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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 31,155 4 FRANCISCO DORADO SARABIA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler-Gray, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Law Office of Craig C. Kling 14 Craig C. Kling 15 San Diego, CA 16 for Appellant 171 We cannot locate in the record, nor have the partie s cited to or provided, 17 documentation regarding such a charge. Suchan allegation is neither lodged in the 18 2 MEMORANDUM OPINION 1 HANISEE, Judge. 2
{1} Defendant was charged in an amended criminal informati on with ten counts 3 related to child abuse, criminal sexual contact of a minor (CSCM), and criminal sexual 4 penetration (CSP) perpetrate d against his daughter (Vic tim). A jury found Defendant 5 guilty of all charges, and the district court sentenced him to serve fifteen years in the 6 custody of the New Mexico Corrections Department. Defendant appeals his 7 conviction and sentence, asserting nine separate points of error. The State agrees with 8 several of Defendant’s legal arguments and concedes the n eed for modification to the 9 judgment and sentence. Because this is a memorandum opinion and the parties are 10 familiar with the background of this case, we discuss pertinent facts and procedural 11 history as needed within our legal analysis . We affirm in part, vacate in part, and 12 remand for entry of judgment and resenten cing consistent with our holding today. 13 I. The District Court Did Not Err in De nying the Admission of a Videotaped 14 Deposition in Lieu of Live Testimony 15
{2} The parties agree that, initially, the State charged Defendant with crimes related 16 to the administration of drugs to Victim. 1 They maintain that Victim had alleged that 17original nor amended criminal information. Thus, we rely solely on statements the 17 parties presented to the district court during a pre-trial hearing as to the factual 18 background related to this point of appeal. See State v. Jim , 1988-NMCA-092, ¶ 3, 18 107 N.M. 779, 765 P.2d 195 (“It is [a] defendant’s burden to bring up a record 19 sufficient for review of the issues he raises on appeal.”). 20 3 Defendant had given her pills on several occasions whic h made her sleep, and when 1 she awoke, her clothing had been disheveledor missing. The State sent a sample of 2 Victim’s hair to a laboratory to be tested for the presence of drugs. The test results 3 were negative. The State later learned that it had asked the laboratory to perform an 4 incorrect hair follicle test and ultimately d eclined to prosecute ch arges related to the 5 administration of drugs to Victim. 6
{3} Prior to trial, De fendant sought discovery regarding the follicular testing of 7 Victim’s hair and an opportunity to depose the custodian of reco rds and the technician 8 responsible for the testing. Regarding the deposition request, the motion stated that 9 the “testimony of the technician and/or custodian of record[s] for [the laboratory] is 10 required for admission of the evidence and th e costs of subpoenaing the witnesses are 11 prohibitive to Defendant.” Defendant’s motion, however, did not contain any 12 expression of intent to use the deposition testimony in lieu of live testimony at trial. 13 After his motion was granted, Defendant filed a “Notice of Video Deposition” and 14 video deposed Dr. Lee M. Blum, an employee of the laboratory. 154 {4} Prior to trial, the State filed a motion in limine seeking to prevent the admission 1 of evidence related to Victim’s previ ous assertion of having been drugged by 2 Defendant, a charge not pursued by the St ate. Defendant responded that he sought 3 admission of evidence regarding the laboratory testing in order to impeach Victim’s 4 credibility on the basis that the hair test results did not support Victim’s initial 5 allegation that Defe ndant drugged her. Specifically, Defendant contended that Dr. 6 Blum’s testimony would establish the absen ce of any specific drug that Victim had 7 alleged had been administered to her by Defendant. In reply, the State informed the 8 court it had sought the wrong laboratory test on Victim’s hair. 9
{5} Yet Dr. Blum was not present for trial, and when the court sought information 10 regarding his whereabouts, defense couns el responded that he had “taken his 11 deposition pursuant to court order.” The State maintained that Defendant had never 12 requested nor had the State stipulated to the admission of the video deposition into 13 evidence. Defendant pointed to his ensu ing “Notice of Video Deposition,” which 14 stated that this “deposition may be used at trial pursuant to Rule 1-032 [NMRA] of the 15 Rules of Civil Procedure.” 16
{6} Ultimately, the district court granted th e State’s motion in limine, ordered that 17 neither party was permitted to discuss issues related to th e administration of drugs to 18 Victim, and excluded the video deposition. Defendant renewed hi s objection, stating 195 that Dr. Blum’s testimony was necessary to impeach Victim because “that’s the 1 fundamental of a defense; that’s the fundame ntal of the right of confrontation and the 2 right of effective cross-examination.” Th e court nonetheless adhered to its ruling. 3
