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

 2 Opinion Number: ______________

 3 Filing Date: November 29, 2016

 4 NO. 33,692

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 JORGE BERNARDO HUERTA-CASTRO,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Fernando R. Macias, District Judge

12 Hector H. Balderas, Attorney General
13 Maris Veidemanis, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 Mary Barket, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 KENNEDY, Judge.

 3   {1}   Defendant was convicted of twelve counts of criminal sexual penetration of a

 4 minor. Six of these counts of the indictment pertained to one child, and six to another.

 5 Otherwise, all twelve charges in the indictment were exact duplicates with precisely

 6 the same language. Defendant’s motion for a bill of particulars was denied prior to

 7 trial; his motion for a directed verdict was denied. Defendant now asserts on appeal

 8 that these identical counts violated his right to due process and subjected him to

 9 double jeopardy. We agree. As such, ten of the twelve charges against Defendant are

10 dismissed. The remaining two charges are supported by sufficient evidence and

11 would be affirmed but for cumulative error that caused prejudice to Defendant.

12 Reversed and remanded for retrial on one count as to each victim.

13 I.      BACKGROUND

14   {2}   Defendant was indicted on twelve counts of criminal sexual penetration of a

15 minor (CSPM). Six of the twelve counts read as follows:

16         [O]n, about or between August 15, 2012, and October 13, 2012, in Dona
17         Ana County, the above-named defendant did cause [Child 1] to engage
18         in sexual intercourse and/or caused the insertion of any object into the
19         intimate part of [Child 1], and [Child 1] was twelve years of age or
20         younger, a first degree felony, contrary to § 30-9-11(D)(1), NMSA
21         1978.
 1 In the remaining six counts, the first two references to Child 1’s name were replaced

 2 with Child 2’s name.1 Other than the name substitution, all twelve counts were

 3 indistinguishable. The State acknowledged that all references to Child 1 in counts

 4 seven through twelve should have referenced Child 2, and it later amended its

 5 indictment to correct the naming error on counts seven through twelve, resulting in

 6 two sets of six identical counts as to each child.

 7 Motion for a Bill of Particulars (Statement of Facts)

 8   {3}   Defendant filed a motion for a bill of particulars. The district court held a

 9 hearing on the motion, during which Defendant requested more particularity on each

10 of the twelve counts. Specifically, defense counsel requested details regarding the

11 time, date, location, and actions alleged in each count of the indictment.

12 Characterizing the indictment as a “shotgun indictment,” defense counsel explained

13 to the district court that it was unclear what he was defending against in each count,

14 and as such, he could not effectively defend against any of the counts. The inability

15 to formulate a defense revolved particularly around the time of day of the incidents,

16 whether Defendant might have been at work, what day or week it was, or even

17 whether he was around at these times.



        1
18        The children in this case have the same initials for their first and last names.
19 We will identify them as Child 1 and Child 2 throughout this opinion.

                                              2
 1   {4}   The State conceded that it could not provide specific dates because of the

 2 young ages of Children, but told the court that Children could narrow the incidents

 3 by the time of day and in relation to other events. Additionally, the State pointed out

 4 that it could provide a beginning and end date for the abuse and could specify that it

 5 took place in the home. The State also asserted that it had physical evidence to show

 6 when the last incident occurred.

 7   {5}   The district court took note of the young age of Children—six and eight years

 8 old at the time of the incidents—and pointed out that the inability of Children to

 9 pinpoint a specific date did not reflect a deficiency in the indictment. The district

10 court based its interpretation of the indictment on its reliance on the State’s assertion

11 that witness interviews yet to occur would provide evidence that twelve different

12 incidents occurred. The district court concluded that the issues with the indictment

13 could be resolved through the subsequent interviews and denied Defendant’s motion.

14 The district court noted that if, after conducting the interviews, Defendant could

15 provide additional argument regarding the issue, he could file further motions.

16 Defendant did not file any other motion regarding deficiencies in the indictment.

17   {6}   At trial, the State presented testimony from Child 1, Child 2, their mother

18 (Mother), their grandmother (Grandmother), the investigating detective, and the

19 forensic interviewer. Defendant presented testimony from a pediatrician. At the time


                                               3
 1 of the alleged abuse, Defendant lived with his girlfriend, Mother, in Las Cruces, New

 2 Mexico with Child 1 and Child 2. Mother would leave for work early in the mornings,

 3 and Defendant would wake Children and get them ready for school. At trial, Child 1

 4 and Child 2 testified to Defendant putting his penis and fingers in each of their

 5 vaginas and anus while their sibling was showering. Both Child 1 and Child 2

 6 testified that Defendant acted in this way more than six times.

 7   {7}   Child 2 testified that Defendant first did these acts to her on “a day before

 8 school started.” The State’s questioning regarding this incident, and Child 2’s

 9 responses thereto, were specifically limited to Defendant’s actions toward her alone.

10 It was not proven when school started, nor that August 15, 2012, was a date relevant

11 to the start of school. Child 2 did not remember when the last incident of this sort

12 occurred, and Child 1 gave no testimony regarding a final incident.

13   {8}   The State presented some evidence that the alleged abuse ended on October 13,

14 2012, through the testimony of Grandmother who stated that on that date, Child 1’s

15 genital area was red, irritated, and had a rash. Grandmother testified that Child 2 also

16 reported having been abused, though it is unclear when she made this allegation, and

17 Grandmother did not see similar injuries on Child 2. After Grandmother told Mother

18 about the rash and abuse, Mother took Children to the emergency room on October

19 13, 2012. Children were not examined at that time, but police were dispatched.


