 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,505

10 OCTAVIANO THOMAS CLARK,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Douglas R. Driggers, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Anne Kelly, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Karl Erich Martell, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1        Defendant Octaviano Clark appeals his convictions for criminal sexual contact

 2 of a minor in the second degree (CSCM second degree) and criminal sexual contact

 3 of a minor in the third degree (CSCM third degree). On appeal, Defendant argues that

 4 (1) there was insufficient evidence supporting his convictions, (2) the district court

 5 erred by allowing improper character evidence that Defendant supplied cocaine to

 6 attendees of a party, (3) the State committed prosecutorial misconduct by putting forth

 7 improper character evidence in closing, (4) he was denied due process when his

 8 motion for alibi was ignored instead of being treated as a motion for a new trial, and

 9 (5) he did not receive effective assistance of counsel. We hold that sufficient evidence

10 supports Defendant’s convictions. However, because the district court erred in

11 allowing character evidence that Defendant supplied cocaine to the attendees of a

12 party, we reverse and remand for a new trial. As a result, we do not reach the last

13 three issues.

14 BACKGROUND

15        Defendant’s convictions arose out of an incident that occurred during a party

16 in late 2005. The victim was twelve years old at the time. The party occurred at the

17 home of the victim’s cousin Claudia Avila (Claudia). Defendant, who was Claudia’s

18 boyfriend, was present at the party. Victim’s cousin Victor Avila (Victor), Victor’s

19 wife, victim’s mother Sonia Avila (Sonia), victim’s stepfather Ernesto Rodriguez


                                              2
 1 (Ernesto), victim’s brother Noe Avila (Noe), victim’s stepsister Erica Avila (Erica),

 2 victim’s minor sister (J.), and Claudia’s three minor daughters were also present at the

 3 party. Additionally, Erica testified that a heavyset, tall man with a mustache was also

 4 present for two hours but left before midnight.

 5        The jury heard testimony that most of the adults were drinking alcohol and

 6 using cocaine at the party, including Defendant, Erica, and Sonia. Before trial,

 7 Defense counsel asked the district court to not allow testimony that Defendant

 8 supplied the cocaine to the party, arguing that such testimony was prejudicial and not

 9 relevant to the offense. Initially, the district court agreed and stated “there should be

10 no reference made to who brought the cocaine to the party.” However, the district

11 court ultimately decided to allow testimony that Defendant supplied the cocaine, as

12 long as the testimony did not paint Defendant “as a major cocaine dealer,” noting that

13 what the adults at the party were “under the influence of [is] a fact that relates to the

14 case.” Over a trial objection, Erica testified that Defendant “was the one that gave

15 [her] cocaine” at the party.

16        The victim testified that she, J., and Claudia’s three daughters spent most of the

17 night in one of the two bedrooms in the home. Claudia’s daughters slept together on

18 the top bunk of a bunk bed, and the victim and J. slept on the bottom bunk. The

19 victim went to sleep around 2:00 a.m. She awoke to “a really cold hand touching [her]


                                               3
 1 body.” She testified that as she woke up she felt a “hand in my vagina,” beneath her

 2 pants and underwear and that she pushed it away. After she pushed the hand away

 3 from her vagina, the hand moved up and grabbed and rubbed the victim’s breasts,

 4 under her shirt but over her bra. She again pushed the perpetrator away, and the

 5 perpetrator “stepped back” and told the victim “[d]on’t tell anybody.” After the

 6 victim told him to “[g]et out,” the perpetrator left the bedroom.

 7        The victim identified the perpetrator as Defendant by name and during an in-

 8 court identification. While the victim never saw the perpetrator’s face, she identified

 9 him as Defendant based on “his baseball cap and his long-sleeved blue shirt” that she

10 remembered him wearing the night of the party. Further, she identified Defendant

11 because the perpetrator was “skinny,” and the males she remembered who attended

12 the party were bigger than Defendant. When asked if there was anything else she

13 could recall that identified Defendant, the victim testified that his voice also aided the

14 identification and that Defendant did not sound like the other two males she knew at

15 the party.

