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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,354 4 ISRAEL BUSTILLOS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Reed Sheppard, District Judge 8 Gary K. King, Attorney General 9 Yvonne M. Chicoine, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 D. Chipman Venie 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 17 {1} On December 22, 2007, Defendant’s five-month-old daughter, Baby Geovanny, 182 died while in Defendant’s care. Baby Ge ovanny’s autopsy revealed she had died of 1 blunt force trauma to her head. Defendant was charged with one count of child abuse 2 resulting in death or great bodily harm, intentionally inflicted, negligently inflicted, 3 or negligently permitted, and an additional count of child abuse because the autopsy 4 revealed older injuries as well. The juryfound Defendant guilty of one count of child 5 abuse, negligently caused death or great bodily harm, in violation of NMSA 1978, 6 Section 30-6-1(D) (2009), and acquitted Defe ndant of the remaining charges. This 7 appeal followed. We affirm. 8 ANALYSIS 9 {2} Defendant raises the following seven i ssues on appeal:(1) the State failed to 10 provide sufficient evidence that Defendant negligently caused Baby Geovanny’s death 11 beyond a reasonable doubt; (2) the testimony of the supervising forensic pathologist 12 regarding Baby Geovanny’s autopsy violated the Confrontation Clause; (3) the trial 13 court erred in not permitting Defendant to introduce evid ence of pertinent character 14 traits; (4) the trial court erred in denying Defendant’s reque st for a continuance so that 15 his expert could testify in person; (5) the trial court erred in allowing the testimony of 16 a rebuttal witness; (6) the trial court erred in denying Defendant’s motion for a new 17 trial due the rebuttal witne ss’s alleged perjury; and (7) the prosecutor committed 18 reversible error under Bradyfor allegedly failing to produce exculpatory evidence. We 193 address each issue in turn below. 1 1. Sufficiency of the Evidence 2 {3} Defendant argues that the evidence presen ted at trial was insufficient to support 3 the guilty verdict for child abuse neglig ently causing Baby Geovanny’s death. After 4 an examination of the record , we conclude that the evidence was sufficient and affirm. 5 A. Facts 6 {4} On the morning of December 22, 2007, police responded to a 911 call that an 7 infant (Baby Geovanny) had stopped breathing. Paramedics were already present and 8 administering CPR on Baby Geovanny when poli ce arrived. Defendant told police that 9 he was caring for Baby Geovanny and his two- year-old son while his girlfriend, the 10 children’s mother, went to work. He said that Baby Geovanny had recently been 11 diagnosed with an ear infection and was acti ng fussy that morning. He also said that 12 he had given her a bath to try to sooth her and placed her in her crib, before cooking 13 breakfast for his son. Defendant told poli ce that he then realized that Baby Geovanny 14 had stopped crying. When he went to check on her, he found that she was not 15 breathing and was cold to the touch. He then called Baby Geovanny’s maternal 16 grandmother, Lucy Hermosillo, and toldher Baby Geovanny was not breathing. Ms. 17 Hermosillo asked him why he was calling her instead of 911. She then sped to 18 Defendant’s apartment. According to Ms. Hermosillo, it took her three to five minutes 194 to arrive, and evidence showed Defendant called 911 after she arri ved. Defendant told 1 police he had panicked. Ms. Hermosillo performed CPR until the paramedics arrived. 2 The attempts to resuscitate Baby Geovanny failed and she died at the scene. 3 {5} Baby Geovanny’s autopsy revealed that although the only sign of external 4 injury was a superficial scratch on her back by her neck that showed signs of healing, 5 she had several internal injuries that i ndicated she had suffere d head trauma. Her 6 internal injuries included a hemorrhage deep in her brain, a laceration or tear on her 7 brain, and two recent bruises on her skull. She also had older injuries, including 8 hemorrhages around her optic nerves that were covered in new blood indicative of 9 recent trauma on top of old injury, a subdural hematoma that was at least four days old 10 but also had fresh blood on it that could have come from the day she died, a brain 11 hemorrhage on the front part of her brain, a rib fracture callus, and a pelvic fracture 12 callus. 13 {6} The forensic pathologist from the Office of the Medical Investigator (OMI) that 14 supervised the autopsy, Dr. Michelle Barry-Aurelius, testified that in her opinion Baby 15 Geovanny died of blunt force trauma to the head and the manner of death was 16 homicide. She explained that shaking a baby, throwing a baby, or hitting a baby’s 17 head against something hard can cause optic nerve sheath hemorrhages and that 18 shaking a baby or a head impact could have caused the tear on her brain. She also 195 testified the dying brain cells she saw inBaby Geovanny’s brain indicated that Baby 1 Geovanny would have been unconscious or comatose within seconds of the head 2 trauma and that Baby Geovanny survived in this comatose state for a few hours before 3 dying. Approximately three and one-half hours passed from the time the mother left 4 for work and the time Defendant called 911 to report that Baby Geovanny had stopped 5 breathing. 