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

 2 Opinion Number:

 3 Filing Date: January 12, 2016

 4 NO. 33,247

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 MICHAEL VARGAS, SR.,

 9       Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Teddy L. Hartley, District Judge


12 Hector H. Balderas, Attorney General
13 M. Anne Kelly, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Jorge A. Alvarado, Chief Public Defender
17 Mary Barket, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 WECHSLER, Judge.

 3   {1}   Defendant Michael Vargas, Sr. appeals his convictions on each of twenty-four

 4 counts of intentional child abuse by torture, contrary to NMSA 1978, Section 30-6-

 5 1(D)(2) (2009). Defendant raises numerous issues on appeal, including (1) violations

 6 of his rights to due process and to be free from double jeopardy, (2) the insufficiency

 7 of the evidence to support his convictions, (3) prosecutorial misconduct, (4) improper

 8 admission of opinion testimony by a non-expert witness, (5) erroneous jury

 9 instructions, and (6) sentencing error. We are persuaded that expert testimony related

10 to stun gun technology and the victim’s injuries was improperly admitted through an

11 unqualified lay witness. The admission of this testimony was not harmless and

12 requires reversal of Defendant’s convictions on all counts. Because of this ruling,

13 Defendant’s arguments related to erroneous jury instructions and sentencing decisions

14 are moot.

15   {2}   With respect to additional issues raised, our ruling affects Defendant’s request

16 for reversal due to prosecutorial misconduct. However, while prosecutorial

17 misconduct may be so unfairly prejudicial that it bars retrial, Defendant does not

18 request this remedy or develop such an argument on appeal. Because a finding in

19 Defendant’s favor would reduce the number of charges on retrial, we reach
 1 Defendant’s sufficiency of the evidence argument and conclude that it lacks merit.

 2 Finally, we hold that the twenty-four identical counts contained in the indictment lack

 3 the required specificity and constitute a violation of Defendant’s rights to due process

 4 and to be free from double jeopardy. Because the evidentiary issue requires reversal

 5 of all convictions, we remand for a new trial with instructions designed to cure the

 6 due process and double jeopardy problems.

 7 BACKGROUND

 8   {3}   This case arose from allegations of child abuse by D.L. against Defendant, who

 9 was his foster father. The Children Youth and Families Department (CYFD) placed

10 D.L. and his older sister L.L. with Defendant and his family in Clovis, New Mexico

11 after the children were removed from their biological mother in Arizona. The

12 children’s biological mother was related to Defendant’s wife. In late July or early

13 August 2010, Defendant purchased a stun gun online that was delivered to the

14 family’s home.1 In mid-October 2010, D.L. first reported to a school counselor that

15 he was being abused at home. After consulting her supervisor and meeting with D.L.

16 again on October 29, 2010, the counselor reported the allegations to CYFD. CYFD



          1
17          The attorneys and witnesses in this case use the term “taser” and “stun gun”
18 and “tased” and “stunned” interchangeably when referring to the assaults on D.L. For
19 the purposes of continuity, we use the term “stunned” to describe the assaults and the
20 term “stun gun” rather than “taser” to describe the device.

                                              2
 1 conducted its own investigation and removed both children from the home the same

 2 day.

 3   {4}   Accounts of the use of the stun gun on D.L. between early August and October

 4 29, 2010 vary. Testimony by D.L. indicated that he was stunned repeatedly by

 5 Defendant and Defendant’s sons Mikey and Brandon over the course of three months.

 6 When asked on direct examination specifically how many times he was stunned, D.L.

 7 did not know. He did testify, however, that (1) Defendant stunned him more than 24

 8 times, (2) Mikey stunned him approximately fifteen times, and (3) Brandon stunned

 9 him approximately three times. D.L. then testified on cross-examination that he

10 counted to himself each time he was stunned, but he stopped counting at twenty-four

11 times even though he was stunned more than twenty-four times. He further testified

12 that Defendant personally stunned him less than twenty-four times.

13   {5}   D.L.’s testimony indicated that the incidents took place both at Defendant’s

14 home, where most of the family members resided, and at Mikey’s home. D.L. testified

15 about two specific incidents, including one when he was stunned on the arm by

16 Mikey on the day the stun gun arrived in the mail and another when Defendant

17 stunned D.L. while the family was visiting at Mikey’s house. He testified that he

18 asked Defendant and Mikey not to stun him and that Defendant would laugh when

19 Mikey stunned him. D.L. also testified that most of the marks on his body during his


                                             3
 1 police interview were the result of mosquito bites, although certain specific marks

 2 were from the stun gun.

 3   {6}   Testifying on behalf of the State, L.L’s testimony generally corroborated the

 4 pattern of abuse against D.L. by Defendant and his sons, although there were

 5 significant inconsistencies between her direct and cross-examination testimony. L.L.

 6 initially stated that she first saw D.L. stunned by Mikey at the family’s house on the

 7 day the device arrived. On cross-examination, L.L. first testified that D.L. was

 8 stunned on two different days in October: once by Mikey in the kitchen of the

 9 family’s house and once by Mikey at Mikey’s house when the family went over for

10 a visit. L.L. then testified that Defendant first stunned D.L. while sitting on the couch

11 on the day the device arrived in the mail. After a brief recess, defense counsel again

12 attempted to establish the sequence of events. At this point, L.L. stated simply that

13 she could not remember all the specific incidents, that there were many incidents, and

14 that they happened very fast. L.L consistently testified that she saw D.L. get stunned

15 by either Defendant or his sons between ten and fifteen times.

