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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                   NO. 28,976

 5 WILLIE SKINNER,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Charles Cruse Currier, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Robert E. Tangora, L.L.C.
13 Robert E. Tangora
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant was convicted by jury on one count of criminal sexual penetration

19 of a minor. [RP 197] He raises seven issues on appeal. [DS 6-8] This Court issued
 1 a calendar notice proposing to affirm on all issues, and Defendant filed a

 2 memorandum in opposition to our proposed decision. Unpersuaded, we affirm.

 3 A.     Preliminary Hearing

 4        Defendant argues that because the magistrate court did not conduct a

 5 preliminary hearing within ten days as required by Rule 6-202 NMRA, the magistrate

 6 court should have granted his motion to dismiss. [DS 7] In State v. Tollardo, 99 N.M.

 7 115, 654 P.2d 568 (Ct. App. 1982), this Court concluded that the rule “does not

 8 deprive the magistrate court of jurisdiction if the time limits . . . are not precisely

 9 followed.” Id. at 116, 654 P.2d at 569. The Court continued to hold that “[d]ismissal

10 is not the proper remedy for a delay in holding a preliminary examination when

11 prejudice to the defendant has not been shown.” Id. at 117, 654 P.2d at 570.

12        Defendant challenges the holding in Tollardo, arguing that it grafts a “non-

13 stated requirement of prejudice before any relief is affordable under the rule” and that

14 Tollardo rule renders Rule 6-202 meaningless. [DS 10] We decline to reach the

15 validity of Tollardo for two reasons. First, Defendant did not make this argument to

16 the magistrate court in his motion to dismiss and, as a result, it is not preserved. [RP

17 039] Second, the plain language of Rule 6-202(D) explains that “[f]ailure to comply

18 with the time limits set forth in this paragraph shall not affect the validity of any

19 indictment for the same criminal offense.” Based on this language, dismissal of


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 1 charges was not contemplated as a remedy for the failure to bring an evidentiary

 2 hearing within ten days of charging.

 3 B.     Bind-over Order

 4        Defendant also contends that there was insufficient evidence to support binding

 5 the case over to district court and that the district court wrongfully denied his motion

 6 to quash the bind-over. [DS 7] In its letter decision on Defendant’s motion, the

 7 district court concluded that “[i]n order to grant the Defendant’s [m]otion, this [c]ourt

 8 would have to engage in a complete review of the evidence.” [RP 085] Such a review

 9 is foreclosed by State v. Foulenfont, 119 N.M. 788, 895 P.2d 1329 (Ct. App. 1995),

10 in which this Court established that a district court may dismiss a criminal matter on

11 a dispositive legal issue, as long as the district court was not required to make any

12 factual determinations. Id. at 790, 895 P.2d at 1331.

13        The district court thus had the authority to quash the bind-over only if there

14 were no disputed facts and only questions of law at issue. Our Courts have applied

15 this rule narrowly. For example, in Foulenfont, the state “never disputed [the

16 d]efendants’ characterization of the factual predicate underlying the charges” and

17 “declined the district court’s invitation to propose additional facts to be included in

18 the record.” Id. In State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753, our

19 Supreme Court concluded that even though the state did not argue that additional


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 1 evidence existed, “pretrial dismissal under Rule 5-601(B) [NMRA] is inappropriate

 2 if the [s]tate could reasonably assert the availability of additional evidence.” Id. ¶ 7.

 3 In that case, the Court concluded that factual issues remained for jury determination.

 4 Id. ¶ 8. We reach a similar conclusion in the present case.

 5        There was no factual stipulation between the State and Defendant. See State v.

 6 Fernandez, 2007-NMCA-091, ¶ 9, 142 N.M. 231, 164 P.3d 112 (refusing to apply

 7 Foulenfont because there was no fact stipulation and the case required a jury

 8 determination). Further, Defendant did not make an argument to the district court

 9 based on Foulenfont. See Gomez, 2003-NMSC-012, ¶ 7 (“Because [the d]efendant

10 did not raise an argument under Foulenfont, it was unnecessary for the [s]tate to argue

11 in the district court that it might be able to obtain additional evidence if the case were

12 allowed to proceed to trial.”). For these reasons, we hold that Defendant did not

13 establish that only legal issues were before the trial court nor that dismissal was

14 therefore appropriate under Foulenfont.

