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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-056

Filing Date: November 25, 2009

Docket No. 31,308

STATE OF NEW MEXICO,

Plaintiff-Petitioner and Cross-Respondent,

v.

JIM SOSA,

Defendant-Respondent and Cross-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Silva E. Cano-Garcia, District Judge

Gary K. King, Attorney General

Martha Anne Kelly, Assistant Attorney General

Santa Fe, NM

for Petitioner and Cross-Respondent

Caren Ilene Friedman 

Santa Fe, NM

for Respondent and Cross-Petitioner

OPINION

BOSSON, Justice.

{1} Jim Sosa (Defendant) was tried and convicted of two counts of sexual assault based

on the victim’s alleged inability to consent due to alcohol and perhaps drug-related

intoxication. The parties hotly contested any suggestion that Defendant might have given

the victim a so-called date-rape drug. During closing arguments, the prosecutor made a

statement which, according to Defendant, implied that drugging evidence did exist but had

been withheld from the jury by the court. Based on that one statement, Defendant claims

fundamental error and demands a new trial, or even no trial and a judgment of acquittal, due

to prosecutorial misconduct.
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{2} The Court of Appeals agreed with Defendant, found fundamental error, and reversed

the convictions. State v. Sosa, 2008-NMCA-134, 145 N.M. 68, 193 P.3d 955. We are not

persuaded by Defendant’s interpretation of the prosecutor’s remark, and we conclude it

would not constitute fundamental error in any event. Accordingly, we reverse the Court of

Appeals and affirm Defendant’s convictions.

BACKGROUND 

{3} Defendant was charged with three counts of third-degree criminal sexual penetration,

which requires proof of “the use of force or coercion.” NMSA 1978, § 30-9-11(E) (2005).

Force or coercion can be proven by evidence that the accused knew or had reason to know

that the victim was “unconscious, asleep or otherwise physically helpless or suffers from a

mental condition that renders the victim incapable of understanding the nature or

consequences of the act.” NMSA 1978, § 30-9-10(A)(4) (2005). The State’s theory at trial

was that the victim, J.M., was intoxicated by alcohol or a date-rape drug, or both, to such an

extent that she was incapable of consenting to sexual activity. Defendant denied giving her

a drug of any kind, and maintained that their sexual activity was at all times knowing and

consensual.

{4} Defendant and J.M. first met when she hired him as her personal trainer. A

relationship developed between them, and over the course of the next two years they would

occasionally go out socially for dinner or drinks. At times they engaged in various forms

of flirtation and sexual contact, even sleeping together, but avoided penile sexual

intercourse.

{5} Thereafter, on the evening of May 24, 2004, J.M. called Defendant and arranged to

meet him at a hotel bar in Las Cruces. J.M. consumed a number of drinks throughout the

night, to the point where she became heavily intoxicated. J.M. recalled going to the ladies

room at the hotel bar with her friend Marcie, where she vomited. She testified that she felt

heavy and found it difficult to speak. While she had consumed more alcohol on prior

occasions, J.M. insisted that she had never felt as bad or become so drunk; she felt as if she

had been drugged. Her friend Marcie testified that J.M.’s behavior changed “drastically”

during the night and “she slid downhill” quickly, having trouble sitting up, slurring her

words, and even falling over, unaware of her surroundings. J.M. later believed she had been

given a date-rape drug that night.

{6} J.M. testified that she did not remember anything between the events at the hotel bar

and being in Defendant’s shower, vomiting, and then laying on Defendant’s bed begging him

for a bucket. The next morning she woke up naked in Defendant’s bed. She had no

recollection of, and Defendant denied, any sexual activity. Detecting some blood spotting,

J.M. was examined two days later by a sexual assault nurse who observed bruising, redness

and a laceration at the entrance of her vagina, symptoms described at trial as consistent with

non-consensual, forced sexual penetration.
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{7} Defendant’s recollection differed. He testified that when they arrived at his house,

J.M. vomited, took a shower, and then joined him in consensual sexual activity not including

penile penetration. The issue at trial, therefore, distilled down to J.M.’s consent, and

particularly her ability to consent given her condition that night. The State attacked

Defendant’s credibility with evidence that he had provided inconsistent statements to the

police regarding the events of that night, first denying any sexual activity and then admitting

to sexual activity, short of penile penetration, with J.M.’s consent.

