This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 26,525 9 DAVID HASKINS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Silvia E. Cano-Garcia and Stephe n Bridgforth, District Judges 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Joel R. Jacobsen, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 KENNEDY, Judge. 242 Defendant appeals his convictions for three counts of criminal sexual contact 1 of a minor in the third degree and one count of criminal sexual contact in the fourth 2 degree. On appeal, Defendant argues that the evidence was insufficient to support his 3 convictions and that the district court j udge erred in denying hi s request for a change 4 of venue. We affirm. 5 I. Sufficient Evidence Supports Defendant’s Convictions 6 We review the evidence to determine “whether substantial evidence of either 7 a direct or circumstantial nature exis ts to support a verdict of guilt beyond a 8 reasonable doubt with respectto every element essential to a conviction.” State v. 9 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, we 10 view the evidence in the light most favorab le to support the guilty verdict, and indulge 11 all reasonable inferences and resolve all conflicts in the evidence in favor of upholding 12 the verdict. State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 13 176. We do not re-weigh the evidence, nor substitute our “judgment for that of the 14 fact-finder so long as there is suffici ent evidence to support the verdict.” Sutphin , 107 15 N.M. at 131, 753 P.2d at 1319. 16 Defendant’s convictions for three counts of criminal sexual contact of a minor 17 (CSCM) in the third degree require subs tantial evidence that Defendant unlawfully 18 and intentionally touched or applied force to Victim’s breasts; that Victim was twelve 193 years of age or younger; and that the in cidents happened in the time frame between 1 October 1 and December 31, 1998; January 1 and March 31, 1999; and April 1 and 2 July 5, 1999. SeeNMSA 1978, § 30-9-13(A), (C) (2003). 3 Defendant’s conviction for one count of CSCM in the fourth degree requires 4 evidence that Defendant unlawfully and in tentionally touched or applied force to 5 Victim’s breasts; that in doing so, Defendant used physical force or physical violence; 6 that Victim was at least thirteen but le ss than eighteen years old; and that this 7 happened in the time frame between July 6 and September 30, 1999. See § 30-9- 8 13(A), (D). 9 Victim testified that she knew Defendant from church and, at one point, 10 considered Defendant to be “a good friend. ” However, Victim testified that her 11 relationship with Defendant changed when Defendant “began to touch me in the 12 wrong areas.” Specifically, Victim testif ied that Defendant would hug her normally 13 but would then turn her body around, cross hi s arms in the front of her body, put his 14 hands and arms on her breasts, and squeeze her breasts through her clothing. In 15 response to the prosecutor’s question of “[d] id you ever have to struggle to get away 16 from him?” Victim responded, “Yeah, I tried to walk off.” 17 Victim further provided that the touching began from the time she was about 18 twelve years old and continue d after she turned thirteen. During the applicable time- 194 frame, Victim testified that Defendant touched her more than fifty times, doing so 1 multiple times every Sunday that she and Defendant were both at c hurch. In October 2 1999, when Victim was thirteen, she reported the crimes to her school counselor. 3 Based on the foregoing testimony by Victim, we hold that sufficient evidence supports 4 Defendant’s convictions. See State v. Sparks , 102 N.M. 317, 320, 694 P.2d 1382, 5 1385 (Ct. App. 1985) (defining substantial evidence as that evidence which a 6 reasonable person would consider adequate to support a defendant’s conviction). 7 In an effort to cast doubt on the jury’s verdict, Defendant a sserts that Victim’s 8 testimony was not credible because no witn esses saw the unlawful touching and that, 9 had any such touching occurred, witnesses would have seen it. Any failure to observe 10 the illegal conduct by witnesses, however, does not refute Vic tim’s testimony, but 11 instead is a matter for the juryto consider in assessing th e weight of the evidence. See 12 State v. Gonzales , 1997-NMSC-050, ¶ 18, 124 N.M. 171, 947 P.2d 128 (holding that 13 it is the fact-finder’s prerogative to weigh the evidence and to judge the credibility of 14 the witnesses). In rejecting Defendant’s position that the unl awful touching never 15 occurred, for example, the jury may haveagreed with Victim