{7} Defendant contends that his convic tion should be overturned because the 4 district court abused its discretion by de nying the admission of Dr. Blum’s videotaped 5 deposition. Defendant asserts that his due process rights were violated because the 6 exclusion of the video deposition on the day of trial denied him an essential witness 7 and an opportunity to determine another way to introduce the testimony. 8
{8} “A criminal defendant has a fundamental right under the Due Process Clause 9 of the United States Constitution to present his own witnesses to establish a defense.” 10 State v. Rosales , 2004-NMSC-022, ¶ 7, 136 N.M. 25, 94 P.3d 768 (internal quotation 11 marks and citation omitted). However, this right is not absolute or unlimited as it 12 “may at times bow to accommodate other le gitimate interests in the criminal trial 13 process.” Id . (internal quotation marks and citati on omitted). Given this limitation, our 14 Supreme Court has held that a defendant’s evidence is inadmissible unless it satisfies 15 relevancy and hearsay rules. Id. ¶ 8. Relevant evidence is su ch evidence that has “any 16 tendency to make a fact more or less probable than it would be without the evidence, 17 and . . . the fact is of consequence indetermining the action.” Rule 11-401 NMRA. 186 {9} At the outset, we note that Defendant does not maintain on appeal that Dr. 1 Blum’s testimony was relevant to impeachi ng Victim’s credibility. Rather, he solely 2 argues that the district court erred in de nying the use of the videotaped deposition in 3 lieu of live testimony when De fendant made clear his intent to the State and district 4 court. Our review of the record reveals th at in his motion to depose, Defendant did not 5 indicate he was seeking to use the depos ition testimony in lieu of live testimony, but 6 instead that he sought the deposition base d upon limited financial resources and on the 7 basis that the laboratory “is not allowed to talk to anyone but the [police department].” 8 The motion contained no statement regarding Defendant’s intent to use the deposition 9 in lieu of live testimony. Defendant’s ensuing “Notice of Video Deposition” 10 perfunctorily inserted that the “deposition may be used at trial pursuant to Rule 1-032 11 of the Rules of Civil Procedure.” 12
{10} Mere reference to a possible use at trial in a subsequent notice, however, does 13 not establish the admissibility of the deposition in lieu of live testimony. Nor does 14 Defendant’s mere assertion that he was “s andbagged right before trial with the denial 15 of admissibility of his videotaped deposition in lieu of live testimony[,]” and this 16 violated his right to present his own witness to establish his defense. See State v. 17 Fuentes , 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181(declining to review 18 an undeveloped argument that would requireconjecture about the party’s argument). 197 {11} As we have stated, this right to pres ent one’s own witnesses to establish a 1 defense is not absolute, and the admissibilityof evidence is subject to its relevance. 2 See Rosales , 2004-NMSC-022, ¶¶ 6-7. Not only doe s Defendant not provide us with 3 any argument on the issue of impeaching Victim with the deposition, but neither did 4 he include Dr. Blum’s deposition in the record proper for our review. See State v. Jim , 5 1988-NMCA-092, ¶ 3 (“It is [the] defendant’s burden to bring up a record sufficient 6 for review of the issues . . . raise[d] on appeal.”); State v. Druktenis , 7 2004-NMCA-032, ¶ 44, 135 N.M. 223, 86 P.3d 1050 (“It is [the d]efendant’s 8 obligation to provide this Court with a suffi cient record proper.”). “Where there is a 9 doubtful or deficient record, every presumption must be indulged by the reviewing 10 court in favor of the correctness and regularity of the [district] court’s judgment.” 11 State v. Rojo , 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (internal quotation 12 marks and citation omitted). Because we are unable to review the content of the 13 deposition in order to determine whether the district court abused its discretion, and 14 because we lack argument from Defendant, wehave no basis to reverse the district 15 court’s ruling and, therefore, affirm its decision to exclude the admission of the 16 deposition. 17 II. The District Court Did Not Err in Limiting Defendant’s Cross18 Examination of Victim to the Charged Offenses 198 {12} Defendant maintains that the district court denied his right to meaningfully 1 cross-examine Victim, as guaranteed by th e Sixth Amendment to the United States 2 Constitution, when it prohibited cross-examin ation of Victim regarding the uncharged 3 offenses. Defendant specifically wished to question Victim regarding allegations that 4 Defendant drugged her generally, and that he did so specifically on Halloween night 5 in 2008. 6
{13} The scope of cross-examination is a matter within the discretion of the district 7 court; however, we review issues pertaini ng to the violation of the Confrontation 8 Clause de novo. State v. Smith , 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254. 9 The district court “retains wide latitudeinsofar as the Confrontation Clause is 10 concerned to impose reasonable limits on . . . cross-examination based on concerns 11 about, among other things, harassment, prejudice, confusion of the issues, the witness’ 12 safety, or interrogation that is repetitive or only marginally relevant.” Id. (omission 13 in original) (internal quotation marks and citation omitted). We are not persuaded that 14 the district court abused its discretion or that Defendant’s right of confrontation was 15 violated. 16