16   {7}   The State’s final witness was Detective Rick Smith. Detective Smith stated that

17 he had been a police officer for twenty-nine years, including as an investigator

18 specializing in sexual assault and child abuse cases with the Clovis Police

19 Department since 2007. Detective Smith also testified as to his experience with stun


                                               4
 1 guns similar to the one described by D.L. and L.L. Detective Smith was not offered

 2 or qualified as an expert witness on the topic of stun guns or the injurious effects of

 3 stun guns to humans. Detective Smith offered substantial testimony related to the

 4 operation of stun guns, the types of injuries they create, and the manner in which

 5 those injuries heal.2

 6   {8}    Defendant testified that he purchased the stun gun online, gave it to his son

 7 Mikey, and never saw it again. Defendant also testified that he never stunned D.L.

 8 and was unaware if, or that, his sons were doing so.

 9   {9}    Following a jury trial, Defendant was convicted of twenty-four counts of child

10 abuse by torture.

11 IMPROPER EXPERT TESTIMONY

12 Standard of Review

13   {10}   Defendant claims that the district court improperly admitted expert opinions

14 offered by Detective Smith as lay witness testimony under Rule 11-701 NMRA.

15 Appellate courts review the admission of evidence for an abuse of discretion. State

16 v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. A court abuses its

17 discretion when its evidentiary rulings indicate a misapprehension of the law. State



        2
18        We expand upon this testimony below because it forms the basis of one of
19 Defendant’s issues on appeal.

                                               5
 1 v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other

 2 grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. If Detective Smith’s

 3 testimony was improperly admitted under Rule 11-701, that admission would indicate

 4 a misapprehension of our law and constitute an abuse of discretion by the district

 5 court.

 6 Preservation

 7   {11}   To preserve evidentiary objections, a defendant must make a timely objection

 8 that specifically apprises the trial court of the nature of the claimed error and invokes

 9 an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454,

10 993 P.2d 1280. Defendant objected to Detective Smith being allowed to testify in an

11 expert capacity without qualification. Defendant’s objection specifically stated that

12 Detective Smith lacked medical training necessary to opine as to the cause of D.L.’s

13 injuries. This objection was sufficient to put the district court on notice as to

14 Defendant’s assertion that Detective Smith was offering opinions that exceeded the

15 scope of lay testimony.

16 Admission of Detective Smith’s Testimony as Lay Witness Opinion Testimony

17   {12}   Our rules of evidence create a distinction between opinion testimony offered

18 by an observer and expert witness testimony offered based upon expertise in the




                                               6
 1 relevant subject matter area. Compare Rule 11-701, with Rule 11-702 NMRA. Rule

 2 701 states:

 3          If a witness is not testifying as an expert, testimony in the form of an
 4          opinion is limited to one that is

 5                A.     rationally based on the witness’s perception,

 6                B.     helpful to clearly understanding the witness’s testimony or
 7                       to determining a fact in issue, and

 8                C.     not based on scientific, technical, or other specialized
 9                       knowledge within the scope of Rule 11-702 NMRA.

10 In contrast, Rule 702 states:

11          A witness who is qualified as an expert by knowledge, skill, experience,
12          training, or education may testify in the form of an opinion or otherwise
13          if the expert’s scientific, technical, or other specialized knowledge will
14          help the trier of fact to understand the evidence or to determine a fact in
15          issue.

16   {13}   In federal courts, Federal Rule of Evidence 701 (Rule 701) governs lay opinion

17 testimony and was amended in the year 2000 in order to “eliminate the risk that the

18 reliability requirements set forth in [Fed. R. Evid.] 702 [(Rule 702)] will be evaded

19 through the simple expedient of proffering an expert in lay witness clothing.” Rule

20 701 advisory comm. notes, 2000 amends. The rule “does not distinguish between

21 expert and lay witnesses, but rather between expert and lay testimony.” Id. Under

22 Rule 701, it “is possible for the same witness to provide both lay and expert testimony

23 in a single case,” but “any part of a witness’s testimony that is based upon scientific,

                                                7
 1 technical, or other specialized knowledge . . . is governed by the standards of [Rule]

 2 702.” Id.

 3   {14}   New Mexico’s Rule 11-701 is modeled upon Rule 701 and was amended in

 4 2006 to guarantee application consistent with the federal rule. See Rule 11-701

 5 Comm. Commentary (“The addition of Paragraph C in 2006 brought this rule into

 6 alignment with federal rule 701. This amendment was made to the federal rule in

 7 2000 to avoid the misuse of the lay witness opinion rule as a guise for offering

 8 testimony that in reality is based on some form of claimed expertise of the

 9 witness. . . . If the witness testifies [as to] scientific, technical or other specialized

10 knowledge, then the admissibility of such testimony must be analyzed under Rule

11 11-702 NMRA for expert testimony.”). Since the language and intent of our Rule 11-

12 701 mirrors that of Rule 701, we do not hesitate to look to federal court analysis of

13 proper and improper lay opinion testimony. Kipnis v. Jusbasche, 2015-NMCA-071,

14 ¶ 7, 352 P.3d 687, cert. granted, 2015-NMCERT-___ (No. 35,249, June 19, 2015)

15 (“When the state and federal evidence rules are identical, we may rely on

16 interpretations of the federal rule as persuasive authority.”).

