1

Certiorari Denied, April 23, 2013, No. 34,023

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-064

Filing Date: January 16, 2013 

Docket No. 30,852

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DEREK GARCIA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY

Drew D. Tatum, District Judge

Gary K. King, Attorney General

Yvonne M. Chicoine, Assistant Attorney General

Santa Fe, NM 

for Appellee

Bennett J. Baur, Acting Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Convicted of two counts of second degree criminal sexual contact of a minor

(CSCM), Defendant appeals. We hold that the district court erred by concluding that a

transcript of Defendant’s police station interview would be too confusing for the jury, once

it was redacted in a manner consistent with the court’s in limine ruling, without first

reviewing the redacted form of the transcript. However, we conclude that this error was
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harmless. We hold further that the district court erred by not conducting an in camera review

of records Defendant sought in discovery. We remand for district court review of these

records to determine (1) if any portion of the records is material to the charges or the defense

against them, and (2) if exclusion of material portions was prejudicial to Defendant. We are

not persuaded by Defendant’s other assertions of error.

BACKGROUND

{2} Defendant was the live-in boyfriend of Victim’s mother, with whom he had three

children, the oldest of whom was four years younger than Victim. Victim, who was eight

years old, also lived in the home. In February 2009 Defendant was the caretaker of the four

children while Victim’s mother worked the night shift at a Burger King.

{3} On February 12, 2009, Victim reported at school to a Children, Youth and Families

Department (CYFD) services provider that the night before, Defendant had touched her

vaginal area when he was in her room. Victim was interviewed about the incident on

February 17, 2009, by Hank Baskett, the executive director of Oasis Children’s Advocacy

Center, a forensic interviewing service, while Detective Todd Moore of the Portales Police

Department and Investigator Janelle Pacheco of CYFD watched on a closed-circuit

television from another room.

{4} The same day, after watching Victim’s Oasis interview, Detective Moore and

Investigator Pacheco went to Defendant’s home, where they conducted an audio-recorded

interview of Defendant. Defendant told Investigator Pacheco and Detective Moore that he

had entered Victim’s room the night of February 11, 2009, and did not mean to touch her

inappropriately, but instead intended to “scoot her over in the bed.” The next day, February

18, 2009, Detective Moore conducted a second audio-recorded interview of Defendant at the

police station with Investigator Pacheco present. The interview lasted about one hour. Prior

to trial, the State prepared a written transcript of the interview.

{5} Defendant was found guilty, and a penitentiary sentence of thirty-one years, with

nineteen years suspended, was imposed. Additional facts are included as needed in our

analysis of Defendant’s arguments.

ANALYSIS

{6} Defendant makes six arguments. He argues first that the district court abused its

discretion when it refused to admit the transcript of the police station interview after it was

used to refresh the memory of several witnesses. Next, he argues that the district court erred

in failing to order disclosure of CYFD records related to allegations of abuse by Victim. He

also maintains that the district court’s grant of the State’s motion in limine to limit reference

at trial to earlier allegations by Victim violated his due process rights and ability to crossexamine witnesses against him. In addition, he argues that there was insufficient evidence

to support two convictions for CSCM and that the district court improperly denied his
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We express no opinion as to whether the transcript is independently admissible

pursuant to Rule 11-612. 

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motion to suppress the statements he made in the police station interview. Finally, he argues

that even if these errors are not reversible individually, their cumulative effect was to deprive

him of a fair trial. We address Defendant’s arguments in the order presented.

A. The District Court Abused Its Discretion in Excluding the Transcript of

Defendant’s Police Station Interview Without First Reviewing the Transcript

in Redacted Form

{7} Defendant contends that because the State’s witnesses mischaracterized his

statements from the interview, he was entitled to introduce into evidence the full context of

those statements pursuant to the rule of completeness embodied in Rule 11-106 NMRA and,

therefore, that the district court erred in its ruling denying admission into evidence of the

transcript of the interview. Before analyzing Defendant’s contention, we address the State’s

arguments that the issue is not properly before us.

{8} The State argues that Defendant failed to preserve his argument that he had a right

to admission of the transcript under Rule 11-106 because he did not direct the district court

to that specific rule when he argued that the transcript should be admitted into evidence. See

State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (“To preserve an issue

for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court

on the same grounds argued in the appellate court.” (internal quotation marks and citation

omitted)). We conclude that the district court and the State were fairly on notice of

Defendant’s assertion that the transcript was admissible because his statements were being

taken out of context through the State’s use of Defendant’s statements and that the transcript

would show the actual context and content of his statements. Therefore, despite Defendant’s

failure to cite the specific rule, we conclude that the argument was sufficiently preserved for

appellate review. See State v. Smile, 2009-NMCA-064, ¶ 39, 146 N.M. 525, 212 P.3d 413,

cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182; see also Rule 12-216

NMRA (“To preserve a question for review it must appear that a ruling or decision by the

district court was fairly invoked, but formal exceptions are not required[.]”).

{9} The State also contends that because contents of the interview were admitted only

through the testimony of the State’s witnesses and Defendant, and no portion of the written

transcript itself was actually introduced into evidence, the rule of completeness does not

apply. See Rule 11-106 (providing that its provisions apply when “a writing or recorded

statement or part thereof is introduced by a party”); Rule 11-612 NMRA1

 (stating in part that

when a writing is used to refresh the memory of a witness, the adverse party is entitled to

introduce in evidence any portion that relates to the witness’s testimony).

