This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 33,243 4 OTHON CALVILLO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 Mark T. Sanchez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Adam Greenwood, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Santa Fe, NM 15 Sergio J. Viscoli, Assi stant Appellate Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge. 202 {1} Defendant appeals his convictions for tw o counts of criminal sexual penetration 1 of a minor (CSPM) in the first degree (c hild under 13), contrary to NMSA 1978, 2 Section 30-9-11(D)(1) (2009) and two counts of criminal sexual contact of a minor 3 (CSCM) in the second degree (child under 13), contrary to NMSA 1978, Section 30- 4 9-13(B) (2004).On appeal, Defendant argues that the district court: (1) committed 5 plain error by allowing the State’s expert w itness to comment on the credibility of the 6 Victim’s testimony; (2) committed fundament al error by failing to provide specificity 7 in the charging documents that violated Defendant’s due pro cess and double jeopardy 8 rights; (3) erred in convicting Defendant for two counts of second degree CSCM 9 based upon four separate and distinct assertions of erro r; and (4) erred in convicting 10 Defendant of a second count of CSPM during the second time period stated in the 11 charging documents because insufficient evidence was presented to support this 12 conviction. 13 {2} In its answer brief, the State concededthat one of the tw o CSPM convictions, 14 Count 2, should now be reversed becauseinsufficient evidence was presented to 15 establish when the acts of CSPM occurred under Count 2. The State concedes that any 16 pattern of criminal conduct occurring while the Victim was in the third grade must 17 now be reduced to a single count, resulting in a single conviction under Count 1. The 18 State further concedes that both counts of CSCM should be reversed based upon 193 insufficient evidence. Defendant does not di sagree with the State’s concessions, and 1 argues that the remaining conviction for CSPM should also bereversed based upon: 2 (1) plain error in allowing the State’s expert witness to comment on the credibility of 3 the Victim’s testimony and identity of the perpetrator; (2) fundamental error by failing 4 to provide specificity in the charging docume nts that violated Defendant’s due process 5 rights; and (3) insufficiency of the evidence to support one count of CSPM. 6 {3} First, we accept the State’s concessions regarding the reversal of one count of 7 CSPM and both counts of CSCM. We also ag ree that the State committed plain error 8 when it used its expert witness to bolster and support Victim’s credibility regarding 9 the allegations of sexual abuse by identifying Defendant as the perpetrator of the 10 sexual abuse and providing expert testimony diagnosing Victim’s medical symptoms 11 as resulting from sexual abuse. Because plain error occurred, we address whether there 12 was sufficient evidence to support Defendant ’s conviction for the one remaining count 13 of CSPM. We hold that sufficient eviden ce does exist in the record to support 14 Defendant’s conviction for CSPM under Count 1. We th erefore reverse and remand 15 for a new trial on Count 1. Finally, base d upon our plain error determination and 16 remand for a new trial on Count 1, we conc lude that it is unnecessary to address 17 Defendant’s remaining assertion of error. 184 BACKGROUND 1 {4} The relevant facts are known to the parties. Based upon the State’s concession 2 regarding one of Defendant’s convictions of CSPM and both convictions of CSCM, 3 we briefly summarize only the facts necessaryto resolve the two remaining disputed 4 issues. The remaining issues are: (1) whether plain error occurred during the testimony 5 of Dr. Reena Isaac, the State’s expert w itness and (2) whether the evidence was 6 sufficient to support a conviction for one count of CSPM. 7 {5} At the inception of the incidents identified at trial, Victim was a third-grader in 8 Hobbs, New Mexico, where he lived with his grandfather, mother, and Defendant, 9 who was mother’s second husband. Victim failed the third grade and was required to 10 repeat the third grade during this time frame. Victim told Dr. Isaac about the sexual 11 abuse that occurred over the course of th is time period, approximately two years in 12 duration, and later testified