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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 34,293

 5 JUSTIN WHITT,

 6          Defendant-Appellant.

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

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Tonya Noonan Herring, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Becca Salwin, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 WECHSLER, Judge.
 1   {1}   Defendant Justin Whitt was convicted in a jury trial on two counts of second

 2 degree criminal sexual penetration (CSP) causing personal injury, contrary to NMSA

 3 1978, Section 30-9-11(E) (2009), and two counts of third degree CSP, contrary to

 4 Section 30-9-11(F). On appeal, Defendant argues that (1) double jeopardy protections

 5 prohibit three of his four CSP convictions, and (2) sufficient evidence does not

 6 support his conviction for CSP with respect to the charge of anal intercourse.

 7 Defendant additionally argues that he received ineffective assistance of counsel. For

 8 the reasons discussed herein, we conclude that Defendant’s substantive arguments

 9 lack merit. We additionally conclude that Defendant’s ineffective assistance claim is

10 more properly addressed in a habeas corpus proceeding. We affirm.

11 BACKGROUND

12 Victim’s Testimony

13   {2}   The events at issue in this case occurred on August 28 and 29, 2012. On the

14 evening of August 28, 2012, Defendant, his girlfriend, Katrina Perea (Girlfriend), and

15 the victim, Tawnya Peterson (Victim), along with other friends, spent several hours

16 at an Albuquerque bowling alley. The group consumed alcohol at the bowling alley,

17 although Victim testified that she only had “two sips” of beer. After bowling, the

18 group convened at Girlfriend’s apartment and continued to consume alcohol. Victim

19 also consumed alcohol at the apartment. Victim testified that Defendant was using

                                             2
 1 marijuana and cocaine but that she did not consume any drugs. The other friends left

 2 between 2:00 a.m. and 3:00 a.m., and Defendant, Girlfriend, and Victim remained at

 3 the house. They talked for a while longer and then went to bed. Defendant and

 4 Girlfriend went to sleep in the bedroom. Victim went to sleep on a pull-out bed in the

 5 living room.1

 6   {3}   Victim testified that she awoke to a feeling of pressure in her vagina. She then

 7 realized that Defendant was engaged in sexual intercourse with her. Victim was

 8 conscious of vaginal penetrations for approximately five seconds, at which time

 9 Defendant lifted Victim and repositioned her onto the couch. Defendant then engaged

10 in anal intercourse. The anal intercourse lasted approximately two seconds, during

11 which time Victim “tried to push [Defendant] off.” After disengaging from the anal

12 intercourse, Defendant re-engaged in sexual intercourse with Victim for

13 approximately ten seconds. Defendant then lifted Victim’s head and engaged Victim

14 in fellatio. Victim testified that, “when it was happening, when I was trying to say

15 ‘stop,’ [Defendant] would cover my mouth and shush me.” Victim additionally

16 testified that she did not consent to any portion of the incident. When asked on cross-



          1
17          After review of the record and trial transcript, we conclude that half of the
18 couch pulled out perpendicularly into a pull-out bed while the other half remained in
19 place. Though seemingly trivial, the configuration of the couch directly relates to
20 Defendant’s repositioning of Victim during the incident.

                                               3
 1 examination whether the anal intercourse could have been a mistake, Victim

 2 responded that she did not know. When asked on redirect-examination whether she

 3 knew if Defendant intended to engage in anal intercourse, Victim responded that she

 4 did not know.

 5   {4}   After Defendant returned to the bedroom, Victim went into the bathroom where

 6 she “collapsed [and s]tarted crying hysterically.” Soon after, she collected her

 7 belongings and left the apartment. Victim then called a friend, who provided her with

 8 the phone number to the Sexual Assault Nurse Examiner (SANE) unit. Victim called

 9 the SANE unit between 8:00 a.m. and 8:30 a.m. and made an appointment for 10:30

10 a.m. She slept through this appointment but proceeded to the examination after

11 waking up. Two days later, Defendant called 911 to report the incident.

12 SANE and Law Enforcement Testimony

13   {5}    SANE Nurse Sarah Kabalka examined Victim upon her arrival. Kabalka

14 testified that her examination revealed injuries to Victim’s labia majora, minora, fossa,

15 posterior fourchette, and anus. Kabalka also testified to the existence of a linear

16 abrasion on Victim’s side. The State concluded its case in chief by calling three

17 Albuquerque Police Department employees: Officer Mark Clingenpeel, Detective

18 Karyn Romero, and Ms. Donna Manogue from the Biology Unit. Officer Clingenpeel

19 and Detective Romero testified to the details of their respective investigations.


