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 Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,955 9 MAXIMINO DEL RIO AGUILAR, 10 Defendant-Appellant 11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Michael E. Vigil, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Karl Erich Martell, Assi stant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 FRY, Chief Judge. 22 Defendant appeals from the district court’s judgment and sentence entered 23 pursuant to a jury’s verdict that found him guilty of eight counts of criminal sexual 24 penetration in the second degree (CSP of a child between thirteenand eighteen years 252 old), not guilty of one of the counts, and notguilty of intimidation of a witness. We 1 issued a notice of proposed summary dispos ition, proposing to affi rm. Defendant has 2 responded to our notice with a memorandum in opposition. We have considered 3 Defendant’s response, and re main unpersuaded that the di strict court erred. We, 4 therefore, affirm. 5 On appeal, Defendant raises four issues. First, he argues that his due process 6 rights were violated by the lack of specifi city in the charging documents and the late 7 disclosure of some of H.R.’s allegations against Defendant. [DS 5-7] Second, 8 Defendant argues that the district court erred by denying the motion to suppress his 9 statements to police because they were not knowing, intelligent or voluntary. [DS 7- 10 8] Third, Defendant argues that the di strict court erred by admitting allegations 11 against Defendant of prior bad acts and his alleged acts that occurred outside of New 12 Mexico. [DS 8] Fourth and lastly, Defense counsel challenges the sufficiency of the 13 evidence pursuant to the demands of State v. Franklin , 78 N.M. 127, 129, 428 P.2d 14 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 712 P. 2d 1, 4-6 (Ct. App. 15 1985). [DS 8, 10] 16 Due Process 17 Defendant argues that his due process rights were violated by the lack of 18 specificity in the charging documents and the late disclosure of some of H.R.’s 193 allegations against Defendant. [DS 5-7; MIO 2-5] New Mexico case law has 1 addressed the due process con cerns raised here that comm only arises with allegations 2 of ongoing child sexual abuse. See State v. Baldonado , 1998-NMCA-040, ¶¶ 19-21, 3 124 N.M. 745, 955 P.2d 21; State v. Altgilbers , 109 N.M. 453, 464-71, 786 P.2d 680, 4 691-698 (Ct. App. 1989). Our law approaches these due process claims on a case-by5 case basis that considers the narrowness of the time frame for each alleged offense, 6 see Altgilbers , 109 N.M. at 466, 786 P.2d at 693, and the level of distinguishing detail 7 provided to the defendant about the alleged offenses. See State v. Dominguez , 2008- 8 NMCA-029, ¶¶ 6-11, 143 N.M. 549, 178 P.3d 834 (filed 2007). The law requires that 9 the time of the offense be alleged w ith reasonable particularity, under the 10 circumstances. Baldonado , 1998-NMCA-040, ¶ 26. “The test reviews the 11 reasonableness of the [s]tate’s efforts atnarrowing the time of the indictment and 12 measures the potential prejudice to the defendant of the time frame chosen by the 13 [s]tate.” Id. “If the court finds that the charge was not stated with reasonable 14 particularity, it must then look to see if th e [d]efendant is prejudiced by that failure.” 15 Id. ¶ 29. 16 In the current case, the State filed a bill of particulars that describes twelve acts 17 recalled by H.R., which were identified as either sexual intercourse, cunnilingus or 18 fellatio and distinguished by year, season, some charges by month, and by location. 194 [RP 137-38] The bill of particulars also states that a videot aped statement from 1 Defendant to police supports at least three additional incidents for a total of fifteen 2 separate charges of criminalsexual penetration. [RP 132-33] Thereafter, the district 3 court directed a verdict of acquittal as to six counts. [DS 4] Neither the record nor 4 Defendant’s filings in this Court explain why six of the counts were deficient where 5 the bill of particulars seemed to link fifteen counts to fifteen instances of abuse. 