17   {15}   Whether lay opinion testimony is admissible requires a two-step analysis. First,

18 the court must find that the opinion is based on personal perception or personal

19 observation by the witness. Hansen v. Skate Ranch, Inc., 1982-NMCA-026, ¶ 22, 97


                                               8
 1 N.M. 486, 641 P.2d 517. Second, the opinion must be rationally based on the

 2 witness’s own perception or observation. Sanchez v. Wiley, 1997-NMCA-105, ¶ 17,

 3 124 N.M. 47, 946 P.2d 650. The content of such testimony “is generally confined to

 4 matters which are within the common knowledge and experience of an average

 5 person.” State v. Winters, 2015-NMCA-050, ¶ 11, 349 P.3d 524 (internal quotation

 6 marks and citation omitted).3

 7   {16}   The testimony of law enforcement officers presents a particular challenge to

 8 courts given that an officer’s personal perception of events is often informed by

 9 technical or other specialized knowledge obtained through the officer’s professional

10 experience. The training and daily interactions undertaken by law enforcement

11 officers are not part of the “common knowledge and experience of an average

12 person.” Id. ¶ 11 (internal quotation marks and citation omitted). However, law

13 enforcement officers regularly make observations in the course of their professional




            3
14            Our appellate cases provide non-exhaustive lists of subject matter areas in
15   which lay opinion testimony is properly admitted. See Bunton v. Hull, 1947-NMSC-
16   005, ¶ 27, 51 N.M. 5, 177 P.2d 168 (listing “identity of persons or things; the age,
17   health, physical condition, and appearance of a person; the lapse of time; the
18   dimensions and quantities of things” as areas where lay opinion testimony is
19   appropriate); State v. Alberico, 1993-NMSC-047, ¶ 45, 116 N.M. 156, 861 P.2d 192
20   (listing “circumstances involving value, voice and handwriting identification, sanity,
21   or speed” as areas where lay opinion testimony is appropriate).

                                               9
 1 duties, such as the speed of an automobile, that are proper lay opinion testimony from

 2 either an officer or a casual observer.

 3   {17}   Our district courts perform the function of gatekeepers in order to ensure that

 4 properly admitted lay opinion testimony is not contaminated by improper expert

 5 testimony. See, e.g., State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195

 6 P.3d 1244 (describing trial judges as gatekeepers with respect to relevance and

 7 reliability of evidence). This Court has frequently determined the admissibility of

 8 non-expert opinion testimony by law enforcement officers. See, e.g., State v.

 9 Wildgrube, 2003-NMCA-108, ¶¶ 12-15, 134 N.M. 262, 75 P.3d 862 (holding that

10 officer’s personal observation of the debris field from an automobile accident allowed

11 testimony as to the nature of the accident); Hansen, 1982-NMCA-026, ¶¶ 21, 24

12 (holding that officer’s personal observations made at a roller rink allowed testimony

13 as to the absence of safety protocol); State v. Gerald B., 2006-NMCA-022, ¶ 23, 139

14 N.M. 113, 129 P.3d 149 (holding that expert testimony is not required to identify

15 marijuana); cf. State v. Duran, 2015-NMCA-015, ¶ 15, 343 P.3d 207 (holding that a

16 forensic examiner’s personal observations of child sexual assault victims did not

17 allow lay testimony as to the behavior of victims generally). We reiterate that the

18 content of lay opinion testimony is properly limited to “matters which are within the

19 common knowledge and experience of an average person.” Winters, 2015-NMCA-


                                              10
 1 050, ¶ 11 (internal quotation marks and citation omitted). When the line between lay

 2 and expert opinion is blurred during the course of a single witness’s testimony, it is

 3 the proper function of the district court, as gatekeeper, to correct the error when

 4 raised.

 5   {18}   United States v. Jones, 739 F.3d 364 (7th Cir. 2014), provides a comprehensive

 6 discussion of this principle. In that case, the defendant was charged with bank

 7 robbery. Id. at 366. The prosecution argued that the defendant participated in the

 8 robbery, that he placed bait money containing a dye pack in his pocket, and that the

 9 dye pack exploded causing a grapefruit-sized burn on the defendant’s thigh. Id. at

10 367. On appeal of his conviction, the defendant argued that the trial court allowed

11 improper expert testimony by the investigating detective under the guise of lay

12 testimony. Id. at 366-67. The testimony in question related to the technical functions

13 of dye packs and physical injuries caused by dye packs. Id. at 367. The prosecution

14 did not offer or qualify the detective as an expert. Id. at 368. The detective testified

15 that (1) a dye pack is designed to detonate between ten and thirty seconds after

16 leaving a bank; (2) the purpose of this delay is to create witnesses outside the bank;

17 (3) a dye pack instantly burns at approximately 400 degrees, releases smoke, tear gas,

18 and red dye; (4) he had seen burns caused by dye packs three to five times during his




                                              11
 1 career; and (5) a dye pack can cause severe burns if it ignites in close proximity to the

 2 body. Id. at 367-68.

 3   {19}   The Seventh Circuit held that the witness’s testimony was comprised of both

 4 lay and expert opinions. In arriving at this conclusion, the court noted that

 5          [l]ay testimony is based upon one’s own observations, with the classic
 6          example being testimony as to one’s sensory observations. . . . In
 7          contrast, testimony moves from lay to expert if an officer is asked to
 8          bring her law enforcement experience to bear on her personal
 9          observations and make connections for the jury based on that specialized
10          knowledge.

