IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28,976 4 WILLIE SKINNER, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Charles Cruse Currier, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Robert E. Tangora, L.L.C. 12 Robert E. Tangora 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 CASTILLO, Judge. 17 Defendant was convicted by jury on one count of criminal sexual penetration 18 of a minor. [RP 197] He rais es seven issues on appeal. [DS 6-8] This Court issued 192 a calendar notice proposing to affirm on all issues, and Defendant filed a 1 memorandum in opposition to our proposed d ecision. Unpersuaded, we affirm. 2 A. Preliminary Hearing 3 Defendant argues that because the magistrate court did not conduct a 4 preliminary hearing within ten days as required by Rule 6-202 NMRA, the magistrate 5 court should have granted his moti on to dismiss. [DS 7] In State v. Tollardo , 99 N.M. 6 115, 654 P.2d 568 (Ct. App. 1982), this Court concluded that the rule “does not 7 deprive the magistrate court of jurisdicti on if the time limits . . . are not precisely 8 followed.” Id. at 116, 654 P.2d at 569. The Court continued to hold that “[d]ismissal 9 is not the proper remedy for a delay inholding a preliminary examination when 10 prejudice to the defendant has not been shown.” Id. at 117, 654 P.2d at 570. 11 Defendant challenges the holding in Tollardo , arguing that it grafts a “non12 stated requirement of prejudice before any relief is affordable under the rule” and that 13 Tollardo rule renders Rule 6-202 meaningless. [DS 10] We decline to reach the 14 validity of Tollardo for two reasons. First, Defendant did not make this argument to 15 the magistrate court in his motion to dismiss and, as a result, it is not preserved. [RP 16 039] Second, the plain language of Rule 6- 202(D) explains that “[f]ailure to comply 17 with the time limits set forth in this paragraph shall not affect the validity of any 18 indictment for the same criminal offens e.” Based on this language, di smissal of 193 charges was not contemplated as a remedy for the failure to bring an evidentiary 1 hearing within ten days of charging. 2 B. Bind-over Order 3 Defendant also contends that there wa s insufficient evidence to support binding 4 the case over to district court and that the district court wrongfully denied his motion 5 to quash the bind-over. [DS 7] In its letter decision on Defendant’s motion, the 6 district court concluded that “[i]n order to grant the Defendant’s [m]otion, this [c]ourt 7 would have to engage in a complete reviewof the evidence.” [RP 085] Such a review 8 is foreclosed by State v. Foulenfont , 119 N.M. 788, 895 P.2d 1329 (Ct. App. 1995), 9 in which this Court established that a district court may dismiss a criminal matter on 10 a dispositive legal issue, as long as the district court was not required to make any 11 factual determinations. Id. at 790, 895 P.2d at 1331. 12 The district court thus had the authority to quash the bind-over only if there 13 were no disputed facts and only questions of law at issue. Our Courts have applied 14 this rule narrowly. For example, in Foulenfont , the state “never disputed [the 15 d]efendants’ characterization of the factual predicate underlying the charges” and 16 “declined the district court’s invitation topropose additional facts to be included in 17 the record.” Id. In State v. Gomez , 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753, our 18 Supreme Court concluded that even though the state did not argue that additional 194 evidence existed, “pretrial dismissal under Rule 5-601(B) [NMRA] is inappropriate 1 if the [s]tate could reasonably assert th e availability of additional evidence.” Id. ¶ 7. 2 In that case, the Court concluded that factual issues remained for jury determination. 3 Id. ¶ 8. We reach a similar conclusion in the present case. 4 There was no factual stipulation between the State and Defendant. See State v. 5 Fernandez , 2007-NMCA-091, ¶ 9, 142 N.M. 231, 164 P.3d 112 (refusing to apply 6 Foulenfont because there was no fact stipulation and the case required a jury 7 determination). Further, De fendant did not make an argument to the district court 8 based on Foulenfont