                                               4
 1 Manogue testified to the results of DNA testing conducted in association with the

 2 case.

 3 Defendant’s Testimony

 4   {6}   Defendant testified that after the group returned from bowling, he and others,

 5 including Victim, consumed alcohol, marijuana, and cocaine. After going to bed, he

 6 was unable to sleep because of the cocaine. Defendant returned to the living room and

 7 engaged in sexual activity with Victim. With respect to the anal intercourse,

 8 Defendant testified that “it was honestly an accident[,]” resulting from a “slip” during

 9 consensual sexual intercourse. Defendant also testified that the encounter began on the

10 pull-out bed and moved to the couch.

11 Victim’s Rebuttal Testimony

12   {7}   After Defendant’s testimony, the State recalled Victim to rebut various portions

13 of Defendant’s direct and cross-examination testimony. Defense counsel did not

14 object to the admission of Victim’s rebuttal testimony.

15 STANDARD OF REVIEW

16   {8}   “Double jeopardy challenges raising the issue of the unit of prosecution are

17 reviewed de novo.” State v. Glascock, 2008-NMCA-006, ¶ 11, 143 N.M. 328, 176

18 P.3d 317. In reviewing challenges to the sufficiency of the evidence supporting a

19 conviction “[w]e view the evidence in the light most favorable to the [s]tate, resolving


                                               5
 1 all conflicts and making all permissible inferences in favor of the jury’s verdict.” State

 2 v. Consaul, 2014-NMSC-030, ¶ 42, 332 P.3d 850 (internal quotation marks and

 3 citation omitted). In doing so, “[i]t is our duty to determine whether any rational jury

 4 could have found the essential facts to establish each element of the crime beyond a

 5 reasonable doubt.” Id. (internal quotation marks and citation omitted). We review

 6 ineffective assistance of counsel claims de novo. State v. Cordova, 2014-NMCA-081,

 7 ¶ 6, 331 P.3d 980.

 8 DOUBLE JEOPARDY

 9   {9}   Defendant argues on appeal that, even if Victim did not consent to the sexual

10 activity, Section 30-9-11 does not contemplate four separate units of prosecution for

11 the conduct alleged. Unit of prosecution claims in the context of Section 30-9-11 are

12 reviewed by reference to Herron v. State, in which our Supreme Court held,

13         [i]n determining whether an [assaultive] act is distinct our analysis is
14         informed by the following factors culled from decisions of other
15         jurisdictions that have considered the issue of multiple punishment in
16         cases of rape: (1) temporal proximity of penetrations (the greater the
17         interval between acts the greater the likelihood of separate offenses); (2)
18         location of the victim during each penetration (movement or
19         repositioning of the victim between penetrations tends to show separate
20         offenses); (3) existence of an intervening event; (4) sequencing of
21         penetrations (serial penetrations of different orifices, as opposed to
22         repeated penetrations of the same orifice, tend to establish separate
23         offenses); (5) defendant’s intent as evidenced by his conduct and
24         utterances; and (6) number of victims[.]



                                               6
 1 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624. Herron additionally indicated

 2 that “[e]xcept for penetrations of separate orifices with the same object, none of these

 3 factors alone is a panacea, but collectively they will assist in guiding future

 4 prosecutions under Section 30-9-11.” Id.

 5   {10}   Applying Herron, Defendant’s penile penetration of Victim’s vagina, anus, and

 6 mouth constitute three distinct offenses under Section 30-9-11. See, e.g., State v.

 7 Wilson, 1993-NMCA-074, ¶ 9, 117 N.M. 11, 868 P.2d 656 (“Under Herron,

 8 penetrations of separate orifices with the same object constitute separate offenses.

 9 Therefore, the acts of anal intercourse, sexual intercourse, and at least one instance of

10 fellatio constitute separate offenses under Herron.”). We now consider whether the

11 subsequent sexual intercourse was a distinct act subject to prosecution.

12   {11}   “In reviewing the facts of the case to determine if each penetration is distinct

13 from the others, we must indulge in all presumptions in favor of the verdict.” State v.