{8} A toxicology report revealed only ibuprofen in J.M.’s blood. The State’s expert

testified, however, that date-rape drugs disappear quickly from the blood, suggesting that the

negative toxicology report was not conclusive. Throughout the trial, the State continually

referred to J.M’s condition that night as drunk or drugged.

{9} Defendant moved in limine to exclude any evidence from trial that J.M. had been

drugged. Accommodating Defendant in part, the trial court did not allow J.M. to testify that

she believed Defendant had drugged her. However, the court did allow J.M. to describe her

own perceptions that night (that she “felt drugged”), and the court allowed expert testimony

regarding the effects of date-rape drugs generally. The State’s expert, a pediatrician with a

degree in pharmacy, testified generally about the nature of date-rape drugs. They are put

into the victim’s drink, and because they have no taste the victim does not perceive the drug.

They cause the victim to lose consciousness, and then the drug passes quickly out of the

victim’s system making detection difficult. The victim regains consciousness with no

memory of events that occurred while under the influence of the drug.

{10} During voir dire, the prosecutor informed the jury about the State’s theory of the

case: that J.M. was so incapacitated through drugs or alcohol that she could not consent.

Although there would be ample evidence of J.M.’s alcoholic consumption, the prosecutor

conceded that there would be no direct evidence of drugging, such as a scientific test. In

response, defense counsel’s opening remarks stated flatly that there would be “no evidence

of any drugging by anybody in the course of this trial.” 

{11} After all the evidence was in and the parties rested, counsel began their closing

arguments to the jury. During the State’s initial closing, the prosecutor again conceded the

absence of any direct evidence of drugging, but reminded the jury of the circumstantial

evidence of drugging. Responding, defense counsel attacked the drugging theory by calling

it “false,” claiming there was “no proof” of drugs, and arguing that all of J.M.’s symptoms

were caused by alcohol alone. Counsel told the jury not to consider any evidence of

drugging. Thereafter, in the State’s rebuttal closing, the prosecutor made the following

statement, which is the subject of this Opinion: “[Defense counsel] says, No evidence of

date rape drug. That is wrong. The Judge wouldn’t allow things--wouldn’t allow you to

hear things that you are not allowed to consider as evidence. That wouldn’t come in.”

Defendant did not object to the statement or move for a mistrial.

{12} The jury convicted Defendant of two counts of third-degree criminal sexual
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penetration for performing digital penetration and cunnilingus on J.M. when she was

incapable of consent. The jury acquitted Defendant of the third count for penile penetration.

The court sentenced Defendant to six years imprisonment with three years suspended.

{13} After the verdict, Defendant filed a motion for a new trial, asserting inter alia a lack

of evidence to support the drugging theory. Significantly, Defendant did not assert any error

with respect to the prosecutor’s closing statement. The motion was denied.

{14} On appeal, the Court of Appeals reversed the jury verdict, concluding that the

prosecutor’s statement was intended to suggest to the jury—inappropriately—that

inculpatory evidence of drugging did exist but had been withheld by the court. Sosa,

2008-NMCA-134, ¶ 15. The majority found the statement to be “extreme prosecutorial

misconduct,” amounting to fundamental error, and granted Defendant a new trial. Id. ¶ 17.

Chief Judge Sutin dissented, observing that the majority had misread the prosecutor’s

remarks, and that, in any event, those remarks did not undermine the fairness of the verdict

and amount to fundamental error. Id. ¶¶ 32-39 (Sutin, J., dissenting in part). We granted

certiorari to resolve the tension between these opposing views in light of our prior opinions

discussing when remarks made during closing argument constitute error. 

