This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 29,433 4 LOUIS ANTHONY DAPRANO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Mark A. Macaron and Albert S. “Pat” Murdoch, District Judges 8 Gary K. King, Attorney General 9 Margaret E. McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jacqueline L. Cooper, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 Under a false name and with false credentials, Defendant Louis Anthony 1 Daprano was hired as a psychologist at the Albuquerque Family and Child Guidance 2 Center (the Counseli ng Center). During his term of employment, Defendant 3 “counseled” a number of patie nts, some of whom were minors. After a jury trial, 4 Defendant was convicted of forty-three counts of practicing psychology without a 5 license, three counts of criminal sexual cont act of a minor, and one count of attempted 6 criminal sexual contact of a minor, among other crimes. We affirm. 7 BACKGROUND 8 In March 2004, Defendant (using the name Louis A. Gravina, Ph.D.) applied 9 for a master’s level psychologist positi on at the Counseling Center. With his 10 application, Defendant submitted a curriculum vitae in which he listed his purported 11 qualifications and certifications, including the assertion that his application for 12 licensure with the New Mexico Board of Psychological Examiners was “in process.” 13 Having been hired by the Counseling Center, Defendant presente d a letter to the 14 Counseling Center, purportedly from the Department of Health (Defendant’s letter), 15 stating that he had previously passed a criminal history screening and that he did not 16 need to be fingerprinted again. 17 On June 9, 2004, Dr. Nancy Grau, executive director of the Counseling Center, 18 learned from two members of her staff that there was an issue as to the identity of 193 Defendant, at which point Dr. Grau instru cted one of her staff to contact the 1 Department of Health to verify the authenticity of Defendant’s letter. On June 14, 2 2004, the Department of Health advise d a Counseling Center staff member that 3 Defendant’s letter was fraudulent. As a result, the Counseling Center commenced an 4 investigation into Defendant’s background. As part of th eir investigation, Counseling 5 Center staff contacted clients with whom Defendant had met, as well as the FBI, the 6 Children, Youth, and Families Department, and the New Mexico Board of 7 Psychologist Examiners. 8 On June 15, 2004, Felix Nuñez, an inve stigator with the Thirteenth Judicial 9 District Attorney’s Office, went to the Counseling Center, showed the staff a photo 10 of Defendant and advised them that he was “a wanted se x offender.” Mr. Nuñez had 11 learned of Defendant’s association withthe Counseling Center through the execution 12 of a June 11, 2004, search warrant at Defendant’s residence. Th e warrant was related 13 to an investigation of crimes in the Thirteenth Judicial District (the Sandoval County 14 case). Having been charged in the Sandoval County case, Defendant presented his 15 attorney with forged documents to be used to bolster his defense. The investigation 16 revealed that, after the district court entered orders setting conditions of release, 17 Defendant used various forged documents , including a false New Mexico driver’s 18 license and social security number, to obtain credit at the New Mexico Educator’s 194 Federal Credit Union (the credit union), under the name and title of Reverend Louis 1 Anthony Gravina, a Roman Catholic Priest. The investigation led to a federal case, 2 in which Defendant ultimately pleaded guilty to bank fraud (the federal case). See 3 United States v. Daprano , No. CR 04-2040 JB, 2011 WL 5220234, at *1 (D.N.M. Oct. 4 26, 2011). 5 On June 16, 2004, Mr. Nuñez executed a search warrant for the Counseling 6 Center. Defendant had not been seen atthe Counseling Center since June 11, on 7 which date Dr. Grau had witnessed Defendant loading his belongings and supplies 8 into his vehicle. Cooperation between the offices of the United States Marshals in 9 Albuquerque, New Mexico and Albany, New Yo rk led to Defendant ’s arrest in New 10 York on June 22, 2004. On August 23, 2004, Albany police executed a search warrant 11 for Defendant’s vehicle; the warrant was ba sed, in part, on the June 11 warrant for 12 Defendant’s home. In the federal case, th e United States conced ed that the June 11, 13 June 16, and August 23, 2004, search warrants lacked probable cause and were thus 14 deficient. The federal c ourt held, however, that Defe ndant had no standing to object 15 to the search of his vehicle, which hehad obtained through the fraudulent loan from 16 the credit union, and that sources independent of the illegally obtained warrants to 17 search Defendant’s residence and his place of employment would inevitably have led 18 investigators to discover the evidence of his crimes. 195 A grand jury indicted Defendant on the ch arges associated with the present case 1 on October 22, 2004, and the indictment was filed on October 25, 2004. Due to 2 several extensions, during which the partie s awaited the outcome of the federal case, 3 Defendant’s trial did not commence until Ju ly 8, 2008. At a hearing on Defendant’s 4 motion to suppress the evidence obtained as a result of the illegal warrants, as 5 discussed earlier, the district court adoptedthe federal court’s findings of fact and 6 conclusions of law, and denied Defendant’s motion. 