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

 2
 3 STATE OF NEW MEXICO,

 4         Plaintiff-Appellee,

 5 v.                                                             NO. 26,707

 6 ROGER ATENCIO,

 7         Defendant-Appellant.


 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 9 Stephen D. Pfeffer, District Judge


10   Gary K. King, Attorney General
11   Santa Fe, NM
12   Jacqueline R. Medina, Assistant Attorney General
13   Albuquerque, NM

14 for Appellee

15 Turcotte Law Office
16 Cindy L. Turcotte
17 Santa Fe, NM

18 for Appellant


19                               MEMORANDUM OPINION

20 ROBLES, Judge.

21         Defendant appeals from his convictions for three counts of criminal sexual

22 penetration, one count of false imprisonment, and one count of battery against a
 1 household member. Defendant asserts that (1) the district court abused its discretion

 2 in permitting the prosecutor to ask several defense witnesses whether they knew if the

 3 victim had a motive to lie about the incident that gave rise to the charges in this case;

 4 (2) the district court abused its discretion in permitting the prosecutor to ask a defense

 5 witness if she knew that Defendant had been convicted of a felony; and (3) the district

 6 court abused its discretion in denying Defendant’s motion for a mistrial after the State

 7 introduced testimony of a rebuttal witness who was not a true rebuttal witness and

 8 who should have been disclosed to Defendant prior to trial. As we conclude that none

 9 of these claims of error warrants reversal, we affirm Defendant’s convictions. I.

10        BACKGROUND

11        This case arose out of an incident in which Defendant’s fiancée (Victim)

12 accused him of attacking and sexually assaulting her in a hotel room after a party. The

13 party was held by Defendant’s employer and, at trial, Defendant called several friends

14 and co-workers, who had attended the party, to testify about the events of that

15 evening. Defendant also testified, and the State called Victim’s employer, Anna

16 Sanchez, purportedly to rebut certain statements that Defendant made during his

17 testimony about his visits to Victim’s workplace after the incident. Defendant’s

18 claims of error all arise from the State’s presentation of evidence through these

19 witnesses.



                                               2
 1 II.    DISCUSSION

 2 A.     The Prosecutor’s Questions to Defense Witnesses About Whether Victim
 3        Had a Motive to Lie

 4        At trial, Defendant called Richard Baldonado, Kathy Salazar, Ruben Corriz,

 5 Mitsie Martinez, and Oley Grinage to describe what they observed about Defendant’s

 6 and Victim’s behavior during the party. Defendant asserts that the district court erred

 7 in permitting the State to ask these witnesses whether they knew if Victim had a

 8 motive to lie about the events that formed the basis of the charges in this case.1

 9 Defendant’s argument on appeal is based on the principle that asking one witness

10 whether another witness is lying is improper. See State v. Soto, 2007-NMCA-077, ¶

11 15, 142 N.M. 32, 162 P.3d 187 (“[T]his Court [has] established a ‘strict prohibition

12 upon asking the defendant if another witness is ‘mistaken’ or ‘lying.’” (citation

13 omitted)). The State argues that Defendant did not preserve this argument.       We agree

14 with the State that Defendant failed to preserve the argument he makes on appeal. The

15 State asked Baldonado whether he knew if Victim had a motive to make these

16 accusations against Defendant and whether Victim seemed like the sort of person who

17 would make up such accusations. Defendant objected and stated that he anticipated

18 the State would ask the same question of several other witnesses, stating: “It is pure

          1
19         Although the State asked similar questions of Defendant on cross-examination,
20 he did not object to these questions at trial, and he does not argue on appeal that they
21 warrant reversal.
                                              3
 1 speculation[;] how does he know what her motivation would be[?]” The district court

 2 stated that the questions did not call for speculation and indicated that the question

 3 was phrased in a manner that did not call for speculation because, if the witnesses did

 4 not know of any motive Victim might have, they could simply say so. In cross-

 5 examining Salazar, the State asked whether, based on her observations of the

 6 interactions between Victim and Defendant on the night of the party, she knew of any

 7 reason that Victim would make these accusations if they were not true. The State

 8 asked Corriz the same basic question in several different ways. Defendant objected

 9 on the ground that the question had been asked and answered. The State asked similar

10 questions of Martinez and Grinage.