6 Further, the bill of particulars was file d on March 27, 2008, [RP 137-38] the amended 7 indictment was filed on April 17, 2008, [RP 155-59] and the trial was held on May 29, 8 2008. [RP 225] 9 Defendant contends that this time frame was inadequate because defense 10 counsel was able to intervie w H.R. for the first time on April 24, 2008, just before trial 11 began. [MIO 3] After this interview, the defense asked for a second interview, which 12 the district court denied. [MIO 3-4] The district court permitted the defense to ask 13 questions by interrogatories, however. [M IO 4] Defendant argues that H.R.’s 14 answers were terse and unhelpfu l, and that a second interv iew would have allowed the 15 defense to flesh out her answers and obtain more useful information in preparing a 16 defense. [Id.] 17 Defendant does not explain how these circumstances impacted his trial. He does 18 not explain the grounds for the district court’s denial of a second interview, what 195 questions were asked by interrogatories, why specifically that process was inadequate, 1 and how more time and an-per son interview would have be nefitted his defense. “An 2 assertion of prejudice is not a showing of prejudice,” In re Ernesto M., Jr. , 1996- 3 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318, and “[i]n the absence of prejudice, 4 there is no reversible error.” Baldonado , 1998-NMCA-040, ¶ 29 (internal quotation 5 marks and citation omitted). It is the appe llant’s burden to clearly demonstrate error 6 on appeal, because we presume correctness. See State v. Aragon , 1999-NMCA-060, 7 ¶ 10, 127 N.M. 393, 981 P.2d 1211 (s tating that there is a presumption of correctness 8 in the rulings or decisions of the district court, and the party claiming error bears the 9 burden of showing such error). We will not presume that the district court’s rulings 10 constituted error that prejudiced the defense. 11 Defendant also maintains that the State’s failure to charge him properly from 12 the initiation of the prosecution devastated his ability to prepare a proper defense and 13 injected reversible error in the proceedings. [MIO 4] As we e xplained in our notice, 14 however, the bill of particulars ultimatel y was detailed and sufficiently specific to 15 satisfy due process. Given the directed verdicts as to six counts and the revised bill 16 of particulars, it appears that Defendant’s trial was more targeted to specific, provable 17 and defendable acts than in our controlling cas e law. As we stated in our notice, in 18 Altgilbers , we explained that with a multi-yearperiod of alleged abuse with multiple 196 offenses, the prosecution must draw a line somewhere to charge the defendant in a 1 manner that “reflect[s] the magnitude of the conduct while re ducing potential [due 2 process] problems,” and that the mere f act that the prosecution must make this 3 decision does not render the decision oppressive or unfair. Altgilbers , 109 N.M. at 4 466, 786 P.2d at 693. In Altgilbers , we determined that “dividing the multi-year 5 period of the alleged infractions into two- or three-month intervals” served the 6 interests at stake. See id. 7 Without further detail from Defendant as to how he was prejudiced, we will not 8 presume that Defendant was denied due process. See Aragon , 1999-NMCA-060, ¶ 10. 9 For these reasons, we hold that Defendant has not demonstrated error. 10 Motion to Suppress Statements to Police 11 Defendant argues that the district court erred by denying his motion to suppress 12 his statements to police because they werenot knowing, intelligent or voluntary. [DS 13 7-8; MIO 5-6] Defendant pursues this issue in his response under the demands of 14 Franklinand Boyer . [MIO 6] Defendant argues that he is a Mexican national and was 15 entitled to consult with the Mexican consulate, and that he does not speak English and 16 should have been provided an interp reter during the interview. [Id.] 17 When a defendant moves to suppress “a statement made to police during a 18 custodial interrogation, the State must demonstrate by a preponderance of evidence 197 that a defendant knowingly, intelligently , and voluntarily waived his or her 1 constitutional rights under Miranda .” State v. Barrera , 2001-NMSC-014, ¶ 22, 130 2 N.M. 227, 22 P.3d 1177. “On appeal, we review the [dis trict] court’s findings of fact 3 for substantial evidence and review de novo the ultimate determination of whether a 4 defendant validly waived his or her Mirandarights prior to police questioning. In 5 determining whether a waiver of rights is knowing, intelligent, and voluntary, we 6 assess the totality of circumstances.” Id. ¶ 23 (citations omitted). 