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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 ve rsion 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. 28,504 4 RUSSELL WILSON, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 7 Camile Martinez-Olguin, District Judge 8
Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Alex Chisholm 13 Albuquerque, NM 14 for Appellant 15

MEMORANDUM OPINION 16 KENNEDY, Chief Judge. 172 This case raises the issue of whether three-month time spans in the indictment 1 against Russell Wilson (Defendant) were impermissibly vague and whether the 2 children’s testimony provided substantial evidence to allow the charges to go to the 3 jury. We hold that the charges were acceptably framed and were based on the 4 children’s narratives of specific instances of abuse. We also hold that their testimony 5 provided substantial evidence to deny Defenda nt’s motion for a directed verdict and 6 that the jury instructions regarding ch ild abuse were supported by evidence and were 7 not misleading. We affirm. 8 I. BACKGROUND 9 Defendant married Julie in February 2005. Julie had three children from 10 previous marriages: B.R., J.R., and A.K. Julie and her children had been living on 11 her parents’ property in Grants, New Mexico. Soon after the marriage, Defendant, 12 Julie, and the three children m oved to a house on Tumble Weed Road in Milan, New 13 Mexico. The children later stated that Defenda nt physically and sexually abused them 14 during their time in that house. A year later, Child Protective Services (CPS) 15 responded to a referral and checked on the fam ily. Within days, Julie sent the children 16 back to live at their grandparents’ house. Once they were back with their 17 grandparents, the children disc losed Defendant’s abuse to their grandmother, and she 18 called CPS. 193 The family took some steps with CPS until Defendant and Julie traveled with 1 the children to Durango, Colorado, where they all lived out of their van in a Wal-Mart 2 parking lot for several weeks. Eventually, Defendant and Julie were arrested by 3 Colorado authorities, and the ch ildren were sent to live w ith their grandparents, who 4 now serve as their foster parents. 5 Defendant was charged with several counts of physical and sexual abuse of the 6 children, taking place during the year that they lived on Tumble Weed Road. A jury 7 found him guilty of thirteen counts in September 2007. Defendant appealed. 8 II. DISCUSSION 9 Defendant’s arguments may be summarized into two main points. First, he 10 challenges the legal adequacy of the indi ctment, claiming that the three-month time 11 periods the State used in charging him ar e randomly constructed and impermissibly 12
vague. Second, Defendant also claims that the trial tes timony of the children as 13 witnesses was not sufficient to support the ch arges and that, therefore, he should have 14 been granted his motions for a directed verd ict and that the jury instructions on the 15 child abuse charges were in error. 16 A. Objection to the Amended Indictment Was Waived 17 Defendant argues that his indictment wa s not particular e nough with regard to 18 the time and nature of his offens es under the nine-factor test in State v. Baldonado , 194 1998-NMCA-040, ¶¶ 26-28, 124 N.M. 745, 955 P.2d 214. In the case at hand, 1 defense counsel initially cha llenged the legal sufficiency of the indictment in his 2 motion to dismiss on due process grounds because “of the vague and extended 3 time[]frames alleged.” Howe ver, at the pretrial hearing on Defendant’s motion to 4 dismiss, defense counsel told the court that he no longer objected to any time frame 5 issues. At the hearing, two things occu rred: (1) the State extensively amended its 6 indictment, and (2) defense counsel stated that the other arguments raised in his 7 motion to dismiss were no longer at issue. Defense counsel stated: 8 [M]ost of the rest of the . . . issues . . . raised that I had questions about 9 [were] the time frames, a nd the State has indeed . . . , to their credit, 10 addressed those in a very honorable fashion to say, “Look, we don’t 11 think we can proceed on these time frame s.” . . . The pr imary issues that 12 I had were those crimes that were liste d in seven counts . . . that the State 13 . . . is seeking to dismiss and, obviously, we have no objection. 14 After indicating that he wa s no longer concerned with those time frames, counsel did 15 not argue that he had further concerns w ith time frames for each charge. We conclude 16 that defense counsel failed to invoke a ruli ng on the issue by indicating to the district 17 court that the time frame issue had been resolved by the State’s amended indictment 18 and failed to alert the district court to a ny further objection that might have existed 19 following the amendment. Defendant therefor e failed to preserve his objection to the 20 indictment as it stood before the trial began. 