11        We cannot conclude that either of Defendant’s objections alerted the district

12 court to the claim of error that he now makes on appeal. His only substantive

13 objection went to the issue of whether the witnesses had personal knowledge of

14 Victim’s motives—an objection that would fairly come within Rule 11-602

15 NMRA—and did not alert the district court to any issue about whether a witness may

16 appropriately comment on the truthfulness of another witness’s testimony, or about

17 whether credibility issues should be left to the jury to resolve. See State v. Varela,

18 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (“In order to preserve an error

19 for appeal, it is essential that the ground or grounds of the objection or motion be



                                              4
 1 made with sufficient specificity to alert the mind of the trial court to the claimed error

 2 or errors, and that a ruling thereon then be invoked.” (internal quotation marks and

 3 citation omitted)). In Defendant’s reply brief, he makes a cursory argument that the

 4 admission of this evidence constituted either plain or fundamental error, such that this

 5 Court may review the issue even if it was not preserved.

 6         “Under the plain error rule, there must be (1) error, that is (2) plain, and (3) that

 7 affects substantial rights.” State v. Hill, 2008-NMCA-117, ¶ 21, 144 N.M. 775, 192

 8 P.3d 770 (internal quotation marks and citation omitted), cert. granted, 2008-

 9 NMCERT-008, 145 N.M. 255, 195 P.3d 1267. In this case, we need not decide

10 whether the district court’s allowance of the questions actually constituted error, since

11 we conclude that any claimed error did not affect Defendant’s substantial rights.

12         This Court has previously held that plain error is to be used sparingly. State v.

13 Torres, 2005-NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877. We apply the rule only

14 in evidentiary matters and “only if we have grave doubts about the validity of the

15 verdict, due to an error that infects the fairness or integrity of the judicial proceeding.”

16 Id. (internal quotation marks and citation omitted). In determining whether there has

17 been plain error, “we must examine the alleged errors in the context of the testimony

18 as a whole.” State v. Barraza, 110 N.M. 45, 49, 791 P.2d 799, 803 (Ct. App. 1990).




                                                 5
 1        Even assuming that allowing these questions was error, in looking at the trial

 2 as a whole, we cannot conclude that these questions, or the answers to them, create

 3 grave doubts about the validity of the verdict. The witnesses simply stated that, based

 4 on their observations of Defendant and Victim that night, they did not know of any

 5 reason that Victim would have to lie. They also stated that they did not know Victim

 6 well enough to have any knowledge of her motives. These questions and answers

 7 were a relatively small portion of the State’s case against Defendant, and they did not

 8 distort the burden of proof by suggesting that Defendant had to prove that Victim was

 9 lying. Cf. Duran, 2006-NMSC-035, ¶¶ 23-27 (holding that improper questioning

10 about whether other witnesses were lying did not constitute fundamental error where

11 the defendant claimed that they were lying, when the improper questions were a small

12 part of the state’s case, and when the questions did not shift the burden of proof to

13 suggest that the defendant was required to prove that the witnesses were lying).

14 Accordingly, we conclude that the asserted evidentiary error does not create “grave

15 doubts about the validity of the verdict.” State v. Dylan J., 2009-NMCA-027, ¶ 15,

16 145 N.M. 719, 204 P.3d 44.

17        Finally, assuming without deciding that the district court erred in allowing these

18 questions, the ruling did not constitute fundamental error because, for the same




                                              6
 1 reasons that we conclude that the questions did not cause grave doubts about the

 2 validity of the verdict, they did not deprive Defendant of a fair trial. See id.