16        According to the victim, after Defendant left the room, the victim called Erica

17 to the bedroom and told her what had happened. Erica told the victim to wait inside

18 the bedroom and returned with Sonia. The victim then told Sonia what had happened.

19 The victim, Sonia, Erica, Ernesto, Noe and J. left and went to the victim’s house. Erica


                                               4
 1 testified that no one reported the incident that night because of the cocaine use at the

 2 party, and she did not report it the next day because she went home to El Paso.

 3 According to Sonia, the victim only told Erica about what happened that night, that

 4 she did not find out until two days later, and that she did not report the incident to the

 5 police.

 6        In May 2007, the victim stayed at her cousin’s girlfriend Laura Astorga’s

 7 (Laura) house. The victim became ill and called Sonia because she wanted to go

 8 home. During the phone call, the victim became upset upon discovering that

 9 Defendant was at the victim’s home with J. The victim told Laura what had

10 previously happened with Defendant at the party in 2005. Laura contacted a local

11 hospital on May 27, 2007, which in turn contacted the police.

12        After interviewing the victim, Detective Irma Palos interviewed Defendant.

13 Defendant voluntarily waived his Miranda rights and agreed to talk with Detective

14 Palos. He denied the victim’s allegations as to touching her breast and vagina at the

15 party in 2005. Defendant admitted entering the bedroom where the children were

16 sleeping to “cover his children,” but stated that nothing inappropriate happened.

17        Defendant was charged with and convicted of CSCM second degree and CSCM

18 third degree. This appeal timely followed.

19 SUFFICIENCY OF THE EVIDENCE


                                               5
 1        Defendant argues that the evidence was insufficient to support his convictions

 2 for criminal sexual contact with a minor. In order to convict Defendant of CSCM

 3 second degree, the State had to prove beyond a reasonable doubt that (1) Defendant

 4 touched or applied force to the unclothed vagina of the victim, and (2) the victim was

 5 twelve years of age or younger. In order to convict Defendant of CSCM third degree,

 6 the State had to prove beyond a reasonable doubt that (1) Defendant touched or

 7 applied force to the clothed breast of the victim, and (2) the victim was twelve years

 8 of age or younger. In particular, Defendant argues that the evidence was insufficient

 9 as to the second element of each count because there was no physical evidence that

10 anyone touched or applied force to the victim’s vagina or breast. Additionally,

11 Defendant argues that the evidence was insufficient as to whether the perpetrator was

12 Defendant, because the victim identified Defendant without seeing his face, and no

13 one saw Defendant enter the bedroom.

14        “The test for sufficiency of the evidence is whether substantial evidence of

15 either a direct or circumstantial nature exists to support a verdict of guilt beyond a

16 reasonable doubt with respect to every element essential to a conviction.” State v.

17 Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks

18 and citation omitted). “[S]ubstantial evidence means such relevant evidence as a

19 reasonable mind might accept as adequate to support a conclusion.” State v. Baca,


                                             6
 1 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and

 2 citation omitted). We view the evidence in the light most favorable to, and indulge

 3 all inferences in favor of, the verdict. Sena, 2008-NMSC-053, ¶ 10; State v. Sanders,

 4 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is sufficient evidence

 5 supporting the verdict, we do not reweigh the evidence or substitute our judgment for

 6 that of the factfinder. State v. Fuentes, 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228

 7 P.3d 1181.

 8        Regarding Defendant’s first argument, that the evidence was insufficient as to

 9 whether the victim was touched because there was no physical evidence, New Mexico

10 appellate cases have never required physical evidence in a prosecution for criminal

11 sexual contact or penetration. In State v. Nichols, 2006-NMCA-017, ¶¶ 10-11, 139

12 N.M. 72, 128 P.3d 500, this Court recognized, in a prosecution for criminal sexual

13 penetration of a minor, that the victim’s uncorroborated testimony, even when

14 impeached to some degree, was sufficient evidence to support a conviction. Thus,

15 even without physical evidence or other corroboration, the victim’s testimony was

16 sufficient for a jury to conclude that someone touched or applied force to the victim’s

17 unclothed vagina and clothed breast. See id. It was exclusively the province of the

18 jury to weigh the evidence and determine the credibility of the victim’s testimony in

19 its role as factfinder. See id. ¶ 11.