                                              4
 1   {9}    Detective Martinez testified that, based on his interview with Mother while at

 2 the hospital, the last incident had occurred six to eight days earlier. However,

 3 Detective Martinez later clarified that during subsequent interviews with Mother, he

 4 discovered that the last incident had actually occurred fourteen days before Children

 5 were taken to the hospital.2 Children were taken to a forensic interview on October

 6 14, 2012, and they were later examined by a pediatrician on October 30, 2012. The

 7 pediatrician indicated that her examination of Children did not reveal any injuries,

 8 and that her findings did not necessarily mean that Children were not sexually

 9 abused.

10   {10}   Once the State rested its case, defense counsel made a motion for directed

11 verdict, pointing out that the State had failed to produce any evidence that the events

12 occurred in the charging period or that six separate incidents occurred as to each

13 child. The district court denied the motion but acknowledged that Defendant’s

14 argument had merit because no evidence supported any crime occurring with regard

15 to the charged date of August 15, 2012, and allowed Defendant to argue to the jury

16 that no evidence suggested that the abuse took place within the charging period. The

17 jury found Defendant guilty of all twelve counts of CSPM. Defendant appealed to this

18 Court. Other facts will be discussed as needed in the course of the opinion.


            2
19              Mother’s testimony did not lend any clarification to this discrepancy.

                                                  5
 1 II.      DISCUSSION

 2   {11}   Defendant alleges that the charging documents in this case violated his right

 3 to due process and right to be free from double jeopardy because they lacked the

 4 requisite level of specificity. Defendant also asserts that there is insufficient evidence

 5 to support his conviction on all twelve counts. We first address Defendant’s argument

 6 regarding the specificity of the charging documents. Finding reversible error on that

 7 issue, we then decide whether sufficient evidence existed to support all or any of the

 8 counts in order to satisfy double jeopardy. Finally, we evaluate Defendant’s claims

 9 that he was prejudiced by the State’s failure to turn over exculpatory evidence in a

10 timely manner or by cumulative error.

11 A.       Adequacy of Notice From Cookie-Cutter Counts and Due Process

12   {12}   Defendant first asserts that the district court erred in not granting his motion

13 for a bill of particulars3 prior to trial, and that at the end of trial, the district court

14 erred in not dismissing charges for the lack of differentiation between them.

15   {13}   “The object of a bill of particulars in criminal cases is to enable the defendant

16 to properly prepare his defense, and, to achieve that fundamental purpose, it must

17 state as much as may be necessary to give the defendant and the court reasonable


          3
18          While the terms “bill of particulars” and “statement of facts” are used
19 interchangeably in our jurisprudence, we note that “statement of facts” is the term
20 adopted in our Rules of Criminal Procedure. See Rule 5-205(C) NMRA.

                                                6
 1 information as to the nature and character of the crime charged[.]” State v. Mosley,

 2 1965-NMSC-081, ¶ 4, 75 N.M. 348, 404 P.2d 304 (citation omitted). In cases

 3 involving child victims, allegations of criminal behavior often lack specificity as to

 4 the date, location, or details of a particular incident within the period of time for

 5 which a defendant is charged. See State v. Vargas, 2016-NMCA-038, ¶ 39, 368 P.3d

 6 1232. We recognize that because the State has a compelling interest in protecting

 7 child victims, our courts can be “less vigorous in requiring specificity as to time and

 8 place when young children are involved than would usually be the case where an

 9 adult is involved.” Id. ¶ 40 (internal quotation marks and citation omitted). This

10 flexibility does not, however, permit the State to proceed based on a lack of adequate

11 notice of the conduct upon which an indictment is based.

12   {14}   Procedural due process requires “the State to provide reasonable notice of

13 charges against a person and a fair opportunity to defend[.]” State v. Baldonado,

14 1998-NMCA-040, ¶ 21, 124 N.M. 745, 955 P.2d 214. This includes a requirement

15 that the State provide defendants with a reasonable ability to protect themselves from

16 being convicted more than once for the same behavior. State v. Dominguez, 2008-

17 NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834. In sum, the State is able to proceed

18 with prosecution only for those acts for which it is able to provide a factually distinct

19 basis. Id. ¶¶ 10-11. A charging defect encompassed by cookie-cutter allegations


                                               7
 1 within a broad time period operates in two ways to deny a defendant’s rights. It gives

 2 rise to the possibility that a defendant might suffer double jeopardy in his initial trial

 3 by being convicted and punished multiple times on undifferentiated counts for what

 4 might have been the same offense, and it renders a defendant unable to plead a

 5 specific conviction or acquittal as a bar to future prosecution. Id. ¶ 9. Procedurally,

 6 Defendant exercised his rights in the three ways in which he could most efficiently

 7 raise the issue of lack of specificity in the charges: (1) pre-trial through a motion for

 8 a statement of facts under Rule 5-205(C); (2) at the close of the State’s case in a

 9 motion for directed verdict; and (3) at the close of trial, in a motion to dismiss for lack

10 of sufficient evidence to support all of the counts charged in the indictment. We

11 address each in turn.

12 B.       A Statement of Facts Was Improperly Denied; Reversal Is Required

13   {15}   In this case, the indictment charged six factually undifferentiated acts per

14 victim occurring between two dates, about two months apart. Defendant moved for

15 a bill of particulars, citing Baldonado, 1998-NMCA-040, ¶¶ 26-29, and preserving

16 the issue for this appeal. See State v. Altgilbers, 1986-NMCA-106, ¶ 46, 109 N.M.

17 453, 786 P.2d 680 (holding that a defendant who does not raise lack of notice by way

18 of requesting a statement of facts before trial has waived a claim to lack of notice).

19 Defense counsel detailed the vagueness and the effect on his inability to formulate a


                                                8
 1 defense. Specifically, Defendant could not ascertain from the charging document

 2 around what time of day things might have happened, or relating whether Defendant

 3 was at work, what day or week it was, or where he was during these times. As to the

 4 incidents charged, counsel said, “they all happened at basically the same time.” The

 5 motion hearing took just over ten minutes before the district court denied Defendant’s

 6 motion for a bill of particulars.