{10} We conclude that where, as in this case, the State used the transcript extensively to
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Federal Rule of Evidence 106 is identical to our state “rule of completeness”

codified as Rule 11-106. State v. Barr, 2009-NMSC-024, ¶ 33, 146 N.M. 301, 210 P.3d 198,

overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

3

Rule 11-106 was amended in 2012, but because this case was filed before June 16,

2012, the effective date of the amendment, the text of the old rule applies. See Rule 11-106,

Comm. cmt. to 2012 amendment. We note, however, that the result we reach should be

unaffected by the amendments to Rule 11-106 because the changes to the rule were intended

to be stylistic, not substantive. Id.

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ask about specific statements made by Defendant, the contents of the transcript were

“introduced” into evidence sufficiently to invoke Rule 11-106. See 21A Charles Alan

Wright et al., Federal Practice and Procedure: Federal Rules of Evidence § 5075, at 39-40

(2d ed. 2012).

Most courts that have considered the question have held that using a

writing to refresh the recollection of a witness is a sufficient use of the

writing to trigger [Fed. R. Evid.] 106. Given that [Fed. R. Evid.] 612 gives

the opponent the power to disrupt the proponent’s case to inspect the writing,

as well as the right to introduce parts of the writing into evidence, policy

would seem to make this an easy case for the application of [Fed. R. Evid.]

10[6].2

Id. Under the circumstances, we would be placing form over substance if we required the

physical writing itself to be introduced into evidence for Rule 11-106 to be invoked.

{11} Turning to the merits, we review a district court’s ruling excluding evidence for an

abuse of discretion. See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d

1143. To the extent our analysis requires interpretation of applicable rules of evidence, our

review is de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d 728,

aff’d, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. The applicable version of Rule 11-

1063

 states: “When a writing or recorded statement or part thereof is introduced by a party,

an adverse party may require the introduction at that time of any other part or any other

writing or recorded statement which ought in fairness to be considered contemporaneously

with it.” Rule 11-106. Our rule “is an expression of the common law rule of completeness.”

Barr, 2009-NMSC-024, ¶ 33. “The primary purpose behind the rule of completeness is to

eliminate misleading or deceptive impressions created by creative excerpting.” Id. ¶ 34; see

State v. Baca, 120 N.M. 383, 390, 902 P.2d 65, 72 (1995) (“The purpose of [Rule 11-106]

is to permit parties to introduce recorded statements to place in context other evidence that,

when viewed alone, may be misleading.”). “[T]he rule of completeness applies to

insinuations, innuendos, and omissions.” State v. Patterson, 625 S.E.2d 239, 243 (S.C. Ct.

App. 2006). 
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{12} Defendant testified at trial on his own behalf. The State refreshed Defendant’s

recollection with the transcript multiple times during cross-examination. In fact, most of the

State’s cross-examination concerned Defendant’s statements at the police station; the

prosecutor often read specific questions and answers directly from the transcript and

referenced specific pages and lines. At other times, the State asked questions of Defendant

and requested that he locate the answers in the transcript. Indeed, at one point, the court

recessed to allow Defendant time to review the entire transcript and count the occurrences

of a given statement. Defendant maintained in his testimony that when he made the

statements cited by the State he was talking about touches that occurred while play-wrestling

with Victim, not inappropriate sexual touching. Since the State, Detective Moore, and

Investigator Pacheco characterized Defendant’s statements as “admissions,” there was a

conflict in the testimony as to the meaning of those statements. Thus, the context of the

statements was relevant to Defendant’s defense. In fairness to Defendant, the transcript,

redacted as discussed below, should have been considered for admission by the district court

under the rule of completeness.

{13} Here, however, the district court failed to properly consider Defendant’s motion to

admit the transcript. The district court may exclude even relevant evidence “if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Rule 11-403 NMRA. In this case, Defendant moved to

admit the transcript on the ground that the State’s questions took his statements out of

context, and because the State used the transcript extensively in refreshing Defendant’s

recollection. Defendant argued that the transcript should “be entered into evidence or read

in its entirety for the jury.” The State countered that the district court’s pre-trial ruling

excluding reference to previous reports of sexual abuse by Victim would require “copious

amounts of time” to redact the transcript. (We note that earlier in the trial the State claimed

it would take “at least thirty minutes” to redact the transcript.)

{14} The district court denied Defendant’s motion, stating that it would “stand by the

ruling.” The ruling to which the district court referred was that the audio-recording of the

interview would not be admitted because references to Victim’s prior reports of sexual

abuse, which were excluded by the State’s pre-trial motion in limine, were “peppered”

throughout and the redacted recording would be too confusing to the jury. Although the

transcript was mentioned in argument before this ruling, the ruling was in response to

Defendant’s request for the transcript recording to be admitted under the best evidence rule.

Thus, that ruling was not specific to the transcript in redacted form.

{15} A district court’s determination that potentially probative evidence should be

excluded because it is too confusing must be based on an analysis of the evidence itself.