DISCUSSION

The Prosecutor’s Comment Did Not Constitute Error

{15} We find no error, fundamental or otherwise, in the prosecutor’s remark. The entire

comment, in full text, was as follows:

[Defense counsel] says, No evidence of date rape drug. That is

wrong. The Judge wouldn’t allow things--wouldn’t allow you to hear things

that you are not allowed to consider as evidence. That wouldn’t come in.

That’s why you get instructed.

So when [J.M.] sat there from this bench, from this witness stand and

said, I felt like I had never felt before. I felt drugged. That is testimony.

You are allowed to consider that.

When Dr. Williams came in and said that all of her statements were

consistent with being drugged, you’re allowed to consider that.

In the first paragraph of the Court of Appeals opinion, however, the majority recast the

comment as: “[T]he prosecutor, without objection, told the jury that there was ‘no evidence

of date rape drugs’ because the judge would not ‘allow you to hear’ it.” Sosa, 2008-NMCA134, ¶ 1. With the statement thus rephrased, the Court of Appeals went on to call it “falsely

stated” and “misleading.” Id. ¶ 15.

{16} If one thing is clear to us at the outset, it is that the statement—as paraphrased by the

Court of Appeals—is more objectionable than what the prosecutor actually said. If the
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Defendant argues there should be no retrial because the prosecutor’s remark was so

outrageous that it falls within the rare circumstance we have recognized as prosecutorial

misconduct, barring a new trial on the basis of double jeopardy. Because we do not find

reason for a new trial, we need not consider the double jeopardy issue. See State v. Breit,

1996-NMSC-067, ¶ 14, 122 N.M. 655, 930 P.2d 792.

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prosecutor had really told the jury that inculpatory evidence of drugging had been withheld

by the court, then we would be faced with a most serious matter indeed. In the absence of

a curative instruction, we would be compelled to consider a new trial and perhaps more.1

But that is not the only interpretation, nor necessarily a reasonable one, of what the

prosecutor actually said.

{17} Grammatically, the confusion comes down to which verb tense the reader chooses

to apply to the comment as it appears in the transcript. The Court of Appeals, and Defendant

on appeal, interpret the prosecutor’s remark as utilizing the past tense, thus reading “the

judge wouldn’t allow you to hear things” as “the judge didn’t allow you to hear things.” To

Defendant, the only logical inference is that there were things about drugs to be heard, and

the judge prevented the jury from hearing them.

{18} Our reading, however, is that the prosecutor was referring to the evidence the judge

did admit, not to matters the judge did not admit. The prosecutor used the negative

contraction “wouldn’t” in the sense that a judge would not allow “things” into evidence if

the court did not intend the jury to consider them as evidence. See Mary E. Whitten, et al.,

Hodges’ Harbrace College Handbook 564 (11th ed. 1990) (“would” as a modal auxiliary

verb shows determination, promise, or intention). In other words, by allowing testimony of

drugging—such as J.M.’s perception that she felt drugged—the judge intended the jury to

consider that testimony as evidence and give it appropriate weight.

{19} We understand, of course, that closing argument is inherently conversational, and on

this appeal we review the cold, written record without the benefit of any audio record of

what was said. Like the Court of Appeals, we cannot listen to the words—along with

inflection—as spoken by counsel at trial. The point we make is that Defendant’s

interpretation of the transcript does not stand alone. It is not the only reasonable way to

comprehend what the prosecutor said, and it certainly is not a grammatically favored

interpretation. Perhaps an audio recording would have clarified the matter. But in the

absence of such additional evidence, it seems superficial to assume that Defendant must be

right and the State must be wrong, based on what little we have on appeal.

{20} Our primary concern is what the jury understood the comment to mean, and grammar

aside, several aspects of the trial support our interpretation of the prosecutor’s remarks.

First, defense counsel did not object to the prosecutor’s statement. If the prosecutor’s

inflection were such that the past tense was so apparent (meaning, the judge didn’t allow you

to consider evidence of drugging but it does exist), then we would have expected some
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reaction from defense counsel—a seasoned criminal defense attorney—who vigorously

fought throughout the trial to silence the prosecution on the subject of drugs. Why now,

moments before the end of the trial, would counsel sit mute and allow the jury to be

contaminated by a suggestion that such evidence existed but had been withheld by the court?

