 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:______________

 3 Filing Date: August 8, 2016

 4 NO. S-1-SC-34733

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 ANTHONY SAMORA,

 9       Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Ross C. Sanchez, District Judge


12 Bennett J. Baur, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16 Hector H. Balderas, Attorney General
17 Steven H. Johnston, Assistant Attorney General
18 Santa Fe, NM

19 for Appellee
 1                                      OPINION

 2 CHÁVEZ, Justice.

 3   {1}   Defendant Anthony Samora was accused of luring a sixteen-year-old male into

 4 his truck by deception, driving him to a secluded location in Albuquerque, and then

 5 forcibly penetrating him in the anus. A jury convicted Defendant of second-degree

 6 criminal sexual penetration in the commission of a felony (CSP-felony), contrary to

 7 NMSA 1978, Section 30-9-11(E)(5) (2007, amended 2009), and first-degree

 8 kidnapping, contrary to NMSA 1978, Section 30-4-1(A)(4) (2003).              Due to

 9 sentencing enhancements, Defendant was sentenced to life imprisonment with the

10 possibility of parole after thirty years for his CSP-felony conviction plus a

11 consecutive eighteen-year sentence for his kidnapping conviction. In this direct

12 appeal, Defendant brings a variety of challenges to both convictions, including a

13 challenge to the district court for omitting that the sexual act must have been non-

14 consensual when instructing the jury on CSP-felony.

15   {2}   Because we conclude that it was fundamental error to omit the phrase “without

16 consent” from the jury instructions relevant to CSP-felony, we must reverse

17 Defendant’s CSP conviction. The same fundamental error also infected the jury’s

18 findings with respect to Defendant’s intent to inflict a sexual offense against the

19 alleged victim, and we must therefore also reverse Defendant’s kidnapping
 1 conviction. Accordingly, we remand this case to the district court, where Defendant

 2 may be retried on both charges.

 3 I.      BACKGROUND

 4   {3}   J.Z.1 was at a bus stop in downtown Albuquerque “bugging people for money”

 5 so that he could catch a bus home. Defendant approached him, stated that he knew

 6 J.Z.’s family, and offered to give J.Z. a ride home. J.Z. got into Defendant’s pickup

 7 truck, and Defendant started driving.

 8   {4}   J.Z. testified that he soon noticed that Defendant was not driving J.Z. toward

 9 his house. J.Z. told Defendant he was driving the wrong way, and Defendant did not

10 respond. Defendant eventually stopped the truck in a remote location under a

11 highway underpass. Defendant then punched J.Z. in the head, and J.Z. became

12 “dizzy.” Defendant pulled down J.Z.’s pants, maneuvered him into a receptive

13 position, got on top of J.Z., and penetrated J.Z.’s anus with his penis. J.Z. further



           1
14           Although some mention of the alleged victim’s name was inevitable at trial,
15   we do not refer to him by name here because “the constitution and laws of New
16   Mexico require that we respect ‘the victim’s dignity and privacy throughout the
17   criminal justice process,’ ” State v. Allen, 2000-NMSC-002, ¶ 2 n.1, 128 N.M. 482,
18   994 P.2d 728 (quoting N.M. Const. art. II, § 24(A)(1)), and because the alleged victim
19   was a child under NMSA 1978, Section 32A-1-4(B) (2005, amended 2016), since
20   state law affords some degree of confidentiality in child abuse and neglect cases. See
21   generally NMSA 1978, § 32A-4-33 (2005, amended 2016); see also Allen, 2000-
22   NMSC-002, ¶ 2 n.1.

                                               2
 1 testified that he tried to escape by opening the passenger-side door of Defendant’s

 2 truck, but the door would not open. After a few minutes Defendant ejaculated and

 3 said, “Now I can take you home.” Defendant dropped off J.Z. on the west side of

 4 Albuquerque at a gas station near a Walmart. J.Z. testified that he was afraid to call

 5 the police because he did not want to be arrested for a probation violation. He also

 6 testified that he fought back throughout the encounter but that Defendant threw him

 7 around and overpowered him. J.Z. was sixteen years old at the time of the alleged

 8 crime.

 9   {5}    Two days later, J.Z. was arrested for absconding from juvenile probation. In

10 jail, J.Z. told a counselor that he had been sexually assaulted. J.Z. went through a

11 sexual assault nurse examination (SANE exam) four days after the alleged attack.

12 During the SANE exam, a nurse took swabs from J.Z.’s anus, penis, and mouth. The

13 nurse found no evidence of any injuries on his body, and no DNA from Defendant

14 was found on the swabs.

15   {6}    After his release from custody about thirty days later, J.Z. told Jennifer Brown,

16 his big sister under the Big Brothers Big Sisters program, what had happened to him

17 and described his attacker, including the fact that the attacker wore a GPS monitor on

18 his belt. Ms. Brown located a photograph of Defendant and Defendant’s address on



                                                3
 1 a website, and from that website photograph J.Z. recognized Defendant as his

 2 attacker. J.Z. drove to the address listed on the website, and J.Z. identified

 3 Defendant’s truck as the truck in which he was attacked. State employees later

 4 matched the locations and sequence of Defendant’s GPS coordinates to those

 5 described in J.Z.’s story.

 6   {7}   Defendant was indicted on two counts of criminal sexual penetration in the

 7 second degree “by the use of force or coercion on a child thirteen to eighteen years

 8 of age” (CSP-force/coercion). Section 30-9-11(E)(1). Each count was alternatively

 9 charged as CSP-felony. Section 30-9-11(E)(5). Defendant was also charged with

10 criminal sexual contact of a minor in the fourth degree (CSC), contrary to NMSA

11 1978, Section 30-9-13(D)(1) (2003), and kidnapping, contrary to Section 30-4-

12 1(A)(4). With respect to an allegation that Defendant forced J.Z. to engage in fellatio

13 or touched J.Z.’s penis without his consent, the jury unanimously found Defendant

14 not guilty of CSP-felony or CSP-force/coercion and not guilty of the charge of CSC.

15 The jury also unanimously found Defendant guilty of CSP-felony with respect to the

16 allegation of anal penetration and guilty of kidnapping. The jury hung on whether

17 Defendant was guilty of CSP-force/coercion with respect to the allegation of anal

18 penetration.



                                              4
 1   {8}   At a separate sentencing proceeding, see NMSA 1978, § 31-18-26 (1996), the

 2 jury unanimously found by a preponderance of the evidence that Defendant had been

 3 convicted of two violent sexual offenses pursuant to NMSA 1978, Section 31-18-

 4 25(F) (1997, amended 2015), and was accordingly subject to a mandatory

 5 enhancement by a sentence of life imprisonment. Defendant was sentenced to nine

 6 years imprisonment enhanced by a term of life imprisonment with the possibility of

 7 parole in thirty years for the second-degree CSP-felony conviction and to eighteen

 8 years imprisonment for first-degree kidnapping, to be served consecutively.

 9 II.     DISCUSSION

10 A.      Defendant’s Right to a Speedy Trial Was Not Violated

11   {9}   The Sixth Amendment to the United States Constitution guarantees that “[i]n

12 all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” See

13 also N.M. Const. art. II, § 14 (“[T]he accused shall have the right to . . . a speedy . . .

14 trial.”). Preventing prejudice to the accused is at the heart of the speedy trial right,

15 which also emanates from “the concomitant ‘societal interest in bringing an accused

16 to trial.’ ” State v. Serros, 2016-NMSC-008, ¶ 4, 366 P.3d 1121 (quoting State v.