11 Id. at 369 (citation omitted).

12   {20}   The court distinguished the testimony in the following way. The detective’s

13 testimony about the specific functions of the dye packs—that is, the manufacturer, the

14 workings of the timer, the purpose to create more witnesses, the temperature at which

15 the pack burned—was “based on technical, specialized knowledge obtained in the

16 course of his position, and was not based on personal observations accessible to

17 ordinary persons.” Id. In contrast, the detective’s testimony about the aftermath of a

18 dye pack exploding near a person’s skin was simply a recollection of the detective’s

19 own sensory observations, which was proper lay testimony. Id. at 370. To emphasize

20 the contrast, the court explained the manner in which the burn testimony would have

21 crossed the line from lay to expert opinion, stating that



                                              12
 1          [t]he government could have ventured into the territory of expert
 2          testimony here if it had gone one step further and solicited an opinion as
 3          to the nature of Brown’s scars on his leg. If the government had show[n]
 4          the picture of the leg and asked [the witness] if based on his
 5          observations of past dye pack incidents, those scars were of the type that
 6          would be caused by a dye pack exploding, then that would have been the
 7          type of testimony dependent on specialized knowledge and experience
 8          that falls within expert testimony.

 9 Id. Application of Jones’s distinction to Detective Smith’s testimony indicates that

10 Detective Smith’s testimony crossed the line between lay and expert opinion

11 testimony.

12   {21}   Detective Smith’s testimony consisted of various details about stun guns and

13 his opinion as to the cause of D.L.’s bodily injuries. The following exchanges took

14 place on direct examination:

15          D.A.:               [W]ere you able to determine or figure out what type
16                              of device these kids were talking about? You said
17                              they called it a taser.

18          Detective Smith: They called it a taser throughout everything up to
19                           that point. What it looks like is it’s an electronic stun
20                           gun.

21          ....

22          D.A.:               How do you know so much about stun guns and
23                              tasers?

24          Detective Smith: As part of my career I worked in the Santa Fe Police
25                           Department. I was assigned to the administrative
26                           division, and we did actually do some research on
27                           stun guns themselves to determine whether or not

                                               13
 1                      we wanted to utilize them as an alternate means of
 2                      control.

 3   D.A.:              You’ve actually looked into these as part of your
 4                      job?

 5   Detective Smith: To some extent, yes ma’am.

 6   D.A.:              OK, and the stun gun, versus the taser, again,
 7                      describe what a stun gun looks like.

 8   Detective Smith: The stun gun is a contact weapon. In other words,
 9                    you have to have it in your hand and actually make
10                    contact with the individual to utilize it.

11   ....

12   D.A.:              You heard [D.L.] describe if he moved one prong
13                      would hit him. Does that seem accurate to you in
14                      your training and experience?

15   Detective Smith: Yes, the way it worked is that the nodules
16                    themselves, or the prongs, are live when the button
17                    is pressed and you can hold it up and discharge it
18                    and there’s an electrical charge that will go back and
19                    forth between the prongs, but if you touch someone
20                    with it, one or both prongs can deliver the shock.

21   ....

22   D.A.:              Have you ever seen what type of marks are left from
23                      a stun gun?

24   Detective Smith: The marks that I’ve seen on [D.L.] are extremely
25                    similar to the ones I’ve seen on individuals that have
26                    suffered stun guns.

27   ....

                                       14
 1        D.A.:              So we’ve been talking about mosquito bites, does
 2                           [the injury] look similar to a mosquito bite?

 3        Detective Smith: I could see someone that wasn’t familiar with them
 4                         would think so, but they really didn’t appear to be a
 5                         mosquito bite because they didn’t have the raised
 6                         irritation that you would see from a mosquito bite,
 7                         and then the angry red ring around it that would
 8                         show on a mosquito bite. There’s a round area that’s
 9                         very round. Mosquito bites, they come in a variety
10                         of shapes and sizes.4

11        ....

12        D.A.:              I want to talk specifically about the difference in
13                           what your experience is as a law enforcement
14                           [officer] in a stun gun injury.

15        Detective Smith:   The stun gun injuries, they’re all consistently—when
16                           they hit in pairs, are the same distance apart. . . . The
17                           prongs of a stun gun are about . . . two-and-a-half
18                           inches apart. . . . And when they both hit they will
19                           make marks that are that distance apart. . . . But if
20                           you just hit a lone stud, or a lone prong at one point,
21                           it can leave a single mark on its own.

22        ....

23        D.A.:              [B]ased on your experience in knowing what a stun
24                           gun does, how many pairs were you able to locate on
25                           his body?

26        Detective Smith: I counted up twenty-four pairs that appeared to be
27                         stun gun injuries.


         4
28         Defendant’s objection to Detective Smith’s lack of qualification as an
29 expert was raised at this point in the testimony.

                                             15
 1   {22}   As an initial matter, Detective Smith’s testimony indicates that his experience

 2 with stun guns is based upon his law enforcement training and experience, rather than

 3 from life experience outside the law enforcement context. Therefore, any commentary

 4 by Detective Smith about the technical properties of stun guns, the nature of stun gun

 5 injuries and the manner in which they heal, similarities and dissimilarities between

 6 stun gun injuries and mosquito bites, and the distance between stun gun prongs, are

 7 not “matters which are within the common knowledge and experience of an average

 8 person.” Winters, 2015-NMCA-050, ¶ 11 (internal quotation marks and citation

 9 omitted). Furthermore, Detective Smith’s testimony crossed the line drawn in Jones

10 in that he did not simply state that he had seen stun gun injuries, describe them, and

11 allow the jury to draw its own conclusion. Instead, Detective Smith several times

12 stated that the marks on D.L.’s body were the type that would be caused by a stun

13 gun. Thus, Detective Smith’s testimony was not simply commentary on observations

14 he witnessed during the investigation, but instead he applied his law enforcement

15 training and experience to “make connections for the jury” as to the cause of the

16 marks on D.L.’s body. Jones, 739 F.3d at 369.