215 B. There Was Sufficient Evidence to Support the Dismissal of Defendant’s 1 Motion for a Directed Verdict 2 Defendant next argues that the childre n’s testimony at trial did not provide 3 evidence substantial enough to support his convictions. He first states that he should 4 have been granted his moti on for a directed verdict. “The question presented by a 5 directed verdict motion is whether ther e was substantial ev idence to support the 6 charge.” State v. Dominguez , 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993). 7 “In reviewing the sufficiency of the eviden ce, we must view the evidence in the light 8 most favorable to the guilty verdict, indul ging all reasonable inferences and resolving 9 all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 2000- 10 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We will first address Defendant’s 11 ongoing concern with the time spans and then examine the evidence supporting each 12 of his convictions in turn. 13 1. The Time Spans Submitted to the Jury Are Supported by the Children’s 14 Testimony 15 Defendant argues that the children either failed to provide exact dates or were 16 vague as to the time frames of the incidents that they testified about, which the State 17 charged in three-month spans. At stake is his due pro cess right to reasonable notice 18 of the charges against him in order to prepare his defense. See Baldonado , 1998- 19 NMCA-040, ¶ 18. 206 The [ Baldonado ] test reviews the reasonablen ess of the [s]tate’s efforts 1 at narrowing the time of the indictment and measures the potential 2 prejudice to the defendant of the time frame chosen by the [s]tate. No 3 one factor is determinative. Rathe r, each can be expected to play a 4 different role depending on the facts of each case. 5 Id. ¶ 26. 6 [T]he [ Baldonado ] factors include, but should not necessarily be limited 7 to, the following: 8 1. The age and intelligence of the vi ctim and other witnesses, and 9 their ability to particularize the date and time of the alleged offense; 10 2. The surrounding circumstances[,] including whether a continuing 11 course of conduct is alleged, as opposed to a relatively few, discrete[,] 12 or isolated events; 13 3. The extent to which [the] de fendant had frequent, unsupervised 14 access to the victim; 15 4. The nature of the offense, incl uding whether it is likely to occur 16 at a specific time or is likely to have been discovered immediately; 17 5. The length of the alleged period of time in relation to the number 18 of individual criminal acts alleged; 19 6. The length of time asserted in the indictment; 20 7. The passage of time between the period alleged for the crime and 21 the time the abuse was asserted and/or the time [the] defendant 22 was arrested, and/or indicted; 23 8. The extent and thoroughness of the [s]tate’s efforts to narrow the 24 time frame; and 25 9. Whether the defendant can asserta plausible alibi defense. 267 Id. ¶ 27. “Application of these factors cannot, and should not, be reduced to a 1 formula.” Id. ¶ 28. 2 In Baldonado , this Court concluded that a tw o-year time span on the indictment 3 was not particular enough. Id. ¶ 33. Subsequent application of the Baldonado factors 4 has found that even a time span of twenty-seven months could satisfy the test if it was 5 the best the state could do. State v. Tafoya , 2010-NMCA-010, ¶ 18, 147 N.M. 602, 6 227 P.3d 92 (stating that a twenty-seven-month time span did not violate the 7 defendant’s due process rights in light of the Baldonado factors because the state had 8 narrowed the time frame as mu ch as possible). This C ourt has approved a time span 9 of three months, which was the number of months used in this case. State v. 10 Altgilbers , 109 N.M. 453, 467, 786 P.2d 680, 694 (Ct. App. 1989) (stating that a three11 month charging period was acceptabl e and that “[i]f the record indicated that the state 12 could have been more specific as to tim e, [the] defendant’s argument would have 13 more force. The circumstances here, how ever, did not oblige the state to provide 14 greater specificity. Notice need be onl y specific enough to enable the accused to 15 prepare his defense”). However, when the State has information that would allow it 16 to narrow the charging period, and it doe s not, that may constitute error. State v. 17 Ervin , 2002-NMCA-012, ¶ 16, 131 N.M. 640, 41 P.3d 908 (holding that because the 188 state had evidence that narrowed the time fra me to four months, it was wrong to keep 1 the original sixteen-month time span). 