7 In the present case, the State presente d a videotape of the interview, which 8 revealed that the detective in Sant a Fe explained Defendant’s rights under Miranda 9 v. Arizona , 384 U.S. 436, 444 (1966), before the questioning began, and that the 10 detective reviewed a written waiver of rights with Defendant, and that Defendant 11 signed it. [RP 128-33] The State argued that the videotape showed that Defendant 12 was proficient in English, that there wa s no intimidation or coercion, that Defendant 13 asked questions when he need ed clarification, and that detectives asked Defendant if 14 he needed further clarification on any of the rights he was waiving. [RP 131] It 15 appears that at no time did Defendant request an interpreter or express any difficulty 16 in understanding English. [Id.] 17 Defendant does not dispute the truth of the facts we have recounted above and 18 does not explain any other grounds on which the district c ourt might have ruled. [MIO 198 6] The videotape presented questions of f act for the district court to resolve. See State 1 v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is 2 for the fact finder (in this case, the judge ) to resolve any conf lict in the testimony of 3 the witnesses and to determine where th e weight and credibility lay). Under our 4 standard of review, we presume that the district court appropriately denied 5 suppression, based on findings that the vide otape indicated that Defendant was given 6 the Mirandawarnings and that he understood E nglish and properly waived his rights. 7 [RP 144] 8 To the extent Defendant continues to ar gue that he had a right to consult with 9 the Mexican Consulate under the Vienna Convention on Consular Relations (VCCR), 10 we disagree. The New Mexico Supreme C ourt has determined that “the provisions 11 of the VCCR do not create legally enforceable individual rights.” State v. Martinez12 Rodriguez , 2001-NMSC-029, ¶ 15, 131 N.M. 47, 33 P.3d 267, abrogated on other 13 grounds as recognized in State v. Forbes , 2005-NMSC-027, ¶ 6, 138 N.M. 264, 119 14 P.3d 144. Thus, it appears De fendant had no standing to enforce the provisions of the 15 VCCR. Martinez-Rodriguez , 2001-NMSC-029, ¶ 15. 16 For these reasons, we affirm the districtcourt’s denial of Defendant’s motion 17 to suppress his statements. 18 Bad Act Evidence 199 Defendant argues that the out-of-state alle gations are not relevant to the charges 1 in New Mexico and should be excluded under Rule 11-403 NMRA. [DS 8; MIO 6-7] 2 Defendant also pursues this issue in his response under Franklinand Boyer . [MIO 7] 3

“We review the admission of evidence under an abuse of discretion standard 4 and will not reverse in the absence of a clear abuse.” See State v. Sarracino , 1998- 5 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. 6 Determining whether the prejudicialimpact of evidence outweighs its 7 probative value is left to the discreti on of the [district] court . . . [i]n 8 determining whether the [district] court has abused its discretion in 9 applying Rule 11-403, the appellate court consid ers the probative value 10 of the evidence, but the fact that some jurors might find this evidence 11 offensive or inflammatory does not necessarily require its exclusion. 12 State v. Rojo , 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829 (alterations in 13 omitted) (internal quotation marks and citations omitted). 