 3 B.     The Prosecutor’s Question About Whether Mitsie Martinez Knew
 4        Defendant Had a Prior Felony Conviction

 5        On cross-examination, the prosecutor elicited testimony that defense witness,

 6 Martinez, believed Defendant would not commit the acts of which he was accused.

 7 The district court then permitted the prosecutor, over Defendant’s objection, to ask

 8 Martinez whether she was aware that Defendant had been convicted of a felony. We

 9 need not decide whether the district court abused its discretion in permitting this

10 question since, even if the ruling was erroneous, the error was harmless. The

11 prosecutor did not specify what the prior felony was and, later, when Defendant was

12 cross-examined, he admitted both the fact of the prior conviction and that it was for

13 false imprisonment. Defendant does not argue that this evidence should not have been

14 admitted during the cross-examination of Defendant, only that it should not have been

15 admitted during cross-examination of Martinez.

16        Under New Mexico’s standard for non-constitutional harmless error, this Court

17 will not reverse a conviction if there “is no reasonable probability the error affected

18 the verdict.” State v. Barr, 2009-NMSC-024, ¶ 53, ___ N.M. ___, ___ P.3d ___ (No.

19 30,191, May 22, 2009). (Emphasis omitted.) Because Defendant stated that he was

20 previously convicted of false imprisonment, there was no reasonable probability that

                                              7
 1 the question to Martinez about Defendant’s prior conviction could have affected the

 2 verdict. This evidence was just a brief, general statement about facts that Defendant

 3 would later admit and of which Martinez stated that she had no knowledge. See State

 4 v. O’Neal, 2008-NMCA-022, ¶ 22, 143 N.M. 437, 176 P.3d 1169 (holding that

 5 erroneous admission of evidence of a defendant’s notice of alibi was harmless when

 6 the defendant testified regarding his alibi defense), cert. denied, 2008-NMCERT-002,

 7 143 N.M. 665, 180 P.3d 672.

 8        Defendant asserts that the error somehow prejudiced his defense by forcing him

 9 to commit to testifying. This argument is without merit. Defendant had already

10 committed to testifying when defense counsel in her opening statement told the jury

11 that Defendant would testify and then provided the jury with a detailed overview

12 about what Defendant would testify. During the bench conference on this issue, the

13 judge asked defense counsel: “Are you saying that somehow my ruling would

14 determine whether or not he testifies at this point?” Defense counsel responded: “No.

15 My client has to testify.” Defense counsel later clarified that when she said her client

16 had to testify, she meant that it was a trial strategy. It is clear that Defendant chose

17 to testify because the only witnesses to the actual events were Defendant and Victim,

18 and Defendant thought it necessary to explain to the jury that the sexual activity was

19 consensual, and Victim’s injuries were sustained when she accidentally fell in the



                                              8
 1 shower. The judge’s ruling, which was made at the bench, and presumably out of the

 2 hearing of the jury, in no way required Defendant to testify.

 3 C.     The State’s Failure to Disclose Anna Sanchez as a Witness Prior to Trial

 4        Defendant asserts that the district court abused its discretion when it denied

 5 Defendant’s motion for a mistrial based on the State’s failure to timely disclose

 6 Sanchez, who testified in rebuttal, but was not a true rebuttal witness. Prior to

 7 Sanchez’s testimony, Defendant objected, and the district court ruled that Sanchez was

 8 a true rebuttal witness, such that the court would allow her to testify. After Sanchez

 9 testified, the district court agreed with Defendant that the State should have disclosed

10 her as a witness earlier and instructed the jury that it should not consider Sanchez’s

11 testimony for any purpose in its deliberations. The district court denied Defendant’s

12 motion for a mistrial.

13        On appeal, Defendant does not argue that the substance of Sanchez’s testimony

14 was inadmissible and argues only that the fact of the late disclosure of the witness

15 warrants a mistrial. In order to determine whether the late disclosure of evidence

16 requires reversal,

17        a reviewing court will consider the following factors: (1) whether the
18        State breached some duty or intentionally deprived the defendant of
19        evidence; (2) whether the improperly non-disclosed evidence was
20        material; (3) whether the non-disclosure of the evidence prejudiced the
21        defendant; and (4) whether the trial court cured the failure to timely
22        disclose the evidence.

