The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA
, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: 2

Fi ling Date: June 30, 2023 3

No. A

- 1

- CA

- 38510 4

STATE OF NEW MEXICO , 5

Plaintiff

- Appellee
, 6

v. 7

EDWARD CEBADA, 8

Defendant

- Appell ant

. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Jacqueline D. Flores, District Court Judge 11
Raúl Torrez, Attorney General 12 Van Snow, Assistant Attorney General 13 Santa Fe, NM 14
for Appellee 15

Bennett J. Baur, Chief Public Defender 16 Joelle N. Gonzales, Assistant Appellate Defender 17 Sa nta Fe, NM 18
for Appellant 19OPINION 1

HENDERSON , Judge. 2

{1} A jury convicted Defendant Edward Cebada of one count of criminal sexual 3
penetration of a minor (CSPM) for digitally penetrating the vagina of a sixteen

- year

4

old female (Victim) by force or coer cion, contrary to NMSA 1978, Section 30

- 9

- 5
11(E)(1) (2009). 1 De fendant appeals his conviction, arguing : (1) the jury should 6
have been instructed on the age of consent in New Mexico; (2) the jury’s question 7
of the age of consent in New Mexico should have be en answered; and (3) the district 8
court should have granted a new trial based on the jury’s responses to polling that 9
indicated it was confused about the age of consent in New Mexico. The district court 10
instructed the jury that a conviction of CSPM require d the act to have been unlawful, 11
including that it was committed without consent. We again reiterate that lack of 12
consent is not a necessary element of CSPM by force or coercion. See State v. 13

Begaye , 2022

- NMCA

- 012, ¶¶ 10

- 12, 505 P.3d 871, cert. denied (S

- 1

- SC

- 39078
, 14

Feb. 17, 2022 ). However, no one having complained on appeal about that 15

instruction, we take the opportunity to explain that under the facts of this case the 16
jury was not required to be further instructed on the age of consent in New M exico. 17
We accordingly reject Defendant’s arguments and affirm. 18

1 Defendant was also convicted of attempted CSPM by force or coercion, contrary to Section 30

- 9

- 11(E)(1) and NMSA 1978, Section 30

- 28

- 1(1963) , but his conviction was vacated by the district court on double jeopardy grounds.2 BACKGROUND 1

{2 } The factual background of this case is less relevant to our discussion than the 2
events that occurred at trial, so we only briefly discuss them for context. At some 3
point
, Defenda nt became acquainted with the Victim in this case through his job 4
working at a gas station. After exchanging a number of texts, the two arranged to go 5
on a date at a local mall. They walked in the mall for some time before going outside 6
and sitting togethe r in the Victim ’s car in the mall parking lot. The two were kissing 7
when Defendant began rubbing the Victim ’s thigh with his hand. The Victim 8
testified at trial that Defendant attempted to move his hand further up her leg and 9

into her shorts, but that she moved his hand away and told him to stop. Despite this, 10

Defendant ultimately slipped his hand inside the Victim ’s shorts and started rubbing 11
her vagina and digitally penetrating her. The Victim was able to move Defendant’s 12
hand at some point, and when Defe ndant tried to continue she told him again that 13
she wanted him to stop. While the two were in the car the Victim texted a friend 14
asking her to call Victim , and when the friend called, the Victim told Defendant that 15

she needed to leave; the encounter ended soon afterward. Law enforcement 16
discovered the incident and Defendant was indicted by a grand jury for CSPM and 17
other alleged crimes. In the end, Defendant was convicted of one count of CSPM, 18
and although Defendant moved for a new trial, his motion was den ied. He now 19
appeals. 203 {3 } We discuss any remaining facts, and the events during Defendant’s trial, as 1
they become relevant to our analysis. 2

DISCUSSION 3

I. Age of Consent Instruction 4

{4 } We first discuss whether the district court erred by not instructing the jury on 5
the age of consent in New Mexico. “The standard of review we apply to jury 6
instructions depends on whether the issue has been preserved. ” State v. Benally
, 7

