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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

v. NO. 29,186 9 JOSHUA DAVID FARRELL, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Stephen Bridgforth, District Judge 13 Gary K. King, Attorney General 14 Margaret McLean 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Allison H. Jaramillo, Assist ant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 Joshua David Farrell (Defendant) appeals from the judgment, order and 242 commitment to the corrections department, c onvicting him, after a jury trial, of two 1 counts of criminal sexual c ontact of a minor and sentencing him as an habitual 2 offender. [RP 132] Defendant contends that the district court erred as follows: (1) 3 in denying Defendant’s motion for a directed verdict; (2) in denying Defendant’s 4 motion for a new trial; (3) in sentencing Defe ndant as an habitual offender when the 5 State failed to make a prima facie showi ng that Defendant’s prior felony convictions 6 satisfied the timeliness requirement [DS 2- 4]; and (4) in not making specific findings 7 as to why the offense was a serious violent offense and limiting Defendant’s ability 8 to earn good time under the Earned Meritorious Defense Act (EMDA). [Def. 1st MIO 9 21] We have duly considered Defendant ’s and the State’s memoranda in response 10 to this Court’s first and second calendar notices . We affirm Issues 1, 2, and 3. We 11 reverse and remand Issue 4. 12 DISCUSSION 13 Defendant’s Motion for a Directed Verdict 14 In his memorandum, Defendant continues to argue thatthere was not sufficient 15 evidence to prove that his involvement with the complaining witness amounted to 16 criminal sexual contact of a minor and therefore the district court erred in denying 17 Defendant’s motion for a directed verdict. [Def. 1st MIO 8] Defendant also claims 18 that his conviction and senten cing for two counts, rather than one count, of criminal 193 sexual contact of a minor is based on unitary conduct and violates his double jeopardy 1 rights. [Def. 1st MIO 9] This Court’s second calendar notice proposed summary 2 affirmance on this issue, and Defendant’s second memorandum does not raise 3 additional facts or authorities that would persuade us that the analysis of this issue in 4 the second calendar notice was incorrect or inappropriate. See State v. Ibarra , 116 5 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary 6 disposition is required to come forward and sp ecifically point out errors in fact and/or 7 law.”). We affirm the district court on this issue. 8 A. Sufficiency of the Evidence. 9 “The question presented by a directed verdict motion is whether there was 10 substantial evidence to support the charge.” State v. Dominguez , 115 N.M. 445, 455, 11 853 P.2d 147, 157 (Ct. App. 1993). On appeal , the appellate court views the evidence 12 in the light most favorable to the verdict, resolving all conflicts and indulging all 13 reasonable inferences in favor of the verdict. State v. Apodaca , 118 N.M. 762, 765- 14 66, 887 P.2d 756, 759-60 (1994). Substantial evidence is “s uch relevant evidence as 15 a reasonable mind might accept as adequate to support a conclusion.” State v. 16 Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation 17 marks and citations omitted). “The revi ewing court does not weigh the evidence or 18 substitute its judgment for that of the fact finder as long as there is sufficient evidence 194 to support the verdict.” State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 1 P.2d 789. 2 The jury was instructed that in order to find Defendant guilty of each of the two 3 counts of criminal sexual contact of a mi nor, the State must prove beyond a reasonable 4 doubt each of the following elements: (1) De fendant touched or applied force to the 5 buttocks of the victim; (2) Defendant used physical force or physical violence; (3) the 6 victim was at least 13 but less than 18 year s old; (4) this happened in New Mexico on 7 or about June 7, 2006; and (5) Defendant acted intenti onally when he committed the 8 crimes. [RP 75-77] “Jury instructions b ecome the law of the case against which the 9 sufficiency of the evidence is to be measured.” State v. Smith , 104 N.M. 729, 730, 10 726 P.2d 883, 884 (Ct. App. 1986). 