                                              9
 1 State v. McDaniel, 2004-NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701 (internal

 2 quotation marks and citation omitted).

 3        As to the first factor in this case, the district court seemed to conclude that the

 4 State purposefully breached a duty to disclose the witness to Defendant. In evaluating

 5 the second factor, evidence is material “if there is a reasonable probability that, had

 6 the evidence been disclosed to the defense, the result of the proceeding would have

 7 been different.” Id. ¶ 11 (internal quotation marks and citation omitted). Defendant’s

 8 brief does not explain how he believes that the result of the proceeding would have

 9 been different if the evidence had been disclosed earlier, and we have no reason to

10 independently conclude that it would have been. As to the third factor, non-disclosure

11 of evidence is only prejudicial if Defendant’s case “would have been improved by an

12 earlier disclosure or [if Defendant] would have prepared differently for trial.” Id. ¶

13 14. Defendant does not explain how he was prejudiced, other than to say that the late

14 disclosure “eliminated [his] ability to effectively cross-examine the [S]tate’s witnesses

15 . . . and prejudiced [his] presentation of his defense overall.” At trial, Defendant only

16 asked Sanchez questions about the date on which she received her subpoena for trial

17 and what she discussed with the prosecutor prior to trial. While we can perhaps

18 assume that Defendant would not have asked these questions if the witness had been

19 disclosed earlier, he does not explain what he would have cross-examined Sanchez



                                              10
 1 about had she been timely disclosed and how this would have improved his case.

 2 Therefore, we have no basis on which to conclude that Defendant was prejudiced. As

 3 for the final factor, the district court instructed the jury that it should not consider the

 4 witness’s testimony. “The overwhelming New Mexico case law states that the prompt

 5 sustaining of the objection and an admonition to disregard the answer cures any

 6 prejudicial effect of inadmissible testimony.” State v. Simonson, 100 N.M. 297, 301,

 7 669 P.2d 1092, 1096 (1983). The curative action taken here, balanced against the

 8 circumstances, was sufficient. Therefore, under these factors, Defendant has not

 9 demonstrated that reversal is warranted based on the late disclosure of this witness.

10 Any prejudice to Defendant from Sanchez’s testimony really came from the substance

11 of her testimony, not from the fact that she was not timely disclosed. Accordingly,

12 reversal on the basis of untimely disclosure is not warranted.

13 D.     Cumulative Error

14        In his reply brief, Defendant titles his argument as a challenge to the sufficiency

15 of the evidence. The body of the argument, however, is directed to the admission of

16 evidence of Defendant’s prior conviction and the testimony of Anna Sanchez—issues

17 already addressed in this opinion. Because Defendant does not develop an argument

18 related to the evidence supporting the verdict, despite the heading to the contrary, we

19 decline to address this issue. See State v. Torres, 2005-NMCA-070, ¶ 34, 137 N.M.



                                                11
 1 607, 113 P.3d 877 (stating that we will not address issues unsupported by argument

 2 and authority).

 3        We also note that while Defendant’s brief-in-chief mentions a claim of

 4 cumulative error in the introduction, he does not list this claim among the three claims

 5 of error raised on appeal in his table of contents and does not mention it again any

 6 where in the brief-in-chief or reply brief. Neither does he cite any authority that

 7 would support this claim. We will not address this argument as Defendant failed to

 8 develop it. See Torres, 2005-NMCA-070, ¶ 34 (stating that an appellate court will not

 9 address issues unsupported by argument and authority).

10 III.   CONCLUSION

11        As Defendant has not demonstrated that any of his claims of error warrant

12 reversal on appeal, we affirm his convictions.

13        IT IS SO ORDERED.



14                                                 _______________________________
15                                                 ROBERT E. ROBLES, Judge




                                              12
1 WE CONCUR:



2 ____________________________
3 JONATHAN B. SUTIN, Judge



4 ____________________________
5 CELIA FOY CASTILLO, Judge




                                 13
