     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 29,109

 5 MANUEL HECTOR CHACON-LOZANO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
 8 Timothy L. Garcia, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender
14 Will O’Connell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant
17                                 MEMORANDUM OPINION

18 WECHSLER, Judge.

19          Defendant Manuel Hector Chacon-Lozano appeals his convictions after a jury
 1 trial for two counts of kidnapping, three counts of criminal sexual contact of a minor

 2 (CSCM), two counts of intimidation of a witness, and one count of enticement of a

 3 child. We hold that (1) Defendant did not receive ineffective assistance of counsel

 4 when trial counsel (a) did not move to exclude statements made by the victim to a

 5 sexual assault nurse examiner (SANE nurse) on Confrontation Clause or hearsay

 6 grounds, and (b) did not proffer a lesser-included-offense instruction for false

 7 imprisonment for the two counts of kidnapping; (2) the district court did not abuse its

 8 discretion by admitting (a) hearsay testimony regarding statements the victim’s father

 9 made to the SANE nurse who examined the victim, and (b) testimony regarding a

10 prior statement made by Defendant during a plea allocution in a related case; (3)

11 prosecutorial misconduct did not deprive Defendant of a fair trial; and (4) cumulative

12 error did not deprive Defendant of a fair trial. Accordingly, we affirm Defendant’s

13 convictions.

14 BACKGROUND

15        Defendant appeals his convictions for two counts of kidnapping, three counts

16 of CSCM, two counts of intimidation of a witness, and one count of enticement of a

17 child. The jury returned not guilty verdicts on criminal sexual penetration of a minor

18 (CSPM) and attempt to commit CSPM. The convictions arose out of several incidents

19 in which Defendant molested the minor daughter of his girlfriend (J.G.) while his

                                              2
 1 girlfriend was briefly imprisoned.

 2        J.G. testified as a witness for the State. During her testimony, J.G. testified

 3 regarding three incidents in which Defendant touched her. First, she testified that

 4 Defendant tried to kiss her in the living room of her mother’s home but that she said

 5 “no.” Defendant then grabbed J.G. by the arm and took her into J.G.’s mother’s room.

 6 While in J.G.’s mother’s bedroom, Defendant touched J.G. with his hands, over J.G.’s

 7 clothes, on her “privates.” Second, J.G. testified that a second incident took place in

 8 one of the back bedrooms of her mother’s home. J.G. testified that, during this

 9 incident, Defendant again touched her in the same area, with his hands, over her

10 clothes. Third, J.G. testified that a third incident took place in which Defendant tied

11 J.G. to a chair using an orange cord and put tape over her mouth. Defendant then took

12 off J.G.’s clothes and touched her private areas. After Defendant finished touching

13 J.G., Defendant told J.G. that he would hit her if she told her mother about the

14 incident.

15        On appeal, Defendant argues that (1) he received ineffective assistance of

16 counsel, (2) the district court erred in admitting J.G.’s father’s hearsay statement made

17 to a SANE nurse, (3) the district court improperly admitted a prior statement that it

18 previously ruled inadmissible, (4) prosecutorial misconduct deprived Defendant of a

19 fair trial, and (5) cumulative error deprived Defendant of a fair trial. We address each

                                               3
 1 of Defendant’s arguments in turn.

 2 INEFFECTIVE ASSISTANCE OF COUNSEL

 3        Defendant argues that he received ineffective assistance of counsel because his

 4 trial counsel failed to move to exclude statements made by J.G. to a SANE nurse on

 5 the grounds that the statements violated Defendant’s right to confront witnesses and

 6 because the statements were inadmissible hearsay. Additionally, Defendant argues

 7 that he received ineffective assistance of counsel because his trial counsel failed to

 8 proffer a lesser-included-offense instruction for false imprisonment as a lesser-

 9 included offense of the kidnapping charges.

