       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: January 16, 2013

Docket No. 30,852

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DEREK GARCIA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Drew D. Tatum, District Judge

Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

BUSTAMANTE, Judge.

{1}     Convicted of two counts of second degree criminal sexual contact of a minor
(CSCM), Defendant appeals. We hold that the district court erred by concluding that a
transcript of Defendant’s police station interview would be too confusing for the jury, once
it was redacted in a manner consistent with the court’s in limine ruling, without first
reviewing the redacted form of the transcript. However, we conclude that this error was
harmless. We hold further that the district court erred by not conducting an in camera review
of records Defendant sought in discovery. We remand for district court review of these

                                             1
records to determine (1) if any portion of the records is material to the charges or the defense
against them, and (2) if exclusion of material portions was prejudicial to Defendant. We are
not persuaded by Defendant’s other assertions of error.

BACKGROUND

{2}     Defendant was the live-in boyfriend of Victim’s mother, with whom he had three
children, the oldest of whom was four years younger than Victim. Victim, who was eight
years old, also lived in the home. In February 2009 Defendant was the caretaker of the four
children while Victim’s mother worked the night shift at a Burger King.

{3}     On February 12, 2009, Victim reported at school to a Children, Youth and Families
Department (CYFD) services provider that the night before, Defendant had touched her
vaginal area when he was in her room. Victim was interviewed about the incident on
February 17, 2009, by Hank Baskett, the executive director of Oasis Children’s Advocacy
Center, a forensic interviewing service, while Detective Todd Moore of the Portales Police
Department and Investigator Janelle Pacheco of CYFD watched on a closed-circuit
television from another room.

{4}      The same day, after watching Victim’s Oasis interview, Detective Moore and
Investigator Pacheco went to Defendant’s home, where they conducted an audio-recorded
interview of Defendant. Defendant told Investigator Pacheco and Detective Moore that he
had entered Victim’s room the night of February 11, 2009, and did not mean to touch her
inappropriately, but instead intended to “scoot her over in the bed.” The next day, February
18, 2009, Detective Moore conducted a second audio-recorded interview of Defendant at the
police station with Investigator Pacheco present. The interview lasted about one hour. Prior
to trial, the State prepared a written transcript of the interview.

{5}    Defendant was found guilty, and a penitentiary sentence of thirty-one years, with
nineteen years suspended, was imposed. Additional facts are included as needed in our
analysis of Defendant’s arguments.

ANALYSIS

{6}      Defendant makes six arguments. He argues first that the district court abused its
discretion when it refused to admit the transcript of the police station interview after it was
used to refresh the memory of several witnesses. Next, he argues that the district court erred
in failing to order disclosure of CYFD records related to allegations of abuse by Victim. He
also maintains that the district court’s grant of the State’s motion in limine to limit reference
at trial to earlier allegations by Victim violated his due process rights and ability to cross-
examine witnesses against him. In addition, he argues that there was insufficient evidence
to support two convictions for CSCM and that the district court improperly denied his
motion to suppress the statements he made in the police station interview. Finally, he argues
that even if these errors are not reversible individually, their cumulative effect was to deprive

                                               2
him of a fair trial. We address Defendant’s arguments in the order presented.

A.     The District Court Abused Its Discretion in Excluding the Transcript of
       Defendant’s Police Station Interview Without First Reviewing the Transcript
       in Redacted Form

{7}     Defendant contends that because the State’s witnesses mischaracterized his
statements from the interview, he was entitled to introduce into evidence the full context of
those statements pursuant to the rule of completeness embodied in Rule 11-106 NMRA and,
therefore, that the district court erred in its ruling denying admission into evidence of the
transcript of the interview. Before analyzing Defendant’s contention, we address the State’s
arguments that the issue is not properly before us.

{8}      The State argues that Defendant failed to preserve his argument that he had a right
to admission of the transcript under Rule 11-106 because he did not direct the district court
to that specific rule when he argued that the transcript should be admitted into evidence. See
State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (“To preserve an issue
for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court
on the same grounds argued in the appellate court.” (internal quotation marks and citation
omitted)). We conclude that the district court and the State were fairly on notice of
Defendant’s assertion that the transcript was admissible because his statements were being
taken out of context through the State’s use of Defendant’s statements and that the transcript
would show the actual context and content of his statements. Therefore, despite Defendant’s
failure to cite the specific rule, we conclude that the argument was sufficiently preserved for
appellate review. See State v. Smile, 2009-NMCA-064, ¶ 39, 146 N.M. 525, 212 P.3d 413,
cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182; see also Rule 12-216
NMRA (“To preserve a question for review it must appear that a ruling or decision by the
district court was fairly invoked, but formal exceptions are not required[.]”).

{9}      The State also contends that because contents of the interview were admitted only
through the testimony of the State’s witnesses and Defendant, and no portion of the written
transcript itself was actually introduced into evidence, the rule of completeness does not
apply. See Rule 11-106 (1996) (providing that its provisions apply when “a writing or
recorded statement or part thereof is introduced by a party”); Rule 11-612 NMRA1 (stating
in part that when a writing is used to refresh the memory of a witness, the adverse party is
entitled to introduce in evidence any portion that relates to the witness’s testimony).