{14} Defendant argues that by permitting ques tioning of Victim only in regard to 17 “charges that [were] pending,” Defendantwas denied the opportunity to challenge 18 Victim’s credibility, a strategy “central to [his] defense.” Defendant argues that “any 199 testimony that may have indicated that [Victim] was not being truthful, or at least that 1 she may have been exaggerating the alle gations against [Defendant], would be 2 essential evidence for the jury to consid er in determining [Defendant’s] guilt.” 3
{15} A defendant’s right to confront, however , is not absolute. Rather, our Supreme 4 Court has held that the “Confrontation Cl ause merely guarantees an opportunity for 5 effective cross-examination; it does not guarantee that the defens e may cross-examine 6 a witness in whatever way, and to whatever extent, the defense might wish.” State v. 7 Sanders , 1994-NMSC-043, ¶ 23, 117 N.M. 452, 872 P.2d 870 (internal quotation 8 marks and citation omitted). Based on our revi ew of the record, the hair follicle test 9 results do not appear to impeach Victim’s credibility. At trial, the State informed 10 defense counsel and the court that the results were inconclusive as a result of the 11 State’s request for the incorrect test. Te llingly, Defendant con cedes this point on 12 appeal. Because the tests were wrongly administered and the results therefore 13 inconclusive, nothing about them provided a clear showing that Victim was untruthful 14 in her allegation. Had the jury been exposed to this te stimony, it bore the capacity to 15 mislead or confuse the jury regarding an issue collateral to those they were called 16 upon to resolve. As an uncharg ed offense, the drug issue wa s not before the jury based 17 on the counts of the amended criminal info rmation and would have been of highly 18 questionable admissibility inany evidentiary capacity. Cf. Rule 11-404(B)(1) NMRA 1910 (“Evidence of a crime, wrong, or other actis not admissible to prove a person’s 1 character in order to show that on a particular occasion the person acted in accordance 2 with the character.”); State v. Ruiz , 2007-NMCA-014, ¶ 28, 141 N.M. 53, 150 P.3d 3 1003 (discussing Rule 11-404(B), stating “theword ‘other’ connotes crimes, wrongs, 4 or acts that are not the subject of the pro ceedings . . . uncharged misconduct”). We too 5 conclude that Defendant’s desired line of questioning sought to place at issue an 6 allegation that was uncharged and which, in this instance, could well have resulted in 7 confusion of the issues before the jury. Becau se such a conclusion is a proper basis for 8 limiting cross-examination, Smith , 2001-NMSC-004, ¶ 19, we hold the district court 9 did not abuse its discretion in prohibiting the line of questioning related to Victim’s 10 allegation of being drugged by Defendant. 11
{16} With regard to the specific event on Halloween night of 2008, Defendant 12 planned to question Victim regarding her cl aim that he had beaten her while acting out 13 a mock rape scene. Defendant hoped to impeach Victim’s credibility to “show that it’s 14 impossible that [the incident] took place on that date.” The district court expressed 15 concern that the admission of questioning related to this incident might “confuse the 16 jury [as] to something that they are not ev en considering” and wa s concerned that the 17 probative value of the eviden ce was outweighed by the danger of unfair prejudice. The 18 district court then allowed Defendant to question Victim outside the presence of the 1911 jury. Afterward, the district court aske d about how the defense proposed to impeach 1 Victim. The defense responded that it had two witnesses that would testify that on that 2 Halloween evening, Victim was never alone with Defendant. The judge clarified, “so 3 its their word against her word?” The defens e answered affirmatively, and the district 4 court ordered that the inquiry into the events on Halloween night were prohibited. 5
{17} As with the issue of the drug administration, Defendant’s proffered witness 6 testimony failed to establish that Victim was lying. Again, the jury would be put in a 7 position to decide the credibility of both the witnesses and Victim with regard to a 8 matter that was not before it. Cf. Rule 11-404(B); Ruiz , 2007-NMCA-014, ¶ 28. 9 Moreover, as we have stated, Defendant was not denied the opportunity to cross10 examine Victim as to her credibility; the district court merely limited this cross11 examination to charged offenses so as not to confuse the jury. See Sanders , 1994- 12 NMSC-043, ¶ 23; Smith , 2001-NMSC-004, ¶ 19. For thes e reasons, we determine that 13 the district court did not abuse its discre tion, nor was Defendan t denied his right of 14 confrontation, and we affirm the rulings of the district court. 15 III. Defendant’s Convictions of CSCM inthe Second Degree are Vacated and 16 Remanded for Entry of Judgment and Resentencing for CSCM in the 17 Third Degree 18