at trial that De fendant anally penetrated Victim with his 13 penis twenty times, including various incidents of touching or sexual fondling that 14 occurred during the course of these multipleevents. There were no other witnesses to 15 the alleged incidents, and Victim did not report the incidents of sexual abuse to 16 anyone for a few years, even after he move d with his natural father near Houston, 17 Texas. Evidence was also presented that at or around the time of the incidents, 18 Victim’s mother noticed an attitude ch ange and that something was wrong with 195 Victim. Victim’s natural father noticed th at Victim was angry and withdrawn; and 1 Victim’s maternal grandmother saw that Vi ctim was angry, withdrawn, and started 2 having bowel movements in his underwear. 3 {6} After the incidents of sexual abuse were reported to Victim’s aunt, Victim 4 spoke to law enforcement and was eventually taken to see Dr. Isaac, a pediatrician 5 who was affiliated with Baylor College of Medicine and had a sub-specialty in 6 forensic pediatrics and/or child abuse pe diatrics. At trial, Dr. Isaac was qualified as 7 an expert witness in the field of forensic pediatrics. Dr. Isaac testified that during her 8 examination of Victim, she discovered so ft stool around Victim’s anus that was 9 indicative of encopresis, a syndrome of random, uncontrolled defecation. Dr. Isaac 10 also testified that Victim was below normal in both body size and weight, based upon 11 his age, and suffered from anger issues. Dr . Isaac testified and confirmed that Victim 12 told her about the sexual abuse that had occurred, including the fondling and anal 13 penetration. Based upon her overall examination and evaluation of Victim, Dr. Isaac 14 was asked “whether [Victim] suffered anal penetration and/or fondling” and answered 15 that “[Victim] carries the diagnosis of se xual abuse.” Finally, Dr. Isaac also testified 16 that Victim identified Defendant as the perpetrator of the se xual abuse. Defendant 17 made no objection to any of the expert testimony by Dr. Isaac. 186 DISCUSSION 1 1. Plain Error Occurred During Dr. Isaac’s Testimony 2 {7} On appeal, Defendant argues that tes timony by Dr. Isaac constitutes plain error 3 and his remaining conviction for one c ount of CSPM must be reversed. Because 4 Defendant failed to object to Dr. Isaac’s te stimony or otherwise preserve this issue 5 below, we now review this evidentiary matter for plain error. Rule 11-103(D), (E) 6 NMRA; see State v. Montoya , 2015-NMSC-010, ¶ 46, 345 P. 3d 1056. For plain error 7 to have occurred, the appellate court “must be convinced that admission of the 8 testimony constituted an injustice that created grave doubts concerning the validity of 9 the verdict.” Montoya , 2015-NMSC-010, ¶ 46 (internal quotation marks and citation 10 omitted). Under this standard of review, we must also “examine the alleged errors in 11 the context of the testimony as a whole.” Id. (internal quotation marks and citations 12 omitted). 13 {8} The trial in this case was primarily focused on the credibility of Victim’s 14 testimony. No other witness testified about observing any sexual interaction between 15 Defendant and Victim. Looking at the case as a whole, Dr. Isaac’s testimony not only 16 recounted Victim’s statements about the sexual abuse, she also named Defendant as 17 the perpetrator of the abuse and specificallygave a forensic pediatrician’s expert 18 medical opinion that Victim carried a dia gnosis of sexual abuse. This testimony was 197 not accidental and was all solicited through direct questioning by the prosecutor. The 1 cumulative effect of this testimony accomp lished three strategic purposes for the 2 State: (1) it bolstered and supported Victim ’s credibility regarding the allegations of 3 sexual abuse, (2) it specifically diagnosed that Victim’s medical symptoms resulted 4 from sexual abuse, and (3) it bolstered and supported Victim’s allegation that the 5 sexual abuse was committed by Defendant. 