{10} We conclude that where, as in this case, the State used the transcript extensively to
ask about specific statements made by Defendant, the contents of the transcript were
“introduced” into evidence sufficiently to invoke Rule 11-106. See 21A Charles Alan


       1
        We express no opinion as to whether the transcript is independently admissible
pursuant to Rule 11-612.

                                              3
Wright et al., Federal Practice and Procedure: Federal Rules of Evidence § 5075, at 39-40
(2d ed. 2012).

               Most courts that have considered the question have held that using a
       writing to refresh the recollection of a witness is a sufficient use of the
       writing to trigger [Fed. R. Evid.] 106. Given that [Fed. R. Evid.] 612 gives
       the opponent the power to disrupt the proponent’s case to inspect the writing,
       as well as the right to introduce parts of the writing into evidence, policy
       would seem to make this an easy case for the application of [Fed. R. Evid.]
       10[6].2

Id. Under the circumstances, we would be placing form over substance if we required the
physical writing itself to be introduced into evidence for Rule 11-106 to be invoked.

{11} Turning to the merits, we review a district court’s ruling excluding evidence for an
abuse of discretion. See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d
1143. To the extent our analysis requires interpretation of applicable rules of evidence, our
review is de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d 728,
aff’d, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. The applicable version of Rule 11-
1063 states: “When a writing or recorded statement or part thereof is introduced by a party,
an adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered contemporaneously
with it.” Rule 11-106. Our rule “is an expression of the common law rule of completeness.”
Barr, 2009-NMSC-024, ¶ 33. “The primary purpose behind the rule of completeness is to
eliminate misleading or deceptive impressions created by creative excerpting.” Id. ¶ 34; see
State v. Baca, 120 N.M. 383, 390, 902 P.2d 65, 72 (1995) (“The purpose of [Rule 11-106]
is to permit parties to introduce recorded statements to place in context other evidence that,
when viewed alone, may be misleading.”). “[T]he rule of completeness applies to
insinuations, innuendos, and omissions.” State v. Patterson, 625 S.E.2d 239, 243 (S.C. Ct.
App. 2006).

{12} Defendant testified at trial on his own behalf. The State refreshed Defendant’s
recollection with the transcript multiple times during cross-examination. In fact, most of the


       2
        Federal Rule of Evidence 106 is identical to our state “rule of completeness”
codified as Rule 11-106. State v. Barr, 2009-NMSC-024, ¶ 33, 146 N.M. 301, 210 P.3d 198,
overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.
       3
         Rule 11-106 was amended in 2012, but because this case was filed before June 16,
2012, the effective date of the amendment, the text of the old rule applies. See Rule 11-106,
Comm. cmt. to 2012 amendment. We note, however, that the result we reach should be
unaffected by the amendments to Rule 11-106 because the changes to the rule were intended
to be stylistic, not substantive. Id.

                                              4
State’s cross-examination concerned Defendant’s statements at the police station; the
prosecutor often read specific questions and answers directly from the transcript and
referenced specific pages and lines. At other times, the State asked questions of Defendant
and requested that he locate the answers in the transcript. Indeed, at one point, the court
recessed to allow Defendant time to review the entire transcript and count the occurrences
of a given statement. Defendant maintained in his testimony that when he made the
statements cited by the State he was talking about touches that occurred while play-wrestling
with Victim, not inappropriate sexual touching. Since the State, Detective Moore, and
Investigator Pacheco characterized Defendant’s statements as “admissions,” there was a
conflict in the testimony as to the meaning of those statements. Thus, the context of the
statements was relevant to Defendant’s defense. In fairness to Defendant, the transcript,
redacted as discussed below, should have been considered for admission by the district court
under the rule of completeness.

{13} Here, however, the district court failed to properly consider Defendant’s motion to
admit the transcript. The district court may exclude even relevant evidence “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Rule 11-403 NMRA. In this case, Defendant moved to
admit the transcript on the ground that the State’s questions took his statements out of
context, and because the State used the transcript extensively in refreshing Defendant’s
recollection. Defendant argued that the transcript should “be entered into evidence or read
in its entirety for the jury.” The State countered that the district court’s pre-trial ruling
excluding reference to previous reports of sexual abuse by Victim would require “copious
amounts of time” to redact the transcript. (We note that earlier in the trial the State claimed
it would take “at least thirty minutes” to redact the transcript.)

{14} The district court denied Defendant’s motion, stating that it would “stand by the
ruling.” The ruling to which the district court referred was that the audio-recording of the
interview would not be admitted because references to Victim’s prior reports of sexual
abuse, which were excluded by the State’s pre-trial motion in limine, were “peppered”
throughout and the redacted recording would be too confusing to the jury. Although the
transcript was mentioned in argument before this ruling, the ruling was in response to
Defendant’s request for the transcript recording to be admitted under the best evidence rule.
Thus, that ruling was not specific to the transcript in redacted form.

{15} A district court’s determination that potentially probative evidence should be
excluded because it is too confusing must be based on an analysis of the evidence itself.
State v. Aragon, 116 N.M. 291, 293, 861 P.2d 972, 974 (Ct. App. 1993) (“In order to
exercise discretion properly, it follows that the facts and circumstances surrounding an issue
must be sufficiently set forth to render a reasoned decision.”), overruled on other grounds
by Tollardo, 2012-NMSC-008. Here, the record fails to establish that the district court ever
reviewed the recording or transcript in a redacted form. Thus, the district court excluded the
transcript without a proper basis on which to determine that the risk of confusion to the jury

                                              5
substantially outweighed its probative value in representing the context of Defendant’s
statements. This was an abuse of discretion. See Aragon, 116 N.M. at 293-94, 861 P.2d at
974-75 (concluding that the district court abused its discretion when it did not listen to an
offered tape or allow the party to present an offer of proof before excluding the evidence).