{18} Defendant asserts that as to Counts 2, 4, 5, 9, and 10, although charged with 19 CSCM in the second degree, he was actuallyconvicted of third-degree CSCM because 2012 the element of “unclothed” wa s absent from the jury instru ction. Unlike CSCM in the 1 third degree, second-degree CSCM requires the additional finding that the defendant 2 engaged in “criminal sexual contact of the unclothed intimate parts of a minor.” 3 NMSA 1978, § 30-9-13(B)(2003) (Emphasis added). Defendant asserts, and the State 4 concedes, that the jury was improperly instructed regarding the elements of CSCM in 5 the second degree because the word “unclothed” was omitted from the jury 6 instruction. “Although the [s]tate concedes this issue, we are not bound to accept the 7 [s]tate’s concession.” State v. Palmer , 1998-NMCA-052, ¶ 12, 125 N.M. 86, 957 P.2d 8 71. In this circumstance, weagree that the omission of the word “unclothed” from the 9 jury instruction requires us to vacate De fendant’s conviction of second-degree CSCM 10 and remand for entry of judgment and resentencing on CSCM in the third degree. 11
{19} Our Supreme Court has held that “appellatecourts have the authority to remand 12 a case for entry of judgment on the lesser in cluded offense and resentencing . . . when 13 the evidence does not support the offense fo r which the defendant was convicted but 14 does support a lesser included offense.” State v. Haynie , 1994-NMSC-001, ¶ 4, 116 15 N.M. 746, 867 P.2d 416. While the application of the “direct-remand” rule is 16 inappropriate where the jury was not in structed on the lesser included offense, State 17 v. Villa , 2004-NMSC-031, ¶ 15, 136 N.M. 367, 98 P.3d 1017, here by omitting the 18 element of “unclothed” from th e jury instruction, the jury was effectively instructed 192 Having already remanded C ount 2 for entry of judgment and resentencing, we 17 need not address it again and solely address Defendant’s argument with regard to 18 Count 1. 19 13 on the elements of CSCM in the third de gree because the char ge is encompassed 1 within the elements for second-degree CSCM. Compare § 30-9-13(B) (2003), with§ 2 30-9-13(C) (2003). Accordingly, we remand for entry of judgment and resentencing 3 for CSCM in the third degree as to Counts 2, 4, 5, 9, and 10. 4
{20} Defendant additionally asserts that his sentences for Counts 1 and 2 as second5 degree CSCM felonies are illegal and must be reduced to third-degree felonies 6 because at the time the jury convicted him of committing the crimes, the highest 7 degree of CSCM was a third-degree felony. 2Defendant, however, does not dispute the 8 legality of the conviction. Once more, th e State agrees with Defendant’s position. 9 Again, while we are not bound by the State’s concession, see Palmer , 1998-NMCA10 052, ¶ 12, “[w]e review th e legality of a sentence under the de novo standard of 11 review.” State v. Williams , 2006-NMCA-092, ¶ 4, 140 N.M. 194, 141 P.3d 538. 12
{21} Defendant was charged with second- degree CSCM, occurring on or between 13 August 1, 1997 and August 31, 1997, pursuant to Section 30-9-13(B) (2003) in Count 14 1 of the amended criminal information. Defendant was additionally charged with 15 second-degree CSCM occurring on or be tween August 1, 2003 and May 31, 2006 in 16 Count 2 of the amended criminal inform ation. The jury found Defendant guilty of 1714 both counts. At the time the amended criminal information was filed in March of 1 2010, Section 30-9-13(B) (2003) provided fo r second-, third-, and fourth-degree 2 felonies of CSCM; however, th is was the earliest version of the statute that contained 3 an option for CSCM as a second-degree fe lony. Pursuant to the prior 1991 and 2001 4 versions of the statute, the highest de gree of CSCM was a third-degree felony. See 5 Section 30-9-13(A)(1991); Section 30-9-13(A)(2001). The requisite elements for 6 second-degree CSCM under the 2003 version of the statute and third-degree CSCM 7 under the two prior versions of the statute were identical with the exception of the 8 “unclothed” element that was added to enhance a charge to second-degree CSCM. 9
{22} Our Supreme Court has determined that “the law, at the time of the commission 10 of the offense, is controlling.” State v. Lucero , 2007-NMSC-041, ¶ 14, 142 N.M. 102, 11 163 P.3d 489 (internal quotation marks and citation omitted). The jury found that 12 Count 1 of CSCM occurred “on or betweenthe 1st day of August, 1997 and the 31st 13 day of August, 1997.” Clearly, this crime o ccurred prior to the Legislature’s February 14 2004 enactment of heightened CSCM liability. As to Count 2, the jury determined that 15 the CSCM occurred “on or between the 1s t day of August, 2003 and the 17th day of 16 April, 2005.” Because the legislative e nhancement became effective during the 17 window of time in which the crime occurre d, it is undeterminable whether the jury 18 concluded the crime occurred prior to February 4, 2004 or sometime thereafter. In 1915 such a situation, we resolve any doubts in favor of the defendant. See State v. Ogden , 1 1994-NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845. Because Count 1 could have 2 been committed prior to the Legislature’s alteration of the statute and because we 3 resolve any doubt about when the crime occurred in favor of Defendant, his 4 conviction and accompanying sentence on Count s 1 and 2 should have been controlled 5 by the 1991 and 2001 version of Section 30- 9-13, respectively, where the highest 6 degree of CSCM was a third-degree felony. See Section 30-9-13(A)(1991); Section 7 30-9-13(A)(2001). As the elements needed to establish third-degree liability