15 C.     Access to Medical Records

16        Defendant next maintains that the district court improperly denied his motion

17 to access Victim’s medical, psychological, and school records. [DS 6, 3] “We will

18 not disturb the district court’s ruling absent an abuse of discretion.” State v. Gonzales,

19 1996-NMCA-026, ¶ 5, 121 N.M. 421, 912 P.2d 297. According to Defendant’s


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 1 docketing statement, as well as the district court’s notes, the district court reviewed

 2 the requested records in camera and released portions of the records to Defendant.

 3 [DS 3, RP 103, 160] This is the procedure approved by this Court in Gonzales. Id.

 4 (“The district court is in the best position to assess the probative value of challenged

 5 evidence as it relates to the facts before the court and to weigh that value against any

 6 interest in the confidentiality of records that may be subject to discovery.”).

 7        Defendant cites State v. Payton, 2007-NMCA-110, 142 N.M. 385, 165 P.3d

 8 1161, for the proposition that his “right to confront and cross examine witnesses

 9 weighs heavily in favor of allowing introduction of relevant evidence, even in sex

10 offense cases.” [DS 8] Payton explains that in certain situations, it is relevant that a

11 particular victim has suffered from previous sexual abuse. Id. ¶ 14. The district court

12 appears to have agreed with Defendant that Victim’s medical and sexual abuse history

13 was relevant. [RP 103] As a result, the record indicates that the district court

14 reviewed the medical records and released the relevant portions. [RP 120, 160; DS

15 3] Because the district court followed the correct procedure for the discovery of

16 medical and psychological records, we affirm. Gonzales, 1996-NMCA-026, ¶ 20

17 (“The proper procedure to determine relevance is that which was requested by

18 Defendant and ordered by the district court: in camera review.”). To the extent that

19 Defendant argues that the records should have been released in their entirety, he fails


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 1 to articulate how he was prejudiced by the district court’s partial release of records.

 2 D.     SANE Nurse Testimony

 3        At trial, the district court permitted a sexual assault nurse examiner to testify.

 4 [DS 4] Defendant argues that the State improperly called the nurse examiner to testify

 5 regarding evidence of injury when the injuries sustained were not related to the

 6 charged acts. [DS 7] For support, Defendant cites State v. Ortega, 2008-NMCA-001,

 7 143 N.M. 261, 175 P.3d 929, and State v. Romero, 2006-NMCA-045, 139 N.M. 386,

 8 133 P.3d 842. [DS 11] Ortega holds that statements to a sexual assault nurse

 9 examiner were testimonial and inadmissible because the Child who made the

10 statements was not subject to cross examination. 2008-NMCA-001, ¶ 36. Romero

11 simply concluded that statements to a sexual assault nurse examiner were testimonial

12 and not admissible. 2006-NMCA-045, ¶ 61. There is no hearsay or confrontation

13 issue in the present case, however, because Victim was available to and did testify.

14        The trial court agreed with Defendant that the nurse’s testimony regarding

15 injury was not relevant. In Defendant’s docketing statement, he explains that “[t]he

16 trial judge did exclude testimony regarding injuries but allowed testimony about

17 dates.” [DS 4] There was therefore no error by the trial court. Defendant’s phrasing

18 of the issue seems to acknowledge this: “Did the State err in calling the sexual assault

19 nurse examiner[?]” [DS 7] We do not review the State’s decisions to call certain


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 1 witnesses. Instead, we review the district court’s decisions to allow those witnesses

 2 to testify. In the present case, the district court did not permit the witness to testify

 3 about irrelevant issues.

 4 E.     Sufficiency of the Evidence to Support the Verdict

 5        Defendant further argues that there is not sufficient evidence to support the

 6 jury’s verdict because Victim could not recall the date of alleged act of criminal sexual

 7 penetration or testify consistently regarding the location and circumstances of the act.