17   {23}   We do not dispute the State’s contention that Detective Smith’s testimony was

18 based upon his personal perceptions. However, we cannot agree that his

19 characterization of these marks as stun gun injuries is one that a “normal person


                                              16
 1 would form on the basis of observed facts,” State v. Luna, 1979-NMCA-048, ¶ 19,

 2 92 N.M. 680, 594 P.2d 340, particularly when D.L. himself testified that many of the

 3 marks on his body were mosquito bites. As such, Detective Smith’s testimony

 4 constituted expert opinion testimony and should not have been admitted under Rule

 5 11-701.5

 6 Harmless Error

 7   {24}   The State alternatively argues that if Detective Smith’s testimony was

 8 improper, its admission constitutes harmless error. Violations of the rules of evidence

 9 by a district court are non-constitutional errors. State v. Marquez, 2009-NMSC-055,

10 ¶ 20, 147 N.M. 386, 223 P.3d 931, overruled on other grounds by Tollardo, 2012-

11 NMSC-008. Non-constitutional errors are harmless unless there is a reasonable

12 probability that the error impacted the verdict. Tollardo, 2012-NMSC-008, ¶ 36. To

13 determine the likely effect of the error, courts must evaluate all of the circumstances.

14 Id. ¶ 43. These circumstances include other evidence of the defendant’s guilt, the




            5
15           We observe an interaction that took place during cross-examination of D.L.
16   During an exchange about the marks appearing on D.L.’s body, defense counsel
17   asked D.L “[i]f there are two prongs on the taser you should have more than forty-
18   eight marks on your body. Does that sound right?” to which the prosecution objected
19   and asked whether the question “is [counsel’s] expert opinion.” In response to the
20   objection, the court stated that the question was “too specific.”

                                              17
 1 importance of the erroneously admitted evidence to the prosecution’s case, and the

 2 cumulative nature of the error. Id.

 3   {25}   Defendant was charged and convicted of twenty-four counts of child abuse.

 4 Detective Smith testified that he observed twenty-four pairs of stun gun injuries on

 5 D.L.’s body. This evidence was the most authoritative causal connection between

 6 Defendant and the injuries observed on D.L.’s body. No other witness, including D.L.

 7 himself, testified to that exact number of marks being caused by a stun gun.6 The

 8 primary witnesses against Defendant were young children when the assaults occurred.

 9 Their testimony contained numerous inconsistencies and was subject to change under

10 cross-examination. These inconsistencies dramatically increased the importance of

11 Detective Smith’s testimony to the State’s case. See id. Under the circumstances, a

12 reasonable probability exists that Detective Smith’s testimony impacted the jury’s

13 verdict by authoritatively declaring that (1) the cause of D.L.’s injuries was a stun

14 gun, and (2) the number of assaults was at least twenty-four. As such, the admission

15 of Detective Smith’s testimony did not constitute harmless error and requires reversal

16 of Defendant’s convictions on all counts.




         6
17         D.L. testified on direct examination that most of the marks present on his
18 body during the police interview were the result of mosquito bites.

                                             18
 1 SUFFICIENCY OF THE EVIDENCE

 2   {26}   Defendant argues that there was not sufficient evidence to support his

 3 convictions on twenty-four counts of child abuse by torture. We address this issue

 4 independently from our analysis of the evidentiary issue to avoid double jeopardy

 5 implications on retrial. See State v. Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M.

 6 230, 4 P.3d 1221 (“By addressing [the defendant’s] claim of insufficient evidence and

 7 determining that retrial is permissible, we ensure that no double jeopardy concerns

 8 are implicated.”).

 9   {27}   Sufficient evidence exists to support a conviction when “substantial evidence

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

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

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

13 and citation omitted). “In reviewing the sufficiency of the evidence, we must view the

14 evidence in the light most favorable to the guilty verdict, indulging all reasonable

15 inferences and resolving all conflicts in the evidence in favor of the verdict.” State

16 v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. It is the

17 exclusive province of the jury to resolve inconsistencies or ambiguities in a witness’s

18 testimony, State v. Sena, 2008-NMSC-053, ¶ 11, 144 N.M. 821, 192 P.3d 1198, and

19 “New Mexico appellate courts will not invade the jury’s province as fact-finder by


                                              19
 1 second-guessing the jury’s decision concerning the credibility of witnesses,

 2 reweighing the evidence, or substituting its judgment for that of the jury.” State v.

 3 Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations, internal

 4 quotation marks, and citation omitted). Instead, we determine only whether “a rational

 5 jury could have found beyond a reasonable doubt the essential facts required for a

 6 conviction.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation

 7 omitted). We measure the sufficiency of the evidence against the instructions given

 8 to the jury. State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883.

 9   {28}   Defendant argues at length that the State failed to present sufficient evidence

10 to prove beyond a reasonable doubt that (1) Defendant directly assaulted D.L. twenty-

11 four times, or (2) Defendant was culpable under the language of our accessory statute.

