 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 28,258

10 ADAN M. CARRILLO,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas A. Rutledge, District Judge


14 Gary K. King, Attorney General
15 Ann M. Harvey, Assistant Attorney General
16 Sante Fe, NM

17 for Appellee

18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Will O’Connell, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 KENNEDY, Judge.
 1        Adan M. Carrillo (Defendant) appeals from his convictions for two counts of

 2 criminal sexual penetration of a minor (CSPM) and one count of criminal sexual

 3 contact of a minor (CSCM). Defendant’s first trial resulted in a mistrial due to

 4 manifest necessity. His second trial resulted in the convictions that he has appealed.

 5 Defendant argues that the district court (1) deprived him of his constitutional right to

 6 present a defense by improperly excluding testimony regarding Victim’s father’s

 7 sexual misconduct; (2) subjected him to double jeopardy through his two convictions

 8 for criminal sexual contact of a minor; and (3) improperly granted a mistrial at the first

 9 trial, thereby, making his subsequent conviction void. We address each argument in

10 turn, discussing the pertinent facts as needed.

11 I.     DISCUSSION

12 A.     The Testimony Was Properly Excluded

13        Defendant contends that the district court wrongfully excluded testimony about

14 Victim’s father’s past sexual misconduct. “The trial court’s admission or exclusion

15 of evidence is reviewed on an abuse of discretion standard.” State v. Johnson, 2010-

16 NMSC-016, ¶ 40, 148 N.M. 50, 229 P.3d 523. “It is within the discretion of the trial

17 court to evaluate the relevance of evidence.” State v. Duffy, 1998-NMSC-014, ¶ 31,

18 126 N.M. 132, 967 P.2d 807. “An abuse of discretion occurs when the court’s ruling

19 is clearly against the logic and effect of the facts and circumstances of the case. We



                                               2
 1 cannot say the trial court abused its discretion . . . unless we can characterize [its

 2 ruling] as clearly untenable or not justified by reason.” State v. Branch, 2010-NMSC-

 3 042, ¶ 9, 148 N.M. 601, 241 P.3d 602 (alterations in original) (internal quotation

 4 marks and citation omitted).

 5        “The proponent of the evidence bears the burden of affirmatively demonstrating

 6 its relevance.” Duffy, 1998-NMSC-014, ¶ 31. “‘Relevant evidence’ means evidence

 7 having any tendency to make the existence of any fact that is of consequence to the

 8 determination of the action more probable or less probable than it would be without

 9 the evidence.” Rule 11-401 NMRA. “Relevancy is that which tends to establish a

10 material proposition.” State v. Romero, 86 N.M. 99, 102, 519 P.2d 1180, 1183 (Ct.

11 App. 1974).

12        At trial, Defendant offered to introduce the testimony of three witnesses whose

13 testimony was offered to show that Victim’s father had a pattern of molesting family

14 members. Defense counsel described the evidence as “a family secret that was not

15 brought forth to [the] authorities[.]” The younger sister of Victim’s father would have

16 testified that from ages six to seven years old, she was sexually molested by Victim’s

17 father. Subsequently, both she and Victim’s father received counseling for sexual

18 abuse. The district court determined that the incidents happened eighteen to nineteen

19 years ago when Victim’s father was thirteen or fourteen years old. In addition,



                                              3
 1 defense counsel proffered the testimony of a second witness, who would testify that

 2 Victim’s father molested him when he was nine to ten years old, about seventeen to

 3 eighteen years ago. Last, defense counsel offered testimony from the half-niece of

 4 Victim’s father, who was prepared to testify that as adults, Victim’s father had groped

 5 her and attempted to have sex with her while he was intoxicated.          Defense

 6 counsel explained that he offered this testimony to rebut the State’s evidence that

 7 Victim began to have nightmares after Defendant started sexually molesting her. The

 8 nightmares were at issue because they led Victim to disclose the abuse to a caregiver.

 9 Defense counsel argued that the testimony “would establish that [the nightmares]

10 started prior to the dates listed by the State.” Defense counsel asserted that “[its]

11 purpose was to show a pattern that has gone [on] from [eighteen] years ago to the

12 present day[.]” We interpret the evidence as serving two purposes: (1) to indicate that

13 Victim’s nightmares had begun before the time that Victim says she was abused by

14 Defendant and (2) to imply that Victim’s molestation was attributable to her father.

15 Defendant did not argue the latter.

16        After hearing arguments from Defendant, the district court denied admission

17 of this testimony, stating that the older incidents were “uncharged prior acts that

18 occurred [seventeen] to [nineteen] years ago involving [Victim’s father], when he was

19 allegedly [thirteen] or [fourteen years old].” The court then found that the later adult



                                              4
 1 incidents “involve adult activities, and [the court does] not see . . . relevant in this

 2 matter at this point in time . . . alcohol[-]related activities of adults.” Furthermore, the

 3 court stated that “[o]bviously[, defense counsel] can inquire into [the nightmares] and

 4 establish who had custody of [Victim] at this earlier date of the nightmares and

 5 whether or not . . . Defendant had significant access. . . . [T]hat is [a] perfectly

 6 appropriate inquiry in this matter.”

