 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                            NO. 29,211

10 JERRY LUCERO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
13 Abigail P. Aragon, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Francine A. Chavez, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Law Offices of Nancy L. Simmons, P.C.
20 Nancy L. Simmons
21 Albuquerque, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 KENNEDY, Judge.

25          Defendant appeals his conviction for criminal sexual contact of a minor
 1 (CSCM). He raises three issues on appeal, contending that: (1) a tape recording of

 2 a conversation that he had with another witness while he was incarcerated was

 3 improperly admitted; (2) the evidence was insufficient to support the verdict; and (3)

 4 he received ineffective assistance of counsel. For the reasons that follow, we affirm.

 5 BACKGROUND

 6        Defendant’s conviction arises out of an incident that occurred in September

 7 2007. Defendant, his ex-wife Helen, and Helen’s seven year-old granddaughter (the

 8 Victim) drove to a church. When they arrived, the Victim was taking a nap in the

 9 back seat of the vehicle. She testified that while Helen was inside the church,

10 Defendant awoke her by touching her genitals and buttocks underneath her underwear.

11 The Victim’s mother, the police officer who filed the incident report, and a safehouse

12 interviewer also testified, all of whom indicated that the Victim had given consistent

13 statements to them about the incident.

14        After the State rested its case the defense called Helen, who testified that she

15 was only in the church briefly, that she could see Defendant and the vehicle from

16 inside, that the Victim was still sleeping when she returned, and that the Victim did

17 not behave strangely thereafter. Defendant also took the stand and denied that he had

18 touched the Victim inappropriately.

19        On cross-examination, the prosecutor asked both Helen and Defendant whether


                                              2
 1 they had spoken with each other about the case over the telephone the night before.

 2 They denied specifically discussing various aspects of the case. After the defense

 3 rested, the prosecutor announced his intention to call a rebuttal witness who had not

 4 previously been identified: an employee from the detention center where Defendant

 5 remained in custody. The prosecutor explained that through this witness he intended

 6 to introduce a tape recording of a telephone conversation between Defendant and

 7 Helen that had taken place the night before. At that juncture, a recess was taken,

 8 during which Defendant reviewed the tape recording in its entirety. Thereafter,

 9 Defendant objected on grounds that the tape recording was more prejudicial than

10 probative, insofar as it revealed that he was in custody. The objection was overruled

11 and the recording was played for the jury, revealing that Defendant and Helen had in

12 fact talked about the proceedings, including certain specific matters that they had

13 earlier denied discussing.

14        Defendant was ultimately convicted of CSCM. This appeal followed.

15 DISCUSSION

16 1.     Admission of the Recorded Conversation

17        Defendant asserts that the recording of the conversation was improperly

18 admitted at trial. He advances two arguments.

19        First, Defendant renews his argument concerning the probative value and the


                                             3
 1 prejudicial effect of the evidence in question. “The trial court is vested with great

 2 discretion in applying Rule 11-403 [NMRA] it will not be reversed absent an abuse

 3 of that discretion.” State v. Martinez, 1999-NMSC-018, ¶ 31, 127 N.M. 207, 979 P.2d

 4 718 (alteration original, internal quotation marks and citation omitted).

 5        At tria, Defendant contended that the recording of the conversation was unduly

 6 prejudicial because it revealed that he was incarcerated during the trial proceedings.

 7 The State responded that the recording had substantial probative value for

 8 impeachment purposes based on discrepancies between its content and Defendant’s

 9 testimony at trial. See generally State v. Morales, 2000-NMCA-046, ¶ 16, 129 N.M.

10 141, 2 P.3d 878 (“The Rules of Evidence permit a party to impeach the credibility of

11 a witness with evidence that the witness made a statement which is inconsistent with

12 the witnesses’ trial testimony.”).

13        Defendant’s credibility was a critical issue. As such, the value of the statement

14 as a tool for impeachment was significant. By comparison, the fact that Defendant

15 remained in custody during the pendency of the trial proceedings had relatively minor

16 prejudicial effect, particularly in light of the fact that it was never emphasized in any

17 way by the prosecution. Under these circumstances, we conclude that the district

18 court did not abuse its discretion in determining that the probative value of the

19 statement outweighed its prejudicial effect.             See, e.g., State v. Peters,


                                               4
 1 1997-NMCA-084, ¶ 38, 123 N.M. 667, 944 P.2d 896 (holding that no abuse of

 2 discretion occurred where evidence of the defendant’s incarceration was admitted at

 3 trial for impeachment purposes, and where the reference was limited and without

 4 undue emphasis).