7 II. DISCUSSION 8 On appeal, Defendant makes several arguments. He argues that his 9 constitutional rights to a speedy trial and to be free from double jeopardy were 10 violated. Additionally, he contends that all of the evidence against him should have 11 been suppressed as a result of the illegal warrant s. He also argues that there was 12 insufficient evidence to support one of his convictions for criminal sexual contact of 13 a minor. And finally, he cont ends that the district court’s act of reading one of 14 Defendant’s prior statements aloud to the jury constituted fundamental error. We 15 examine each of Defendant’s arguments in turn, and finding no erro r, we affirm his 16 convictions. 17 A. Speedy Trial 186 Defendant argues that his constitutional right to a speedy trial was violated 1 because his trial in this matter did not o ccur until forty-four months and two weeks 2 after he was indicted. He claims that the delay was caused by the State and by his 3 own counsel who stipulated to continuances and rule extensions against his wishes. 4 He claims that the delay resulted in prej udice to his defense and to him personally. 5 To determine whether Defendant’s constitutional right to a speedy trial was 6 violated we must consider four factors: (1) length of the delay, (2) reasons for the 7 delay, (3) whether De fendant asserted his right to a speedy trial, and (4) whether 8 Defendant suffered any prejudice. State v. Rojo , 1999-NMSC-001, ¶ 49, 126 N.M. 9 438, 971 P.2d 829. “In considering each of the f actors, we defer to the district court’s 10 factual findings but review de novo the question of whether [the d]efendant’s 11 constitutional right to a spee dy trial was violated.” State v. Montoya , 2011-NMCA12 074, ¶ 9, 150 N.M. 415, 259 P.3d 820. 13 1. Length of Delay 14 In order to provide guidance to the district courts in analyzing the length of 15 delay, our Supreme Court, in State v. Garza , 2009-NMSC-038, ¶¶ 48-49, 146 N.M. 16 499, 212 P.3d 387, established benchmarks for determining when a delay in bringing 17 a case to trial may become presumptively prejudicial. For cases of intermediate or 18 greater complexity, the passage of fifteen to eighteen months may prompt a district 197 court to consider the three remaining speedy trial factors. See id. In this case, the 1 district court found that at the time of De fendant’s speedy trial motions hearing, the 2 case had been pending for thirty-eight months and three weeks, thereby triggering a 3 speedy trial analysis. 4 2. Reasons for the Delay 5 Defendant contends that the reasons fo r the delay were attributable to his 6 defense counsel, who agreed to rule exte nsions against his wishes and failed to 7 actively represent him or to move the case along; the State’s failure to make a good 8 faith effort to bring him to trial; and the district court’s failure to effectively manage 9 its docket. Nevertheless, De fendant does not attack any ofthe district court’s forty10 one findings regarding the reasons for the delay, all of which led to the court’s 11 conclusion that “[i]n total, s ubstantially less than [fifteen] months of the delay in this 12 case is weighed against the St ate.” The district court concluded that “[t]he majority 13 of the delay . . . either wei ghed against . . . Defendant or occurred for valid reasons not 14 weighed against either party. This factor does not weigh against the State.” In the 15 absence of any challenge to the district court’s findings, we presume that they are 16

correct. SeeRule 12-213(A)(4) NMRA (stati ng that an appellant’s brief “shall set 17 forth a specific attack on any finding, or su ch finding shall be deemed conclusive”). 18 Having been presented with no persuasive argument to the contrary, we conclude that 198 the district court did not err in determining that the “reasons for delay” factor weighed 1 against Defendant. 2 3. Assertion of Speedy Trial Right 3 Defendant asserted his right to a spee dy trial four times, beginning in January 4 2005 and culminating in his September 2007 pro se motion alleging violation of his 5 right to a speedy trial. The district court found that the “assertion of right to speedy 6 trial” factor weighed in Defendant’s favor “but not heavily due to the other findings 7 stated” in its order. Although the court did not specify the particular “other 8 findings[,]” the court’s order noted numerous indications of Defendant’s acquiescence 9 to continuances, as well as Defendant’s personal acknowledgment that it was in his 10 best interest to await the outcome of the fe deral case before proceeding to trial in the 11 district court. Defendant argues, pursuant to Zurla v. State , 109 N.M. 640, 644, 789 12 P.2d 588, 592 (1990), that his early and forcefulassertion of his right to a speedy trial 13 causes this factor to weigh heavily inhis favor. Notwithstanding Defendant’s 14 assertions of the right, which the district c ourt found to be “early and not often[,]” the 15 effect of Defendant’s own actions, as recited by the district court, cause this factor to 16 weigh neutrally rather thanin Defendant’s favor. See Garza , 2009-NMSC-038, ¶ 32 17 (stating that the frequency and force of th e defendant’s objections must be analyzed 18 in conjunction with defendant ’s actions regarding the de lay, and recognizing case law 199 that held the assertion-of-the-right factor weighs neutrally when the defendant engages 1 in procedural maneuvers that result in delaying the trial). 2 4. Prejudice to Defendant 3 The final factor of the speedy trial an alysis, whether Defendant was prejudiced 4 by the pretrial delay, is analyzed “in light of the interests that the speedy trial right is 5 designed to protect: (1) to prevent oppressi ve pretrial incarceration; (2) to minimize 6 anxiety and concern of the accused; and (3 ) to limit the possibility that the defense 7 would be impaired.” State v. Marquez , 2001-NMCA-062, ¶ 23, 130 N.M. 651, 29 8 P.3d 1052. 