14 McClendon, 2001-NMSC-023, ¶ 5, 130 N.M. 551, 28 P.3d 1092 (internal quotation

15 marks and citation omitted). Victim’s testimony established that (1) when she awoke

16 on the pull-out bed, Defendant was engaged in sexual intercourse with her; (2)

17 Defendant repositioned Victim’s body from the pull-out bed to the couch; (3)

18 Defendant engaged in anal intercourse, which Victim resisted; and (4) Defendant then

19 re-engaged in sexual intercourse. This sequence implicates several of the Herron


                                                7
 1 factors. First, Defendant repositioned Victim from the pull-out bed to the couch

 2 between the acts of sexual intercourse. While this movement was not significant with

 3 respect to distance, our case law does not require that it be so. See Wilson, 1993-

 4 NMCA-074, ¶ 9 (holding sexual acts to be distinct when the victim was repositioned

 5 from the bathroom to the bedroom). Second, there was an intervening event—the anal

 6 intercourse and resistance thereto—between the acts of sexual intercourse. See id.

 7 (holding a subsequent instance of fellatio to be distinct when separated by other sexual

 8 acts). Finally, the “serial penetrations of different orifices” indicates distinct acts.

 9 Herron, 1991-NMSC-012, ¶ 15. Because the facts demonstrate that the two acts of

10 sexual intercourse were distinct from one another, there is no double jeopardy

11 violation.

12 SUFFICIENCY OF THE EVIDENCE

13   {12}   Defendant additionally argues that sufficient evidence does not support his

14 conviction for CSP with respect to the charge of anal intercourse. Specifically,

15 Defendant asserts that the State did not prove that he intended to engage in anal

16 intercourse with Victim.

17   {13}   Section 30-9-11 defines CSP as “the unlawful and intentional causing of a

18 person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the

19 causing of penetration, to any extent and with any object, of the genital or anal


                                              8
 1 openings of another, whether or not there is any emission.” Section 30-9-11(A). Thus,

 2 intent is an element of the crime and must be proved beyond a reasonable doubt. See

 3 State v. Sellers, 1994-NMCA-053, ¶ 17, 117 N.M. 644, 875 P.2d 400 (“The [s]tate has

 4 the burden of proving beyond a reasonable doubt each element of the crime.”).

 5 However, “a defendant’s knowledge or intent generally presents a question of fact for

 6 a jury to decide.” State v. Muraida, 2014-NMCA-060, ¶ 18, 326 P.3d 1113 (alteration,

 7 internal quotation marks, and citation omitted). In answering this question, “the fact

 8 finder may infer from circumstantial evidence that the defendant acted with the

 9 requisite intent; direct evidence of the defendant’s state of mind is not required.” Id.

10   {14}   The circumstantial evidence in this case supports the jury’s conclusion that

11 Defendant intended to engage in anal intercourse with Victim. Victim testified that

12 Defendant disengaged from sexual intercourse, repositioned her onto the couch, and

13 immediately engaged in anal intercourse without re-engaging in sexual intercourse.

14 Only after Victim resisted did Defendant re-engage in sexual intercourse. This

15 testimony demonstrates Defendant’s intent to engage in anal intercourse and directly

16 contradicts Defendant’s testimony that his penis “slipped out” during sexual

17 intercourse. Additionally, and contrary to the characterization in Defendant’s brief in




                                              9
 1 chief, Victim additionally testified on cross-examination that she “d[id] not know” if

 2 Defendant intended to engage in anal intercourse.2

 3   {15}   Defendant offers his own testimony as proof that the anal intercourse was

 4 accidental rather than intentional. “Contrary evidence supporting acquittal does not

 5 provide a basis for reversal because the jury is free to reject [the d]efendant’s version

 6 of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

 7 Because a rational jury could have found that Defendant had the requisite intent to

 8 engage in anal intercourse with Victim, sufficient evidence supports Defendant’s

 9 conviction for CSP with respect to the anal intercourse.

10 INEFFECTIVE ASSISTANCE OF COUNSEL

11   {16}   “To establish ineffective assistance of counsel, a defendant must show: (1)

12 counsel’s performance was deficient, and (2) the deficient performance prejudiced the


         2
13         Defendant’s brief in chief states “[Victim] testified similarly that she did not
14 believe the anal sex was intentional and instead testified that it could have been
15 accidental.” Victim’s actual testimony was as follows:

16          Defense Counsel: And could that have been a mistake, or you don’t
17                           know?
18          Victim:          I do not know.
19          Defense Counsel: So that might not have been intentional?
20          Victim:          Correct.

21 While Victim effectively testified that the anal intercourse could have been
22 unintentional, she in no way testified that “she did not believe the anal sex was
23 intentional.” (Emphasis added).