were each 8 provided to and found to be present by the jury, we remand to the district court for 9 entry of judgment and resentencing for CS CM in the third degree as to Count 1. See 10 Haynie , 1994-NMSC-001, ¶ 4 (holding that “appe llate courts have the authority to 11 remand a case for entry of judgment on the lesser included offense and resentencing 12 rather than retrial when the evidence does not support the offense for which the 13 defendant was convicted but does support a lesser included offense”); see also State 14 v. Garcia , 1978-NMSC-039, ¶ 7, 91 N.M. 664, 579 P.2d 790 (“Where an invalid 15 sentence is imposed following a legal convi ction, the prisoner is to be directly 16 remanded to the proper court for a valid sentence.”). Acco rdingly, a remand for entry 17 of judgment and sentencing for CSCM in the third degree as to Counts 1, 2, 4, 5, 9, 18 and 10 is proper. 1916 IV. The District Court Did Not Err in Sentencing Defendant to Fifteen Years 1 Pursuant to His Conviction on Count 3 of CSP 2
{23} Defendant next asserts that as to C ounts 1, 2, and 3, he received illegal 3 sentences. Because we have already remanded Counts 1 and 2 to the district court, we 4 will not address them again here. As to the third count of CSP, however, Defendant 5 asserts that he received an illegal sentence of fifteen years because the penalty for a 6 second-degree felony not resulting in the death of a human being atthe time of the 7 charging period was nine years. NMSA1978, § 31-18-15(A)(3)(2003). “We review 8 the legality of a sentence under th e de novo standard of review.” Williams , 2006- 9 NMCA-092, ¶ 4. 10
{24} Pursuant to the amended criminal in formation, Defendant was charged with 11 having committed CSP, a sec ond-degree felony, “on or be tween August []1, 2003 and 12 May 31, 2006.” The jury, however, was instru cted that in order to find Defendant 13 “guilty of [CSP] of a child,” the State must prove beyond a reasonable doubt that the 14 crime occurred “on or between the 17th day of April, 2005 and May 31, 2006.” After 15 the jury found Defendant guilty on this count, the district court issued a judgment and 16 sentence stating that Defendant was c onvicted of CSP in the second degree, 17 “occurring on or between August []1, 2003 and May 31, 2006, as charged in [c]ount 18 3 of the [a]mended [c]riminal [i]nformation. ” Pursuant to that conviction, the court 19 sentenced him to fifteen years. Defendant asserts that he was sentenced illegally 2017 because the statute in place at the begi nning of the charging period listed in the 1 amended criminal information imposed a pe nalty of nine years for a second-degree 2 felony that did not result in the death of a human being. 3
{25} As we have stated, “the law, at the time of the commission of the offense, is 4 controlling.” Lucero , 2007-NMSC-041, ¶ 14. While it is true that for a portion of the 5 charging period asserted in the amended criminal information, the sentence for a 6 second-degree felony not resulting in the d eath of a human being was nine years. 7 Section 31-18-15(A)(3) (2003). Typically, wewould resolve any doubts of when the 8 crime occurred in favor of the defendant. See Ogden , 1994-NMSC-029, ¶ 25. In this 9 case, however, the jury was not instructedon the broader chargi ng period asserted in 10 the amended criminal information, but in stead on the more narrow period of April 17, 11 2005 to May 31, 2006. See State v. Ervin , 2002-NMCA-012, ¶ 13, 131 N.M. 640, 41 12 P.3d 908 (“[T]he [s]tate is obligated to makereasonable efforts to narrow the charging 13 time frame.”). Because Defendant did not object to the jury instructions, nor did he 14 argue that the jury instructions were err oneous, they serve as the governing law of the 15

case. See State v. Landers , 1992-NMCA-131, ¶ 7, 115 N.M. 514, 853 P.2d 1270 16 (stating that the “jury instruc tions were the law of the case”) overruled on other 17 grounds by State v. Sosa , 2009-NMSC-056, 147 N.M. 351, 223 P.3d 348; Couch v. 18 Astec Indus. , Inc ., 2002-NMCA-084, ¶ 40, 132 N.M. 631, 53 P.3d 398 (“Jury 1918 instructions not objected to become the law of the case.”); State v. Armijo , 1999- 1 NMCA-087, ¶ 8, 127 N.M. 594, 985 P.2d 764 (“While it is truethat jury instructions 2 become the law of the case[,] . . . errors in jury instructions do not bar retrial[.]” 3 (internal quotation marks and citations omitted)). Prior to the narrowed time period, 4 the Legislature amended Section 31-18-15(A) (2003) to establish a fifteen-year 5 sentence for a “second[-]degree felony for a sexual offense against a child.” Section 6 31-18-15(A)(3)(2003) (listing the date of e ffectuation as February 3, 2004). Thus, 7 because Defendant was convicted of CSP of a child sometime on or between April 17, 8 2005 and May 31, 2006, the contro lling statute as to Count 3 was the February 3, 2004 9 amendment of Section 31-18-15(A)(3) (2003). 10