9 Defendant broadly asserts that he wa s prejudiced by the delay and that the 10 prejudice in this case “is obvious[,] as defens e counsel told the court, [Defendant] lost 11 his house, [his] car, and [his] personal bel ongings, and there was a loss of memory by 12 the child witnesses.” He further contends that he was extremely depressed and taking 13 medication and that he “was anxious about his case during the almost four years of 14 waiting to go to trial.” Based on these assertions, Defendant states that the prejudice 15 factor of the speedy trial analysis “unquestionably weighs in his favor.” 16 The district court found that a lack of prejudice was implicit in this case because 17 Defendant and his counsel madea tactical decision to await the outcome of the federal 18 case before going to trial in the present cas e. As proof of De fendant’s intention to 1910 delay the trial, the district court referenced Defendant’s own statements, as well as 1 those of his counsel that showed an acqui escence on Defendant’s behalf to delay trial 2 until the federal case had been resolved. Th e court also enumerated the benefits to 3 Defendant as follows: 4 First, if a conviction were obtained in the state case, it could adversely 5 affect the federal case. Second, by awaiting the [f]ederal [c]ourt’s 6 rulings on similar suppression issues involving the same warrants as the 7 state case, . . . Defendant could bene fit by suppression of evidence if the 8 [s]tate [c]ourt were to consider the precedent of th e U.S. [d]istrict 9 [j]udge’s decision and rule in a similar manner. Third, regardless of the 10 U.S. [d]istrict [j]udge’s decision[,] . . . Defendant would have the benefit 11 of transcripts of testimony by the same witnesses who would later appear 12 in the [s]tate [c]ourt and the legal briefs of counsel from the federal case. 13 Fourth, (which occurred in this case) the State might concede the 14 invalidity of certain warrants based upon the [f]ederal [c]ourt’s decision. 15 Also, delay of the state case until the federal case was ripe for resolution 16 can be inferred as a tactic in this case which might give . . . [D]efendant 17 leverage in plea negotiations. . . . Th e record indicates that [D]efendant’s 18 federal and state attorneys met and discussed with prosecutors the 19 possibility of a plea agreement involving the federal and state cases. 20 Regarding Defendant’s argument about anxiety and health concerns, the district court 21 found that it was unclear “whether the anxiety and health concerns [were] due to the 22 delay or [due to] his anticipation that he [would] be transferred to [s]tate custody” and 23 noted that Defendant had indicated “that he must avoid state custody at all cost.” 24 Additionally, with regard to the child w itnesses, the court found that Defendant 25 acknowledged that he was unable to show prejudice by impairment of his defense 2611 because some of the children had given safe house statements, and much of the 1 witness testimony was preserved by transcripts in the federal case. 2 Defendant does not refute or otherwise address the district court’s factual 3 findings in regard to prejudice. SeeRule 12-213(A)(4). Nor does his argument 4 include any citation to the record. SeeRule 12-213(A)(3) NMRA (stating that an 5 appellant’s brief “shall cont ain citations to the record proper, transcript of 6 proceedings[,] or exhibits supporting each factual representation”); Fahrbach v. 7 Diamond Shamrock, Inc. , 1996-NMSC-063, 122 N.M. 543, 551, 928 P.2d 269, 277 8 (stating that an appellate court “will not s earch the record to find evidence to support 9 an appellant’s claims” (internal quotati on marks and citation omitted)). Moreover, 10 “[a]n assertion of prejudice is not a showing of prejudice[,]” Montoya , 2011-NMCA11 074, ¶ 13 (internal quotation marks and citation omitted), and here, Defendant’s 12 assertion that the prejudice “is obvious” is not a showing of prejudice. We are not 13 persuaded by Defendant’s argum ent, and we hold that th e prejudice factor of the 14 speedy trial analysis does not weigh in Defendant’s favor. 15 Defendant’s speedy trial rights were im plicated by the passage of more than 16 forty-four months between the indictment and his trial. The district court correctly 17 found, given that Defendant heavily contributed to the delay, the “reasons for the 18 delay” factor did not weigh against the Stat e. Defendant’s assertion of the right, when 1912 viewed in the context of his own actions , caused the second speedy trial factor to 1 weigh neutrally. And finally, Defendant ha s not shown that he was prejudiced by the 2 delay. Based on the foregoing, we conclude that Defendant’s right to a speedy trial 3 was not violated. 4 B. Suppression 5 Defendant contends that evidence obtained in violation of his right to be free 6 from unlawful search and seizure under the Fourth Amendment to the United States 7 Constitution and under Article II, Section 10 of the New Mexico Constitution should 8 have been suppressed. The district court denied Defendant’s motion to suppress based 9 on its finding that the State’s evidence w ould have been inev itably discovered by 10 other sources and that there were i ndependent sources of that evidence. 11 “The denial of a motion to suppress requires us to de termine [whether] the law 12 was correctly applied to the facts.” State v. Gutierrez , 2005-NMCA-015, ¶ 9, 136 13 N.M. 779, 105 P.3d 332. On review, we defe r to the factual findings of the district 14 court, under a substantial evidence standard, State v. Neal , 2007-NMSC-043, ¶ 15, 15 142 N.M. 176, 164 P.3d 57, and we review de novo the le gal question of whether 16 constitutional standards were satisfied. State v. Johnson , 2006-NMSC-049, ¶ 9, 140 17 N.M. 653, 146 P.3d 298. 