                                              7
 1         Defendant also argues that the State presented insufficient evidence as to

 2 Defendant’s identity as the person who touched the victim because the victim testified

 3 that she did not see the perpetrator’s face. However, the victim’s testimony regarding

 4 Defendant’s characteristics and identity as the perpetrator was sufficient to support the

 5 jury’s conclusion that it was Defendant who touched the victim. As noted, the victim

 6 testified that Defendant had a slender build compared to the other males at the party

 7 and that the perpetrator was skinny. The victim also identified Defendant as the

 8 perpetrator based on the clothing that he was wearing the night of the incident and his

 9 voice, and Erica corroborated the victim’s testimony as to Defendant’s clothing.

10 Further, although he denied touching the victim, Defendant admitted to Detective

11 Palos that he entered the bedroom where the victim and the other minors were

12 sleeping to cover his stepdaughters. This evidence, viewed in the light most favorable

13 to the verdict, was sufficient for a reasonable mind to conclude that it was Defendant

14 who touched the victim. See Sena, 2008-NMSC-053, ¶ 10; Baca, 1997-NMSC-059,

15 ¶ 14.

16 CHARACTER EVIDENCE

17         Defendant next argues that the district court erred in allowing improper

18 character evidence that Defendant supplied cocaine to the attendees of the party. We

19 review the admission of evidence under an abuse of discretion standard. State v.


                                               8
 1 Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. “An abuse of discretion

 2 occurs when the ruling is clearly against the logic and effect of the facts and

 3 circumstances of the case. We cannot say the [district] court abused its discretion by

 4 its ruling unless we can characterize it as clearly untenable or not justified by reason.”

 5 Id. (internal quotation marks and citation omitted).

 6        Character evidence of the accused is governed by Rule 11-404(B) NMRA,

 7 which provides that:

 8        [e]vidence of other crimes, wrongs or acts is not admissible to prove the
 9        character of a person in order to show action in conformity therewith.
10        It may, however, be admissible for other purposes, such as proof of
11        motive, opportunity, intent, preparation, plan, knowledge, identity or
12        absence of mistake or accident.

13 Rule 404(B) therefore “prohibits the use of otherwise relevant evidence when its sole

14 purpose or effect is to prove criminal propensity” and allows evidence of other acts

15 when they are relevant to a non-character purpose. State v. Gallegos, 2007-NMSC-

16 007, ¶ 22, 141 N.M. 185, 152 P.3d 828. In order for a district court to properly admit

17 evidence of other acts for a non-character purpose, (1) the proponent must “identify

18 and articulate the consequential fact to which the evidence is directed,” and (2) “even

19 if other-acts evidence is relevant to something besides propensity, such evidence will

20 not be admitted if the probative value related to its permissible purpose is substantially

21 outweighed” by unfair prejudice. Id.


                                               9
 1        As to the first requirement, the district court determined that the testimony

 2 about Defendant supplying the cocaine was part of the “res gestae” and relevant “to

 3 know what went on.” However, this Court has rejected an identical argument in a

 4 case with similar facts. See State v. Rael, 117 N.M. 539, 873 P.2d 285 (Ct. App.