2 In this case, the State charged, using the time span of three-month periods over 3 the course of approximately a year, that the victims lived on Tumble Weed Road with 4 Defendant and their mother. Defendant focuses in hi s brief on only the first 5 Baldonado factor (age and intelligence of the victims) and argues that the children 6 were old enough (16, 15, and 10) at the time of the trial to be able to give a more 7 specific range of dates for each charged offense. He does not cite any evidence for 8 this proposition, or claim that the Stat e had the ability to narrow the time frame 9 further. 10 In Altgilbers , it was considered sufficient that “the victims gave specific 11 accounts of the acts of [crimina l sexual penetration] and [c riminal sexual contact], and 12 the locations in which the acts occurred.” 109 N.M. at 471, 786 P.2d at 698. In the 13 case at hand, although the children could not give exact dates for each instance of 14 abuse, they could provide particular lo cations and circumstances as we examine 15 below. Due to their specific narratives for different counts, and no evidence of the 16 State’s ability to further narrow the time frame, we conclude that the three-month 17 charging period in this case is acceptable. 18 2. The Children’s Testimony Was Sufficient to Support the Charges 199 “In reviewing the sufficiency of the evid ence, we must view the evidence in the 1 light most favorable to the guilty verdic t, indulging all reasonable inferences and 2 resolving all conflicts in the evid ence in favor of the verdict.” Cunningham , 2000- 3 NMSC-009, ¶ 26. On appeal, the appellate court views the evidence in the light most 4 favorable to the verdict, resolving all c onflicts, and indulging all reasonable inferences 5 in favor of the verdict. See State v. Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 6 759-60 (1994). It is for the jury to de termine the credibility of a witness. State v. 7 Trujillo , 2002-NMSC-005, ¶ 21, 131 N.M. 709, 42 P.3d 814. 8 a. Child Abuse 9 Defendant was convicted of three count s of child abuse against A.K., over the 10 three time spans between July 21, 2005 and October 21, 2005 (Count 11), between 11 October 22, 2005 and January 22, 2006 (Count 14), and be tween January 23, 2006 and 12 April 23, 2006 (Count 15). Besides arguing that A.K. gave no dates in his testimony, 13 he claims that the alleged incidents did not rise to the statutory definition of child 14 abuse, which requires that “[D]efendant caused [A.K.] to be placed in a situation 15 which endangered the life or health of [A.K.]” NMSA 1978, § 30-6-1(D)(1) (2005) 16 (amended 2009). 17 In State v. Chavez , 2009-NMSC-035, ¶ 16, 146 N.M. 434, 211 P.3d 891, our 18 Supreme Court explained that “by classify ing child endangerment as a third-degree 1910 felony, our Legislature anticipated that criminal prosecution would be reserved for the 1 most serious occurrences, and not for minor or theoretical dangers.” Therefore, 2 evidence to support a conviction must establish that a defendant’s conduct “created 3 a substantial and fores eeable risk of harm.” Id. ¶ 22 (emphasis, internal quotation 4 marks, and citation omitted). In assessing whether conduct creates a substantial and 5 foreseeable risk, we look to (1) “the gravity of the threatened harm,” id. ¶ 23; (2) 6 whether the Legislature has indicated th at the defendant’s conduct is inherently 7 dangerous, id. ¶ 25; and (3) “the likelihood that [a particular] harm will occur,” id. 8 ¶ 26. Defendant argues that there was no evidence presented “as to how being 9 spanked with a belt could re sult in endangerment since th ere was no medical evidence 10 presented regarding physical injuries.” 11 [I]n New Mexico, a parent has a priv ilege to use moderate or reasonable 12 physical force, without criminal liab ility, when engaged in the discipline 13 of his or her child. Discipline involves controlling behavior and 14 correcting misbehavior for the bette rment and welfare of the child. The 15 physical force cannot be cruel or excessi ve if it is to be justified. The 16 parent’s conduct is to be meas ured under an objective standard. 17 State v. LeFevre , 2005-NMCA-101, ¶ 16, 138 N.M . 174, 117 P.3d 980. In LeFevre , 18 this Court stated that a father grabbing hi s daughter’s hand so tightly that it bruised 19 in order to prevent her from reaching into a backpack did not rise to the level of 20 battery because “[t]he force was relatively inconsequentia l; the injury was marginal. 2111 [The d]efendant’s conduct wa s not cruel or excessive, and considering the totality of 1 circumstances, it was mode rate and reasonable.” Id. ¶ 21. 