10        In order to establish a prima facie case of ineffective assistance of counsel, a

11 defendant has the burden of showing that (1) “counsel’s performance fell below that

12 of a reasonably competent attorney,” and (2) “that the deficient performance

13 prejudiced the defense.” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979

14 P.2d 729 (internal quotation marks and citation omitted). This standard requires the

15 defendant to demonstrate that the errors of counsel “were so serious as to deprive the

16 defendant of a fair trial” such that the results of the trial are not reliable. Strickland

17 v. Washington, 466 U.S. 668, 687 (1984). We review counsel’s performance in a

18 “highly deferential” manner; “counsel is strongly presumed to have rendered adequate

19 assistance and made all significant decisions in the exercise of reasonable professional

                                               4
 1 judgment.” Id. at 689-90. An appellate court “will not second guess the trial strategy

 2 and tactics of the defense counsel.” State v. Gonzales, 113 N.M. 221, 230, 824 P.2d

 3 1023, 1032 (1992). In order to find prejudice, a court “must ask if the defendant has

 4 met the burden of showing that the decision reached would reasonably likely have

 5 been different absent the errors.” Strickland, 466 U.S. at 696.

 6 Statements Made to SANE Nurse

 7        We first address Defendant’s arguments that he received ineffective assistance

 8 of counsel because his trial counsel did not move to exclude statements J.G. made to

 9 the SANE nurse prior to J.G.’s examination. We begin by summarizing the testimony

10 at issue.

11        Dr. Jamie Gagan, the medical director of the SANE program in Santa Fe,

12 testified on behalf of the State. She testified that Mindy Tucker was the nurse

13 examiner who examined J.G., but that Tucker left the SANE program for personal

14 reasons. Dr. Gagan testified that, before the examination, J.G. provided Tucker with

15 a statement, commonly referred to as a “history.” During the history, J.G. told Tucker

16 about three specific incidents in which Defendant touched J.G.’s private areas,

17 including one in which Defendant asked her to orally copulate Defendant’s penis and

18 several instances in which Defendant stuck his fingers in J.G.’s anus. Based on the

19 history, Tucker ordered laboratory tests for sexually transmitted diseases. J.G. tested

                                              5
 1 positive for chlamydia, which Dr. Gagan testified is conclusive of sexual contact.

 2        Detective Lawrence Murray, who was the investigating officer assigned to this

 3 case, also testified regarding the interview with the SANE nurse. He personally

 4 observed the interview from another location via video monitor. Although he did not

 5 provide details of the interview, Detective Murray testified that J.G. gave good

 6 disclosure, revealed three instances of sexual contact with Defendant, and revealed

 7 that there was some type of penetration during the instances. Detective Murray also

 8 testified that he later learned from Tucker that J.G. tested positive for chlamydia and

 9 that J.G. did not allege that anyone other than Defendant touched her inappropriately.

10 Specifically, because of hearsay concerns, Detective Murray did not reveal details

11 about specific statements made by J.G. during the interview.

12        Confrontation Clause

13        Defendant first contends that J.G.’s statements to the SANE nurse were

14 testimonial and that their introduction at trial violated Defendant’s right to confront

15 his accuser. Because defense counsel failed to object to the admission of these

16 statements, Defendant argues that he received ineffective assistance of counsel.

17 Generally, “[o]ut-of-court testimonial statements are barred under the Confrontation

18 Clause, unless the witness is unavailable and the defendant had a prior opportunity to

19 cross-examine the witness[.]” State v. Zamarripa, 2009-NMSC-001, ¶ 23, 145 N.M.

                                              6
 1 402, 199 P.3d 846

 2        Defendant argues that J.G.’s statements to the SANE nurse were testimonial

 3 under this Court’s opinion in State v. Romero, 2006-NMCA-045, 139 N.M. 386, 133

 4 P.3d 842, aff’d by 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694. In Romero, this

 5 Court held that “the victim’s statement to the SANE practitioner is testimonial

 6 because it falls into the third category of evidence labeled testimonial . . ., statements

 7 that were made under circumstances which would lead an objective witness

 8 reasonably to believe that the statement would be available for use at a later trial.”

 9 2006-NMCA-045, ¶ 54 (internal quotation marks and citation omitted). Therefore,

10 in Romero, because the victim was not available to testify, this Court held that the

11 district court should have excluded the victim’s statements to the SANE nurse. Id. ¶¶

12 47, 61.

13        While Romero indicates that J.G.’s statements to Tucker were testimonial,

14 Defendant’s confrontation rights were not violated by Dr. Gagan’s and Detective

15 Murray’s testimony regarding the statements. J.G. testified, and defense counsel was

16 able to cross-examine her regarding her version of the events leading to Defendant’s

17 convictions. The Confrontation Clause only applies when the declarant of the

18 testimonial statements is unavailable to testify. See id. ¶ 46 (“[T]he Confrontation

19 Clause is always implicated when ‘testimonial’ statements of an absent witness are

                                               7
 1 admitted” (emphasis added)). Under these circumstances, Defendant did not receive

 2 ineffective assistance of counsel by trial counsel not moving to exclude J.G.’s

 3 statements made to Tucker on Confrontation Clause grounds.