2001

- NMSC

- 033, ¶ 12, 131 N.M. 25 8, 34 P.3d 1134 . If it has been preserved, we 8

review for reversible error, but otherwise , we review for fundamental error. See i d. 9

{5 } The State argues that Defend ant failed to preserve his claim of error because 10
he did not tender a legally correct jury instr uction to the district court

. Under Rule 11

5

- 608(D) NMRA
, to preserve a claim of error for failure to instruct “a correct written 12

instruction must be tendered before the jury is instructed

. ” The purpose of Rule 5

- 13
608(D) “is to alert the trial court to the de fendant’s argument.” State v. Jernigan
, 14

2006

- NMSC

- 003, ¶ 10, 139 N.M. 1, 127 P.3d 537. To that end, “if the record reflects 15
that the judge clearly understood the type of instruction the [d]efendant wanted and 16

understood the tendered instruction needed to b e modified to correctly state the law, 17
then the issue is deemed preserved for appellate review.” Id. Here, Defendant 18
tendered his requested instruction

— “[a] sixteen

- year

- old can lawfully consent to 19
sexual activity”

— to the district court, and the parties en gaged in s ubstantial 204 argument over its propriety. The district court had ample opportunity to provide a 1

correct instruction, if Defendant’s requested instruction was indeed incorrect, but 2

did not do so because it believed the age of consent to be irrelevan t. See id. ¶ 15 3
(holding that an issue of failure to instruct was preser ved when the district court 4

“understood [the d] efendant wanted an attempted voluntary manslaughter 5
instruction and had an opportunity to modify the instruction to correctly state the 6

l aw

. . . ”). Thus, Defendant’s claim of error is preserved
, and we review for 7

reversible error. 8

{6 } Defendant’s argument is two

- fold. First, Defendant broadly asserts that 9

“ where the alleged Victim is [sixteen] or [seventeen] years old, New Mexico 10
precedent clearly recognizes that a lack of consent, as a component of unlawfulness, 11

is an essential element [of CSPM by force or coercion] upon which the jury must be 12

instructed.” Second, Defendant contends that the specific facts of this case supported 13

a n instruction on the age of consent in New Mexico, and the failure to instruct 14
accordingly resulted in juror confusion. 15

{7 } As to Defendant’s first argument, this case does not require us to examine 16
whether consent is an essential element of CSPM by force or coercion. The jury was 17
instructed that to convict Defendant of CSPM it must conclude that the act charged 18

in C ount 1 was “unlawful.” It was further instructed that “[f]or the act to have been 19

unlawful it must have been done without consent and with the intent to arouse or 205 gratify sexual desire.” See UJI 14

- 132 NMRA. The unlawfulness instruction was 1
given to the jury at Defendant’s request, and over the State’s objection. Requiring 2
the jury to find that Defendant acted without consent contradicts our Sup reme 3

Court’s statement in State v. Samora , 2016

- NMSC

- 031, 387 P.3d 230. There , our 4
Supreme Court noted that in a prosecution for criminal sexual penetration of a child 5
between the ages of thirteen and eighteen by force or coercion, “if the prosecution 6

has proved that force or coercion was used by the perpetrator, it has also necessarily 7
proved that the act was non

- consensual, and a separate finding of a lack of consent 8
is not required.” Id. ¶ 26; see also Begaye , 2022

- NMCA

- 012, ¶ 12 (rejecting an 9

argument t hat our Supreme Court’s statement in Samora was dicta, concluding that 10
“the use of force on a child between the ages of thirteen and eighteen makes consent 11
irrelevant”); see also NMSA 1978, § 3 0

- 9

- 10(A) (2005) (“Physical or verbal 12

resistance of the v ictim is not an element of force or coercion.”)

