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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,955 

10 MAXIMINO DEL RIO AGUILAR,

11 Defendant-Appellant

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

13 Michael E. Vigil, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender

18 Karl Erich Martell, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 FRY, Chief Judge.

23 Defendant appeals from the district court’s judgment and sentence entered

24 pursuant to a jury’s verdict that found him guilty of eight counts of criminal sexual

25 penetration in the second degree (CSP of a child between thirteen and eighteen years
2

1 old), not guilty of one of the counts, and not guilty of intimidation of a witness. We

2 issued a notice of proposed summary disposition, proposing to affirm. Defendant has

3 responded to our notice with a memorandum in opposition. We have considered

4 Defendant’s response, and remain unpersuaded that the district court erred. We,

5 therefore, affirm.

6 On appeal, Defendant raises four issues. First, he argues that his due process

7 rights were violated by the lack of specificity in the charging documents and the late

8 disclosure of some of H.R.’s allegations against Defendant. [DS 5-7] Second,

9 Defendant argues that the district court erred by denying the motion to suppress his

10 statements to police because they were not knowing, intelligent or voluntary. [DS 7-

11 8] Third, Defendant argues that the district court erred by admitting allegations

12 against Defendant of prior bad acts and his alleged acts that occurred outside of New

13 Mexico. [DS 8] Fourth and lastly, Defense counsel challenges the sufficiency of the

14 evidence pursuant to the demands of State v. Franklin, 78 N.M. 127, 129, 428 P.2d

15 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App.

16 1985). [DS 8, 10] 

17 Due Process 

18 Defendant argues that his due process rights were violated by the lack of

19 specificity in the charging documents and the late disclosure of some of H.R.’s
3

1 allegations against Defendant. [DS 5-7; MIO 2-5] New Mexico case law has

2 addressed the due process concerns raised here that commonly arises with allegations

3 of ongoing child sexual abuse. See State v. Baldonado, 1998-NMCA-040, ¶¶ 19-21,

4 124 N.M. 745, 955 P.2d 21; State v. Altgilbers, 109 N.M. 453, 464-71, 786 P.2d 680,

5 691-698 (Ct. App. 1989). Our law approaches these due process claims on a case-by6 case basis that considers the narrowness of the time frame for each alleged offense,

7 see Altgilbers, 109 N.M. at 466, 786 P.2d at 693, and the level of distinguishing detail

8 provided to the defendant about the alleged offenses. See State v. Dominguez, 2008-

9 NMCA-029, ¶¶ 6-11, 143 N.M. 549, 178 P.3d 834 (filed 2007). The law requires that

10 the time of the offense be alleged with reasonable particularity, under the

11 circumstances. Baldonado, 1998-NMCA-040, ¶ 26. “The test reviews the

12 reasonableness of the [s]tate’s efforts at narrowing the time of the indictment and

13 measures the potential prejudice to the defendant of the time frame chosen by the

14 [s]tate.” Id. “If the court finds that the charge was not stated with reasonable

15 particularity, it must then look to see if the [d]efendant is prejudiced by that failure.”

16 Id. ¶ 29.

17 In the current case, the State filed a bill of particulars that describes twelve acts

18 recalled by H.R., which were identified as either sexual intercourse, cunnilingus or

19 fellatio and distinguished by year, season, some charges by month, and by location.
4

1 [RP 137-38] The bill of particulars also states that a videotaped statement from

2 Defendant to police supports at least three additional incidents for a total of fifteen

3 separate charges of criminal sexual penetration. [RP 132-33] Thereafter, the district

4 court directed a verdict of acquittal as to six counts. [DS 4] Neither the record nor

5 Defendant’s filings in this Court explain why six of the counts were deficient where

6 the bill of particulars seemed to link fifteen counts to fifteen instances of abuse.

7 Further, the bill of particulars was filed on March 27, 2008, [RP 137-38] the amended

8 indictment was filed on April 17, 2008, [RP 155-59] and the trial was held on May 29,

9 2008. [RP 225]

10 Defendant contends that this time frame was inadequate because defense

11 counsel was able to interview H.R. for the first time on April 24, 2008, just before trial

12 began. [MIO 3] After this interview, the defense asked for a second interview, which

13 the district court denied. [MIO 3-4] The district court permitted the defense to ask

14 questions by interrogatories, however. [MIO 4] Defendant argues that H.R.’s

15 answers were terse and unhelpful, and that a second interview would have allowed the

16 defense to flesh out her answers and obtain more useful information in preparing a

17 defense. [Id.]