State v. Aragon, 116 N.M. 291, 293, 861 P.2d 972, 974 (Ct. App. 1993) (“In order to

exercise discretion properly, it follows that the facts and circumstances surrounding an issue

must be sufficiently set forth to render a reasoned decision.”), overruled on other grounds

by Tollardo, 2012-NMSC-008. Here, the record fails to establish that the district court ever
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reviewed the recording or transcript in a redacted form. Thus, the district court excluded the

transcript without a proper basis on which to determine that the risk of confusion to the jury

substantially outweighed its probative value in representing the context of Defendant’s

statements. This was an abuse of discretion. See Aragon, 116 N.M. at 293-94, 861 P.2d at

974-75 (concluding that the district court abused its discretion when it did not listen to an

offered tape or allow the party to present an offer of proof before excluding the evidence).

{16} Nevertheless, a new trial is not required. This Court has in the past remanded cases

for a hearing on admissibility where the district court erred by not considering evidence

properly and where exclusion of the evidence was not harmless. See id. at 295, 861 P.2d at

976. But here, remand for a hearing on the admissibility of the transcript is unnecessary

because we have the transcript available to us and, after review of it, we conclude that even

if it were admissible, the district court’s failure to review and admit it was harmless.

{17} The error here is non-constitutional. Barr, 2009-NMSC-024, ¶ 53 (“[W]here a

defendant has established a violation of . . . court rules, non-constitutional error review is

appropriate.”). “[N]on-constitutional error is reversible only if the reviewing court is able

to say, in the context of the specific evidence at trial, that it is reasonably probable that the

jury’s verdict would have been different but for the error.” Id. ¶ 54. We “evaluate all of the

circumstances surrounding the error. This requires an examination of the error itself, which

. . . could include an examination of the source of the error and the emphasis placed upon the

error.” Tollardo, 2012-NMSC-008, ¶ 43. Although it should not be the “singular focus of

the harmless error analysis,” id., “evidence of a defendant’s guilt . . . may often be relevant,

even necessary, for a court to consider, since it will provide context for understanding the

role the error may have played in the trial proceedings.” State v. Moncayo, 2012-NMCA066, ¶ 16, 284 P.3d 423 (internal quotation marks and citation omitted).

{18} We conclude after review of the transcript that there is no “reasonabl[e] probabil[ity]

that the jury’s verdict would have been different” if the transcript had been admitted. Barr,

2009-NMSC-024, ¶ 54. Defendant contends that “since [Defendant] maintained in his

testimony that he had been talking about wrestling, denying the jury the ability to review

what was actually said was an abuse of discretion.” Implicit in this argument is the

assumption that the redacted transcript was sufficiently exculpatory to change the verdict

notwithstanding the other evidence. See id. After a review of both the transcript and the

evidence at trial, we disagree.

{19} First, Defendant’s statements are not clearly exculpatory even when read in the

context of the transcript. At times in the interview Defendant maintained that the touches

Victim complained of occurred when they were wrestling. He said, “Not even touching, I

didn’t even touch her” and “I don’t touch” or “I don’t touch” her at least four times. On the

other hand, at one point Detective Moore told Defendant, “I’m not talking about wrestling,”

and shortly thereafter, Defendant said he touched Victim “on her butt” with his hands.

Defendant declined to say that Victim was lying and said several times that Victim told him

not to touch her in certain places or ways Defendant said that sometimes when Victim
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protested, she told him to “do that to [M]om.”

{20} We review the transcript not to usurp the role of the jury in evaluating Defendant’s

statements, but to examine “whether [the] error was likely to have affected the[ir] verdict.”

Tollardo, 2012-NMSC-008, ¶ 42 (stating that this question is the “central inquiry” of the

harmless error analysis). In this case, although the transcript should have been considered

under Rule 11-106 to permit Defendant to put his statements in context after they were

characterized as “admissions” by the State, as a whole the value of the transcript to

Defendant’s case is too dubious for us to conclude that its admission would have influenced

the jury’s deliberations in Defendant’s favor.

{21} The probable impact of the transcript is further diminished in light of the “nonobjectionable evidence” adduced at trial. State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d

1215 (“To put the error in context, we often look at the other, non-objectionable evidence

of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error

played at trial.”). Victim testified with specificity about the way Defendant touched her and

demonstrated with props how Defendant touched her. She testified that Defendant had been

drinking Budweiser with some guests before he touched her. The forensic interviewer

testified about how forensic interviews are conducted with children so as to avoid leading

questions and that he had conducted an interview with Victim. The drawings Victim made

during the forensic interview showing the places on her body Defendant touched were

admitted into evidence. The CYFD employee to whom Victim first reported the alleged

inappropriate touching the day after it occurred testified as to what Victim told her and

Victim’s demeanor. She also testified that when she went to Defendant’s home later that

day, she observed beer bottles on the lawn, consistent with Victim’s testimony that

Defendant had been drinking Budweiser the night before, and that Defendant whispered,

“What have I done?” after he and Victim’s mother were informed of Victim’s

disclosure. Detective Moore and Investigator Pacheco testified about what Defendant said

and did during their interviews with him, including his demeanor. Victim’s grandmother

testified that since the time of the alleged touching Victim had been “moody” and

“aggressive” and her grades had dropped.

{22} Defendant and Victim’s mother testified for the defense. Victim’s mother testified

that she never observed inappropriate touching of Victim by Defendant while they were

wrestling. She stated that Victim would get “real mad” when asked to do chores around the

house and that Defendant was the one who made sure Victim did them. She said that Victim

participated in the wrestling matches with Defendant and “most often” initiated them.

Defendant testified that he wrestled with Victim and the other children and that he went into

the bedroom that night to check on the sleeping children.