2 A.K. testified that Defendant “tied me inmy room” by attaching a string to a 3 screw and tying it to the doorknob. He said that he was punished by being tied in his 4 room “[m]ostly every day . . . [f]or about the whole day” and ha d to beg to use the 5 bathroom or get food or water. A.K. testified that, after he tried to escape through his 6 window, Defendant screwed it shut. Others saw the screws in the window and by the 7 doorknob, and his sisters described how he wa s locked in his room and would get his 8 arms taped together with duct tape. He also testified that he would be punished by 9 getting his “butt busted by a belt” by Defe ndant, sometimes with his pants down. 10 A.K. testified that Defendant “would duct tape my hands together and my mouth[,] 11 and it would go all around my head[,] and he would put one over my nostril[,] and he 12 would threaten to put anothe r duct tape over the other nos tril so I couldn’t breath[e].” 13 He said all of these events occurred more than once. A.K. testified that these events 14 occurred while he was livi ng on Tumble Weed Road, including after CPS first came 15 to their house and before the children moved back with th eir grandparents for a short 16 time. We hold that this testimony is sufficien t to satisfy the el ements of the child 17 abuse counts of the indictment as they apply to A.K. 1812 In Counts 10 and 13, Defendant was charge d with intentionally, or with reckless 1 disregard, placing J.R. in a situati on that endangered he r life or health. He was 2 charged with the same regard ing B.R. in Counts 9 and 12. J.R. testified that she 3 “would get whipped with a belt . . . on [her] butt . . . with [her] pants pulled down” for 4 anything that made Defendant angry. B.R. testified that Defe ndant started treating the 5 children differently when they moved to Tumble Weed Road and would ground them 6 and keep them in their rooms all day. She testified that he would hit her and her 7 siblings with a belt on their “back, legs, [and] bum,” if they got in trouble. This 8 testimony similarly constitutes sufficient evidence. 9 “The question is whether the [distr ict] court’s decision is supported by 10 substantial evidence, not whether the [distr ict] court could have reached a different 11 conclusion.” In re Ernesto M. , 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. 12 Although medical evidence of the abuse was not presented, a reasonable juror could 13 have concluded from the children’s testimony that the punishments exceeded the 14 parental privilege and that Defendant wa s guilty of endangering the health of the 15 children. We conclude that the districtcourt’s decision to deny Defendant’s motion 16 for a directed verdict on the child abuse counts was supported by substantial evidence 17 in the form of the children’s testimony. 18 b. Sexual Abuse Crimes 1913 With regard to J.R., Defe ndant was convicted of one count of criminal sexual 1 penetration of a minor in the second degr ee (person in position of authority), and one 2 attempt of the same (Counts 1 and 2); three counts of criminal sexual contact with a 3 minor (person in position of authority) (C ounts 3-5); and one count of child abuse 4 (Count 13). 5 Count 3 charged that Defendant touche d or applied force to J.R.’s breasts 6 between July 21, 2005 and October 21, 2005. She stated that the first time Defendant 7 touched her was a few weeks after they moved to Tumble Weed Road when she was 8 vacuuming, and he put his hand up her shirt. Count 4 charged thatDefendant touched 9 or applied force to J.R.’s vagina be tween October 22, 2005 and January 22, 2006. She 10 testified that the next day he put his ha nd down her pants and touched the outside of 11 her vagina. Count 5 charged that Defe ndant touched or applie d force to J.R.’s leg 12 with his penis between January 23, 2006 and April 23, 2006. She testified that, on 13 another occasion, on her parents’ be d, he put his pe nis on her leg. She testified as well 14 that he made her kiss him frequently. These constitute at least three separate instances 15 that were charged as three counts of criminal sexual contact with a minor. 16 Count 1 charged that Defenda nt caused the insertion, to any extent, of his penis 17 into J.R.’s mouth between Ju ly 21, 2005 and October 21, 2005. J.R. testified that one 18 time, when she was sitting on a chair in the kitchen, he made her put his penis in her 1914 mouth. Count 2 charged that Defendant attemp ted to cause the insertion, to any 1 extent, of his penis into J.R.’s vagina. J.R. testified that another time, when she and 2 Defendant were in a bedroom and her siblings were outside, he took her pants and 3 underwear off, pulled his pants down, and tried to put his penis in her vagina before 4 she ran off. Her testimony supports Defendant’s c onvictions on Counts 1 and 2 for 5 criminal sexual penetration and attempted criminal sexua l penetration of a minor. 