 5        Second, Defendant advances an additional argument concerning the State’s

 6 failure to disclose the recording prior to utilizing it for rebuttal at trial. We generally

 7 review both the election of remedies for discovery violations and the admission of

 8 rebuttal testimony for abuse of discretion. State v. Ruiz, 2007-NMCA-014, ¶ 49, 141

 9 N.M. 53, 150 P.3d 1003 (filed 2006). However, because Defendant did not object on

10 this basis below, Defendant advances this argument pursuant to the doctrine of

11 fundamental error. See State v. McDaniel, 2004-NMCA-022, ¶¶ 7, 18, 135 N.M. 84,

12 84 P.3d 701 (observing that a defendant’s challenges to late disclosures by the state

13 were not preserved, and therefore reviewing for fundamental error only).

14         “The first step in reviewing for fundamental error is to determine whether an

15 error occurred.” State v. Silva, 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192.

16 “If that question is answered affirmatively, we then consider whether the error was

17 fundamental.” Id.

18        When a discovery violation is alleged, the following factors are considered:

19 “‘(1) whether the State breached some duty or intentionally deprived the defendant of


                                                5
 1 evidence; (2) whether the improperly non-disclosed evidence was material; (3)

 2 whether the non-disclosure of the evidence prejudiced the defendant; and (4) whether

 3 the trial court cured the failure to timely disclose the evidence.’” McDaniel,

 4 2004-NMCA-022, ¶ 8 (citation omitted).

 5        With regard to the first factor, Rule 5-501(A)(1) NMRA and Rule 5-505(A)

 6 NMRA establish a continuing duty to promptly disclose any statement by a defendant

 7 which comes within the prosecutor’s possession, custody, or control. Insofar as the

 8 recorded conversation constituted a statement by Defendant, the prosecutor was

 9 required to disclose it. Although the record does not reflect precisely when the

10 prosecutor obtained the statement, it appears to have taken place in advance of the

11 rebuttal. Insofar as the prosecutor failed to disclose the statement as soon as he came

12 into possession of it, a violation of the duty to disclose occurred. See McDaniel,

13 2004-NMCA-022, ¶ 10 (holding that the duty to disclose established by Rules 5-

14 501(A) and 5-505(A) was not violated where disclosure occurred “as soon as” the

15 prosecutor obtained the material in question).

16        Turning to the second factor, materiality is established upon a showing that

17 “there is a reasonable probability that, had the evidence been disclosed to the defense,

18 the result of the proceeding would have been different.”                    McDaniel,

19 2004-NMCA-022, ¶ 11 (internal quotation marks and citation omitted). This may be


                                              6
 1 accomplished either by demonstrating that the evidence would have been rendered

 2 insufficient to support the verdict, or by indicating how early disclosure of the

 3 statement would have changed the defense at trial. See id. ¶ 13.

 4        Defendant has advanced an attack on the sufficiency of the evidence. However,

 5 as illustrated by McDaniel and discussed at greater length below, the fact that

 6 Defendant denied the allegations and presented a different account of events does not

 7 amount to a demonstration that the result of the trial would have been different if the

 8 statement had been disclosed earlier. See id. (rejecting a claim of materiality where

 9 the defendant simply denied the allegations and presented a different account of

10 events).

11        Defendant has also suggested that the defense strategy would have been

12 different if the statement had been disclosed earlier, “at least to the extent that the

13 discrepancies between his testimony and the actual contents of the phone call would

14 have been cured and would have provided no basis for the State to further impugn his

15 credibility.” Because Defendant does not explain how this “cure” would have been

16 effectuated, we can only assume that some form of preparation for cross-examination

17 is envisioned. Because this is a valid consideration we further conclude that the

18 statement could be regarded as material. See State v. Allison, 2000-NMSC-027, ¶ 17,

19 129 N.M. 566, 11 P.3d 141 (quoting additional authority for the proposition that