{23} Given that the transcript was not clearly exculpatory and considering it in the context

of the other evidence, we cannot conclude that the district court’s failure to consider the

transcript for admission and consequent denial of Defendant’s motion to admit it had an

impact on the jury’s verdict. The district court’s failure to review the transcript in redacted
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form was harmless.

B. The District Court Erred in Failing to Conduct an in Camera Review of CYFD

Records Sought by Defendant

{24} Defendant next argues that the district court erred by declining to order disclosure

of CYFD records related to allegations by Victim before those leading to this case.

Defendant made a motion to compel the State to provide the materials because they were

potentially exculpatory under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United

States, 405 U.S. 150 (1972). The State opposed the motion and argued that: (1) the district

attorney’s office “is not the custodian of any CYFD records” and CYFD is not part of the

“prosecution team”; (2) the records were confidential under NMSA 1978, Section 32A-4-33

(2009); and (3) the records were not relevant.

{25} The district court denied the motion, stating that it was premature because Defendant

had not subpoenaed CYFD to get the records. Defendant served CYFD with a subpoena

duces tecum, but CYFD refused to comply immediately. Instead, pursuant to Section 32A-4-

33, it requested additional information from which to determine if Defendant was entitled

to the records. Section 32A-4-33(B)(16) permits release of records only to parties in the case

or to “any other person or entity, by order of the court, having a legitimate interest in the

case,” and Section 32A-4-33(C) permits disclosure of limited records to “parent[s],

guardian[s] or legal custodian[s] whose child has been the subject of an investigation.”

Defendant had no right to CYFD records under Section 32A-4-33(C) because he was not a

parent, guardian, or legal custodian. In addition, Defendant was provided with the only

records to which he was entitled as a party to the present charges under Section 32A-4-

33(B). Defendant’s arguments, therefore, boiled down to whether he had a “legitimate

interest” in the records. See § 32A-4-33(B)(16).

{26} The State maintained that Defendant “cannot establish relevance for apparent

allegations that occurred PRIOR to the instant offense.” Defendant argued that “the defense

needed to know the complete picture about the earlier allegations and interviews” and “that

it was relevant whether [Victim] learned during those multiple interviews how to answer in

such a way that her allegations would be given credence.” He argued that the CYFD records

were relevant to “the credibility of the witness that the State must rely on in order to proceed

to trial, [Victim].” The district court found that Defendant had a legitimate interest “only

as to incidents related to [Defendant] and the charges alleged in the criminal information”

and declined to order disclosure of any records not related to the present charges. The

district court did not state the basis for this finding in either the order for disclosure or at the

hearing on the matter.

{27} “A trial judge’s denial of a defendant’s discovery requests will be reviewed

according to an abuse of discretion standard.” State v. Bobbin, 103 N.M. 375, 377, 707 P.2d

1185, 1187 (Ct. App. 1985). In order for an abuse of discretion to be reversible, the

defendant must demonstrate prejudice. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132
9

N.M. 756, 55 P.3d 968, abrogated on other grounds as stated in State v. Forbes, 2005-

NMSC-027, 138 N.M. 264, 119 P.3d 144. The primary issue argued below was whether the

records of allegations by Victim before those in the instant case were material to the charges

or Defendant’s defense. When a defendant has demonstrated “circumstances that reasonably

indicate that records may contain information material to the preparation of the defense[,]”

Ortiz, 2009-NMCA-092, ¶ 28, then “[t]he proper procedure to determine relevance is . . . in

camera review [of the documents].” State v. Gonzales, 1996-NMCA-026, ¶ 20, 121 N.M.

421, 912 P.2d 297. When, as here, the materials sought are protected by statute, “[i]n camera

review of confidential information represents a compromise between the intrusive disclosure

of irrelevant information on the one hand and the complete withholding of possibly

exculpatory evidence on the other.” State v. Luna, 1996-NMCA-071, ¶ 13, 122 N.M. 143,

921 P.2d 950.

{28} “A general assertion that inspection of the records is needed for a possible attack on

the victim’s credibility is insufficient to [trigger in camera review].” Id. ¶ 9. But Defendant

is not required “to know or show in advance that the records will actually contain helpful

information.” Ortiz, 2009-NMCA-092, ¶ 28; see Rule 5-503(C) NMRA (stating that

information sought in discovery need not be admissible at trial “if the information sought

appears reasonably calculated to lead to the discovery of admissible evidence”). Instead,

Defendant must provide a reasonable basis on which to believe that it is likely the records

contain material information. Ortiz, 2009-NMCA-092, ¶ 28. In State v. Pohl, 89 N.M. 523,

524, 554 P.2d 984, 985 (Ct. App. 1976), the Court held that the defendant had made a

sufficient showing to require inspection of police personnel records when the “defendant had

shown two prior instances of the officer[’]s alleged misconduct.” In that case, the records

of previous misconduct were material to the defense because “the defendant’s guilt or

innocence [hinged] on whether the jury believe[d] the arresting officer [was] the aggressor.”

Id. Similarly, in Gonzales, there was no abuse of discretion when the district court ordered

in camera review of mental health records when other records indicated that the victim “had

a history of blackouts from alcohol” and the records may have “contained information that

[the victim] may have suffered cognitive difficulties which would affect her credibility at

trial.” 1996-NMCA-026, ¶ 21. The defendant there was charged with criminal sexual

penetration and claimed that the sexual encounter was consensual. Id. ¶¶ 3, 22. Thus,

whether the victim may have blacked out while they were together was material to his

defense. Id. ¶ 21.