17 Garza, 2009-NMSC-038, ¶ 12, 146 N.M. 499, 212 P.3d 387). To determine whether

18 the accused has been deprived of his speedy trial right, this Court follows the four-



                                                5
 1 factor test established by the United States Supreme Court in Barker v. Wingo, 407

 2 U.S. 514 (1972), and considers “(1) the length of delay in bringing the case to trial,

 3 (2) the reasons for the delay, (3) the defendant’s assertion of the right to a speedy

 4 trial, and (4) the prejudice to the defendant caused by the delay.” Garza, 2009-

 5 NMSC-038, ¶ 5 (citing Barker, 407 U.S. at 530). The Court “weigh[s] these factors

 6 according to the unique circumstances of each case in light of ‘the State and the

 7 defendant’s conduct and the harm to the defendant from the delay.’ ” Id. ¶ 5 (quoting

 8 Garza, 2009-NMSC-038, ¶ 13). “In reviewing a district court’s ruling on a speedy

 9 trial violation claim, we defer to the court’s findings of fact, and we weigh and

10 balance the Barker factors de novo.” Id. ¶ 20.

11 1.       Length of the delay

12   {10}   The Court must first determine whether the length of the delay is presumptively

13 prejudicial. “The first factor, the length of delay, has a dual function: it acts as a

14 triggering mechanism for considering the four Barker factors if the delay crosses the

15 threshold of being presumptively prejudicial, and it is an independent factor to

16 consider in evaluating whether a speedy trial violation has occurred.” Serros, 2016-

17 NMSC-008, ¶ 22 (internal quotation marks and citation omitted). Defendant was

18 arrested and indicted on September 8, 2008, and his trial began on November 12,



                                               6
 1 2013. The State therefore failed to bring the case to trial for more than five years.

 2 This delay is presumptively prejudicial, regardless of the complexity of the case. See

 3 Serros, 2016-NMSC-008, ¶¶ 21-23 (determining that a delay of more than four years

 4 was “presumptively prejudicial irrespective of the case’s complexity”). This sixty-

 5 two-month delay is extraordinary and weighs heavily against the State. Because the

 6 delay is presumptively prejudicial, we must consider the remaining Barker factors.

 7 Serros, 2016-NMSC-008, ¶ 22.

 8 2.       Reasons for the delay

 9   {11}   The Court must evaluate “the reason the government assigns to justify the

10 delay,” which “may either heighten or temper the prejudice to the defendant caused

11 by the length of the delay.” Id. ¶ 29 (internal quotation marks and citation omitted).

12 If the State deliberately attempts to delay the trial to hamper the defense, the delay

13 weighs heavily against the State. Id. Negligent or administrative delay must be

14 considered because “the ultimate responsibility for such circumstances must rest with

15 the government,” although such delay is not weighed as heavily against the State. Id.

16 (internal quotation marks and citation omitted). However, “[a]s the length of delay

17 increases, negligent or administrative delay weighs more heavily against the State.”

18 Id. Finally, “ ‘appropriate delay,’ justified for ‘a valid reason, such as a missing



                                             7
 1 witness,’ is neutral and does not weigh against the State.” Id. (quoting Garza, 2009-

 2 NMSC-038, ¶ 27). Delay caused by a defendant weighs against that defendant. See

 3 Vermont v. Brillon, 556 U.S. 81, 90, 94 (2009) (holding that the defendant’s

 4 “deliberate attempt to disrupt proceedings” weighed heavily against the defendant).

 5   {12}   In this case, the pretrial delay can be grouped into three time periods: (1) from

 6 September 8, 2008 until April 2010; (2) from April 2010 until September 2011; and

 7 (3) from September 2011 until trial in November 2013.

 8   {13}   During the first time period, the parties individually or jointly filed at least a

 9 dozen motions for continuance stating a variety of reasons, including to negotiate a

10 plea deal that potentially included other charges against Defendant, to prepare for

11 trial, and to complete discovery. Defendant either stipulated to each of the State’s

12 motions or did not oppose them. For the first time on appeal, Defendant asserts that

13 he stipulated to or jointly filed the numerous motions for continuance which stated

14 as grounds the need to continue plea discussions because of the apparent policy of the

15 Second Judicial District Attorney’s Office that only allowed plea negotiations prior

16 to the victim being interviewed. This is the same policy that we previously

17 disfavored in Serros because “it is well settled that the possibility of a plea agreement

18 does not relieve the State of its duty to pursue a timely disposition of the case.” 2016-



                                                8
 1 NMSC-008, ¶¶ 69, 71-72 (citing State v. Maddox, 2008-NMSC-062, ¶ 26, 145 N.M.

 2 242, 195 P.3d 1254 (“The State must affirmatively seek to move the case to trial, even

 3 while plea negotiations are pending.”)). Here, the plea negotiations were complicated

 4 and delayed by Defendant’s admission to a parole violation on June 2, 2009, the filing

 5 of additional criminal sexual penetration charges against Defendant in September

 6 2009, and the parties’ effort to reach a plea deal with respect to all charges pending

 7 against Defendant and not just the charges in this case. There is no evidence that the

 8 State deliberately delayed the case during this time, and therefore these nineteen

 9 months from September 8, 2008 until April 2010 weigh only slightly against the

10 State.

11   {14}   During the second time period, Defendant concedes that he was responsible for

12 delaying the trial from April 2010 until February 2011. However, Defendant was also

13 responsible for the delay from March 2011 until April 2011 because his attorney

14 missed a hearing and filed a motion for a continuance due to a scheduling conflict in

15 another case. On May 2, 2011, Defendant filed a request for judicial recusal. This

16 motion was denied, and the judge found that the motion was filed for the purpose of

17 delaying the trial. On May 6, 2011, Defendant petitioned this Court to issue an

18 extraordinary writ reversing the district judge. We denied the writ on May 27, 2011.



                                              9
 1 The time relating to Defendant’s petition for an extraordinary writ cannot be weighed

 2 against the State, and in any event, Defendant accepted responsibility for this delay.

 3 The district court set the trial for September 6, 2011; therefore, we hold that

 4 Defendant is solely responsible for the seventeen-month delay from April 2010 to

 5 September 2011.

 6   {15}   The third time period, the twenty-six-month delay from September 2011 until

 7 November 2013, involved the district court’s consideration of numerous motions filed

 8 by both parties and an appeal to this Court. The State appealed an order which

 9 excluded a statement Defendant made to his counselor, Tewana Bell, which Bell later

10 relayed to police officers. In that statement, Defendant told Bell that he had sex with

11 someone whose description was consistent with the physical characteristics of the

12 alleged victim. The district court entered its order on December 15, 2011 excluding

13 Defendant’s statement because of the psychotherapist-patient privilege. See Rule 11-

14 504 NMRA.

15   {16}   The State then filed a notice of appeal with the district court on December 16,

16 2011. The State appealed to the Court of Appeals, which transferred the appeal to

17 this Court pursuant to State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152

18 P.3d 821, because Defendant, if found guilty, might be sentenced to life in prison.



                                              10
 1 For speedy trial purposes in weighing the responsibility assigned to a party for delay

 2 caused by an interlocutory appeal, courts may consider several factors, including “the

 3 strength of the Government’s position on the appealed issue, the importance of the

 4 issue in the posture of the case, and—in some cases—the seriousness of the crime.”

 5 United States v. Loud Hawk, 474 U.S. 302, 315 (1986). Applying the Loud Hawk

 6 analysis, we conclude that the delay from the filing of the appeal until our disposition

 7 should weigh neutrally because there were no unusual delays. First, the State

 8 certified that the appeal was not taken for the purpose of delay and that the evidence

 9 would have been substantial proof of a material fact. Second, we are persuaded that

10 the evidence was important because, if admitted, it served as evidence that Defendant

11 admitted to having sex with someone who had the specific characteristics of the

12 alleged victim. Third, it illustrated the seriousness of a crime that Defendant could

13 be subjected to a sentence of life in prison if he were found guilty. Ultimately, this

14 Court issued a dispositional order affirming the district court. State v. Samora, No.

15 33,394, dispositional order of affirmance ¶ 13 (N.M. Sup. Ct. Aug. 29, 2013).