12 We address these arguments in turn.

13 Sufficiency of the Evidence to Convict Defendant as D.L.’s Principal Abuser

14   {29}   Child abuse occurs when “a person knowingly, intentionally or negligently, and

15 without justifiable cause, caus[es] or permit[s] a child to be: (1) placed in a situation

16 that may endanger the child’s life or health; (2) tortured, cruelly confined or cruelly

17 punished; or (3) exposed to the inclemency of the weather.” Section 30-6-1(D). The

18 twenty-four count indictment against Defendant was consistent with the statutory

19 language.


                                              20
 1   {30}   At trial, the district court gave a jury instruction requiring that, to convict

 2 Defendant of child abuse by torture, the jury must find that Defendant (1) caused D.L.

 3 to be tortured; (2) intentionally and without justification; (3) while D.L. was under

 4 the age of eighteen; and (4) in the state of New Mexico between August 1, 2010 and

 5 October 29, 2010. This instruction is consistent with the uniform jury instruction on

 6 child abuse. See UJI 14-604 NMRA (1999) (withdrawn 2015). The language of the

 7 jury instruction, which only included the word “caused,” implies that the Defendant

 8 must be found to be the principal abuser to support a conviction under this

 9 instruction. To affirm Defendant’s convictions as D.L.’s principal abuser, this Court

10 must conclude that any rational jury, based upon the evidence presented, could have

11 found Defendant guilty beyond a reasonable doubt. Duran, 2006-NMSC-035, ¶ 5.

12   {31}   D.L. testified that Defendant stunned him more than twenty-four times. While

13 D.L.’s testimony was not unequivocal on this topic, it was presented to the jury for

14 consideration. The jury also saw pictures of D.L.’s injuries and heard corroborating

15 testimony from L.L. and Detective Smith. On this evidence, a rational jury could have

16 found Defendant guilty beyond a reasonable doubt as D.L.’s principal abuser on

17 twenty-four counts of child abuse by torture.




                                              21
 1 Sufficiency of the Evidence to Convict Defendant as an Accessory to Abuse
 2 Committed by Another

 3   {32}   Additionally, the district court gave a jury instruction requiring that, to convict

 4 Defendant as an accessory to child abuse by torture, the jury must find (1) Defendant

 5 intended that the crime be committed; (2) the crime was committed; and (3)

 6 Defendant helped, encouraged, or caused the crime to be committed. This instruction

 7 is consistent with the uniform jury instruction on accessory liability. See UJI 14-2822

 8 NMRA.

 9   {33}   Our accessory liability statute provides, in pertinent part, that “[a] person may

10 be charged with and convicted of the crime as an accessory if he procures, counsels,

11 aids or abets in its commission and although he did not directly commit the crime.”

12 NMSA 1978, § 30-1-13 (1972). Being an accessory is not a distinct offense, but it is

13 instead linked to the actions of the principal. State v. Carrasco, 1997-NMSC-047, ¶ 6,

14 124 N.M. 64, 946 P.2d 1075. A person charged as an accessory is equally as culpable

15 as the primary offender and is subject to the same punishment. Id. An accessory must

16 share the criminal intent of the principal, and this intent may be inferred “from

17 behavior which encourages the act or which informs the confederates that the person

18 approves of the crime after the crime has been committed.” Id. ¶ 7. Generally, mere

19 presence during the commission of the charged offense, even presence accompanied

20 by mental approbation, is insufficient to infer the criminal intent required by the

                                                22
 1 statute. Luna, 1979-NMCA-048, ¶ 11. However, this generality does not apply in the

 2 same manner to those “entrusted with the care and safekeeping of a child[.]” State v.

 3 Orosco, 1991-NMCA-084, ¶ 25, 113 N.M. 789, 833 P.2d 1155, aff’d, 1992-NMSC-

 4 006, 113 N.M. 780, 833 P.2d 1146.

 5   {34}   In Orosco, the defendant lived with his girlfriend and her six-year-old son, the

 6 victim. Id. ¶ 2. While providing child care, the defendant and a friend took the victim

 7 to a bar where the friend sexually assaulted the victim. Id. After the assault, the victim

 8 consistently stated that he was forced to perform sexual acts on the friend, but he gave

 9 inconsistent statements about the defendant’s role in the assault. Id. In one statement,

10 the victim alleged that the friend assaulted him in the bar bathroom and that the

11 defendant laughed at him when the assault was over. Id. ¶ 4. In later statements, the

12 victim alleged that both the defendant and the friend were in the bathroom and that

13 the defendant held his head while the friend attempted to have oral sex with him. Id.

14 ¶¶ 5-6. The defendant was charged with criminal sexual contact with a minor as an

15 accessory. See id. ¶ 1. At trial, both the state and the defendant took the position that,

16 in order to convict, the jury must find that the defendant took an active role in the

17 assault. See id. ¶ 22 (“Thus, both the state and [the] defendant seem to concede that

18 [the] defendant’s mere presence during the molestations would not suffice to convict

19 him as an accessory, even though [the] defendant had charge of the care of the minor


                                               23
 1 and took no steps to protect him.”). While expressly upholding the defendant’s

 2 convictions based upon testimony indicating approval or encouragement in the

 3 assault, this Court, sua sponte, held that a parent, or a person “charged with the care

 4 and welfare of [a] child,” is culpable as an accessory for the failure, when present, to

 5 take reasonable steps to protect a child from an assault by another. Id. ¶¶ 20, 26-27.

