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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                             NO. 27,302

 5 JOE CARABAJAL,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Ralph D. Shamas, District Judge


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

11 Joel Jacobsen, Assistant Attorney General
12 Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Eleanor Brogan, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant
 1                            MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3        Defendant appeals the district court’s judgment and sentence, entered pursuant

 4 to a jury trial, convicting him on two counts of criminal sexual penetration of a child

 5 under the age of thirteen and one count of criminal sexual contact of a child under the

 6 age of thirteen. On appeal, Defendant raises the following issues that: (1) his trial

 7 counsel erred in multiple instances, that either individually or cumulatively establish

 8 a prima facie showing that he received ineffective assistance of counsel; (2) the

 9 district court erred by denying Defendant’s motion for disclosure of medical records

10 and records from the New Mexico Children, Youth and Families Department (CYFD);

11 (3) Defendant was denied a fair trial when the State’s expert was allowed to testify

12 beyond her observations and concluded that the observed injuries of the alleged

13 victims were the result of sexual penetration; and (4) insufficient evidence was

14 presented to support his convictions. For the reasons discussed below, we are not

15 persuaded that Defendant has established reversible error. Accordingly, we affirm.




                                              2
 1 1.     Ineffective Assistance of Counsel

 2 A.     Standard of Review

 3        When an ineffective assistance claim is first raised on direct appeal, we
 4        evaluate the facts that are part of the record. If facts necessary to a full
 5        determination are not part of the record, an ineffective assistance claim
 6        is more properly brought through a habeas corpus petition, although an
 7        appellate court may remand a case for an evidentiary hearing if the
 8        defendant makes a prima facie case of ineffective assistance.

 9 State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

10        To establish a prima facie case of ineffective assistance of counsel,
11        Defendant must show that (1) counsel’s performance was deficient in
12        that it fell below an objective standard of reasonableness; and (2) that
13        Defendant suffered prejudice in that there is a reasonable probability
14        that, but for counsel’s unprofessional errors, the result of the proceeding
15        would have been different.

16 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal

17 quotation marks and citation omitted).

18        “If any claimed error can be justified as a trial tactic or strategy, then the error

19 will not be unreasonable.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146

20 P.3d 289; see also Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666

21 (“On appeal, we will not second guess the trial strategy and tactics of the defense

22 counsel.” (internal quotation marks and citation omitted)). “A claim of ineffective

23 assistance of counsel does not present an opportunity for hindsight review”; however,


                                               3
 1 we look at the totality of the evidence regarding representation, not just whether the

 2 strategy was successful. State v. Reyes, 2002-NMSC-024, ¶ 46, 132 N.M. 576, 52

 3 P.3d 948 (internal quotation marks and citation omitted). With these principles in

 4 mind, we consider the following claims of ineffective representation made by

 5 Defendant.

 6 B.     The Failure to Seek Severance of the Charges

 7        Defendant maintains that defense counsel was ineffective based on the failure

 8 to file a motion to sever the charges so that he would have separate trials for the two

 9 alleged victims, hereinafter referred to as C.C. and M.D. The State had charged

10 Defendant with two counts of criminal sexual penetration involving C.C., and one

11 count each of criminal sexual contact involving C.C. and M.D. Defendant contends

12 that he satisfies both elements of the ineffective assistance claim because “there is no

13 conceivable trial strategy for not moving to sever” and he was prejudiced by this

14 inaction. We believe that the facts of this case and the defense strategy advanced by

15 defense counsel indicate that there was a plausible, reasonable basis for trying all of

16 the charges in a single trial.

17        Here, there is no contention that the charges were improperly joined in the first

18 instance. See Rule 5-203(A) NMRA. Instead, Defendant claims that defense counsel


                                              4
 1 should have sought severance under Rule 5-203(C) which states, in pertinent part, as

 2 follows:

 3                If it appears that a defendant or the state is prejudiced by a joinder
 4        of offenses or of defendants by the filing of a statement of joinder for
 5        trial, the court may order separate trials of offenses, grant a severance of
 6        defendants, or provide whatever other relief justice requires.