{21} Second, even such a comment were to escape defense counsel’s attention, we would

expect the trial judge to intervene with a warning to counsel or a curative instruction if, in

fact, the comment were as prejudicial as Defendant now suggests. Yet in this case the court

did not react to the statement.

{22} Finally, and most tellingly, defense counsel—even after time for reflection— made

no mention of this supposedly prejudicial remark in his motion for a new trial. That motion

alleged several improprieties with respect to the State’s drugging theory, but nothing about

statements made in closing argument. We find it highly improbable that prosecutorial

misconduct of the worst sort, as the Court of Appeals found, would evade all but the jury

until well into the appellate process. It is far more likely that the comment was not

understood by the jury or by anyone else to mean what Defendant now suggests.

{23} We think the prosecutor was simply responding to defense counsel’s closing

argument—an appropriate use of rebuttal—and counsel’s claim that there was “no proof”

of a date-rape drug. The prosecutor prefaced her comment with an explicit reference to

defense counsel’s statement in closing (“[Defense counsel] says, No evidence of date rape

drug. That is wrong.”). The prosecutor followed that comment with an explanation that

testimony admitted at trial is, in fact, evidence of drugging that a jury may consider. In

contrast, Defendant’s interpretation only makes sense when the statements are removed from

the context of the prosecutor’s broader argument.

Error in Closing Statements—Our Precedent

{24} Closing argument is unique. Coming at the end of trial, and often after jury

instructions, it is the last thing the jury hears before retiring to deliberate, and therefore has

considerable potential to influence how the jury weighs the evidence. At the same time,

closing argument, and rebuttal argument in particular, is necessarily responsive and

extemporaneous, not always capable of the precision that goes into prepared remarks.

{25} At the trial level, courts strike a balance between these competing considerations by

affording counsel reasonable latitude in their closing statements, and by instructing the

members of the jury that they are to base their deliberations only on the evidence along with

instructions from the court, and not on argument from counsel. See State v. Taylor, 104

N.M. 88, 94, 717 P.2d 64, 70 (Ct. App. 1986); State v. Henderson, 100 N.M. 519, 521-22,

673 P.2d 144, 146-47 (Ct. App. 1983). Additionally, a trial court can correct any

impropriety by striking statements and offering curative instructions. And should all the

preceding safeguards fail, the trial court retains the power to declare a mistrial. Because trial

judges are in the best position to assess the impact of any questionable comment, we afford
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them broad discretion in managing closing argument. See State v. Chamberlain, 112 N.M.

723, 729, 819 P.2d 673, 679 (1991) (district courts are given wide discretion in controlling

closing statements, and a reviewing court will not find reversible error absent an abuse of

discretion). Only in the most exceptional circumstances should we, with the limited

perspective of a written record, determine that all the safeguards at the trial level have failed.

Only in such circumstances should we reverse the verdict of a jury and the judgment of a

trial court. 

{26} Where error is preserved at trial, an appellate court will review under an abuse of

discretion standard. State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807.

Where counsel fails to object, the appellate court is limited to a fundamental error review.

Id. In both instances, however, the reviewing court must determine whether the relative

weight of the error meets the threshold required to reverse a conviction. We have reviewed

over 30 years of appellate decisions regarding challenges to closing arguments under both

standards of review, and we discern three factors that appear to carry great influence in our

deliberations: (1) whether the statement invades some distinct constitutional protection; (2)

whether the statement is isolated and brief, or repeated and pervasive; and (3) whether the

statement is invited by the defense. In applying these factors, the statements must be

evaluated objectively in the context of the prosecutor’s broader argument and the trial as a

whole.

