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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 30,816

 5 BLAKE GREEN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. Shoobridge, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Jacqueline R. Medina, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jacqueline L. Cooper, Chief Public Defender
15   Adrianne R. Turner, Assistant Appellate Defender
16   Tania Shahani, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 VANZI, Judge.
 1        Defendant Blake Green appeals his convictions from a verdict finding him

 2 guilty of second degree criminal sexual penetration of a minor (CSPM) and fourth

 3 degree criminal sexual contact of a minor (CSCM). Defendant raises six issues on

 4 appeal: (1) there was insufficient evidence of force or coercion to sustain his

 5 convictions; (2) the district court committed fundamental error when it did not provide

 6 the jury with N.P.’s testimony during deliberations; (3) the district court improperly

 7 coerced the jury by giving a shotgun instruction; (4) it was error to allow the State to

 8 amend the criminal information on the day of trial; (5) the district court erred in failing

 9 to grant defense counsel’s request for a continuance; and (6) trial counsel was

10 ineffective. We reverse Defendant’s conviction for CSCM. As a result, we need not

11 reach whether N.P.’s testimony should have been provided to the jury during

12 deliberations. We affirm on the remaining issues.

13 BACKGROUND

14        Because the parties are familiar with the factual and procedural background and

15 because this is a memorandum opinion, we do not provide detailed background

16 information. We address the facts and procedure as necessary in the context of our

17 analysis. We begin with the issue of whether there was sufficient evidence to sustain

18 Defendant’s convictions for CSPM and CSCM and then turn to Defendant’s

19 remaining arguments.

20 Sufficiency of the Evidence

                                                2
 1        Defendant contends that the State failed to present sufficient evidence of force

 2 or coercion to support his convictions for CSPM and CSCM. We review sufficiency

 3 of the evidence challenges under a substantial evidence standard. State v. Riley, 2010-

 4 NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656. In applying this standard, we view

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

 6 inferences and resolving all conflicts in favor of the verdict. Id. “The relevant

 7 question is whether, after viewing the evidence in the light most favorable to the

 8 prosecution, any rational trier of fact could have found the essential elements of the

 9 crime beyond a reasonable doubt.” State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862,

10 867 (1992) (emphasis, alteration, internal quotation marks, and citation omitted). This

11 Court does not reweigh the evidence nor substitute its judgment for that of the jury

12 concerning the credibility of witnesses. Id.

13 Defendant’s Conviction for CSPM is Supported by Substantial Evidence

14        Defendant was charged with one count of CSPM in the second degree (child

15 13-16), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009), as a result of an

16 incident involving the fourteen-year-old victim, B.P. To convict Defendant of CSPM

17 by force or coercion, the jury was instructed that it had to find each of the following

18 elements beyond a reasonable doubt:

19        1.     [D]efendant caused [B.P.] to engage in sexual intercourse;
20        2.     [B.P.] was at least 13 but less than 18 years old;
21        3.     [D]efendant used physical force against [B.P.];

                                              3
 1        4.     This happened in New Mexico on or about the 10th day of May,
 2               2009.

 3 In addition, the jury was instructed that sexual intercourse means the penetration of

 4 the vagina, the female sex organ, by the penis, the male sex organ, to any extent.

 5        Defendant argues that the State failed to establish sufficient evidence for this

 6 CSPM conviction. Specifically, and without explanation, Defendant contends merely

 7 that “B.P.’s testimony does not establish the element of physical force.” Based on the

 8 evidence at trial, we disagree.

 9        B.P. testified that on May 10, 2009, she and her sister were watching movies

10 with their cousin and some other people at the home where Defendant lived. While

11 they were watching movies, Defendant took B.P.’s phone and typed a message on it

12 telling her to go to the back room, that he would be in in a minute to rub her back, and

13 that she could have his bed for the night. B.P. knew Defendant for five or six years

14 and considered him to be like a brother. B.P. also testified that she preferred to sleep

15 in a bed rather than on the couch, so she accepted Defendant’s offer. Defendant

16 followed B.P. into the bedroom, shut the door, and started touching and kissing her.

17 B.P. testified that she repeatedly asked Defendant to stop, told him that she had a

18 boyfriend, and that she didn’t want to do this. Defendant did not stop but continued

19 touching and kissing her, and he put his penis inside B.P.’s vagina and started to have




                                              4
 1 sex with her. B.P. tried to push Defendant away, but Defendant forced himself upon

 2 her until he came. B.P. testified that she felt like she was being forced and used.