6 B. Standard of Review 7 {7} In examining Defendant’s claim, we review “whether substantial evidence 8 exists of either a direct or circumstantial nature to support a verdict of guilty beyond 9 a reasonable doubt with respect to eachelement of the crime charged.” State v. 10 Chavez , 2007-NMCA-162, ¶ 9, 143 N.M. 126, 173 P.3d 48. In making this 11 determination, “we must view the evidence in the light most favorable to the guilty 12 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 13 in favor of the verdict.” State v. Quinones , 2011-NMCA-018, ¶ 37, 149 N.M. 294, 248 14 P.3d 336 (internal quotation marks and citation omitted); accord State v. Reyes , 2002- 15 NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948, abrogated on other grounds by Allen 16 v. LeMaster , 2012-NMSC-001, 267 P.3d 806. “W e do not weigh the evidence or 17 substitute our judgment for that of the fact finder so long as there is sufficient 18 evidence to support the verdict.” Chavez , 2007-NMCA-162, ¶ 9 (alteration, internal 196 quotation marks, and citation omitted). 1 C. Discussion 2 {8} Defendant was convicted of criminally negligent child abuse resulting in death 3 or great bodily harm for Baby Geovanny’s d eath. Child abuse “consists of a person 4 knowingly, intentionally or negligently, and without justifiable cause, causing or 5 permitting a child to be . . . placed in a s ituation that may endanger the child’s life or 6 health.” See NMSA 1978, § 30-6-1(D)(1) (2009). In this context, “‘negligently’ 7 refers to criminal negligence and means that a person knew or should have known of 8 the danger involved and acted with a reckless di sregard for the safety or health of the 9 child.” Section 30-6-1(A)(3). 10 {9} We review Defendant’s claim of insuffi cient evidence through the lens of the 11 jury instructions for negligent child abus e resulting in death or great bodily harm. See 12 Quinones , 2011-NMCA-018, ¶ 38 (“The sufficiency of the evidence is assessed 13 against the jury instructions because they become the law of the case.”). In order to 14 find Defendant guilty of this count, the ju ry was required to fi nd that: (1) Defendant 15 caused Baby Geovanny “to be placed in a situation which endangered the life or 16 health of [Baby Geovanny]”; (2 ) Defendant “acted with reckless disregard and without 17 justification”; requiring a finding that Defe ndant knew or should have known that his 18 “conduct created a substantial and foreseeable ri sk”; that he disregarded that risk and 197 that he “was wholly indifferent to the c onsequences of the conduct and to the welfare 1 and safety of [Baby Geovanny]”; (3) “[Defendant’s] actions or failure to act resulted 2 in the death of or great bodily harm to [Baby Geovanny]”; (4 ) [Baby Geovanny] was 3 under the age of 18”; and (5 ) “This happened inNew Mexico on or about the 22nd 4 day of December, 2007.” See UJI 14-602 NMRA. 5 {10} Defendant contends that there was in sufficient evidence to support a finding 6 that he was “ whollyindifferent to the consequences of the conduct and to the welfare 7 and safety of [Baby Geovanny]” because he took at least four different actions trying 8 to save her. Defendant then describes the actions he took once he discovered that Baby 9 Geovanny was not breathing . He insists that the jury must have concluded that 10 Defendant did nothing when he found Baby Geovanny in medi cal distress in order to 11 find him guilty. He intimates his behavior amounted to ordinary negligence, which he 12 points out is not sufficient. See State v. Massengill , 2003-NMCA-024, ¶ 45, 133 N.M. 13 263, 62 P.3d 354 (“Our Supreme Court has determined that ‘the child abuse statute 14 contains no indication that the [L]egislature intended felony punishment to attach to 15 ordinary negligent conduct.’” (quoting Santillanes v. State , 1993-NMSC-012, ¶ 31, 16 115 N.M. 215, 849 P.2d 358)). However, De fendant’s arguments overlook the fact 17 that the jury may not have necessarily considered any of his actions after he found 18 Baby Geovanny unresponsive in reaching its guiltyverdict. He was not convicted of 198 child abuse due to medical neglect resulting in death or great bodily harm, where his 1 actions after finding his child in need of me dical attention would have been relevant. 2 See, e.g., State v. Nichols , 2013-NMCA-___, ¶ 1, ___ P. 3d ___ (No. 30,783, Dec. 20, 3 2013) (affirming the de fendant’s conviction for child abuse due to medical neglect 4 resulting in death or great bodily harm in case where eviden ce showed that the 5 defendant knew or should have known his son needed medical treatment, failed to 6 obtain medical treatment, and that failure caused the infant’s death or great bodily 7 harm). 