. However, 13
unchallenged jury instructions become law of the case on appeal. Estate of Saenz ex 14

rel. Saenz v. Ranack Constructors, Inc. , 2018

- NMSC

- 032, ¶ 40, 420 P.3d 576. 15
Rather than the propriety of instructing on the age of consent, the question before us 16

is, given the fact the jury was instructed as such, was the district court required to 17
further instruct on the legal age of consent in New Mexico

. 18

{8 } We therefore addre ss whether the facts warranted an instruction on the legal 19
age of consent in New Mexico and if the instruction would have confused or misled 206 the jury. “ When evidence at trial supports the giving of an instruction on a 1

defendant ’ s theory of the case, failur e to so instruct is reversible error. ” See State v. 2

Brown , 1996

- NMSC

- 073, ¶ 34, 12 2 N.M. 724, 931 P.2d 69. A review of the record 3
makes clear that Defendant’s theory of the case was not that the Victim consented, 4
but that he never penetrated her. T he only evidence at trial concerning consent was 5
provided by the Victim

— and she denied that she gave it. The Victim testified that 6
she repeatedly told Defendant
, “No. I don’t want to do that. No,” and “No, I didn’t 7
want to, really,” when he digitally penetrated he r vagina. Defendant does not point 8
us to any evidence to the contrary. While he asserts that the Victim consented to 9
going on a date and to kissing, consent to those prior act s is not evidence of consent 10
to digital penetration. “ A person is entitled to wit hdraw [their] consent or express a 11
lack of consent to an act of criminal sexual penetration at any point prior to the act 12

itself

. . . .” See State v. Pisio
, 1994

- NMCA

- 152, ¶ 38, 119 N.M. 252, 889 P.2d 860. 13

No eviden ce of consent to digital penetration was pr esented during trial , even during 14

Defendant’s cross

- examination of the Victim

. 15

{9 } We nevertheless acknowledge that consent was put in issue when the district 16
court instructed the jury that to convict Defendant of CSPM it must find that he acted 17

without consent. Defendant argues that by not further instructing the jury on the age 18

of consen t in New Mexico, the district court failed to instruct on “all questions of 19
law essential for a conviction of” CSPM by force or coercion, constituting reversible 207 error. However, even if we were to assume including the language regarding consent 1

into the un lawfulness instruction made the age of consent essential, “[w] hen there 2
can be no dispute that the essential el ement was established

. . . failure to instruct on 3
that element does not require reversal of the conviction. ” Santillanes v. State , 1993

- 4

NMSC

- 012 , ¶ 32, 115 N.M. 215, 849 P.2d 358. 5

{1 0 } Furthermore, providing the jury with an instruction requiring it to find that 6
Defendant acted without consent also establishes on its face that consent was a legal 7
possibility. Under the facts of this case, no rati onal jury could have concluded that 8

the Victim was not legally capable of consenting, and providing an instruction on 9
the matter would have served only to suggest that the jury had to determine a fact 10

not in issue

. See i d

. ¶ 34 . Thus, refusing to give Defe ndant’s requested instruction 11

did not amount to reversible error

. 12

II. The Jury’s Question 13

{1 1 } We next address whether the district court erred when it refused to answer the 14
jury’s question, “What is the legal age of consent in the State of New Mexico?” “The 15
decision to issue additional jury instructions generally lies within the sound 16

discretion of the [district] court.” State v. Juan , 2010

- NMSC

- 041, ¶ 16, 148 N.M. 17
747, 242 P.3d 314. We accordingly review the district court’s decision not to answer 18
the jury’s question in this case for abuse of discretion. See State v. Wall , 1980

- 19

NMSC

- 034, ¶ 10, 94 N.M. 169, 608 P. 2d 145 (reviewing a district court’s response 208 to a jury que stion for abuse of discretion), overruled on other grounds by State v. 1

Lucero , 1993

- NMSC

- 064, ¶ 13, 116 N.M. 450, 863 P.2d 1071. “An abuse of 2
discretion occurs when the ruling is clearly against th e logic and effect of the facts 3
and circumstances of the case. We cannot say the [district] court abused its discretion 4
by its ruling unless we can characterize [the ruling] as clearly untenable or not 5
justified by reason.” State v. Rojo , 1999