 7        In considering whether to seek severance of the charges in this case, defense

 8 counsel is presumed to know that the court’s decision whether to grant a motion for

 9 severance is discretionary, “and one test for abuse of discretion is whether prejudicial

10 testimony, inadmissible in a separate trial, is admitted in a joint trial.” State v. Jones,

11 120 N.M. 185, 186, 899 P.2d 1139, 1140 (Ct. App. 1995); see also State v. Ruiz,

12 2001-NMCA-097, ¶ 11, 131 N.M. 241, 34 P.3d 630 (“A defendant is unfairly

13 prejudiced when joinder allows the jury to consider evidence that would not otherwise

14 be admissible under Rule 11-404(B) . . ., if the trials were severed.”). We agree with

15 Defendant’s argument that a motion for severance likely would have been granted,

16 and the initial impression is that defense counsel’s inaction constituted a prima facie

17 showing of ineffective assistance of counsel.                 See State v. Gallegos,

18 2007-NMSC-007, ¶¶ 19-36, 141 N.M. 185, 152 P.3d 828 (holding that it is an abuse

19 of discretion to fail to sever charges where evidence pertaining to each charge would

20 not be cross-admissible at separate trials).

                                                5
 1        This first impression, however, gives way after considering the defense theory

 2 that was advanced in this case as set against the evidence before the jury. As indicated

 3 by the district court’s ruling directing verdict on the sole count involving M.D., her

 4 lack of specificity with respect to the time frame of the alleged abuse was fatal as to

 5 that charge. Although it is true, as noted by Defendant, that the jury was unaware of

 6 the reason for the dismissal, defense counsel could have plausibly anticipated the

 7 weakness of M.D.’s testimony for purposes of advancing his overall strategy. The

 8 defense strategy was that the victims, who are stepsisters, had trouble remembering

 9 the facts of the alleged abuse because the stories were not true. Defense counsel

10 wanted the jury to believe that the inconsistencies and lack of specificity in the

11 victims’ stories were consistent with the view that C.C.’s mother told them to fabricate

12 these allegations. Defense counsel maintained that C.C.’s mother had a clear motive

13 for doing this. Because M.D.’s inability to provide a more specific time-frame was

14 consistent with the overall fabrication theory, defense counsel had a plausible reason

15 for allowing the charges to be brought together.

16        In his reply brief, Defendant in effect maintains that this strategy is wrong

17 because the prejudicial effect of admitting the evidence relating to M.D. outweighs

18 any benefit to the defense. Although it might have been a sounder strategy to seek


                                              6
 1 severance in this case, our review is limited to whether the strategy was plausible and

 2 rational. See State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. App.

 3 1992). Here, defense counsel had emphasized Defendant’s puzzlement as to why the

 4 victims would make these allegations and defense counsel offered the jury an answer

 5 to this question by alluding to the motivations of C.C.’s mother. We cannot conclude

 6 that it was irrational to attempt to undermine the more numerous and serious counts

 7 involving C.C. by including the allegations involving M.D. and her involvement in

 8 the alleged conspiracy.

 9 C.     Expert Witness

10        Defendant claims that defense counsel was ineffective based on the failure to

11 consult with or call an expert medical witness to rebut the State’s expert, Dr. Karen

12 Carson, the Esperanza House, Inc. S.A.N.E. examiner. Defendant argues that the

13 “entire defense” depended on discrediting the victims’ stories, rebutting Dr. Carson’s

14 testimony, and having the jury believe that the alleged abuse never occurred.

15         Our Supreme Court has expressly rejected the claim that a failure to introduce

16 the testimony of an expert witness constitutes ineffective assistance of counsel per se.

17 See State v. Vigil, 110 N.M. 254, 258, 794 P.2d 728, 732 (1990) (“We will not

18 substitute our own judgment over trial tactics for the judgment of defense counsel


                                              7
 1 when it is not clear that the defendant was deprived of a meritorious defense because

 2 the judgment of defense counsel was without excuse or justification.”); see also Lytle,

 3 2001-NMSC-016, ¶ 43 (stating that on appeal, the appellate court will not second

 4 guess the trial strategy and tactics of defense counsel). We do not believe that the

 5 record before us is sufficient to support Defendant’s contentions. Specifically, we

 6 cannot assume that any consultation and testimony from an expert would have been

 7 helpful. See Roybal, 2002-NMSC-027, ¶ 19 (stating that when an ineffective

 8 assistance claim is first raised on direct appeal, we evaluate the facts that are part of

 9 the record, and if the facts necessary to a full determination are not part of the record,

10 an ineffective assistance claim is more properly brought through a habeas corpus

11 petition). It is for defense counsel to assess whether a particular expert’s testimony

12 will be helpful, and without a record of the substance of any expert testimony, or

13 whether an expert would have assisted in the defense’s ability to cross-examine Dr.