that the other 16 parishioners, although nearby, did not see th e touching because either they were not 17 watching or were not paying attention. As stated by Victim, although other people 18 were around, they would “not be like staring right at us.” See State v. Huff , 1998- 195 NMCA-075, ¶ 11, 125 N.M. 254, 960 P.2d 342 (holding th at, although the defendant 1 offered conflicting testimony, the jury is entitled to disregard the defendant’s version 2 of the facts). Moreover, while Victim delayed in reporting the crimes, the jury 3 reasonably could have relied on Victim’s testimony that she initially did not tell 4 anyone because she was scared and afraid that no one w ould believe her. Victim 5 additionally testified that she did not immedi ately report the crimes because she at first 6 did not understand that the touching wa s wrong and because Defendant was her 7 mother’s friend. 8 II. The Court did not Abuse its Discretion in Denying a Change of Venue 9 Defendant argues that the judge erred in denying his request for a change of 10 venue on the basis that publicity prevented him from receiving a fair trial. As the 11 party opposing the judge’s venue decision, Defendant must show that the judge 12 abused his discretion, and must do soby showing through clear and convincing 13 evidence that a fair trial by an impartial jury was a practical impossibility. State v. 14
House , 1999-NMSC-014, ¶¶ 31, 43, 127 N.M. 151, 978 P.2d 967. 15 Exposure of potential jurors to pre-trial publicity does not in and of itself 16 require a change of venue. State v. Chamberlain , 112 N.M. 723, 726, 819 P.2d 673, 17 676 (1991). Rather, “[t]he pertinent inquiry is whether the jurors . . . had such fixed 18 opinions that they could not judge impartially the guilt of the defendant.” State v. 196 Hernandez , 115 N.M. 6, 21, 846 P.2d 312, 327 ( 1993) (alterations in original) 1 (internal quotation marks and citation omitted). Such lack of partiality results when 2 there has been either actual or presumed prejudice. As provided in House , 1999- 3 NMSC-014, ¶ 46, 4 Actual prejudice requires a direct investigation into the attitudes of 5 potential jurors. Under this inquiry, the court will conduct a voir dire of 6 prospective jurors to establish whether there is such widespread and 7 fixed prejudice within the jury pool thata fair trial in that venue would 8 be impossible. Presumed prejudice, on the other hand, addresses the 9 effect of publicity about a crime upon the entire community where the 10 trial takes place. Under this inquiry, a change of venue should be granted 11 if evidence shows that the community is so saturated with inflammatory 12 publicity about the crime that it mu st be presumed that the trial 13 proceedings are tainted. . . . T hus, actual prejudice is based upon direct 14 evidence f bias in the minds of individual prospective jurors, while 15 presumed prejudice makes inferences about the effect of publicity on the 16 community as a whole. 17 (Citations omitted.) 18 A. Background 19 Defendant’s venue argument is premised on publicity that took place in April 20 2005, prior to jury selecti on and approximately nine months before his January 2006 21 trial. Specifically, on April 6, 2005, a local television station covered Defendant’s 22 convictions for criminal sexual contact of a minor (CSCM) (“Haskins I ”). The 23 contents of the television broadcast were not disclosed below. The local television 24 station also placed an April 11, 2005, article on its website that referenced 257 Defendant’s conviction in Haskins I. The website article re lates that a local massage 1 therapist, upon hearing about Defendant’s Haskins I conviction, created a website 2 informing potential customers about wh at types of massages are and are not 3 appropriate during a massage session. Lastly, on April 7, 2005, the Sun News 4 published a newspaper artic le relating Defendant’s Haskins I conviction for eight 5 counts of criminal sexual contact of a minor and providing that Defendant had an 6 upcoming trial in the present case for twelve counts of molesting a girl at his church. 