- NMSC

- 001, ¶ 41, 126 N.M. 438, 971 P.2d 6
829 (internal quotation marks and citation omitted). And although a district court 7
may rightly decline to answer certain jury questions, it is an abuse of discretion for 8
the district court to fail to answer requests from the jury to clarify “the legal 9
principles governing a case.” See Juan , 2010

- NMSC

- 041, ¶ 16. 10

{1 2 } T he district court explained its decision not to answer the jury’s question as 11

follows: “ [Age of Consent] was never an issue at trial. It just wasn’t. Nobody argued 12

it ; nobody suggested it; it was never part of anybody’s theory, and I’m just concerned 13
that it’s confusing to add the instruction.” Given our discussion above regarding 14
whether it was appropriate to instruct on the age of consent , we cannot say that the 15

dist rict court’s decision is “clearly against the logic and effect of the facts and 16

circumstances of the case

. ” Rojo , 1999

- NMSC

- 001, ¶ 41

. 17

{1 3 } Neither did the district court fail to answer a question pertaining to the core 18
legal principles in this case, like Defendant suggests

. In Juan , our Supreme Court 19

reversed and remanded for a new trial when the district court failed to answer the 209 jury’s question concerning whether it must continue to deliberate until a verdict was 1

reached
, or if a “non

- verdict or a hung jury was an option.” Juan , 2010

- NMSC

- 041, 2

¶ 18 ( alteration and internal quotation marks omitted). Our Supreme Court held that 3
“when a jury requests clarification regarding the legal principles governing a case, 4

the [district ] court has a duty to respond promptly and completely to the jury’s 5
inquiry.” Id. ¶ 16. “Moreover

. . . when a statement is submitted to the court by the 6
jury during deliberations concerning the inability of the jury to arrive at a verdict, 7
together with a disclosure of the numerical division, the judge must communicate 8

with th at jury in some fashion.” Id. ¶ 17 (internal quotation marks and citation 9
omitted). 10

{1 4 } The jury in Juan had been instructed that it may only return a verdict of guilty 11
or not guilty. Id. ¶ 18. The jury’s question came at 7:30 p.m. on a Friday night, and 12
the jury continued deliberating until 9:48 p.m. Id. ¶ 19. The district court answered 13
an earlier question regarding the length of deliberations, but refused to answer the 14
jury’s later question indicating that it was having trouble reaching a consensus. Id. 15

¶ 12. Based on those facts, our Supreme Court concluded that the district court’s 16
failure to answer the j ury’s question “left the jury with the impermissible impression 17
that it must continue its deliberations indefinitely until the minority juror or jurors 18
abandoned their convictions to arrive at a verdict with the majority.” Id. ¶ 19 1910 ( alteration, internal qu otation marks, and citation omitted). The district court thus 1
“coerced the jury into reaching a verdict.” Id. 2

{1 5 } Here, there were no questions from the jury indicating that it would not be 3

able to reach a verdict. Although Defendant argues the jury “was coerced into 4
believing the age of consent was [eighteen] years old,” the jury’s question 5
concerning the age of cons ent in New Mexico does not alone indicate this to be true

. 6

Defen se counsel also affirmatively and proactively counteracted any such confusion 7
in his closing argument, when he told the jury that the age of consent in New Mexico 8

was sixteen , stating, 9

You kno w, the age of consent in New Mexico is [sixteen] . You know, 10

a [sixteen]