 8 [DS 7] “Substantial evidence is such evidence as is acceptable to a reasonable mind

 9 as adequate support for a conviction.” State v. Mankiller, 104 N.M. 461, 465, 722

10 P.2d 1183, 1187 (Ct. App. 1986).

11        It is well established that where the indictment has alleged a specific time, that

12 allegation is material and there must be evidence to locate the charged criminal act

13 within the alleged time period. Id. at 464-65, 722 P.2d at 1186-87. The criminal

14 complaint charges that the incidents occurred “on or about the 6th and 7th day of

15 November 2007.” [RP 010] Defendant’s argument appears to rest on two pieces of

16 evidence: (1) that the child could not recall the date of the alleged act and (2) that

17 another witness placed the date of the occurrences no later than November 5, 2007.

18 [DS 5] In Mankiller, the testimony established that the defendant was in the correct

19 city during the month surrounding the charged dates. Id. at 465, 722 P.2d at 1187.


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 1 The victim also testified that the incidents happened in the same month. Id. Based

 2 on this testimony, this Court determined that there was sufficient evidence to support

 3 a conviction for incidents alleged to have happened on or about a certain date—even

 4 though the actual dates alleged in the indictment were shown to be incorrect. Id. at

 5 464-65, 722 P.2d at 1186-87. Victim’s mother provided additional testimony that

 6 Victim was at Defendant’s house from November 2 through November 7. [DS 5] We

 7 therefore hold that substantial evidence supported the alleged time frame.

 8        Defendant also contends that insufficient evidence supported the verdict

 9 because Victim failed to testify consistently regarding the location or the

10 circumstances of the event. [DS 7] State v. Sena, 2008-NMSC-053, 144 N.M. 821,

11 192 P.3d 1198, however, explains that conflicting testimony is to be resolved by the

12 jury. Id. ¶ 11. It appears that Victim testified and provided a version of events that

13 was at odds with her pretrial statements. [DS 4-5] Nevertheless, Defendant had an

14 opportunity to cross-examine her regarding these inconsistencies. In addition, he took

15 the stand himself, in order to offer his own explanation of the events. [DS 6] Our

16 Supreme Court has explained that “[a]ppellate courts faced with a record of historical

17 facts that supports conflicting inferences must presume—even if it does not

18 affirmatively appear in the record—that the trier of fact resolved any such conflicts

19 in favor of the [prevailing party], and must defer to that resolution.” Id. ¶ 11


                                             8
 1 (alterations in original) (internal quotation marks and citation omitted). As a result,

 2 we also hold that substantial evidence supported the location and the circumstances

 3 of the charges.

 4 G.     Sentence Mitigation

 5        Defendant next argues that the district court erred by concluding that there was

 6 insufficient evidence to warrant mitigation of the sentence. [DS 7-8] “We review the

 7 trial court’s sentencing for an abuse of discretion.” State v. Aker, 2005-NMCA-063,

 8 ¶ 8, 137 N.M. 561, 113 P.3d 384. At the post-conviction hearing, Defendant offered

 9 the testimony of Dr. Moss Aubrey. [DS 6] Dr. Aubrey testified that “Defendant’s

10 conduct stemmed primarily from his dependent and avoidant personality disorder, and

11 not from an entrenched predatory sexual interest in young girls.” [DS 6] Further, the

12 doctor opined that “adjustment would be made more difficult the longer [Defendant]

13 is incarcerated.” [DS 6]

14        The district court sentenced Defendant to 18 years in prison for one count of

15 sexual penetration of a minor, which is a first degree felony. [RP 197] See NMSA

16 1978, § 30-9-11(D)(1) (2007). The basic sentence for a first degree felony is 18 years

17 imprisonment. NMSA 1978, § 31-18-15(A)(3) (2007). The sentence, therefore, was

18 not contrary to law. It has been made clear that “[r]egardless of what mitigating

19 evidence [the d]efendant presented, the statutory scheme does not require the trial


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 1 court to depart from the basic sentence.” State v. Gardner, 2003-NMCA-107, ¶ 42,

 2 134 N.M. 294, 76 P.3d 47. Further, “[i]t is settled law in this jurisdiction that a

 3 suspended sentence is a matter of judicial clemency to which a defendant may never

 4 claim entitlement.” State v. Sosa, 122 N.M. 446, 448, 926 P.2d 299, 301 (1996). We

 5 therefore hold that the district court did not abuse its discretion by refusing to mitigate

 6 Defendant’s sentence. See id. (“[W]e cannot see how failure to suspend a statutorily-

 7 prescribed sentence can ever be characterized as anything other than a refusal to grant

 8 leniency.” (internal quotation marks and citation omitted)).