{26} We do note the inconsistency between th e charging period in the Count 3 jury 11 instructions and the judgment and sentence issued by the district court. Although the 12 jury instructions referenced the narro wed time period, the judgment and sentence 13 reflected the charging period contained in the amended criminalinformation. Because 14 jury instructions serve as the law governing the case, Landers , 1992-NMCA-131, ¶ 6, 15 the broader time period indicated in the judgment and sentence constitutes a clerical 16 error on the part of the district court. See State v. Ross , 1983-NMCA-065, ¶ 17, 100 17 N.M. 48, 665 P.2d 310 (stating that oversights or omissions in judgments or orders 18 constitute clerical errors). “Clerical mistakes in judgments or orders, arising from 1919 oversight or omission are not deemed jurisd ictional, and may be corrected by the court 1 at any time . . . . On remand, correction of the clerical misreference is proper.” Id

. 2 Because Defendant does not dis pute the validity of the charge, conviction, or sentence 3 as a second-degree felony, and solely dis putes the sentence imposed for the second4 degree felony, we affirm the fifteen-year se ntence and remand to the district court with 5 instructions that it correct the judgment and sentence to reflect the date range within 6 which the jury determined the offense to have been committed pursuant to the court’s 7 instructions. 8 V. The Use of a Prior Jury Instructio n as to Count 7 of CSP Did Not Amount 9 to Reversible Error 10
{27} Defendant was charged with second- degree CSP “by the use of force or 11 coercion on a child thirteen to eighteen years of age[,]” occurring on or between 12 August 1, 2007 and May 31, 2008, contrary to NMSA 1978, Section 30-9- 13 11(E)(1)(2007). Section 30-9-11(E)(1)(2007) defines second-degree CSP on a child 14 thirteen to eighteen years of age as “criminal sexual penetr ation perpetrated . . . by the 15 use of force or coercion.” Th e jury, however, was not instructed on this version of the 16 statute, but instead on a prior version th at defined second-degree CSP as “criminal 17 sexual penetration perpetrated . . . on a ch ild thirteen to eighteen years of age when 18 the perpetrator is in a position of authority over the child and uses this authority to 19 coerce the child to submit[.]” Secti on 30-9-11(D)(1)(2003). Pursuant to this 2020 instruction, the jury found Defendant guilty . On appeal, Defendant asserts that he 1 received an illegal sentence as to Count 7 because “position of authority” was not an 2 element of CSP when the jury found the crime was committed. 3
{28} Defendant is correct that at the time the jury found that Defendant committed 4 CSP, on or between August 1, 2007 and May 31, 2008, the “position of authority” 5 element was not required for a conviction of second-degree CSP. In July 2007, prior 6 to the earliest date that the jury coul d have found Defendant committed CSP, the 7 Legislature enacted a change to Secti on 30-9-11 wherein second-degree CSP on a 8 child no longer required that the perpetrator be in a “position of authority over [that 9 child] and use[ that] authority to coerce the child to submit.” Compare Section 30-9- 10 11(D)(1)(2003) withSection 30-9-11(E)(1)(2007). Instead, at the time of the 11 commission of the crime, second-degree CSP of a child thirteen to eighteen years of 12 age consisted of “all criminalsexual penetration perpetrate d . . . by the use of force 13 or coercion.” Section 30-9-11(E)(1)(2007). 14
{29} Because “the law, at the time of the commission of the offense, is controlling,” 15 Lucero , 2007-NMSC-041, ¶ 14, the 2007 version of the statute, effective July 1, 2007, 16 should have been presented to the jury. Ho wever, contrary to Defendant’s argument, 17 we do not determine that the use of the inclusion of the “position of authority” element 18 resulted in an illegal conviction. It is esta blished that a defendant has the fundamental 1921 right “to have the jury determine whether each element of the charged offense has 1 been proved by the state beyond a reasonable doubt[,]” and it is the “language of a 2 statute [that] determines the esse ntial elements of an offense.” State v. Cabezuela , 3 2011-NMSC-041, ¶¶ 38-39, 150 N.M. 654, 265 P.3d 705 (internal quotation marks 4 and citations omitted). Our Supreme Court ha s held that “[n]oncompliance with the 5 uniform jury instructions in criminal cases is reversible error if the failure eliminates 6 an essential element of the crime in the instruction or if the defendant is prejudiced. 7 Further, there may be fundamental error if the instruction given differs materially from 8 the required instruction.” Jackson v. State , 1983-NMSC-098, ¶ 5, 100 N.M. 487, 672 9 P.2d 660 (citation omitted). 10
{30} The 2007 version of the statute that wa s controlling at the time the crime was 11 committed requires three essential elements for the commission of second-degree 12 CSP: (1) penetration, (2) “the use of force or coercion,” (3) “ on a child thirteen to 13 eighteen years of age[.]” Section 30-9- 11(E)(1)(2007). The Count 7 instruction 14 provided to the jury stated that in order to find Defendant guilty of Count 7, the State 15 must prove, beyond a reasonable doubt, each of the following elements of the crime: 16 1. [D]efendant caused the insertion, to any extent, of the defendant’s 17 finger into the anus of [Victim]; 18 2. [Victim] was at least 13 but less than 18 years old; 1922 3. [D]efendant is a parent, a pers on who by reason of the defendant’s 1 relationship to [Victim] was able to exercise undue influence over 2 [Victim] and used this authority to coerce [Victim] to submit to 3 sexual contact; 4 4. [D]efendant’s act was unlawful; 5 5. This happened in New Mexico on or between the 1st day of 6 August, 2007 and the 31st day of May, 2008. 7 (Emphasis added). 8