{27} With respect to the first factor, our courts have been most likely to find reversible

error when the prosecution’s comment invades a distinct constitutional protection. In State

v. Ramirez, 98 N.M. 268, 269, 648 P.2d 307, 308 (1982), the prosecutor stated in closing,

“Nowhere during this period of time does this [d]efendant come forward and most of all,

nowhere does he come forward and produce the gun that can acquit him or maybe show he

didn't fire the fatal shot.” We held that reference to a defendant’s post-Miranda silence

violated the constitution, and constituted reversible error despite defense counsel’s failure

to object. Id.; see also State v. Allen, 2000-NMSC-002, ¶ 27, 128 N.M. 482, 994 P.2d 728

(filed 1999); State v. Clark, 108 N.M. 288, 303, 772 P.2d 322, 337 (1989), disapproved of

on other grounds by State v. Henderson, 109 N.M. 655, 659, 789 P.2d 603, 607 (1990).

{28} Similarly, in Garcia v. State, 103 N.M. 713, 714, 712 P.2d 1375, 1376 (1986), the

prosecutor made repeated reference to the defendant’s failure to consent to a warrantless

search. Comparing the Fourth Amendment right to refuse entry to a police officer with the

Fifth Amendment right to silence, we held that the prosecutor’s comment placed an “unfair

and impermissible burden” on the defendant’s exercise of his Fourth Amendment rights,

which had “an obvious and extreme prejudicial impact [requiring] reversal.” Id. (quoting

United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978)).

{29} The second factor we consider is whether the challenged statement was only brief

and isolated. Extensive comment is more likely to cause error, whereas “[t]he general rule

is that an isolated comment made during closing argument is not sufficient to warrant

reversal.” State v. Brown, 1997-NMSC-029, ¶ 23, 123 N.M. 413, 941 P.2d 494. In
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Henderson, 100 N.M. at 522, 673 P.2d at 147, a sexual assault case, we found reversible

error where the prosecutor indulged in a “true story” about a man who was acquitted of rape,

and went on to commit several more rapes before being caught. Defense counsel repeatedly

objected and the court admonished the jury to disregard the story, but the court did not

declare a mistrial. Id. at 521, 673 P.2d at 146. Our Court of Appeals reversed because it was

an exceedingly close case with little evidence, and the prosecutor’s “story” was “lengthy,

not based on evidence, and served no purpose other than to arouse prejudice against the

defendant.” Id. at 522, 673 P.2d at 147.

{30} The Court of Appeals also found reversible error in State v. Diaz, 100 N.M. 210, 213-

14, 668 P.2d 326, 329-30 (Ct. App. 1983), where the prosecutor made several, separate

remarks in closing regarding his authority to represent the State, invoking an impermissible

inference that the State and the jury were engaged in a joint enterprise to fight crime. The

court concluded, “‘we have not here a case where the misconduct of the prosecuting attorney

was slight or confined to a single instance, but one where such misconduct was pronounced

and persistent, with a probable cumulative effect upon the jury.’” Id. at 215, 668 P.2d at 331

(quoting Berger v. United States, 295 U.S. 78, 89 (1935)). 

{31} In contrast, our appellate courts have consistently upheld convictions where a

prosecutor’s impermissible comments are brief or isolated. In State v. Landers, the

prosecutor stated in closing, “keep in mind that child abuse is something that must be

stopped,” and after objection, “sexual abuse must be stopped on [the victim].” 115 N.M.

514, 517, 853 P.2d 1270, 1273 (Ct. App. 1992) (alteration in original) (internal quotation

mark omitted), overruled on other grounds by State v. Kerby, 2005-NMCA-106, 138 N.M.

232, 118 P.3d 740. The nature of the comments in Landers—an impermissible appeal to

fight crime—was not unlike that of the comments in Diaz.

{32} The difference is that in Diaz the prosecutor’s repeated remarks served to impress

upon the jury that their interests were shared with the prosecution. 100 N.M. at 214, 668

P.2d at 330. The conclusion in Diaz was that the prosecutor had already weighed the

evidence on behalf of the state and determined guilt. Such a conclusion could only be the

result of a calculated, pervasive theme. As illustrated in Landers, the same conclusion is

much more difficult to draw from a brief or isolated comment. See Allen, 2000-NMSC-002,

¶¶ 97-100 (single improper comment in closing not fundamental error in broader context of

closing argument); Duffy, 1998-NMSC-014, ¶ 51 (holding that the defendant was not

deprived of a fair trial when an improper statement was not emphasized by the prosecution).