6 {9} Our Supreme Court has previously determined that expert testimony of this 7 nature is sufficiently prejudicial to constitute plain error. See State v. Lucero , 1993- 8 NMSC-064, ¶¶ 12-19, 21-22, 116 N.M. 450, 863 P.2d 1071 (applying the standard for 9 plain error and holding that expert testimony directly bolstering the credibility of the 10 victim and connecting the diagnosis to sexual abuse by a specific perpetrator 11 established plain error and required reversal). In this case, Dr. Isaac’s testimony is 12 equally concerning with regard to its influence on the validity of the verdict. See State 13 v. Alberico , 1993-NMSC-047, ¶ 89, 116 N.M. 156, 861 P.2d 192 (noting that only 14 “[i]ncidental verification of [a ] victim’s story or indirect bolstering of [a victim’s] 15 credibility” is permissible by the state). W ith Victim’s testimony and credibility being 16 the pivotal issues in this case, Dr. Isaac went far beyond testifying that Victim’s 17 symptoms were potentially consiste nt with acts of sexual abuse. See Lucero , 1993- 18 NMSC-064, ¶ 17. By testifying about Victim ’s statements regarding specific acts of 198 genital fondling, sexual abus e, and tying Victim’s symptoms to a medical diagnosis 1 of sexual abuse, Dr. Isaac was validating Victim’s testimony of abuse as well as 2 Victim’s credibility. Id. ¶ 18. 3 {10} An expert is not allowed to testify that a victim’s symptoms were in fact caused 4 by or resulted from sexual abuse. See Alberico ,1993-NMSC-047, ¶ 91 (recognizing 5 that such testimony improperly encroaches upon the province of the jury). An expert 6 is also prohibited from testifying as to the identity of the alleged perpetrator of the 7 crime. See id. ¶ 88 (noting that such identification testimony by the expert encroaches 8 too far upon the jury’s function as the arbiter of credibility); see also Lucero , 1993- 9 NMSC-064, ¶ 16 (recognizing that “naming th e perpetrator was tantamount to saying 10 that the complainant was telling the truth” ). Dr. Isaac made both of these additional 11 errors during her testimony in this case. As a result, Dr. Isaac’s expert testimony was 12 of sufficient significance to raise grave doubts about the validity of the jury’s verdict 13 convicting Defendant of CSPM. See State v. Fairweather , 1993-NMSC-065, ¶¶ 18-20, 14 116 N.M. 456, 863 P.2d 1077 (determining that an expert’s bolstering of a victim’s 15 credibility and stating that the victim’s sy mptoms were in fact caused by sexual abuse 16 was not harmless error, especially when credibility was a pivotal issue at trial). These 17 grave doubts arise from the very limited circ umstantial and inferential nature of the 18 State’s remaining evidence against Defendant. The improper emphasis and bolstering 199 provided by Dr. Isaac clearly provided thatadditional support the State wanted to 1 present the jury in order to obtain Defendant’s conviction. See Lucero , 1993-NMSC2 064, ¶ 22 (concluding that where the “credib ility [of the alleged sexual abuse victim] 3 was a pivotal issue in this case, it is likely that the jury was swayed by [the expert’s] 4 improper testimony”). As a resu lt, we determine that Dr. Isaac’s testimony rises to the 5 level of plain error in this particular case. 6 {11} Because plain error occurred, we must address the appropriate remedy for this 7

error. See State v. Paiz , 1999-NMCA-104, ¶¶ 33-34, 127 N.M. 776, 987 P.2d 1163 8 (remanding for a new trial once a determinati on of plain error has been established); 9 see also State v. Romero , 1980-NMCA-052, ¶ 2, 94 N.M. 300, 609 P.2d 1256 10 (reversing for plain error and remanding for a new trial). To avoid double jeopardy, 11 remand for retrial is only permitted if the state has presented sufficient evidence to 12 support a Defendant’s convic tion at the first trial. State v. Consaul , 2014-NMSC-030, 13 ¶ 41, 332 P.3d 850; State v. Cabezuela , 2011-NMSC-041, ¶ 40, 150 N.M. 654, 265 14 P.3d 705. 15 2. The Sufficiency of the Evidence to Support Defendant’s Conviction for One 16 Count of CSPM 17 {12} We now address Defendant’s claim that insufficient evidence was presented by 18 the State to support his conviction for one count of CSPM. In reviewing the 19 sufficiency of the evidence, the court determines “whether substantial evidence of 2010 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 1 reasonable doubt with respect to every element essential to a conviction.” State v. 2 Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation 3 marks and citation omitted). Evidence is vi ewed by the appellate court in “the light 4 most favorable to the guilty verdict, indul ging all reasonable inferences and resolving 5 all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 2000- 6 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. This Court “does not weigh the 7 evidence or substitute its j udgment for that of the fact finder as long as there is 8 sufficient evidence to support the verdict.” State v. Chavez , 2009-NMSC-035, ¶ 11, 9 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted). In short, 10 the court determines if “a rational jury could have found beyond a reasonable doubt 11 the essential facts requi red for a conviction[.]” Garcia , 2011-NMSC-003, ¶ 5 (internal 12 quotation marks and citation omitted). 