This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 30,021 9 ROBIN HOLGATE, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Stephen K. Quinn, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Will O’Connell, Assistan t Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 222 Defendant appeals from hi s conviction for criminal sexual contact of a child 1 under thirteen. In this Court’s notice of proposed summary disposition, we proposed 2 to affirm. Defendant has filed a memo randum in opposition. We have considered 3 Defendant’s arguments, and as we ar e not persuaded by them, we affirm. 4 The Right to Present a Defense 5 Defendant asserts that he was denied th e right to present a defense when the 6 district court refused to admit the testim ony of David Goff, who would have testified 7 that the victim’s mother, Angela Brinle y, told him that, years earlier, she had 8 wrongfully accused a man of raping her so th at her parents would not know that she 9 had had a relationship with someone of another race. [DS 3] “We review the 10 admission of evidence under an abuse of di scretion standard and will not reverse in 11 the absence of a clear abuse.” See State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 12 N.M. 511, 964 P.2d 72. “A district court abuses its discretion when it misapplies or 13 misapprehends the law.” State v. Pacheco , 2008-NMCA-131, ¶ 34, 145 N.M. 40, 193 14 P.3d 587. 15 We find no error in the district court’s ex clusion of this evidence. In our notice 16 of proposed summary disposition, we indicated that the proposed evidence was 17 hearsay, which is inadmissible pursuant to Rule 11-802 NMRA. We also stated that, 183 to the degree that Goff’s testimony about th ese statements would have been character 1 evidence reflective of the vi ctim’s mother’s truthfulness, pursuant to Rule 11-608 2 NMRA, a witness’s character of truthful ness or untruthfulness cannot be proved by 3 extrinsic evidence. We also stated that even if Defendant ’s right to present a defense 4 that the victim’s mother had improperly influenced the victim or coerced him into 5 making false claims were to override these rule s, at trial, the district court noted that 6 Defendant could have questi oned the victim’s mother directly about these prior 7 accusations, but Defendant chose not to. [R P 140] Accordingly, we proposed to hold 8 that to the degree that such a defense was available, Defendant failed to pursue it and 9 that the district court did not err in excluding Goff’s testimony. 10 In Defendant’s memorandum in opposition, he does not assert that the evidence 11 was admissible under the Rules of Evidence, and so we therefore assume it was 12 inadmissable hearsay. Instead, Defendant c ontinues to argue that the district court 13 abused its discretion in excluding the evid ence because its exclusion prevented him 14 from presenting a defense. However, as Defendant’s memorandum notes, it was 15 Defendant himself who chose not to pursue the defense. The district court stated that 16 Defendant could question the victim’s moth er about the alleged prior accusation, and 17 that it would reserve ruling on the admission of Goff’s testimony until the victim’s 184 mother testified. [MIO 10] Despite this, Defendant chose not to question the victim’s 1 mother on the subject. [MIO 10] When Defendant again moved for admission of 2 Goff’s testimony, the district court deniedits admission because the victim’s mother 3 had not been questioned about the issue. [MIO 10] Where the Rules of Evidence 4 otherwise would have prevented the ad mission of Goff’s testimony and where 5 Defendant chose not to take the opportunity to present evidence of his defense through 6 the witness he was suggesting had fabricated the story against him, we find no error 7 in the district court’s exclusion of Goff’s testimony. Defendant has presented this 8 Court with no authority from this or any other jurisdiction to support his argument that 9 when a defendant claims that an adult ha s manipulated a child into making a false 10 allegation, the defendant has a right to present extrinsic evidence of other false 11 allegations the adult has alle gedly made in other circumst ances unrelated to the case 12 being tried—particularly wher e, as here, the defendant d eclines to question the adult 13 about the other accusations. Where Defendant presents no such authority, we presume 14 that there is none. In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 15 (1984). 16 Defendant’s citations to cases discu ssing the general right to compulsory 17 process and the due process right to pr esent a defense are neither on point nor 185 analogous. Furthermore, Defendant does not assert that he preserved any argument 1 under the compulsory process or due pro cess clauses of the constitution or provide 2 authority that preservation of these argum ents was unnecessary. Defendant has failed 3 to demonstrate on appeal that the districtcourt abused its discretion in excluding 4 Goff’s testimony. See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 5 955 P.2d 683 (“Our courts have repeatedly he ld that, in summary calendar cases, the 6 burden is on the party opposing the proposed disposition to clearly point out errors in 7 fact or law.”). 8 Sufficiency of the Evidence 9 Defendant contends, pursuant to State v. Franklin , 78 N.M. 127, 428 P.2d 982 10 (1967), that there was insufficient evid ence to support his conviction for criminal 11 sexual contact of a child, since the victim’s story varied over time and since Defendant 12 believes the testimony of the State’s other w itnesses was conflicting. [DS 4-5] “In 13 reviewing the sufficiency of the evidence, we must view the evidence in the light most 14 favorable to the guilty verdict, indulging a ll reasonable inferences and resolving all 15 conflicts in the evidence infavor of the verdict.” State v. Cunningham , 2000-NMSC16 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 176 The State was required to prove that De fendant touched the victim’s penis and 1 that the victim was under the age of th irteen when the touching occurred. See NMSA 2 1978, § 30-9-13(C) (2003); UJI 14-925 NMRA. The victim testified that he was 3 eleven years old at the time of trial and that when he was in kindergarten, Defendant 4 came into his room and “touched my penis with his hand.” [RP 135] This evidence 5 was sufficient to establish the elements of criminal sexual contact of a child under 6 thirteen. To the degree that the victim’s story changed over time or the testimony of 7 the witnesses was in conflict, it was for th e judge as the fact-finder to resolve any 8 conflict in the testimony of the witnesses and to determine which testimony to credit. 9 See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. 10 Waiver of the Right to a Jury Trial 11 Prior to trial, while Defendant and hi s attorney were present in the room, 12 counsel for the State informed the judge thatdefense counsel and counsel for the State 13 had agreed that the case should be tried by the judge, rather than by a jury. [RP 106, 14 162-63] Defense counsel agreed that this was the agreement. [RP 163] The judge 15 then stated that the case could be trie d by the judge. [RP 106, 162-63] Defendant 16 asserts that the district court erred indenying him a new trial since there is no 177 evidence in the recordthat Defendant affirmatively and voluntarily waived his right 1 to be tried by a jury. [DS 4] 2 Constitutional rights may be waived, State v. Singleton , 2001-NMCA-054, ¶ 11, 3 130 N.M. 583, 28 P.3d 1124, and in this Court’s notice of proposed summary 4 disposition, we proposed to hold that Defendant waived his right to have his case tried 5 by a jury, rather than by a judge. We relied on Singleton , which stated that the right 6 to try a case before a jury was not the sort of constitutional right that needed to be 7 waived in writing and that it need not beshown that Defendant was advised on the 8 record regarding the waiver. See id. ( citing State v. Ciarlotta , 110 N.M. 197, 199-200, 9 793 P.2d 1350, 1352-53 (Ct. App. 1990), which he ld that a defendant was not required 10 to waive his right to a jury trial in writing orin person on the record in order to opt for 11 a bench trial rather than a jury trial in the district court on a de novo appeal after a 12 conviction in metropolitan court)