{33} Turning to the third factor, we are least likely to find error where the defense has

“opened the door” to the prosecutor’s comments by its own argument or reference to facts

not in evidence. Id. ¶ 56; Taylor, 104 N.M. at 94, 717 P.2d at 70. In State v. Smith, 2001-

NMSC-004, ¶ 5, 130 N.M. 117, 19 P.3d 254, the defendant was charged with murder after

she and three other defendants drove the victim outside of town and shot him several times.

Defense counsel stated in opening that the defendant remained seated in the vehicle while

the others committed the murder. Id. ¶ 37. No such evidence was presented at trial. Id. In
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closing, the prosecutor said that the defendant was not seated in the vehicle while the murder

occurred, and commented on the lack of any testimony suggesting otherwise. Id. The

defendant objected that the prosecutor had impermissibly referred to her silence. Id. We

declined to reverse the conviction, concluding that the comments were invited by the

defendant’s opening remarks. Id. ¶¶ 39-40; see also State v. Henry, 101 N.M. 266, 267, 681

P.2d 51, 52 (1984) (closing statements regarding the defendant’s right to silence were

permissible because invited by defendant’s opening statements); State v. Rojo, 1999-NMSC001, ¶¶ 54 n.3, 56, 126 N.M. 438, 971 P.2d 829 (filed 1998) (prosecutor’s comment, “[h]e

did not look you in the eyes and say, ‘I did not kill [the victim],’” were responsive to defense

closing argument, and permissible comment on the character of a witness (the defendant)).

{34} These three factors are useful guides, but in the final analysis context is paramount.

Where evidence of guilt is overwhelming, or an improper statement is corrected by counsel

or the court, reversible error is less likely. If a case turns on a crucial fact that is improperly

manipulated in closing, or if counsel persists when admonished to desist, the probability of

error is greater. The possible combination of circumstances is myriad. But the common

thread running through the cases finding reversible error is that the prosecutors’ comments

materially altered the trial or likely confused the jury by distorting the evidence, and thereby

deprived the accused of a fair trial. 

A Review Under the Fundamental Error Standard Reinforces Our Holding

{35} While we find no error in the prosecutor’s comment, given the Court of Appeals’

discussion, we find it necessary to explain why, even if the comment was erroneous, it falls

short of fundamental error. Fundamental error occurs when prosecutorial misconduct in

closing statements compromises a defendant’s right to a fair trial, and we will reverse a

conviction despite defense counsel’s failure to object. Rojo, 1999-NMSC-001, ¶ 55. To find

fundamental error, we must be convinced that the prosecutor’s conduct created “a

‘reasonable probability that the error was a significant factor in the jury’s deliberations in

relation to the rest of the evidence before them.’” State v. DeGraff, 2006-NMSC-011, ¶ 21,

139 N.M. 211, 131 P.3d 61 (quoting Clark, 108 N.M. at 303, 772 P.2d at 337). As with any

fundamental error inquiry, we will upset a jury verdict only (1) when guilt is so doubtful as

to shock the conscience, or (2) when there has been an error in the process implicating the

fundamental integrity of the judicial process. State v. Barber, 2004-NMSC-019, ¶ 16, 135

N.M. 621, 92 P.3d 633.

{36} In discussing the fundamental error standard of review, the Court of Appeals stated,

“we resolve any doubt as to [the statement’s] effect . . . in favor of our belief that it likely

swayed the jury. . . . We cannot say that the prosecutor’s improper statement did not

contribute to Defendant’s conviction.” Sosa, 2008-NMCA-134, ¶ 17. The appellate court’s

presumption of fundamental error is incorrect. To presume prejudice wherever there is error

would turn our fundamental error jurisprudence on its head, shifting the burden on appeal

to the State to prove that no fundamental error occurred.
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{37} Under the proper standard, we begin with the presumption that the verdict was

justified, and then ask whether the error was fundamental. See Allen, 2000-NMSC-002, ¶

95; Rojo, 1999-NMSC-001, ¶ 55. In the case before us, even if we were to assume that the

prosecutor’s comment was error, the principles we outlined above warrant a different

conclusion from what the Court of Appeals decided.