{16} Nevertheless, a new trial is not required. This Court has in the past remanded cases
for a hearing on admissibility where the district court erred by not considering evidence
properly and where exclusion of the evidence was not harmless. See id. at 295, 861 P.2d at
976. But here, remand for a hearing on the admissibility of the transcript is unnecessary
because we have the transcript available to us and, after review of it, we conclude that even
if it were admissible, the district court’s failure to review and admit it was harmless.

{17} The error here is non-constitutional. Barr, 2009-NMSC-024, ¶ 53 (“[W]here a
defendant has established a violation of . . . court rules, non-constitutional error review is
appropriate.”). “[N]on-constitutional error is reversible only if the reviewing court is able
to say, in the context of the specific evidence at trial, that it is reasonably probable that the
jury’s verdict would have been different but for the error.” Id. ¶ 54. We “evaluate all of the
circumstances surrounding the error. This requires an examination of the error itself, which
. . . could include an examination of the source of the error and the emphasis placed upon the
error.” Tollardo, 2012-NMSC-008, ¶ 43. Although it should not be the “singular focus of
the harmless error analysis,” id., “evidence of a defendant’s guilt . . . may often be relevant,
even necessary, for a court to consider, since it will provide context for understanding the
role the error may have played in the trial proceedings.” State v. Moncayo, 2012-NMCA-
066, ¶ 16, 284 P.3d 423 (internal quotation marks and citation omitted).

{18} We conclude after review of the transcript that there is no “reasonabl[e] probabil[ity]
that the jury’s verdict would have been different” if the transcript had been admitted. Barr,
2009-NMSC-024, ¶ 54. Defendant contends that “since [Defendant] maintained in his
testimony that he had been talking about wrestling, denying the jury the ability to review
what was actually said was an abuse of discretion.” Implicit in this argument is the
assumption that the redacted transcript was sufficiently exculpatory to change the verdict
notwithstanding the other evidence. See id. After a review of both the transcript and the
evidence at trial, we disagree.

{19} First, Defendant’s statements are not clearly exculpatory even when read in the
context of the transcript. At times in the interview Defendant maintained that the touches
Victim complained of occurred when they were wrestling. He said, “Not even touching, I
didn’t even touch her” and “I don’t touch” or “I don’t touch” her at least four times. On the
other hand, at one point Detective Moore told Defendant, “I’m not talking about wrestling,”
and shortly thereafter, Defendant said he touched Victim “on her butt” with his hands.
Defendant declined to say that Victim was lying and said several times that Victim told him
not to touch her in certain places or ways Defendant said that sometimes when Victim
protested, she told him to “do that to [M]om.”


                                               6
{20} We review the transcript not to usurp the role of the jury in evaluating Defendant’s
statements, but to examine “whether [the] error was likely to have affected the[ir] verdict.”
Tollardo, 2012-NMSC-008, ¶ 42 (stating that this question is the “central inquiry” of the
harmless error analysis). In this case, although the transcript should have been considered
under Rule 11-106 to permit Defendant to put his statements in context after they were
characterized as “admissions” by the State, as a whole the value of the transcript to
Defendant’s case is too dubious for us to conclude that its admission would have influenced
the jury’s deliberations in Defendant’s favor.

{21} The probable impact of the transcript is further diminished in light of the “non-
objectionable evidence” adduced at trial. State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d
1215 (“To put the error in context, we often look at the other, non-objectionable evidence
of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error
played at trial.”). Victim testified with specificity about the way Defendant touched her and
demonstrated with props how Defendant touched her. She testified that Defendant had been
drinking Budweiser with some guests before he touched her. The forensic interviewer
testified about how forensic interviews are conducted with children so as to avoid leading
questions and that he had conducted an interview with Victim. The drawings Victim made
during the forensic interview showing the places on her body Defendant touched were
admitted into evidence. The CYFD employee to whom Victim first reported the alleged
inappropriate touching the day after it occurred testified as to what Victim told her and
Victim’s demeanor. She also testified that when she went to Defendant’s home later that
day, she observed beer bottles on the lawn, consistent with Victim’s testimony that
Defendant had been drinking Budweiser the night before, and that Defendant whispered,
“What have I done?” after he and Victim’s mother were informed of Victim’s
disclosure. Detective Moore and Investigator Pacheco testified about what Defendant said
and did during their interviews with him, including his demeanor. Victim’s grandmother
testified that since the time of the alleged touching Victim had been “moody” and
“aggressive” and her grades had dropped.

{22} Defendant and Victim’s mother testified for the defense. Victim’s mother testified
that she never observed inappropriate touching of Victim by Defendant while they were
wrestling. She stated that Victim would get “real mad” when asked to do chores around the
house and that Defendant was the one who made sure Victim did them. She said that Victim
participated in the wrestling matches with Defendant and “most often” initiated them.
Defendant testified that he wrestled with Victim and the other children and that he went into
the bedroom that night to check on the sleeping children.