7 Based on his position that the above publicity saturated the community, 8 Defendant argued below that the publicity wa s presumptively prejudicial and for this 9 reason advocated for the judge “to grant a change of venue without conducting any 10 voir dire of the prospective jury panel.” Defendant asserted that it would require 11 extensive individual voir dire to uncover bi as and that the more effective approach 12 would be to simply change venue rath er than undergo potentially expensive and 13 ineffective voir dire. In the event the judge did not agree with a change of venue prior 14 to voir dire, Defendant requested indi vidual voir dire and supplemental jury 15 questionnaires. At the venue hearing, the judge, rather than rely on a presumption of 16 prejudice, elected instead to address the eff ect of publicity, if any, by voir dire and an 17 examination of actual prejudice. In so doing, the court ruled that at this point, there 18 was no “sufficient reason to require us to e ither change venue or put the trial off in 198 order to do individual questionnaires.” The judge also denied Defendant’s request for 1 individual voir dire but did state that at voir dire “we will ask who has seen or heard 2 anything in the media and talk to those. Wedon’t need to talk to those who haven’t.” 3 During the subsequent voir dire selection of the jury, the judge did not uncover any 4 actual prejudice as a result of the publicity. 5 Before turning to the merits, we briefl y address the State’s argument that it is 6 unnecessary to address Defe ndant’s venue argument because the judge, in asking 7 prospective jurors during the voir dire pro ceedings whether they had been exposed to 8 any publicity, granted Defendant’s requested relief. We disagree. As discussed 9 above, Defendant advocated first for a change of venue. Defendant’s request that 10 publicity be addressed by voir dire questioning was contingent upon a denial of his 11 motion for change of venue. And while Defendant did provide input to the judge 12 regarding the voir di re question on publicity he did so only after noting that “[w]e 13 tried to do a venue motion on this[.]” See State v. Corneau , 109 N.M. 81, 89, 781 14 P.2d 1159, 1167 (Ct. App. 1989) (recognizing thata defendant does notneed to renew 15 an objection at trial when the issue is fully preserved prior to trial). 16 B. The Court did not Abuse its Discretio n in Choosing to Proceed to Voir Dire 17 to Address the Possible Effects of the Publicity 18 Defendant argues that the publicity resulted in a presumption of prejudice 19 which merited a change of venue without a showing of actual prejudice. To 209 successfully change venue prior to voir dire because of presumed prejudice, the 1 movant must establish a “reasonable probab ility” that he or she cannot receive a fair 2 trial in the venue. House , 1999-NMSC-014, ¶ 57. The decision to wait “until voir 3 dire before granting or denying a motion to change venue rests with the sound 4 discretion of the trial court.” State v. Mantelli , 2002-NMCA-033, ¶ 56, 131 N.M. 692, 5 42 P.3d 272. 6 In the present case, the judge’s decision to proceed to voir dire to address the 7 effect of publicity was well within his discretion. House sets forth a number of factors 8 to consider for determining whether publicity is presumptively prejudicial. House , 9 1999-NMSC-014, ¶¶ 59-75. Particularly signi ficant in the presen t case is the factor 10 of the “timing” of the publicity. Id. ¶¶ 60-61. As set forth above, the publicity 11 underlying Defendant’s request for a change of venue appeared only three times and 12 took place nine months before trial. The record proper further provides that the 13 population of Doña Ana County had a cen sus estimate in 2003 of 182,165 persons. 14 Under these circumstances, we cannot agree with Defendant’s argument that the 15 publicity was “extensive” or that the “jurors were constantly exposed to details 16 surrounding both cases.” See id. ¶ 60 (stating that “[i]f detrimental articles and 17 broadcasts appeared months or years before the beginning of a trial, the probability 18 of prejudice is significantly reduced”). We therefore agree with the judge’s decision 1910 to proceed to voir dire to examine whether there was actual prejudice, rather than to 1 rely on a presumption of prejudice. Cf. id. ¶ 58 (recognizing that “[p]rejudice may be 2 established if a community is so saturate d by a barrage of inflammatory and biased 3 publicity, close to the beginning of legal proceedings, that the trial inevitably takes 4 place in an atmosphere of intense public passion”). 5 C. Defendant Suffered No Actual Prejudice 6 In the absence of presumed prejudice, Defendant was required to demonstrate 7 through voir dire that he was actually prejudiced by the publicity. See id. ¶ 46. Our 8 review of the voir dire proceedings indicates that not only were the prospective jurors 9 free from prejudice, but that only one, becauseof a personal conn ection to Defendant, 10 was even aware that there had been any publicity. 