14 In the present case, the district court denied the motion to exclude the evidence 15 on the grounds that the evidence was admissible to demonstrate the nature of the 16 alleged abuse and when it began. [RP 160] Rule 11-404(B) NMRA permits 17 admission of evidence of other bad acts to prove “motive, opportunity, intent, 18 preparation, plan, knowledge, identity or abse nce of mistake or accident.” This list 19 is not exhaustive of the purposes for wh ich other bad acts may be admitted. See State 20 v. Landers , 115 N.M. 514, 517, 853 P.2d 1270, 1273 (Ct. App. 1992), overruled on 2110 other grounds by State v. Kerby , 2005-NMCA-106, ¶¶ 28-30, 138 N.M. 232, 118 P.3d 1 740 (abolishing the “sex-crimes-against-ch ildren exception to Rule 11-404,” applied 2 in Landersas an exception to the exclusion of propensity evidence, and permitting 3 evidence of a lewd and lascivious dispos ition toward the prosecuting witness). The 4 State offered evidence of the alleged abus e that occurred outside of New Mexico to 5 provide context for the charges and to demonstrate an ongoing sexually abusive 6 relationship. [RP 110] 7 The defense argued that the sexual re lationship between Defendant and H.R. 8 began when she was eighteen years old and that it was consensual, initiated by her. 9 [DS 4] Defendant does not explain what specific evidence he s ought to exclude and 10 why specifically it was irrele vant or unduly prejudicial. The State offered some sort 11 of evidence that an abusive sexual relations hip began much earlier in Nevada or Utah 12 and continued intermittently in New Mexi co, as H.R. and her mother relocated, to 13 demonstrate the nature of the relationship, the pattern of the alleged abuse, and how 14 the alleged abuse was able to continue ove r time, even after H.R . reached the age of 15 majority. [RP 111] 16 Kerbyabolished a per se exception to prope nsity evidence; it did not narrow the 17 manner in which we apply Rule 11-404(B) on a case-by-case basis. Under the facts 18 of the present case, eviden ce that the ongoing sexually abus ive relationship, for which 1911 Defendant is being prosecuted here, and whic h began in another st ate, falls squarely 1 within the evidence permitted by Rule 11-404(B). See State v. Otto , 2 2007-NMSC-012, ¶¶ 7, 11-12, 141 N.M. 443, 157 P.3d 8 (reversing this Court and 3 holding that evidence of uncharged prior sexual acts with the minor victim in another 4 state were relevant to showintent and absence of mistake or accident, and could be 5 relevant to show context of the abuse, wh ere the defendant stated that he was ready 6 to digitally penetrate the victim but w oke up and did not think he had done so). 7 After the district court determines “that the evidence is rele vant to a material 8 issue other than the defendant’s character or propensity to commit a crime, [it] must 9 determine that the probative value of th e evidence outweighs the risk of unfair 10 prejudice, pursuant to Rule 11-403.” Otto , 2007-NMSC-012, ¶ 10. This rule states 11 that “evidence may be excluded if its probative value is substantially outweighed by 12 the danger of unfair prejudice, confusion of the issues or misleading the jury, or by 13 considerations of undue delay, waste of time or needless presentation of cumulative 14 evidence.” Rule 11-403. “The purpose of [Rule] 11-403 is not to guard against any 15 prejudice whatsoever, but onl y against the danger of unfair prejudice.” Otto , 2007- 16 NMSC-012, ¶ 16. “Evidence is not unfairl y prejudicial simply because it inculpates 17 the defendant. Rather, prejudice is consid ered unfair when it goes only to character 18 or propensity.” Id. (internal quotation marks and citations omitted). 1912 In the present case, the evidence was properly admitted to demonstrate the 1 nature of the relationship, the timing of the alleged abuse, and to show how the alleged 2 abuse began and continued into H.R.’s age of majority. Defendant gives us no reason 3 to believe that the prejudice was unfair and that the district court abused the vast 4 discretion it is afforded in such a ruling. For these reasons, we affirm the district 5 court’s admission of the evidence. 