 4        Hearsay

 5        Defendant alternatively contends that his trial counsel was ineffective for failing

 6 to move to exclude J.G.’s statements made to Tucker during the SANE interview as

 7 hearsay under Rule 11-802 NMRA. Defendant argues that the medical diagnosis and

 8 treatment exception to the hearsay rule contained in Rule 11-803(4) NMRA does not

 9 apply to a victim’s statements made to a SANE nurse.

10        Defendant relies on State v. Mendez, 2009-NMCA-060, 146 N.M. 409, 211

11 P.3d 206, rev’d by 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, and State v.

12 Ortega, 2008-NMCA-001, 143 N.M. 261, 175 P.3d 929, overruled by Mendez, 2010-

13 NMSC-044, for the proposition that “a child’s statement describing sexual abuse to

14 a SANE nurse was not admissible under the medical diagnosis and treatment

15 exception to hearsay.” Indeed, in Mendez, this Court held that “the fact that a SANE

16 examination has medical aspects does [not] change the fact that . . . its purpose was

17 to investigate and gather evidence of a crime.” 2009-NMCA-060, ¶ 34. Therefore this

18 Court, in Mendez, held that a victim’s “out-of-court narrative during the SANE

19 examination does not fall within the medical diagnosis or treatment exception”

                                               8
 1 because “statements made to a SANE nurse are not predominately for diagnosis and

 2 treatment[.]” 2009-NMCA-060, ¶¶ 40-41. This Court’s conclusion in Mendez echoed

 3 its decision in Ortega, 2008-NMCA-001, ¶¶ 16-27, which held that a victim’s

 4 statements to a SANE nurse were not admissible because the “examination was not

 5 conducted for the purpose of medical diagnosis or treatment” and, instead, the

 6 examination’s primary purpose was “gathering evidence.” Id. ¶ 26.

 7        However, since Defendant filed his brief in chief, our Supreme Court has

 8 clarified the law regarding whether SANE nurse testimony regarding statements of an

 9 alleged sexual abuse victim is admissible under Rule 11-803(4). See Mendez, 2010-

10 NMSC-044. In Mendez, our Supreme Court held that statements made to a SANE

11 nurse need not be excluded due to “the overall forensic aspect of the SANE

12 examination.” Id. ¶ 24. Instead, a district court must “sift[] through statements, piece-

13 by-piece, making individual decisions on each one . . . to evaluate the trustworthiness

14 of each . . . statement[], taking into consideration [the victim’s] help-seeking

15 motivation and the pertinence of such statements to medical diagnosis or treatment.”

16 Id. ¶ 46. Our Supreme Court stated that Ortega’s focus on the primary purpose of the

17 examination was inconsistent with Rule 11-803(4)’s dual rationales, which are (1) the

18 inherent reliability of statements by a declarant seeking medical treatment based on

19 a declarant’s self-interest in obtaining proper medical attention and (2) the inherent

                                               9
 1 reliability of statements reasonably relied upon and therefore pertinent to a medical

 2 diagnosis and treatment. Mendez, 2010-NMSC-044, ¶¶ 20-21, 39.

 3        Under this new framework, we cannot say that the statements J.G. made to

 4 Tucker would have been inadmissible. Indeed, even without objection from counsel,

 5 Dr. Gagan and Detective Murray testified briefly regarding the medical purposes of

 6 the SANE examination and the oral history preceding the examination. The record

 7 before us therefore does not establish a prima facie case of ineffective assistance of

 8 counsel due to the uncertainty regarding the admissibility of the statements.

 9        Additionally, even if counsel’s failure to object to the testimony regarding

10 J.G.’s statements during the SANE interview fell below the standards of a reasonably

11 competent attorney, Defendant was not prejudiced to the extent that the results of his

12 trial are unreliable. See Strickland, 466 U.S. at 687. As we discussed, J.G. directly

13 testified about the three incidents on which Defendant’s three CSCM convictions were

14 based. The testimony of Detective Murray and Dr. Gagan was therefore cumulative

15 of J.G.’s testimony and its admission fails to establish prejudice. See State v.