 7   {16}   As defense counsel acknowledged that the indictment’s lack of specificity

 8 could be due to Children’s inability to provide more specific information, the court

 9 asked, “Then how do I make that occur; that’s not a deficiency in the indictment, that

10 goes to kind of the weight of the evidence that would be presented by the State.” With

11 this basis for its decision, the district court mistakenly shifted the focus of our law

12 from a statement of facts that “give[s] the defendant and the court reasonable

13 information as to the nature and character of the crime charged,” Mosley, 1965-

14 NMSC-081, ¶ 4, to the evidence the State would subsequently provide by way of

15 discovery and at trial to prove the specific allegations. The remedy for an erroneous

16 failure to provide adequate information as to the nature of the charges is reversal,

17 State v. Graves, 1963-NMSC-183, ¶ 12, 73 N.M. 79, 385 P.2d 635, and failure to

18 specify individual charges’ factual basis is judged at the time the statement of facts

19 is requested, not whether prejudice might have resulted (or been cured) by trial on the


                                              9
 1 merits. Id. Thus, any error in denying a bill of particulars occurs at the time of denial,

 2 not after evidence is produced at a later time. That principle has not changed,

 3 although Baldonado and Dominguez have since applied this principle to the specific

 4 problem of “the proper balance to be struck between the due process imperative to

 5 provide reasonable notice of charges against a criminal defendant, and the need to

 6 allow the State reasonable leeway in prosecuting crimes committed against children

 7 of tender years.” Baldonado, 1998-NMCA-040, ¶ 1. In Graves, our Supreme Court

 8 noted that the rule for a bill of particulars “would seem to make it mandatory that

 9 certain basic information, not evidence, be furnished.” 1963-NMSC-183, ¶ 11. A

10 district attorney is not required to plead evidence in a bill of particulars. Mosley,

11 1965-NMSC-081, ¶ 4. By emphasizing the possibility of the State eventually

12 producing discovery by way of interviews yet to be conducted, or judging the quality

13 of the indicted charges by the weight of evidence to be produced at trial, the district

14 court applied the incorrect legal standard resulting in the court’s failure to order a

15 statement of facts as required in Baldonado.

16   {17}   Our Supreme Court recognized long ago that a bill of particulars is the “means

17 [through which] the right of an accused to appear and defend and to demand the

18 nature and cause of the accusation against him, contained in [Article II, Section 14]

19 of the New Mexico Constitution, is assured.” State v. Campos, 1968-NMSC-177,


                                               10
 1 ¶ 11, 79 N.M. 611, 447 P.2d 20. In Campos, relying on Graves, our Supreme Court

 2 “recognized that if a defendant asked for a bill of particulars he was entitled to

 3 sufficient information to enable him to prepare a defense.” Campos, 1968-NMSC-

 4 177, ¶ 10. However, as mentioned above, “we have never held that the State may

 5 move forward with a prosecution of supposedly distinct offenses based on no

 6 distinguishing facts or circumstances at all, simply because the victim is a child.”

 7 Dominguez, 2008-NMCA-029, ¶ 10. This is not to say an indictment for indistinct

 8 counts must fail entirely; in State v. Gardner, we held that with respect to counts for

 9 which the children’s statements did not have enough specific information to charge

10 distinct incidents of abuse, the State could still proceed with a prosecution, since

11 evidence of a course of conduct could support a single count of abuse. 2003-NMCA-

12 107, ¶ 28, 134 N.M. 294, 76 P.3d 47.

13   {18}   In Dominguez, the district court took up the defendant’s motion for a bill of

14 particulars to distinguish ten identical charges in the indictment (virtually identical

15 to those in this case) and held the indictment provided sufficient notice to the

16 defendant only because the bill of particulars filed by the State after the indictment

17 described separate incidents. We held that the court properly dismissed five counts

18 that could not be linked to a specific incident of abuse. 2008-NMCA-029, ¶¶ 10-12.

19 We held in Dominguez, based on Gardner, 2003-NMCA-107, ¶¶ 26-28, that the


                                              11
 1 charging of multiple acts in a period of time without factual differentiation between

 2 incidents or offenses permits no more than a single charge based on a course of

 3 conduct. See Dominguez, 2008-NMCA-029, ¶ 10. We carried this rule forward in

 4 State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, to hold that two

 5 indistinguishable counts of vaginal CSPM and two of anal CSPM violated the

 6 defendant’s rights. In Tafoya, we held again that a lack of differentiation between the

 7 counts of penetration necessitated reversal of one count of each because the

 8 duplicative and undifferentiated counts established nothing more than a pattern of

 9 conduct. Id. ¶ 24.

10   {19}   When the need for a bill of particulars is judged at the time the indictment is

11 before the court, evidence that is disclosed later is of no consequence to the district

12 court’s consideration. In Baldonado, we rejected a position that the State’s only

13 obligation was to “frame the charge as it determines appropriate and provide full

14 discovery.” 1998-NMCA-040, ¶ 19. Our Supreme Court noted that the rule for a bill

15 of particulars “would seem to make it mandatory that certain basic information, not

16 evidence, be furnished.” Graves, 1963-NMSC-183, ¶ 11. In this case, the district

17 court explicitly built its denial of Defendant’s motion not on the sufficiency of facts

18 alleged in the charging document, but on the possibility of later discovery of evidence

19 by way of interviews with the victims or other state witnesses to substitute for the


                                              12
 1 paucity of facts available in the charging document itself. This is clearly insufficient

 2 under Baldonado, where the charging document must be evaluated as to its adequacy

 3 prior to, and apart from, speculation on evidence yet to be produced, and certainly

 4 prior to submitting any evidence to a jury. There, our ruling rejected this post-facto

 5 path to justification of an insufficient indictment. See 1998-NMCA-040, ¶ 25 (“Even

 6 granting the defendant discovery of the State’s evidence may not provide adequate

 7 notice if the State, perhaps for tactical reasons, has simply failed to engage in

 8 investigational efforts to narrow the time period. Due process requires more than

 9 simple notice of the prosecution’s evidence in these circumstances.”). The district

10 court erred in denying the bill of particulars based on the occurrence of subsequent

11 witness interviews.