- year

- old young woman can do whatever she wants to. You 11 can think that’s not okay, and I w on’t disagree with you, but [the 12 Victim ] thought it was okay, and [Defendant] thought it was ok ay, and 13 there’s nothing illegal about it. 14
The jury was free to issue a verdict of not guilty based on Defendant’s theory of the 15

case

— that no sexual acts occurred

— or it could have failed to reach a verdict
, 16
something Defendant concedes the jury knew to be an option. Juan is thus 17
inapposite, as it cannot be said that by not answering the jury’s question the district 18
court “left the jury with the impermissible impression that it must continue its 19
deliberations indefinitely,” thus coercing the jury into rendering a verdict. Id

. 2011 III. Defendant’s Motion for New Trial 1

{1 6 } The final issue we address is wheth er the district court erred in denying 2
Defendant’s motion for a new trial based on newly di scovered evidence. Rule 5

- 614 3
NMRA governs motions for a new trial and provides the grounds and time limits for 4

them. Motions for a new trial “are not favored,” Stat e v. Stephens , 1982

- NMSC

- 128, 5
¶ 7, 99 N.M. 32, 653 P.2d 863
, and we review a district court’s decision to deny a 6

motion for a new trial for “manifest abuse of discretion.” State v. Bryant
, 2023

- 7

NMCA

- 016 , ¶ 39, 525 P.3d 367 (internal quotation marks and citation omitted)
, cert. 8

denied (S

- 1

- SC

- 39550 , Feb. 1, 2023 )

. 9

{1 7 } Defendant contends that he discovered new evidence when he polled the jury 10
and a juror allegedly claimed that they assumed the age of consent in New Mexico 11

was eighteen based on th e CSPM i nstruction requiring the Victim to be between ages 12

thirteen and eighteen . The State counters that this was not “new evidence” and 13

Defendant’s motion, filed thirty days after trial, wa s thus untimely. Defendant does 14
not reply to this argument. 15

{1 8 } Regardin g motions for a new trial based on new ly

- discovered evidence, our 16
Supreme Court has held as follows: 17
A motion for a new trial is properly denied unless the newly

- discovered 18 evidence is such that (1) it will probably change the result if a new trial 19 is gra nted; (2) it must have been discovered since the trial; (3) it must 20 be such that it could not have been discovered before the trial by the 21 exercise of due diligence; (4) it must be material to the issue; (5) it must 2212 not be merely cumulative; and (6) it mus t not be merely impeaching or 1 contradictory. 2
Stephens , 1982

- NMSC

- 128, ¶ 7 ( internal quotation marks and citation omitted). 3
Defendant cannot establish each of these requirements, and thus his motion for a 4
new trial was properly denied. 5

{1 9 } First, there i s no evidence of the jury’s responses during polling before us. 6
Defendant’s only citations to the record in support are of statement s from trial 7

counsel in his motion for a new trial. But “ ‘ a rgument of counsel is not evidence. ’ ” 8

State v. Cordova
, 2014

- NMCA

- 081, ¶ 10, 331 P.3d 980 ( alteration omitted) (quoting 9

Wall v. Pate , 1986

- NMSC

- 014, ¶ 5, 104 N.M. 1, 715 P.2d, 449
, overruled on other 10
grounds by Sunnyland Farms, Inc. v. Cent. N.M. Elec. Co

- op., Inc. , 2 013

- NMSC

11

017, 301 P.3d 387 ) . Second, this “evidence” is no more illuminating of any potential 12
jury confusion than the jury’s question, over which there was significant argument 13
during trial. The district court accordingly thought it to be cumulative, and we agree. 14
And although Defendant also argued below that the district court should grant the 15
motion “in the interests of justice,” such an argument was untimely under Rule 5

- 16
614(C). Because Defendant did not present new ly

- d iscovered evidence, and any 17
other argument was untimely, the district court was well within its discretion to deny 18

his motion. 1913 CONCLUSION 1

{20 } For t he foregoing reasons, we affirm. 2

{ 21 } IT IS SO ORDERED. 3

4 SHAM M ARA H. HENDERSON, Judge 5

WE CONCUR: 6

________________________________ 7 KRISTINA BOGARDUS , Judge 8

________________________________ 9 GERALD E. BACA , Judge 10