16 Hamilton, 2000-NMCA-063, ¶ 18, 129 N.M. 321, 6 P.3d 1043 (holding that erroneous

17 admission of uncharged conduct was harmless error and not prejudicial when the

18 evidence was cumulative). Defendant points out that the testimony regarding the

19 SANE interview was crucial to the State’s CSPM and attempted CSPM charges

                                             10
 1 because J.G. did not reveal any conduct involving penetration in her testimony.

 2 Indeed, the State conceded that it was relying on only the substantive evidence from

 3 Dr. Gagan’s testimony and Detective Murray’s testimony for the CSPM and attempted

 4 CSPM charges in closing argument and in response to Defendant’s motion for a

 5 directed verdict. However, the jury acquitted Defendant of both the CSPM charge and

 6 the attempted CSPM charge, and Defendant has therefore failed to show that the

 7 admission of the testimony regarding J.G.’s statements during the SANE interview

 8 could have reasonably altered the jury’s verdict. See State v. Bernal, 2006-NMSC-

 9 050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (“A defendant must show a reasonable

10 probability that, but for counsel’s unprofessional errors, the result of the proceeding

11 would have been different.” (internal quotation marks and citation omitted)).

12 Defendant did not receive ineffective assistance of counsel when trial counsel did not

13 move to exclude J.G.’s statements to Tucker during the SANE interview.

14        Lesser-Included-Offense Instruction

15        Defendant argues that trial counsel’s failure to proffer a jury instruction for

16 false imprisonment as a lesser-included offense of kidnapping constituted ineffective

17 assistance of counsel. Defendant contends that the evidence presented at trial

18 reasonably supported a lesser-included-offense instruction for false imprisonment,

19 and, because a defendant has a right to a lesser-included-offense instruction when the

                                             11
 1 evidence reasonably supports an offense lesser in severity than the crime charged, the

 2 failure of trial counsel to request the instruction is ineffective assistance of counsel.

 3 Generally, a criminal defendant has a right to receive a jury instruction on a lesser-

 4 included offense when there is some evidence to support the instruction. State v.

 5 Curley, 1997-NMCA-038, ¶ 5, 123 N.M. 295, 939 P.2d 1103. In order to be entitled

 6 to the lesser-included-offense instruction, “[t]here must be some view of the evidence

 7 pursuant to which the lesser offense is the highest degree of crime committed, and that

 8 view must be reasonable.” Id.

 9        Our Supreme Court has recognized that a decision of whether to seek a lesser-

10 included-offense instruction is generally one of trial tactics. State v. Boeglin, 105

11 N.M. 247, 249-50, 731 P.2d 943, 945-46 (1987). Although Defendant agrees,

12 Defendant argues that this is a case in which “there is no excuse for not seeking a jury

13 instruction. However, the case that Defendant relies on, State v. Talley, 103 N.M. 33,

14 702 P.2d 353 (Ct. App. 1985), is distinguishable. In Talley, this Court reversed the

15 defendant’s conviction for two counts of burglary, one count of larceny, and one count

16 of arson, because the defendant’s trial counsel was ineffective. Id. at 35, 702 P.2d at

17 355. The charges arose out of an incident in which the defendant and another

18 individual removed items from a residence and the defendant set fire to the residence

19 to eliminate potential fingerprints after drinking five to twelve pitchers of beer. Id.

                                              12
 1 The defendant’s only witness at trial was a mental health professional who testified

 2 that the defendant suffered from pyromania and that the disorder is exacerbated by

 3 drinking.    Id.   This Court reversed the defendant’s convictions based on the

 4 cumulative effect of counsel’s failure to properly tender three jury instructions, which

 5 ultimately prejudiced the defendant’s defense that, due to his mental disorder, he

 6 lacked specific intent during the commission of the alleged crimes. Id. at 38, 702 P.2d

 7 at 358. In this case, Defendant maintained that nothing happened between J.G. and

 8 him and that the incidents leading to the charges did not occur. Defendant never

 9 argued or presented testimony that his actions could only lead to a conviction for the

10 lesser offense of false imprisonment, and he therefore was not denied a defense by

11 counsel’s failure to tender a lesser-included-offense instruction for false

12 imprisonment.