{23} Given that the transcript was not clearly exculpatory and considering it in the context
of the other evidence, we cannot conclude that the district court’s failure to consider the
transcript for admission and consequent denial of Defendant’s motion to admit it had an
impact on the jury’s verdict. The district court’s failure to review the transcript in redacted
form was harmless.


                                              7
B.      The District Court Erred in Failing to Conduct an in Camera Review of CYFD
        Records Sought by Defendant

{24} Defendant next argues that the district court erred by declining to order disclosure
of CYFD records related to allegations by Victim before those leading to this case.
Defendant made a motion to compel the State to provide the materials because they were
potentially exculpatory under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972). The State opposed the motion and argued that: (1) the district
attorney’s office “is not the custodian of any CYFD records” and CYFD is not part of the
“prosecution team”; (2) the records were confidential under NMSA 1978, Section 32A-4-33
(2009); and (3) the records were not relevant.

{25} The district court denied the motion, stating that it was premature because Defendant
had not subpoenaed CYFD to get the records. Defendant served CYFD with a subpoena
duces tecum, but CYFD refused to comply immediately. Instead, pursuant to Section 32A-4-
33, it requested additional information from which to determine if Defendant was entitled
to the records. Section 32A-4-33(B)(16) permits release of records only to parties in the case
or to “any other person or entity, by order of the court, having a legitimate interest in the
case,” and Section 32A-4-33(C) permits disclosure of limited records to “parent[s],
guardian[s] or legal custodian[s] whose child has been the subject of an investigation.”
Defendant had no right to CYFD records under Section 32A-4-33(C) because he was not a
parent, guardian, or legal custodian. In addition, Defendant was provided with the only
records to which he was entitled as a party to the present charges under Section 32A-4-
33(B). Defendant’s arguments, therefore, boiled down to whether he had a “legitimate
interest” in the records. See § 32A-4-33(B)(16).

{26} The State maintained that Defendant “cannot establish relevance for apparent
allegations that occurred PRIOR to the instant offense.” Defendant argued that “the defense
needed to know the complete picture about the earlier allegations and interviews” and “that
it was relevant whether [Victim] learned during those multiple interviews how to answer in
such a way that her allegations would be given credence.” He argued that the CYFD records
were relevant to “the credibility of the witness that the State must rely on in order to proceed
to trial, [Victim].” The district court found that Defendant had a legitimate interest “only
as to incidents related to [Defendant] and the charges alleged in the criminal information”
and declined to order disclosure of any records not related to the present charges. The
district court did not state the basis for this finding in either the order for disclosure or at the
hearing on the matter.

{27} “A trial judge’s denial of a defendant’s discovery requests will be reviewed
according to an abuse of discretion standard.” State v. Bobbin, 103 N.M. 375, 377, 707 P.2d
1185, 1187 (Ct. App. 1985). In order for an abuse of discretion to be reversible, the
defendant must demonstrate prejudice. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132
N.M. 756, 55 P.3d 968, abrogated on other grounds as stated in State v. Forbes, 2005-
NMSC-027, 138 N.M. 264, 119 P.3d 144. The primary issue argued below was whether the

                                                 8
records of allegations by Victim before those in the instant case were material to the charges
or Defendant’s defense. When a defendant has demonstrated “circumstances that reasonably
indicate that records may contain information material to the preparation of the defense[,]”
Ortiz, 2009-NMCA-092, ¶ 28, then “[t]he proper procedure to determine relevance is . . . in
camera review [of the documents].” State v. Gonzales, 1996-NMCA-026, ¶ 20, 121 N.M.
421, 912 P.2d 297. When, as here, the materials sought are protected by statute, “[i]n camera
review of confidential information represents a compromise between the intrusive disclosure
of irrelevant information on the one hand and the complete withholding of possibly
exculpatory evidence on the other.” State v. Luna, 1996-NMCA-071, ¶ 13, 122 N.M. 143,
921 P.2d 950.

{28} “A general assertion that inspection of the records is needed for a possible attack on
the victim’s credibility is insufficient to [trigger in camera review].” Id. ¶ 9. But Defendant
is not required “to know or show in advance that the records will actually contain helpful
information.” Ortiz, 2009-NMCA-092, ¶ 28; see Rule 5-503(C) NMRA (stating that
information sought in discovery need not be admissible at trial “if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence”). Instead,
Defendant must provide a reasonable basis on which to believe that it is likely the records
contain material information. Ortiz, 2009-NMCA-092, ¶ 28. In State v. Pohl, 89 N.M. 523,
524, 554 P.2d 984, 985 (Ct. App. 1976), the Court held that the defendant had made a
sufficient showing to require inspection of police personnel records when the “defendant had
shown two prior instances of the officer[’]s alleged misconduct.” In that case, the records
of previous misconduct were material to the defense because “the defendant’s guilt or
innocence [hinged] on whether the jury believe[d] the arresting officer [was] the aggressor.”
Id. Similarly, in Gonzales, there was no abuse of discretion when the district court ordered
in camera review of mental health records when other records indicated that the victim “had
a history of blackouts from alcohol” and the records may have “contained information that
[the victim] may have suffered cognitive difficulties which would affect her credibility at
trial.” 1996-NMCA-026, ¶ 21. The defendant there was charged with criminal sexual
penetration and claimed that the sexual encounter was consensual. Id. ¶¶ 3, 22. Thus,
whether the victim may have blacked out while they were together was material to his
defense. Id. ¶ 21.