11 The victim, a minor aged 17, testified that on June 7, 2006, she was at a 12 neighbor’s apartment with several peopl e including Defendant. [DS 1] The 13 conversation turned to tattoos. [Id.] At the urging of one of the women, the victim 14 showed her tattoo on her lower hip area. [DS 1-2] During the next hour, the victim 15 testified that Defendant madesexual advances towards her, which she rejected. [DS 16 2] The victim further testif ied that Defendant then grabbe d her, held her to prevent 17 her escape, and fondled her buttocks at tw o separate times. [D S 2] The memorandum 18 further indicates that the victim testifie d that Defendant touched her buttocks while 195 she was climbing over the couch and that hetouched her buttocks again while she was 1 standing in a doorway. [Def. 1st MIO 2] Defendant also tes tified, but gave a 2 different version of events. [Id.] The jury convicted Defendant of two counts of 3 criminal sexual contact of a minor. [RP 84-85] 4 We hold that the district court was co rrect in denying Defendant’s motion for 5 a directed verdict. In addition, based on the victim’s testimony, we hold that a 6 reasonable jury could conclude that De fendant had committed two counts of fourth 7 degree criminal sexual contact of a minor. See State v. Riggs , 114 N.M. 358, 362-63, 8 838 P.2d 975, 979-80 (1992) (stating that this Court does not substitute its judgment 9 for that of the fact finder concerning the credibility of witnesses or the weight to be 10 given their testimony); see also State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 11 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis for 12 reversal because the jury is free to reject[d]efendant’s version of the facts.”). 13 B. Double Jeopardy 14 In the memorandum, Defendant further de velops his contention that his double 15 jeopardy rights were violated because, he argues, the two convic tions were based on 16 one continuous, unitary course of conduct on one date in an apartment and the 17 touching of only one body part, the victim’s buttocks, rather than two separate body 18 parts. [Def. 1st MIO 9- 11] Defendant relies on State v. Laguna , 1999-NMCA-152, 196 128 N.M. 345, 992 P.2d 896. [MIO 13-14] Inthat case, the defendant had rubbed 1 the victim’s leg, moving up toward her cr otch several times in a continuous manner 2 and each time the victim had pushed the defe ndant’s hand away. Id. ¶ 39. This Court 3 held that “this repeated touching was a si ngle ongoing attempt to reach [the victim]’s 4 private parts.” Id. 5 In this case, however, the victim testifie d that there were two attacks, one while 6 the victim was climbing over a couch and one when the victim was standing in a 7 doorway. [Def. 1st MIO 2] The victim also testified that Defendant grabbed her, 8 held her to prevent her escape, and fondledher buttocks at two separate times. [DS 9 2] The two attacks both occurred in the same apartment on the same evening and to 10 the same body part, but they were separated in time and space and/or differing in 11 quality and nature from the general sexual advances that Defendant began making 12 toward the victim after she was persuaded to show her tattoo. See Swafford v. State , 13 112 N.M. 3, 13-14, 810 P.2d 1223, 1233-34 (1991) (discussing that “indicia of 14 distinctness,” indicating non-unitary conduct, are present when “two events are 15 sufficiently separated by either time or sp ace,” but if time and space considerations 16 are not determinative, “resort must be had to the quality and nature of the acts or to 17 the objects and results involved”); see also State v. Frazier , 2007-NMSC-032, ¶ 18, 18 142 N.M. 120, 164 P.3d 1 (discussing that if th e acts are sufficiently separated, there 197 is no multiple punishment concern). 1 We affirm this issue. 2 Defendant’s Motion for a New Trial 3 Defendant’s motion raised three grounds fo r a new trial: (1) the State failed to 4 prove beyond a reasonable doubt that Defendant touched any of the intimate areas of 5 the victim as defined inNMSA 1978, Section 30-9-13(A)(2003), which include the 6 primary genital area, groin, buttocks, anus or breasts; (2) since fourteen of the jury 7 pool members were not present in the veni re, Defendant was denied a fair cross8 section of the community to serve on his jury; and (3) defense counsel should have 9 objected to the victim’s mother’s boyfrie nd’s testimony, but did not do so. [RP 93-94] 10 Defendant’s second memorandum does not raise any new facts or authorities that 11 would persuade us that this Court’s analys is on this issue in the second calendar notice 12 was incorrect or inappropriate. See Ibarra , 116 N.M. at 489, 864 P.2d at 305. We 13 affirm the district court’s decision to deny Defendant’s motion for a new trial. 14 This Court will not overturn a district c ourt’s denial of a motion for a new trial 15 unless the trial court abused its discretion. State v. Volpato , 102 N.M. 383, 385, 696 16 P.2d 471, 473 (1985) (“The discretion of a trial court is not to belightly interfered 17 with, and an order denying a motion for a ne w trial will not be overturned except for 188 an abuse of discretion.”). 