                                              7
 1 information which would “clearly affect counsel’s decisions . . . on the preparation of

 2 [the] defendant for cross examination” is “material to the defense”) (internal quotation

 3 marks and citation omitted). The third factor, prejudice, depends upon an affirmative

 4 demonstration that the untimely disclosure adversely affected the defense. See

 5 McDaniel, 2004-NMCA-022, ¶ 14. As previously mentioned, credibility was a

 6 critical issue in this case. To the extent that the prosecutor’s failure to promptly

 7 disclose the statement deprived Defendant of the opportunity to alter his strategy and

 8 thereby minimize the damage to his credibility, he was prejudiced. See Allison, 2000-

 9 NMSC-027, ¶¶ 18, 26 (holding that the untimely disclosure of a prior arrest prejudiced

10 the defendant where credibility was critical to the defense, and where the prosecutor’s

11 conduct prevented the defense from altering its strategy). However, it is not clear

12 precisely how Defendant could have avoided an attack on his credibility in this case.

13        As mentioned above, Defendant contends that he would have altered his trial

14 strategy by preparing for cross-examination in such a way as to “cure” the

15 discrepancies between his testimony at trial and the content of the recorded statement.

16 We can only assume that this would have been accomplished by carefully reviewing

17 the recording in an effort to ensure that Defendant accurately and truthfully answered

18 the prosecutor’s questions about the extent to which Defendant and Helen had

19 discussed the trial proceedings. However, this approach would have presented a


                                              8
 1 different opportunity for the prosecutor to impugn Defendant’s credibility, insofar as

 2 Defendant’s admission to discussing the trial proceedings with another defense

 3 witness could have been characterized as an improper attempt to tailor their testimony

 4 to be consistent, or to otherwise address other evidence presented at trial. See

 5 generally State v. Hoxsie, 101 N.M. 7, 9, 677 P.2d 620, 622 (1984) (observing that the

 6 state has the right to inquire into and comment upon the credibility of defense

 7 witnesses, including by inference that the testimony was tailored to be consistent with

 8 other testimony), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108

 9 N.M. 722, 731, 779 P.2d 99, 108 (1989). Insofar as Defendant’s credibility was

10 subject to attack regardless of the strategy pursued at trial, the prejudicial effect of the

11 late disclosure upon the defense is questionable.

12         The fourth and final factor, curative action, concerns the form of remedy or

13 sanction imposed by the trial court in response to the untimely disclosure. Ruiz,

14 2007-NMCA-014, ¶ 54. Because Defendant did not object on grounds that the

15 prosecutor had failed to timely disclose the statement, no remedy or sanction was

16 sought. Nevertheless, the defense was given the opportunity to review the taped

17 conversation during a recess, and the prosecutor’s use of the statement was limited to

18 rebuttal. We regard this as a reasonable cure, particularly in light of Defendant’s

19 failure to request additional or alternative relief. Compare McDaniel, 2004-NMCA-


                                                9
 1 022, ¶¶ 16-17 (holding that an untimely disclosure was adequately cured where the

 2 use of the evidence in question was limited to rebuttal); and Ruiz, 2007-NMCA-014,

 3 ¶ 54 (observing that an untimely disclosure was adequately cured where a recess was

 4 granted in order to permit the defense to interview a surprise witness before he

 5 testified); with Allison, 2000-NMSC-027, ¶¶ 20-25 (concluding that a brief

 6 continuance was insufficient to cure a discovery violation relating to the disclosure

 7 of a prior arrest, where the prosecution was permitted both to use the arrest report for

 8 impeachment and subsequently to emphasize it in closing arguments, and where the

 9 defendant’s motion for mistrial was denied).

10        In summary, applying the four Mora factors to the situation at hand yields

11 equivocal results. Although the prosecutor appears to have violated the duty to

12 promptly disclose and the evidence at issue may have been material, both the

13 prejudicial effect of the untimely disclosure and the adequacy of the cure are fairly

14 debatable.