{29} Here, as in Pohl and Gonzales, Defendant had evidence suggesting that Victim had
been interviewed a number of times by CYFD or Oasis and/or had made unsubstantiated
allegations of sexual abuse in the past. Victim waved to the camera in the Oasis interview
room and stated that she had been there before. Defendant also obtained a summary report
of allegations from Victim’s mother. This report showed that there had been allegations in
2002, 2003, 2004, 2006, 2008, and 2009 and that Victim had been interviewed about some
of the allegations. It also indicated that some of the allegations were found to be
unsubstantiated. Finally, since there was no physical evidence of abuse, the State’s case
rested entirely on the credibility of the witnesses. Thus, Victim’s credibility as to both
possible false accusations and learned ability to respond to interview questions was material
to Defendant’s defense. We conclude that Defendant made a threshold showing sufficient

                                              9
to trigger in camera review.

{30} The State points to Luna, 1996-NMCA-071, and State v. Ramos, 115 N.M. 718, 858
P.2d 94 (Ct. App. 1993), modified on other grounds by State v. Gomez, 1997-NMSC-006,
122 N.M. 777, 932 P.2d 1 as examples of cases in which this Court found no abuse of
discretion where the district court had denied a defendant’s motion for release of confidential
or privileged documents. These cases are inapposite. In Luna, the district court ordered in
camera review of the victim’s psychotherapy records on motion by the defendant. 1996-
NMCA-071, ¶¶ 3-4. The State initially did not object, but then “raised [an] objection that
[the d]efendant had made an insufficient showing to justify . . . in camera review on the day
of trial.” Id. ¶ 4. This Court acknowledged that the defendant’s bare assertion that “it is
likely that [the victim] revealed information to the therapist which may be relevant to issues
of her credibility . . . may not have been sufficiently particularized or compelling to justify
in camera review[,]” but did not decide this issue. Id. ¶ 10 (internal quotation marks
omitted). Rather, it held that the district court’s order was not an abuse of discretion because
the State did not timely object and the defendant was prejudiced by the delay. Id. ¶ 11. In
Ramos, the district court conducted an in camera review of the victim’s psychotherapy
records and found “that there was nothing in the records that justified their disclosure.” 115
N.M. at 721, 858 P.2d at 97. On appeal, the defendant argued that it was error not to order
disclosure of the records directly to him because the records “may well [have] contain[ed]
evidence of psychotic or hallucinatory behavior relevant to credibility.” Id. (internal
quotation marks omitted). There, the issue was whether the district court erred in its
determination that the records were not relevant after in camera review. In contrast, here the
issue is whether Defendant made a threshold showing sufficient to require in camera review
of the records. Neither Luna nor Ramos addresses this question.

{31} The State next argues that, even if the records sought were material, Defendant
“made no showing that the [district] court’s refusal to grant him . . . access . . . denied him
a defense or . . . fair trial or resulted in prejudice.” See Chacon v. State, 88 N.M. 198,
199-200, 539 P.2d 218, 219-20 (Ct. App. 1975) (“[N]ondisclosure of items material to the
preparation of the defense is not reversible error in the absence of prejudice.”). The district
court did not order disclosure of the records for in camera review and did not make a finding
as to their relevance; consequently, they are not part of the record on appeal. Since we have
no basis on which to assess prejudice, we cannot determine that there was no prejudice.
Pohl, 89 N.M. at 525, 554 P.2d at 986 (“In the absence of a determination of what the files
would have shown we cannot hold there was no prejudice.”)

{32} We hold that Defendant made a threshold showing of materiality sufficient to require
the district court to conduct in camera review. Therefore, the district court erred in ruling
that Defendant did not have a legitimate interest in the records of previous allegations
without assessing fully the relevance of those records through in camera review of them. We
remand for in camera review of the records to determine (1) if any portion of them is
material to the charges or defense and (2) whether exclusion of the records was prejudicial
to Defendant. If the answer to both questions is yes, Defendant must be given a new trial.

                                              10
See Pa. v. Ritchie, 480 U.S. 39, 58 (1987) (remanding for review of a children and youth
services file in camera and stating that if the file contains no “information that probably
would have changed the outcome of [the] trial . . . the lower court will be free to reinstate
the prior conviction”). We further note that the district court’s ruling in this matter will be
subject to appeal.

C.      Defendant Failed to Preserve His Arguments as to the District Court’s Grant
        of the State’s Motion in Limine

{33} We turn next to Defendant’s argument “that the [district] court’s refusal to allow the
defense to introduce evidence of [Victim]’s prior CYFD contacts was an abuse of its
discretion that resulted in deprivation of his constitutional rights to confrontation and due
process of law.” The State argues that “Defendant waived this issue for appeal” because he
“did not oppose the State’s motion [in limine to exclude such evidence]” and that, even if
the issue were not waived, prior allegations by Victim were irrelevant. Defendant does not
address waiver or preservation of this argument in his briefs. We conclude that this issue
is not properly before this Court either because Defendant waived his right to appeal
exclusion of the evidence by failing to file a notice of intent to admit the prior allegations
as required by Rule 11-412(C) NMRA, or because Defendant failed to elicit a ruling at trial
on the admissibility of the prior allegations.