1 In this case, we hold that there is no merit to Defendant’s first ground for a new 2 trial, that there was evidence that Defendant touched an intimate part of the victim. 3 This issue actually relates to the sufficien cy of the evidence and to Defendant’s double 4 jeopardy concerns. As we discussed earlier, the docketi ng statement and Defendant’s 5 first memorandum indicate that the victimtestified that Defendant touched her 6 buttocks twice in this case. Although Defe ndant disagrees and c ontinues to deny that 7 he touched the victim’s buttocks, we hold that the victim’s testimony supports 8 summary affirmance on these issues. See Rojo , 1999-NMSC-001, ¶ 19. We also 9 hold that there is no merit to Defendant’s second ground for a new trial; that the jury 10 panel was not representative of the community . The purpose of the fair cross-section 11 requirement is to ensure that jurors are qualified and impartial, not that the petit jury 12 itself mirror the community and reflect the various distinctive groups in the 13 population. See State v. Singleton , 2001-NMCA-054, ¶ 7, 130 N.M. 583, 28 P.3d 14 1124 (“The purpose of the fair-cross-section requi rement is to ensure that jurors are 15 qualified and impartial. Thus, the petit jury actually chosen need not mirror the 16 community and reflect the various distin ctive groups in the population.” (internal 17 quotation marks and citation omitted)). 189 Initially, we note that Defendant failed to preserve this issue under the New 1 Mexico Constitution. [RP 57] See State v. Casillas , 2009-NMCA-034, ¶ 11, 145 2 N.M. 783, 205 P.3d 830 (declining to review the issue where the defendant did not 3 cite N.M. Const. art. II, § 14, the provi sion of the New Mexico Constitution that 4 protects the right to an impartial jury). Moreover, as the State points out, while 5 fourteen prospective jurors failed to appear , there remained forty-two venire members 6 that were available for the jury panel. [RP 104-05] Finally, in the first memorandum, 7 Defendant provides only vague , generalized assertions on appeal that Doña Ana 8 County has a large Hispanic and Spanish-sp eaking population and that therefore, the 9 systematic exclusion of this population would impact the rights of those jurors to sit 10 on a jury. [Def. 1st MIO 18] Defendant provided no evidence below, however, to 11 support these assertions or to indicate thatthe venire from which the jury was drawn 12 actually did not constitute a representative cross-section of the community. [RP 57] 13 Casillas , 2009-NMCA-034, ¶ 13 (stating that, “[ i]n order to show a prima facie 14 violation of the fair cross-section requirement [under the federal constitution], a 15 defendant must demonstrate that (1) the gr oup alleged to be excluded is a ‘distinctive’ 16 group in the community, (2) the group’s repr esentation in venires from which juries 17 are selected is not fair and reasonable in re lation to the number of such persons in the 1810 community, and (3) this under-representati on results from the systematic exclusion 1 of the group in the jury-selection process”. We hold, therefore, that Defendant has not 2 made a prima facie showing that his federal constitutional right to a representative 3 cross-section of the community was violated in this case. 4 Finally, we hold that Defendant’s third ground for a new trial, that his counsel 5 did not object to the testimony of the victim ’s mother’s boyfriend, also lacks merit on 6 direct appeal. See, e.g. , State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 7 P.3d 127 (recognizing that counsel is pres umed competent). Defendant relies on 8 State v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), andState v. Boyer , 103 N.M. 9 655, 712 P.2d 1 (Ct. App. 1985), in continuing to argue this issue on direct appeal. 