 3        In addition to B.P.’s testimony, the jury heard from a sexual assault nurse

 4 examiner (SANE) and a forensic DNA analyst. The SANE testified that she observed

 5 a linear vaginal tear on B.P. that was about an inch in length. This type of injury, she

 6 said, is very common in sexual assaults. The DNA analyst testified that, to a

 7 reasonable degree of certainty, the DNA test revealed that the semen found on B.P.’s

 8 cervix belonged to Defendant.

 9        We conclude that sufficient evidence supports the jury’s determination that

10 Defendant used force on B.P. We have previously said that there is no specific

11 quantum of force necessary to fulfill the element of “force or coercion.” State v.

12 Perea, 2008-NMCA-147, ¶¶ 12, 13, 145 N.M. 123, 194 P.3d 738. In Perea, we held

13 there was sufficient evidence of force where the defendant ignored the victim’s

14 statement that she was not ready and did not want to have sex, and the defendant

15 persisted in having sex with the victim after she asked him to stop. Id. Such is the

16 case here where B.P. testified that she asked Defendant to stop, but he persisted in

17 having sex with her, and she had an injury consistent with a sexual assault.

18 Defendant’s conviction for CSPM by force or coercion is supported by substantial

19 evidence.

20 The Conviction for CSCM is Not Supported by Substantial Evidence

                                              5
 1        Defendant next argues that the State failed to establish sufficient evidence to

 2 support his conviction for CSCM under NMSA 1978, Section 30-9-13(D) (2003). We

 3 agree with Defendant.

 4        In order to convict Defendant of CSCM, the jury was instructed that it had to

 5 find beyond a reasonable doubt that:

 6        1.     [D]efendant touched or applied force to the breast of [N.P.];
 7        2.     [D]efendant used physical force or physical violence;
 8        3.     [N.P.] was at least 13 but less than 18 years old;
 9        4.     This happened in New Mexico on or about the 10th day of May
10               2009.

11        N.P. testified as follows. On the evening of May 10, 2009, she was sitting on

12 the couch with her sister, B.P., her cousin, her cousin’s boyfriend, and Defendant.

13 Defendant touched N.P. on her breast, and he “just kissed [her] that’s all.” N.P.

14 testified that Defendant then put his hand on her pants, and she told him “no.” After

15 she told him “no,” Defendant “just quit.” She then fell asleep where she was seated

16 next to Defendant.

17        The State contends that the above testimony that Defendant touched N.P. on her

18 breast is sufficient to sustain the CSCM conviction and that “[t]he defense presented

19 no evidence to support a claim that somehow this was an accidental touching or a

20 touching carried out without the use of physical force.” The State’s position is not in

21 accord with the law that places the burden on the State to prove the elements of the

22 charged crime. UJI 14-5060 NMRA. That burden does not fall to Defendant.

                                              6
 1 Importantly, the State does not provide any evidence or argument as to how the

 2 element of “force or coercion” was met in this instance. In fact, the State’s contention

 3 is belied by its admission that on the day of the incident, N.P. told the police officer

 4 that Defendant “grabbed her right breast and squeezed it” and that “[i]t appears that

 5 the prosecutor thought he elicited testimony regarding these acts during trial.”

 6 (Emphasis added.) Clearly, this testimony was not elicited during trial as the State

 7 does not point to it anywhere in the record. Accordingly, we conclude that the State

 8 failed to meet its burden of establishing all of the elements set forth in the jury

 9 instruction. Defendant’s conviction for CSCM is reversed. Because we reverse

10 Defendant’s conviction for CSCM, we need not reach his argument that the district

11 court erred when it did not provide the jury with a transcript of N.P.’s testimony

12 during jury deliberations.

13 The District Court Did Not Coerce the Jury With a Shotgun Instruction

14        Defendant argues that the district court unduly coerced the verdicts by telling

15 the jury that a mistrial would be declared if they were unable to reach a unanimous

16 verdict. Defendant contends that the district court’s instruction was tantamount to an

17 improper “shotgun” instruction. For the reasons that follow, we hold that the district

18 court did not issue a shotgun instruction to the jury in this case.

19        After deliberating for two hours, the jury sent out a question asking the court,

20 “What if we cannot agree on both counts?” The district court proposed to reply, “The

                                              7
 1 jury may at any time during its deliberations return a verdict with respect to any count

 2 upon which it has agreed. If the jury is unable to agree upon any count, a mistrial

 3 would be declared as to that count.” Defense counsel did not object to the proposed

 4 instruction. Because Defendant did not object below, we review his argument for

 5 fundamental error. “Fundamental error is an exception to the rule that parties must

 6 preserve issues for appeal.” State v. Cortez, 2007-NMCA-054, ¶ 5, 141 N.M. 623,

 7 159 P.3d 1108; see State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998

 8 P.2d 176 (holding that jury instructions are reviewed for fundamental error when no

 9 objection was raised below).