14 Carson, we will not second guess counsel’s decision.

15 D.     Failure to Call an Important Fact Witness at Trial

16        Defendant next claims that defense counsel should have called Dr. Marble, or

17 should have introduced evidence through the testimony of Detective Yepis,

18 concerning Dr. Marble’s physical examination of C.C. Defense counsel, in his


                                               8
 1 opening statement, told the jury that Detective Yepis would refer to the fact that Dr.

 2 Marble did not find anything indicative of injuries to C.C.’s vaginal area. Dr. Marble

 3 was not called as a witness, and defense counsel did not elicit this information from

 4 Detective Yepis at trial. Defendant maintains that this was inconsistent with defense

 5 counsel’s fabrication strategy.

 6        As observed in the State’s answer brief, defense counsel did not abandon the

 7 issue, but instead of eliciting the information in the same manner referred to in the

 8 opening statement, defense counsel read the following from Detective Yepis’ report

 9 while cross-examining C.C.’s mother: “I heard from Dr. Marble that it did not appear

10 like there was any trauma in [C.C.’s] vagina.” We will not revisit counsel’s decision

11 to present this information to the jury in this manner. See State v. Orosco, 113 N.M.

12 789, 797, 833 P.2d 1155, 1163 (Ct. App. 1991) (“The decision whether to call a

13 witness is a matter of trial tactics and strategy within the control of trial counsel.”),

14 aff'd in part, 113 N.M. 780, 788, 833 P.2d 1146, 1154 (1992).

15 E.     Closing Argument

16        Defendant contends that defense counsel was ineffective based on the failure

17 to object to certain remarks made by the prosecutor during closing argument. These

18 remarks consisted of repeated references to evidence and testimony concerning the


                                               9
 1 alleged abuse of M.D., even though that charge had been dismissed, and the following

 2 statement made by the prosecutor: “we are not trying to dump on [Defendant] and go

 3 for a home run. We haven’t charged him with every conceivable crime, maybe,

 4 possibly committed. We haven’t done that. We are trying to be very reasonable, very

 5 realistic.”

 6        With respect to the remarks related to M.D., we believe the decision not to

 7 object was consistent with the overall defense strategy that the victims had made up

 8 these allegations. Defense counsel could reasonably conclude that the jury would

 9 interpret the references to M.D. as an indication of the State’s weak case with respect

10 to C.C., because it had to rely on M.D.’s allegation, which had been dismissed.

11 Indeed, defense counsel’s closing argument referred to both victims, trying to

12 interlock them in the jurors’ minds for purposes of the fabrication theory and the

13 alleged larger conspiracy being driven by Defendant’s estranged wife.

14        With respect to the prosecutor’s reference to the number of charges brought in

15 this case, we agree with the State that defense counsel could have interpreted this as

16 a comment on the different dates to which C.C. testified, facts that were not only in

17 evidence but were specifically referred to by defense counsel in closing argument in

18 an attempt to undermine C.C.’s credibility. Because the prosecutor’s comments


                                             10
 1 alluded to evidence presented at trial and reasonably addressed a potential jury

 2 concern about why the limited number of charges did not comport with the number

 3 of allegations made, we are not persuaded that defense counsel’s failure to object was

 4 error. See State v. Taylor, 104 N.M. 88, 94, 717 P.2d 64, 70 (Ct. App. 1986) (noting

 5 that remarks by the prosecutor must be based upon the evidence or be in response to

 6 the defendant’s argument); see also State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M.

 7 117, 19 P.3d 254 (“During closing argument, both the prosecution and defense are

 8 permitted wide latitude. . . .”).

 9 F.      Cumulative Effect

10         Defendant claims that the cumulative effect of counsel’s errors establishes

11 ineffective assistance of counsel. “The doctrine of cumulative error requires reversal

12 when a series of lesser improprieties throughout a trial are found, in aggregate, to be

13 so prejudicial that the defendant was deprived of the constitutional right to a fair trial.”