{31} Accordingly, notwithstanding the inclusion of the additional “position of 9 authority” element, each of the three essential elements necessary to convict 10 Defendant was under Secti on 30-9-11(E)(1)(2007) was contained in the jury 11 instructions. In finding Defendant guilty on C ount 7 pursuant to this jury instruction, 12 not only did the jury find that Defendant penetrated Victim; Victim was a child of 13 thirteen to eighteen years of age; Defendant coerced Victim; but it also found that 14 Defendant was in a position of authorityover Victim. Although Defendant moved to 15 have Count 7 dismissed at the conclusion of the trial, we cannot find in the record, nor 16 does he cite to any portion of the record, showing thathe proffered a substitute jury 17 instruction to the court. “The responsib ility for correct instruction rests upon counsel 18 for both the [s]tate and the defendant. Neith er the [s]tate nor the defendant tendered 19 the correct instructions to the court.” Jackson , 1983-NMSC-098, ¶ 6. Because the jury 20 was instructed on all of the essential elemen ts required for a conviction of the version 2123 of second-degree CSP in effect at the time the crime was committed, we determine the 1 use of the jury instruction for the 2004 version of the statute did not amount to 2 reversible error. See id. (holding that the use of the incorrect instruction was 3 fundamental and reversible erro r “because [the instruction did] not contain necessary 4 elements of the crime not covered in other instructions”) (emphasis added). As such, 5 we affirm Defendant’s convicti on and sentence as to Count 7. 6 VI. Defendant was not Denied his Right to a Fair Trial When the District 7 Court Judge Declined to Recuse Herself 8
{32} Defendant next claims that he was deniedhis right to a fair and impartial jury 9 because the district court judge previously made factual findings in a related CYFD 10 case and failed to recuse herself follo wing his motion requesting her recusal. 11 Defendant filed a motion requesting that the district court judge “recuse herself from 12 future proceedings.” During the hearing on the motion, counsel for Defendant argued 13 that the judge should recuse herself due to her “familiarity with the CYFD [case] and 14 the factual findings that [she] made.” Counsel for Defendant further expressed 15 concern about the appearance of impropriety and the concern that her impartiality may 16 be reasonably questioned. The district judge responded by stating: 17 I don’t have any personal knowledge about this case. I have none. Any 18 knowledge that I have about this cas e comes before me in a hearing 19 . . . . I don’t think there’s any appearan ce of impropriety in this case . . . . 20 Furthermore, as this case goes to trial, I will not be the finder of fact as 21 you well know. The jury will be. 2224 She subsequently denied the motion. 1
{33} “We review the denial of a motion to recuse for an abuse of discretion.” State 2 v. Trujillo , 2009-NMCA-128, ¶ 9, 147 N.M. 334, 222 P.3d 1040. Our Supreme Court 3 has held that “a state cannot deprive any individual of personal or property rights 4 except after a hearing before a fair and impartial tribunal.” Reid v. N.M. Bd. of 5 Exam’rs of Optometry , 1979-NMSC-005, ¶ 6, 92 N.M. 414, 589 P.2d 198. “[A] fair 6 and impartial tribunal requires that the trier of fact be disinterested and free from any 7 form of bias or predisposition re garding the outcome of the case.” Purpura v. 8 Purpura , 1993-NMCA-001, ¶ 14, 115 N.M. 80, 847 P.2d 314. The decision to recuse 9 lies in the discretion of the district court judge and is only required when that judge 10 “has become so embroiled in the controversy that he or she cannot fairly and 11 objectively hear the case.” Trujillo , 2009-NMCA-128, ¶ 11 (alterations, internal 12 quotation marks, and citation omitted). In order to mandate a recusal, the asserted bias 13 or appearance of bias cannot be based on mere speculation, and the bias “must arise 14 from a personal, extra-judicial source, not a judicial source.” Purpura , 1993-NMCA15 001, ¶ 17; see Trujillo, 2009-NMCA-128, ¶ 11. 16
{34} We see no basis on which toconclude that Judge S huler-Gray erred in failing 17 to recuse herself. The judge had no knowledgeof this case outside of what she may 18 have garnered during the related CYFD case in which she also served in her judicial 1925 capacity. She explicitly statedthat she had no “personal knowledge about this case.” 1 On the record before us, wh atever information the distri ct court may have had did not 2 arise from a “personal, extr a-judicial source,” as is required for recusal under our 3 caselaw. Purpura , 1993-NMCA-001, ¶ 17; see id. (holding that bias based on a 4 district court judge’s previous court proceedings with a party do not constitute a 5 personal, extra-judicial source). “To the extent that an appearance of impropriety 6 might be considered, nothing [the d]efendant has shown indicates an appearance of 7 impropriety[.]” Trujillo , 2009-NMCA-128, ¶ 12. Furthermore, Defendant was entitled 8 to a trier of fact that was “disintere sted and free from any form of bias or 9 predisposition regarding the outcome of the case.” Purpura , 1993-NMCA-001, ¶ 14 10 (internal quotation marks and citation omitted). As the district court judge herself 11 notes, she was not serving as the trier of factin this case; that role fell to the jury. 12 Defendant does not contend thathe was denied a fair and impartial jury. Because the 13 district court judge did not have any personal or extra-judicial knowledge about 14 Defendant’s case, we concludethat the district court did not err in denying his motion 15 to request recusal. 16 VII. The District Court Did Not Err in Denying Defendant’s Motion for Change 17 of Venue 18