15        At this juncture, the standard of review becomes a crucial consideration. Even

16 if we assume that the admission of the statement into evidence was in error, we must

17 still consider whether the error was fundamental. Silva, 2008-NMSC-051, ¶ 11. “Our

18 fundamental error power is exercised only to correct injustices that shock the

19 conscience of the court, a term that has been used in our precedents ‘both to describe


                                              10
 1 cases with defendants who are indisputably innocent, and cases in which a mistake in

 2 the process makes a conviction fundamentally unfair notwithstanding the apparent

 3 guilt of the accused.’” State v. Saiz, 2008-NMSC-048, ¶ 59, 144 N.M. 663, 191 P.3d

 4 521 (citation omitted).

 5        As described at greater length in the following subsection, this is not a case

 6 involving indisputable innocence. Nor, ultimately, do we regard the untimely

 7 disclosure as sufficiently problematic to render the trial fundamentally unfair. We

 8 arrive at this conclusion partly because the disputed evidence was exclusively utilized

 9 in rebuttal, partly because the actual prejudice occasioned by the untimely disclosure

10 is so debatable, and partly because the trial court took reasonable curative action. Cf.

11 State v. Dominguez, 2007-NMSC-060, ¶ 23-28, 142 N.M. 811, 171 P.3d 750 (holding

12 that the trial court did not err in permitting the prosecutor to call a witness who had

13 not been named on the state’s witness list, partly because her testimony was utilized

14 only for rebuttal and partly because the prejudicial effect of her testimony was

15 speculative); State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968

16 (rejecting a discovery-related challenge in a criminal case, where there was no

17 affirmative showing that the alleged error was preserved and where the prejudice to

18 the defense was purely speculative), abrogated on other grounds by State v. Forbes,

19 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119 P.3d 144; State v. Manus, 93 N.M. 95,


                                              11
 1 103-04, 597 P.2d 280, 288-89 (1979) (rejecting a claim of reversible error based on

 2 the admission of rebuttal testimony by a witness who was not disclosed prior to trial,

 3 where the proceedings were briefly postponed to permit the defense to discover what

 4 he had to say), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d

 5 162 (1982); Ruiz, 2007-NMCA-014, ¶¶ 49-55 (rejecting a claim that a surprise

 6 rebuttal witness was improperly permitted to testify over objection, because the

 7 defense neither specifically claimed that early disclosure would have changed his

 8 defense at trial nor made a compelling showing of prejudice, and because a recess to

 9 permit an interview constituted an appropriate curative response under the

10 circumstances).

11        Defendant relies heavily on Allison as support for his request for a new trial.

12 However, Allison is readily distinguishable for several reasons. First, Allison involved

13 the surprise use of inherently prejudicial material: the defendant’s prior criminal

14 record, specifically involving the concealment of his identity from a law enforcement

15 officer. 2000-NMSC-027, ¶ 6. In this case, by contrast, Defendant has himself

16 characterized the recorded statement as “essentially collateral” and addressed to

17 “minor and non-material issues.” Second, the defendant in Allison demonstrated that

18 the attack on his credibility could have been readily avoided by pursuing a different

19 strategy at trial. Id. ¶ 18. For the reasons previously stated, it is not at all clear that


                                               12
 1 Defendant could have altered his strategy to accomplish a similar result. Finally, and

 2 perhaps most importantly, the Allison Court was not reviewing for fundamental error.

 3 As a consequence, we conclude that Allison is not controlling.

 4        In conclusion, while the prosecutor’s conduct “is not to be commended,”

 5 Manus, 93 N.M. at 103, 597 P.2d at 288, we cannot say that it “worked such a

 6 fundamental unfairness in [the d]efendant’s trial that it impugned the integrity of our

 7 judicial system.” Silva, 2008-NMSC-051, ¶ 15. We therefore reject Defendant’s

 8 claim of fundamental error.

 9 2.     Sufficiency of the Evidence

10        Defendant challenges the sufficiency of the evidence to support his

11 convictions.

12        In reviewing the sufficiency of the evidence in a criminal case, we must

13 determine whether substantial evidence exists to support a verdict of guilty beyond

14 a reasonable doubt for every essential element of the crime at issue. See State v. Rojo,

15 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). The evidence is

16 reviewed in the light most favorable to the verdict, resolving all conflicts and

17 indulging all permissible inferences to uphold the conviction and disregarding all

18 evidence and inferences to the contrary, to ensure that a rational jury could have found

19 that each element of the crime was established beyond a reasonable doubt. Id.