10        A shotgun instruction directing a deadlocked jury that it must continue

11 deliberating is prohibited in New Mexico. UJI 14-6030 NMRA (setting out a shotgun

12 instruction and stating that “[n]o instruction on this subject shall be given”); State v.

13 McCarter, 93 N.M. 708, 711, 604 P.2d 1242, 1245 (1980); Cortez, 2007-NMCA-054,

14 ¶ 8. Accordingly, in the event that a jury becomes deadlocked, “[t]he court can inform

15 the jury that it may consider further deliberations, but not that it must consider further

16 deliberations.” McCarter, 93 N.M. at 710, 604 P.2d at 1244 (reversing conviction

17 where the district court instructed a deadlocked jury that it must consider further

18 deliberations). A shotgun instruction is coercive in that it could be perceived as a

19 lecture to a holdout juror who does not favor conviction. Id. at 710, 604 P.2d at 1244;

20 see Cortez, 2007-NMCA-054, ¶ 14 (“Any effort by the court to persuade the jury to

                                               8
 1 reach an agreement after reporting its numerical split may be interpreted by the

 2 minority as an implied command to agree with the majority.” (alterations, internal

 3 quotation marks, and citation omitted)).

 4        Nevertheless, we note that the district court has a duty to respond to a jury’s

 5 queries regarding legal standards and procedures. See generally State v. Juan, 2010-

 6 NMSC-041, ¶ 16, 148 N.M. 747, 242 P.3d 314. “[W]hen a jury communicates with

 7 the district court during deliberations and expresses its inability to arrive at a verdict,

 8 the judge must communicate with that jury in some fashion.” State v. Laney, 2003-

 9 NMCA-144, ¶ 52, 134 N.M. 648, 81 P.3d 591 (internal quotation marks and citation

10 omitted). “When a jury makes explicit its difficulties a trial judge should clear them

11 away with concrete accuracy.” Juan, 2010-NMSC-041, ¶ 16 (internal quotation

12 marks and citation omitted). Indeed, failure to respond to a jury’s question is

13 reversible error where the court’s silence effectively coerces the jury’s verdict. See

14 id. ¶¶ 18-19 (reversing conviction because the district court’s refusal to respond to

15 jury’s inquiry about “whether a non-verdict or a hung jury was an option” left the jury

16 with the impression that it must continue its deliberations indefinitely (alteration and

17 internal quotation marks omitted)).

18        In this case, we conclude that the district court did not issue a shotgun

19 instruction. Instead, it was simply meeting its duty to clarify procedural issues for the

20 jury. Unlike McCarter, where the court told the jury it must continue deliberating, the

                                                9
 1 district court here informed the jury that it could either return a verdict, or, in the

 2 alternative, a mistrial would be declared with respect to the count upon which the jury

 3 disagreed. This instruction was consonant with the holdings in McCarter and its

 4 progeny because the district court’s response left the decision to continue deliberating

 5 in the hands of the jury.

 6 It Was Not Error to Allow the Prosecution to Amend the Criminal Information

 7        Defendant contends that the district court erred in allowing the State to amend

 8 the criminal information on the day of trial because he lacked time to prepare a

 9 defense. Defendant challenges only the amendment to Count I, which amended the

10 description of the CSPM-II charge to “sexual intercourse through force or coercion”

11 from the original criminal information, which alleged Defendant used his position of

12 authority “to coerce [B.P.] to submit to the sexual act[.]” The State maintains that

13 since the amendment did not charge Defendant with a new offense or add an

14 additional charge, the amendment was proper under Rule 5-204(A) NMRA. For the

15 reasons that follow, we agree with the State.

16        Due process requires that “[e]very accused . . . be informed of the crime with

17 which he is charged in sufficient detail to enable him to prepare his defense.” State

18 v. Foster, 87 N.M. 155, 157, 530 P.2d 949, 951 (Ct. App. 1975). The purpose of a

19 criminal information is to “furnish the accused with such a description of the charge

20 against him as will enable him to make a defense . . . and to give the court reasonable

                                              10
 1 information as to the nature and character of the crime charged.” State v. Myers,

 2 2009-NMSC-016, ¶ 43, 146 N.M. 128, 207 P.3d 1105 (citation omitted). Errors in a

 3 criminal information, therefore, are not fatal “unless the accused cannot reasonably

 4 anticipate from the [criminal information] what the nature of the proof against him

 5 will be.” State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070.