16   {17}   Further, the three and one-half months of motions from September 6, 2011 until

17 December 16, 2011 and the two and one-half months between our dispositional order

18 and the actual trial on November 12, 2013 are administrative delays which weigh, if



                                              11
 1 at all, only slightly against the State.

 2   {18}   To summarize how we have weighed the reasons for the delay, twenty-five

 3 months weigh slightly against the State, seventeen months weigh against Defendant,

 4 and twenty months weigh neutrally. Considered together, the parties bear a similar

 5 responsibility for the delays, and this factor weighs only slightly against the State.

 6 C.       Assertion of the right

 7   {19}   Under this factor, “[w]e accord weight to the frequency and force of the

 8 defendant’s objections to the delay and analyze the defendant’s actions with regard

 9 to the delay.” State v. Spearman, 2012-NMSC-023, ¶ 31, 283 P.3d 272 (internal

10 quotation marks and citation omitted). This inquiry is “closely related to the other

11 Barker factors, because ‘[t]he strength of [the defendant’s] efforts will be affected by

12 the length of the delay, to some extent by the reason for the delay, and most

13 particularly by the personal prejudice, which is not always readily identifiable, that

14 [the defendant] experiences.’ ” Garza, 2009-NMSC-038, ¶ 31 (quoting Barker, 407

15 U.S. at 531) (alterations in original). Further, “[t]he timeliness and vigor with which

16 the right is asserted may be considered as an indication of whether a defendant was

17 denied needed access to [a] speedy trial over his objection or whether the issue was

18 raised on appeal as [an] afterthought.” Serros, 2016-NMSC-008, ¶ 76 (second and



                                              12
 1 third alterations in original) (internal quotation marks and citation omitted).

 2   {20}   Defendant did not meaningfully assert his right, and therefore this factor does

 3 not support his speedy trial claim. Defendant made a pro forma assertion of his right

 4 on October 30, 2008, when the Public Defender Department entered its appearance

 5 on his behalf. The only other time he asserted the right was five years later in his

 6 October 25, 2013 motion to dismiss on speedy trial grounds. Considered alone, these

 7 two assertions would often be enough to weigh this factor slightly in favor of

 8 Defendant. See, e.g., Spearman, 2012-NMSC-023, ¶¶ 32-33 (holding that the

 9 defendant’s initial pro forma assertion along with a motion to dismiss based on a

10 speedy trial violation weighed against the State). However, Defendant’s assertions

11 of the right were mitigated by his acquiescence to, and responsibility for, numerous

12 delays. See Garza, 2009-NMSC-038, ¶ 34 (holding that the defendant’s assertion of

13 the right at the outset of the case along with a motion to dismiss based on a speedy

14 trial violation weighed “slightly” in the defendant’s favor where the assertion was not

15 “mitigated . . . by any apparent acquiescence to the delay” by the defendant). In this

16 case, Defendant either stipulated to or did not oppose the State’s numerous motions

17 for a continuance and was himself responsible for seventeen months of delay.

18 Admittedly, it is difficult to determine whether Defendant only stipulated to the



                                              13
 1 continuances because of the district attorney’s policy of not allowing plea deals after

 2 pretrial interviews with victims. In the petition for continuance filed on December

 3 4, 2009, the State noted that “Defendant has chosen to forgo pretrial interviews of the

 4 victims until all written discovery is complete in both cases and to encourage a more

 5 favorable plea offer from the State.” This may suggest that Defendant at least

 6 partially stipulated to the continuances because of the district attorney’s policy.

 7 Further, in the petition for continuance filed on March 3, 2010, the State said that

 8 “[t]he parties are in the process of setting up pretrial interviews and preparing for trial

 9 in both cases should negotiations fall through . . . .” While this also may suggest that

10 Defendant stipulated due to the policy, it is certainly not conclusive. If Defendant felt

11 compelled to concur in the State’s motions for a continuance because of the district

12 attorney’s policy, he could have stated so in a pleading to the district court so that the

13 court could consider Defendant’s position in assessing whether to grant or deny the

14 motion. We are left to speculate whether Defendant truly felt compelled to stipulate

15 to the continuances or whether his counsel simply decided it was not urgent to

16 conduct pre-trial interviews because Defendant had access to J.Z.’s safehouse

17 interview and could prepare his case on that basis. Defendant also demonstrated a

18 lack of concern for his speedy trial right by delaying his trial for seventeen months.



                                               14
 1 Defendant’s assertion of his speedy trial right only at the very beginning and very end

 2 of the pretrial period, his continued stipulations to the State’s continuances, and his

 3 own significant contributions to the delay all show that his assertion of his speedy

 4 trial right was only an afterthought, and therefore this factor does not weigh in his

 5 favor.

 6 D.       Prejudice

 7   {21}   This Court must analyze three separate interests to determine whether

 8 Defendant suffered prejudice: “(i) to prevent oppressive pretrial incarceration; (ii)

 9 to minimize anxiety and concern of the accused; and (iii) to limit the possibility that

10 the defense will be impaired.” Garza, 2009-NMSC-038, ¶ 35 (internal quotation

11 marks and citation omitted). Defendant must make a particularized showing of

12 prejudice to demonstrate a violation of any of the three interests. Id. ¶¶ 35, 37.

13 Because some oppression and anxiety are inevitably suffered by every defendant

14 awaiting trial, “we weigh this factor in the defendant’s favor only where the pretrial

15 incarceration or the anxiety suffered is undue.” Id. ¶ 35.

16   {22}   Here, Defendant has not asserted any particularized prejudice, such as

17 identifying a witness whose memory may have been impaired by the delay. See

18 Serros, 2016-NMSC-008, ¶ 92 (holding that the inability to interview the very young



                                             15
 1 victim for four years prejudiced the defendant’s ability to defend himself at trial).

 2 Nor has Defendant made a particularized showing that he suffered undue anxiety or

 3 oppressive pretrial incarceration. Furthermore, despite being incarcerated for more

 4 than five years while awaiting trial in this case, Defendant would have been

 5 incarcerated on the new CSP charge brought in September 2009, and other serious

 6 criminal charges were also brought against him a year into the pendency of this case.

 7 Cf. id. ¶¶ 88-91 (determining that the defendant being held in segregated protective

 8 custody on a single charge for over four years was extremely prejudicial). We hold

 9 that Defendant did not articulate any particularized prejudice that he suffered as a

10 result of the lengthy delay in this case.

11 5.       Balancing the factors

12   {23}   To find a speedy trial violation without a showing of actual prejudice, the Court

13 must find that the three other Barker factors weigh heavily against the State. Garza,

14 2009-NMSC-038, ¶ 39. While the extraordinary length of the delay in this case

15 weighs heavily against the State, the reasons for the delay weigh only slightly against

16 the State, and Defendant did not meaningfully assert his speedy trial right. Therefore,

17 we conclude that there was no speedy trial violation. Accordingly, we must examine

18 Defendant’s other claims.



                                               16
 1 B.       The District Court Committed Fundamental Error by Failing to Instruct
 2          on the Consent Element of CSP-Felony

 3   {24}   The district court instructed the jury that to convict Defendant of CSP, CSC,

 4 or kidnapping, the jury must find beyond a reasonable doubt that he committed an act

 5 that was “unlawful.” The jury instructions defined an unlawful act as follows: “For

 6 the act to have been unlawful it must have been done with the intent to arouse or

 7 gratify sexual desire or to intrude upon the bodily integrity or personal safety of

 8 [J.Z.].” This instruction reflected UJI 14-132 NMRA, except that it failed to include

 9 the bracketed phrase “without consent,” which would have clarified that any sexual

10 contact between J.Z. and Defendant had to be non-consensual for the jury to

11 determine that Defendant’s act was “unlawful.”