                                              13
 1        Defendant was convicted of CSCM pursuant to NMSA 1978, Section 30-9-

 2 13(B)(1) (2003), which defines the offense in pertinent part as the unlawful and

 3 intentional touching of the intimate parts of a child under thirteen years of age.

 4        To establish Defendant’s guilt, the State called the eight year-old Victim as a

 5 witness. She testified that Defendant awakened her from a nap on September 3, 2007,

 6 by touching her genitals and buttocks underneath her clothes. The State also called

 7 the Victim’s mother, the police officer to whom an incident report was made, and the

 8 individual who interviewed the Victim at the Santa Fe Rape Crisis Treatment Center.

 9 The Victim’s statements to each of these individuals were consistent. We conclude

10 that the foregoing evidence provides ample support for Defendant’s conviction. See,

11 e.g., State v. Gipson, 2009-NMCA-053, ¶¶ 12, 17, 146 N.M. 202, 207 P.3d 1179

12 (observing that the testimony of the minor victim and her mother was sufficient to

13 support convictions for CSCM).

14        Defendant focuses on the lack of corroboration and physical evidence.

15 However, neither of these conditions diminish the evidentiary sufficiency of the

16 Victim’s testimony. See State v. Trujillo, 60 N.M. 277, 283-84, 291 P.2d 315 (1955)

17 (holding that corroboration is not required to support a conviction for CSCM); State

18 v. Landers, 115 N.M. 514, 520, 853 P.2d 1270, 1276 (Ct. App. 1992) (observing that

19 physical evidence is not required to support a conviction for CSCM). We further


                                             14
 1 acknowledge that Defendant testified to a different version of events, and that he

 2 presented other evidence tending to undermine various aspects of the State’s case.

 3 “However, the jury was not obligated to believe [the d]efendant’s testimony, to

 4 disbelieve or discount conflicting testimony, or to adopt [the d]efendant’s view.”

 5 State v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (citing State v.

 6 Vernon, 116 N.M. 737, 738, 867 P.2d 407, 408 (1993) (noting that the fact finder may

 7 reject a defendant’s version of the incident in question)); and State v. Johnson, 99

 8 N.M. 682, 685, 662 P.2d 1349, 1352 (1983) (observing that conflicts in the evidence,

 9 including conflicts in testimony among witnesses, are to be resolved by the trier of

10 fact). We therefore reject Defendant’s challenge to the sufficiency of the evidence.

11 3.     Ineffective Assistance of Counsel

12        Finally, Defendant claims to have received ineffective assistance of counsel.

13        To prevail on this argument, Defendant bears the burden of establishing a prima

14 facie case of ineffective assistance. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M.

15 657, 54 P.3d 61. In order to establish a prima facie case of ineffective assistance of

16 counsel, Defendant must demonstrate that: (1) counsel’s performance fell below that

17 of a reasonably competent attorney; (2) no plausible, rational strategy or tactic

18 explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the

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


                                             15
 1 (setting out the factors for a prima facie case of ineffective assistance).

 2        Defendant bases his claim of ineffective assistance on defense counsel’s alleged

 3 failure to investigate potential alibi witnesses. Although Defendant speculates that a

 4 more thorough investigation would have strengthened the defense, the record supplies

 5 no support for this assertion. This is a fatal deficiency. See State v. Martinez, 2007-

 6 NMCA-160, ¶¶ 20, 23, 143 N.M. 96, 173 P.3d 18 (rejecting a claim of ineffective

 7 assistance of counsel based in part upon failure to conduct pretrial interviews, where

 8 the defendant provided no specifics on how his defense would have been strengthened

 9 by more preparation); State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d

10 845 (filed 1998) (rejecting a claim of ineffective assistance based on counsel’s alleged

11 failure to investigate, where the record was inadequate to support the claim). We

12 therefore reject Defendant’s ineffective assistance of counsel claim.

13 CONCLUSION

14        For the foregoing reasons, Defendant’s conviction is affirmed.

15        IT IS SO ORDERED.



16                                          ___________________________________
17                                          RODERICK T. KENNEDY, Judge




                                              16
1 WE CONCUR:



2 ___________________________
3 LINDA M. VANZI, Judge



4 ___________________________
5 ROBERT E. ROBLES, Judge




                                17