18 Defendant does not explain how these circumstances impacted his trial. He does

19 not explain the grounds for the district court’s denial of a second interview, what
5

1 questions were asked by interrogatories, why specifically that process was inadequate,

2 and how more time and an-person interview would have benefitted his defense. “An

3 assertion of prejudice is not a showing of prejudice,” In re Ernesto M., Jr., 1996-

4 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318, and “[i]n the absence of prejudice,

5 there is no reversible error.” Baldonado, 1998-NMCA-040, ¶ 29 (internal quotation

6 marks and citation omitted). It is the appellant’s burden to clearly demonstrate error

7 on appeal, because we presume correctness. See State v. Aragon, 1999-NMCA-060,

8 ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a presumption of correctness

9 in the rulings or decisions of the district court, and the party claiming error bears the

10 burden of showing such error). We will not presume that the district court’s rulings

11 constituted error that prejudiced the defense. 

12 Defendant also maintains that the State’s failure to charge him properly from

13 the initiation of the prosecution devastated his ability to prepare a proper defense and

14 injected reversible error in the proceedings. [MIO 4] As we explained in our notice,

15 however, the bill of particulars ultimately was detailed and sufficiently specific to

16 satisfy due process. Given the directed verdicts as to six counts and the revised bill

17 of particulars, it appears that Defendant’s trial was more targeted to specific, provable

18 and defendable acts than in our controlling case law. As we stated in our notice, in

19 Altgilbers, we explained that with a multi-year period of alleged abuse with multiple
6

1 offenses, the prosecution must draw a line somewhere to charge the defendant in a

2 manner that “reflect[s] the magnitude of the conduct while reducing potential [due

3 process] problems,” and that the mere fact that the prosecution must make this

4 decision does not render the decision oppressive or unfair. Altgilbers, 109 N.M. at

5 466, 786 P.2d at 693. In Altgilbers, we determined that “dividing the multi-year

6 period of the alleged infractions into two- or three-month intervals” served the

7 interests at stake. See id. 

8 Without further detail from Defendant as to how he was prejudiced, we will not

9 presume that Defendant was denied due process. See Aragon, 1999-NMCA-060, ¶ 10.

10 For these reasons, we hold that Defendant has not demonstrated error.

11 Motion to Suppress Statements to Police

12 Defendant argues that the district court erred by denying his motion to suppress

13 his statements to police because they were not knowing, intelligent or voluntary. [DS

14 7-8; MIO 5-6] Defendant pursues this issue in his response under the demands of

15 Franklin and Boyer. [MIO 6] Defendant argues that he is a Mexican national and was

16 entitled to consult with the Mexican consulate, and that he does not speak English and

17 should have been provided an interpreter during the interview. [Id.]

18 When a defendant moves to suppress “a statement made to police during a

19 custodial interrogation, the State must demonstrate by a preponderance of evidence
7

1 that a defendant knowingly, intelligently, and voluntarily waived his or her

2 constitutional rights under Miranda.” State v. Barrera, 2001-NMSC-014, ¶ 22, 130

3 N.M. 227, 22 P.3d 1177. “On appeal, we review the [district] court’s findings of fact

4 for substantial evidence and review de novo the ultimate determination of whether a

5 defendant validly waived his or her Miranda rights prior to police questioning. In

6 determining whether a waiver of rights is knowing, intelligent, and voluntary, we

7 assess the totality of circumstances.” Id. ¶ 23 (citations omitted).

8 In the present case, the State presented a videotape of the interview, which

9 revealed that the detective in Santa Fe explained Defendant’s rights under Miranda

10 v. Arizona, 384 U.S. 436, 444 (1966), before the questioning began, and that the

11 detective reviewed a written waiver of rights with Defendant, and that Defendant

12 signed it. [RP 128-33] The State argued that the videotape showed that Defendant

13 was proficient in English, that there was no intimidation or coercion, that Defendant

14 asked questions when he needed clarification, and that detectives asked Defendant if

15 he needed further clarification on any of the rights he was waiving. [RP 131] It

16 appears that at no time did Defendant request an interpreter or express any difficulty

17 in understanding English. [Id.] 

18 Defendant does not dispute the truth of the facts we have recounted above and

19 does not explain any other grounds on which the district court might have ruled. [MIO
8

1 6] The videotape presented questions of fact for the district court to resolve. See State

2 v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is

3 for the fact finder (in this case, the judge) to resolve any conflict in the testimony of

4 the witnesses and to determine where the weight and credibility lay). Under our

5 standard of review, we presume that the district court appropriately denied

6 suppression, based on findings that the videotape indicated that Defendant was given

7 the Miranda warnings and that he understood English and properly waived his rights.

