This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,885 4 BRANT GREEN, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 7 Daniel Viramontes, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Frechette & Associates, P.C. 14 Todd Hotchkiss 15 Albuquerque, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge. 192 {1} Brant Green (Defendant) appeals from his convictions for one count of criminal 1 sexual penetration in the second degree, contrary to NMSA 1978, Section 30-9-11(E) 2 (2009), and three counts of criminal sexual contact of a minor in the second degree, 3 contrary to NMSA 1978, Section 30-9-13(B) (2003). On appeal, Defendant contends 4 that his Sixth Amendment right to confrontation was violated by the district court (1) 5 restricting Defendant’s cross-examination of Victim regarding her denial Defendant 6 sexually molested her, (2) restricting De fendant’s cross-examination of Michelle 7 Salazar to exclude specific in stances of conduct, and (3) re stricting Defendant’s cross8 examination of witnesses with an unoffici al preliminary hearing transcript from 9 another county. Defendant al so contends that the distri ct court erroneously admitted 10 evidence pursuant to Rule 11-608(A) NMRA, and that cumulative error requires 11 reversal. We address each issue in tu rn and affirm Defendant’s convictions. 12 However, we note that the second amended judgment and sentence entered in this case 13 does not accurately reflect De fendant’s convictions for onecount of criminal sexual 14 penetration and three counts of criminal sexual contact with a minor. Accordingly, 15 we remand this matter for entry of a corrected judgment and sentence. 16 BACKGROUND 17 {2} Defendant was charged withone count of criminal sexual penetration and 18 multiple counts of criminal sexual contact with a minor arising from allegations made 193 by his minor stepdaughter (Victim). Vi ctim alleged that Defendant committed 1 criminal sexual misconduct in both Luna and Sierra Counties. This appeal arises from 2 the prosecution of the instances of criminal sexual misconduct occurring in Luna 3 County. 4 DISCUSSION 5 I. Confrontation Clause 6 {3} Defendant contends that the district court violated his right to confrontation by 7 unduly restricting his ability to cross-examine witnesses. “Although the extent of 8 cross-examination is a matter within the di scretion of the trial court, we review de 9 novo the question of whether the Confrontation Clause has been violated.” State v. 10 Smith , 2001-NMSC-004, ¶ 19, 130 N.M . 117, 19 P.3d 254. “[T]hetrial court retains 11 wide latitude insofar as the Confrontation Clause is concerned to impose reasonable 12 limits on . . . cross-examination based on concerns about, among other things, 13 harassment, prejudice, confusion of the issu es, the witness’ safety, or interrogation 14 that is repetitive or only marginally relevant.” Id. (alteration in original) (internal 15 quotation marks and citation omitted). “The Confrontati on Clause merely guarantees 16 an opportunity for effective cross-examination; it does not guarantee that the defense 17 may cross-examine a witness inwhatever way, and to wh atever extent, the defense 18 might wish.” State v. Sanders , 117 N.M. 452, 459, 872 P.2d 870, 877 (1994) (internal 194 quotation marks and citation omitted). “Only when cross-examination is unduly 1 restricted does constitutional error result.” Smith , 2001-NMSC-004, ¶ 19. 2 A. Defendant’s Cross-Examination of Victim 3 {4} Defendant contends that the district court unduly restricted Defendant’s cross4 examination of Victim via application of the rape shield law and precluded Defendant 5 from presenting a full and fair defense. According to our Supreme Court, 6 “[i]f application of the rapeshield law or rule would conflict with the accused’s 7 confrontation right, if it operates to precl ude the defendant from presenting a full and 8 fair defense, the statute and rule must yield.” State v. Stephen F. , 2008-NMSC-037, 9 ¶ 6, 144 N.M. 360, 188 P.3d 84 (alteration in original) (internal quotation marks and 10 citation omitted). “Under our statute and ru le of evidence, a defendant must show 11 sufficient facts to support a particular theoryof relevance to enable the trial court to 12 competently assess the constitutional significance of that theory.” Id. ¶ 7 (internal 13 quotation marks and citation omitted). 