 5 1994). In Rael, this Court held that the district court abused its discretion in allowing

 6 testimony that the defendant was a “known cocaine dealer.” Id. at 540, 873 P.2d at

 7 286. The defendant was charged with being a felon in possession of a firearm after

 8 police executed a search warrant and found a firearm at his home. Id. at 539, 873 P.2d

 9 at 285. At trial, the state presented testimony that the defendant was a known cocaine

10 dealer and in closing argument argued that “[d]rug dealers use weapons to defend

11 themselves” and that “[k]eeping a gun is consistent with being a drug dealer.” Id. at

12 540, 873 P.2d at 286. This Court overturned the defendant’s conviction, rejecting the

13 state’s rationale that the references to the defendant as a drug dealer were “part of the

14 res gestae or complete story” and instead held that they were an attempt to “convince

15 the jury [that the d]efendant was a known drug dealer so, ipso facto, the shotgun must

16 belong to him.” Id. at 542, 873 P.2d at 288 (internal quotation marks and citation

17 omitted). In this case, to the extent that the State argues that the testimony that

18 Defendant supplied the cocaine was necessary “to know what went on” or was part

19 of the “res gestae,” Rael is controlling and the district court abused its discretion in


                                              10
 1 allowing the testimony.

 2        Additionally, the State argues that the testimony that Defendant supplied the

 3 cocaine at the party was relevant for two other non-character reasons: (1) “it

 4 explained the atmosphere of the party in which the adults were using drugs and

 5 alcohol and may not have been as discerning as if they were sober,” and (2) “it

 6 explained[,] in part[,] why Erica and Sonia did not follow up with the police regarding

 7 the victim’s allegations.” We agree that whether Defendant and the party’s attendees

 8 consumed cocaine and alcohol during the party was relevant. The cocaine and alcohol

 9 use was relevant as to why Erica and Sonia did not report the incident to police and

10 was a fact for the jury to consider in applying weight to the witnesses’ testimony as

11 to their memory of the party. However, the cocaine and alcohol use is distinct from

12 the identity of the supplier of the cocaine. Whether Defendant or someone else

13 supplied the cocaine does not further explain the atmosphere at the party or explain

14 why the incident went unreported. The State therefore did not meet its burden of

15 identifying and articulating a “consequential fact” apart from propensity for the

16 testimony that Defendant supplied cocaine to the party.

17        Further, even if the State had met its burden of establishing a consequential fact

18 apart from propensity for Defendant supplying the cocaine to the party, the unfair

19 prejudice substantially outweighs its probative value. This Court has previously


                                              11
 1 determined that “[t]he danger of unfair prejudice from admission of the drug-related

 2 evidence [is] great.” Rael, 117 N.M. at 543, 873 P.2d at 289 (internal quotation marks

 3 and citation omitted). The unfair prejudice was especially high in this case, as the

 4 State argued in closing that Defendant was of questionable character and supplying

 5 cocaine to the party illustrated his character. During rebuttal closing, the State told

 6 the jury: “They’d been partying, doing cocaine. Not just drinking alcohol, but doing

 7 cocaine that . . . [D]efendant gave them. What does that tell you about him?” As

 8 discussed, the probative value that Defendant supplied cocaine was low. As a result,

 9 the district court abused its discretion in allowing the testimony. See Gallegos, 2007-

10 NMSC-007, ¶ 22.

11        Although the district court erred in admitting the testimony that Defendant

12 supplied the cocaine, we will not reverse Defendant’s convictions if the evidentiary

13 error was harmless. See State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210

14 P.3d 198. “[A] non-constitutional error is harmless when there is no reasonable

15 probability the error affected the verdict.” Id. (emphasis omitted). We consider three

16 factors when determining whether error is harmless: whether (1) substantial evidence

17 supports the defendant’s convictions without reference to the improper evidence, (2)

18 there is such a disproportionate volume of permissible evidence that the improper

19 evidence will appear minuscule in comparison, and (3) there is substantial conflicting


                                             12
 1 evidence to discredit the state’s testimony. Id. ¶ 56.

 2        We must first determine whether substantial evidence supports Defendant’s

 3 convictions without reference to Defendant supplying the cocaine to the party. See

 4 id. As we previously determined in our sufficiency of the evidence analysis,

 5 substantial evidence supported Defendant’s convictions without reference to

 6 Defendant supplying the cocaine to the party. Therefore, the first factor weighs in

 7 favor of the error being harmless.