 6   {35}   Based on Orosco, as D.L.’s foster parent, Defendant had an affirmative duty

 7 to protect D.L. from assaults occurring during Defendant’s presence. He thus was

 8 subject to conviction under our accessory liability statute on this basis.

 9   {36}   At trial, D.L. testified that (1) Defendant purchased the stun gun and gave it to

10 his son Mikey; (2) he was stunned by Mikey approximately fifteen times; (3) he was

11 stunned by Brandon approximately three times; and (4) Defendant was present during

12 assaults by Mikey and Defendant would laugh in response. L.L. testified that she saw

13 D.L. get stunned by various individuals between ten and fifteen times. On this

14 evidence, a rational jury could have found Defendant guilty beyond a reasonable

15 doubt as an accessory to child abuse inflicted by another, even though the maximum

16 number of convictions supported by the evidence is eighteen.

17   {37}   When, as in this case, a district court uses general rather than specific verdict

18 forms, the appellate courts are often unable to determine the jury’s rationale for

19 conviction. In this case, the jury might have found that Defendant was guilty of all


                                               24
 1 twenty-four counts of child abuse as the principal abuser. The jury also might have

 2 found that Defendant was guilty in part as the principal abuser and in part as an

 3 accessory. Regardless of the basis for the jury’s conclusion, the evidence was

 4 sufficient because the convictions can be sustained under just one of the

 5 theories—that is, that Defendant was guilty beyond a reasonable doubt as the

 6 principal abuser on all twenty-four counts.

 7 DUE PROCESS AND DOUBLE JEOPARDY

 8   {38}   Defendant’s final argument relates to the charging scheme employed by the

 9 State at trial. Defendant argues that the State’s indictment violated his right to due

10 process inasmuch as he was denied notice of the particular charges against him and

11 potentially subjected him to double jeopardy under a course of conduct theory of

12 prosecution. “We review questions of constitutional law and constitutional rights,

13 such as due process protections, de novo.” N.M. Bd. of Veterinary Med. v. Riegger,

14 2007-NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947.

15   {39}   The United States Constitution provides procedural due process protections to

16 criminal defendants, including the right to have “reasonable notice of charges against

17 [them] and a fair opportunity to defend[.]” State v. Baldonado, 1998-NMCA-040,

18 ¶ 21, 124 N.M. 745, 995 P.2d 214. “Procedural due process also requires that criminal

19 charges provide criminal defendants with the ability to protect themselves from


                                              25
 1 double jeopardy.” State v. Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178

 2 P.3d 834 (internal quotation marks and citation omitted). The right to these

 3 protections is regularly asserted in cases in which, as here, the allegations of child

 4 victims lack specificity as to the date, location, or details of an incident. See generally

 5 id.; Baldonado, 1998-NMCA-040; State v. Tafoya, 2010-NMCA-010, 147 N.M. 602,

 6 227 P.3d 92.

 7   {40}   The rights of defendants are balanced against the state’s compelling interest in

 8 protecting child victims of abuse and prosecuting perpetrators of violence against

 9 children. See Baldonado, 1998-NMCA-040, ¶ 20 (“[T]here exists a profound tension

10 between the defendant’s constitutional rights to notice of the charges against him and

11 to present a defense, and the state’s interest in protecting those victims who need the

12 most protection.” (internal quotation marks and citation omitted)). Given this

13 compelling interest, our courts recognize the limitations of child victims and are “less

14 vigorous in requiring specificity as to time and place when young children are

15 involved than would usually be the case where an adult is involved.” Id. ¶ 21 (internal

16 quotation marks and citation omitted).

17   {41}   Application of our relevant case law to the facts of this case demonstrates that

18 Defendant’s argument must prevail. Defendant was charged with twenty-four counts

19 of child abuse by torture; a number that appears to be derived by combining Detective


                                               26
 1 Smith’s claim that twenty-four matched injuries were located on D.L.’s body, and

 2 D.L.’s testimony that he stopped counting how many times he was stunned at twenty-

 3 four. The criminal indictment does not differentiate between any of the incidents, but

 4 instead it presents twenty-four identical counts. Each count states:

 5          Child Abuse, in that on or between June 01, 2010, and October 29,
 6          2010, in Curry County, New Mexico, the above-named defendant did
 7          intentionally and without justification, cause or permit D.L., a child
 8          under the age of eighteen years, to be placed in a situation that may
 9          endanger his life or health, OR tortured, cruelly confined or cruelly
10          punished D.L., contrary to NMSA 1978, Section 30-6-1(D), a third
11          degree felony.

12 The charging period was later amended to August 1, 2010 to October 29, 2010.

13   {42}   As a threshold matter, this case does not present a question of the permissibility

14 of the charging period. It is undisputed that any stunning that did occur happened

15 between the date the stun gun arrived in the mail, sometime in early August 2010, and

16 October 29, 2010, when D.L. and L.L. were removed from the house. As a result, this

17 case does not require application of the Baldonado test for permissibility of the

18 charging period. See id. ¶ 27 (outlining test for a permissible charging period when

19 the allegations of a child victim lack specificity with respect to timing of the

20 assault(s)). While this Court recognizes the merits of the public policy rationale

21 outlined in Baldonado, a determination as to the presence of a due process violation




                                                27
 1 in the present case does not turn on questions related to “whether an indictment is

 2 reasonably particular with respect to the time of the offense.” Id. ¶ 26.