 6 Criminal pleadings should not be held invalid merely for technical defects, errors, or

 7 omissions. Rule 5-204 NMRA, Committee commentary.

 8        Rule 5-204(A) NMRA provides in pertinent part:

 9        The court may at any time prior to a verdict cause the complaint,
10        indictment or information to be amended in respect to any . . . defect,
11        error, omission or repugnancy if no additional or different offense is
12        charged and if substantial rights of the defendant are not prejudiced.

13 Thus, to determine whether the district court properly allowed amendment of a

14 criminal information, we must ask (1) whether an additional or different offense was

15 charged, and (2) if any substantial rights of Defendant were prejudiced. State v.

16 Dietrich, 2009-NMCA-031, ¶ 64, 145 N.M. 733, 204 P.3d 748. As with all rules of

17 procedure, we review the district court’s interpretation of Rule 5-204 de novo. State

18 v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602, overruled on other

19 grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; State v.

20 Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184.




                                             11
 1        An additional or different offense is charged when the amended information

 2 raises “an entirely new offense with elements separate and apart from those in the

 3 original criminal information.” State v. Roman, 1998-NMCA-132, ¶ 14, 125 N.M.

 4 688, 964 P.2d 852. In Roman, an attempted murder trial, the State amended the

 5 criminal information to include a charge of shooting at an occupied dwelling after the

 6 defendant testified he heard someone shout from inside the mobile home upon which

 7 he had opened fire. Id. ¶¶ 2-4. There, we held the amendment violated Rule 5-204

 8 because the defendant did not have notice of the charge against him, given that

 9 shooting at an occupied dwelling was not a lesser included offense of any of the other

10 charges. Roman, 1998-NMCA-132, ¶ 14.

11        In contrast, here, Defendant was not charged with an additional or different

12 offense under the amended criminal information. In both the original and the

13 amended criminal information, the State alleged that on May 10, 2009, Defendant

14 committed CSPM-II in violation of Section 30-9-11(E)(1). Because the original

15 criminal information listed the crime charged and the date of alleged incident,

16 Defendant was on notice as to the definition of CSPM-II and the elements he would

17 need to defend against at trial. See Myers, 2009-NMSC-016, ¶ 46 (affirming the

18 defendant’s conviction where the defendant knew prior to trial what conduct provided

19 the factual basis for the crimes with which he was charged); see also Dietrich, 2009-

20 NMCA-031, ¶ 67 (holding that amending an indictment to conform to language in

                                             12
 1 amended statute did not improperly charge the defendant with an additional or

 2 different offense); State v. Vigil, 85 N.M. 328, 329-30, 512 P.2d 88, 89-90 (Ct. App.

 3 1973) (holding criminal information sufficient where it gave the common name of the

 4 crime and identified the statutory section number). Since Defendant had notice of the

 5 charge, the State’s amendment corrected a technical defect and was not fatal to the

 6 pleading.

 7        Defendant contends that the amendment prejudiced him because he “geared his

 8 defense toward[] attacking the ‘position of authority’ element charged in the original

 9 criminal information.” However, Defendant does not explain how he was prejudiced.

10 “The mere assertion of prejudice, without more, is insufficient to establish prejudicial

11 error warranting reversal of a conviction.” Marquez, 1998-NMCA-010, ¶ 20 (internal

12 quotation marks and citation omitted). We will not overturn a verdict on appeal based

13 on the alleged “defect, error, omission, repugnancy, imperfection, [or] variance [of the

14 criminal information] . . . unless it is affirmatively shown that the defendant was in

15 fact prejudiced in the defendant’s defense on the merits.” Rule 5-204(D) NMRA

16 (emphasis added). Thus, in order to successfully challenge a defective criminal

17 information under Rule 5-204, a defendant must come forward with a showing of

18 actual prejudice. Defendant has failed to demonstrate prejudice in this case. Absent

19 such a showing, there are no grounds for reversal based on the amended criminal

20 information.

                                              13
 1 The District Court’s Failure to Grant a Continuance Was Not Error

 2          Defendant argues on appeal that defense counsel’s statements during pretrial

 3 motions that she was “not prepared to go forward in this manner” and that she was

 4 “providing ineffective assistance of counsel” constituted a motion for continuance.