{34} We begin by noting that analysis of whether evidence covered by our “rape shield
statute,” NMSA 1978, Section 30-9-16 (1993), should be admitted at trial is distinct from
our analysis of whether Defendant should have been permitted to obtain that evidence
through discovery. Gonzales, 1996-NMCA-026, ¶ 11 (stating that Rule 11-412, the
evidentiary rule related to the rape shield statute, “clearly governs only the admission of
evidence at trial and not pretrial discovery”). Thus, Rule 11-412 does not preclude discovery
of the CYFD records of prior allegations by Victim. The rule does, however, govern our
analysis of the district court’s grant of the State’s motion in limine to exclude such evidence
and the district court’s rulings at trial pertaining to the evidence. See State v. Payton, 2007-
NMCA-110, ¶¶ 5, 10, 142 N.M. 385, 165 P.3d 1161 (discussing the rape shield statute in the
context of CSCM charges and proof of the victim’s sexual knowledge prior to the alleged
CSCM).

{35} Defendant did not argue against the State’s motion in the hearing on the matter. In
fact, Defendant stated at the motion hearing that he “had not anticipated soliciting that type
of information anyway.” Although he also stated that “if it comes up, I guess that will be
addressed[,]” the district court reiterated that it should not come up in front of the jury, and
Defendant did not object further. The State’s motion was predicated on Section 30-9-16(A),
which prohibits admission of “evidence of the victim’s past sexual conduct, opinion
evidence of the victim’s past sexual conduct or of reputation for past sexual conduct, . . .
unless . . . the evidence is material to the case and that its inflammatory or prejudicial nature
does not outweigh its probative value.” See Rule 11-412(B). The State argued that
Defendant had not demonstrated that these conditions were met and that Defendant had not

                                               11
filed a written notice notifying the court of his intent to admit the prior allegations. See Rule
11-412(C)(1), (2) (“If the defendant intends to offer evidence under Rule 11-412(B) . . ., the
defendant must file a written motion before trial. . . . Before admitting evidence under this
rule, the court shall conduct an in camera hearing to determine whether such evidence is
admissible.”). The district court acknowledged this failure in its oral ruling on the motion
and noted both at the hearing and in its order that “if new issues arise during trial, the
[district c]ourt will review those issues at that time.” See Proper v. Mowry, 90 N.M. 710,
715, 568 P.2d 236, 241 (Ct. App. 1977) (noting that a ruling on a motion in limine is
“without prejudice to the right to offer proof [and possible introduction of the evidence]
during the course of the trial”).

{36} In spite of this acknowledgment by the district court, Defendant never filed the
required notice under Rule 11-412(C) or sought a hearing on admissibility of the prior
allegations by Victim. This failure precluded admission of this evidence. State v. Johnson,
1997-NMSC-036, ¶ 20, 123 N.M. 640, 944 P.2d 869 (stating that during the in camera
hearing, the movant may “inform the [district] court of the relevant facts and circumstances,
make the arguments of relevancy, and explain the respective positions on balancing. In
conducting that inquiry, the [district] judge must depend on the moving party or parties to
offer proof and argument in support of the ruling sought”).

{37} Even if Defendant’s conduct vis á vis the motion in limine or Rule 11-412(C) did not
constitute waiver, he failed to preserve the issue for appeal. In order to preserve an issue for
appeal, Defendant must make a timely objection that apprises the district court specifically
of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela,
1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. In addition, “it must appear that [the]
appellant fairly invoked a ruling of the [district] court on the same grounds argued in the
appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App.
1987). At trial, Defendant sought to ask questions of Victim about why she lived with her
grandmother in the year before the current allegations. In addition, he questioned the CYFD
services provider and the CYFD investigator about why they knew Victim before the
investigation of the alleged incidents. He also asked the forensic interviewer why Victim
had waved to the camera in the interview room. In each case, the State objected on grounds
that the district court had already ruled that reference to “[V]ictim’s prior sexual conduct,
to include allegations of prior sexual abuse” was excluded. At the beginning of the second
day of trial, the district court reiterated its ruling on the motion, stating that “prior allegations
with CYFD are not to be elicited or brought in.” In response, Defendant argued that the
Defendant’s statements were hearsay and the best evidence rule required admission of the
audio recording of the interview. These arguments at trial related to the admissibility of the
audio recording or transcript of Defendant’s police station interview, not to the admissibility
of Victim’s prior allegations. Because Defendant did not file notice of intent to admit
Victim’s prior allegations and did not object to the Court’s ruling on the exclusion of prior
allegations at trial, the district court was never alerted to his arguments regarding admission
of the evidence so as to make “an intelligent ruling thereon.” This issue was not preserved.
See Woolwine, 106 N.M. at 496, 745 P.2d at 721.

                                                 12
D.     Sufficient Evidence Supported the Jury’s Findings That Defendant Committed
       Two Counts of CSCM

{38} “[A] sufficiency of the evidence question involves a two-step process.” State v.
Armendariz-Nunez, 2012-NMCA-041, ¶ 16, 276 P.3d 963, cert. denied, 2012-NMCERT-
003,     P.3d . “Initially, we view the evidence in the light most favorable to the verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict[.]” Id. The next step requires that we “make a legal determination of whether the
evidence viewed in this manner could justify a finding by any rational trier of fact that each
element of the crime charged has been established beyond a reasonable doubt.” Id. (internal
quotation marks and citation omitted).