 8        We next determine whether the volume of evidence relating to Defendant

 9 supplying the cocaine to the party was so disproportionately small in comparison to

10 the permissible evidence that it appears minuscule by comparison. See id. The State

11 argues that the testimony that Defendant supplied cocaine to the party was simply a

12 passing reference “brought up by one question” from the State and answered with “a

13 simple and unadorned ‘yes.’” While that may accurately describe the testimony

14 regarding Defendant supplying the cocaine to the party, the State further used the

15 testimony in rebuttal closing. During rebuttal closing, the State told the jury: “They’d

16 been partying, doing cocaine. Not just drinking alcohol, but doing cocaine that . . .

17 [D]efendant gave them. What does that tell you about him?” Thus, not only did the

18 State use the improper evidence in closing, the State used it to essentially argue that,

19 because Defendant supplied cocaine, he was of questionable character. This type of


                                              13
 1 argument is precisely what Rule 11-404(B) was designed to protect against. See State

 2 v. Ruiz, 2001-NMCA-097, ¶ 13, 131 N.M. 241, 34 P.3d 630 (“One cannot ignore the

 3 long tradition of courts and commentators expressing fear that jurors are too likely to

 4 give undue weight to evidence of a defendant’s prior misconduct and perhaps even to

 5 convict the defendant solely because of a belief that the defendant is a bad person.”

 6 (internal quotation marks and citation omitted)). Additionally, the jury apparently

 7 considered who brought the cocaine to the party. After Erica testified, a juror

 8 submitted a question to the district court inquiring “How/who provided drugs? Were

 9 they brought in?” The district judge responded to the question by answering that the

10 “previous witness asked and answered.” Therefore, even though the State did not

11 present extensive testimony that Defendant supplied the cocaine, the volume of

12 impermissible evidence was high considering that the State used it to argue that

13 Defendant had questionable character and the issue was clearly noted by the jury.

14        The third factor is whether there is “substantial evidence that discredited the

15 State’s case.” State v. Branch, 2010-NMSC-042, ¶ 16, 148 N.M. 601, 241 P.3d 602.

16 As we addressed in the sufficiency of the evidence analysis, the State’s case was not

17 strong. There was no physical evidence, the incident went unreported for almost a

18 year and one-half, and the victim identified Defendant as the perpetrator based on

19 clothing, voice, and build and testified that she did not see his face. Additionally,


                                             14
 1 there were no eyewitnesses to Defendant entering the bedroom and uncertainty as to

 2 who attended the party. Further, the State’s witnesses who were at the party admitted

 3 to drinking alcohol and using cocaine at the party. There was therefore substantial

 4 evidence that discredited the State’s case and the third factor weighs against harmless

 5 error.

 6          Considering that the volume of the impermissible evidence is not minuscule and

 7 the weakness of the State’s case, there was a reasonable probability that the admission

 8 of evidence that Defendant supplied the cocaine to the attendees of the party affected

 9 the verdict. See Barr, 2009-NMSC-024, ¶ 53. The admission of the evidence was

10 therefore not harmless error. See id. As a result, we reverse Defendant’s convictions

11 and remand for a new trial. See State v. Elinski, 1997-NMCA-117, ¶ 27, 124 N.M.

12 261, 948 P.2d 1209.

13 CONCLUSION

14          Because the district court erred in allowing testimony under Rule 11-404(B)

15 that Defendant supplied cocaine to the party and the error was not harmless, we

16 reverse Defendant’s convictions and remand for a new trial. We therefore do not reach

17 Defendant’s remaining issues.

18          IT IS SO ORDERED.




                                              15
1                                      ________________________________
2                                      JAMES J. WECHSLER, Judge.

3 WE CONCUR:



4 __________________________________
5 MICHAEL D. BUSTAMANTE, Judge



6 __________________________________
7 TIMOTHY L. GARCIA, Judge




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