                                              10
 1 defense.” State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799

 2 (internal quotation marks and citation omitted). The absence of prejudice is sufficient

 3 to dispose of an ineffective assistance of counsel claim. See State v. Martinez, 2007-

 4 NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18 (“If it is easier to dispose of an

 5 ineffectiveness claim on the ground of lack of sufficient prejudice, we need not

 6 consider whether counsel’s performance was deficient.”).

 7   {17}   Defendant’s first argument relates to his trial counsel’s decision not to call

 8 either Girlfriend or an expert witness to testify in the case. With respect to Girlfriend,

 9 Defendant does not offer any compelling argument as to how he was prejudiced by

10 the absence of her testimony. Defendant claims that Girlfriend “would have testified

11 to the alleged victim’s character and reputation as a liar.” Defendant does not provide

12 record citation to any material indicating the likelihood of such testimony. See Chavez

13 v. Lovelace Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 37, 144 N.M. 578, 189 P.3d

14 711 (“[W]e are not obligated to search the record to find support for a party’s

15 argument[.]”). Defendant additionally claims that Girlfriend would have “counter[ed

16 Victim]’s denial on the stand of being extremely drunk and high on the night of this

17 incident[.]” Defendant testified that Victim was drinking and using drugs that night.

18 As such, the jury already possessed the information Defendant claimed Girlfriend

19 would provide.


                                               11
 1   {18}   Similarly, Defendant does not offer any compelling argument as to how he was

 2 prejudiced by the absence of expert witness testimony. Defendant claims that an

 3 expert witness could “explain how [Victim’s] injuries could be caused by consensual

 4 sex[.]” Kabalka testified that Victim’s injuries could have resulted from either

 5 consensual or non-consensual sex. As a result, again, the jury already possessed the

 6 information Defendant claims an expert witness would provide.

 7   {19}   The decision to call certain witnesses is a tactical decision that rests within the

 8 control of trial counsel. State v. Orosco, 1991-NMCA-084, ¶ 35, 113 N.M. 789, 833

 9 P.2d 1155. “Rarely will we engage on appeal in Monday-morning quarterbacking of

10 trial counsel’s tactics and strategy, and remand for a hearing on the issue of ineffective

11 assistance of counsel[.]” State v. Jensen, 2005-NMCA-113, ¶ 14, 138 N.M. 254, 118

12 P.3d 762. Defendant fails to demonstrate that his trial counsel’s tactical decisions with

13 respect to witnesses caused prejudice to his defense. See Paredez, 2004-NMSC-036,

14 ¶ 13 (“To establish ineffective assistance of counsel, a defendant must show . . . the

15 deficient performance prejudiced the defense.” (internal quotation marks and citation

16 omitted)).

17   {20}   Defendant also argues, citing Rule 11-403 NMRA, that his trial counsel’s

18 failure to object to Victim being recalled as a rebuttal witness resulted in Victim being

19 allowed to testify twice. “The admission of rebuttal testimony is within the discretion


                                                12
 1 of the trial court[.]” State v. Stanley, 2001-NMSC-037, ¶ 39, 131 N.M. 368, 37 P.3d

 2 85. Defendant does not provide record citation to specific instances in which Victim’s

 3 rebuttal testimony was cumulative. See Chavez, 2008-NMCA-104, ¶ 37 (“[W]e are

 4 not obligated to search the record to find support for a party’s argument[.]”). Even if

 5 Victim’s rebuttal testimony was cumulative under Rule 11-403, Defendant does not

 6 explain how such testimony prejudiced his defense. See Paredez, 2004-NMSC-036,

 7 ¶ 13 (“To establish ineffective assistance of counsel, a defendant must show . . . the

 8 deficient performance prejudiced the defense.” (internal quotation marks and citation

 9 omitted)).

10   {21}   Because Defendant has not met his burden to establish ineffective assistance of

11 counsel, his requested relief is denied. Defendant may, of course, raise this issue in a

12 habeas corpus proceeding. See State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107,

13 163 P.3d 494 (“Habeas corpus proceedings are the preferred avenue for adjudicating

14 ineffective assistance of counsel claims, because the record before the trial court may

15 not adequately document the sort of evidence essential to a determination of trial

16 counsel’s effectiveness.” (alteration, internal quotation marks, and citation omitted)).

17 CONCLUSION

18   {22}   We affirm Defendant’s convictions.

19   {23}   IT IS SO ORDERED.


                                              13
1                                         ________________________________
2                                         JAMES J. WECHSLER, Judge


3 WE CONCUR:


4 ________________________________
5 M. MONICA ZAMORA, Judge


6 ________________________________
7 STEPHEN G. FRENCH, Judge




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