{39}   The jury was instructed with identical instructions for both counts as follows:

               For you to find [D]efendant guilty of criminal sexual contact of a
       child under the age of [thirteen] as charged in Count 1, [replaced with Count
       2 in second instruction], the [S]tate must prove to your satisfaction beyond
       a reasonable doubt each of the following elements of the crime:

              1.     [D]efendant touched or applied force to the unclothed
       buttocks and/or vagina of [Victim];

               2.      [Victim] was [twelve] years of age or younger;

              3.     This happened in New Mexico on or between January 1,
       2009[,] and February 12, 2009.

{40} We have examined the evidence in detail and conclude that it is sufficient to permit
retrial if the district court concludes that one is necessary following its in camera review of
the records of previous allegations. Although most of the evidence related to February 11,
2009, Victim also testified that Defendant had touched her inappropriately prior to that
incident. Victim testified that February 11, 2009, was not the only time that Defendant had
touched her “private parts” and that it had started when her mother began work at Burger
King in June. Defendant’s testimony also supported an inference by the jury that
inappropriate touchings had occurred on more than one occasion in the specified time period
because Defendant stated during cross-examination that he had told Detective Moore in the
interview that “the inappropriate things had been going on between [him and Victim] about
a week.” Detective Moore also testified that Defendant said he had touched Victim
inappropriately “twice within the last week.”

{41} Under our standard of review, sufficient evidence was presented for the jury to
conclude that Defendant “touched or applied force to the unclothed buttocks and/or vagina”
of Victim both on the night of February 11, 2009, and on another occasion between January
1, 2009, and February 12, 2009. The lack of testimony pinpointing a specific date on which

                                              13
the other incident of CSCM occurred does not preclude a finding by the jury that two
incidents of touching occurred based upon the evidence presented. See State v. Altgilbers,
109 N.M. 453, 471, 786 P.2d 680, 698 (Ct. App. 1989) (stating that “[n]o juror need have
a precise day in his or her own mind in order to vote for conviction” for purposes of a
sufficiency of the evidence analysis and concluding that sufficient evidence supported
verdicts in spite of the lack of evidence of specific dates of the occurrence of criminal sexual
acts). Accordingly, should a new trial be required following in camera review of the CYFD
records, Defendant’s right to be free from double jeopardy will not be violated by retrial on
both counts of CSCM.

E.      The District Court Did Not Err in Denying Defendant’s Motion to Suppress

{42} The district court denied Defendant’s motion to suppress his statements at the
February 18 interview at the police station. Defendant argues first that “he felt coerced in
[the] interview” and then “that the [district] court erred in finding that there was a proper
waiver of his rights to remain silent[ during the police interview on February 18] and that
this error . . . require[s] retrial.” He cites to cases addressing a suspect’s rights under
Miranda v. Arizona, 384 U.S. 436 (1966). The State argues that Defendant was not in
custody during the questioning and that the questioning was not “the type of interrogation
requiring Miranda warnings.”

{43} It is not entirely clear whether Defendant’s argument is that his statements were
involuntary (because they were coerced) and, therefore, that they violated his right to due
process under the Fourteenth Amendment, or that his statements violated his Fifth
Amendment rights because he did not voluntarily, knowingly, and intelligently waive his
Miranda rights. See State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (“A claim
that the police coerced a statement requires a different analysis than a claim that an accused
voluntarily waived his or her Fifth Amendment protections under Miranda.”); U.S. Const.
amends. V and XIV; see also Miller v. Dugger, 838 F.2d 1530, 1537 (11th Cir. 1988). In
either case, we conclude that the district court did not err in denying Defendant’s motion to
suppress.

{44} We first address whether Defendant’s due process rights were violated. We review
whether a statement was voluntarily given by assessing the totality of the circumstances.
State v. Munoz, 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847. In order to determine
that a statement was involuntary, we must also conclude that the statement was the result of
police misconduct. Id. ¶ 21. “[I]ntimidation, coercion, deception, assurances, or other police
misconduct . . . constitutes overreaching . . . [and] requires that the [statements] be
excluded.” Id. ¶ 23. Here, Detective Moore asked Defendant during the February 17
interview to come to the police station the next day. He stated, “I would like for you to come
to the [p]olice [d]epartment. Not . . . it don’t [sic] have to be right now but tomorrow would
be good.” Defendant responded, “Tomorrow, what time?” When Defendant stated that he
didn’t have a way to get to the police station, Detective Moore offered to pick Defendant up
or have someone else pick him up. Defendant responded, “That will be fine.” This

                                              14
conversation occurred while Defendant, Detective Moore, and Investigator Pacheco were
standing in front of Defendant’s home.