10 [Def. 1st MIO 20] The memorandum indicates that the victim’s mother’s boyfriend 11 testified that he detained Defendant un til officers arrived. [Def. 1st MIO 19] 12 First, it appears that this witness’s testimony may have been relevant and 13 admissible to the description of whatoccurred on the date at issue. See State v. Peters , 14 1997-NMCA-084, ¶ 40, 123 N.M. 667, 944 P.2d 896 (stating that whether to object 15 to evidence is a matter of trial tactics and failure to object does not establish 16 ineffective assistance). Second, we cannotconclude that this testimony was more 17 prejudicial than probative. See State v. Fernandez , 117 N.M. 673, 677, 875 P.2d 1811 1104, 1108 (Ct. App. 1994) (“In the absen ce of prejudice, there is no reversible 1 error.”); see also In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 2 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). Third, 3 Defendant has not shown that“but for” the admission of this testimony, the outcome 4 of the trial would have been different. See State v. Aker , 2005-NMCA-063, ¶ 34, 137 5 N.M. 561, 113 P.3d 384 (discussing that “[ t]o establish a prima facie case of 6 ineffective assistance of couns el, Defendant must show th at (1) counsel’s performance 7 was deficient in that it fell below an objec tive standard of reas onableness; and (2) 8 Defendant suffered prejudice in that there is a reasonable probability that, but for 9 counsel’s unprofessional errors, the result of the proceeding would have been 10 different” (internal quotation marks and citation omitted)). 11 We hold, therefore, that defense counsel ’s failure to object to the admission of 12 this testimony does not constitute a basis for a new trial on direct appeal. See State 13 v. Grogan , 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a 14 preference for habeas corpus proceedings to address ineffective assistance of counsel 15 claims). 16 We affirm the district court’s decision to deny Defendant’s motion for a new 17 trial. 1812 Sentence Enhancement 1 In the docketing statement, Defendant contends that the State failed to make a 2 prima facie showing that his prior felony convictions met the timeliness test for 3 purposes of enhancing Defendant’s sentence as an habitual offender. The first 4 calendar notice proposed to reverse the districtcourt on this issue. The State filed a 5 persuasive memorandum in opposition [State ’s 1st MIO], and, accordingly, this 6 Court’s second calendar notice proposed summaryaffirmance on this issue. [Ct. App. 7 File, CN2] Defendant’s second memorandum does not dispute the facts this Court 8 relied upon in proposing summary affirmance on this issue in the second calendar 9 notice. Relying on Franklin , 78 N.M. at 129, 428 P.2d at 984, and Boyer , 103 N.M. 10 at 658-60, 712 P.2d at 4-6, howev er, Defendant continues to assert that the State did 11 not show that he was servi ng a sentence or on probation or parole within ten years of 12 his conviction in this case. [Def. 2nd MIO 3] We are not persuaded. 13 “In order to make a prima facie case under [NMSA 1978,] Section 31-18-17 14 (2003), the [s]tate must offer proof of all three elements: identity, conviction, and 15 timing.” State v. Simmons , 2006-NMSC-044, ¶ 11, 140 N.M. 311, 142 P.3d 899. 16 The standard of proof for the State’s evid ence is a preponderance of the evidence. Id. 17 “The sufficiency of the evidence is review ed with a substantial evidence standard.” 1813 Id. ¶ 10 (citation omitted). “When we reviewfor substantial evidence we give 1 deference to the findings of the district court.” Id. (citation omitted). “[T]he [s]tate 2 must make its prima facie showing, includi ng all of the required elements for a prior 3 felony conviction as defined by the habitual offender statute, and then the burden of 4 proof shifts to the defendant.” Id. ¶ 13. 5 Defendant objects only to the State’s proof of the timing of the prior felony 6 convictions. The State’s first memorandum indicates the prosecutor provided the 7 district court with certified exhibits of De fendant’s prior offenses. [State’s 1st MIO 8 1-2] These documents showed that Defendant’s two prior felonies satisfy the timing 9 requirements of the habitual offender statute. 10 Defendant was convicted in this case on or about December 15, 2006. [RP 84, 11 85] The question in this case is whether Defendant was serving a sentence, a period 12 of probation or parole within ten years prio r to December 15, 2006, with regard to the 13 two prior felonies. See State v. Tave , 2007-NMCA-059, ¶ 12, 141 N.M. 571, 158 P.3d 14 1014, cert. denied , 2007-NMCERT-005, 141 N.M. 762, 161 P.2d 259 (holding that 15 the habitual offender statute contemplates that the sentencing judge will consider any 16 prior felony convictions withinten years prior to the dateof the conviction for which 17 a sentence is being imposed); see also Section 31-18-17(D)(1) (stating that “prior 1814 felony conviction” mean s “a conviction, when less thanten years have passed prior 1 to the instant felony conviction since th e person completed serving his sentence or 2 period of probation or parole for the prior felony, whichever is later”). 