1813 Defendant’s argument broadly pertains to all of the evidence that was 1 discovered through the search of his vehi cle, his home, and the Counseling Center, 2 and also pertains to the witness testimony. By asserting that there was “no entirely 3 untainted information[,]” Defendant appears to argue that all of the evidence against 4 him should have been suppressed as a result of the illegal warrant to search his home 5 and, by extension, the warrants to search his vehicle and his office, which stemmed 6 from the initial illegal search warrant. The State makes four arguments with regard 7 to the evidence as it related to the unl awfully obtained warrants. Namely, that 8 (1) Defendant failed to show that any of the victims’ testimony or any of the exhibits 9 were obtained by exploitation of the searches and that, in particular, the victims’ 10 testimony was not linked with the illegal searches; (2) the testimony of the victims and 11 their parents, the public records, and the records of the Counseling Center were 12 independent sources of information, unrelated to any illegal police activity; 13 (3) evidence in this case would inevitably have been discovered as a result of the 14 Counseling Center’s own investigation; and (4) Defendant lacked standing to object 15 to a search of the Counseling Center. Since the record reflect s that in the district court 16 the State focused on the inevitable-discove ry and independent-source doctrines, and 17 because the district court based its holding on those doctrines, we limit our discussion 18 to those arguments. 1914 Although Defendant references Fourth Amendment jurisprudence, he 1 acknowledges that it does not wei gh in his favor and therefore requests that this Court 2 analyze the suppression issue under the State Constitution. See, e.g. , State v. 3 Wagoner , 2001-NMCA-014, ¶ 28, 130 N.M. 274, 24 P.3d 306 (stating that United 4 States Supreme Court case law applying the independent-source doctrine “teaches us 5 that the interest of society in deterring unlawful police conduct and the public interest 6 in having juries receive all probative evid ence of a crime are properly balanced by 7 putting the police in the same, not a worse , position than they would have been in if 8 no police error or misconduct had occurred. ” (emphasis in original) (alteration, 9 internal quotation marks, and citation omitted)). 10 Defendant’s argument is based primarily on Wagoner . In that case, an officer, 11 acting pursuant to a tip from a citizen inform ant that a residence could be the location 12 of drug dealing, requested but was denied consent by the defendant to search the 13 house. Id. ¶ 2. The officer conducted a warrantless sweep of the home, during which 14 he observed drugs and drug para phernalia in plain view. Id. In applying for a 15 warrant, the officer included information a bout the contraband that he had observed 16 during the sweep. Id. The district court granted the defendant’s suppression motion 17 based on its conclusion thatthe warrantless sweep was not justified by exigent 18 circumstances. Id. ¶ 3. This Court agreed with the district court’s conclusion 1915 regarding the sweep, but remanded on the i ssue of whether the evidence should have 1 been admitted under the inevitable-discovery doctrine, which applies “where evidence 2 may have been seized illegally, but where an alternative legal means of discovery, 3 such as a routine police inventory search , would inevitably have led to the same 4 result.” Id. ¶¶ 3, 15. On remand, the district court denied the defendant’s suppression 5 motion under the inevitable-discovery doctrine because it found that the officers 6 intended to secure a warrant prior to the illegal entry and that the magistrate would 7 have issued the warrant regardless of the illegally obtained information. Id. ¶ 6. The 8 defendant appealed. Id. ¶ 1. This Court reversed, holding that “a search conducted 9 pursuant to a warrant based partially on tainted information gathered during a prior 10 illegal search is not an independent source of the evidence seized and therefore must 11 be suppressed.” Id. ¶ 40. Defendant contends that his case is factually similar to 12 Wagoner because the police used ev idence obtained during an unlawful search of his 13 home to persuade a magistrate to issue a search warrant for his place of employment. 14 Unlike Wagoner , in which the contraband was di scovered after an illegal police 15 entry and then used to secure a warrant, here, Defendant’s fraud had been discovered 16 by the Counseling Center and reported to various authorities, including the FBI, prior 17 to the search of his office at the Counse ling Center and prior to the Counseling Center 18 staff being notified by Mr. Nuñez or by police of Defendant’s suspected fraud. 1916 Moreover, the Counseling Center had already started its own investigation by 1 contacting clients and their pa rents to report their discoveryand to request information 2 as to the clients’ experiences in their sessions with Defendant . Thus, any evidence 3 that stemmed from the illegal searches woul d inevitably have been discovered as the 4 Counseling Center continued its course of investigation. See id. ¶ 15 (stating that for 5 the inevitable-discovery doctrine to apply, “the alternate source of evidence must be 6 pending, but not yet realized”). The distri ct court did not err in holding that the 7 inevitable-discovery doctrine applied to these facts. 