 7        We conclude that the district court did not abuse its discretion in denying

 8 admission of the above-described testimony. At issue was whether the testimony had

 9 a tendency to make the fact that Victim’s nightmares corresponded with Defendant’s

10 molestation more or less true. Here, the connection between the proffered testimony

11 and the nightmares was too attenuated to be relevant. The testimony from Trevino

12 and Carrillo described uncharged conduct occurring seventeen to nineteen years prior

13 to trial. These incidents do not demonstrate that Victim was having nightmares prior

14 to the molestation as Defendant sought to show. Rather, they show that Victim’s

15 father may have molested two family members when he was a minor. In addition, the

16 testimony regarding Victim’s father as an adult groping and attempting to have sex

17 with another adult while intoxicated also fails to disprove the fact that Victim began

18 having nightmares when she was molested by Defendant as the incidents do not




                                                5
 1 involve children. We agree that the alcohol-related activities of adults are irrelevant

 2 to the issue of Victim’s nightmares.

 3        Since the testimony was with regard to incidents too attenuated in time and

 4 subject matter, we conclude that the district court properly excluded the testimony

 5 offered by Defendant.

 6 B.     Double Jeopardy

 7        Defendant contends that he was subjected to double jeopardy by being charged

 8 with two counts of criminal sexual penetration of a minor because the jury was given

 9 “carbon copy” jury instructions that did not distinguish the first count from the

10 second. We review constitutional issues regarding double jeopardy violations under

11 a de novo standard of review. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M.

12 710, 82 P.3d 77. In Swafford v. State, our Supreme Court enumerates three separate

13 protections created by the double jeopardy prohibition, which include protection

14 “against a second prosecution for the same offense after acquittal[,] against a second

15 prosecution for the same offense after conviction[, a]nd . . . against multiple

16 punishments for the same offense.” 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991)

17 (internal quotation marks and citation omitted). There are two types of cases involved

18 in the double jeopardy prohibition against multiple punishments: “cases in which a

19 defendant has been charged with multiple violations of a single statute based on a



                                              6
 1 single course of conduct, known as ‘unit of prosecution’ cases; and cases in which a

 2 defendant is charged with violations of multiple statutes for the same conduct, known

 3 as ‘double-description’ cases.” State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M.

 4 211, 131 P.3d 61 (citation omitted). The case at hand is a unit of prosecution case as

 5 Defendant was charged with multiple violations of the same statute for conduct that

 6 he contends was unitary.

 7        In State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, we dealt

 8 with a similar situation “when two identical instructions were submitted to the jury

 9 based on two counts of attempted [criminal sexual penetration (CSP),] . . . both of

10 which were alleged to have occurred” during the same time period. Id. ¶ 20. There,

11 we determined that, through testimony, the victim “distinguished each attempt by time

12 and circumstance, and she described intervening events.” Id. ¶ 22. We upheld the

13 defendant’s convictions for the multiple counts of CSP and found that the carbon copy

14 jury instructions did not violate double jeopardy rights “because the incidents were

15 separated by time and intervening events.” Id. ¶ 23.

16        Similarly, in State v. Martinez, 2007-NMCA-160, ¶¶ 4-17, 143 N.M. 96, 173

17 P.3d 18, we upheld the defendant’s convictions for CSPM when the jury was given

18 carbon copy instructions as to multiple counts of CSPM. There, the victim “testified

19 to the particulars” of each incident, giving specific details and distinguishing when the



                                               7
 1 events took place. Id. ¶¶ 12-13, 16, 17. In addition, the defendant had admitted to

 2 having sexual intercourse with the victim. Id. ¶ 14. We determined that double

 3 jeopardy was not violated because substantial evidence supported each count, and

 4 “[t]he fact that some incidents were instructed identically does not change this

 5 conclusion.” Id. ¶¶ 14, 17.

 6        The central issue here is whether proof of the two counts of CSPM was separate

 7 and distinct, so the jury could distinguish between the counts and convict on each

 8 individually. “Conduct is not unitary if sufficient indicia of distinctness separate the

 9 transaction into several acts. In making this determination, we evaluate separations

10 in time and space as well as the quality and nature of the acts or the results involved.”