{45} Defendant was transported to the police station by another detective. He testified that
the detective placed his duty weapon on his lap during the ride. The detective testified in
contrast that he did not remember where exactly his weapon was during the ride, but that “it
would not have been in plain sight.” At the police station, Detective Moore interviewed
Defendant while Investigator Pacheco observed. Detective Moore began by telling
Defendant “You have not been charged with anything. You are not under arrest, in fact, .
. . basically you are free to go anytime that you want. . . . [Y]our rights do apply, even
though you are not in custody or anything, you still have the right to remain silent.” He then
told Defendant he would “read . . . the rights that you hear on [TV]” and recited the Miranda
warnings. [State’s Ex. 3, 2:12-19] Defendant indicated that he understood. [Id. Ln. 20]
Detective Moore presented Defendant with the waiver form, reviewed it orally, and stated,
“Again, if you don’t want to talk to me that is fine, that’s[,] you know, well within your
rights, and you are free to go at any time.” Defendant responded, “[O]K,” and signed the
waiver form. The interview lasted approximately one hour. During the interview, Detective
Moore told Defendant that Victim was not lying and implied that Defendant was not being
truthful. Nonetheless, nothing in the way the interview was conducted amounts to
“intimidation, coercion, deception, assurances” or overreaching such that Defendant’s due
process rights were violated.

{46} We turn next to whether Defendant’s Fifth Amendment rights were violated. “[W]e
review the [district] court’s findings of fact for substantial evidence and review de novo the
ultimate determination of whether a defendant validly waived his or her Miranda rights prior
to police questioning.” State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d
1177.

{47} As a preliminary matter, we note that Miranda warnings are required only when a
suspect is in custody and under interrogation. Smile, 2009-NMCA-064, ¶ 24. The State
argues that these conditions were not present. We do not address this issue because even if
we assume without deciding that Defendant was interrogated while in custody, we conclude
that Defendant’s Fifth Amendment rights were not violated. Defendant received Miranda
warnings from Detective Moore orally and in writing. Our inquiry, therefore, is whether he
“knowingly, intelligently, and voluntarily waived his . . . constitutional rights under
Miranda.” Barrera, 2001-NMSC-014, ¶ 22. This inquiry involves two components.
Fekete, 120 N.M. at 301, 901 P.2d at 719.

       First, the relinquishment of the right must have been voluntary in the sense that
       it was the product of a free and deliberate choice rather than intimidation,
       coercion, or deception. Second, the waiver must have been made with a full
       awareness of both the nature of the right being abandoned and the consequences
       of the decision to abandon it.


                                           15
Id. (internal quotation marks and citation omitted). We have already addressed the first
component. “‘[V]oluntariness’ in the context of a Miranda waiver means the same thing as
‘voluntariness’ in the due process context, i.e., freedom from official coercion.” Miller, 838
F.2d at 1538. Having determined that there was no official coercion in the arrangements for or
conduct of the interview, we conclude that Defendant’s waiver of his rights under Miranda was
voluntary. See Fekete, 120 N.M. at 301, 901 P.2d at 719 (stating that since the due process
analysis revealed that there was no evidence of intimidation or coercion, the “inquiry focuses
on the second element of the waiver”).

{48} The remaining question is “whether [Defendant] was fully aware both of the nature of
the rights he waived and the consequences of the waiver.” Id. Defendant had several
opportunities to indicate that he did not understand the nature and consequences of the waiver.
After Detective Moore read the rights to Defendant, he asked, “Do you understand all that?”
Defendant responded, “Yep.” Detective Moore then reviewed the waiver form, on which were
printed the Miranda rights. He explained, “[T]his is a wa[iv]er just saying that you read the
statement about my rights and I understand what my rights are” and “by signing this, this is just
signing a wa[iv]er saying that you understand your rights and you are willing to talk. Okay?”
Defendant responded, “[O]K.” On appeal, Defendant does not direct us to specific evidence that
his waiver was not knowing and intelligent. Thus, we conclude that the district court did not err
in denying Defendant’s motion to suppress. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15,
121 N.M. 562, 915 P.2d 318 (“The question is whether the [district] court’s decision is supported
by substantial evidence, not whether the court could have reached a different conclusion.”).

F.     Cumulative Error

{49} “Under the doctrine of cumulative error, this Court must reverse a conviction when the
cumulative impact of the errors [that] occurred at trial was so prejudicial that the defendant was
deprived of a fair trial.” Baca, 120 N.M. at 392, 902 P.2d at 74 (alteration in original) (internal
quotation marks and citation omitted). “Several errors that would in themselves be harmless
may together create reversible error if they deprived the defendant of a fair trial.” State v. La
Madrid, 1997-NMCA-057, ¶ 24, 123 N.M. 463, 943 P.2d 110. “This doctrine is to be strictly
applied, and [Defendant] cannot invoke it if the record as a whole demonstrates that he received
a fair trial.” State v. Woodward, 121 N.M. 1, 12, 908 P.2d 231, 242 (1995), abrogated on other
grounds as recognized in State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455, 176 P.3d
1187.

{50} Defendant argues that “the cumulative net effect of these errors was a denial of a
defense.” The district court’s failure to review CYFD’s materials in camera was error, but that
error is reversible only if it was prejudicial. If so, Defendant will receive a new trial. In
addition, any error in failing to admit the transcript of the police interview was harmless.
Defendant’s other assertions of error are not only not reversible, but are unfounded. Even in the
aggregate, they did not deprive Defendant of a fair trial.

CONCLUSION

                                                16
{51} We remand for an in camera review of the CYFD records Defendant sought through
discovery consistent with this opinion.

{52}   IT IS SO ORDERED.

                                       _______________________________________
                                       MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
MICHAEL E. VIGIL, Judge




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