8 In addition to inevitable discovery, th e State also argues that the witness 9 testimony, which included the testimony of victims and their parents, were 10 independent sources of evidence concerning what happened to them. As well, the 11 State contends that the public records and the records of the Counseling Center were 12 independent sources of evidence. The i ndependent-source doctrine applies where the 13 evidence was obtained independent of the ta inted or possibly tainted information. Id. 14 ¶ 13. Under this doctrine, “[t]he applicable inquiry is whether the evidence would not 15 have come to light ‘but for’ the illegality.” State v. Gurule , 2011-NMCA-063, ¶¶ 25- 16 26, 150 N.M. 49, 256 P.3d 992, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 17 266 P.3d 633. Because the inquiry requires an inference of what might have occurred, 18 we defer to the district court’s factual findings. Id. ¶ 26. Here, the record supports the 1917 district court’s finding that the informati on would have come to light by inevitable 1 discovery and through independent sources regardless of the illegal searches. 2 Defendant does not attack this finding by the district court, nor does he refute the 3 State’s argument that the in formation would have come to light notwithstanding the 4 illegal search. In sum, there is nothing to suggest that “but for” the illegal search of 5 Defendant’s home or place of employment, th e victims, their parents, the Counseling 6 Center documents, and the public records regarding Defendant’s lack of a license to 7 practice psychology would not have come to light. See id. ¶¶ 25-26 (affirming the 8 district court’s exclusion of a witness’s te stimony because the district court reasonably 9 inferred that “but for” an officer’s illegal seizure of evidence, the witness would not 10 have testified). The evidence was properly admitted at Defendant’s trial under both 11 the inevitable-discovery and independent-source doctrines. 12 C. Double Jeopardy 13 1. Multiple Counts of Practicing Psychology Without a License 14 Defendant argues that the forty-thr ee counts of practicing psychology without 15 a license should have been charged as one course of conduc t resulting in only one 16 conviction for the “ongoing act” of worki ng as a psychologist at the Counseling 17 Center. Alternatively, Defendant argues that, at most, heshould have been charged 18 with only fifteen counts—one for each client. Defendant’s statutory construction 1918 argument presents a question of law, which we review de novo. State v. Rowell , 121 1 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). 2 “A statute should be construed so that no part of it is re ndered surplusage or 3 superfluous.” State v. Dunsmore , 119 N.M. 431, 433, 891 P.2d 572, 574 (Ct. App. 4 1995). “The main goal of statutory construction is to give effect to the intent of the 5 [L]egislature.” Rowell , 121 N.M. at 114, 908 P.2d at 1382

. “The words of a statute 6 . . . should be given their ordinary meani ng, absent clear and express legislative 7 intention to the contrary, butour construction must not render the statute’s application 8 absurd, unreasonable, or unjust[.]” Id. (omission in original) (internal quotation marks 9 and citations omitted). 10 The pertinent statute, NMSA 1978, § 61-9-14 (1993), provides that: 11 A. It is a misdemeanor: 12 (1) for any person not licen sed under the Professional 13 Psychologist Act . . . to practice psychology or to represent 14 himself as a psychologist or a psychologist associate; 15

. . . . 16 B. Such misdemeanor shall be punishable upon conviction by 17 imprisonment for not more than three months or by a fine of not more 18 than one thousand dollars . . . or by both such fine and imprisonment. 19 Each violation shall be deemed a separate offense. 20 NMSA 1978, Section 61-9-3(H) (2002) defi nes the phrase “practice of psychology” 21 as follows: 2219 “practice of psychology” means the observation, description, evaluation, 1 interpretation[,] and modification of human behavior by the application 2 of psychological principles, methods [,] and procedures for the purpose 3 of preventing or eliminating sympto matic, maladaptive[,] or undesired 4 behavior and of enhancing interper sonal relationships, work and life 5 adjustment, personal effectiveness, be havioral health and mental health, 6 and further means the rendering of such psychological services to 7 individuals, families[,] or groups regardless of whether payment is 8 received for services rendered. The practice of psychology includes 9 psychological testing or neuropsychol ogical testing and the evaluation 10 or assessment of personal char acteristics such as intelligence, 11 personality, abilities, interests, aptitudes[,] and neuropsychological 12 functioning; counseling, psychoanalysis, psychotherapy, hypnosis, 13 biofeedback, behavior analysis[,] and therapy; diagnosis and treatment 14 of any mental and emotional disorder or disability, alcoholism and 15 substance abuse, disorders of hab it or conduct[,] and the psychological 16 aspects of physical illness, accident, injury[,] and disability; and 17 psychoeducational evaluation, therapy, remediation[,] and consultation[.] 18 In unit-of-prosecution cases, our Supreme Court has provided a two-step analysis: 19 “First, we review the statutory language for guidance on the unit of prosecution. If 20 the statutory language spells out the unit of prosecution, then we follow the language, 21 and the unit-of-prosecution inquiry is complete.” State v. Gallegos , 2011-NMSC-027, 22 ¶ 31, 149 N.M. 704, 254 P.3d 655 (internal quotation marks and citations omitted). 23 Here, the statutory language spells out the unit of prosecution by declaring that 24 “[e]ach violation shall be d eemed a separate offense.” Section 61-9-14(B). Relying 25 on the definition provided by Section 61-9- 3(H), the State argues that Defendant 26 rendered psychological services each time he met with one of his “clients.” We agree. 