8 [RP 144]

9 To the extent Defendant continues to argue that he had a right to consult with

10 the Mexican Consulate under the Vienna Convention on Consular Relations (VCCR),

11 we disagree. The New Mexico Supreme Court has determined that “the provisions

12 of the VCCR do not create legally enforceable individual rights.” State v. Martinez13 Rodriguez, 2001-NMSC-029, ¶ 15, 131 N.M. 47, 33 P.3d 267, abrogated on other

14 grounds as recognized in State v. Forbes, 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119

15 P.3d 144. Thus, it appears Defendant had no standing to enforce the provisions of the

16 VCCR. Martinez-Rodriguez, 2001-NMSC-029, ¶ 15. 

17 For these reasons, we affirm the district court’s denial of Defendant’s motion

18 to suppress his statements.

19 Bad Act Evidence
9

1 Defendant argues that the out-of-state allegations are not relevant to the charges

2 in New Mexico and should be excluded under Rule 11-403 NMRA. [DS 8; MIO 6-7]

3 Defendant also pursues this issue in his response under Franklin and Boyer. [MIO 7]

4 “We review the admission of evidence under an abuse of discretion standard

5 and will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-

6 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.

7 Determining whether the prejudicial impact of evidence outweighs its

8 probative value is left to the discretion of the [district] court . . . [i]n

9 determining whether the [district] court has abused its discretion in

10 applying Rule 11-403, the appellate court considers the probative value

11 of the evidence, but the fact that some jurors might find this evidence

12 offensive or inflammatory does not necessarily require its exclusion. 

13 State v. Rojo, 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829 (alterations in

14 omitted) (internal quotation marks and citations omitted). 

15 In the present case, the district court denied the motion to exclude the evidence

16 on the grounds that the evidence was admissible to demonstrate the nature of the

17 alleged abuse and when it began. [RP 160] Rule 11-404(B) NMRA permits

18 admission of evidence of other bad acts to prove “motive, opportunity, intent,

19 preparation, plan, knowledge, identity or absence of mistake or accident.” This list

20 is not exhaustive of the purposes for which other bad acts may be admitted. See State

21 v. Landers, 115 N.M. 514, 517, 853 P.2d 1270, 1273 (Ct. App. 1992), overruled on
10

1 other grounds by State v. Kerby, 2005-NMCA-106, ¶¶ 28-30, 138 N.M. 232, 118 P.3d

2 740 (abolishing the “sex-crimes-against-children exception to Rule 11-404,” applied

3 in Landers as an exception to the exclusion of propensity evidence, and permitting

4 evidence of a lewd and lascivious disposition toward the prosecuting witness). The

5 State offered evidence of the alleged abuse that occurred outside of New Mexico to

6 provide context for the charges and to demonstrate an ongoing sexually abusive

7 relationship. [RP 110]

8 The defense argued that the sexual relationship between Defendant and H.R.

9 began when she was eighteen years old and that it was consensual, initiated by her.

10 [DS 4] Defendant does not explain what specific evidence he sought to exclude and

11 why specifically it was irrelevant or unduly prejudicial. The State offered some sort

12 of evidence that an abusive sexual relationship began much earlier in Nevada or Utah

13 and continued intermittently in New Mexico, as H.R. and her mother relocated, to

14 demonstrate the nature of the relationship, the pattern of the alleged abuse, and how

15 the alleged abuse was able to continue over time, even after H.R. reached the age of

16 majority. [RP 111]

17 Kerby abolished a per se exception to propensity evidence; it did not narrow the

18 manner in which we apply Rule 11-404(B) on a case-by-case basis. Under the facts

19 of the present case, evidence that the ongoing sexually abusive relationship, for which
11

1 Defendant is being prosecuted here, and which began in another state, falls squarely

2 within the evidence permitted by Rule 11-404(B). See State v. Otto,

3 2007-NMSC-012, ¶¶ 7, 11-12, 141 N.M. 443, 157 P.3d 8 (reversing this Court and

4 holding that evidence of uncharged prior sexual acts with the minor victim in another

5 state were relevant to show intent and absence of mistake or accident, and could be

6 relevant to show context of the abuse, where the defendant stated that he was ready

7 to digitally penetrate the victim but woke up and did not think he had done so). 

8 After the district court determines “that the evidence is relevant to a material

9 issue other than the defendant’s character or propensity to commit a crime, [it] must

10 determine that the probative value of the evidence outweighs the risk of unfair

11 prejudice, pursuant to Rule 11-403.” Otto, 2007-NMSC-012, ¶ 10. This rule states

12 that “evidence may be excluded if its probative value is substantially outweighed by

13 the danger of unfair prejudice, confusion of the issues or misleading the jury, or by

14 considerations of undue delay, waste of time or needless presentation of cumulative

15 evidence.” Rule 11-403. “The purpose of [Rule] 11-403 is not to guard against any

16 prejudice whatsoever, but only against the danger of unfair prejudice.” Otto, 2007-

17 NMSC-012, ¶ 16. “Evidence is not unfairly prejudicial simply because it inculpates

18 the defendant. Rather, prejudice is considered unfair when it goes only to character

19 or propensity.” Id. (internal quotation marks and citations omitted).
12

1 In the present case, the evidence was properly admitted to demonstrate the

2 nature of the relationship, the timing of the alleged abuse, and to show how the alleged

3 abuse began and continued into H.R.’s age of majority. Defendant gives us no reason

4 to believe that the prejudice was unfair and that the district court abused the vast

5 discretion it is afforded in such a ruling. For these reasons, we affirm the district

6 court’s admission of the evidence.