8 {11} In this case, the jury heard testimony that: Baby Geovanny died from a blunt 9 force injury to her head, which could have resulted from a blow, being struck by an 10 object, falling on an object, or being violentlyshaken; her brain injury was inflicted 11 with the force of falling out of a building over three stories high; the manner of death 12 was homicide; due to her brain injuryBaby Geovanny would have “immediately to 13 within seconds be either comatose or difficult to arouse”; Baby Geovanny would have 14 survived in this comatose state for a minimum of two hours due to the hypoxic injuries 15 in her brain; Baby Geovanny was awake wh en her mother left for work; Baby 16 Geovanny was left in De fendant’s care for the three hours prior to her death, and that 17 the only other person present during this time, Defendant’s two-year-old son, could 18 not have caused Baby Geovanny’s injuries under the circumstances. This is all 199 circumstantial evidence that Defendant wa s responsible for the injuries to Baby 1 Geovanny that killed her. The sheer volume and severity of the injuries support the 2 conclusion that he was wholly indifferent toher welfare and the consequences of his 3 actions when he inflicted the injuries. Viewing this evidence in the light most 4 favorable to the verdict, we conclude th at a reasonable jury could have found that 5 Defendant committed criminally negligent child abuse resulting in Baby Geovanny’s 6 death. 7 2. Dr. Barry’s Testimony and the Confrontation Clause 8 {12} Defendant contends that because another pathologist, Dr. Timothy Williams, 9 actually performed Baby Geovanny’s autopsy, Dr. Barry was merely parroting another 10 expert’s findings and conclusions in vi olation of his Sixth Amendment right to 11 confront the witnesses against him. See U.S. Const. amend. VI (stating that every 12 criminal defendant “shall enjoy the right . . . to be confrontedwith the witnesses 13 against him”). The State responds that Defendant’s right of confrontation was not 14 violated because Dr. Barry testified to her own expert opinion based upon her personal 15 knowledge and review of the evidence. After reviewing the record, we agree with the 16 State. 17 A. Facts 18 {13} Dr. Williams was a forensic pathology fellow under the supervision of Dr. 1910 Barry when he performed Baby Geovanny’ s autopsy. Dr. Williams testified at 1 Defendant’s grand jury indictment; he did not testify at Defendant’s trial. Instead, Dr. 2 Barry testified at trial re garding the injuries found in Baby Geovanny’s autopsy and 3 her opinion as to the cause and manner of death. 4 B. Standard of Review 5 {14} Defendant’s Confrontation Clause claim is an issue of law that we review de 6

novo. State v. Lasner , 2000-NMSC-038, ¶ 24, 129 N.M. 806, 14 P.3d 1282. 7 C. Discussion 8 {15} The Confrontation Clause bars out-of-c ourt testimonial hearsay “‘unless the 9 witness is unavailable and th e defendant had a prior opportunity to cross-examine the 10 witness.’” State v. Cabezuela , 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 11 (quoting State v. Aragon , 2010-NMSC-008, ¶ 6, 147 N.M . 474, 225 P.3d 1280). “The 12 controlling question in a case involving an alternative expert witness . . . is whether 13 the analyst’s testimony ‘was an expressi on of his own opinion or whether he was 14 merely parroting’ or ‘merely repeating the contents of [the] report or the opinion of 15 the analyst who is unavailable for cross-examination.’” State v. Gonzales , 16 2012-NMCA-034, ¶ 16, 274 P.3d 151 (quoting Aragon , 2010-NMSC-008, ¶ 26). 17 Thus, whether Defendant’s right to confrontation was violated depends on whether 18 Dr. Barry related testimonial statements by Dr. Williams. See State v. Navarette , 1911 2013-NMSC-003, ¶ 7, 294 P.3d 435 (deciding th at the defendant’s Confrontation 1 Clause claim rested on whether the testimony of the forensic pathologist who did not 2 perform the autopsy related any testimoni al statements by the pathologist who 3 performed the autopsy). 4 {16} In Cabezuela , our Supreme Court addressed a si milar situation, also involving 5 Dr. Barry, as the testifying expert in her capacity as the supervising forensic 6 pathologist, while a different forensic pathologist fellow, Dr. Bracey, actually 7 performed the autopsy. 2011-NMSC-041, ¶ 50. The CabezuelaCourt ruled that there 8 was no error in admitting Dr. Barry’s testimony because the record showed “Dr. Barry 9 had personal knowledge of and participated in making the autopsy report findings by 10 virtue of her own independent participation in the micr oscopic exam, examination of 11 the body and the injuries, and examination of all the photographs.” Id. ¶ 52. The 12 Court noted that the defendant “had a full and fair opportunity to cross-examine Dr. 13 Barry to determine whether Dr. Barry had personal, first-hand knowledge of how Dr. 14 Bracey conducted the autopsy and what Dr . Bracey found by observing the autopsy.” 