14 {5} In the present case, defense counsel wa s cross-examining Victim regarding her 15 multiple denials to law enforcement that De fendant had molested her, when the State 16 objected and asserted the rape shield statute. According to Victim’s testimony, Victim 17 had told her boyfriend that Defendant had been touching her inappropriately, and her 18 boyfriend called law enforcement officials. Law enforcement officials contacted 195 Victim, asking her if she was okay and safe, and Victim told them to leave her alone 1 and hung up on them. The next day at sc hool, Victim was called into the school 2 counselor’s office where an officer was pr esent who asked Victim if she had been 3 molested. Victim denied that Defendant had molested her, told the officer it was a 4 misunderstanding, and informed the officer that it was something that had happened 5 years before and been done by someone else. At trial, Victim testified that she 6 originally lied to law enforcement offici als because Defendant had threatened her. 7 Specifically, Victim testified that Defendant told her he would make her life “a living 8 hell,” Victim’s mother would go to jail, and Victim and her sib lings would end up in 9 foster care if she told. 10 {6} During cross-examination, defense counselasked Victim if the person that had 11 molested her previously had been prosecu ted. The State objected on the grounds that 12 the rape shield law did not permit that lin e of questioning. Defense counsel argued 13 that the question was not aimed at elic iting testimony regardi ng sexual proclivity, but 14 was to demonstrate sophistication with the j udicial system and with testifying. The 15 district court sustained the State’s objec tion and ordered defense counsel to “move 16 on.” 17 {7} Subsequently, defense counsel asked Vic tim if anyone had ever spoken to her 18 about “good touch” and “bad touch.” Vic tim testified that she had been spoken to 196 about this subject after her godfather had mo lested her. Defense counsel then asked 1 Victim whether anything bad had happened to her as a result of her reporting the 2 incident with her godfather. Again, the State objected on rape shield grounds. 3 Defense counsel argued that Vi ctim had testified that sh e denied her molestation by 4 Defendant to law enforcement officials b ecause she was scared, and that by pointing 5 out that she had reported mole station before and nothing bad had happened to her, the 6 defense would be able to challenge her explanation for changing her story. The 7 district court ruled that defense counsel could ask only that question and no more on 8 the subject. Defense counsel asked and Victim responded, “I don’t know.” 9 {8} On redirect examination, the State soughtleave to ask Vic tim when the prior 10 sexual molestation by her godfather had occurred, arguing that defense counsel had 11 implied that Victim may have confused the two incidents and the State should have 12 the opportunity to clarify on redirect examin ation that Victim was not confused. The 13 district court ruled that, if the State questioned Victim about the prior sexual 14 molestation, defense counsel would be permitted to ask about Victim’s sophistication 15 with the judicial process. The State as ked Victim when the alleged abuse occurred, 16 and what happened to the individual who co mmitted the abuse. Victim testified that 17 she was six years old at the time, and that the perpetrator of the abuse was convicted. 18 Defense counsel declined to recross-examine Victim. 197 {9} We understand Defendant to argue that th e district court erred in not permitting 1 him to question Victim regarding whether or not her godfather was prosecuted, and 2 in limiting defense counsel’s questioning regarding whether anything bad happened 3 as a result of Victim’s prior report of se xual molestation. To the extent Defendant 4 argues that the district court violated his right to confrontation by not permitting his 5 counsel to ask whether the previous o ffender was prosecuted, we do not address 6 whether there was a violation because we c onclude that any violation that may have 7 occurred in this regard was harmless. See State v. Martinez , 1996-NMCA-109, ¶ 20, 8 122 N.M. 476, 927 P.2d 31 (applying a harmless error analysis to the defendant’s 9 claim that his cross-examination was unduly restricted). 10 {10} Defendant asserts that harmless error does not apply under Bullcoming v. New 11 Mexico , ___ U.S. ___, 131 S. Ct. 2705, 2716 (2011). We disagree that Bullcoming 12 stands for the proposition that a harmless error analysis should not be applied in 13 determining whether a confrontation violati on constitutes reversibleerror. Moreover, 14 we note that our New Mexico Supreme C ourt continues to apply a harmless error 15 analysis to confrontation clause violations. See generally State v. Tollardo , 2012- 16 NMSC-008, ¶ 2, 275 P.3d 110. 17 {11} Applying a harmless error analysis, we note that “[w]here . . . a constitutional 18 error has been established, the [s]tate b ears the burden of proving that the error is 198 harmless.” Id. ¶ 25 (citing State v. Gutierrez , 2007-NMSC-033, ¶ 18, 142 N.M. 1, 1 162 P.3d 156). A constitutional error is harmless “only if we conclude that there is 2 no reasonable possibility the error contributedto the jury’s decision to convict [the 3 d]efendant.” Id. ¶ 45. “[I]n reaching a judgment as to the likely effect of the error, 4 [we] evaluate all of the circumstances surrounding the error.” Id. ¶ 43. 