13         This case is similar to State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118

14 P.3d 762. In Jensen, the defendant argued that his trial counsel was ineffective for

15 failing to tender an instruction for third degree criminal sexual penetration (CSP),

16 which he argued was a lesser-included offense of the charge the jury convicted the

17 defendant of, second degree CSP. Id. ¶ 11. This Court rejected the defendant’s claim,

18 holding that the record failed to establish that the failure of counsel to request the third

19 degree CSP instruction because it was conceivable that trial counsel, as a matter of

                                                13
 1 strategy, elected an “all-or-nothing” strategy, and no evidence existed that counsel

 2 “acted in derogation of his client’s wishes or right to have a lesser included offense

 3 instruction.” Id. ¶ 13 (internal quotation marks and citation omitted). Although

 4 Defendant argues that “there [is] no tactical reason to forego an instruction on false

 5 imprisonment,” here, as in Jensen, Defendant “offers no persuasive argument that

 6 eliminates any conceivable and viable strategy or tactic, that shows his [counsel] fell

 7 below that of a reasonably competent attorney, or that shows prejudice.” Id. ¶ 14.

 8 Defense counsel could have conceivably been using an all-or-nothing defense strategy

 9 by not offering the instruction for false imprisonment. Therefore, Defendant did not

10 receive ineffective assistance of counsel due to counsel’s failure to proffer a jury

11 instruction on the lesser-included offense of false imprisonment.

12        Conclusion

13        Defendant has not made a prima facie showing of ineffective assistance of

14 counsel on the record on appeal. Nothing precludes him, however, from filing a

15 petition for habeas corpus raising an ineffective assistance of counsel claim. See State

16 v. Baca, 1997-NMSC-059, ¶ 38, 124 N.M. 333, 950 P.2d 776 (stating that the

17 defendant’s failure to make a prima facie showing of ineffective assistance of counsel

18 is not intended to preclude the defendant from seeking relief through habeas corpus).




                                              14
 1 EVIDENTIARY ISSUES

 2 Standard of Review

 3        “We review the admission of evidence under an abuse of discretion standard.”

 4 State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. An abuse of

 5 discretion occurs when the district court’s decision is clearly against the logic and

 6 effect of the facts and circumstances of the case. State v. Lucero, 98 N.M. 311, 314,

 7 648 P.2d 350, 353 (Ct. App. 1982). “A [district] court abuses its discretion when it

 8 exercises its discretion based on a misunderstanding of the law.” State v. Barr, 2009-

 9 NMSC-024, ¶ 29, 146 N.M. 301, 210 P.3d 198, overruled on other grounds by State

10 v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

11 Hearsay Statements to SANE Nurse

12        Defendant argues that the district court erred in admitting hearsay statements

13 made by J.G.’s father (Father) to the SANE nurse. The statement at issue was

14 testimony regarding a “behavioral assessment” that Father filled out before J.G.’s

15 SANE interview and examination. The behavioral assessment required that Father

16 complete a form describing behavioral changes and medical history of J.G. Defense

17 counsel objected, arguing that Rule 11-803(4)’s exception for statements made for

18 purposes of medical diagnosis and treatment did not apply because the statement was

19 made by a third party and not the patient. The district court overruled the objection,

                                             15
 1 ruling that the medical diagnosis and treatment exception is not limited to the patient’s

 2 statements. Subsequently, Dr. Gagan testified that, in the behavioral assessment,

 3 Father revealed that J.G. seemed withdrawn and more aggressive in the months

 4 following the alleged sexual contact and “that these behaviors had seemed to have

 5 improved after the person that supposedly had molested her was incarcerated.” Father

 6 also testified at trial that J.G. became mistrustful and withdrawn after the alleged

 7 incidents with Defendant.

 8        Defendant relies on State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d

 9 92, for the proposition that law enforcement instigated the SANE examination,

10 making the examination primarily for law enforcement purposes, and, therefore, the

11 testimony was inadmissible under the medical diagnosis and treatment exception.

12 However, as we discussed, our Supreme Court has since decided Mendez and

13 determined that the forensic nature of SANE examinations and law enforcement

14 presence do not automatically bar admission under the medical diagnosis and

15 treatment exception. Mendez, 2010-NMSC-044, ¶ 41-43, 52-54. Instead, a district

16 court must “sift[] through statements, piece-by-piece, making individual decisions on

17 each one . . . to evaluate the trustworthiness of each . . . statement[], taking into

18 consideration [the] help-seeking motivation and the pertinence of such statements to

19 medical diagnosis or treatment.” Id. ¶ 46.