12   {25}   If unlawfulness is at issue, then consent is an essential element of CSP-felony.

13 CSP is defined, in relevant part, as “the unlawful and intentional causing of a person

14 to engage in . . . anal intercourse . . . whether or not there is any emission.” Section

15 30-9-11(A). The crime of CSP-felony requires that CSP be perpetrated “in the

16 commission of any other felony.” Section 30-9-11(E)(5). In State v. Stevens, we

17 examined historical sources relevant to CSP-felony and determined that the

18 Legislature “has never deviated from the common law approach of criminalizing only

19 those sex acts that are perpetrated on persons without their consent, either as a matter

                                               17
 1 of fact or, in the case of children or other vulnerable victims, as a matter of law.”

 2 2014-NMSC-011, ¶ 27, 323 P.3d 901. Accordingly, we concluded that the CSP-

 3 felony offense was intended to criminalize only “sexual acts perpetrated on persons

 4 without their consent . . . .” Id. ¶ 39 (emphasis added). Therefore, to convict under

 5 this provision, the jury must determine that the underlying felony was “committed

 6 against the victim of, and . . . assist[ed] in the accomplishment of, sexual penetration

 7 perpetrated by force or coercion against a victim who, by age or other statutory

 8 factor,” did not or could not give lawful consent. Id.

 9   {26}   Here, the State provided the unlawfulness jury instruction to the district court

10 and argued that “without consent” had been properly omitted because the issue of

11 consent was “legally irrelevant” to the unlawfulness of CSP-felony in this case under

12 State v. Moore, 2011-NMCA-089, 150 N.M. 512, 263 P.3d 289. Yet, as the State

13 acknowledges on appeal, Moore is inapplicable to this case. Moore held that “the

14 consent of a statutorily defined child is irrelevant to the unlawfulness element of

15 CSP[-felony],” and it was therefore proper in Moore to omit the phrase “without

16 consent” from the jury instructions when the alleged victim was fourteen years old

17 and the defendant was forty-six years old. Id. ¶¶ 13-16. As we noted in Stevens,

18 2014-NMSC-011, ¶¶ 20, 40, Moore’s reference to a “ ‘statutorily defined child’ ”



                                               18
 1 meant a child “below the age of consent.” The age of consent, and whether the lack

 2 of consent is an aspect of the unlawfulness element of CSP, varies statutorily

 3 depending on the perpetrator’s age, the child’s age, and other factors as follows.

 4 Under Section 30-9-11(D), any sexual penetration of a child under thirteen years old

 5 is first-degree CSP because the child cannot legally consent to sex. Section 30-9-

 6 11(E)(1) punishes as second-degree CSP any sexual penetration of a child between

 7 the ages of thirteen and eighteen years old by the use of force or coercion. Under that

 8 form of CSP, if the prosecution has proved that force or coercion was used by the

 9 perpetrator, it has also necessarily proved that the act was non-consensual, and a

10 separate finding of a lack of consent is not required. See State v. Perea, 2008-

11 NMCA-147, ¶ 9, 145 N.M. 123, 194 P.3d 738 (“Consent of a child between the ages

12 of thirteen and sixteen to engage in sexual intercourse is irrelevant where force or

13 coercion is involved.”). Section 30-9-11(G)(1) punishes any sexual penetration,

14 regardless of consent, where the child is between thirteen and sixteen years old and

15 the perpetrator is at least eighteen years old, is at least four years older than the child,

16 and is not the child’s spouse. See Moore, 2011-NMCA-089, ¶ 11 (concluding that

17 “[a child’s] consent or lack thereof is legally irrelevant” under Section 30-9-11(6)(1)).

18 Finally, under Section 30-9-11(G)(2), consent is irrelevant when the child is between



                                                19
 1 the ages of thirteen and eighteen years old and the perpetrator is a school employee

 2 or volunteer, the perpetrator is at least eighteen years old, is at least four years older

 3 than the child, and is not the child’s spouse, and the perpetrator learns while

 4 performing services for the school that the child is a student at the school. Unlike in

 5 Moore, where the victim was fourteen years old, whether J.Z. consented to sex with

 6 Defendant was legally relevant to the CSP-felony charge because sixteen-year-old

 7 J.Z. could have legally consented to sex with Defendant. Therefore, the omission of

 8 “without consent” from the jury instructions was erroneous.

 9   {27}   Because Defendant failed to object to the proffered jury instruction or

10 otherwise preserve this issue at trial, we will only reverse if the omission of “without

11 consent” was fundamental error. See Stevens, 2014-NMSC-011, ¶ 42. “Fundamental

12 error only applies in exceptional circumstances when guilt is so doubtful that it would

13 shock the judicial conscience to allow the conviction to stand.” Id. (internal

14 quotation marks and citation omitted). Under this standard, we must determine

15 whether a reasonable juror would have been confused or misdirected “not only from

16 instructions that are facially contradictory or ambiguous, but from instructions which,

17 through omission or misstatement, fail to provide the juror with an accurate rendition

18 of the relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d



                                               20
 1 1134. “In applying the fundamental error analysis to deficient jury instructions, we

 2 are required to reverse when the misinstruction leaves us with ‘no way of knowing

 3 whether the conviction was or was not based on the lack of the essential element.’ ”

 4 State v. Montoya, 2013-NMSC-020, ¶ 14, 306 P.3d 426 (quoting State v. Swick,

 5 2012-NMSC-018, ¶ 46, 279 P.3d 747).

 6   {28}   “[I]f the instructions omitted an element which was at issue in the case, the

 7 error could be fundamental.” State v. Orosco, 1992-NMSC-006, ¶ 9, 113 N.M. 780,

 8 833 P.2d 1146. Accordingly, we initially examine whether J.Z.’s consent was at issue

 9 in this case to determine whether the omission of this element could be fundamental

10 error. Cf. id. ¶¶ 9-20 (concluding that it was not fundamental error to omit the

11 unlawfulness element of criminal sexual contact of a minor under age thirteen where

12 there was no evidence putting the lawfulness of the alleged acts “in issue,” and

13 therefore “no rational jury could have concluded that defendants had committed the

14 acts without also determining that the acts were performed in the manner proscribed

15 by law”). There is some evidence in the record that could have led the jury to infer

16 that consent was at issue in this case. First, there was no evidence of physical injuries

17 to corroborate J.Z.’s story that Defendant held him down and forced him to have sex.

18 Second, during his interview with police Defendant did not deny having sex on May



                                              21
 1 25, 2008, so it would be possible to infer that he had consensual sex with J.Z. on that

 2 date. Third, Defendant’s rigorous cross-examination of J.Z. focused on J.Z.’s

 3 changing account of the alleged sexual assault and his alleged unreliability. If the

 4 jury believed that J.Z. was in some way unreliable or not telling the truth, the jurors

 5 could have reasonably concluded that Defendant and J.Z. went to a remote location

 6 and engaged in consensual sex. Based on this testimony, we conclude that there was

 7 sufficient evidence presented to the jury to put consent at issue in this case, and we

 8 must therefore determine whether the omission of this essential element was

 9 fundamental error.

