1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see

2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please

3 also note that this electronic memorandum opinion may contain computer-generated errors or other

4 deviations from the official paper version filed by the Court of Appeals and does not include the

5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,873

10 MICHAEL C DE BACA, 

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 

13 Louis P. McDonald, District Judge

14 Gary K. King, Attorney General 

15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender

18 Susan Roth, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.

23 Defendant appeals his convictions for criminal sexual penetration (CSP) and

24 kidnapping. We issued a calendar notice proposing summary affirmance, and
2

1 Defendant has responded with a timely memorandum in opposition. We have duly

2 considered Defendant’s memorandum in opposition, and we remain unpersuaded. We

3 therefore affirm.

4 Defendant continues to argue that the district court improperly excluded a DNA

5 report from evidence. [MIO 2-6] The DNA testing was done on a sample of semen

6 taken from the victim’s vagina, and the results of the tests were inconclusive. [MIO

7 1-2] The forensic analyst who conducted the testing testified that she could not

8 identify Defendant’s DNA on the semen sample because the sample was too small to

9 be tested. [MIO 1-2] Defendant argues that the district court erred in refusing to

10 admit the DNA report because it was material to his defense that he did not have sex

11 with the victim. [MIO 2-6] We disagree.

12 “Rulings admitting or excluding evidence are generally reviewed for an abuse

13 of discretion.” State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d

14 722. An abuse of discretion occurs when the ruling is clearly against the logic and

15 effect of the facts and circumstances of the case. “We cannot say the trial court

16 abused its discretion by its ruling unless we can characterize it as clearly untenable or

17 not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971

18 P.2d 829 (filed 1998) (internal quotation marks and citation omitted).
3

1 The district court apparently refused to admit the DNA report as an exhibit

2 because it believed that it was hearsay, not covered by the business records exception.

3 [MIO 2] See Rule 11-803(F) NMRA (providing that records kept in the course of

4 regularly conducted business activity are not excluded by the hearsay rule). We

5 believe that, even if the DNA report was admissible under Rule 11-803(F), the DNA

6 report was not material to Defendant’s defense, and he was not prejudiced by

7 exclusion of the report. The results of the DNA tests on the semen sample were

8 inconclusive. The DNA report neither identified nor excluded Defendant as the

9 source of the semen. The DNA report did not provide any evidence to support or to

10 contradict Defendant’s assertion that he did not have sex with the victim. We

11 therefore do not believe that the DNA report was relevant. See Rule 11-401 NMRA

12 (defining relevant evidence as evidence having any tendency to make the existence

13 of any material fact more probable or less probable than it would be without the

14 evidence). Accordingly, we find no error in the district court’s exclusion of the DNA

15 report. See Rule 11-402 NMRA (stating that irrelevant evidence is generally

16 inadmissible). 

17 Additionally, we believe that, even if the district court erred in excluding the

18 report, any error was harmless. In State v. Balderama, our Supreme Court held that

19 “[e]rror in the exclusion of evidence in a criminal trial is prejudicial and not harmless
4

1 if there is a reasonable possibility that the excluded evidence might have affected the

2 jury's verdict.” 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845. We do not

3 believe that exclusion of the DNA report could have contributed to the jury’s verdict.

4 Although the district court refused to allow the jury to see the DNA report, the analyst

5 who performed the DNA testing was a witness at trial, and she testified to the results

6 of the DNA testing. Defendant was able to argue that the DNA test was inconclusive

7 to the jury. Additionally, as discussed above, we believe the report was irrelevant. See

8 State v. Chavez, 2007-NMCA-162, ¶ 7, 143 N.M. 126, 173 P.3d 48 (holding any error

9 in the exclusion of a consumer product safety report was harmless where the report

10 was not material to any issue in the case). For these reasons, we affirm the district

11 court.

12 Defendant also argues that the evidence was insufficient to support his

13 convictions for criminal sexual penetration and kidnapping. [MIO 6-7] “In

14 reviewing the sufficiency of the evidence, we must view the evidence in the light most

15 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

16 conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC17 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Based on our review of the record, there was

18 evidence that Defendant forced the victim into the living room of her home, forced her

19 to engage in oral sex, forced her into a bedroom of her home, and forced her to have
5

1 intercourse. [DS 2-3] We hold that this evidence is sufficient to support Defendant’s

2 convictions for criminal sexual penetration and kidnapping. See NMSA 1978, §§ 30-

3 9-11(A)&(E) (2009), 30-4-1 (2003). In his memorandum in opposition, Defendant

4 points to evidence supporting his version of events and to lack of physical evidence

5 of CSP. [MIO 1] However, “[c]ontrary evidence supporting acquittal does not

6 provide a basis for reversal because the jury is free to reject Defendant’s version of

7 the facts.” Rojo, 1999-NMSC-001, ¶ 19. 

8 For these reasons, we affirm Defendant’s convictions.

9 IT IS SO ORDERED.

10 

11 MICHAEL D. BUSTAMANTE, Judge

12 WE CONCUR:

13 

14 JAMES J. WECHSLER, Judge 

15 

16 RODERICK T. KENNEDY, Judge