12   {20}   Accordingly, in Baldonado we held that each case requires examination by the

13 district court on a count-by-count basis as to whether an indictment is reasonably

14 particular with respect to the time of the offense. Id. ¶ 26. In other words,

15          what is required is an especially diligent scrutiny of the facts of the
16          incident as they may be disclosed. The aim is to narrow the time frame
17          of the occurrence as complained of—if not to the extent of an exact date
18          or dates, then possibly in respect of seasons of the year, or incidents in
19          the victim’s life such as a death in the family, or a change in a family
20          member’s job routine, or the beginning of the school year or of vacation
21          time or of extracurricular activities. When the trial court is satisfied that
22          these sources of information have been exhausted, it will then be in a
23          position to strike the necessary balance to determine whether “fair
24          notice” has been given.

                                                 13
 1 Id. ¶ 28 (internal quotation marks and citation omitted). Baldonado set out an

 2 extensive outline for the process by which a district court should assess allegations

 3 of insufficient specificity in the charging document. Id. ¶¶ 26-29.

 4   {21}   The district court was obliged, but did not attempt, to analyze the sufficiency

 5 of the indictment based on the facts underlying the charges according to the analytical

 6 framework we dictated in Baldonado, but moved the problem down the road by

 7 relying on the possibility that further witness interviews might produce relevant

 8 information, and on Defendant’s ability to question the weight of the State’s evidence

 9 at trial based on any lack of temporal specificity. This is the root of the district court’s

10 first error. In Baldonado, we reversed and remanded to the district court, requiring it

11 to apply the method we adopted to determine whether the indictment was reasonably

12 particular. Id. ¶¶ 29-33.

13   {22}   In Dominguez, we affirmed the district court’s culling of inadequate counts in

14 the charging document when it used the method outlined in Baldonado. Under

15 Dominguez’s more strict rule, it is a fair view that the charges in Defendant’s

16 indictment here are facially based on courses of conduct over a two-month period,

17 and not “anchored to particular offenses” supporting no more than one count for each

18 child victim. 2008-NMCA-029, ¶ 8. It is clear that the district court’s failure to order

19 the State to produce a bill of particulars to address the insufficiency of the indictment


                                                14
 1 to charge specific and distinct offenses violated Defendant’s rights to due process and

 2 requires reversal of five of Defendant’s convictions. The sixth count as to each victim

 3 is sufficient in that it reflects Defendant’s alleged course of conduct.

 4 B.       Sufficiency of the Evidence

 5   {23}   Based on our reversal, we must address Defendant’s argument that sufficient

 6 evidence did not support his convictions.

 7   {24}   In reviewing the sufficiency of evidence on appeal, we consider the evidence

 8 presented at trial in the light most favorable to the guilty verdict, indulging all

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

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

11 The evidence supporting a conviction is sufficient when “substantial evidence of

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

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

14 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks

15 and citation omitted). Substantial evidence is that which a reasonable mind accepts

16 as adequate to support a conclusion. State v. Arrendondo, 2012-NMSC-013, ¶ 10, 278

17 P.3d 517. The jury instructions given in this case required the State to prove beyond

18 a reasonable doubt that Defendant “caused [Children] to engage in sexual intercourse

19 and/or anal intercourse, or caused the insertion to any extent, of his penis and/or


                                             15
 1 fingers into the vagina and/or anus of [Children],” that Children were “under the age

 2 of thirteen,” and that the acts happened in New Mexico on or between August 15,

 3 2012 and October 13, 2012. See UJI 14-957 NMRA. They were differentiated only

 4 insofar as they gave the name of each child in six instructions per child. They

 5 combined two types of intercourse and sexual conduct (“sexual intercourse and/or

 6 anal intercourse”) in the same count. A trial court has a duty “to withdraw a case from

 7 the jury and direct a verdict for a defendant when the State has failed to come forward

 8 with substantial evidence that the defendant committed the offense charged.” State

 9 v. Maes, 2007-NMCA-089, ¶ 22, 142 N.M. 276, 164 P.3d 975 (internal quotation

10 marks and citation omitted).

11 1.       Pattern of Conduct

12   {25}   Children testified as to a pattern of conduct where Defendant would put his

13 penis and fingers in each child’s vagina and anus before she went to school in the

14 mornings. The testimony revealed Defendant did this to both Child 1 and Child 2.

15 Children testified that Defendant did this more than six times, with only one instance

16 tied to a potentially ascertainable but unproven date (the first day of school). No other

17 evidence tied a single incident to a certain time or place. Children were able to

18 describe an erect male penis as well as ejaculation, and testimony was given that

19 children of that age would not have been able to do so without having seen it before.


                                              16
 1 Undifferentiated multiple acts against a victim within a period of time is evidence

 2 sufficient under Dominguez to support a conviction on one count per child for a

 3 pattern of conduct.

 4   {26}   Child 1 provided no testimony at trial regarding any specific instances of

 5 abuse. In fact, when the State asked her about a specific incident—the putative last

 6 one before the incidents were reported—she could not remember and did not provide

 7 any details regarding what occurred, timing, or location. Child 2 also did not

 8 remember any specific details about a last incident of abuse or when it occurred.