{29} Here, as in Pohl and Gonzales, Defendant had evidence suggesting that Victim had

been interviewed a number of times by CYFD or Oasis and/or had made unsubstantiated

allegations of sexual abuse in the past. Victim waved to the camera in the Oasis interview

room and stated that she had been there before. Defendant also obtained a summary report

of allegations from Victim’s mother. This report showed that there had been allegations in

2002, 2003, 2004, 2006, 2008, and 2009 and that Victim had been interviewed about some

of the allegations. It also indicated that some of the allegations were found to be

unsubstantiated. Finally, since there was no physical evidence of abuse, the State’s case

rested entirely on the credibility of the witnesses. Thus, Victim’s credibility as to both
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possible false accusations and learned ability to respond to interview questions was material

to Defendant’s defense. We conclude that Defendant made a threshold showing sufficient

to trigger in camera review.

{30} The State points to Luna, 1996-NMCA-071, and State v. Ramos, 115 N.M. 718, 858

P.2d 94 (Ct. App. 1993), modified on other grounds by State v. Gomez, 1997-NMSC-006,

122 N.M. 777, 932 P.2d 1 as examples of cases in which this Court found no abuse of

discretion where the district court had denied a defendant’s motion for release of confidential

or privileged documents. These cases are inapposite. In Luna, the district court ordered in

camera review of the victim’s psychotherapy records on motion by the defendant. 1996-

NMCA-071, ¶¶ 3-4. The State initially did not object, but then “raised [an] objection that

[the d]efendant had made an insufficient showing to justify . . . in camera review on the day

of trial.” Id. ¶ 4. This Court acknowledged that the defendant’s bare assertion that “it is

likely that [the victim] revealed information to the therapist which may be relevant to issues

of her credibility . . . may not have been sufficiently particularized or compelling to justify

in camera review[,]” but did not decide this issue. Id. ¶ 10 (internal quotation marks

omitted). Rather, it held that the district court’s order was not an abuse of discretion because

the State did not timely object and the defendant was prejudiced by the delay. Id. ¶ 11. In

Ramos, the district court conducted an in camera review of the victim’s psychotherapy

records and found “that there was nothing in the records that justified their disclosure.” 115

N.M. at 721, 858 P.2d at 97. On appeal, the defendant argued that it was error not to order

disclosure of the records directly to him because the records “may well [have] contain[ed]

evidence of psychotic or hallucinatory behavior relevant to credibility.” Id. (internal

quotation marks omitted). There, the issue was whether the district court erred in its

determination that the records were not relevant after in camera review. In contrast, here the

issue is whether Defendant made a threshold showing sufficient to require in camera review

of the records. Neither Luna nor Ramos addresses this question.

{31} The State next argues that, even if the records sought were material, Defendant

“made no showing that the [district] court’s refusal to grant him . . . access . . . denied him

a defense or . . . fair trial or resulted in prejudice.” See Chacon v. State, 88 N.M. 198,

199-200, 539 P.2d 218, 219-20 (Ct. App. 1975) (“[N]ondisclosure of items material to the

preparation of the defense is not reversible error in the absence of prejudice.”). The district

court did not order disclosure of the records for in camera review and did not make a finding

as to their relevance; consequently, they are not part of the record on appeal. Since we have

no basis on which to assess prejudice, we cannot determine that there was no prejudice.

Pohl, 89 N.M. at 525, 554 P.2d at 986 (“In the absence of a determination of what the files

would have shown we cannot hold there was no prejudice.”).

{32} We hold that Defendant made a threshold showing of materiality sufficient to require

the district court to conduct in camera review. Therefore, the district court erred in ruling

that Defendant did not have a legitimate interest in the records of previous allegations

without assessing fully the relevance of those records through in camera review of them. We

remand for in camera review of the records to determine (1) if any portion of them is
11

material to the charges or defense and (2) whether exclusion of the records was prejudicial

to Defendant. If the answer to both questions is yes, Defendant must be given a new trial.

See Pa. v. Ritchie, 480 U.S. 39, 58 (1987) (remanding for review of a children and youth

services file in camera and stating that if the file contains no “information that probably

would have changed the outcome of [the] trial . . . the lower court will be free to reinstate

the prior conviction”). We further note that the district court’s ruling in this matter will be

subject to appeal.

C. Defendant Failed to Preserve His Arguments as to the District Court’s Grant

of the State’s Motion in Limine

{33} We turn next to Defendant’s argument “that the [district] court’s refusal to allow the

defense to introduce evidence of [Victim]’s prior CYFD contacts was an abuse of its

discretion that resulted in deprivation of his constitutional rights to confrontation and due

process of law.” The State argues that “Defendant waived this issue for appeal” because he

“did not oppose the State’s motion [in limine to exclude such evidence]” and that, even if

the issue were not waived, prior allegations by Victim were irrelevant. Defendant does not

address waiver or preservation of this argument in his briefs. We conclude that this issue

is not properly before this Court either because Defendant waived his right to appeal

exclusion of the evidence by failing to file a notice of intent to admit the prior allegations

as required by Rule 11-412(C) NMRA, or because Defendant failed to elicit a ruling at trial

on the admissibility of the prior allegations.