5 {12} Here, the State points out that the info rmation defense couns el sought to elicit 6 from Victim during cross-examination—i.e., whether the previous perpetrator was 7 prosecuted—was asked by the State during re direct examination. Defendant has not 8 informed this Court what further information he wanted to elicit through the cross9 examination of Victim on this issue, how th at information would have been relevant, 10 or how this further questioning would haveallowed him to present a full and fair 11 defense. See Stephen F. , 2008-NMSC-037, ¶ 7 (stating th at “a defendant must show 12 sufficient facts to support a particular theory of relevance” for the court “to 13 competently assess the constitutional significance of that theory”); see also Smith , 14 2001-NMSC-004, ¶ 21 (requiring th e defendant to show on appeal how the evidence 15 the defendant would have e licited was relevant). More over, the district court 16 explicitly ruled that once the State questione d Victim about the prior incident, defense 17 counsel would be permitted to question Victim about “any sophistication with respect 18 to knowledge of the courts.” Defense couns el chose not to recross-examine Victim. 199 Because the evidence Defendant sought to elic it was before the jury, and because the 1 district court later allo wed defense counsel to pursue the line of questioning 2 complained of, we conclude that any alleged violation of Defendant’s right to 3 confrontation was harmless error. 4 {13} To the extent Defendant c ontends that the district court violated his right to 5 confrontation by limiting his questioning of Victim regarding which negative 6 consequences arose from her reporting th e incident involving her godfather, we 7 conclude that Defendant has not demonstratedthat the district court violated his right 8 to confrontation. The State points out thatthe district court allowed defense counsel 9 to ask Victim about the negative conseque nces of reporting. In his reply brief, 10 Defendant responds that the “ruling by the [district] court wa s not to permit more 11 inquiry, but to stop inquiry.” Defendant goes on to argue: “The State asserted . . . that 12 defense counsel never asserted that he intended or de sired to go beyond asking the one 13 question regarding [Victim’s] earlier disclosure. The record shows counsel did not 14 intend to limit his cross[-]examination of [Victim].” We note, however, that the 15 record is devoid of any argument or indication by defense counsel as to what further 16 questions he wished to ask of Victim and how those ques tions were relevant to the 17 defense. See State v. Johnson , 1997-NMSC-036, ¶ 33, 123 N.M. 640, 944 P.2d 869 18 (“A defendant must specify the issue or issu es the evidence is in tended to address and 1910 demonstrate how the evidence is truly probative on those issues[.]” (internal quotation 1 marks and citation omitted)). While Defendant asserts on appeal that the district 2 court’s ruling limited his ability to present a full and fair defens e, Defendant does not 3 indicate what additional questions he woul d have asked, or what evidence he hoped 4 to elicit. See Smith , 2001-NMSC-004, ¶ 21 (citing In re Ernesto M. , 1996-NMCA5 039, ¶ 10, 121 N.M. 562, 915 P.2d 318, for th e proposition that “[a]n assertion of 6 prejudice is not a showing of prejudice”). As a result, we conclude that Defendant has 7 failed to demonstrate error on appeal in this regard. 8 B. Testimony of Michelle Salazar 9 {14} The State called Michelle Salazar, anemployee of Children, Youth and 10 Families Department (CYFD), as a rebuttal witness to testify regarding Defendant’s 11 character for veracity. Salazar’s testimony was premised on both her interactions with 12 Defendant in her position at CYFD, and in Defendant’s capacity as a substitute 13 teacher where he taught Salazar’s son. As an employee of CYFD, Salazar’s testimony 14 was constrained by confidentiality require ments contained in NMSA 1978, Section 15 32A-4-33 (2009). Defendant contends that his ability to effectively cross-examine 16 Salazar regarding the specific instances of conduct that made up her opinion that 17 Defendant was not truthful was undul y restricted by these confidentiality 1811 requirements, and that, as a result, the distri ct court violated his right to confrontation 1 by allowing Salazar to testify. 2 {15} We disagree with Defendant’s contention that his right to cross-examine Salazar 3 was unduly restricted. First, we note that the district court a llowed defense counsel 4 to inquire into the specific instances of conduct that formed Salazar’s opinion. 5 Moreover, to the extent Defe ndant is arguing that his ri ght to cross-examine Salazar 6 was unduly restricted despite his ability to inquire into the specific instances of 7 conduct, we note that Defendant moved to strike Salazar’s testimony. The district 8 court granted Defendant’s mo tion to strike Salazar’s te stimony to the extent it was 9 based on Salazar’s employment at CYFD and her discussion with other CYFD 10 employees, but did not strike Salazar’s te stimony to the extent it was premised on 11 Salazar’s interaction with Defendant through his position as a substitute teacher and 12 Salazar’s discussions with school employees. Given that the testimony Defendant 13 complains he could not cross-examine Sal azar about was stricken, we conclude that 14 the district court did not violate Defendant’s right to confrontation. 