 9 Grandmother testified to irritation on Child 1’s genitals that she discovered on

10 October 13, 2012, prior to the trip to the hospital that prompted Children to disclose

11 the abuse. However, Children were not examined at all when at the hospital, and

12 Children were not physically examined until two and a half weeks after Children were

13 taken to the hospital to be examined by a pediatrician who found no physical signs

14 of abuse on either child. Thus, no injuries existed to tie to any proximate act of abuse,

15 either as a cause of injury, or with regard to the timing of abuse. The pediatrician

16 testified that her finding was no indication that abuse had not taken place and that

17 knowledge of such things is common in cases where abuse had occurred. The

18 pediatrician also testified that Children’s descriptions to her of sexual behavior would

19 not, in her belief, be possible from girls of Children’s ages without some trauma


                                              17
 1 having occurred, and that one of the girls described “mixed emotions of being afraid.”

 2 While this testimony corroborates the existence of abuse, it still supports nothing

 3 more than a general count for Defendant’s course of conduct with regard to Child 1.

 4   {27}   Child 2’s responses about the day before school started were specifically

 5 limited to Defendant’s actions toward her alone, and did not involve Child 1. Again,

 6 the crime attached to the date was not proven because the date school started was not

 7 proven to be within the charging period stated in the indictment.

 8   {28}   Child 2 had no recollection as to a specific final incident of abuse, although the

 9 State attempted to tie the end of the period in which abuse occurred to October 13,

10 2012, when Grandmother observed irritation on Child 1’s genital area, and Mother

11 took Children to the emergency room. Grandmother testified that this was the second

12 instance of such irritation, having seen a similar outbreak a month previously.

13 Detective Martinez testified that, according to interviews with Mother, she told him

14 at the hospital that the last incident had occurred either six to eight days prior to the

15 hospital visit, or as stated in a later interview, actually “up to fourteen days” before

16 Children were taken to the hospital on October 13, 2012. As to this or other instances

17 of abuse, Grandmother did not check Child 2 for similar injuries to those she reported

18 with regard to Child 1. This testimony again supports no more than a single “course

19 of conduct” count against Defendant. To allow counts relating to specific alleged


                                                18
 1 occurrences to be decided by a jury without sufficient evidence would leave a jury

 2 unable to distinguish between any single act and the general course of conduct, giving

 3 rise to the double jeopardy problem of possible multiple convictions for the same act.

 4   {29}   For lack of specificity as to time, date, place, or other distinguishing facts, the

 5 testimony presented at trial supported no more than one count as to each child for the

 6 pattern of conduct that included the six alleged incidents per child, and the district

 7 court should have directed a verdict and allowed no more than those two counts—one

 8 for each victim—to go to the jury based on a pattern of conduct. See State v. Chavez,

 9 2008-NMCA-126, ¶ 23, 145 N.M. 11, 193 P.3d 558, rev’d on other grounds,

10 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891; State v. Castañeda, 2001-NMCA-

11 052, ¶ 15, 130 N.M. 679, 30 P.3d 368 (holding that one continuous act amounting to

12 child abuse not involving harm to multiple victims supports only one count; where

13 harm occurs, “it is entirely appropriate to charge the perpetrator with a separate count

14 . . . for each victim”).

15   {30}   We conclude that there was sufficient evidence presented at trial to support

16 only two of the twelve counts brought against Defendant, and those based only upon

17 a course of conduct with regard to each child.

18 C.       Brady Violations

19   {31}   Defendant argues that the State engaged in misconduct by failing to disclose


                                                19
 1 evidence that was material to his defense. Defendant properly preserved this issue by

 2 making a timely objection at trial. In a motion to dismiss, defense counsel pointed to

 3 two instances in which the State failed to provide material evidence that was

 4 favorable to the defense. Defendant’s first claim of error is that the State failed to

 5 either acknowledge the existence of or provide copies of a report written by the

 6 pediatrician who examined Child 1 and Child 2 until just before trial started.

 7 Defendant’s second claim of error is that the State did not disclose that Mother had

 8 applied for a visa that, because of her participation in this case and cooperation with

 9 law enforcement, would allow her to remain in the country legally during the

10 pendency of this suit. We examine each assertion in turn.

11 1.       Standard of Review

12   {32}   In New Mexico, an alleged Brady violation equates to a charge of prosecutorial

13 misconduct, which appellate courts review for an abuse of discretion. State v. Trujillo,

14 2002-NMSC-005, ¶¶ 48, 50, 131 N.M. 709, 42 P.3d 814. As such, we will affirm the

15 district court’s decision “unless its ruling was arbitrary, capricious, or beyond

16 reason.” State v. Turrietta, 2013-NMSC-036, ¶ 35, 308 P.3d 964 (alteration, internal

17 quotation marks, and citation omitted); see Case v. Hatch, 2008-NMSC-024, ¶ 47,

18 144 N.M. 20, 183 P.3d 905 (noting that “the trial court is in the best position to

19 evaluate the significance of any alleged prosecutorial errors” (internal quotation


                                              20
 1 marks and citation omitted)).

 2 2.       Legal Standard

 3   {33}   A defendant’s due process rights are violated when the prosecution suppresses

 4 favorable evidence. Brady, 373 U.S. at 86-87; Trimble v. State, 1965-NMSC-055,

 5 ¶ 12, 75 N.M. 183, 402 P.2d 162 (applying Brady). A defendant seeking dismissal for

 6 a Brady violation must prove three elements: (1) evidence was suppressed by the

 7 prosecution; (2) the suppressed evidence was favorable to the defendant; and (3) the

 8 suppressed evidence was material to the defense. Turrietta, 2013-NMSC-036, ¶ 35.

 9 In order to be material under Brady, there must be “ ‘a reasonable probability that,

10 had the evidence been disclosed to the defense, the result of the proceeding would

11 have been different.’ ” State v. Baca, 1993-NMCA-051, ¶ 21, 115 N.M. 536, 854

12 P.2d 363 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). When

13 considering materiality, we place the suppressed evidence in the context of the entire

14 record, rather than viewing it in isolation. “Implicit in the standard of materiality is

15 the notion that the significance of any particular bit of evidence can only be

16 determined by comparison to the rest.” Trujillo, 2002-NMSC-005, ¶ 50 (internal

17 quotation marks and citation omitted).