11 State v. Montoya, 2011-NMCA-___, ¶ 31, ___ N.M. ___, ___ P.3d ___ (No. 28,881,

12 May 27, 2011) (internal quotation marks and citation omitted). As we have stated in

13 State v. Salazar, “if there was sufficient evidence from which the jury could have

14 found that each act was in some sense distinct from the other, then the conduct was

15 not unitary.” 2006-NMCA-066, ¶ 31, 139 N.M. 603, 136 P.3d 1013.

16        In this case, the State failed to provide evidence that Defendant’s conduct was

17 not unitary. Victim, who was seven years old at the time of the trial, testified

18 generally that she was repeatedly forced to engage in fellatio with Defendant. Victim




                                               8
 1 testified that Defendant “[p]ut his private in [her] mouth” more than once. The direct

 2 examination of Victim by the State went as follows:

 3        Q[:] How often would this happen?

 4        A[:] It happened a lot of times.

 5        Q[:] Was it more than once?

 6        A[:] Yes.

 7        Q[:] More than twice?

 8        A[:] Yes.

 9        Q[:] More than three times?

10        A[:] Yes.

11        The State never asked Victim about specific encounters, nor did the State

12 attempt to elicit testimony from Victim that would distinguish one encounter from

13 another by a difference in time, place, or conduct. Unlike the evidence presented in

14 Dombos or Martinez, nothing indicated that the encounters with Defendant were

15 separate and distinct besides Victim’s testimony that the sexual abuse happened

16 multiple times. In failing to distinguish one instance from another, Defendant could

17 potentially have been convicted twice for the same conduct, subjecting him to double

18 jeopardy. See State v. Garcia, 2011-NMSC-003, ¶ 38, 149 N.M. 185, 246 P.3d 1057

19 (“The bar on double jeopardy serves the obvious purpose of ensuring that a defendant



                                             9
 1 is not punished twice for the same offense.”). Because the State failed to demonstrate

 2 that each encounter was separate and distinct, the evidence indicates that Defendant’s

 3 course of conduct was unitary. Thus, we reverse Defendant’s conviction for the

 4 second count of CSPM.

 5 C.     Mistrial Was Required by Manifest Necessity

 6        When the district court declares a mistrial, “the double jeopardy protection

 7 generally prohibits a defendant from being retried for the same offense unless the

 8 mistrial was found to have been declared for reasons of manifest necessity.” State v.

 9 Yazzie, 2010-NMCA-028, ¶ 10, 147 N.M. 768, 228 P.3d 1188 (internal quotation

10 marks and citation omitted). Defendant argues that the district court improperly

11 granted a mistrial at his first trial, following an incident in which a juror believed she

12 had been threatened during deliberations by a person who indicated that he was related

13 to Defendant. “To say that a mistrial is required because of manifest necessity means

14 that in order to preserve the ends of public justice, it is clear and evident that

15 terminating the trial is necessary because of something extraordinary which occurred

16 in the trial.” Id. ¶ 11 (internal quotation marks omitted). Manifest necessity is always

17 the grounds for the mistrial when the court chooses to declare a mistrial sua sponte.

18 Id. The requirement of manifest necessity in such a situation ensures that the




                                               10
 1 defendant’s constitutional protection against double jeopardy will only yield to the

 2 public’s interest when supported by a sufficient reason. Id.

 3         As explained above, the circumstances that necessitate the mistrial on these

 4 grounds must be extraordinary. Id. ¶ 13. When balancing a defendant’s interest

 5 against the public’s, “where the irregularity involves possible partiality within the

 6 jury, it has been more often held that the public interest in fair verdicts outweighs [a]

 7 defendant’s interest in obtaining a verdict by his first choice of jury.” State v. De

 8 Baca, 88 N.M. 454, 459, 541 P.2d 634, 639 (Ct. App. 1975). We also examine

 9 whether the district court considered less severe alternatives to the mistrial that would

10 also ensure an impartial verdict. Yazzie, 2010-NMCA-028, ¶¶ 12-13. “Affecting the

11 scope of inquiry required are the factors of magnitude of prejudice and the point at

12 which the proceedings are terminated. As the magnitude of possible prejudice

13 increases, we would expect less effort to be expended in seeking alternative

14 resolutions.” De Baca, 88 N.M. at 460, 541 P.2d at 640.