15 {16} Finally, Defendant relies on State v. Guess , 98 N.M. 438, 441, 649 P.2d 506, 16 509 (Ct. App. 1982), for the proposition that “[w]hen [a] defendant is placed in the 17 position of being unable to exercise his Sixth Amendment privilege because the 18 witness cannot be cross-examined, the re medy is to exclude the evidence of that 1912 witness.” We disagree with De fendant’s characterization of Guessas analogous given 1 that, in the present case, th e evidence was essentially excl uded, as it was stricken from 2 the record. Furthermore, we conclude th at Defendant’s citation to federal authority 3 is similarly distinguishable. 4 C. Preliminary Hearing Transcripts 5 {17} Defendant contends that the districtcourt erred in not permitting him to 6 impeach various witnesses using an unoffici al transcript of a preliminary hearing 7 conducted in Sierra County. Onthe evening after the first day of trial, defense counsel 8 informed the district court that he inte nded to impeach some of the witnesses with 9 preliminary hearing testimony from both the Luna County and Sierra County hearings. 10 Defense counsel informed the district court that the transcript prepared was not an 11 official transcript and offered a copy to the prosecutor to revi ew. The State objected 12 to the use of an unofficial transcript on the grounds that it would not have sufficient 13 time to review the tapes to check for accur acy and pointed to the district court’s 14 pretrial ruling that information relating to the Sierra County charges would not be 15 admissible. The district court determined that the late disclosure of the unofficial 16 transcript would be unduly burdensome on th e State if Defendant were allowed to 17 impeach witnesses using the unofficial transcript of the Sierra County preliminary 18 hearing. 1913 {18} Although Defendant places his argument under the heading of “Denial and 1 Restrictions of Defendant’s Sixth Ame ndment Rights to Confront and Cross[-] 2 Examine Witnesses,” Defendant provides no argument in support of how the district 3 court violated his right to confrontation. Defendant has not iden tified which witnesses 4 he wanted to impeach or how the preliminary hearing transcript differed from the 5 testimony at trial. Hence, Defendant has failed to demonstrate how he was unable to 6 present a full and fair defense, and he has therefore failed to demonstrate a violation 7 of his right to confrontation. 8 {19} To the extent Defendant argues that the district court’s decision was in violation 9 of the rules of criminal procedure, by not identifying the witnesses he hoped to 10 impeach or how the preliminary hearing transcript would have allowed him to do so, 11 Defendant has not demonstrated how he was prejudiced by the district court’s rulings. 12 “In the absence of prejudice, there is no reversible error.” State v. Fernandez , 117 13 N.M. 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994). As we stated above, “[a]n 14 assertion of prejudice is not a showing of prejudice.” In re Ernesto M., Jr. , 1996- 15 NMCA-039, ¶ 10. We therefore conclude that Defendant has failed to demonstrate 16 reversible error in this regard. 17 II. Rule 11-608(A) NMRA 1814 {20} Defendant contends that the district court abused its discretion in permitting 1 Salazar to testify pursuant to Rule 11- 608, regarding her opi nion of Defendant’s 2 character for untruthfulness and regardi ng Defendant’s reputation in the community 3 for untruthfulness. Specifically, Defendant contends that the State failed to lay a 4 proper foundation for Salazar’s testimony. Because, as we noted above, Salazar’s 5 testimony was stricken to the extent it wa s premised on her dealings with Defendant 6 through her work with CYFD and her know ledge of his reputation through her CYFD 7 co-workers, we limit our review to a consid eration of her testimony to the extent it 8 was premised on Salazar’s interaction with Defendant as a substitute teacher and her 9 discussions with school employees. 10 {21} “We review the admission of evidence under an abuse of discretion standard 11 and will not reverse in the absence of a clear abuse.” See State v. Sarracino , 1998- 12 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs when 13 the ruling is clearly against the logic and e ffect of the facts and circumstances of the 14 case. We cannot say the trial court abus ed its discretion by its ruling unless we can 15 characterize it as clearly untenable or not justified by reason.” State v. Rojo , 1999- 16 NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation 17 omitted). 