10   {29}   Fundamental error occurs when jury instructions fail to inform the jurors that

11 the State has the burden of proving an essential element of a crime and we are left

12 with “no way of knowing” whether the jury found that element beyond a reasonable

13 doubt. Swick, 2012-NMSC-018, ¶ 46; see also Rule 5-608(A) NMRA (“The court

14 must instruct the jury upon all questions of law essential for a conviction of any crime

15 submitted to the jury.”). However, we need not conclude that there was fundamental

16 error despite the court’s failure to instruct on an essential element where “the jury’s

17 findings, in light of the undisputed evidence in the case, necessarily establish that the

18 [omitted] element was met beyond a reasonable doubt.” Orosco, 1992-NMSC-006,



                                              22
 1 ¶ 15. For instance, in Stevens we held that it was not fundamental error to omit the

 2 element of unlawfulness from a CSP-felony instruction because the jury found

 3 beyond a reasonable doubt that the alleged sexual act occurred between the thirteen-

 4 year-old victim and the defendant’s boyfriend, who was at least ten years older than

 5 the victim, and that under those circumstances, the sexual act could not be other than

 6 unlawful. 2014-NMSC-011, ¶¶ 43-46. In other words, the jury’s finding in Stevens

 7 that the sexual act occurred beyond a reasonable doubt was necessarily also a finding

 8 that the act was unlawful beyond a reasonable doubt because the victim in that case

 9 could not legally consent to sex with that defendant, and there was no other evidence

10 suggesting that the alleged sexual act could have been otherwise lawful, such as a

11 touching for purposes of reasonable medical treatment. See id. Further, in State v.

12 Cunningham, the failure to instruct on the essential element of unlawfulness or self-

13 defense was not fundamental error because the jury received a separate self-defense

14 instruction containing the appropriate burden of proof and the jurors specifically

15 found beyond a reasonable doubt that the defendant did not act in self-defense, a

16 finding which also satisfied the essential element that was erroneously excluded.

17 2000-NMSC-009, ¶¶ 9, 20-22, 128 N.M. 711, 998 P.2d 176.

18   {30}   Turning to this case, to ascertain whether fundamental error occurred, we must



                                              23
 1 “review the entire record, placing the jury instructions in the context of the individual

 2 facts and circumstances of the case, to determine whether the Defendant’s conviction

 3 was the result of a plain miscarriage of justice.” State v. Sutphin, 2007-NMSC-045,

 4 ¶ 19, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and citations omitted).

 5 The State argues that if the omission of the entire “unlawful” element was not

 6 fundamental error in Stevens, then the district court’s inclusion of that element and

 7 omission of only two words (“without consent”) cannot be fundamental error in this

 8 case. However, as we have previously discussed, unlawfulness is at issue in this case,

 9 where at age sixteen the alleged victim had passed the age of consent, unlike the

10 thirteen-year-old victim in Stevens who legally could not consent pursuant to Section

11 30-9-11(G)(1), and the conclusion that no fundamental error occurred in Stevens is

12 therefore not dispositive here. The State further contends that the jury’s other

13 findings demonstrate that the jurors must have ultimately concluded that J.Z. did not

14 consent to anal penetration by Defendant.

15   {31}   The jury convicted Defendant of kidnapping by finding beyond a reasonable

16 doubt that J.Z. was taken, restrained, confined, or transported by force, intimidation,

17 or deception by Defendant. As part of the kidnapping conviction, the jury also found

18 that Defendant intended to hold J.Z. against his will to inflict death, physical injury,



                                              24
 1 or a sexual offense on him. However, the jury’s conclusions regarding Defendant’s

 2 act of kidnapping do not establish beyond a reasonable doubt that it considered

 3 Defendant’s separate act of anally penetrating J.Z. to have been non-consensual

 4 beyond a reasonable doubt, despite the fact that it found the anal penetration in this

 5 case to have taken place during the commission of kidnapping. The jury further

 6 found that Defendant committed a “sexual offense” against J.Z. during the

 7 kidnapping, despite the absence of a definition of “sexual offense” in the jury

 8 instruction. Therefore, the jury also could have reached this finding without an

 9 understanding that in this case, it had to find beyond a reasonable doubt that the anal

10 penetration was non-consensual for Defendant’s act to constitute a sexual offense.

11 Finally, the jury hung on an alternative CSP-force/coercion count with respect to

12 Defendant’s anal penetration of J.Z. The only significant distinction between the jury

13 instructions regarding CSP-force/coercion and those regarding CSP-felony was that

14 the CSP-force/coercion instruction required the jury to additionally conclude beyond

15 a reasonable doubt that Defendant used physical force, physical violence, or threats

16 of physical force or physical violence against J.Z. While a finding that force or

17 coercion was used during the sexual penetration is certainly not necessary to establish

18 a lack of consent, if the jury had found this element beyond a reasonable doubt under



                                             25
 1 the alternative count, we would have no misgivings in concluding that the jury also

 2 necessarily found beyond a reasonable doubt that the sexual penetration in this case

 3 was non-consensual. Yet the jury apparently hung on this very element, and we

 4 therefore cannot draw any definitive conclusions regarding the jury’s understanding

 5 of the role of consent from their findings regarding the CSP-force/coercion charge.

 6   {32}   Moreover, we agree with Defendant that the juror questions submitted during

 7 trial hinted at juror confusion regarding the issue of consent. The record indicates

 8 that several juror questions were submitted to the district judge after the jurors were

 9 provided with the instructions. In one of those questions, a juror asked “[h]ow old

10 you have to be to have consentual [sic] sex . . . ? We think [the SANE nurse] said the

11 age was 13.” Indeed, the SANE nurse who examined J.Z. testified that the age of

12 consent in New Mexico was thirteen. Another juror asked what it meant that

13 Defendant’s act needed to be “unlawful,” and further stated that the term “seems

14 conclus[ory] or unnecessary.” The district court responded to these questions by

15 instructing the jurors, “you are to decide this case based on the testimony at trial and

16 the jury instructions as a whole.” These questions indicate some level of confusion

17 regarding the age of consent in New Mexico and the meaning of the “unlawful act”

18 element of CSP-felony, and further support our conclusion that the jurors in this case



                                              26
 1 may have been confused or misdirected as to whether Defendant could have still

 2 acted unlawfully if J.Z. had consented to sex. See Benally, 2001-NMSC-033, ¶ 12

 3 (“Under [fundamental error review,] we seek to determine whether a reasonable juror

 4 would have been confused or misdirected by the jury instruction.” (emphasis added)

 5 (internal quotation marks and citations omitted)). Accordingly, we hold that in the

 6 circumstances of this case, it was fundamental error to omit the element of consent

 7 from the jury instructions that were relevant to CSP-felony.

 8   {33}   Defendant only requests that his CSP-felony conviction be reversed as a result

 9 of this error. However, we are responsible for determining whether this fundamental

10 error also infected his conviction for kidnapping.         See State v. Arrendondo,

11 2012-NMSC-013, ¶ 20, 278 P.3d 517 (concluding that appellate courts have a

12 responsibility to raise issues sua sponte when it is necessary to protect a party’s

13 fundamental rights); see also State v. Cabezuela, 2011-NMSC-041, ¶ 39, 150 N.M.

14 654, 265 P.3d 705 (“It is the fundamental right of a criminal defendant to have the

15 jury determine whether each element of the charged offense has been proved by the

16 state beyond a reasonable doubt.” (internal quotation marks and citations omitted)).

17 We conclude that the error of omitting the element of consent from the jury

18 instruction affected the kidnapping conviction. The jury instructions did not define



                                              27
 1 the term “sexual offense” beyond providing the elements of CSP and CSC through

 2 other instructions. Because the jury may have been confused or misdirected as to

 3 whether consensual sex between J.Z. and Defendant could still be a sexual offense,

 4 then the jury’s finding under the kidnapping charge that Defendant intended to inflict

 5 death, physical injury, or a sexual offense on J.Z. was necessarily infected by the

 6 same potential confusion, affecting the verdict on the kidnapping charge in this case

 7 where there was not sufficient evidence to support the inference that Defendant

 8 intended to inflict death or a physical injury on J.Z. Therefore, because we cannot

 9 determine whether the jury found that the sexual act was non-consensual beyond a

10 reasonable doubt, we must also reverse Defendant’s kidnapping conviction for

11 fundamental error.