. We stated that to the degree that Defendant 13 asserted that his consent needed to beexpress and voluntary, we were unwilling to 14 conclude that Defendant did not give express and voluntary consent to his attorney off 15 the record simply because the judge did not engage in a colloquy on the record. 16 Where there was no evidence of record that Defendant’s consent was not express and 17 voluntary, we proposed to find no error on direct appeal. 188 In Defendant’s memorandum in opposition heresponds that the rule stated in 1 Singleton and Ciarlotta that the waiver of the right to be tried by a jury as opposed to 2 a judge need not be in writing or on the record is no longer good law after State v. 3 Padilla , 2002-NMSC-016, 132 N.M. 247, 46 P.3d 1247. [MIO 4] We disagree. In 4 Padilla , the issue before our Supreme Cour t was whether a defendant who was not 5 present during a critical stage of trial and who was also deprived of his right to 6 counsel during that stage, could effectivel y waive his right to presence and his right 7 to counsel by signing a waiver after the fact. Id. ¶¶ 3-5, 19. The Court concluded that 8 because the written waiver would have waiv ed the defendant’s right to presence, to 9 counsel, and to appeal the issue, the district court was obligated to hold a colloquy on 10 the record to ensure that the defendant’s waiver was knowing and voluntary. Id. ¶ 21. 11 Defendant does not expl ain why he believes Padilla is instructive in this case, other 12 than it involved a waiver of constitutional rights. However, as we noted in Singleton 13 The same procedure is not required for a valid waiver of all 14 constitutional rights. Some rights are considered so personal to the 15 defendant they necessitate inquiry into the individual defendant’s 16 decision-making process. These right s, such as the right to counsel, 17 require an on-the-record waiver fro m the defendant personally. Other 18 rights generally pertaining to the c onduct of trial may be waived through 19 counsel and without an inquiry on th e record into the validity of the 20 waiver. 219 2001-NMCA-054, ¶ 12 (citations omitted). As the decision to be tried by a judge, 1 rather than by a jury, is a right pertaining to the conduct of trial that may implicate 2 trial tactics, it is the sort of right that may be waived through counsel. See id. 3 Accordingly, we find no error in the district court’s refusal to grant Defendant a new 4 trial. 5 Claimed Error in the Admission of Evidence 6 Defendant asserts that the district court erred in admitting evidence that 7 Defendant believes in aliens. [DS 5] Defendant contends that this evidence was more 8 unfairly prejudicial than probative and should have been excluded pursuant to Rule 9 11-403 NMRA. [DS 6] 10 In this Court’s notice of proposed summary disposition, we stated that to the 11 degree that the evidence was inadmissible,“[i]n a bench trial, the trial court is 12 presumed to have disregarded improper evidence, and erroneous admission of 13 evidence is not reversible error unless it appears the trial court must have relied on it 14 in reaching its decision.” State v. Gutierrez , 1996-NMCA-001, ¶ 4, 121 N.M. 191, 15 909 P.2d 751 (internal quotation marks omitted). As there was nothing to suggest that 16 the district court relied on this evidence, we proposed to hold that any error in its 17 admission did not warrant reversal. In Defendant’s memorandum in opposition, he 1810 does not demonstrate that the district court relied on the evidence. Accordingly, even 1 if the evidence were inadmissible, its admission was not reversible error. 2 Therefore, for the reasons stated in this opinion and in our notice of proposed 3 summary disposition, we affirm. 4 IT IS SO ORDERED. 5

6 MICHAEL D. BUSTAMANTE, Judge 7 WE CONCUR: 8

9 CELIA FOY CASTILLO, Judge 10

11 ROBERT E. ROBLES, Judge 12