18   {34}   The State points to our Supreme Court’s case, State v. Rondeau, 1976-NMSC-

19 044, ¶ 40, 89 N.M. 408, 553 P.2d 688, as support for its assertion that because the


                                              21
 1 pediatrician’s report and information regarding Mother’s U-Visa were not suppressed

 2 throughout the entire trial, suppression of that evidence cannot constitute a Brady

 3 violation. In Rondeau, our Supreme Court interpreted Brady to mean that where

 4 evidence is found during trial, rather than after the trial, no Brady violation exists.

 5 Rondeau, 1976-NMSC-044, ¶ 40 (“We interpret [Brady] to mean that a convicted

 6 defendant would be entitled to a retrial where the prosecution suppressed, throughout

 7 the whole trial, exculpatory evidence material to the guilt or punishment of the

 8 defendant.”).

 9   {35}   We believe Altgilbers, 1989-NMCA-160, is more persuasive and applicable in

10 this case. In Altgilbers, a defendant asserted that the district court’s refusal to grant

11 a mistrial resulted in a violation of his due process rights where he discovered

12 allegedly exculpatory evidence through a witness’s statements during trial. Id. ¶ 25.

13 This Court, in deciding the case, drew a distinction between evidence disclosed

14 during trial and evidence discovered only after the trial had concluded. See id. ¶ 26.

15 We reasoned that, based on this distinction, “[t]he damage to [the] defendant

16 therefore must lie in any impairment to his tactical use of the evidence because of

17 delayed disclosure[,]” but concluded that the “imposition of a barrier to more

18 effective use of evidence would have substantially less impact than total deprivation

19 of use.” Id. Rather than create a standard establishing “precisely how to weigh any


                                              22
 1 particular factor in determining whether delayed disclosure violates due process[,]”

 2 this Court instead reasoned that there was sufficient reason to conclude that delayed

 3 disclosure “did not deprive [the] defendant of fundamental fairness, which is the

 4 essence of due process.” Id. ¶ 28.

 5   {36}   Though we acknowledge the distinction between discovery of suppressed

 6 evidence during and after trial, we see no reason to wholly depart from the

 7 considerations of materiality and prejudice set forth in Brady. Instead, we read

 8 Altgilbers to require a consideration of those factors in an assessment of the

 9 fundamental fairness of the proceedings. See 1989-NMCA-106, ¶ 28. In Bagley and

10 Kyles, the United States Supreme Court explained that Brady is aimed at promoting

11 the effective use of evidence. See Bagley, 473 U.S. at 676; Kyles v. Whitley, 514 U.S.

12 419, 437 (1995). Altgilbers similarly acknowledges that the State’s providing material

13 evidence during trial stands as an “imposition of a barrier to more effective use of

14 evidence[.]” 1989-NMCA-106, ¶ 26. Thus, it stands to reason that while post-trial

15 discovery of evidence under Brady requires “a reasonable probability that . . . the

16 result of the proceeding would have been different[,]” discovery of evidence during

17 trial requires an evaluation of whether the late tender has impeded the effective use

18 of evidence in such a way that impacts the fundamental fairness of the proceedings.

19 Altgilbers, 1989-NMCA-106, ¶ 27.


                                             23
 1 3.       Pediatrician’s Report

 2   {37}   It is hard to imagine more material evidence in a child-rape case than the

 3 results of medical examinations of the victims. “The Brady requirement of disclosing

 4 such material applies to all members of the prosecutorial team, including police

 5 authorities.” State v. Wisniewski, 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d

 6 1031 (citations omitted); see Kyles, 514 U.S. at 437 (stating that in the context of a

 7 Brady violation, “the individual prosecutor has a duty to learn of any favorable

 8 evidence known to the others acting on the government’s behalf in the case, including

 9 the police”). Although it appears unclear from the record when the State had

10 possession of the pediatrician’s report, it is undisputed that the prosecution, through

11 its investigating detective, knew “what the medical records were going to reflect.” As

12 such, the knowledge that Child 1 and Child 2 had undergone a physical

13 examination—a fact unknown to Defendant until just before the start of the

14 trial—was imputed to the State. The State also had knowledge of the exculpatory

15 aspects of the report, i.e., that neither Child 1 nor Child 2 had suffered any physical

16 injuries to their reproductive organs.

17   {38}   Though the pediatrician’s report is not in the record before us, according to her

18 testimony, she concluded that the results of the examinations were consistent with a

19 child who had a history of being sexually abused. This evidence is clearly not


                                               24
 1 favorable to Defendant. On appeal, Defendant asserts error in the district court’s

 2 refusal to grant a dismissal based on the late disclosure of the pediatrician’s report

 3 because defense counsel was not able to question the pediatrician prior to trial or

 4 consult its own expert about the pediatrician’s report and conclusions. Specifically,

 5 Defendant asserts that had he been able to interview the pediatrician prior to calling

 6 her as a witness, he would have been able to more effectively question her regarding

 7 distinctions between different kinds of victims, assaults, and injuries. Defendant also

 8 laments his inability to consult with an expert of his own, and he points to contrary

 9 evidence that could have been presented to refute the pediatrician’s testimony.

10   {39}   At no point subsequent to the report’s disclosure during the proceedings did

11 Defendant or defense counsel request a continuance to allow for an interview of the

12 pediatrician. We also note that defense counsel did little to secure an interview with

13 the pediatrician prior to calling her as a witness on his behalf. Defendant points to no

14 evidence to suggest that he attempted to secure an interview with the pediatrician,

15 despite knowing that she would not be testifying until the second day of trial.