14 State v. Duffy, 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807. However, when

15 there is no error, “there is no cumulative error.” State v. Aragon, 1999-NMCA-060,

16 ¶ 19, 127 N.M. 393, 981 P.2d 1211. As indicated by our analysis above, we do not

17 believe that defense counsel fell below the requisite standard of representation on any

18 of the individual claims raised. It follows that they did not cumulatively add up to


                                                11
 1 prejudice Defendant sufficiently to constitute ineffective assistance of counsel or to

 2 deprive him of his right to a fair trial.

 3 2.     Medical and CYFD Records

 4        Defendant claims that the district court erred in denying his motion for

 5 disclosure of medical records pertaining to alleged gynecological problems and CYFD

 6 records allegedly relating to a prior Esperanza House investigation. In its initial

 7 response to the motion, the district court indicated that it would conduct an in camera

 8 review of the medical records, and, pending review of those records, the motion would

 9 be denied with respect to the CYFD records. The medical records were not released

10 after the in camera review, and the issue of the CYFD records was not revisited. As

11 such, we cannot consider Defendant’s issue as it pertains to the CYFD records

12 because they were never made part of the record. See State v. Hunter, 2001-NMCA-

13 078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record present no issue for

14 review.”).

15        Defendant did not designate the sealed medical records on appeal, as required

16 by Rule 12-212(A) NMRA. “It is defendant's burden to bring up a record sufficient

17 for review of the issues he raises on appeal.” State v. Jim, 107 N.M. 779, 780, 765

18 P.2d 195, 196 (Ct. App. 1988). Nevertheless, this Court, on its own motion, ordered


                                               12
 1 the sealed records from the district court for our review. C.C. had an expectation of

 2 privacy in her medical records, and her records were confidential under both Rule

 3 11-504 NMRA and NMSA 1978, Section 14-6-1 (1977). Defendant had argued that

 4 these records were necessary to develop evidence that C.C. had intermittent urinary

 5 tract infections and possible other gynecological problems. Defendant hoped that the

 6 records would help rebut Dr. Carson’s testimony that C.C. had been penetrated.

 7 Based on our independent review, we conclude that the district court did not abuse its

 8 discretion in refusing to order disclosure of these records. See State v. Desnoyers,

 9 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968 (observing that discovery rulings

10 are reviewed under an abuse of discretion standard) abrogated on other grounds in

11 State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144. These records were

12 not necessary for Defendant to explore and present to the jury the basic theory that

13 C.C.’s physical injuries might have another etiology. With respect to Defendant’s

14 argument that the records might have been necessary to show prior sexual abuse and

15 a resulting knowledge of adult sexual behavior, this claim relates to the CYFD

16 records, which, as we have stated, are not subject to our review.




                                             13
 1 3. Dr. Carson’s Testimony

 2        Defendant contends that Dr. Carson’s testimony was in violation of State v.

 3 Alberico, 116 N.M. 156, 861 P.2d 192 (1993). In that case, the Supreme Court ruled

 4 that an expert may give testimony regarding symptoms that the victim suffers that are

 5 consistent with sexual abuse. The expert may not testify that the symptoms were in

 6 fact caused by sexual abuse. See id. at 176, 861 P.2d at 212. Testimony that crosses

 7 this line vouches too much for the credibility of the victim and encroaches on the

 8 province of the jury to determine credibility. See id.

 9        The portions of the testimony cited by Defendant support the conclusion that

10 Dr. Carson did not cross the line established in Alberico. When asked if her findings

11 relating to C.C. were consistent with sexual abuse, Dr Carson answered: “Yes. In my

12 notes I wrote that [C.C.’s] exam is consistent with her history and that there is definite

13 evidence of child sexual abuse.” Although at first blush the reference to “her history”

14 might appear problematic, we construe this as a reference to how the patient was

15 presented to the medical provider, and not a comment vouching for C.C.’s credibility.

16 In light of the fact that the prosecutor had limited the question to whether the findings

17 were “consistent” with abuse, and that Dr. Carson’s answer was framed within the

18 concept of consistency as well, we believe that it was the sort of testimony expressly


                                               14
 1 permitted by Alberico. Id. at 175, 177-78, 861 P.2d at 211, 213-14. It follows that Dr.

 2 Carson’s testimony that the physical evidence observed in M.D. was consistent with

 3 abuse did not cross the Alberico threshold.

