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 Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,873 9 MICHAEL C DE BACA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 12 Louis P. McDonald, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Susan Roth, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 22 Defendant appeals his convictions for criminal sexual penetration (CSP) and 23 kidnapping. We issued a calendar no tice proposing summary affirmance, and 242 Defendant has responded with a timely me morandum in opposition. We have duly 1 considered Defendant’s memorandum in oppos ition, and we remain unpersuaded. We 2 therefore affirm. 3 Defendant continues to argue that the district court improperly excluded a DNA 4 report from evidence. [MIO 2-6] The DNA testing was done on a sample of semen 5 taken from the victim’s vagina, and the re sults of the tests were inconclusive. [MIO 6 1-2] The forensic analyst who conducted th e testing testified that she could not 7 identify Defendant’s DNA on the semen samplebecause the sample was too small to 8 be tested. [MIO 1-2] Defendant argues that the district court erred in refusing to 9 admit the DNA report because it was material to his defense that hedid not have sex 10 with the victim. [MIO 2-6] We disagree. 11 “Rulings admitting or excluding evidence are generally reviewed for an abuse 12 of discretion.” State v. Campbell , 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 13 722. An abuse of discretion occurs when the ruling is clearly against the logic and 14 effect of the facts and circumstances of the case. “We cannot say the trial court 15 abused its discretion by its ruling unless we can characterize it as clearly untenable or 16 not justified by reason.” State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 17 P.2d 829 (filed 1998) (internal quotation marks and citation omitted). 183 The district court apparently refused to admit the DNA report as an exhibit 1 because it believed that it was hearsay, not covered by the business records exception. 2 [MIO 2] See Rule 11-803(F) NMRA (providing that records kept in the course of 3 regularly conducted business activity are not excluded by the hearsay rule). We 4 believe that, even if the DNA report wa s admissible under Rule 11-803(F), the DNA 5 report was not material to Defendant’s defense, and he was not prejudiced by 6 exclusion of the report. The results of the DNA tests on the semen sample were 7 inconclusive. The DNA report neither id entified nor excluded Defendant as the 8 source of the semen. The DNA report did not provide any evidence to support or to 9 contradict Defendant’s assertion that hedid not have sex with the victim. We 10 therefore do not believe that the DNA report was relevant. See Rule 11-401 NMRA 11 (defining relevant evidence as evidence ha ving any tendency to make the existence 12 of any material fact more probable or less probable than it would be without the 13 evidence). Accordingly, we find no error inthe district court’s exclusion of the DNA 14 report. See Rule 11-402 NMRA (stating that irrelevant evidence is generally 15 inadmissible). 16 Additionally, we believe that, even if th e district court erred in excluding the 17 report, any error was harmless. In State v. Balderama , our Supreme Court held that 18 “[e]rror in the exclusion of evidence in a criminal trial is prejudicial and not harmless 194 if there is a reasonable possibility that th e excluded evidence might have affected the 1 jury's verdict.” 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845. We do not 2 believe that exclusion of the DNA report coul d have contributed to the jury’s verdict. 3 Although the district court refused to allow the jury to see the DNA report, the analyst 4 who performed the DNA testing wa s a witness at trial, and she testified to the results 5 of the DNA testing. Defendant was able to argue that the DNA test was inconclusive 6 to the jury. Additionally, as discussed above , we believe the report was irrelevant. See 7 State v. Chavez , 2007-NMCA-162, ¶ 7, 143 N.M. 126, 173 P.3d 48 (holding any error 8 in the exclusion of a consumer product safety report was harmless where the report 9 was not material to any issue in the case). For these reasons, we affirm the district 10

court. 11 Defendant also argues that the evid ence was insufficient to support his 12 convictions for criminal sexual penetration and kidnapping. [MIO 6-7] “In 13 reviewing the sufficiency of the evidence, we must view the evidence in the light most 14 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 15 conflicts in the evidence in favor of the verdict.” State v. Cunningham , 2000-NMSC16 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Based on our review of the record, there was 17 evidence that Defendant forced the victim into the living r oom of her home, forced her 18 to engage in oral sex, for ced her into a bedroom of her home, and forced her to have 195 intercourse. [DS 2-3] We hold that this evidence is sufficient to support Defendant’s 1 convictions for criminal sexual penetration and kidnapping. See NMSA 1978, §§ 30- 2 9-11(A)&(E) (2009), 30-4-1 (2003). In his memorandum in opposition, Defendant 3 points to evidence supporting his version of ev ents and to lack of physical evidence 4 of CSP. [MIO 1] However, “[c]ontrary evidence supporting acquittal does not 5 provide a basis for reversal because the jury is free to reject Defendant’s version of 6 the facts.” Rojo , 1999-NMSC-001, ¶ 19. 7 For these reasons, we affirm Defendant’s convictions. 8 IT IS SO ORDERED

. 9

10 MICHAEL D. BUSTAMANTE, Judge 11 WE CONCUR: 12

13 JAMES J. WECHSLER, Judge 14

15 RODERICK T. KENNEDY, Judge 16