27 Defendant’s progress notes from each of the “counseling sessions,” which were 2820 exhibits at trial, indicated that Defendant was providing the service of “individual 1 therapy” to the clients—the very act pr ohibited by Section 61- 9-14 and described by 2 Section 61-9-3(H). See State v. House , 2001-NMCA-011, ¶ 19, 130 N.M. 418, 25 3 P.3d 257 (“[A] charge of multiple counts of violating a statute is appropriate only 4 where the actus reus prohibited by the statute—the gravamen of the offense—has been 5 committed more than once.” (internal quotation marks and citation omitted)). Because 6 the statutory language spells out the unit of prosecution, our inquiry is complete. 7 Defendant was properly charge d with one violation of th e statute for each “counseling 8 session” he held with each of the clients. 9 We are unpersuaded by Defendant’s attempt to analogize this case to State v. 10 Edwards , 102 N.M. 413, 696 P.2d 1006 (Ct. App. 1984). In Edwards , this Court 11 analyzed the unit of prosecution under the unauthorized practice of law statute, NMSA 12 1953, § 36-2-28 (1925) (repealed by 2011 N.M. Laws, ch. 107, § 3) (current versions 13 at NMSA 1978, §§ 36-2-28. 1, -28.2 (2011)). Edwards , 102 N.M. at 415-16, 696 P.2d 14 at 1008-09. Unlike Section 61-9-14, Section 36-2-28 did not spell out the unit of 15 prosecution. See Edwards , 102 N.M. at 416, 696 P.2d at1009 (“If any person shall, 16 without having become duly licensed to prac tice, or whose licenses to practice shall 17 have expired either by disbarment, failure to pay his license fee or otherwise, practice 18 or assume to act or hold himself out to the public as a person qualified to practice or 1921 carry on the calling of a lawyer, he shall be guilty of an offense . . . and on conviction 1 thereof be fined not to exceed five hundred do llars . . . or be imprisoned, for a period 2 not to exceed six months, or both.” (int ernal quotation marks and citation omitted)). 3 Therefore, the Edwardsanalysis differs from that inthe present case where we are 4 able to follow the statutory language to complete our unit-of-prosecution inquiry. See 5 Gallegos , 2011-NMSC-027, ¶ 31 (“If the statutory language spells out the unit of 6 prosecution, then we follow the language, and the unit-of-prosecution inquiry is 7 complete.”). 8 2. Multiple Counts of Criminal Sexual Contact of a Minor 9 Defendant claims that his right to be free from double jeopardy was violated 10 with respect to two of his victims, E.G. and C.L., in that in each instance he was 11 subjected to multiple punishments for one offense. “Because there are no disputed 12 material facts, we review Defendant’s double jeopardy challenge using a de novo 13 standard of review.” State v. Haskins , 2008-NMCA-086, ¶ 15, 144 N.M. 287, 186 14 P.3d 916. 15 Defendant was convicted of criminal sexual contact of a minor for touching 16 E.G.’s breasts and for attempted criminal sexual contact of a minor for intending and 17 beginning the act of touching E.G.’s buttocks and/or genital area. Evidence presented 18 at trial indicated that, during a “counseling session,” E.G. told Defendant that what he 1922 disliked about himself was that he was “fat” or “chubby.” In response, Defendant 1 instructed E.G. to stand in front of a mirro r and to take off his shirt. E.G. having done 2 so, Defendant “put his hand around [E.G.’s] waist, mostly rubbing it. And he kept 3 trying to touch [E.G.’s] arm, as if he was enjoying it[.]” He then asked E.G. to take 4 off his pants. E.G. refused, but Defendant “kept repeating himsel f[.]” E.G. repeatedly 5 said “no” and also stated that he was “uncomfortable about it.” Defendant then 6 threatened E.G. by saying that if he did not take off his pants, he would have the 7 police escort E.G. out of the Counseling Center, take him to jail, and have E.G.’s 8 mother punish him. E.G. testified that he“was afraid” and “[did not] know what to 9 do.” Following Defendant’s threat, E.G. took off his pants. Defendant then started 10 touching “all around” E.G.’s legs and putting his hand, “his thumb mostly,” under 11 E.G.’s underwear. When Defendant aske d E.G. to take off his underwear, E.G. 12 “panicked” and pulled up his pant s, then asked if he could go get a drink of water. At 13 trial, the district court agreed with the State that Defendant’s act of massaging and 14 fondling E.G.’s breasts, including his nipples was a separate and distinct act from 15 Defendant’s attempt, after having caused E.G. to remove his pants, to fondle E.G.’s 16 buttocks or genital area. 17 On appeal, Defendant argues that under the Herron factors, the touching of E.G. 18 was one continuous act of criminal sexual contact with a minor. See Herron v. State , 1923 111 N.M. 357, 361, 805 P.2d 624, 628 (1991) (describing the six factors used in a 1 unit-of-prosecution analysis). We determine that the Herron factors support 2 Defendant’s separate convicti ons related to E.G. The first factor is the “temporal 3 proximity of the acts[.]” Haskins , 2008-NMCA-086, ¶ 18. Under this factor, “the 4 greater the interval between the acts the gr eater likelihood of separate offenses.” Id. 5 Here, Defendant’s act of touching E.G.’s breasts and arm was separated by the length 6 of time during which Defendant coaxed E.G. into removing his pants first by 7 repeatedly asking him to do so and eventuallyculminating in the threat of arrest and 8 parental punishment. Cf. id. (holding that the defendant’s three separate acts of 9 touching the victim’s breasts, vulva, and various parts of her body during a one-hour 10 massage were sufficiently separate in time to be considered