 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                      No. 28,805

 5 ADALY MORENO,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Stephen Bridgforth, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                             MEMORANDUM OPINION

17 SUTIN, Chief Judge.

18       Defendant appeals from the district court’s judgment convicting her of criminal

19 sexual penetration in the second degree and conspiracy to commit criminal sexual

20 penetration in the second degree. [RP 123] This Court’s notice proposed summary
 1 affirmance. Defendant filed a memorandum in opposition to the proposed disposition.

 2 We are not persuaded by Defendant’s arguments, and we affirm.

 3        Defendant continues to argue that the district court abused its discretion in

 4 refusing to grant her a new trial on the basis that she was denied her constitutional

 5 right to a fair and impartial trial. [MIO 3] This Court proposed to conclude that

 6 Defendant failed to meet her burden of presenting evidence to show that any

 7 extraneous information was actually communicated to the jury. Defendant concedes

 8 that no evidence was introduced during the motion for new trial regarding the content

 9 of the juror’s phone conversation or whether other jurors were exposed to extraneous

10 information. [MIO 6] Nevertheless, Defendant asserts pursuant to State v. Franklin,

11 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-

12 60, 712 P.2d 1, 4-6 (Ct. App. 1985), that she demonstrated by competent evidence that

13 extraneous information relevant to her case could have potentially reached the jury,

14 and therefore she is entitled to a new trial or remand for an evidentiary hearing. [MIO

15 6] However, under State v. Sena, 105 N.M. 686, 688, 736 P.2d 491, 493 (1987), the

16 mere chance that the extraneous information might have reached the jury is

17 insufficient. Defendant was required to show that the extraneous information actually

18 reached the jury. Id.


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 1        Defendant further submits, pursuant to Franklin and Boyer, that the district

 2 court abused its discretion in refusing to order, rather than recommend, further mental

 3 health treatment while incarcerated. [MIO 6] See Franklin, 78 N.M. at 129, 428 P.2d

 4 at 984; Boyer, 103 N.M. at 658-60, 712 P.2d at 4-6. Defendant argues that the

 5 diagnostic report itself established that further assessment, evaluation and treatment

 6 was warranted, and therefore, the district court clearly abused its discretion in merely

 7 recommending and not ordering treatment. [MIO 7] It appears from the record that

 8 Defendant sought further evaluation by a physician from LC Behavioral Medicine.

 9 [RP 121] The district court has broad discretion in determining whether to order a

10 second diagnostic evaluation. See State v. Mireles, 2004-NMCA-100, ¶ 41, 136 N.M.

11 337, 98 P.3d 727. Based on the results of the first diagnostic evaluation ordered by

12 the district court [RP 103], the judgment appropriately recommended further mental

13 health treatment for Defendant while incarcerated. [RP 125] Defendant cannot

14 demonstrate what a second diagnostic evaluation would have accomplished.

15 Consequently, we hold that Defendant failed to meet her burden of demonstrating an

16 abuse of discretion. See State v. Greene, 92 N.M. 347, 349, 588 P.2d 548, 550 (1978)

17 (“Judicial discretion is abused if the action taken by the trial court is arbitrary or




                                              3
1 capricious. Such abuse of discretion will not be presumed; it must be affirmatively

2 established.” (citations omitted)).

3        For these reasons, and those stated in the notice of proposed disposition, we

4 affirm the district court’s judgment and sentence.

5        IT IS SO ORDERED.


6                                        __________________________________
7                                        JONATHAN B. SUTIN, Chief Judge

8 WE CONCUR:



9 _______________________________
10 RODERICK T. KENNEDY, Judge



11 _______________________________
12 MICHAEL E. VIGIL, Judge




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