                                              16
 1        Dr. Gagan testified that the behavioral assessment is part of the medical history

 2 of the child and that the history is an important part of assessing the child for the

 3 subsequent medical examination. Defendant does not point to any testimony that

 4 Father’s statement in the behavioral assessment was for any purpose other than to

 5 assist in diagnosing and treating J.G. Applying Mendez, 2010-NMSC-004, ¶ 46, the

 6 district court did not abuse its discretion in allowing testimony regarding the

 7 behavioral assessment filled out by Father under the medical diagnosis and treatment

 8 exception.

 9 Defendant’s Prior Plea

10        Defendant next argues that the district court’s “unforeseeable and

11 unwarranted”change of position in deciding to admit into evidence Defendant’s prior

12 statement made during a plea allocution deprived Defendant of a defense and unfairly

13 prejudiced him in front of the jury. Initially, the charges against Defendant arose out

14 of an investigation conducted after the State was already investigating similar

15 allegations made against Defendant by J.G.’s cousin. Defendant pled guilty in the

16 case involving J.G.’s cousin. In this case, the district court ruled in limine that the

17 State could not elicit any testimony regarding “the extent of the nature [of the prior

18 allegations involving J.G.’s cousin], and the fact that a conviction was obtained[.]”

19 Without citation to the record, Defendant contends that the State obtained a copy of

                                             17
 1 Defendant’s plea allocution at his sentencing in the case involving J.G.’s cousin. At

 2 the plea allocution, Defendant revealed that he could not remember any events

 3 involving J.G.’s cousin because he was too drunk.

 4        In this case, on cross-examination, the following exchange took place:

 5        [State:]   Have you ever been so intoxicated that you didn’t know
 6        what you were doing?

 7        [Defendant:]         No.

 8        [State:]       Never. And you have never said that in a court of law?

 9        ....

10        [State:]      Have you ever said, in a court proceeding like this, to a
11        judge, like this judge, that, I must have been drunk; I didn’t know what
12        I was doing?

13        [Defendant:]         No.

14        Defendant contends that the district court abused its discretion by allowing the

15 State to pursue this line of questioning because it “infringed upon his opportunity to

16 challenge jurors who may have been unable to impartially judge the facts of the case.”

17 See State v. Glasgow, 2000-NMCA-076, ¶¶ 18-20, 129 N.M. 480, 10 P.3d 159

18 (holding that the district court’s change of position regarding the admissibility of the

19 defendant’s prior cocaine use was unfairly prejudicial to the defendant because the

20 defendant was unable to voir dire the jurors regarding drug use), overruled on other



                                              18
 1 grounds by Tollardo, 2012-NMSC-008; see also State v. Balderama, 2004-NMSC-

 2 008, ¶¶ 18, 44, 135 N.M. 329, 88 P.3d 845 (holding that the timing of the district

 3 court’s exclusion of expert testimony was prejudicial because the defendant had

 4 already referenced the anticipated testimony and identified the witness by name).

 5 Defendant likewise argues that, in this case, he was prejudiced because he did not

 6 conduct voir dire “concerning the possibility that jurors would be unduly swayed by

 7 knowledge that [Defendant] had been convicted in another case” and because

 8 Defendant was entitled “to rely on judicial rulings . . . in planning his defense strategy

 9 and in summarizing that strategy to the jury.”

10        However, Defendant mischaracterizes the testimony at issue. The questioning

11 did not reference the previous allegations by J.G.’s cousin or anything regarding the

12 plea or conviction. From the scant exchange at issue, the jury could not even glean

13 that Defendant had previously testified in a criminal case because Defendant answered

14 the State’s question in the negative. Although the State may have come close to

15 eliciting testimony regarding the “extent of the nature of the [prior allegations], and

16 the fact that a conviction was obtained,” the testimony did not reach the scope of the

17 earlier ruling by the district court. It was not prejudicial to Defendant that he did not

18 voir dire potential jurors on whether they would be unduly swayed by knowledge of

19 Defendant’s prior conviction in another case because the jury never heard testimony

                                               19
 1 regarding Defendant’s prior conviction.

 2        Furthermore, Defendant’s argument that “[t]he jury may have drawn any

 3 number of prejudicial conclusions from the fact that the defense did no[t] further

 4 address the substance of the State’s question[ing,]” is purely speculative and fails to

 5 establish actual prejudice. See State v. Montoya, 2011-NMCA-074, ¶ 13, 150 N.M.