15          Prior to the threat involving a juror, the jury had not reached unanimity,

16 though the jury foreperson announced that the jury might be able to reach a verdict if

17 permitted to go home and resume deliberations in the morning, which the court

18 allowed. The next morning a juror reported to the court that she was threatened at a

19 restaurant by a teenage boy who had approached her and stated: “You had better not



                                              11
 1 vote for a guilty verdict for my grandpa.” As a result, the juror was “very shaken

 2 [and] very concerned.”

 3        Defense counsel specifically requested a mistrial “because of what happened

 4 to this jury and [because both counsel and the court] don’t know what’s going on [in

 5 the jury room] at this point.”        The State agreed, asserting that if the juror

 6 communicated the incident to the rest of the jury, the jury would likely use such

 7 information to infer negative attributes about “the type of person [Defendant] is[.]”

 8        The district court indicated its reluctance to have a mistrial, stating that it would

 9 “like to see the jury” and that Defendant “is entitled to his day in court and he’s had

10 it. The jury is deliberating. This is . . . very serious.” The district court brought the

11 juror in to determine whether such a threat would affect her ability to make an

12 impartial decision, and whether she had discussed the matter with the other jurors.

13 The juror stated that she “was furious” about the teenagers coming to her table and

14 one of them making the threat. The juror indicated that, in addition to the threat,

15 “they” had been following her this morning from her home to the courthouse, and

16 “they were sure watching [her].” She disclosed that she had already discussed the

17 incident with the rest of the jury.

18        Subsequently, the district court summoned the jury and counsel to court and

19 stated that it had no choice but to declare a mistrial. The court explained:



                                               12
 1        [W]hat I am going to do is declare a mistrial in this matter. It’s the only
 2        thing that I can do and be fair to . . . Defendant and . . . the jurors. This
 3        is something that we did not anticipate. We never anticipate any type of
 4        allegation like this coming forth where jurors are placed in a situation
 5        that bothers them, that concerns them.

 6               And so there’s just as far as the [c]ourt’s concerned, a manifest
 7        necessity to say thanks. I’m going to release you. I’m going to tell you
 8        that this [c]ourt is going to retain jurisdiction to retry this case.

 9        We conclude that the threat to the juror, her reaction to it, and her

10 communication of the threat to the other jurors were adequate grounds for granting a

11 mistrial for manifest necessity. The identification of the threat as emanating from

12 Defendant’s family, the additional contact the following morning from the teenager

13 who made the threat, and the communication of the incident to the entire jury posed

14 too great a likelihood of prejudice toward Defendant and sufficiently justified the

15 court’s declaration of a mistrial even when weighed against Defendant’s right to be

16 protected from double jeopardy. As defense counsel had argued, the juror’s emotions

17 likely weighed upon the other jurors, creating unfair prejudice toward Defendant. By

18 granting the mistrial, the court chose to protect both the public’s and Defendant’s

19 interest in having a fair trial without the involvement of prejudice created by the

20 threat. This interest greatly outweighed Defendant’s interest in being tried by his first-

21 choice jury.




                                               13
 1        The district court clearly considered less severe alternatives than a mistrial, as

 2 it was reluctant to declare one. While determining whether the juror would still be

 3 impartial and whether the entire jury was tainted by the incident, the district court

 4 determined that the juror was still distraught over the matter and that the entire jury

 5 had learned of the threat. At this point, we agree that the district court could not

 6 ensure impartiality of the jury without granting a mistrial. The threat jeopardized the

 7 jury’s ability to consider the facts without bias against Defendant. Since the

 8 magnitude of the prejudice was great, we do not expect the district court to spend

 9 more effort than it did in determining alternatives to a mistrial.

10        We conclude there was a manifest necessity to grant a mistrial due to the threat

11 communicated to one of the jurors. Thus, Defendant’s convictions from his second

12 trial are valid.

13 II.     CONCLUSION

14        Because the jury instructions for two counts of CSPM violated Defendant’s

15 right to be free from double jeopardy, we reverse Defendant’s conviction for the

16 second count of CSPM. The district court properly excluded certain testimony offered

17 by Defendant in his defense. The district court also properly determined that manifest

18 necessity was established at Defendant’s first trial, and his subsequent retrial did not




                                              14
1 violate Defendant’s protection from double jeopardy. Hence, we affirm Defendant’s

2 remaining convictions for one count of CSPM and one count of CSCM.




                                         15
1      IT IS SO ORDERED.



2                                      _______________________________
3                                      RODERICK T. KENNEDY, Judge


4 WE CONCUR:



5 _________________________________
6 MICHAEL D. BUSTAMANTE, Judge



7 _________________________________
8 TIMOTHY L. GARCIA, Judge




                                  16