 9 F.     Rebuttal Witness

10        After Defendant rested his case at trial, the State called a rebuttal witness in

11 order to rebut a portion of Defendant’s testimony. [DS 6] Defendant’s testimony had

12 suggested that Victim was not at the home during the time period that the acts

13 allegedly took place. [DS 6] This testimony contradicted the statements of Victim’s

14 mother—who had also been a witness. [DS 6] The rebuttal witness testified as to the

15 honesty of Victim’s mother. [DS 6] Defendant attempted to “offer proof that

16 [Victim’s mother] had been investigated for fraudulent child custody/support issues.”

17 [DS 6] The district court did not permit Defendant to offer that evidence. [DS 6]

18 Defendant argues that the district court should not have permitted the rebuttal witness

19 to testify and that, further, the district court should not have limited the scope of


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 1 Defendant’s cross-examination of the rebuttal witness. [DS 8] “The admissibility of

 2 rebuttal evidence is within the discretion of the trial court and will not be disturbed

 3 absent an abuse of that discretion.” State v. Simonson, 100 N.M. 297, 302, 669 P.2d

 4 1092, 1097 (1983).

 5        “Genuine rebuttal evidence consists of evidence on new matters asserted in the

 6 defense’s case.” Id. Based on the statement of facts in Defendant’s docketing

 7 statement, the character evidence was offered in attempt to address the issue of

 8 Victim’s mother’s credibility, which was raised during Defendant’s presentation of

 9 his case. “The [s]tate is entitled to correct false impressions given to a jury by the

10 defense through rebuttal testimony.” Id. The district court therefore did not abuse its

11 discretion by permitting the rebuttal witness to testify.

12        It is also within the court’s discretion to limit the cross-examination of a

13 rebuttal witness. See State v. Ewing, 97 N.M. 235, 237-38, 638 P.2d 1080, 1082-83

14 (1982). Rule 11-608(B) NMRA states that “[s]pecific instances of the conduct of a

15 witness, for the purpose of attacking or supporting the witness’s character for

16 truthfulness, other than conviction of crime as provided in Rule 11-609 [NMRA], may

17 not be proved by extrinsic evidence.” Rule 11-608 also explains that a party may

18 inquire into specific instances of the conduct of a witness on cross-examination “if

19 probative of truthfulness or untruthfulness.” Defendant did not attempt to cross-


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 1 examine the rebuttal witness about the specific instance of conduct—Victim’s

 2 mother’s history of fraud. Instead, he tried to offer extrinsic evidence of the

 3 investigation of fraud. Such an offer is not permitted under Rule 11-608.

 4        Rule 11-609(A) permits a party to attack the character for truthfulness of a

 5 witness with “evidence that any witness has been convicted of a crime . . . if it readily

 6 can be determined that establishing the elements of the crime required proof or

 7 admission of an act of dishonesty or false statement by the witness.” In the present

 8 case, Defendant attempted to offer extrinsic evidence that the witness—Victim’s

 9 mother—had been investigated for fraud. Although this evidence of fraud would cast

10 a shadow on the witness’s honesty, Defendant’s docketing statement indicates that she

11 was not convicted of fraud. [DS 6] As a result, Rule 11-609(B) does not permit the

12 introduction of extrinsic evidence to prove a specific instance of conduct.

13        For the reasons set forth above, we affirm.

14        IT IS SO ORDERED.



15                                                 ________________________________
16                                                 CELIA FOY CASTILLO, Judge




17 WE CONCUR:


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1 ________________________________
2 JONATHAN B. SUTIN, Judge



3 ________________________________
4 MICHAEL E. VIGIL, Judge




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