11 At the beginning of voir dire, the judge as ked the prospective jurors as a whole 12 whether anyone knew Defendant . In response, prospective juror Carmody indicated 13 that Defendant was his wife’s former employee and that “we’ve followed the news 14 account.” The judge instructed Carmody to approach the bench and the judge and 15 counsel then proceeded to individually voir dire Carmody. In response to the judge’s 16 inquiry about the effects of the media, Carmody answered, “I probably have some 17 personal feelings about his employment, I gue ss it would be a problem to be real fair.” 18 With the agreement of both parties, Carmody was subsequently excused for cause. 1911 Specific to publicity, the judge asked the prospective jurors as a whole whether 1 “any of you have seen or heard anything about this case that you recollect in the 2 media, that would be the newspaper, televi sion, anything in the media? Do any of you 3 recall having read anything at all about this case or Mr. Haskins?” Significantly, none 4 of the prospective jurors indicated that they had even been exposed to any media. For 5 this reason, we conclude that there wa s no basis upon which to find actual prejudice 6 due to publicity. See, e.g. , State v. Barrera , 2001-NMSC-014, ¶ 18, 130 N.M. 227, 7 22 P.3d 1177 (concluding that substantial evidence supports the trial court’s 8 determination that there was no eviden ce of actual prejudice among the members of 9 the jury when those individuals selected fo r the jury stated that they were either 10 unfamiliar with the case or th at they could decide the case based upon the evidence 11 presented at trial). 12 To conclude, not only was there no reasonable presumption of prejudice, but 13 the voir dire proceedings established that the publicity did not result in any actual 14 prejudice by the prospective jurors. Lastly, apart from the adequacy of the voir dire, 15 Defendant has not demonstrated that there was a problem with any of the chosen 16 jurors that actually served on the jury. See State v. Montoya , 2005-NMCA-078, ¶ 17, 17 137 N.M. 713, 114 P.3d 393 (holding that the court did not abuse its discretion in 18 denying the venue request when it took care to seat a fair and impartial jury). 1912 D. The Court did not Abuse its Dis cretion in Denying Defendant’s Request 1 for Individual Voir Dire 2 Despite the foregoing, in the contex t of his venue argument, Defendant 3 maintains that it was impossible to know if the jurors were actually prejudiced because 4 the judge refused his request for individual voir dire. The decision to grant or deny 5 individual voir dire is a matter fo r the trial court’s discretion. State v. Gonzales , 112 6 N.M. 544, 549, 817 P.2d 1186, 1191 (1991) (hol ding that the manner in which voir 7 dire is conducted lies within the court’s discretion and is “limited only by essential 8 demands of fairness”). Defendant’s ar gument for individual voir dire—and we are 9 perhaps generous to even call it an argument, given that Defendant only very briefly 10 referenced his request for suchin his brief—appears to be directed to the publicity that 11 took place nine months before trial as well as to publicity that took place during trial. 12 We address first De fendant’s argument that individual voir dire was merited 13 regarding the publicity that took place nine months before trial. Initially, we question 14 whether Defendant adequately preserved hi s argument for individual voir dire for this 15 publicity. In response to De fendant’s request for indivi dual voir dire in his written 16 pleadings, the judge denied his request but provided that he would consider individual 17 questioning if it became appare nt that it was needed. During the subsequent voir dire 18 proceedings, Defendant did not renew his reque st for individual voir dire or otherwise 19 express dissatisfaction with the adequacy of the judge’s collective voir dire question 2013 for publicity. In such instance, we may easily surmise that Defendant was satisfied 1 with the general voir dire questioning relating to publicity and elected not to revive 2 his request for individual voir dire. See State v. Vallejos , 1998-NMCA-151, ¶ 31, 126 3 N.M. 161, 967 P.2d 836 (providing that the failureto renew an objection that the court 4 has deferred ruling upon results in a lack of preservation). Even if we viewed 5 Defendant as having preserved his argument, however, we would affirm. As noted 6 previously, before the trial be gan, the judge stated at th e venue hearing that “we will 7 ask who has seen or heard anything in th e media and talk to those.” Under this 8 approach, the judge left open the possib ility of permitting individual voir dire if 9 Defendant demonstrated the need for it duri ng the actual jury selection. As planned, 10 during the subsequent voir dire, the judge co llectively asked the prospective jurors if 11 any members had been exposed to public ity about Defendant. Because no members 12 answered in the affirmative, it was not n ecessary for the judge to further consider 13 whether individual voir dire wa s merited. And given the absence of any extensive or 14 inflammatory media coverage, we believe th at the judge was well within his discretion 15 to initially address the impact of publicity collectively rather than asking each juror 16 individually whether they had been exposed to publicity. 