. See Gomez , 2003-NMSC-012, ¶ 7 (“Because [the d]efendant 9 did not raise an argument under Foulenfont, it was unnecessary for the [s]tate to argue 10 in the district court that it might be ableto obtain additional evidence if the case were 11 allowed to proceed to trial.”). For th ese reasons, we hold that Defendant did not 12 establish that only legal issues were befo re the trial court nor that dismissal was 13 therefore appropriate under Foulenfont

. 14 C. Access to Medical Records 15 Defendant next maintains that the district court improperly denied his motion 16 to access Victim’s medical, psychological, and school records. [DS 6, 3] “We will 17 not disturb the district court’s ruli ng absent an abuse of discretion.” State v. Gonzales , 18 1996-NMCA-026, ¶ 5, 121 N.M. 421, 912 P. 2d 297. According to Defendant’s 195 docketing statement, as well as the district court’s notes, the district court reviewed 1 the requested records in camera and releas ed portions of the records to Defendant. 2 [DS 3, RP 103, 160] This is the procedure approved by this Court inGonzales

. Id. 3 (“The district court is in the best positi on to assess the probativ e value of challenged 4 evidence as it relates to the f acts before the court and to weigh that value against any 5 interest in the confidentiality of record s that may be subject to discovery.”). 6 Defendant cites State v. Payton , 2007-NMCA-110, 142 N.M. 385, 165 P.3d 7 1161, for the proposition that his “right to confront and cross examine witnesses 8 weighs heavily in favor of allowing introduc tion of relevant evidence, even in sex 9 offense cases.” [DS 8] Paytonexplains that in certain situations, it is relevant that a 10 particular victim has suffered from previous sexual abuse. Id. ¶ 14. The district court 11 appears to have agreed with Defendant that Victim’s medical and sexual abuse history 12 was relevant. [RP 103] As a result, the record indicates that the district court 13 reviewed the medical records and releasedthe relevant porti ons. [RP 120, 160; DS 14 3] Because the district court followed th e correct procedure for the discovery of 15 medical and psychological records, we affirm. Gonzales , 1996-NMCA-026, ¶ 20 16 (“The proper procedure to determine rele vance is that which was requested by 17 Defendant and ordered by the di strict court: in camera revi ew.”). To the extent that 18 Defendant argues that the reco rds should have been releasedin their entirety, he fails 196 to articulate how he was prejudiced by the di strict court’s partial release of records. 1 D. SANE Nurse Testimony 2 At trial, the district court permitted a sexual assault nurse examiner to testify. 3 [DS 4] Defendant argues that the State improperly called the nurse examiner to testify 4 regarding evidence of injury when the injuries sustained were not related to the 5 charged acts. [DS 7] Fo r support, Defendant cites State v. Ortega , 2008-NMCA-001, 6 143 N.M. 261, 175 P.3d 929, and State v. Romero , 2006-NMCA-045, 139 N.M. 386, 7 133 P.3d 842. [DS 11] Ortegaholds that statements to a sexual assault nurse 8 examiner were testimonial and inadmi ssible because the Child who made the 9 statements was not subject to cross examination. 2008-NMCA-001, ¶ 36. Romero 10 simply concluded that statements to a se xual assault nurse examiner were testimonial 11 and not admissible. 2006-NMCA-045, ¶ 61. There is no hearsay or confrontation 12 issue in the present case, how ever, because Victim was available to and did testify. 13 The trial court agreed with Defendant that the nurse’s testimony regarding 14 injury was not relevant. In Defendant’s doc keting statement, he explains that “[t]he 15 trial judge did exclude testimony regarding injuries but allowed testimony about 16 dates.” [DS 4] There was therefore no error by the trial court. Defendant’s phrasing 17 of the issue seems to acknowledge this: “Didthe State err in calling the sexual assault 18 nurse examiner[?]” [DS 7] We do not re view the State’s decisions to call certain 197 witnesses. Instead, we review the districtcourt’s decisions to allow those witnesses 1 to testify. In the present case, the district court did not permit the witness to testify 2 about irrelevant issues. 