12   {34}   Because we have determined that we must reverse Defendant’s convictions for

13 CSP-felony and kidnapping, we are required to determine whether sufficient evidence

14 was presented to support these convictions to avoid double jeopardy concerns should

15 the State seek to retry Defendant. State v. Dowling, 2011-NMSC-016, ¶ 18, 150 N.M.

16 110, 257 P.3d 930; Cabezuela, 2011-NMSC-041, ¶ 40. “The test for sufficiency of

17 the evidence is whether substantial evidence of either a direct or circumstantial nature

18 exists to support a verdict of guilty beyond a reasonable doubt with respect to every



                                              28
 1 element essential to a conviction.” Id. ¶ 42 (internal quotation marks and citation

 2 omitted). In doing so, we view “the evidence in the light most favorable to the guilty

 3 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence

 4 in favor of the verdict.” Id. (internal quotation marks and citation omitted).

 5   {35}   There was sufficient evidence to support Defendant’s kidnapping and CSP-

 6 felony convictions. In this case, the alleged victim’s testimony was by itself enough

 7 to establish every element of each offense beyond a reasonable doubt under a

 8 sufficiency of the evidence review. The jury could have reasonably inferred that

 9 Defendant took or transported J.Z. by deception based on J.Z.’s testimony that he got

10 into Defendant’s truck because Defendant said that he would take J.Z. home.

11 Alternatively, J.Z. also testified that when he tried to escape from Defendant’s truck,

12 the door was locked—testimony from which the jurors could have reasonably

13 concluded that Defendant confined J.Z. by force. Further, the jurors could have

14 reasonably inferred that Defendant intended to hold J.Z. against J.Z.’s will to inflict

15 a sexual offense against him based on J.Z.’s testimony that Defendant took him to a

16 remote location, pulled down J.Z.’s pants, and then penetrated his anus. This

17 evidence also supports a reasonable inference that Defendant caused J.Z. to engage

18 in anal intercourse. Additionally, the jury also could have reasonably concluded that



                                              29
 1 Defendant’s statement to J.Z. after ejaculating—“Now I can take you

 2 home”—indicated that Defendant transported J.Z. to a remote location and confined

 3 him there for the purpose of inflicting a sexual offense on him. J.Z.’s testimony

 4 regarding the sexual act in this case also supported a reasonable inference that

 5 Defendant’s act against J.Z. was unlawful because the jury could have inferred that

 6 it was done without J.Z.’s consent and for the purpose of gratifying Defendant’s

 7 sexual desire or to intrude upon J.Z.’s bodily safety or integrity. Further, because

 8 J.Z.’s account supported a conviction for kidnapping, the jury could have reasonably

 9 determined that the CSP in this case was committed during the course of the

10 kidnapping since the sexual penetration occurred while J.Z. was either being

11 transported by deception or confined by force. Ultimately, if the jury believed J.Z.’s

12 story regarding his encounter with Defendant, it could have reasonably found that

13 every element of both crimes was met beyond a reasonable doubt. Therefore,

14 Defendant may be retried on both charges.

15   {36}   Because we have determined that the omission of consent from the jury

16 instructions rose to the level of fundamental error and requires reversal of both

17 convictions, we need not reach the other issues raised by Defendant. However, to

18 provide guidance on remand, we address (1) the admission of GPS evidence and



                                             30
 1 online identification evidence, and (2) the scope of Defendant’s cross-examination

 2 of J.Z., but not any of the other arguments raised by Defendant. See State v. Allison,

 3 2000-NMSC-027, ¶ 1, 129 N.M. 566, 11 P.3d 141 (stating that the Court may address

 4 additional issues “[f]or guidance upon remand”); State v. Torres, 1999-NMSC-010,

 5 ¶ 8, 127 N.M. 20, 976 P.2d 20 (same).

 6 III.     The District Court Did Not Abuse Its Discretion by Admitting Evidence
 7          Regarding J.Z.’s Identification of Defendant via the Internet or by
 8          Allowing Testimony Regarding the Fact that Defendant Was Subject to
 9          GPS Monitoring

10   {37}   Defendant claims that the district court abused its discretion by admitting

11 evidence that he wore a GPS monitoring device and that J.Z. found Defendant’s

12 picture, name, and address on an Internet website. Absent a clear abuse of discretion,

13 we will not reverse a trial judge’s decision to admit evidence. State v. Apodaca,

14 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. “An abuse of discretion occurs

15 when the ruling is clearly against the logic and effect of the facts and circumstances

16 of the case. We cannot say the trial court abused its discretion by its ruling unless we

17 can characterize it as clearly untenable or not justified by reason.” Id. (internal

18 quotation marks and citations omitted).

19   {38}   Prior to trial, Defendant filed a motion to exclude any evidence that he wore

20 a GPS tracker and was subject to GPS monitoring by the State, and any evidence that

                                              31
 1 J.Z. identified Defendant while viewing New Mexico’s online sex offender registry.

 2 The district court ruled that the State could elicit the fact that Defendant was wearing

 3 a GPS device, but that it could not describe the nature of Defendant’s underlying

 4 conviction. The district court later specified that if the GPS monitoring information

 5 was elicited through the testimony of parole authorities, they should simply be

 6 introduced as employees of the State of New Mexico without any further detail. The

 7 district court further held that the State could introduce evidence that J.Z. found

 8 Defendant’s picture and other identifying information “on the Internet,” but could not

 9 be more specific about the nature of the website.

10   {39}   As an initial matter, we reject Defendant’s argument that we should consider

11 his offer to stipulate to being with J.Z. at the time and place of the alleged sexual

12 assault as precluding the State’s need for the online identification and GPS evidence

13 admitted by the district court. The State is “not bound to present its case to the jury

14 through abstract stipulations,” despite a defendant’s offer to stipulate to certain facts.

15 State v. Martinez, 1999-NMSC-018, ¶ 34, 127 N.M. 207, 979 P.2d 718. For example,

16 in State v. Sarracino, this Court held that it was not an abuse of discretion to allow

17 the State to elicit testimony regarding statements made by the defendant while

18 threatening a couple with a gun when the defendant had offered to stipulate to making



                                               32
 1 the statements and had claimed that the circumstances surrounding their admission

 2 would be impermissible evidence of prior bad acts. 1998-NMSC-022, ¶¶ 5, 21-22,

 3 125 N.M. 511, 964 P.2d 72. In that case, we looked only to whether the evidence of

 4 this uncharged prior bad act fit within an exception to Rule 11-404(B) NMRA, and

 5 did not consider the defendant’s stipulation offer in our analysis. See Sarracino,

 6 1998-NMSC-022, ¶ 22. Similarly, in this case we need not consider Defendant’s

 7 offer to stipulate that he was with J.Z. at the times and places alleged to determine

 8 whether the GPS and online identification evidence was admissible under either Rule

 9 11-404(B) or Rule 11-403 NMRA, or whether it improperly bolstered J.Z.’s

10 testimony.

11   {40}   We also disagree with Defendant’s contention that admission of “[t]he fact that

12 [Defendant] was on GPS monitoring and that his name and address were listed on a

13 website inexorably leads to one conclusion: he was a convicted sex offender” and

14 that this evidence was therefore improper evidence of prior bad acts under Rule 11-

15 404(B). Rule 11-404(B)(1) excludes “[e]vidence of a crime, wrong, or other act . . .

