead guilty] to those two [(one count of CSP	7
and one count of CSCM)], [was] told that if he didn’t it would be amended; [and	8
then] it was amended.” The State answers that the comment related to a “bind-over	9
offer” wherein the State offered not to file the remainder of the charges in exchange	10
for a plea of guilty to the two-count original indictment. However, the prosecutor’s	11
statement alone is not conclusive of actual vindictiveness nor of a reasonable	12
likelihood of vindictiveness.	13
{30} 	Again, we are guided by our Supreme Court, which rejected the presumption	14
of vindictiveness at the pretrial stage when a defendant exercised a right that resulted	15
in his then facing a more serious charge, holding that the State is not required to	16
“press the severest charges possible at the outset” of prosecution. State v. Stevens,	17
1981-NMSC-094, ¶ 18, 96 N.M. 627, 633 P.2d 1225 (“Imposition of a pretrial	18
presumption of vindictiveness would interfere with proper prosecutorial discretion	19
. . . Prosecutors might feel compelled to press the severest charges possible at the	20
outset, to the detriment of defendants.”). As well, in Brule, our Supreme Court held	21

20
that the state did not engage in vindictive prosecution when the defendant exercised	1
his right to reject the plea for misdemeanor charges, and the state proceeded to secure	2
felony indictments. 1999-NMSC-026, ¶ 11; see also State v. Coffin, 1999-NMSC-	3
038, ¶ 47, 128 N.M. 192, 991 P.2d 477 (holding that the prosecutor’s decision to	4
seek the death penalty after the defendant exercised a right to trial “fails to indicate	5
any likelihood whatsoever that the [s]tate’s decision is intended to punish a	6
defendant for not pleading guilty”).	7
{31} 	Under 	directly 	applicable 	precedent, 	we 	conclude 	Defendant 	has 	not	8
presented evidence of statements by the prosecutor which could meet the burden of	9
creating 	a 	“reasonable 	likelihood 	of 	vindictiveness.” 	We 	therefore 	reject	10
Defendant’s claim of fundamental error.	11
CONCLUSION	12
{32} 	For these reasons, we affirm Defendant’s convictions.	13
{33} 	IT IS SO ORDERED.	14
_____________________________	15
J. MILES HANISEE, Chief Judge	16
WE CONCUR:	17
_____________________________	18
KRISTINA BOGARDUS, Judge	19
_____________________________	20
ZACHARY A. IVES, Judge	21