15 Id. 16 {17} By contrast, our Supreme Court found a Confrontation Clause violation when 17 the testifying forensic pathologist who did not perform the autopsy “relat[ed] 18 subjective observations recorded in an autopsy report as a basis for the pathologist’s 1912 trial opinions, when the pathologist neither participated in nor observed the autopsy.” 1 Navarette , 2013-NMSC-003, ¶ 1 (emphasis added). In Navarette , the forensic 2 pathologist’s testimony as to his own conc lusions based on his own observations from 3 photographs of entry and exit wounds was permitted. Id. ¶ 22 (explaining that “an 4 expert witness may express anindependent opinion regardi ng his or her interpretation 5 of raw data without offending the Confront ation Clause”). However, a Confrontation 6 Clause violation resulted whenhe related other pathologi st’s finding of the absence 7 of soot or stippling on the decedent because“[s]uch observations are not based on any 8 scientific technique that produces raw data, but depend entirely on the subjective 9 interpretation of the observer[.]” Id. ¶ 21. 10 {18} Defendant contends that the trial court erred by permitting Dr. Barry to 11 essentially read the contents of the autopsy report into the record in violation of his 12 right to confrontation. The four cases Defendant cites in support of this statement, 13 without explanation or argument, do not s upport his assertion that his confrontation 14 right was violated. See Gonzales , 2012-NMCA-034, ¶ 25 (refu sing “to toss a blanket 15 ban on the testimony of an expert witness about the circumstances of the death of the 16 victim in those instances wh en the expert did not perform the autopsy” and explaining 17 that the admissibility in such situations depends on whether the testifying expert 18 permissibly forms an independent opi nion based on the underlying raw data or 191 The autopsy report itself was not admitted in the present case. 19 13 impermissibly parrots the findings and conclusions of another expert); Cabezuela , 1 2011-NMSC-041, ¶ 52 (discussed above); State v. Jaramillo , 2012-NMCA-029, ¶¶ 1, 2 16, 272 P.3d 682 (holding that the autopsy report itself is inadmissible in cases where 3 the doctor who actually performed the autopsy does not testify), 1 cert. denied , 2012- 4 NMCERT-002, 291 P.3d 1290; State v. Delgado , 2010-NMCA-078, ¶ 4, 148 N.M. 5 870, 242 P.3d 437 (concluding that the testimony of an analyst was improperly 6 admitted when it was “not clear that sh e was stating her own opinion based on the 7 underlying data and [the other analyst’s] notes , but rather relaying [the other analyst’s] 8 opinion and stating her approval of it”). 9 {19} Here, Dr. Barry participated in the au topsy in the same manner as she did in 10 Cabezuela . She testified that in her role as the supervising forensic pathologist, she 11 reviews the entire case with the fellow, examining the external body together, noting 12 any injuries, and reviewing all of the photos and microscopics so that the resulting 13 “autopsy report is a report of ours together .” Dr. Barry explaine d that she performed 14 an external examination of Baby Geovanny with Dr. Williams and described the skin 15 scrape she observed. She also testified that she examined the inside of Baby 16 Geovanny’s body, personally observing the rib fracture, petechiae on the thymus, 17 hemorrhages around the optic nerves, subdural hematoma on the dura of the brain, and 1814 the subarachnoid hemorrhage on the brain. Dr . Barry also testifie d that she examined 1 x-rays, photographs, and microscopics slides of Baby Geovanny’s injuries. 2 {20} Defendant’s lengthy description of all of the tasks Dr. Barry did not perform 3 during Baby Geovanny’s autopsy is irrelevant to this inquiry. How much she 4 participated could go to the weight of her testimony, not its admissibility. As we 5 stated, the key question is whether Dr . Barry related any of Dr. Williams’s 6 observations or conclusions or whether sh e based any of her ow n conclusions on any 7 of Dr. Williams’s subjective observations. Defendant cross-examined Dr. Barry at 8 length about her observations and conclusions, and indeed attempted to discredit her 9 medical opinion in several instances. Although Defendant makes the conclusory 10 statement that “Dr. Barry merely ‘parroted’ Dr. Williams’s findings into evidence,” 11 he fails to cite to any instance in the record where her testimony consisted of Dr. 12 Williams’s observations and conclusions rath er than her own, and we could find none. 13 Because our review of the reco rd demonstrated that Dr. Barry testified as to her own 14 personal observations and opini ons and Defendant has not poi nted to anything in the 15 record that shows otherwise, we concludethere was no error in admitting Dr. Barry’s 16 testimony. 17 3. Exclusion of Character Evidence 18 {21} Defendant also argues that the trial c ourt erred in not permitting Defendant to 1915 introduce evidence of certain character traits. 1

