IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 28,994 4 FRANK J. DOMBOS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Frank J. Dombos 12 Santa Rosa, NM 13 Pro Se Appellant 14 MEMORANDUM OPINION 15 VIGIL, Judge. 16 Defendant appeals the denial of hi s post-conviction motion requesting DNA 17 tests be performed on the “ma ssive suppressed” evidence. We proposed to affirm in 18 a calendar notice, and we have received a memorandum in opposition and a 19 supplemental memorandum in opposition fro m Defendant. We have considered 202 Defendant’s arguments, but we are not persua ded by them. We therefore affirm the 1 district court denial of Defendant’s post-conviction motion. 2 Defendant was convicted in 2005 of false imprisonment, criminal sexual 3 penetration (CSP), attempte d CSP, kidnaping, battery on a household member, and 4 interference with communications. [RP 523] The charges involved a woman he had 5 met approximately three months earlier. Th is Court affirmed Defendant’s convictions 6 by memorandum opinion filed on April 10, 2008. [RP 796] On July 10, 2008, 7 Defendant filed a motion in the district court to reopen the case inorder to present a 8 post-conviction motion requesting that DNA tests be conducted on the “massive 9 suppressed” evidence from the incident. [R P 827] In the State’s response to the 10 motion, it noted Defendant toldthe grand jury that he had consensual sex with the 11 victim on the day in question; a continuance of the trial was denied at the request of 12 both parties; the State requested a continuan ce of trial after disc overing a rape kit that 13 had not been sent to the crime laboratory, but Defendant opposed a continuance; and 14 the State then withdrew the motion fo r continuance. [R P 883-89; 923-52–partial 15 transcript of Grand Jury proceedings; 953- 58–partial transcript of hearing on State’s 16 motion for continuance] The State argued that Defendant was cross-examined about 17 the incident and Defendant claimed that “any and all sexual acts th at he performed on 18 the victim were consensual in nature.” [RP 887; 904-05] The State contended that, 193 because there was never an issue as to whether Defenda nt performed the acts, DNA 1 testing would not be helpful to Defendant’s case. [RP 887-88] The district court 2 agreed with the State’s arguments and de nied Defendant’s post-conviction motion on 3 August 26, 2008. [RP 959] 4 In our calendar notice, we pointed out that many of Defendant’s arguments 5 relate to the trial proceedings. We stat ed that post-conviction proceedings cannot be 6 used to substitute for an appeal, and cannot be used to correct alleged error that 7 occurred during trial. See State v. Gillihan , 86 N.M. 439, 440, 524 P.2d 1335, 1336 8 (1974); State v. Williams , 78 N.M. 431, 433, 432 P.2d 396, 398 (1967). In his 9 supplemental memorandum in opposition, Defendant claims that all of his issues were 10 not included in the brief filed with this C ourt in connection with his direct appeal. 11 [Supp. MIO 1-4] However, as indicated in the memorandum opinion filed by this 12 Court, the issues that werealready addressed on direct appeal included, whether the 13 false imprisonment and kidnaping convicti ons violate double jeopardy principles, 14 whether the two CSP convictions should bereduced to one, whether a psychiatric 15 examination should have been ordered fo r the victim, whether admission of the 16 videotape amounted to error, whether the district court erred in allowing the 17 indictment to be amended, whether the State engaged in prosecutorial misconduct, 18 whether Defendant received ineffective assi stance of counsel, and whether the errors 194 at trial amounted to cumulative error. [RP 796-824–proposed memorandum opinion] 1 We will not address the arguments pertaining to Defendant’s claims of errors at trial. 2 In our notice, we discussed Defendant ’s request that evidence “that can be 3 subjected to” DNA testing be produced by the State and tested. Although Defendant 4 claimed that the tests would prove his innocence, the district court found that identity 5 was not at issue, DNA tests would not resolv e the issue of consent by the victim, and 6 therefore, DNA would not have helped Defe ndant. [RP 959-60] The district court also 7 found that Defendant, against the advice of his attorney, opposed a continuance in 8 order to test an untested rape kit that th e State discovered just before trial, and 9 therefore, Defendant waived any objection to the rape kit not being tested. [Id.] 10 In response, Defendant claims that he al ways maintained that he and the victim 11 had “no sex” on the night of February 20, and this was not a case where consent was 12 the only issue to be decided. [MIO 8, 16] Contrary to Defendant’s claims, documents 13 in the record proper show that Defendant admitted having sex with the victim, 14 including anal sex, on February 20, the last date charged in the Grand Jury indictment. 15 [RP 918; 921–interview on February 21; 931–Grand Jury transcript; RP 2] In fact, 16 Defendant stated that he and the victim ha d sexual interactions two or three times a 17 day, and those interactions included anal sex. [RP 904] 185 Defendant also claims that he did not make a strategic decision when he 1 opposed the continuance sought by the State. [MIO 21] Defendant claims that his 2 “entire decision making process” was being subverted by the prosecution. [Id.] 3 Contrary to these claims, the transcript of the motion for continuance shows that the 4 district court told Defendant that it would be in his interest to have all of the evidence, 5 including the rape test kit that had not beentested, and that he wanted to make sure 6 that all evidence was availabl e for use in Defendant’s de fense. [RP 957] Defendant 7 responded that he wanted to “go to trial as soon as possible,” and that he did not want 8 to wait. [RP 957] 9 The record proper confirms that there was no issue as to identity, only as to 10 consent by the victim. Moreover, Defendant was given the opportunity to continue 11 trial in order to gather DNA ev idence from the rape kit. Cf. State v. Villa , 2004- 12 NMSC-031, ¶ 18, 136 N.M. 367, 98 P.3d 1017 ( holding that the State, having chosen 13 not to amend the indictment and not to submit certain jury instructions, cannot 14 complain on appeal about the consequences of its decisions). 15 For the reasons discussed above and inour calendar notice, we affirm the 16 district court’s denial of Defendant’s post-conviction motion. 17 IT IS SO ORDERED. 186 1 MICHAEL E. VIGIL, Judge 2 WE CONCUR: 3

4 CYNTHIA A. FRY, Chief Judge 5

6 LINDA M. VANZI, Judge 7