 4 4.     Sufficiency of the Evidence

 5        Defendant challenges the sufficiency of the evidence to support his convictions.

 6 When reviewing a sufficiency of the evidence claim, we conduct a two-part test. First,

 7 “we must view the evidence in the light most favorable to the verdict, indulging all

 8 reasonable inferences and resolving all conflicts in the evidence in favor of the

 9 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

10 Then we must “make a legal determination of whether the evidence viewed in this

11 manner could justify a finding by any rational trier of fact that each element of the

12 crime charged has been established beyond a reasonable doubt.” State v. Apodaca,

13 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

14 omitted). We do not re-weigh the evidence or substitute our judgment for the

15 judgment of the fact finder as long as there is sufficient evidence to support the

16 verdict. See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.

17 Sufficient evidence is defined as “such relevant evidence as a reasonable mind might

18 accept as adequate to support a conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25,


                                             15
 1 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). We

 2 emphasize that we do not consider the merit of evidence that may have supported a

 3 different result. See State v. Kersey, 120 N.M. 517, 520, 903 P.2d 828, 831 (1995);

 4 cf. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (holding that

 5 contrary evidence does not warrant reversal because the jury is free to reject a

 6 defendant’s version of events).

 7        The sufficiency of the evidence is measured against the jury instructions,

 8 because they become the law of the case. See State v. Smith, 104 N.M. 729, 730, 726

 9 P.2d 883, 884 (Ct. App. 1986). To find Defendant guilty of Count One, criminal

10 sexual penetration of a child, the evidence had to show that Defendant caused C.C. to

11 engage in sexual intercourse on, about, or between November 8, 2004, and October

12 9, 2005. To find Defendant guilty of Count Two, criminal sexual penetration of a

13 child, the evidence had to show that Defendant caused the insertion, to any extent, of

14 his finger into the vagina of C.C., on, about, or between November 8, 2004, and

15 October 9, 2005. To find Defendant guilty of Count Three, criminal sexual contact

16 of a child, the evidence had to show that Defendant touched or applied force to the

17 unclothed groin of C.C, or caused C.C. to touch the unclothed penis of Defendant, on,




                                             16
 1 about, or between November 8, 2004, and October 9, 2005. There is no dispute

 2 concerning the age element of the crimes.

 3        Based on our review of the record, principally the testimony of C.C. and Dr.

 4 Carson, and looking at this evidence in the light most favorable to the State, we

 5 conclude that there is more than ample evidence to support the conclusion that the

 6 sexual abuse occurred. Perhaps recognizing that the evidence is sufficient in this

 7 respect—that the abuse took place—Defendant’s argument on appeal focuses on

 8 whether the evidence was sufficient to show that the abuse took place in the charged

 9 time frame. We decline the State’s invitation to consider the issue waived based on

10 an alleged inadequate factual recitation in Defendant’s brief-in-chief.

11        As indicated, the State had charged that these incidents occurred sometime

12 between November 8, 2004, and October 9, 2005. At the time of the August 2006

13 trial, C.C. was a couple days shy of her ninth birthday and was about to enter fourth

14 grade. The October 2005 date in the jury instructions refers to the date that C.C. first

15 alerted her mother and authorities to the abuse. At trial, C.C. testified that the abuse

16 occurred in second and third grade.        She specifically remembered two dates,

17 November 8 and 10, which the jury could reference back from October 2005 to place

18 the incidents on November 8 and 10 of 2004. She testified that the third incident


                                              17
 1 occurred in the summer. Because C.C. had testified that the incidents occurred in

 2 second and third grade, the jury could reasonably conclude that the third incident

 3 occurred in the summer between second and third grade, or the summer of 2005.

 4 Therefore, we conclude that there was sufficient evidence to show that all three

 5 incidents took place between November 8, 2004, and October 9, 2005. To the extent

 6 that some of C.C.’s testimony was inconsistent with respect to the dates in question,

 7 this was a matter to be resolved by the factfinder, which in this case was the jury. See

 8 State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct. App. 1992).

 9 CONCLUSION

10        For the reasons set forth above, we affirm Defendant’s convictions.

11        IT IS SO ORDERED.



12
13                                         MICHAEL D. BUSTAMANTE, Judge

14 WE CONCUR:


15
16 CYNTHIA A. FRY, Chief Judge


17
18 JONATHAN B. SUTIN, Judge

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