16 Additionally, Defendant’s argument on appeal asserts prejudice in his inability to

17 present evidence that could have been used to refute evidence that the State initially

18 suppressed but that he himself then presented at trial. As such, we stand unpersuaded

19 that the evidence suppressed by the State—the pediatrician’s examination and


                                              25
 1 report—was favorable to Defendant. Had it been truly favorable, Defendant would

 2 not have spent several pages of his brief explaining with particularity how he would

 3 have undermined the pediatrician’s conclusions. We therefore conclude that, although

 4 the State did err in suppressing the pediatrician’s report, Defendant has failed to

 5 demonstrate the prosecutorial misconduct necessary for reversal.4 See Turrietta,

 6 2013-NMSC-036, ¶ 35.

 7 4.       U-Visa Application

 8   {40}   We find more merit in Defendant’s assertion that the State’s suppression of

 9 information regarding Mother’s U-Visa application amounts to a serious discovery

10 violation.5 Defendant asserts that the State’s suppression of the fact that Mother

11 sought a U-Visa deprived him of an opportunity to impeach one of the State’s main

12 witnesses by providing evidence that Mother had a strong motive—staying in the

13 United States—for fabricating charges against Defendant.



        4
14        We note here that our conclusion as to the pediatrician’s report does not
15 condone the State’s behavior in this case.
            5
16           According to the U.S. Citizenship and Immigration Services, a U-Visa is set
17   aside for victims of certain crimes who have been mentally or physically hurt, and it
18   is available to those who were, are, or are likely to be “helpful to the police or law
19   enforcement” in the investigation or prosecution of a crime. See Stanford Law School
20   Immigrants Rights Clinic, Getting a U-Visa: Immigration help for victims of crime
21   6 (2012) https://www.ilrc.org/sites/default/files/resources/proseuvisamanual_english.
22   pdf.

                                              26
 1   {41}   Recognizing the importance of the U-Visa to Defendant’s case, on the first day

 2 of trial the district court ordered the State to obtain a copy of the visa application and

 3 provide it to Defendant. Following that order, the district attorney’s office provided

 4 Defendant a receipt for the U-Visa application dated April 10, 2013. The district court

 5 again directed the State to obtain and provide a copy of the application to Defendant.

 6 After being ordered to produce the application, the State incorrectly represented to

 7 the district court that it had only three pages of the twenty-three page application and

 8 claimed to have given Defendant access to those three pages.

 9   {42}   The second day of trial, the State produced the visa application in its entirety.

10 The application identified the Third Judicial District Attorney’s Office as the

11 certifying agency and was dated in December 2012. Although the application

12 referenced attached materials, including a memorandum from the investigating officer

13 in this case and affidavits and letters intending to offer proof that Mother was “the

14 indirect victim of a qualifying crime,” none of those other materials were included

15 with the application in the disclosure that the State made. The district court demanded

16 that the State seek and provide those materials and admonished the State for failing

17 to provide the U-Visa information during discovery. Defendant, after receiving copies

18 of the letters and affidavits attached to and referenced in the application, argued that

19 the late disclosure of these materials constituted a Brady violation and again


                                               27
 1 requested dismissal. The district court again denied Defendant’s motion to dismiss,

 2 but suggested that if defense counsel felt the case had been compromised, he could

 3 “combat that” by using the documents that had been produced that day when

 4 questioning the remaining witnesses. In reaching this decision, the district court

 5 reasoned that allowing Defendant to question Mother regarding immigration issues

 6 related to the U-Visa could be “interpreted as a sanction against the State for failure

 7 to disclose something that they clearly knew about.”

 8   {43}   It is clear from the record that the State suppressed the production of the U-

 9 Visa application to Defendant. Although the State made repeated representations to

10 the district court that it had no knowledge of the U-Visa application, the knowledge

11 of the members of the State’s prosecution team is imputed on the State. See

12 Wisniewski, 1985-NMSC-079, ¶ 21. The application contained letters from

13 individuals within the district attorney’s office, as well as a memorandum from the

14 investigating detective in this case. Mother acknowledged that she received help from

15 the local police department in obtaining and completing the U-Visa application. We

16 agree with the district court’s assessment in this regard: “It would have been a very

17 appropriate document to share. . . . [It] has way too many items that came in support

18 of it from the [d]istrict [a]ttorney’s office and from law enforcement. Those

19 components of [the application] certainly should have been part of the discovery.”


                                              28
 1   {44}   Throughout the trial below, it is clear that the State was not forthcoming with

 2 information regarding the U-Visa. The State’s representations to the district court

 3 regarding the U-Visa evolved throughout the trial, beginning with a denial of

 4 knowledge of its existence and ending with production of a twenty-three page

 5 application as well as letters from individuals working in the district attorney’s office

 6 and a memorandum from the investigating detective. The State’s actual knowledge

 7 of the application is, in this case, adequate evidence for us to conclude that the State

 8 erred in suppressing the U-Visa impeachment evidence and acknowledge that the first

 9 prong of the Brady test is satisfied.

10   {45}   It is also clear that the evidence suppressed was favorable to Defendant.