3 On April 5, 1995, Defendant was charged with burglary, a felony. [Id.] 4 Defendant pled guilty or nolo contendere and received a sentence of two years in jail, 5 which was suspended, five years community supervision, and a $500 fine. [Id.] 6 Defendant violated the terms of his probati on and it was revoked. [Id.] The date of 7 revocation was February 29, 2000, well within the ten-yearperiod required by Section 8 31-18-17. [Id.] Defendant was serving th is sentence, period of probation or parole 9 within ten years of his December 2006 conviction in this case. 10 We hold that the district court did not err in ruling that the State presented a 11 prima facie showing that less than ten y ears have passed since Defendant completed 12 serving his sentence, probation, or paroleperiod for his prior felony convictions. 13 Accordingly, we affirm Defendant’s se ntence enhancement pursuant to Section 14 31-18-17. 15 Defendant’s Ability to Earn Good Time 16 In his motion to amend the docketing statement, Defendant contended that the 17 district court erred by not making specific fi ndings as to why the offense was a serious 1815 violent offense, and therefore the distri ct court erred in limiting Defendant’s ability 1 to earn good time under the Earned Merito rious Defense Act NMSA 1978, § 33-2-34 2 (2006) (EMDA). [Def. 1st MIO 21] While Defendant failed to preserve the issue 3 below, in the second calendar notice, weobserved that Defendant is allowed to 4 challenge the legality of his sentences for the first time on appeal because trial courts 5 have no jurisdiction to impose illegal sentences. See, e.g. , State v. Bachicha , 111 6 N.M. 601, 605-06, 808 P.2d 51, 55-56 (Ct. App. 1991)). The second calendar notice, 7 therefore, proposed to reverse and remand on th is issue. [Ct. App. File, CN2] The 8 State has indicated that it agrees with th e proposed disposition. [State’s 2nd MIO 1-2] 9 Accordingly, we reverse and remand on this issue based on the following second 10 calendar notice analysis. 11 Section 33-2-34(A)(1) of the EMDA provide s that meritorious deductions shall 12 not exceed four days per month of the time served for a prisoner confined for 13 committing a serious violent offense. Defe ndant was convicted after a jury trial of 14 two counts of criminal sexual contact of a minor in the fourth degree. [RP 84, 85, 15 132] Section 33-2-34(L)(4)(o)(12) provides that criminal sexual contact of a minor 16 in the fourth degree is a serious violent offe nse when the district court finds that the 17 nature of the offense and the resulting harm make the crime a serious violent offense. 1816 In State v. Morales , 2002-NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747, we held that, 1 to make such a determination, the district court must conclude that the offense was 2 “committed in a physically violent manner eith er with an intent to do serious harm or 3 with recklessness in the face of knowledgethat one’s acts are reasonably likely to 4 result in serious harm.” 5 Findings that merely set forth facts w ithout connecting the facts to the EMDA 6 requirements or findings that merely state a legal conclusion, do not satisfy the 7 statutory requirement. State v. Scurry , 2007-NMCA-064, ¶¶ 12, 14, 141 N.M. 591, 8 158 P.3d 1034 (holding, with regard to the need for a specific finding of a serious 9 violent offense to satisfy the EMDA, thatthe district court’s findings need to 10 sufficiently justify and specifically i ndicate the basis for its conclusions); see State v. 11 Loretto , 2006-NMCA-142, ¶ 19, 140 N.M. 705, 147 P.3d 1138 (stating that “[t]he 12 district court should have stated why [the defendant’s] acts involved physical 13 violence, and how the acts wereeither done with knowledge that they were reasonably 14 likely to result in serious harm, or th at the circumstances and acts constituted 15 recklessness in the face of knowledge that the acts were reasonably likely to result in 16 serious harm”). 17 With regard to each of Defendant’s tw o convictions for criminal sexual contact 1817 of a minor in the fourth degree, the distri ct court merely stated its conclusion that, 1 “due to the nature of this offense and the resulting harm this crime is a serious violent 2 offense pursuant to [the EMDA].” [RP 133] This statement does not satisfy the 3 EMDA requirements for specific findings that justify and specifically indicate the 4 basis for the conclusion. 5 Accordingly, we reverse and remand to the district court to ascertain if its 6 determination can be supported by appropriate findings. 7 IT IS SO ORDERED. 8

___________________________________ 9 RODERICK T. KENNEDY, Judge 10 WE CONCUR : 11

____________________________ 12 CYNTHIA A. FRY, Chief Judge 13

___________________________ 14 JONATHAN B. SUTIN, Judge 15