 6 415, 259 P.3d 820 (“An assertion of prejudice is not a showing of prejudice.” (internal

 7 quotation marks and citation omitted)). Likewise, to the extent that Defendant argues

 8 that the testimony made any potential avenues of defense unavailable to Defendant,

 9 he fails to provide any specific examples of how the testimony affected his defense

10 strategy or precluded a specific defense to the allegations.

11 PROSECUTORIAL MISCONDUCT

12        Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v.

13 Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Defendant argues that prosecutorial

14 misconduct deprived him of a fair trial. Defendant points to five instances of alleged

15 prosecutorial misconduct: the prosecutor (1) alluded in her closing argument to a

16 statement made by J.G. that had not been received in evidence, (2) threatened

17 sanctions against defense counsel, (3) failed to disclose a statement made by

18 Defendant, (4) vouched for a State’s witness in her closing argument, and (5)

19 commented on Defendant invoking his right to silence in her closing argument.

                                             20
 1        Normally, “in reviewing claims of prosecutorial misconduct, we determine

 2 whether the [district] court abused its discretion by denying a motion for a new trial

 3 based upon the prosecutor’s conduct, by overruling the defendant’s objection to the

 4 challenged conduct, or by otherwise failing to control the conduct of counsel during

 5 trial. The [district] court’s determination of these questions will not be disturbed

 6 unless its ruling is arbitrary, capricious, or beyond reason.” State v. Loya, 2011-

 7 NMCA-077, ¶ 13, 150 N.M. 373, 258 P.3d 1165 (internal quotation marks and

 8 citation omitted). “Our ultimate determination . . . rests on whether the prosecutor’s

 9 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the

10 defendant was deprived of a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126

11 N.M. 132, 967 P.2d 807, overruled on other grounds by Tollardo, 2012-NMSC-008.

12 However, with the exception of Defendant’s first alleged instance of prosecutorial

13 misconduct, Defendant did not object to the other four instances or file a motion for

14 mistrial and therefore did not preserve his other four prosecutorial misconduct

15 arguments. We therefore review Defendant’s last four arguments for fundamental

16 error. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (“When

17 the [district] court had no opportunity to rule on a claim of prosecutorial misconduct

18 because the defendant did not object in a timely manner, we review the claim on

19 appeal for fundamental error.”). “Prosecutorial misconduct rises to the level of

                                              21
 1 fundamental error when it is so egregious and had such a persuasive and prejudicial

 2 effect on the jury’s verdict that the defendant was deprived of a fair trial.” Id.

 3 (internal quotation marks and citation omitted).

 4        We first address Defendant’s first argument under an abuse of discretion

 5 standard. See Loya, 2011-NMCA-077, ¶ 13. During her rebuttal argument, the

 6 prosecutor told the jury that J.G. provided a pretrial statement that Defendant “took

 7 [her] to the back room and tied [her] hands behind [her] head to a chair.” After

 8 Defendant objected, the district court agreed that the statement was not part of the

 9 evidence and that the prosecutor improperly mentioned it. The district court then

10 instructed the jury to disregard the statement. Under these circumstances, the

11 statement is not prosecutorial misconduct. It was a single statement that merely

12 mirrored J.G.’s testimony. The prosecutor did not provide any new information to the

13 jury but instead just gave the wrong source. This single, isolated statement did not

14 deprive Defendant of a fair trial. See Allen, 2000-NMSC-002, ¶ 95 (stating that a

15 single, isolated incident of prosecutorial misconduct is not reversible error). Further,

16 any prejudice that Defendant may have suffered from the comment was cured by the

17 district court’s instruction to the jury to disregard the statement. State v. Otto, 2007-

18 NMSC-012, ¶ 17, 141 N.M. 443, 157 P.3d 8 (stating that a jury is presumed to follow

19 limiting instructions).