3 E. Sufficiency of the Evidence to Support the Verdict 4 Defendant further argues that there is not sufficient evidence to support the 5 jury’s verdict because Victim could not recall the date of alleged actof criminal sexual 6 penetration or testify consis tently regarding the location and circumstances of the act. 7 [DS 7] “Substantial evidence is such ev idence as is acceptable to a reasonable mind 8 as adequate support for a conviction.” State v. Mankiller , 104 N.M. 461, 465, 722 9 P.2d 1183, 1187 (Ct. App. 1986). 10 It is well established that where the i ndictment has alleged a specific time, that 11 allegation is material and there must be evidence to locate the charged criminal act 12 within the alleged time period. Id. at 464-65, 722 P.2d at 1186-87. The criminal 13 complaint charges that the incidents occurred “on or about the 6th and 7th day of 14 November 2007.” [RP 010] Defendant’s argument appear s to rest on two pieces of 15 evidence: (1) that the child could not recall the date of the alleged act and (2) that 16 another witness placed the date of the o ccurrences no later than November 5, 2007. 17 [DS 5] In Mankiller , the testimony established that the defendant was in the correct 18 city during the month surr ounding the charged dates. Id. at 465, 722 P.2d at 1187. 198 The victim also testified that the inci dents happened in the same month. Id. Based 1 on this testimony, this Court determined th at there was sufficien t evidence to support 2 a conviction for incidents alleged to have happened on or about a certain date—even 3 though the actual dates alleged in the indictment were shown to be incorrect. Id. at 4 464-65, 722 P.2d at 1186-87. Victim’s mo ther provided additional testimony that 5 Victim was at Defendant’s house from November 2 through N ovember 7. [DS 5] We 6 therefore hold that substantial evidence supported the alleged time frame. 7 Defendant also contends that insu fficient evidence supported the verdict 8 because Victim failed to testify consis tently regarding the location or the 9 circumstances of the event. [DS 7] State v. Sena , 2008-NMSC-053, 144 N.M. 821, 10 192 P.3d 1198, however, explains that conflic ting testimony is to be resolved by the 11 jury. Id. ¶ 11. It appears that Victim testif ied and provided a version of events that 12 was at odds with her pretrial statements. [DS 4-5] Neverthe less, Defendant had an 13 opportunity to cross-examine her regarding thes e inconsistencies. In addition, he took 14 the stand himself, in order to offer his ow n explanation of the events. [DS 6] Our 15 Supreme Court has explained th at “[a]ppellate courts faced with a record of historical 16 facts that supports conflicting inferences must presume—even if it does not 17 affirmatively appear in the record—that the trier of fact resolved any such conflicts 18 in favor of the [prevailing party], and must defer to that resolution.” Id. ¶ 11 199 (alterations in original) (internal quotati on marks and citation omitted). As a result, 1 we also hold that substantial evidence supported the location and the circumstances 2 of the charges. 3 G. Sentence Mitigation 4 Defendant next argues that the district court erred by concluding that there was 5 insufficient evidence to warrant mitigation of the sentence. [DS 7-8] “We review the 6 trial court’s sentencing for an abuse of discretion.” State v. Aker , 2005-NMCA-063, 7 ¶ 8, 137 N.M. 561, 113 P.3d 384. At the post- conviction hearing, Defendant offered 8 the testimony of Dr. Moss Aubrey. [DS 6] Dr. Aubrey testified that “Defendant’s 9 conduct stemmed primarily from his dependentand avoidant personality disorder, and 10 not from an entrenched predatory sexual intere st in young girls.” [DS 6] Further, the 11 doctor opined that “adjustment would be made more difficult the longer [Defendant] 12 is incarcerated.” [DS 6] 13 The district court sentenced Defendant to 18 years in prison for one count of 14 sexual penetration of a mi nor, which is a first de gree felony. [RP 197] SeeNMSA 15 1978, § 30-9-11(D)(1) (2007). The basic sentence for a first degree felony is 18 years 16 imprisonment. NMSA 1978, § 31-18-15(A)(3) (2007). The sentence, therefore, was 17 not contrary to law. It has been made cl ear that “[r]egardless of what mitigating 18 evidence [the d]efendant presented, the statutory scheme does not require the trial 1910 court to depart from the basic sentence.” State v. Gardner , 2003-NMCA-107, ¶ 42, 1 134 N.M. 294, 76 P.3d 47. Further, “[i]t is settled law in this jurisdiction that a 2 suspended sentence is a matter of judicial clemency to which a defendant may never 3 claim entitlement.” State v. Sosa , 122 N.M. 446, 448, 926 P.2d 299, 301 (1996). We 4 therefore hold that the district court did not abuse its discretion by refusing to mitigate 5 Defendant’s sentence. See id. (“[W]e cannot see how failure to suspend a statutorily6 prescribed sentence can ever becharacterized as anything other than a refusal to grant 7 leniency.” (internal quotati on marks and citation omitted)). 