{38} To begin the analysis, the prosecutor’s comment did not invade any distinct

constitutional protection of the sort we condemned in Ramirez, 98 N.M. at 269, 648 P.2d at

308, and Garcia, 103 N.M. at 714, 712 P.2d at 1376. Absent a constitutional violation, we

look at the length and repetition of the comment to determine whether it was so pervasive

as to clearly distort the body of evidence before the jury. See Brown, 1997-NMSC-029, ¶

23. At its worst, the comment was brief and singular. It was not repeated, nor was it a return

to an impermissible theme from before. The comment was a far cry from the long, detailed

story we saw in Henderson. Our view might be different had defense counsel objected at

trial, but he did not.

{39} Turning to the third factor in our analysis, the prosecutor’s statement was clearly in

response to defense counsel’s remarks. The prosecutor began with “[Defense counsel] says,

No evidence of date rape drug. That is wrong.” Defense counsel had argued in closing that

the State’s drugging theory was “a very false issue,” and that there was “simply no proof of

it.” In fact, as the parties concede, several items of circumstantial evidence arguably

supported a drugging theory. Under the circumstances, the prosecutor was almost compelled

to respond. Having opened the door, Defendant cannot now split semantic hairs over the

prosecutor’s choice of words. See State v. Chacon, 100 N.M. 704, 706-07, 675 P.2d 1003,

1005-06 (Ct. App. 1983) (no fundamental error where prosecutor’s error was limited to one

improper word, and the defendant had opened the door to the comment); see also State v.

Ruffino, 94 N.M. 500, 503, 612 P.2d 1311, 1314 (1980) (“That the prosecutor can refer to

the defendant’s failure to testify if the door is opened by the defense, is well supported by

case law.”).

{40} What also sets this case apart is the overwhelming evidence of J.M.’s state of

extreme intoxication that night, whether through alcohol or drugs, and the State’s repeated

argument at trial that intoxication by alcohol alone was sufficient to impair J.M.’s ability to

consent. Defendant did not dispute much of the evidence going to alcohol intoxication; his

theory was that J.M. was capable of consenting and did consent to the sexual contact.

Defendant admitted to certain sexual acts, and the jury only convicted him of the charges

that were based on the acts he conceded. The State also produced circumstantial evidence

to suggest its drugging theory, and physical evidence to support the idea that J.M. did not

willfully participate in sexual activity that night. Not to be underestimated, the evidence also

showed Defendant making inconsistent statements to both J.M. and the police about what

occurred that night.

{41} Our discussion highlights the importance of adhering to the fundamental error

standard of review. It is undoubtedly possible that the jury heard the statement as Defendant
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suggests, but we cannot say as a matter of law that the probability is so great that a

miscarriage of justice will result without our intervention. We conclude that there was no

error at all, but more importantly, our obligation is to assume there was no error until

Defendant satisfies his burden of persuasion by showing otherwise. In light of the

overwhelming evidence of guilt, the context of the statement, and Defendant’s failure to alert

the judge to any error during trial, we decline to take the extraordinary action of upsetting

the jury’s verdict. 

CONCLUSION

{42} We reverse the opinion of the Court of Appeals and affirm the judgment of the

district court below.

{43} IT IS SO ORDERED.

______________________________________

RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________

EDWARD L. CHÁVEZ, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

CHARLES W. DANIELS, Justice

Topic Index for State v. Sosa, No. 31,308

AE APPEAL AND ERROR

AE-FE Fundamental Error

CT CONSTITUTIONAL LAW

CT-MS Misconduct by Prosecutor

CL CRIMINAL LAW

CL-IX Intoxication

CL-SX Sexual Offenses
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CA CRIMINAL PROCEDURE

CA-CG Closing Argument

CA-MP Misconduct by Prosecutors