1815 {22} Pursuant to Rule 11-608(A), “the cred ibility of a witness may be attacked by 1 evidence in the form of an opinion or as to reputation, but only as it relates to the 2 witness’s character for truthfulness or untruthfulness and only after a proper 3 foundation is laid.” Constr. Contracting & Mgmt., Inc. v. McConnell , 112 N.M. 371, 4 376, 815 P.2d 1161, 1166 (1991). “[A]lthough both opinion and reputation testimony 5 are admissible under Rule 11-608[(A)], they require different factual foundations.” 6 Id. 7 {23} Salazar testified that Defendant was her son’s substitute teacher. She also 8 testified that she was present when several teachers were talking about an instance 9 where Defendant’s stepson wrecked Defendant’s car, but Defendant did not want to 10 report it to law enforcement b ecause his stepson did not havea license. She testified 11 that her own opinion was that Defendant was not truthful. Salazar also testified that 12 she knew other people in the community thatknew Defendant, and that she had heard 13 that his reputation in the community was as someone who was not truthful. 14 {24} We conclude that the State laid a sufficient foundation for Salazar’s opinion and 15 reputation testimony. First, with respectto Salazar’s testimony as to Defendant’s 16 reputation, the prosecutor asked Salazar que stions about how long she had worked in 17 and therefore been a part of the co mmunity, and whether she had heard about 18 Defendant’s reputation for truthfulness. Salazar testified as to how long she had 1916 worked in the community and that she ha d heard about Defendant’s reputation for 1 truthfulness. We conclude this was sufficient to establish a foundation for Salazar’s 2 testimony regarding De fendant’s reputation. See McConnell , 112 N.M. at 376, 815 3 P.2d at 1166 (indicating that questions regarding how long the witness had lived in the 4 community or whether the witness was familiar with the defendant’s reputation for 5 truth and veracity establish a foundation fo r testimony about a de fendant’s reputation 6 for truthfulness). 7 {25} Similarly, Salazar’s tes timony about her interaction with Defendant and her 8 impressions from other people, such as th e teachers she testified to having spoken 9 with about Defendant, provides a suffici ent foundation for Salazar’s opinion that 10 Defendant was not trustworthy. See id. (concluding that a pr oper foundation was laid 11 for the witness to testify as to his opini on of the defendant’s veracity based on the 12 witness’s “own repeated dealings with [the defendant] and his impressions from other 13 people”). To the extent Defendant contends th at the district court abused its discretion 14 in admitting Salazar’s testimony about Defendant’s veracity because Salazar could not 15 remember the names of each person she talked to and had no personal knowledge of 16 Defendant’s stepson’s automobile accident, we conclude that these arguments go to 17 the weight given Salazar’s testimony and not its admissibility. Cf. State ex rel. Elec. 18 Supply Co. v. Kitchens Constr., Inc. , 106 N.M. 753, 756, 750 P.2d 114, 117 (1988) 1917 (relying on the principle that, with respect to business records, “absence of personal 1 knowledge shall not affect admissibility”). A ccordingly, we conclude that the district 2 court did not abuse its discretion in this regard. 3

III. Cumulative Error 4 {26} Defendant contends that his convictions should be reversedunder the doctrine 5 of cumulative error. “The doctrine of cumulative error re quires reversal when a series 6 of lesser improprieties throughout a trial are f ound, in aggregate, to be so prejudicial 7 that the defendant was deprived of th e constitutional right to a fair trial.” State v. 8 Duffy , 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, overruled on other 9 grounds by Tollardo , 2012-NMSC-008, ¶ 37 n.6. The “doctrine of cumulative error 10 is strictly applied,” and may not be succe ssfully invoked if the record as a whole 11 demonstrates that the defendant received a fair trial. State v. Trujillo , 2002-NMSC12 005, ¶ 63, 131 N.M. 709, 42 P.3d 814. 13 {27} Although in the present case we assumed w ithout deciding that the district court 14 erred with respect to its limitation on Defendant’s ability to cross-examine Victim 15 regarding prior instances of sexual abuse and concluded that sucherror was harmless, 16 our review of Defendant’s i ssues has resulted in no other determination that error 17 occurred. As a result, there is no basis for concluding that cumulative error exists. 1818 CONCLUSION 1 {28} For the foregoing reasons, we affirm De fendant’s convictions for one count of 2 criminal sexual penetration in the second de gree, contrary to Section 30-9-11(E), and 3 three counts of criminal sexual contact of a minor in the second degree, contrary to 4 Section 30-9-13(B). We remand to the district court for correction of the second 5 amended judgment and sentence to accurate ly reflect Defendant’s convictions. 6 {29} IT IS SO ORDERED. 7

8 M. MONICA ZAMORA, Judge 9 WE CONCUR: 10

11 CYNTHIA A. FRY, Judge 12

13 LINDA M. VANZI, Judge 14