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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. 35,480

 5 STEVEN JOHNSON,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant appeals his convictions on two counts of first degree criminal sexual

 2 penetration (child under 13) and four counts of criminal sexual contact of a minor

 3 (child under 13). We issued a calendar notice proposing to affirm. Defendant has

 4 responded with a memorandum in opposition. We affirm.

 5   {2}   Defendant continues to argue that the district court should have excluded a chart

 6 that was used by the State to impeach Defendant’s polygraph expert, because the chart

 7 had not been disclosed to Defendant. We review a district court's decision with regard

 8 to discovery for abuse of discretion. See State v. McDaniel, 2004-NMCA-022, ¶ 6,

 9 135 N.M. 84, 84 P.3d 701. In determining whether late disclosure of evidence requires

10 reversal, we consider the following factors: “(1) whether the [s]tate breached some

11 duty or intentionally deprived the defendant of evidence; (2) whether the improperly

12 non-disclosed evidence was material; (3) whether non-disclosure of the evidence

13 prejudiced the defendant; and (4) whether the [district] court cured the failure to

14 timely disclose the evidence.” Id. ¶ 8 (internal quotation marks and citation omitted).

15   {3}   Defendant presented the testimony of a defense polygraph expert, who

16 concluded that Defendant was not being deceptive when he denied engaging in sexual

17 conduct with the victim. [MIO 3] On cross-examination, the State attempted to

18 impeach the expert with a chart that the expert had made in an unrelated case. [MIO



                                               2
 1 3-4] The district court allowed the State to use the chart over the objection of

 2 Defendant, who argued that it was not disclosed to him. [MIO 4]

 3   {4}   We agree with Defendant that the fact that the chart was used for impeachment

 4 purposes does not exclude it from the duty to disclose; the test is whether the State

 5 intended to use the chart. See State v. Allison, 2000-NMSC-027, ¶ 12, 129 N.M. 566,

 6 11 P.3d 141 (requiring disclosure of document that the State intended to use for

 7 impeachment purposes); Rule 5-501(A)(3) NMRA (requiring disclosure of documents

 8 and related tangible items intended to be used at trial). Defendant argues that this case

 9 is similar to the non-disclosure that occurred in Allison, in that the use of the chart

10 from the other case undermined his trial strategy. [MIO 6-8] In Allison, the State

11 failed to disclose a prior arrest that it intended to use for impeachment purposes; our

12 Supreme Court determined that the failure prejudiced the defendant because “defense

13 counsel was attempting to portray [the d]efendant as an individual without any

14 criminal record, and had counsel been aware of Defendant's arrest, he may have

15 altered his strategy.” Id. ¶ 18.

16   {5}   In the present case, Defendant’s expert testified that he employed generally

17 accepted measurements in conducting the polygraph test of Defendant. [MIO 3] One

18 of these indicators measured physiological movement, and the expert testified that

19 Defendant’s test did not record movement, which could have been due to the fact that


                                               3
 1 Defendant remained still during the test. [MIO 3-4] The undisclosed chart presented

 2 by the State was from one of the expert’s other cases and recorded movement by that

 3 defendant. [MIO 4] Unlike Allison, which directly undermined the defense trial

 4 strategy, the fact that the State used someone else’s results, which indicated

 5 untruthfulness, was just as likely to be construed by the jury as an indication that

 6 Defendant was telling the truth in this case. As such, we conclude that any prejudice

 7 in this case was too speculative to require reversal under our standard of review. See

 8 State v. Rojo, 1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold

 9 that the prosecution’s delay in disclosing evidence required reversal in the absence of

10 a showing of prejudice from the non-disclosure); see also State v. McDaniel, 2004-

11 NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701 (“The prejudice must be more than

12 speculative.”).

13   {6}   For the foregoing reasons, we affirm.

14   {7}   IT IS SO ORDERED.


15                                                 ________________________________
16                                                 JAMES J. WECHSLER, Judge


17 WE CONCUR:


18 ________________________________
19 LINDA M. VANZI, Chief Judge

                                              4
1 ________________________________
2 J. MILES HANISEE, Judge




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