16 to prove a person’s character in order to show that on a particular occasion the person

17 acted in accordance with [that] character.” This rule only “prohibits the use of

18 otherwise relevant evidence when its sole purpose or effect is to prove criminal



                                              33
 1 propensity.” State v. Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828

 2 (emphasis added). However, such “evidence may be admissible for another purpose,

 3 such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

 4 absence of mistake, or lack of accident.” Rule 11-404(B)(2). In considering the

 5 online identification evidence in this case, the district court opined that “nowadays

 6 computer access and computer use is very common . . . . I’ve thought about the

 7 whole issue of computer access and computer use, and we’re in a new age, and it’s

 8 the 21st century, and it’s just a fact of life.” We hold that it was not an abuse of

 9 discretion for the district court to conclude that the limited information admitted

10 regarding J.Z.’s identification of Defendant through online information did not

11 constitute evidence of a crime, a wrong, or another act under Rule 11-404(B). The

12 district court also determined that evidence of Defendant’s GPS coordinates on the

13 date of the alleged crime and the fact that he was wearing a GPS tracking device were

14 admissible because they showed “identity, opportunity and lack of mistake.” We

15 again conclude that it was not an abuse of discretion in this case to admit limited

16 evidence that Defendant was on GPS monitoring. The evidence did not have the sole

17 purpose or effect of proving criminal propensity, but was instead probative to

18 material facts in the case because (1) J.Z. testified that the person who assaulted him



                                             34
 1 was wearing a GPS monitor on his belt, which Defendant was required to wear; and

 2 (2) Defendant’s GPS coordinates placed him in the same locations where J.Z. claimed

 3 to have been assaulted.

 4   {41}   We reject Defendant’s additional contention that the probative value of the

 5 online identification and GPS evidence was substantially outweighed by a danger of

 6 unfair prejudice from its admission under Rule 11-403. As we have previously

 7 discussed, the district court limited the online identification evidence presented at

 8 trial to completely exclude the fact that J.Z. found Defendant’s picture at an online

 9 sex offender registry. The district court did not abuse its discretion by admitting this

10 limited version of J.Z.’s identification of Defendant because it was reasonable to

11 conclude that the mere fact that J.Z. found Defendant’s picture, name, and address

12 online, without any additional information, was completely unremarkable and neither

13 reflected negatively on Defendant nor created a danger of unfair prejudice. Similarly,

14 the GPS evidence was limited to prevent any mention of why Defendant was being

15 monitored. Under the circumstances of this case, the generic information that

16 Defendant was subject to GPS monitoring was not overly prejudicial, and contrary

17 to Defendant’s suggestion, did not strongly imply that Defendant was a sex offender.

18 During the hearing on Defendant’s motion to exclude, the district court concluded



                                              35
 1 that individuals may wear a GPS device and be monitored by state employees for a

 2 variety of reasons, including pretrial monitoring programs and probation in cases not

 3 involving sex offenses. Indeed, during voir dire, two prospective jurors mentioned

 4 that they associated GPS monitoring with a DWI or other alcohol-related offense, but

 5 none of the prospective jurors mentioned any specific association with sex offenses.

 6 Thus, we do not conclude that there was an abuse of discretion in the district court’s

 7 admission of the information that Defendant was subject to GPS monitoring by the

 8 State, without anything more, because any prejudice to Defendant did not

 9 substantially outweigh the probative value of this evidence in identifying Defendant

10 as J.Z.’s alleged attacker.

11   {42}   Finally, we reject Defendant’s contention that presenting the online

12 identification and GPS evidence improperly bolstered J.Z.’s credibility. Evidence

13 will be excluded as improper bolstering when it directly comments on a witness’s

14 credibility, but not when it provides “[i]ncidental verification” of a witness’s story or

15 only indirectly bolsters that witness’s credibility. State v. Alberico, 1993-NMSC-047,

16 ¶ 89, 116 N.M. 156, 861 P.2d 192. For example, in State v. Lucero, a psychiatrist’s

17 testimony was improper bolstering when she commented directly on the victim’s

18 credibility, repeatedly mentioned that the victim claimed to have been assaulted by



                                              36
 1 the defendant, and opined that the victim’s post-traumatic stress disorder was caused

 2 by sexual molestation. 1993-NMSC-064, ¶¶ 5-6, 15-17, 116 N.M. 450, 863 P.2d

 3 1071. However, in this case the GPS evidence and online identification evidence

 4 only corroborated J.Z.’s testimony; it did not comment directly on his credibility or

 5 impinge in any way on the jury’s role of assessing J.Z.’s story and determining

 6 whether he was telling the truth. Therefore, the admission of this evidence was not

 7 an abuse of the district court’s discretion.

 8 IV.      The District Court’s Limitation of Defendant’s Cross-Examination of J.Z.
 9          Was Not an Abuse of Discretion and Did Not Violate Defendant’s Rights
10          under the Confrontation Clause

11   {43}   Defendant argues that the district court erred by limiting his cross-examination

12 of J.Z. Generally, “[t]he district court has broad discretion to control the scope of

13 cross-examination, including the discretion to control cross-examination to ensure a

14 fair and efficient trial.” State v. Bent, 2013-NMCA-108, ¶ 10, 328 P.3d 677 (citation

15 omitted). Prior to trial, the State filed a motion seeking to exclude Defendant from

16 using any of J.Z.’s juvenile adjudications for impeachment purposes, to limit

17 Defendant to only inquiring about the number of J.Z.’s felony convictions, and to

18 exclude Defendant from using the names of any of those felonies with the exception

19 of J.Z.’s conviction for commercial burglary. The record indicates that Defendant did



                                               37
 1 not file a written response. The district court held a hearing on this motion and ruled

 2 that (a) the names of J.Z.’s juvenile adjudications were not to be presented to the jury;

 3 (b) Defendant could mention J.Z.’s violations of his juvenile probation right after the

 4 alleged incident with Defendant because that was “a matter of motive”; (c) Defendant

 5 could not cross-examine J.Z. regarding J.Z.’s convictions for possession of a firearm

 6 by a felon and contributing to the delinquency of a minor as a result of a DWI

 7 because “it confuses the jury, it gets [them] into a mini trial,” while J.Z.’s other felony

 8 convictions went to credibility and were fair game; (d) however, Defendant could

 9 refer to the existence of these other felony convictions without naming them; and (e)

10 Defendant could ask about charges pending against J.Z., but could not detail those

11 charges and could not bring in extrinsic evidence to prove them.

12   {44}   First, Defendant contends that it was improper to limit cross-examination

13 regarding J.Z.’s prior convictions and his experience with the criminal justice system

14 as an adult and as a juvenile. Under Rule 11-609(D) NMRA, prior juvenile

15 adjudications are admissible for impeachment of a witness only when they are offered

16 in a criminal case, the witness is not the defendant, an adult’s conviction for that

17 offense would normally be admissible to attack credibility, and admitting the

18 evidence is necessary to fairly determine guilt or innocence. At the hearing on the



                                               38
 1 State’s motion, the district court indicated that Defendant could use J.Z.’s juvenile

 2 criminal history to show that J.Z. was in juvenile detention when he first accused

 3 Defendant and that his detention may have given him a motive to lie. At the hearing,

 4 Defendant agreed that he did not need to name J.Z.’s prior juvenile convictions, and

 5 the district court acknowledged that concession on the record. Therefore, Defendant

 6 did not properly preserve for appeal any objection with respect to the scope of

 7 permissible cross-examination regarding J.Z.’s juvenile convictions. See State v.

 8 Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (“In order to preserve

 9 an error for appeal, it is essential that the ground or grounds of the objection or

10 motion be made with sufficient specificity to alert the mind of the trial court to the

11 claimed error or errors, and that a ruling thereon then be invoked.” (internal quotation

12 marks and citation omitted)).