13 {13} One aspect of Defendant’s insufficiency argument deals with dates that specific 14 encounters were said to have occurred and those dates alle gedly conflicting with 15 Defendant’s incarceration sometime in 2007 and continuing into 2008. The other 16 aspect of Defendant’s insufficiency argument deals with an alleged failure to present 17 distinct evidence supporting the time frame for Count 2, those dates being between 18 March 30, 2006 through April 30, 2007. We canresolve both arguments very quickly. 1911 {14} Defendant does not dispute the sufficien cy of the evidence presented by the 1 State to support his conviction for CSPM under Count 1, which occurred from March 2 1, 2005 through April 1, 2006. In addition, Defendant does not argue that his 3 incarceration in 2007 conflicted with the time frame charged in Count 1. All of 4 Defendant’s arguments regarding the suffici ency of the evidence either attack the 5 evidence presented to support Count 2 or question the time frame specified in Count 6 2. These sufficiency arguments are now moot because the St ate has stipulated to the 7 dismissal of the conviction for Count 2. See State v. Sergio B. , 2002-NMCA-070, ¶ 9, 8 132 N.M. 375, 48 P.3d 764 (“An appeal is moot when no actual controversy exists, 9 and an appellate ruling will not grant the appellant any actual relief.”). As a result, 10 Defendant’s arguments regarding Count 2 have already been resolved in his favor. 11 {15} Although Defendant does not specifically attack th e evidence presented to 12 support Defendant’s convicti on under Count 1, this Court must still determine that 13 sufficient evidence exists to support a retrial on Count 1. See Consaul , 2014-NMSC14 030, ¶ 41. The State has identified details from Victim’s testimony to support the 15 incidents of sexual abuse under Count 1. Victim specifically testified about numerous 16 incidents of anal penetration while he was in the third gr ade year that continued into 17 the next year when he repeated the third grade. This evidence supports numerous 18 incidents of sexual abuse during the time frame set forth under Count 1, and 1912 Defendant’s briefs did not attack any of this evidence when he challenged the 1 sufficiency of the evidence to support the one remaining count of CSPM. See State v. 2 Reyes , 2002-NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948 (recognizing the 3 defendant’s misapprehension of the appellatereview process for sufficiency of the 4 evidence and noting that “[ a]n appellate court does not evaluate the evidence to 5 determine whether some hypothesis could be designed[,] which is consistent with a 6 finding of innocence” (internal quotation marks and citation omitted)), abrogated on 7 other grounds by Allen v. LeMaster , 2012-NMSC-001, 267 P.3d 806. As a result, we 8 hold that sufficient evidence was presented by the State to support Defendant’s 9 conviction on Count 1. Count 1 is remande d to the district court for retrial. 10 {16} As a result of the State’s concessi ons regarding three of Defendant’s 11 convictions and our reversal and remand for a new trial on the one remaining count 12 of CSPM, we determine that it is unnece ssary for this Court to address any of 13 Defendant’s remaining a ssertions of error. See State v. Vallejos , 1994-NMSC-107, ¶ 14 13, 118 N.M. 572, 883 P.2d 1269. 15 CONCLUSION 16 {17} Based on the State’s concessions and our analysis regarding the remaining 17 conviction for CSPM, we re verse Defendant’s CSPM c onviction under Count 2 and 18 both convictions for CSCM. In addition, we reverse and remand this matter back to 1913 the district court for a new trial on Count 1 of CSPM. 1 {18} IT IS SO ORDERED. 2

______________________________ 3 TIMOTHY L. GARCIA, Judge 4

WE CONCUR: 5

_________________________________ 6 M. MONICA ZAMORA, Judge 7

_________________________________ 8 J. MILES HANISEE, Judge 9