separate offenses). The 11 second factor, “the location of the victim during each act and whether there was 12 movement or repositioning of the victim,” id. ¶ 17, weighs in Defendant’s favor 13 because there was no eviden ce that the acts of touching E.G. took place anywhere but 14 in front of the mirror in Defendant’s office. The third factor, “the existence of an 15 intervening event,” id. , weighs in favor of multiple punishments because, between the 16 first and second acts of touc hing, Defendant and E.G. had a discussion, as described 17 in the first-factor analysis, and E.G. took off his pants. See id. ¶ 19 (holding that there 18 was an intervening event between two acts of touching because the victim got dressed 1924 and went to a different room between the two acts). For analysis of the fourth factor, 1 “the sequencing of the acts,”id. ¶ 17, “we analogize to the criminal sexual penetration 2 context, in which serial penetrations of diffe rent orifices, as opposed to repeated 3 penetrations of the same orifice, tend to establish separate offenses[.]” Id. ¶ 19. The 4 fact that E.G. was touched on different parts of his body weighs heavily in favor of 5 separate offenses. See id. The fifth factor, Defendant’s “intent as evidenced by his 6 conduct and utterances,” Haskins , 2008-NMCA-086, ¶ 17, we ighs in Defendant’s 7 favor because Defendant’s “conduct may fairly be construed to indicate one 8 continuous intent to unlawfully and intentionally touch or apply force to [E.G.’s] 9 intimate parts.” Id. ¶ 20. The sixth Herron factor, “the number of victims[,]” id. ¶ 17, 10 weighs neutrally because E.G. was the only victim in that particular “counseling 11 session.” With three of the five applicable Herron factors weighing in favor of 12 separate offenses, we hold that Defendant ’s double jeopardy rights were not violated 13 by the criminal sexual contact and atte mpted criminal sexual contact of E.G. 14 In regard to C.L., Defendant argues that his separateconvictions for touching 15 C.L’s testicles and penis constituted double je opardy. Evidence at trial showed that 16 in a “counseling session” with C.L., Defendant told C.L. that he was a doctor and 17 asked C.L. to pull down his pants so Defendant could check him for a hernia. When, 18 after some resistance, C.L. complied, Defendant “started putting his hand [through 1925 the] little hole in [C.L.’s underwear], grabbed [C.L.’s] ball,” and told him to turn to 1 the right and cough. C.L. turned his headleft and right and coughed, and Defendant 2 told him that he did not have a hernia and that he was “real healthy.” Defendant then 3 pulled C.L.’s foreskin back and “looked around it” and “started moving through 4 [C.L.’s] hair[,] and looking[.]” 5 Having, in an earlier paragraph, set out the Herron factors in some detail, we 6 summarily address the same factors with regard to the C.L. related convictions. First, 7 the act of touching C.L.’s testicle and the act of touching his penis were separated in 8 time by Defendant’s having c onveyed his assessment that C.L. was healthy and did 9 not have a hernia. Second, as with E.G., there was no evidence that the touching of 10 C.L. occurred in more than one location, and thus, the location factor weighs in favor 11 of Defendant. Third, the intervening ev ent between the two acts of touching was 12 Defendant’s communicating to C.L. that hewas healthy and did not have a hernia. 13 With the “hernia check” completed, Defendant commenced the next touching, which 14 was the act of retracting C.L.’s foreskin. Wehold that this factor weighs in favor of 15 separate offenses. See Haskins , 2008-NMCA-086, ¶ 19 (holding that the third Herron 16 factor weighed in favor of multiple punishments where the only evidence of 17 intervening events between the defendant having touched two of the victim’s intimate 18 parts was “finishing the rest of the ma ssage” (alteration omitted)). Fourth, as 1926 discussed in regard to E.G., the fact thatDefendant touched tw o different parts of 1 C.L.’s body weighs heavily in favor of separate offenses. See id. Fifth, the evidence 2 indicates that Defendant’s intent was to e ngage in a continuous c ourse of conduct, and 3 thus, weighs against separate offenses. See id. ¶¶ 17, 20. Because there was only one 4 victim at this “counseling session” the sixth factor is inapplicable. Thus, with regard 5 to C.L., with three Herron factors weighing in favor of separate offenses, including 6 the fourth factor which weighs heavily in favor of such, we c onclude that Defendant 7 was not put twice in jeopardy for the same offense. 8 E. Sufficiency of the Evidence 9 In regard to E.G., Defendant argues th at the State failed to prove that he 10 committed criminal sexual contact of a mi nor by touching E.G.’s unclothed breasts, 11 including his chest and nipples. Defendant’s argument is based on his contention that 12 a male “chest” is not an “intimate part” because there is “an anatomical difference 13 between male and female breasts[.]” Defendant’s argument raises an issue of 14 statutory construction, which is a matter of law that we review de novo. Rowell , 121 15 N.M. at 114, 908 P.2d at 1382. 16 NMSA 1978, Section 30-9-13(A) (2003) reads: 17 [c]riminal sexual contact of a minor is the unlawful and intentional 18 touching of or applying force to th e intimate parts of a minor or the 19 unlawful and intentional causing of a minor to touch one’s intimate parts. 2027 For the purposes of this section, “intimate parts” means the primary 1 genital area, groin, buttocks, anus[,] or breast. 