A. Facts 2 {22} Defendant filed a motion in limine to determine the admissibility of substantive 3 character evidence through tw enty character witnesses who would testify as to 4 Defendant’s possession or lack of up to thirteen character traits. The State responded 5 with a motion in limine to restrict the scopeand quantity of the character evidence. At 6 a hearing addressing these motions, the trial court ruled that three of the proposed 7 character traits were pertinent: non-abusiv eness, soft-heartedness for children, and 8 calmness toward children, and found that the other character traits recited in 9 Defendant’s motion were not pertinent and would not be allowed. 10 B. Standard of Review 11 {23} “[T]he admission or exclusion of char acter testimony is committed to the sound 12 discretion of the district court.” State v. Ruiz , 2007-NMCA-014, ¶ 44, 141 N.M. 53, 13 150 P.3d 1003. We therefore review the trial court’s exclusion of certain character 14 evidence for an abuse of discretion. Id. 15 C. Discussion 16 {24} “Generally speaking, evidence of a pertin ent trait of character of the accused 17 in a criminal case may be introduced through reputation or opinion testimony.” Ruiz , 1816 2007-NMCA-014, ¶ 45 (internal quotation marks and citations omitted); see also State 1 v. Martinez , 2006-NMCA-148, ¶ 13, 140 N.M. 792, 149 P.3d 108 (“A criminal 2 defendant is allowed to introduce pertin ent traits of his good character under the 3 exception in Rule 11-404(A)(1) [NMRA] out of concern for fairness.”), aff’d 2008- 4 NMSC-060, 145 N.M. 220, 195 P.3d 1232; Ru le 11-404(A)(2); Rule 11-405(A) 5 NMRA. “[P]roof of character, to be relevant , must be confined to the nature of the 6 offense under charge and bear some pertinent analogy and reference to it.” State v. 7 Martinez , 2008-NMSC-060, ¶ 34, 145 N.M. 220, 195 P.3d 1232 (internal quotation 8 marks and citation omitted). 9 {25} Defendant asserts that the denied character evidence was pertinent to rebut the 10 State’s theory of the crime. He argues th at he should have been able to introduce 11 evidence of his patience and l ack of being quick to anger to rebut the theory that he 12 lost his patience with Baby Geovanny becauseshe was fussy and either intentionally 13 or negligently killed her. Assuming that evidence that Defendant was patient and 14 even-tempered was relevant, it is within th e discretion of the trial court to exclude 15 relevant evidence if it is needlessly cu mulative, and the court permitted testimony 16 regarding his calmness and non-abusiveness. See Rule 11-403 NMRA. 17 {26} In addition, in order to respond to the St ate’s implication that Defendant’s delay 18 in calling 911 evidenced his guilty mind and contemplation of covering up his crime, 1917 Defendant argues it was erro r to deny evidence that he is a simple person who does 1 not plot and scheme. Defendant does not offer any explanation for how these traits are 2 pertinent to the crime of child abuse ne gligently resulting in death or great bodily 3 harm. Under these circumstan ces, we conclude that the trial court did not abuse its 4 discretion. 5 4. Denial of Defendant’s Motion for a Continuance 6 {27} Defendant next contends that the trial court erred in denying his motion to 7 continue the trial so that his expert w itness could testify in-person. We disagree. 8 A. Facts 9 {28} Jury selection in this case began on Thursday, February 11, 2010, and the trial 10 was scheduled to run through Friday, February 26, 2010. Defendant had planned to 11 call his expert, Dr. John Plunkett, to testif y on Friday, February 19th. On February 12 16th, when the State indicated it was not surethat it would be finished with its case 13 by Friday, the parties and the court decided it would be be st to postpone Dr. Plunkett’s 14 testimony to the following Monday. When the court questioned whether defense 15 counsel had set Dr. Plunkett’s testimony fo r Monday, defense c ounsel responded that 16 he planned to wait until Monday to inform Dr. Plunkett when to come. At no time 17 during these discussions regarding moving Dr. Plunkett’s testimony did defense 18 counsel inform the court that Dr. Plunkett would not be able to testify during the 1918 second week of trial. 1 {29} As it turned out, Dr. Plunkett planned to attend and speak at a conference in 2 Seattle, Washington, during the second week of trial. As a result of Dr. Plunkett’s 3 scheduling conflict, Defendant filed a motion requesting to recess the trial from 4 February 23, 2010, to Marc h 1, 2010, to allow time for Dr. Plunkett to testify in 5 person. In the motion, Defendant stated th at he was “willing to entertain almost any 6 other solution to this problem other than a forced resting of his case” including Dr. 7 Plunkett testifying by phone or by video conference. Defense counsel told the court 8 that video conferencing Dr. Plunkett’s tes timony would not be something he would 9 be “in a position to object to.” He also c onceded that he had created the problem. 10 {30} The trial court refused to postpone the trial. However, it did accept Defendant’s 11 proposed remedy to arrange fo r Dr. Plunkett to testify via video conference. The State 12 advised the court that Defendant needed to waive Dr. Plunkett’s personal appearance. 