 3   {43}   Instead, our inquiry relates to the lack of specificity of the incidents alleged

 4 against Defendant, making Dominguez the controlling precedent. 2008-NMCA-029.

 5 In Dominguez, the defendant was charged with ten counts of criminal sexual contact

 6 of a minor under the age of thirteen over a period of approximately ten weeks. Id. ¶ 2.

 7 All ten counts of the indictment were identical and “[n]othing in the indictment

 8 provided any information that would distinguish one count from any other count.” Id.

 9 After the state filed a bill of particulars, the district court concluded that “the [s]tate

10 had provided [the d]efendant with notice of the facts and circumstances as to five

11 alleged incidents,” and it dismissed the five remaining undifferentiated counts. Id.

12 ¶ 4. On appeal, this Court reviewed the dismissal of the five undifferentiated counts

13 and held that the dismissal was appropriate for the “five counts that could not be

14 linked to a particular incident of abuse.” Id. ¶ 10. We noted:

15          [a]lthough we have allowed some leeway in the charging period where
16          child victims are unable to recall dates with specificity, we have never
17          held that the [s]tate may move forward with a prosecution of supposedly
18          distinct offenses based on no distinguishing facts or circumstances at all,
19          simply because the victim is a child.

20 Id. Additionally, we stated that our holding was necessitated by the “very real

21 possibility that the defendant would be subject to double jeopardy in his initial trial


                                                28
 1 by being punished multiple times for what may have been the same offense.” Id. ¶ 9

 2 (alterations, internal quotation marks, and citation omitted).

 3   {44}   We followed the Dominguez rationale in Tafoya, 2010-NMCA-010, ¶¶ 22, 24.

 4 In Tafoya, the defendant was charged with four counts of criminal sexual penetration

 5 of a minor under the age of thirteen, among other charges. Id. ¶ 1. Two of the counts

 6 were for vaginal penetration and two of the counts were for anal penetration. Id. ¶ 2.

 7 The defendant was convicted of the four charges. Id. ¶ 6. On appeal, the defendant

 8 argued that a lack of factual specificity in the indictment and the evidence at trial

 9 required reversal. Id. ¶ 20. Relying on Dominguez, we held that a lack of

10 differentiation with respect to the counts of vaginal and anal penetration necessitated

11 reversal of one count of each. Tafoya, 2010-NMCA-010, ¶¶ 22, 24.

12   {45}   The State charged Defendant with twenty-four individual counts of child abuse

13 based upon D.L.’s allegations that Defendant and his sons assaulted him with a stun

14 gun numerous times between August and October 2010. The indictment did not

15 provide notice as to any specific instance in which Defendant was alleged to be the

16 principal abuser. Nor did it provide notice as to any specific instance in which

17 Defendant was alleged to be an accomplice to abuse inflicted by others. We view this

18 case as directly analogous to Dominguez, in that the indictment and trial placed

19 Defendant in a situation in which it was “impossible for the jury to conclude that [he]


                                              29
 1 was guilty of some of the offenses, but not others” and “[t]he jury could have found

 2 him not guilty of some of the counts only if they reached the conclusion that the child

 3 victim had overestimated the number of abusive acts.” 2008-NMCA-029, ¶ 8 (internal

 4 quotation marks and citation omitted).

 5   {46}   Because Defendant’s due process rights were violated by the district court

 6 proceedings, and retrial is not barred, we must craft an appropriate remedy. State v.

 7 Slade, 2014-NMCA-088, ¶ 40, 331 P.3d 930 (“Where a defendant successfully

 8 challenges his or her conviction on some basis other than insufficiency of the

 9 evidence, double jeopardy does not apply.” (internal quotation marks and citation

10 omitted)).

11   {47}   In similar circumstances, our double jeopardy jurisprudence allows for the state

12 to proceed with a single count of child abuse by torture under a course of conduct

13 theory. See Dominguez, 2008-NMCA-029, ¶ 10 (“[I]f the [s]tate can only support its

14 indictment with a child’s statements regarding a defendant’s course of conduct and

15 does not have enough specific information to charge distinct incidents of abuse, the

16 [s]tate is still able to go forward with the prosecution since this Court has held that

17 evidence of a course of conduct will support a single count of abuse.”); State v.

18 Altgilbers, 1989-NMCA-106, ¶¶ 38-39, 109 N.M. 453, 786 P.2d 680 (explaining that

19 the state may charge a single count for multiple acts under a course of conduct


                                               30
 1 theory). That said, the State is not required to employ a course of conduct theory on

 2 retrial. If the State elects to retry Defendant on multiple counts of child abuse by

 3 torture, it shall file a bill of particulars supporting its indictment. The district court

 4 may then conduct a hearing to determine whether each count charged meets the due

 5 process requirements under Dominguez. If the result of that hearing is a ruling that

 6 certain counts must be dismissed, Defendant’s new trial shall be on the remaining

 7 counts only.

 8 CONCLUSION

 9   {48}   For the foregoing reasons, we reverse Defendant’s convictions on all counts

10 and remand to the district court for retrial consistent with procedures outlined in this

11 opinion.

12   {49}   IT IS SO ORDERED.


13                                                  ________________________________
14                                                  JAMES J. WECHSLER, Judge


15 WE CONCUR:


16 ________________________________
17 MICHAEL E. VIGIL, Chief Judge


18 ________________________________
19 MICHAEL D. BUSTAMANTE, Judge

                                               31