                                              22
 1        We next review Defendant’s four unpreserved arguments under a fundamental

 2 error standard of review.     We emphasize they were unpreserved.          Regarding

 3 Defendant’s contention that the prosecutor threatened sanctions against his defense

 4 counsel, this argument does not bear on the jury verdict because the statement was

 5 made outside of the jury’s presence during a side conference. Therefore, even if the

 6 statement was improper, it did not deprive Defendant of a fair trial. See Allen, 2000-

 7 NMSC-002, ¶ 95. Likewise, regarding Defendant’s contention that the prosecutor’s

 8 failure to disclose Defendant’s statement at the plea allocution even though the

 9 prosecutor intended to use it to impeach Defendant during trial is not prosecutorial

10 misconduct because the statement never was admitted at trial and therefore was not

11 prejudicial to Defendant. As we previously discussed, the State did not ultimately use

12 Defendant’s prior statement during the plea allocution to impeach Defendant and

13 therefore the jury never heard any testimony or argument regarding the statement. See

14 State v. Rivera, 2009-NMCA-132, ¶ 43, 147 N.M. 406, 223 P.3d 951 (rejecting a

15 prosecutorial misconduct claim based on a failure to disclose bank statements because

16 the defendant failed to show that it prejudiced his defense).

17        Defendant next contends that the prosecutor improperly vouched for Dr.

18 Gagan’s testimony in closing argument by stating that, although Dr. Gagan did not

19 personally take J.G.’s history, “[t]his is very common for [Dr. Gagan] to testify for

                                             23
 1 SANE nurses.” Defendant contends that this statement impermissibly derived from

 2 facts not in the record. However, Dr. Gagan testified that it is “common” practice for

 3 her to testify on behalf of the SANE nurse that conducted the examination. The

 4 prosecutor merely restated the evidence presented at trial, and therefore there was no

 5 prosecutorial misconduct based on the statement.

 6        Lastly, Defendant argues that the prosecutor made an impermissible comment

 7 on Defendant’s right to silence during the State’s closing argument. During closing

 8 argument, the prosecutor addressed

 9        [t]he chlamydia thing. You know, it’s unfortunate that [Detective]
10        Murray wasn’t able to get a sample from . . . [D]efendant when he went
11        to see him. And it’s unfortunate that he wasn’t able to get a search
12        warrant. But that’s just one little piece of evidence.

13 Considered in the context of the testimony at trial, this statement during closing

14 argument was not an impermissible comment on Defendant’s silence. Prior to

15 Detective Murray’s testimony, the district court ruled that Detective Murray could

16 testify that he attempted to obtain a search warrant to test Defendant for chlamydia

17 after Defendant refused to be tested while in custody. It determined that Defendant

18 had opened the door to such testimony by stating in his opening argument that there

19 were no efforts to find out whether Defendant had chlamydia. Accordingly, Detective

20 Murray testified that he did not obtain a search warrant because the police department



                                             24
 1 did not have anyone on contract to take a blood draw of Defendant. The prosecutor

 2 did not comment on Defendant’s right to silence and instead summarized the evidence

 3 that the investigators were unable to obtain a chlamydia test on Defendant.

 4 Additionally, as the district court correctly observed and applied, “it is . . . the rule that

 5 the prosecution may refer to the defendant’s failure to testify if the door is opened by

 6 the defense.” State v. Henry, 101 N.M. 266, 267, 681 P.2d 51, 52 (1984). Defendant

 7 does not argue that the district court erred in determining that Defendant opened the

 8 door to Detective Murray’s testimony regarding the chlamydia test by arguing that

 9 there was no effort by investigators to determine whether Defendant had chlamydia.

10 The prosecutor’s comment in this instance was not prosecutorial misconduct.

11 CUMULATIVE ERROR

12        Lastly, Defendant argues that cumulative error deprived Defendant of a fair

13 trial. See State v. Garvin, 2005-NMCA-107, ¶ 14, 138 N.M. 164, 117 P.3d 970

14 (“Under the doctrine of cumulative error, we must reverse a conviction when the

15 cumulative impact of errors that occurred at trial was so prejudicial that the defendant

16 was deprived of a fair trial.” (alterations, internal quotation marks, and citation

17 omitted)). However, because we have held that there was no error, the doctrine of

18 cumulative error does not apply. See State v. Aragon, 1999-NMCA-060, ¶ 19, 127

19 N.M. 393, 981 P.2d 1211 (holding that when there is no error, “there is no cumulative

                                                 25
1 error”).

2 CONCLUSION

3       For the foregoing reasons, we affirm Defendant’s convictions.

4       IT IS SO ORDERED.



5                                             ________________________________
6                                             JAMES J. WECHSLER, Judge

7 WE CONCUR:



8 ______________________________
9 JONATHAN B. SUTIN, Judge



10 ______________________________
11 RODERICK T. KENNEDY, Judge




                                         26