13 Defense counsel stated he was not aware of that requirement, but responded “I want 14 [the video conference testimony] to happen. So to the extent I have to waive anything 15 to make it happen, I’m going to waive it.” Ag ain, at the State’s urging and after giving 16 defense counsel time to confer with Defendant, the court addressed Defendant 17 personally about waiving Dr. Plunkett’s personal appearance, and Defendant agreed 18 to waive Dr. Plunkett’s personal appearance. 1919 B. Standard of Review 1 {31} “The grant or denial of a motion for a continuance rests within the sound 2 discretion of the trial court, and the burden of establishing an abuse of discretion rests 3 with the defendant.” State v. Torres , 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 4 20 (internal quotation marks and citation omitted). “An abuse of discretion occurs 5 when the ruling is clearly against the logi c and effect of the facts and circumstances 6 of the case. We cannot say the trial court abused its di scretion by its ruling unless we 7 can characterize it as cl early untenable or not justified by reason.” State v. Salazar , 8 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135 (internal quotation marks and 9 citations omitted). “[The d]efendant must establish not only an abuse of discretion, 10 but also that the abuse was to the injury of the defendant.” Id. (internal quotation 11 marks and citation omitted); see also State v. Salazar , 2006-NMCA-066, ¶ 21, 139 12 N.M. 603, 136 P.3d 1013 (“The trial court has broad discretion in granting or denying 13 a motion for a continuance, and absent a demonstrated abuse resulting in prejudice to 14 the defendant, there is no ba sis for reversal.” (internal quotation marks and citation 15 omitted)). 16 C. Discussion 17 {32} In evaluating the denial of a motion to continue, we review whether the trial 18 court considered a number of factors, which we refer to as the Torres factors. 1999- 1920 NMSC-010, ¶ 10. Although not exclusive, id. ¶ 15, the Torres factors include 1 the length of the requested delay, the likelihood thata delay would 2 accomplish the movant’s objectives , the existence of previous 3 continuances in the same matter, the degree of inconvenience to the 4 parties and the court, the legitimacy of the motives in requesting the 5 delay, the fault of the movant in causing a need for the delay, and the 6 prejudice to the movant in denying the motion. 7 Id. ¶ 10. 8 {33} The record demonstrates that the trial court considered all of the Torres factors, 9 and gave the following reasons for denying th e continuance: the issue could have been 10 avoided had defense counsel arranged for Dr. Plunkett to te stify on Friday, February, 11 19th, as planned; Dr. Plunkett could have testified out of order, which was not 12 requested, or he could havetestified on Monday, February 22nd, but the court was not 13 notified of a problem until late in the afternoon on February 22nd; that there have 14 been a number of continuances in this matter previously, with the last one at 15 Defendant’s request in order to arrange for his experts to tes tify. In addition, the court 16 had a murder trial scheduled for March 1st, which would have to be postponed; there 17 were already a number of continuances in th at matter; that defendant had the right to 18 a speedy trial; and the prosecutor assigned to that case was being transferred to 19 another district at the end of that week-l ong trial. Considering all of the above reasons 20 for the trial court decision, we cannot ch aracterize it “as clearly untenable or not 21 justified by reason.” See Salazar , 2007-NMSC-004, ¶ 10. 2221 {34} Moreover, the record does not support a finding of prejudice. Defendant 1 implies he was prejudiced by the court depriving him the opportunity to present his 2 witness in-person. Even if the trial court’s failure to rearrange its docket so that Dr. 3 Plunkett could testify in-person could be construed as prejudicial, Defendant cannot 4 complain. See State v. Handa , 1995-NMCA-042, ¶ 35, 120 N.M. 38, 897 P.2d 225 5 (“To allow a defendant to i nvite error and to subsequently complain about that very 6 error would subvert the orderl y and equitable administrati on of justice.” (alterations, 7 internal quotation marks, and citation omitted)). We conc lude Defendant has not met 8 his burden of establishing that the trial court abused its discretion. 9 5. Dr. Carole Jenny’s Testimony as a Rebuttal Witness 10 {35} Defendant raises three points of erro r related to the testimony by Dr. Carole 11 Jenny, whom the State called as a witne ss to rebut the testimony of Defendant’s 12 expert, Dr. Plunkett. In the first point, Defe ndant argues that the trial court erred in 13 permitting Dr. Jenny to testify as she was not a “true” rebuttal witness. 14 A. Facts 15 {36} The State advised Defendant prior to trial of its intent to call Dr. Jenny, an 16 expert in child abuse pediatrics, as a rebuttal witness to the testimony of Dr. Plunkett. 