7 Sufficiency of the Evidence

8 Pursuant to Franklin and Boyer, Defendant challenges the sufficiency of the

9 evidence to support Defendant’s convictions for CSP of a child aged thirteen to

10 eighteen by coercion or a person in a position of authority. [DS 8, 10; MIO 7-10] 

11 We engage a two-step analysis to evaluate a challenge to the sufficiency of the

12 evidence presented to support a conviction. First, we “view the evidence in the light

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

14 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-

15 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Second, we “make a legal

16 determination of whether the evidence viewed in this manner could justify a finding

17 by any rational trier of fact that each element of the crime charged has been

18 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

19 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). “The reviewing
13

1 court does not weigh the evidence or substitute its judgment for that of the fact finder

2 as long as there is sufficient evidence to support the verdict.” State v. Mora, 1997-

3 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. The question for us is whether the

4 trial court’s “decision is supported by substantial evidence, not whether the district

5 court could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA6 039, ¶ 15, 121 N.M. 562, 915 P.2d 318. “[S]ubstantial evidence [is] such relevant

7 evidence as a reasonable mind might accept as adequate to support a conclusion.”

8 State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal

9 quotation marks and citation omitted).

10 We look to the jury instructions to measure the sufficiency of the evidence to

11 support the verdict. See State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct.

12 App. 1986). For the eight charges of CSP of a child aged thirteen to eighteen by

13 coercion or a person in a position of authority, for which the jury found Defendant

14 guilty, it was asked to determine whether the State proved beyond a reasonable doubt

15 that 

16 1. [D]efendant caused [H.R.] to engage in sexual intercourse;

17 2. [H.R.] was at least 13 but less than 18 years old;

18 3. [D]efendant was a person who by reason of his relationship

19 to [H.R.] was able to exercise undue influence over [H.R.]

20 and used this authority to coerce [H.R.] to submit to sexual

21 contact;
14

1 4. This happened in New Mexico on or between the 1st day of

2 August 2001 and the 31st day of January 2002 [and

3 between the 1st day of February and the 28th day of

4 February 2002] [and between the 1st day of November and

5 the 30th day of November 2002] ] [and between the 1st day

6 30th day of November and the th day of November 2002]

7 [and between the 1st day of January and the 31st day of

8 January 2003] [and between the 1st day of August and the

9 31st day of August 2003] [and between the 1st day of

10 August and the 31st day of August 2003] [and between the

11 1st day of November and the 30th day of November 2004].

12 [RP 177-80, 182-85] 

13 In the current case, the State presented the testimony of H.R., her mother, Dr.

14 Jepsen, law enforcement witnesses, and the videotape of Defendant’s statement to

15 police. [DS 4] H.R. testified that Defendant threatened her and her mother to keep her

16 from reporting the rapes, but periods went by when Defendant was in another state,

17 far away from her, and that she never reported any of it. [MIO 8] Without more

18 information from Defendant about the testimony presented at trial, we presume the

19 other witnesses for the State testified to similar facts. Defendant explained that he

20 testified in his own defense as did “several witnesses.” [DS 4] Defendant testified that

21 he had sexual relations with H.R. only after she turned eighteen and after she initiated

22 the sex. [MIO 8] Defendant contends he presented a credible, alternate version of

23 events that should have raised a reasonable doubt in the minds of the jurors regarding

24 his guilt.
15

1 “Contrary evidence supporting acquittal does not provide a basis for reversal

2 because the jury is free to reject [the d]efendant’s version of the facts.” Rojo, 1999-

3 NMSC-001, ¶ 19. We view the evidence in the light most favorable to the verdict, and

4 do not reweigh the evidence, make credibility determinations, or substitute our

5 judgment for that of fact finder. Cunningham, 2000-NMSC-009, ¶ 26; Mora, 1997-

6 NMSC-060, ¶ 27. Viewing the evidence in this manner, we hold that it was sufficient

7 to support the verdict.

8 CONCLUSION

9 For the reasons discussed above and in our notice, we affirm the district court’s

10 judgment and sentence. 

11 IT IS SO ORDERED.

12

13 

14 CYNTHIA A. FRY, Chief Judge

15 WE CONCUR:

16 

17 JONATHAN B. SUTIN, Judge

18 

19 LINDA M. VANZI, Judge