2 Nothing in Section 30-9-13(A) suggests that the Legislature intended to distinguish 3 the intimate parts of a male child from the intimate parts of a female child, and “[w]e 4 will not read into a statute language which is not there, especially when it makes sense 5 as it is written.” State v. Hubble , 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579. 6 To the contrary, the Legislature’s use of the phrase “intimate parts of a minor” 7 indicates a legislative intent to include any minor. 8 Defendant’s reliance on City of Albuquerque v. Sachs , 2004-NMCA-065, 135 9 N.M. 578, 92 P.3d 24, in this context is misplaced. This Court’s holding inSachs 10 addressed an issue of adult public nudityand has no application in the realm of 11 criminal sexual contact. See id. ¶ 1 (examining the question of whether a city 12 ordinance which prohibits public nudity disc riminated against women in violation of 13 the Equal Rights Amendment in the New Mexico Constitution because it prohibits a 14 woman from showing her nude breast in a public place when there was no such 15 prohibition against a man). Defendant does not provide any authority to support a 16 distinction, between the “intim ate parts” of a male or a female in a criminal sexual 17 contact of a minor case, nor would such a distinction be appropriate. See In re 18 Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We assume 1928 where arguments in briefs are unsupported by cited authority, counsel after diligent 1 search, was unable to find any supporting authority.”). 2 F. Remarks by the District Court 3 Following the presentation of the State’s evidence, the distri ct court read the 4 following statement, which Defendant had hims elf stated to the court during a pretrial 5 hearing: “They’re talking about an investigation that happened at the Albuquerque 6 Family and Child Guidance Center. Th ey were investigating Louis Gravina. 7 Certainly they found bogus information about Louis Gravina because it was a persona 8 that I created.” The court then dismissed the jury for an afternoon recess. Defendant, 9 who did not object to the court’s reading th e statement, asserts on appeal that as a 10 result of the court having read the statement, Defendant was denied due process and 11 a fair trial. He requests that we re view this issue for fundamental error. 12 Fundamental error applies “to prevent a miscarriage of jus tice, . . . if the 13 question of guilt is so doubtful that it would shock the conscience to permit the 14 conviction to stand.” State v. Gomez , 2001-NMCA-080, ¶ 21, 131 N.M. 118, 33 P.3d 15 669 (omission in original) (alteration, intern al quotation marks, and citation omitted). 16 Defendant does not argue that his statem ent was improperly admitted against him. 17 Rather, he argues that the c ourt’s “comment interfered with [the] role of the jury as 1829 independent fact-finder” because it “conveyed to the jury that [the court] believed 1 [Defendant] was guilty[.]” We disagree. 2 Unlike cases in which this Court and our Supreme Court have concluded that 3 a district court’s comment was improper, the district court in this case did not 4 comment on Defendant’s credibility. See State v. Henderson , 1998-NMSC-018, 5 ¶¶ 14, 17, 125 N.M. 434, 963 P.2d 511 (holding that the district court had improperly 6 commented on the witness’s credibility beforethe jury by referring to the witness as 7 “the ‘guy who wanted to get drunk and get laid’”); Gomez , 2001-NMCA-080, ¶¶ 19, 8 22 (explaining that the district court’s comments had been on the “brink of 9 fundamental error” when a taped interview was played for the jury in which the 10 district court complemented a child witn ess by stating “[y]ou di d very well and we’re 11 all very proud of you, that you came he re and you told us the truth”); State v. Sanchez , 12 112 N.M. 59, 65-66, 811 P.2d 92, 98-99 (Ct. App. 1991) (holding that the district 13 court had commented on the evidence, whenin the presence of the jury, after a 14 witness’s testimony, it stated that, based on the witness’s testimony, it would find that 15 the witness was “unavailable” ba sed on a lack of memory and stating to the jury that 16 the witness’s testimony was “w orthless”). Rather than conveying the court’s opinion 17 “concerning the weight of the evidence or the credibility of a witness[,]” Sanchez , 112 18 N.M. at 66, 811 P.2d at 99, here, the statement was a verbatim quote of a an earlier 1930 statement made by Defendant. There was no error, much less fundamental error, in 1 the court’s having presented Defendant’s own statement to the jury, without 2 conveying its own opinion. Cf. id. (“Generally, remarks ma de by a trial judge in 3 ruling upon a motion before the court in a jurytrial do not constitute error if they do 4 not amount to a comment concerning the wei ght of the evidence or the credibility of 5 a witness.”). 6 G. Sentencing 7 Defendant raised an issue in his brief in chief related to the legality of his 8 sentence, contending that in 2004, when th e crimes were committed, the penalty for 9 criminal sexual contact of a minor was nine years imprisonment, however, he 10 concedes in his reply brief that, in 2003 the penalty was changed to fifteen years. We 11 deem that Defendant has con ceded the correctness of the district court’s application 12 of the fifteen-year sentence provisi on under NMSA 1978, Section 31-18-15(A)(3) 13 (2003) (amended 2005 and 2007) (current version at Section 31-18-15(A)(5)), and, 14 therefore, we do not examine the argument further. 15 II. CONCLUSION 16 For the foregoing reasons, we affirm Defendant’s convictions. 17 IT IS SO ORDERED. 18

__________________________________ 19 JONATHAN B. SUTIN, Judge 2031 WE CONCUR: 1

_________________________________ 2 LINDA M. VANZI, Judge 3

_________________________________ 4 J. MILES HANISEE, Judge 5