17 Defendant objected to the admissibility of her testimony, arguing she was not a true 18 rebuttal witness, and demande d an offer of proof by the State on what new matters 1922 were raised by Dr. Plunkett that required rebutting by the State. At the trial court’s 1 request, the State made a proffer, detailing the points from Dr. Plunkett’s testimony 2 the State planned to rebut through Dr. Je nny. The court ruled that Dr. Jenny was 3 allowed to testify as a rebuttal witness for the State. 4 B. Discussion 5 {37} “Genuine rebuttal evidence is not simplya reiteration of evidence in chief but 6 consists of evidence [o]ffered in reply to new matters.” State v. Manus , 1979-NMSC7 035, ¶ 38, 93 N.M. 95, 597 P. 2d 280 (internal quotation marks and citation omitted), 8 overruled on other grounds by Sells v. State , 1982-NMSC-125, 98 N.M. 786, 653 P.2d 9 162. “The State is entitled to correct false impressions given to a jury by the defense 10 through rebuttal testimony.” State v. Simonson , 1983-NMSC-075, ¶ 31, 100 N.M. 11 297, 669 P.2d 1092. “Determining what is true rebuttal evidence, however, can be 12 difficult. Frequently true rebuttal evidence will, in some degree, overlap or coalesce 13 with the evidence in chief. Therefore, the question of admissi bility of evidence on 14 rebuttal rests largely on the trial court’s discretion.” State v. Dominguez , 2007- 15 NMSC-060, ¶ 26, 142 N.M. 811, 171 P.3d 750 (internal quotation marks and citation 16 omitted), holding modified on other grounds by State v. Garcia , 2011-NMSC-003, 17 149 N.M. 185, 246 P.3d 1057. We will not disturb the admission of rebuttal evidence 18 on appeal “absent an abuse of that discretion.” Id. ¶ 25. 1923 {38} The State asserts that Defendant’s claim is unsupported by argument and should 1 therefore be deemed abandoned. We agree. De fendant fails to cite to any point in the 2 record to support his conclusory statement that “Dr. Jenny added nothing in rebuttal.” 3 See Muse v. Muse , 2009-NMCA-003, ¶ 72, 145 N.M . 451, 200 P.3d 104 (refusing to 4 respond to appellant’s “surface presentation” and stating that “[w]e will not search the 5 record for facts, arguments, and rulings inorder to support generalized arguments”). 6

6. Dr. Jenny’s Alleged Perjury 7 {39} In Defendant’s second point of error related to Dr. Jenny’s testimony, he argues 8 that the trial court erred in denying his mo tion for a new trial on the ground that Dr. 9 Jenny had perjured herself by te stifying that she had reviewedall of the slides retained 10 in the case. 11 A. Facts 12 {40} OMI prepared fifteen slide blocks containing microscopics of Baby Geovanny’s 13 tissues showing her injuries. These are the slides that Dr . Barry reviewed in reaching 14 her opinions. On February 2, 2010, the court ordered OMI to send five of the slide 15 blocks to Defendant’s expert, Dr. Plunkett. These were the original and only slide 16 blocks OMI possessed. Under c ourt order, the slides were supposed to be returned to 17 OMI by February 12, 2010, so that they would be available during the trial. On 1824 February 23, 2010, the State had informed the trial court that OMI had not received 1 the slides. Defense counsel assured the court that they had been sent via overnight 2 mail and the problem was “on me.” 3 {41} On February 24, 2010, Dr. Jenny flew into Albuquerqueand went to the OMI 4 to review the slides. Dr. Jenny testified the next day. In response to the State’s 5 question about what she had done in order to prepare her testimony, Dr. Jenny 6 testified that she “went to [OMI] and looked at all the pathological slides that were 7 retained from the case” on the previous evening. Prior to that, she had only read the 8 report on the slides, but had not actually reviewed the slides themselves. 9 {42} In fact, when Dr. Jenny reviewed the slid es at OMI, the five slide blocks that 10 OMI had sent to Defendant’s experts s till had not been returned as promised. 11 Defendant’s expert had sent the slides to defense counselrather than to OMI, but there 12 is no evidence in the record indicating whendefense counsel became aware that there 13 was a package for him at the pos t office waiting to be picked up. 14 {43} The State told defense counsel on Marc h 1, 2010, that OMI had informed the 15 State that the slide blocks had not ye t been returned. Defendant reported this 16 information to the court and signaled his intent to move for a new trial based on this 17 issue if the jury returned a guilty verdic t. When the guilty verdict was returned, 18 Defendant filed a motion for a new trial based, in part, on Dr. Jenny’s alleged perjury. 1925 The trial court found that there was “no evidence that Dr. Jenny committed perjury” 1 and denied the motion. We affirm. 2 B. Standard of Review 3 {44} “The trial court has broad discretion in granting or denying a motion for new 4 trial, and such an order will not be revers ed absent clear and manifest abuse of that 5 discretion.” State v. Guerra , 2012-NMSC-027, ¶ 18, 284 P.3d 1076 (internal 6 quotation marks and citation omitted); see also State v. Huber , 2006-NMCA-087, ¶ 7 27, 140 N.M. 147, 140 P.3d 1096 (“We will not di sturb the trial court’s denial of a 8 motion for a new trial unless the ruling is arbitrary, capricious or beyond reason.” 