11 Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule,

12 as both are “ ‘evidence favorable to an accused.’ ” Bagley, 473 U.S. at 676 (quoting

13 Brady, 373 U.S. at 87); cf. State v. Baca, 1995-NMSC-045, ¶ 39, 120 N.M. 383, 902

14 P.2d 65 (considering “egregious error” of improper exclusion of evidence impeaching

15 the State’s primary witness in concluding cumulative error occurred). Had the U-Visa

16 information been disclosed earlier, Defendant could have questioned the investigating

17 detective regarding his involvement in Mother’s visa application. Defendant could

18 have interviewed the people who submitted the letters and affidavits that

19 accompanied the visa application to determine Mother’s position regarding her status


                                              29
 1 as an illegal immigrant. Defendant could also have presented evidence regarding the

 2 U-Visa process itself. Such information includes the fact that Mother and Child 1 and

 3 Child 2 could legally live in the United States for four years and would be eligible to

 4 apply for a green card to live here permanently after three years.6 Thus, if Mother

 5 were successful in obtaining a U-Visa, she could secure United States citizenship for

 6 not only herself, but her daughters as well.7

 7   {46}   Instead of proffering that evidence, Defendant was only allowed to question

 8 Mother about the U-Visa. When asked what a U-Visa is, Mother replied, “I don’t

 9 know. It’s something conditional.” Mother admitted to having been deported once

10 before in 2006. Such evidence, viewed in conjunction with the impeachment evidence

11 regarding the U-Visa, would have been relevant to the issue of Mother’s possible


            6
12           U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U
13   Nonimmigrant Status, Department of Homeland Security (July 28, 2016),
14   https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victi
15   ms-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmig
16   rant-status; Stanford Law School Immigrants’ Rights Clinic, Getting a U-Visa:
17   Immigration help for victims of crime 4 (2012),
18   https://www.ilrc.org/sites/default/files/resources/proseuvisamanual_english.pdf.
            7
19           U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U
20   Nonimmigrant Status, Department of Homeland Security (July 28, 2016),
21   https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victi
22   ms-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmig
23   rant-status; Stanford Law School Immigrants’ Rights Clinic, Getting a U-Visa:
24   Immigration help for victims of crime 5 (2012),
25   https://www.ilrc.org/sites/default/files/resources/proseuvisamanual_english.pdf.

                                             30
 1 bias; Mother, as an illegal immigrant, submitted a visa application with the assistance

 2 of the State and the investigating officer that could allow her to reap substantial

 3 immigration benefits for Children and herself through involvement in this case

 4 against Defendant. Such evidence would undoubtedly be favorable to Defendant.

 5   {47}   Finally, it appears from the nature of the evidence suppressed as well as the

 6 central role of the witness whom it impeached, there is a reasonable probability that

 7 the result of the trial would have been different if the impeachment evidence

 8 regarding the U-Visa had been properly disclosed. Mother’s influence over other

 9 testifying witnesses has implications for much of the evidence in this case. As

10 evidence of bias and even a possible motivation for lying or fabricating allegations,

11 it taints not only her own testimony, but also the testimony of Children and

12 Grandmother. As such, evidence regarding the veracity of Mother’s statements or

13 evidence that she was biased against Defendant is material to the outcome of

14 Defendant’s trial. Defendant has demonstrated that evidence regarding Mother’s U-

15 Visa application was suppressed, was favorable to him, and was material to his

16 defense. Although Defendant has demonstrated all three Brady prongs, we look also

17 to whether the suppression of the U-Visa evidence impeded Defendant’s effective use

18 of it in such a way that the fairness of the proceedings is called into question. We

19 conclude that while it was error for the State to withhold the U-Visa application,


                                              31
 1 Defendant has not demonstrated that this error, by itself, is sufficiently egregious to

 2 call into question the fairness of the entire trial.

 3 D.       Cumulative Error

 4   {48}   “The doctrine of cumulative error requires reversal of a defendant’s conviction

 5 when the cumulative impact of errors which occurred at trial was so prejudicial that

 6 the defendant was deprived of a fair trial.” State v. Woodward, 1995-NMSC-074,

 7 ¶ 59, 121 N.M. 1, 908 P.2d 231 (internal quotation marks and citation omitted),

 8 abrogated on other grounds as recognized by State v. Montoya, 2014-NMSC-032,

 9 333 P.3d 935.

10   {49}   The district court committed numerous errors in this case. As explained more

11 fully above, the district court erred by not granting Defendant’s motion for a bill of

12 particulars. The district court erred by refusing to grant Defendant’s motion for

13 directed verdict. The district court erred in allowing six identical, factually

14 undifferentiated counts per child, demonstrating an unawareness of the course of

15 conduct standards enumerated in Dominguez and Baldonado. The district court made

16 questionable decisions regarding the State’s late disclosure of the examining

17 pediatrician’s report. The district court allowed the State to improperly withhold

18 material evidence regarding Mother’s U-Visa application that was favorable to

19 Defendant. The district court allowed the suppression of the U-Visa information


                                               32
 1 despite the State’s repeated refusal to acknowledge that it has a duty to learn of any

 2 favorable evidence known to the others acting on the government’s behalf and despite

 3 the State’s misleading representations regarding the level of involvement that police

 4 and the district attorney had in assisting Mother with applying for the visa.

 5   {50}   The district court permitted the trial to go forward without allowing Defendant

 6 any additional time to conduct a meaningful review of untimely disclosed evidence.

 7 Defendant was forced to call a witness without the benefit of a prior interview.

 8 Despite eventually being given information that was key to impeaching one of the

 9 State’s key witnesses, Defendant had no opportunity to effectively use that

10 information to his advantage. The jury was then presented with six identical counts

11 per child, with no way to distinguish between each offense or act. Under these facts

12 and circumstances, we cannot conclude that Defendant had a fair trial. These

13 numerous errors, considered together, rise to the level of prejudice so great that we

14 must conclude Defendant was deprived of a fair trial.

15 III.     CONCLUSION

16   {51}   Based on the foregoing, we reverse Defendant’s convictions on ten counts of

17 criminal sexual penetration of a minor and remand for dismissal of those counts. In

18 addition, we remand for Defendant to receive a new trial on two counts representing

19 a single course of conduct as to each child.


                                              33
1   {52}   IT IS SO ORDERED.



2                                      ______________________________
3                                      RODERICK T. KENNEDY, Judge

4 WE CONCUR:


5 _________________________________
6 JAMES J. WECHSLER, Judge


7 _________________________________
8 LINDA M. VANZI, Judge




                                  34