 5 Therefore, Defendant argues, the district court’s denial of the motion constituted an

 6 abuse of discretion. Defendant’s claim of error is not properly raised before this

 7 Court.

 8          When preserved, “[t]he grant or denial of a continuance is within the sound

 9 discretion of the trial court, and the burden of establishing abuse of discretion rests

10 with the defendant.” State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152

11 P.3d 135. “An abuse of discretion occurs when the ruling is clearly against the logic

12 and effect of the facts and circumstance of the case. We cannot say the trial court

13 abused its discretion by its ruling unless we can characterize it as clearly untenable or

14 not justified by reason.” Id. (internal quotation marks and citation omitted).

15 Moreover, Defendant must establish not only an abuse of discretion, but also

16 prejudice. Id.

17          We conclude—and counsel on appeal does not disagree—that Defendant failed

18 to preserve this issue for appeal because defense counsel never requested a ruling from

19 the district court. To preserve a question for review it must appear that a ruling or

20 decision by the district court was fairly invoked. Rule 12-216(A) NMRA; State v.

                                              14
 1 Lamure, 115 N.M. 61, 65, 846 P.2d 1070, 1074 (Ct. App. 1992) (holding that the

 2 defendant failed to preserve a claim that he should have been granted more time to

 3 prepare in light of amendment to indictment because he did not invoke a ruling from

 4 the trial court). The burden is on Defendant to show that the district court ruled on the

 5 question. Batchelor v. Charley, 74 N.M. 717, 720, 398 P.2d 49, 50 (1965). Defense

 6 counsel did not request the district court make a ruling; instead, she merely stated she

 7 was “not prepared to go forward in this manner” and that she was “providing

 8 ineffective assistance of counsel.” Since the issue was not properly preserved, we do

 9 not address it on appeal.

10 Defendant Did Not Have Ineffective Assistance of Counsel

11        Lastly, Defendant contends his counsel was ineffective because she failed to

12 request a jury instruction on the lesser included offense of statutory rape for the CSPM

13 charge and because she failed to request a definition instruction for “force or

14 coercion.” In order to establish a prima facie case of ineffective assistance of counsel,

15 Defendant must demonstrate that (1) counsel’s performance fell below that of a

16 reasonably competent attorney; (2) no plausible, rational strategy or tactic explains

17 counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the defense.

18 State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22.

19        We conclude that Defendant has not established a prima facie case of

20 ineffective assistance regarding his counsel’s failure to request a lesser included

                                              15
 1 offense instruction, primarily because counsel’s course of action could be explained

 2 in terms of trial tactics. See State v. Jensen, 2005-NMCA-113, ¶¶ 12-16, 138 N.M.

 3 254, 118 P.3d 762 (rejecting a similar claim of ineffective assistance of counsel, in

 4 light of the fact that trial counsel might have elected not to request a lesser included

 5 instruction as a matter of strategy and the lack of the lesser included offense

 6 instruction did not rise to the level of prejudice or unjust result). Counsel may have

 7 elected to pursue an all-or-nothing strategy. See State v. Baca, 1997-NMSC-059,

 8 ¶ 27, 124 N.M. 333, 950 P.2d 776 (holding that a “decision to pursue an . . . all-or-

 9 nothing defense is not outside the range of effective representation”).

10        Similarly, we determine that Defendant did not establish that his counsel’s

11 failure to request an instruction defining “force or coercion” constituted ineffective

12 assistance.   Counsel reasonably could have concluded that the phrase is self-

13 explanatory and has a commonly understood meaning, such that there was no need for

14 further definition. See State v. Munoz, 2006-NMSC-005, ¶ 24, 139 N.M. 106, 129

15 P.3d 142 (holding that a definitional instruction was unnecessary where the phrase in

16 question was self-explanatory and had a common and understandable meaning); cf.

17 State v. Jimenez, 89 N.M. 652, 657-58, 556 P.2d 60, 65-66 (Ct. App. 1976) (rejecting

18 a void-for-vagueness challenge to the CSP statute based on alleged ambiguity of the

19 element of force or coercion). Alternatively, counsel might have concluded that the

20 district court was unlikely to give such an instruction. See Munoz, 2006-NMSC-005,

                                              16
1 ¶ 24 (observing that the courts are not required to instruct on words or phrases with

2 a common meaning). Accordingly, Defendant has not established a prima facie case

3 of ineffective assistance of counsel.

4 CONCLUSION

5        For the reasons set forth above, we affirm Defendant’s conviction for CSPM

6 and reverse Defendant’s conviction for CSCM.

7        IT IS SO ORDERED.


8                                         __________________________________
9                                         LINDA M. VANZI, Judge

10 WE CONCUR:



11 _________________________________
12 JAMES J. WECHSLER, Judge



13 _________________________________
14 TIMOTHY L. GARCIA, Judge




                                           17