6 With regard to B.R., Defendant was convicted of three counts of criminal sexual 7 contact with a minor and one count of child abuse. He argues again that her testimony 8 was vague and that she failed to provide any time frames. 9 Defendant was convicted on Count 6 as having touched or applied force to 10 B.R.’s breasts between July 21, 2005 and October 21, 2005. She testified that he 11 touched her breasts both ove r and under her clothes. She stated that this happened 12 once a day after the move. Defendant was convicted on Counts 7 and 8 of having 13 touched or applied force to B.R.’s vagi na in Count 7 between October 22, 2005 and 14 January 22, 2006, and in Count 8 between January 23, 2006 and April 23, 2006. J.R. 15 testified that she once saw Defendant on top of B.R. in their parents’ room with their 16 pants pulled down. B.R. testified that Defendant t ouched her on her vagina both over 17 and under her clothes. B.R. also testified that, after they moved to Tumble Weed 1815 Road, Defendant forced her to touch his pe nis while they were in her mother’s room. 1 Her testimony adequately supports his convictions. 2 3. The Incidents Did Not Need to be Charged as a Single Ongoing Crime 3 Defendant argues that, because the ch ildren were vague on time frames, the 4 prosecution should have charged one count each of ongoing criminal sexual conduct 5 against J.R. and B.R. However, Defendant’s reliance on State v. Dominguez , 2008- 6 NMCA-029, 143 N.M. 549, 178 P.3d 834 is misplaced. Dominguezstates that, 7 “[w]hen a child cannot remember specific da tes, a defendant may still have adequate 8 notice if the child or other witnesses are ab le to provide facts sufficient to identify 9 distinct incidents of abuse.” Id. ¶ 10. In Dominguez , this Court only limited 10 prosecutors from charging separate offenses with “no distinguishing facts or 11 circumstances at all[.]” Id. 12 As detailed above, the children identifie d distinct incidents of abuse. They 13 provided locations and specific occurrences , rather than merely an ongoing pattern. 14 Therefore, we hold that there was no e rror in denying Defendant’s motion for a 15 directed verdict. 16 4. No Fundamental Error in the Jury Instructions 17 Defendant further argues that the instru ction given to the jury, regarding the 18 child abuse charges against a ll three children, “misguided the jury into thinking that 1916 evidence had been presented supporting this instruction.” Defendant argues that it is 1 the “constant repetition of this charge” thatwould mislead the jury into thinking he 2 is a bad person. Defendant also restates his argum ent that the sexual crimes should 3 have been charged as one ongoing count for each of the girls. 4 The standard of review we apply to jury instructions depends on 5 whether the issue has been preserved. If the error has been preserved[,] 6 we review the instructions for revers ible error. If not, we review for 7 fundamental error. U nder both standards[,] we seek to determine 8 whether a reasonable juror would have been confused or misdirected by 9 the jury instruction. 10 State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal 11 quotation marks and citations omitted). Defendant did not make any objection to the 12 jury instructions at trial. Therefore, the issue was not pr eserved, and we review the 13 instructions for fundamental error. State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 14 621, 92 P.3d 633 (providing that fundamental e rror only occurs in “cases with [the] 15 defendants who are indisputably innocent, a nd cases in which a mi stake in the process 16 makes a conviction fundament ally unfair notwithstanding the apparent guilt of the 17 accused”). 18 Seven counts of child abus e were submitted to the jury—three for A.K. and two 19 each for J.R. and B.R. The jury found Defendant guilty of five of the charges. There 20 is no record of any jury confusion on the matter. The only authority Defendant cites 21 for error in the jury instructions argument is Baldonado and Dominguez , which we 2217 have already determined unpersuasive for his position. Nothing in the record 1 indicates that the conviction was fundame ntally unfair or that Defendant was 2 indisputably innocent. Therefore, there was no error in instructing the jury on the 3 child abuse charges. 4 III. CONCLUSION 5 We conclude that the three-month time sp ans in the indictment were reasonable 6 in this case. The children’s testimony provi ded substantial evidence of abuse, and the 7 charges were correctly submitted to the jury. We affirm. 8 IT IS SO ORDERED. 9

_______________ _____________________ 10 RODERICK T. KENNEDY, Chief Judge 11

WE CONCUR: 12

__________________________ 13 JONATHAN B. SUTIN, Judge 14

__________________________ 15 MICHAEL E. VIGIL, Judge 16