6 Sufficiency of the Evidence 7 Pursuant to FranklinandBoyer , Defendant challenges the sufficiency of the 8 evidence to support Defendant’s convictions for CSP of a child aged thirteen to 9 eighteen by coercion or a person in a position of authority. [DS 8, 10; MIO 7-10] 10 We engage a two-step analysis to evaluate a challenge to th e sufficiency of the 11 evidence presented to support a conviction. First, we “view the evidence in the light 12 most favorable to the guilty verdict, indul ging all reasonable inferences and resolving 13 all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 2000- 14 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Second, we “make a legal 15 determination of whether the evidence view ed in this manner could justify a finding 16 by any rational trier of fact that each element of the crime charged has been 17 established beyond a reasonable doubt.” State v. Apodaca , 118 N.M. 762, 766, 887 18 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). “The reviewing 1913 court does not weigh the evidence or substituteits judgment for that of the fact finder 1 as long as there is sufficient ev idence to support the verdict.” State v. Mora , 1997- 2 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. The question for us is whether the 3 trial court’s “decision is supported by substantial evidence, not whether the district 4 court could have reached a different conclusion.” In re Ernesto M., Jr. , 1996-NMCA5 039, ¶ 15, 121 N.M. 562, 915 P.2d 318. “[S]ubstantial evidence [is] such relevant 6 evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal 8 quotation marks and citation omitted). 9 We look to the jury instructions to measure the sufficiency of the evidence to 10 support the verdict. See State v. Smith , 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. 11 App. 1986). For the eight charges of CSP of a child aged thirteen to eighteen by 12 coercion or a person in a position of authority, for which the jury found Defendant 13 guilty, it was asked to determine whether the State proved beyond a reasonable doubt 14 that 15 1. [D]efendant caused [H.R.] to engage in sexual intercourse; 16 2. [H.R.] was at least 13 but less than 18 years old; 17 3. [D]efendant was a person who by reason of his relationship 18 to [H.R.] was able to exercise undue influence over [H.R.] 19 and used this authority to co erce [H.R.] to submit to sexual 20 contact; 2114 4. This happened in New Mexico on or between the 1st day of 1 August 2001 and the 31st day of January 2002 [and 2 between the 1st day of February and the 28th day of 3 February 2002] [and between th e 1st day of November and 4 the 30th day of November 2002] ] [and between the 1st day 5 30th day of November and the th day of November 2002] 6 [and between the 1st day of January and the 31st day of 7 January 2003] [and between the 1st day of August and the 8 31st day of August 2003] [and between the 1st day of 9 August and the 31st day of August 2003] [and between the 10 1st day of November and th e 30th day of November 2004]. 11 [RP 177-80, 182-85] 12 In the current case, the State presente d the testimony of H.R., her mother, Dr. 13 Jepsen, law enforcement witnesses, and th e videotape of Defendant’s statement to 14 police. [DS 4] H.R. testified that Defendant threatened her and her mother to keep her 15 from reporting the rapes, but periods went by when Defendant was in another state, 16 far away from her, and that she never reported any of it. [MIO 8] Without more 17 information from Defendant about the testimony presented at trial, we presume the 18 other witnesses for the State testified to si milar facts. Defendant explained that he 19 testified in his own defense as did “several witnesses.” [DS 4] Defendant testified that 20 he had sexual relations with H.R. only after she turned ei ghteen and after she initiated 21 the sex. [MIO 8] Defendant contends hepresented a credible, alternate version of 22 events that should have raised a reasonable doubt in the minds of the jurors regarding 23 his guilt. 2415 “Contrary evidence supporting acquittal doe s not provide a basis for reversal 1 because the jury is free to reject [thed]efendant’s version of the facts.” Rojo , 1999- 2 NMSC-001, ¶ 19. We view the evidence in th e light most favorable to the verdict, and 3 do not reweigh the evidence, make credibility determinations, or substitute our 4 judgment for that of fact finder. Cunningham , 2000-NMSC-009, ¶ 26; Mora , 1997- 5 NMSC-060, ¶ 27. Viewing the evidence in th is manner, we hold that it was sufficient 6 to support the verdict. 7 CONCLUSION 8 For the reasons discussed above and in our notice, we affirm the district court’s 9 judgment and sentence. 10 IT IS SO ORDERED. 11 12 13 CYNTHIA A. FRY, Chief Judge 14 WE CONCUR: 15

16 JONATHAN B. SUTIN, Judge 17

18 LINDA M. VANZI, Judge 19