{34} We begin by noting that analysis of whether evidence covered by our “rape shield

statute,” NMSA 1978, Section 30-9-16 (1993), should be admitted at trial is distinct from

our analysis of whether Defendant should have been permitted to obtain that evidence

through discovery. Gonzales, 1996-NMCA-026, ¶ 11 (stating that Rule 11-412, the

evidentiary rule related to the rape shield statute, “clearly governs only the admission of

evidence at trial and not pretrial discovery”). Thus, Rule 11-412 does not preclude discovery

of the CYFD records of prior allegations by Victim. The rule does, however, govern our

analysis of the district court’s grant of the State’s motion in limine to exclude such evidence

and the district court’s rulings at trial pertaining to the evidence. See State v. Payton, 2007-

NMCA-110, ¶¶ 5, 10, 142 N.M. 385, 165 P.3d 1161 (discussing the rape shield statute in the

context of CSCM charges and proof of the victim’s sexual knowledge prior to the alleged

CSCM).

{35} Defendant did not argue against the State’s motion in the hearing on the matter. In

fact, Defendant stated at the motion hearing that he “had not anticipated soliciting that type

of information anyway.” Although he also stated that “if it comes up, I guess that will be

addressed[,]” the district court reiterated that it should not come up in front of the jury, and

Defendant did not object further. The State’s motion was predicated on Section 30-9-16(A),

which prohibits admission of “evidence of the victim’s past sexual conduct, opinion

evidence of the victim’s past sexual conduct or of reputation for past sexual conduct, . . .

unless . . . the evidence is material to the case and that its inflammatory or prejudicial nature
12

does not outweigh its probative value.” See Rule 11-412(B). The State argued that

Defendant had not demonstrated that these conditions were met and that Defendant had not

filed a written notice notifying the court of his intent to admit the prior allegations. See Rule

11-412(C)(1), (2) (“If the defendant intends to offer evidence under Rule 11-412(B) . . ., the

defendant must file a written motion before trial. . . . Before admitting evidence under this

rule, the court shall conduct an in camera hearing to determine whether such evidence is

admissible.”). The district court acknowledged this failure in its oral ruling on the motion

and noted both at the hearing and in its order that “if new issues arise during trial, the

[district c]ourt will review those issues at that time.” See Proper v. Mowry, 90 N.M. 710,

715, 568 P.2d 236, 241 (Ct. App. 1977) (noting that a ruling on a motion in limine is

“without prejudice to the right to offer proof [and possible introduction of the evidence]

during the course of the trial”).

{36} In spite of this acknowledgment by the district court, Defendant never filed the

required notice under Rule 11-412(C) or sought a hearing on admissibility of the prior

allegations by Victim. This failure precluded admission of this evidence. State v. Johnson,

1997-NMSC-036, ¶ 20, 123 N.M. 640, 944 P.2d 869 (stating that during the in camera

hearing, the movant may “inform the [district] court of the relevant facts and circumstances,

make the arguments of relevancy, and explain the respective positions on balancing. In

conducting that inquiry, the [district] judge must depend on the moving party or parties to

offer proof and argument in support of the ruling sought”).

{37} Even if Defendant’s conduct vis á vis the motion in limine or Rule 11-412(C) did not

constitute waiver, he failed to preserve the issue for appeal. In order to preserve an issue for

appeal, Defendant must make a timely objection that apprises the district court specifically

of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela,

1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. In addition, “it must appear that [the]

appellant fairly invoked a ruling of the [district] court on the same grounds argued in the

appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App.

1987). At trial, Defendant sought to ask questions of Victim about why she lived with her

grandmother in the year before the current allegations. In addition, he questioned the CYFD

services provider and the CYFD investigator about why they knew Victim before the

investigation of the alleged incidents. He also asked the forensic interviewer why Victim

had waved to the camera in the interview room. In each case, the State objected on grounds

that the district court had already ruled that reference to “[V]ictim’s prior sexual conduct,

to include allegations of prior sexual abuse” was excluded. At the beginning of the second

day of trial, the district court reiterated its ruling on the motion, stating that “prior allegations

with CYFD are not to be elicited or brought in.” In response, Defendant argued that the

Defendant’s statements were hearsay and the best evidence rule required admission of the

audio recording of the interview. These arguments at trial related to the admissibility of the

audio recording or transcript of Defendant’s police station interview, not to the admissibility

of Victim’s prior allegations. Because Defendant did not file notice of intent to admit

Victim’s prior allegations and did not object to the Court’s ruling on the exclusion of prior

allegations at trial, the district court was never alerted to his arguments regarding admission
13

of the evidence so as to make “an intelligent ruling thereon.” This issue was not preserved.

See Woolwine, 106 N.M. at 496, 745 P.2d at 721.

D. Sufficient Evidence Supported the Jury’s Findings That Defendant Committed

Two Counts of CSCM

{38} “[A] sufficiency of the evidence question involves a two-step process.” State v.

Armendariz-Nunez, 2012-NMCA-041, ¶ 16, 276 P.3d 963, cert. denied, 2012-NMCERT003, ___ P.3d ___. “Initially, we view the evidence in the light most favorable to the

verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in

favor of the verdict[.]” Id. The next step requires that we “make a legal determination of

whether the evidence viewed in this manner could justify a finding by any rational trier of

fact that each element of the crime charged has been established beyond a reasonable doubt.”