13   {45}   As to J.Z.’s adult convictions, under Rule 11-609(A) the district court must

14 admit prior adult convictions for impeachment purposes if (1) the conviction is for

15 any crime that is punishable by imprisonment for more than a year, subject to the

16 balancing test of Rule 11-403, or (2) the conviction is for any crime involving a

17 dishonest act or false statement. The district court permitted Defendant to refer by

18 name to J.Z.’s felony convictions for commercial burglary, conspiracy to tamper with



                                              39
 1 evidence, and a probation violation on the charge of receiving or transferring a stolen

 2 vehicle. The district court also exercised its discretion under Rule 11-609(A)(1) by

 3 preventing Defendant from mentioning by name J.Z.’s prior convictions for

 4 possession of a firearm by a felon and contributing to the delinquency of a minor

 5 under Rule 11-403. However, Defendant would still be allowed to refer to the

 6 existence of these other felony convictions without naming those offenses. On

 7 appeal, Defendant does not state which specific convictions he should have been

 8 allowed to name, but instead merely makes a general reference to the jury’s potential

 9 “misunderstanding of [J.Z.’s] possible motives and the extent to which he was

10 familiar with the horse-trading aspect of the criminal justice system.” We hold that

11 the district court did not abuse its discretion in limiting how Defendant could refer

12 to two of J.Z.’s prior adult felony convictions. Contrary to Defendant’s arguments,

13 the district court’s ruling still allowed Defendant to elicit that J.Z. had frequent

14 encounters with the criminal justice system and to argue that J.Z. was exaggerating

15 his story to get a deal on some of his other charges.

16   {46}   Second, Defendant asserts that it was an abuse of discretion for the district

17 court to limit his cross-examination of J.Z. regarding how J.Z. made his living on the

18 streets, including the fact that J.Z. “used and/or sold drugs.” The record reflects that



                                              40
 1 Defendant elicited testimony from J.Z. that J.Z. was hustling, panhandling, and

 2 selling drugs to survive on the streets. The district court then cut off any additional

 3 questions from Defendant regarding how J.Z. made his living on the streets because

 4 the court reasoned that selling drugs and being homeless was impermissible character

 5 evidence that was not relevant to any issues either in the case or to J.Z.’s credibility.

 6 However, the district court later allowed Defendant to elicit testimony from J.Z. that

 7 he had a bad memory from using drugs, presumably because that testimony was

 8 relevant to the jury’s assessment of J.Z.’s reliability as a witness. Under these

 9 circumstances, we conclude that it was not an abuse of discretion for the district court

10 to limit Defendant’s cross-examination regarding J.Z.’s homelessness or drug use

11 since the specific issue of how J.Z. made his living on the streets was of minimal

12 relevance to any issues either in the case or to J.Z.’s credibility.

13   {47}   Third, Defendant claims that it was an improper abuse of discretion for the

14 district court to prevent Defendant from providing J.Z. with transcripts of his

15 safehouse interview while J.Z. was on the stand to refresh J.Z.’s recollection and then

16 impeach him with prior inconsistent statements. “The admission or exclusion of [an]

17 inconsistent statement rests within the sound discretion of the trial court under the

18 particular facts in this case and will not be reversed absent an abuse of that



                                              41
 1 discretion.” State v. Davis, 1981-NMSC-131, ¶ 20, 97 N.M. 130, 637 P.2d 561.

 2 During cross-examination, Defendant asked J.Z. whether J.Z. had stated during his

 3 safehouse interview that Defendant punched him. J.Z. responded, “I believe so.”

 4 Defense counsel asked J.Z. to show him where in the transcript he had made this

 5 statement. The State objected that showing J.Z. the transcript would be improper

 6 refreshment and improper impeachment. The district court sustained this objection

 7 and did not agree to Defendant’s proposal of letting J.Z. review the entire transcript

 8 because it would have taken a significant amount of time and the issue was de

 9 minimus. Defendant was then allowed to resume his cross-examination of J.Z.

10 regarding J.Z.’s safehouse statement, during which J.Z. stated that he was not sure

11 what he said, that he may not have said it, and that he did not know if he said it. J.Z.

12 finally agreed that he did not say that Defendant had punched him in the head during

13 the interview. We conclude that the district court acted within its discretion to control

14 cross-examination to ensure an efficient trial by denying Defendant’s request to have

15 J.Z. review the entire transcript of the safehouse interview to confirm that he never

16 said he was hit in the head, and instead requiring Defendant to continue to cross-

17 examine J.Z. to elicit this statement through testimony. See Bent, 2013-NMCA-108,

18 ¶ 10.



                                              42
 1   {48}   Fourth and finally, Defendant argues that these limitations on his cross-

 2 examination of J.Z. collectively violated Defendant’s rights under the Confrontation

 3 Clause. The Confrontation Clause “guarantees the right of an accused in a criminal

 4 prosecution to be confronted with the witnesses against him.” Davis v. Alaska, 415

 5 U.S. 308, 315 (1974) (internal quotation marks and citation omitted). However, “the

 6 trial court retains wide latitude insofar as the Confrontation Clause is concerned to

 7 impose reasonable limits on . . . cross-examination based on concerns about, among

 8 other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or

 9 interrogation that is repetitive or only marginally relevant.”         State v. Smith,

10 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254 (omission in original) (internal

11 quotation marks and citation omitted). Although the extent of cross-examination is

12 within the sound discretion of the district court, we still review de novo whether

13 limits on cross-examination have violated the Confrontation Clause. Id.

14   {49}   We disagree with Defendant’s argument that the limitations on cross-

15 examination in this case were analogous to those limitations held to be violations of

16 the Confrontation Clause by the United States Supreme Court in Davis. In Davis, the

17 defendant, who was accused of stealing a safe, was prohibited from cross-examining

18 a witness against him regarding the fact that the witness was on probation for



                                              43
 1 burglary. 415 U.S. at 311-12. Davis held that the district court’s limitations on cross-

 2 examination of the witness violated the defendant’s confrontation rights because he

 3 was not permitted to produce evidence to create any record of the reason that the

 4 witness might potentially be biased or motivated to lie, such as the witness’s fear that

 5 the police might otherwise suspect the witness of committing the crime, based on his

 6 prior criminal history. See id. at 317-18. Instead, “defense counsel should have been

 7 permitted to expose to the jury the facts from which jurors, as the sole triers of fact

 8 and credibility, could appropriately draw inferences relating to the reliability of the

 9 witness.” Id. By contrast, here the district court’s limitations on cross-examination

10 did not prevent Defendant from creating a record regarding potential credibility

11 problems with J.Z.’s testimony. Indeed, the district court specifically did not limit

12 Defendant’s cross-examination regarding J.Z.’s prior convictions for crimes of

13 dishonesty, and permitted Defendant to elicit general information illustrating that J.Z.

14 had significant experience with the criminal justice system and made his living by

15 hustling on the streets, both of which also provided fodder for Defendant’s argument

16 that J.Z. had motivations to fabricate his story. Therefore, we conclude that the

17 district court’s exercise of discretion to limit the extent of Defendant’s cross-

18 examination of J.Z. was proper and did not violate Defendant’s rights under the



                                              44
1 Confrontation Clause.

2 CONCLUSION

3   {50}   We reverse Defendant’s convictions for CSP-felony and kidnapping and

4 remand to the district court, where Defendant may be retried on those charges.

5   {51}   IT IS SO ORDERED.




6                                              ______________________________
7                                              EDWARD L. CHÁVEZ, Justice



8 WE CONCUR:



 9 ___________________________________
10 CHARLES W. DANIELS, Chief Justice



11 ___________________________________
12 PETRA JIMENEZ MAES, Justice



13 ___________________________________
14 BARBARA J. VIGIL, Justice




                                          45