8 F. Rebuttal Witness 9 After Defendant rested his case at trial, the State called a rebuttal witness in 10 order to rebut a portion of Defendant’s tes timony. [DS 6] Defendant’s testimony had 11 suggested that Victim was not at the home during the time period that the acts 12 allegedly took place. [DS 6] This testimony contradicted the statements of Victim’s 13 mother—who had also been a witness. [DS 6] The rebuttal witness testified as to the 14 honesty of Victim’s mother. [DS 6] Defendant attempted to “offer proof that 15 [Victim’s mother] had been investigatedfor fraudulent child custody/support issues.” 16 [DS 6] The district court did not permit Defendant to offer that evidence. [DS 6] 17 Defendant argues that the district court s hould not have permitted the rebuttal witness 18 to testify and that, further, the districtcourt should not have limited the scope of 1911 Defendant’s cross-examination of the rebuttal witness. [DS 8] “The admissibility of 1 rebuttal evidence is within the discretion of the trial court and will not be disturbed 2 absent an abuse of that discretion.” State v. Simonson , 100 N.M. 297, 302, 669 P.2d 3 1092, 1097 (1983). 4 “Genuine rebuttal evidence consists of evidence on new matters asserted in the 5 defense’s case.” Id. Based on the statement of facts in Defendant’s docketing 6 statement, the character evidence was offered in attempt to address the issue of 7 Victim’s mother’s credibility, which was raised during Defendant’s presentation of 8 his case. “The [s]tate is entitled to correct false impressions given to a jury by the 9 defense through rebuttal testimony.” Id. The district court therefore did not abuse its 10 discretion by permitting the rebuttal witness to testify. 11 It is also within the court’s discretion to limit the cross-examination of a 12 rebuttal witness. See State v. Ewing , 97 N.M. 235, 237-38, 638 P.2d 1080, 1082-83 13 (1982). Rule 11-608(B) NMRA states that “[s]pecific instances of the conduct of a 14 witness, for the purpose of attacking orsupporting the witness’s character for 15 truthfulness, other than conviction of crime as provided in Rule 11-609 [NMRA], may 16 not be proved by extrinsic evidence.” Rule 11-608 also explains that a party may 17 inquire into specific instances of the conduct of a witness on cross-examination “if 18 probative of truthfulness or untruthfulness. ” Defendant did not attempt to cross- 1912 examine the rebuttal witness about th e specific instance of conduct—Victim’s 1 mother’s history of fraud. Instead, he tried to offer extrinsic evidence of the 2 investigation of fraud. Such an offer is not permitted under Rule 11-608. 3 Rule 11-609(A) permits a party to attack the character for truthfulness of a 4 witness with “evidence that any witness has been convicted of a crime . . . if it readily 5 can be determined that establishing the elements of the crime required proof or 6 admission of an act of dishonesty or false statement by the witne ss.” In the present 7 case, Defendant attempted to offer extrinsic evidence that the witness—Victim’s 8 mother—had been investigated for fraud. Although this evidence of fraud would cast 9 a shadow on the witness’s hone sty, Defendant’s docketing statement indicates that she 10 was not convicted of fraud. [DS 6] As a result, Rule 11-609(B) does not permit the 11 introduction of extrinsic evidence to prove a specific instance of conduct. 12 For the reasons set forth above, we affirm. 13 IT IS SO ORDERED. 14

________________________________ 15 CELIA FOY CASTILLO, Judge 16

WE CONCUR: 1713 ________________________________ 1 JONATHAN B. SUTIN, Judge 2

________________________________ 3 MICHAEL E. VIGIL, Judge 4