9 (internal quotation marks and citation omitted)). Again, we will not find an abuse of 10 discretion unless the trial court decision “is cl early against the logi c and effect of the 11 facts and circumstances of the case” and therefore “clearly untenable or not justified 12 by reason.” Salazar , 2007-NMSC-004, ¶ 10. 13 C. Discussion 14 {45} “Perjury consists of making a false st atement under oath, affirmation or penalty 15 of perjury, material to the issue or matter involved in the course of any judicial . . . 16 proceeding or matter, knowing such statement to be untrue.” NMSA 1978, § 30- 17 25-1(A) (2009). Although “a de fendant should be granted a new trial if perjury of a 18 material witness against him is later discovered” it is imperative that courts “act with 1926 great reluctance and with special care and caution before accepting the truth of a claim 1 of perjury.” State v. Betsellie , 1971-NMSC-076, ¶ 12, 82 N.M. 782, 487 P.2d 484. 2 The evidence must “affirmatively establish the perjury in such clear and convincing 3 manner as to leave no room for reasonable doubt that perjury was committed.” Id. 4 5 {46} Defendant argues that the trial court erred in denying his motion for a new trial 6 based on Dr. Jenny’s alleged perjury. His argument appears to be solely based on the 7 fact that Dr. Jenny said she saw all the slides retained in the case when in fact she only 8 saw the slides in OMI’s possession and OMI did not have all of the slides in its 9 possession. The trial court found that Dr. Je nny testified that she had reviewed all of 10 the slides “that were retained from the case” and that OMI had not “retained” the 11 missing slides since it had sent them to th e defense expert. However, even if her 12 statement could be construed to be factually untrue, it does not constitute perjury 13 unless she “[knew] such statement to be untrue” when she said it. Section 30-25-1(A). 14 There is no evidence in the record that Dr. Jenny was not aware she had not seen all 15 of the slides in the case. Defendant fails to meet his burden, pointing to no evidence, 16 let alone “clear and convinci ng” evidence, that perjury was committed. The trial court 17 did not abuse its discretion in denyi ng Defendant’s motion for a new trial. 18 7. Exculpatory Evidence 1927 {47} Finally, Defendant argues that the distri ct court erred in denying his motion for 1 a new trial based on the State’s alleged Brady violation. 2 A. Facts 3 {48} In addition to the perjury allegations, Defendant’s motion for a new trial also 4 set forth grounds for a new trial arguing thatif the State knew that Dr. Jenny had not 5 reviewed all of the slides, it was required to disclose that information prior to Dr. 6 Jenny’s testimony. The trial court found that there was “nothing to indicate” that the 7 State had withheld information about th e missing slides from Defendant and denied 8 the motion on this ground as well. 9 B. Standard of Review 10 {49} As we did for the previous issue, we review the denial of a motion for a new 11 trial for an abuse of discretion. Guerra , 2012-NMSC-027, ¶ 18. 12 C. Discussion 13 {50} Defendant’s argument rests on the State’s duty to turn over exculpatory 14 evidence to the defendant in a criminal case. See Rule 5-501(A)(6) NMRA (“[T]he 15 state shall disclose or make available to the defendant . . . any material evidence 16 favorable to the defendant which the state is required to produce under the due process 17 clause of the United States Constitution.”); Brady v. Maryland, 373 U.S. 83, 87 (1963) 18 (holding that “the suppression by the prosecu tion of evidence favorable to an accused 1928 upon request violates due process where the ev idence is material either to guilt or to 1 punishment”). He begins by asserting, “If the State knew, prior to her testimony, that 2 Dr. Jenny had not reviewed ‘all the slides,’ the State was required to turn over that 3 information prior to Dr. Jenny’s examination. ” (Emphasis added.) And he concludes 4 the discussion on this issu e by stating, “The State knew that Dr. Jenny had not 5 reviewed all of the slides.” At no point in between does Defendant point to any 6 evidence in the record that would support th e transition from mere speculation to fact. 7 He thus fails to rebut the district court’ s finding that there wa s nothing to show that 8 the State knew prior to Dr. Jenny’s testimony that she had not reviewed all of the 9 slides in the case. Therefore, Defendant has not met his burden and we again 10 conclude the trial court did not abuse its discretion. 11 CONCLUSION 12 {51} The trial court is affirmed. 13 {52} IT IS SO ORDERED. 14

_____________________________ 15 MICHAEL E. VIGIL, Judge 1629 WE CONCUR: 1

___________________________________ 2 CYNTHIA A. FRY, Judge 3

_________________________________ 4 LINDA M. VANZI, Judge 5