Id. (internal quotation marks and citation omitted).

{39} The jury was instructed with identical instructions for both counts as follows:

For you to find [D]efendant guilty of criminal sexual contact of a

child under the age of [thirteen] as charged in Count 1, [replaced with Count

2 in second instruction], the [S]tate must prove to your satisfaction beyond

a reasonable doubt each of the following elements of the crime: 

1. [D]efendant touched or applied force to the unclothed

buttocks and/or vagina of [Victim];

2. [Victim] was [twelve] years of age or younger;

3. This happened in New Mexico on or between January 1,

2009[,] and February 12, 2009.

{40} We have examined the evidence in detail and conclude that it is sufficient to permit

retrial if the district court concludes that one is necessary following its in camera review of

the records of previous allegations. Although most of the evidence related to February 11,

2009, Victim also testified that Defendant had touched her inappropriately prior to that

incident. Victim testified that February 11, 2009, was not the only time that Defendant had

touched her “private parts” and that it had started when her mother began work at Burger

King in June. Defendant’s testimony also supported an inference by the jury that

inappropriate touchings had occurred on more than one occasion in the specified time period

because Defendant stated during cross-examination that he had told Detective Moore in the

interview that “the inappropriate things had been going on between [him and Victim] about

a week.” Detective Moore also testified that Defendant said he had touched Victim

inappropriately “twice within the last week.”

{41} Under our standard of review, sufficient evidence was presented for the jury to
14

conclude that Defendant “touched or applied force to the unclothed buttocks and/or vagina”

of Victim both on the night of February 11, 2009, and on another occasion between January

1, 2009, and February 12, 2009. The lack of testimony pinpointing a specific date on which

the other incident of CSCM occurred does not preclude a finding by the jury that two

incidents of touching occurred based upon the evidence presented. See State v. Altgilbers,

109 N.M. 453, 471, 786 P.2d 680, 698 (Ct. App. 1989) (stating that “[n]o juror need have

a precise day in his or her own mind in order to vote for conviction” for purposes of a

sufficiency of the evidence analysis and concluding that sufficient evidence supported

verdicts in spite of the lack of evidence of specific dates of the occurrence of criminal sexual

acts). Accordingly, should a new trial be required following in camera review of the CYFD

records, Defendant’s right to be free from double jeopardy will not be violated by retrial on

both counts of CSCM.

E. The District Court Did Not Err in Denying Defendant’s Motion to Suppress

{42} The district court denied Defendant’s motion to suppress his statements at the

February 18 interview at the police station. Defendant argues first that “he felt coerced in

[the] interview” and then “that the [district] court erred in finding that there was a proper

waiver of his rights to remain silent[ during the police interview on February 18] and that

this error . . . require[s] retrial.” He cites to cases addressing a suspect’s rights under

Miranda v. Arizona, 384 U.S. 436 (1966). The State argues that Defendant was not in

custody during the questioning and that the questioning was not “the type of interrogation

requiring Miranda warnings.”

{43} It is not entirely clear whether Defendant’s argument is that his statements were

involuntary (because they were coerced) and, therefore, that they violated his right to due

process under the Fourteenth Amendment, or that his statements violated his Fifth

Amendment rights because he did not voluntarily, knowingly, and intelligently waive his

Miranda rights. See State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (“A claim

that the police coerced a statement requires a different analysis than a claim that an accused

voluntarily waived his or her Fifth Amendment protections under Miranda.”); U.S. Const.

amends. V and XIV; see also Miller v. Dugger, 838 F.2d 1530, 1537 (11th Cir. 1988). In

either case, we conclude that the district court did not err in denying Defendant’s motion to

suppress.

{44} We first address whether Defendant’s due process rights were violated. We review

whether a statement was voluntarily given by assessing the totality of the circumstances.

State v. Munoz, 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847. In order to determine

that a statement was involuntary, we must also conclude that the statement was the result of

police misconduct. Id. ¶ 21. “[I]ntimidation, coercion, deception, assurances, or other police

misconduct . . . constitutes overreaching . . . [and] requires that the [statements] be

excluded.” Id. ¶ 23. Here, Detective Moore asked Defendant during the February 17

interview to come to the police station the next day. He stated, “I would like for you to come

to the [p]olice [d]epartment. Not . . . it don’t [sic] have to be right now but tomorrow would
15

be good.” Defendant responded, “Tomorrow, what time?” When Defendant stated that he

didn’t have a way to get to the police station, Detective Moore offered to pick Defendant up

or have someone else pick him up. Defendant responded, “That will be fine.” This

conversation occurred while Defendant, Detective Moore, and Investigator Pacheco were

standing in front of Defendant’s home.

{45} Defendant was transported to the police station by another detective. He testified that

the detective placed his duty weapon on his lap during the ride. The detective testified in

contrast that he did not remember where exactly his weapon was during the ride, but that “it

would not have been in plain sight.” At the police station, Detective Moore interviewed

Defendant while Investigator Pacheco observed. Detective Moore began by telling

Defendant “You have not been charged with anything. You are not under arrest, in fact, .

. . basically you are free to go anytime that you want. . . . [Y]our rights do apply, even

though you are not in custody or anything, you still have the right to remain silent.” He then

told Defendant he would “read . . . the rights that you hear on [TV]” and recited the Miranda

warnings. Defendant indicated that he understood. Detective Moore presented Defendant

with the waiver form, reviewed it orally, and stated, “Again, if you don’t want to talk to me

that is fine, that’s[,] you know, well within your rights, and you are free to go at any time.”