17 In sum, Defendant fails to demonstrate how he was prevented from adequately 18 inquiring into the effect of pre-trial public ity on prospective jurors. We accordingly 1914 conclude that the voir dire examination was more than sufficient to test prospective 1 jurors for bias and to insure that Defendant received a fair trial by a panel of impartial 2 jurors. See generally State v. Lasner , 2000-NMSC-038, ¶ 27, 129 N.M. 806, 14 P.3d 3 1282 (holding that the trial court did not abuse its discretion by denying defendant’s 4 change of venue motion whenthe defendant was able toquestion and challenge for 5 cause potential juror members regarding pretrial publicity). 6 We next address the publicity that took place during trial. Defendant briefly 7 references this publicity in his brief and i ndicates that his request for individual voir 8 dire was also directed to this publicity . The transcript provides the following: 9 Defense counsel : []We want to address the question of publication. It’s 10 been in the news last night, we’d like to voir dire the jurors about 11 whether they read anythi ng, saw anything. This was in the print and it 12 was on television. It’s got a big story here today. 13 Judge : I didn’t see it. I came to work before the paper arrived . . . . I’ll 14 be glad to ask the jury, just generallyof the panel, if they followed the 15 [c]ourt’s admonition as to any potential media about this case. If we get 16 a positive answer, then I’ll simply bri ng that juror to the bench and we’ll 17 ask that juror a few questions[] 18

. . . 19 [After the jury returned], Judge : Ladies and gentlemen of the jury, I 20 have been told that there was so me media coverage of this case 21 overnight. I want to ask the juro rs, just generally, did each of you as 22 jurors follow the admonitions th e [c]ourt gave you about avoiding 23 coverage of this case? 24 Jury panel : Yes. 2515 Unidentified juror : I changed the channel and turned the page. 1 Judge : Thank you very much. I appreciate it. 2 In our view, although defense counsel aske d to voir dire the jurors about the 3 publicity, he did not specifically request thatsuch voir dire questioning be individual. 4
See State v. Romero , 2006-NMCA-045, ¶ 14, 139 N.M. 386, 133 P.3d 842 (stating 5 that “[i]n order to preserve an issue for app eal, it must appear that [the] appellant fairly 6 invoked a ruling of the trial court on the same grounds argued in the appellate court”) 7 (alteration in original) (internal quotation ma rks omitted) . Nonetheless, even if we 8 viewed Defendant’s request to question the jurors as one for individual voir dire, we 9 would affirm. Significantly, the record be low does not provide the contents of the 10 mid-trial publicity. We therefore presume that it was not prejudicial to Defendant. 11
See State v. Rojo , 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (holding that 12 “[w]here there is a doubtful or deficient record, every presumption must be indulged 13 by the reviewing court in favor of the correctness and regularity of the [trial] court’s 14 judgment” (second alteration in original)). In the absence of prejudicial publicity, it 15 was not necessary for the judge to individually voir dire the jurors. See State v. Holly , 16 2009-NMSC-004, ¶ 19, 145 N.M. 513, 201 P.3d. 844 (in the context of mid-trial 17 publicity, providing that the district court mu st conduct individual voir dire of a juror 18 only when a juror has been exposed to pub licity that is inherently prejudicial). 1916 III. Conclusion 1 We hold that sufficient evidence supports Defendant’s convictions and that the 2 judge did not abuse his discretion in de nying Defendant’s request for a change of 3 venue. We affirm. 4 IT IS SO ORDERED. 5

___________________________________ 6 RODERICK T. KENNEDY, Judge 7 WE CONCUR : 8

____________________________ 9 CELIA FOY CASTILLO, Judge 10

____________________________ 11 TIMOTHY L. GARCIA, Judge 12