{35} Pursuant to State v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, 19 and State v. Boyer , 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant asserts 2026 that the district court erred in denying his motion for a change of venue because 1 pretrial publicity in the newspapers and on the internet “resulted in a reasonable 2 probability that [Defendant] could not obtain a fair trial” due to the modest size of the 3 city of Carlsbad and the county of Eddy. In presenting this motion to the district court, 4 Defendant argued that the newspaper and the internet presented information 5 approximately four to five months previ ously that was prejudicial to Defendant. He 6 further argued that the publicity that he received rendered damnable the possibility of 7 an impartial panel of jurors. The districtcourt denied the motion, finding that the 8 published information was “fairly remote intime” because four to five months had 9 passed since any articles werepublished. Furthermore, noneof the published articles 10 were inflammatory. In respons e to Defendant’s concerns, the district court stated that 11 it would allow Defendant the leeway prior to trial to question the jury venire in order 12 to ascertain the potential jurors’ knowledge about the case, in an effort to be sure a 13 jury could be impaneled. 14
{36} “We review a district court’s changeof venue decision for an abuse of 15 discretion, keeping in mind that its discretion in [the] matter is broad and will not be 16 disturbed on appeal unless a clear abuse of that discretion can be demonstrated.” State 17 v. Gutierrez , 2011-NMSC-024, ¶ 39, 150 N.M. 232, 258 P.3d 1024 (internal quotation 18 marks and citation omitted). Th e party appealing carries the burden of establishing a 1927 clear abuse of discretion. Id . Our Supreme Court has determined that sufficient 1 prejudice “may be established if a community is so saturated by a barrage of 2 inflammatory and biased publicity, close to the beginning of legal proceedings, that 3 the trial inevitably takes place in an atmosphere of intense public passion.” Id. ¶ 37 4 (internal quotation marks and citation omitted) . There is nothing in the record before 5 us supporting Defendant’s claim that he woul d be unable to obtain a fair trial in Eddy 6 County. The district court found that th e publications regarding Defendant were 7 published approximately four to five months prior to trial and were not inflammatory. 8 We determine that Defendant has not esta blished a clear abuse of discretion on the 9 part of the district court, and we will not disturb its ruling on appeal. 10 VIII. There is No Cumulative Error Prese nt in the Facts and Circumstances of 11 this Case 12
{37} Lastly, Defendant asserts that the cumulative effect of the errors in this case 13 warrant a reversal of Defendant’s convic tion. “The doctrine of cumulative error 14 requires reversal when a series of lesser improprieties throughout a trial are found, in 15 aggregate, to be so prejudicial that the defendant was deprivedof the constitutional 16 right to a fair trial.” State v. Duffy , 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 17 807, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, 275 P.3d 18 110. The doctrine of cumulative error is to be strictly applied; it may not be 19 successfully invoked “when the record as a whole demonstrates that the defendant 2028 received a fair trial.” State v. Trujillo , 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 1 814 (internal quotation marks and citation omitted). On appeal, Defendant has not 2 shown that his trial was unfair. His mere a ssertion that the “cumul ative impact of all 3 the errors, and potential errors, thus raises severe questions of whether [Defendant] 4 received a fair trial” is not sufficient to esta blish that he was deprived of a fair trial. 5 See In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 ( “An 6 assertion of prejudice is not a showing of prejudice.”). Although we have found errors 7 in the trial proceedings, they went prim arily to matters outside the fact finding 8 responsibility of the jury. That some requi re correction does not undermine the jury’s 9 verdict in this case. We hol d that Defendant failed to establish prejudice sufficient to 10 justify the grant of a new trial under the doctrine of cumulative error. See State v. 11 Crews , 1989-NMCA-088, ¶ 72, 110 N.M. 723, 799 P.2d 592. 12 CONCLUSION 13
{38} For the foregoing reasons, we affirm Defendant’s sentence in part, vacate 14 Defendant’s sentence in part and remand to the district court for entry of judgment, 15 resentencing, and the correction of a cleri cal error in accordance with this Opinion. 16
{39} IT IS SO ORDERED. 17

_________________________________ 1829 J. MILES HANISEE, Judge 1

WE CONCUR: 2

_________________________________ 3 RODERICK T. KENNEDY, Chief Judge 4

_________________________________ 5 JAMES J. WECHSLER, Judge 6