Defendant responded, “[O]K,” and signed the waiver form. The interview lasted

approximately one hour. During the interview, Detective Moore told Defendant that Victim

was not lying and implied that Defendant was not being truthful. Nonetheless, nothing in

the way the interview was conducted amounts to “intimidation, coercion, deception,

assurances” or overreaching such that Defendant’s due process rights were violated.

{46} We turn next to whether Defendant’s Fifth Amendment rights were violated. “[W]e

review the [district] court’s findings of fact for substantial evidence and review de novo the

ultimate determination of whether a defendant validly waived his or her Miranda rights prior

to police questioning.” State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d

1177.

{47} As a preliminary matter, we note that Miranda warnings are required only when a

suspect is in custody and under interrogation. Smile, 2009-NMCA-064, ¶ 24. The State

argues that these conditions were not present. We do not address this issue because even if

we assume without deciding that Defendant was interrogated while in custody, we conclude

that Defendant’s Fifth Amendment rights were not violated. Defendant received Miranda

warnings from Detective Moore orally and in writing. Our inquiry, therefore, is whether he

“knowingly, intelligently, and voluntarily waived his . . . constitutional rights under

Miranda.” Barrera, 2001-NMSC-014, ¶ 22. This inquiry involves two components.

Fekete, 120 N.M. at 301, 901 P.2d at 719.

First, the relinquishment of the right must have been voluntary in the sense

that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness of both the nature of the right being abandoned
16

and the consequences of the decision to abandon it.

Id. (internal quotation marks and citation omitted). We have already addressed the first

component. “‘[V]oluntariness’ in the context of a Miranda waiver means the same thing as

‘voluntariness’ in the due process context, i.e., freedom from official coercion.” Miller, 838

F.2d at 1538. Having determined that there was no official coercion in the arrangements for

or conduct of the interview, we conclude that Defendant’s waiver of his rights under

Miranda was voluntary. See Fekete, 120 N.M. at 301, 901 P.2d at 719 (stating that since the

due process analysis revealed that there was no evidence of intimidation or coercion, the

“inquiry focuses on the second element of the waiver”).

{48} The remaining question is “whether [Defendant] was fully aware both of the nature

of the rights he waived and the consequences of the waiver.” Id. Defendant had several

opportunities to indicate that he did not understand the nature and consequences of the

waiver. After Detective Moore read the rights to Defendant, he asked, “Do you understand

all that?” Defendant responded, “Yep.” Detective Moore then reviewed the waiver form,

on which were printed the Miranda rights. He explained, “[T]his is a wa[iv]er just saying

that you read the statement about my rights and I understand what my rights are” and “by

signing this, this is just signing a wa[iv]er saying that you understand your rights and you

are willing to talk. Okay?” Defendant responded, “[O]K.” On appeal, Defendant does not

direct us to specific evidence that his waiver was not knowing and intelligent. Thus, we

conclude that the district court did not err in denying Defendant’s motion to suppress. See

In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318 (“The question

is whether the [district] court’s decision is supported by substantial evidence, not whether

the court could have reached a different conclusion.”).

F. Cumulative Error

{49} “Under the doctrine of cumulative error, this Court must reverse a conviction when

the cumulative impact of the errors [that] occurred at trial was so prejudicial that the

defendant was deprived of a fair trial.” Baca, 120 N.M. at 392, 902 P.2d at 74 (alteration

in original) (internal quotation marks and citation omitted). “Several errors that would in

themselves be harmless may together create reversible error if they deprived the defendant

of a fair trial.” State v. La Madrid, 1997-NMCA-057, ¶ 24, 123 N.M. 463, 943 P.2d 110.

“This doctrine is to be strictly applied, and [Defendant] cannot invoke it if the record as a

whole demonstrates that he received a fair trial.” State v. Woodward, 121 N.M. 1, 12, 908

P.2d 231, 242 (1995), abrogated on other grounds as recognized in State v. GranilloMacias, 2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187.

{50} Defendant argues that “the cumulative net effect of these errors was a denial of a

defense.” The district court’s failure to review CYFD’s materials in camera was error, but

that error is reversible only if it was prejudicial. If so, Defendant will receive a new trial.

In addition, any error in failing to admit the transcript of the police interview was harmless.

Defendant’s other assertions of error are not only not reversible, but are unfounded. Even
17

in the aggregate, they did not deprive Defendant of a fair trial.

CONCLUSION 

{51} We remand for an in camera review of the CYFD records Defendant sought through

discovery consistent with this opinion.

{52} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

CYNTHIA A. FRY, Judge

____________________________________

MICHAEL E. VIGIL, Judge

Topic Index for State v. Garcia, No. 30,852

APPEAL AND ERROR

Cumulative Effect

Harmless Error

Prejudicial Error

Preservation of Issue for Appeal

Remand

Standard of Review

Substantial or Sufficient Evidence

CONSTITUTIONAL LAW

Due Process

Miranda Warnings

CRIMINAL LAW

Sexual Offenses

CRIMINAL PROCEDURE

Deposition and Discovery

Due Process

Motion in Limine

Motion to Suppress

Prejudice
18

EVIDENCE

Exculpatory Evidence

Writing Used to Refresh Memory