This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,258 9 ADAN M. CARRILLO, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 12 Thomas A. Rutledge, District Judge 13
Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Sante Fe, NM 16 for Appellee 17 Jacqueline L. Cooper, Acti ng Chief Public Defender 18 Will O’Connell, Assistan t Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 KENNEDY, Judge. 232 Adan M. Carrillo (Defendant) appeals from his convictions for two counts of 1 criminal sexual penetration of a minor (CSPM) and one count of criminal sexual 2 contact of a minor (CSCM). Defendant’s first trial resulted in a mistrial due to 3 manifest necessity. His second trial resulted in the convictions that he has appealed. 4 Defendant argues that the district court (1 ) deprived him of his constitutional right to 5 present a defense by improperly excluding testimony regarding Victim’s father’s 6 sexual misconduct; (2) subjected him to double jeopardy through his two convictions 7 for criminal sexual contact of a minor; and (3) improperly granted a mistrial at the first 8 trial, thereby, making his subsequent c onviction void. We address each argument in 9 turn, discussing the pertinent facts as needed. 10 I. DISCUSSION 11 A. The Testimony Was Properly Excluded 12 Defendant contends that the districtcourt wrongfully excluded testimony about 13 Victim’s father’s past sexual misconduct. “The trial c ourt’s admission or exclusion 14 of evidence is reviewed on an abuse of discretion standard.” State v. Johnson , 2010- 15 NMSC-016, ¶ 40, 148 N.M. 50, 229 P.3d 523. “It is within th e discretion of the trial 16 court to evaluate the re levance of evidence.” State v. Duffy , 1998-NMSC-014, ¶ 31, 17 126 N.M. 132, 967 P.2d 807. “An abuse of discretion occurs when the court’s ruling 18 is clearly against the logic and effect of the facts and circumstan ces of the case. We 193 cannot say the trial court abused its discretion . . . unl ess we can characterize [its 1 ruling] as clearly untenable or not justified by reason.” State v. Branch , 2010-NMSC2 042, ¶ 9, 148 N.M. 601, 241 P.3d 602 (alterations in original) (internal quotation 3 marks and citation omitted). 4 “The proponent of the evid ence bears the burden of affirmatively demonstrating 5 its relevance.” Duffy , 1998-NMSC-014, ¶ 31. “‘Relev ant evidence’ means evidence 6 having any tendency to make the existence of any fact that is of consequence to the 7 determination of the action more probable or less probable than it would be without 8 the evidence.” Rule 11-401 NMRA. “Relevancy is that which tends to establish a 9 material proposition.” State v. Romero , 86 N.M. 99, 102, 519 P.2d 1180, 1183 (Ct. 10 App. 1974). 11 At trial, Defendant offere d to introduce the testimony of three witnesses whose 12 testimony was offered to show that Victim’s father had a pattern of molesting family 13 members. Defense counsel described the ev idence as “a family secret that was not 14 brought forth to [the] authorities[.]” The younger sister of Victim’s father would have 15 testified that from ages six to seven year s old, she was sexually molested by Victim’s 16 father. Subsequently, both she and Victim ’s father received counseling for sexual 17 abuse. The district court determined that the incidents happened eighteen to nineteen 18 years ago when Victim’s father was thirteen or fourteen years old. In addition, 194 defense counsel proffered the testimony of a second witness, who would testify that 1 Victim’s father molested him when he was nine to ten years old, about seventeen to 2 eighteen years ago. Last, defense couns el offered testimony from the half-niece of 3 Victim’s father, who was prepared to testify that as adults, Victim’s father had groped 4 her and attempted to havesex with her while he was intoxicated. D e f e n s e 5 counsel explained that he offered this testimony to rebut the State’s evidence that 6 Victim began to have nightmares after Defendant started sexually molesting her. The 7 nightmares were at issue because they led Vi ctim to disclose the abuse to a caregiver. 8 Defense counsel argued that the testimony “would establish that [the nightmares] 9 started prior to the dates li sted by the State.” Defense counsel asserted that “[its] 10 purpose was to show a pattern that has gone[on] from [eighteen] years ago to the 11 present day[.]” We interpre t the evidence as serving two purposes: (1) to indicate that 12 Victim’s nightmares had begun before the time that Victim says she was abused by 13 Defendant and (2) to imply that Victim’s mo lestation was attributable to her father. 14 Defendant did not argue the latter. 15 After hearing arguments from Defendant, the district court denied admission 16 of this testimony, stating that the older incidents were “uncharged prior acts that 17 occurred [seventeen] to [nineteen] years ago involving [Victim ’s father], when he was 18 allegedly [thirteen] or [fourteen years old].” The court then found that the later adult 195 incidents “involve adult activities, and [the court does] not see . . . relevant in this 1 matter at this point in time . . . alcohol[-]rel ated activities of adults .” Furthermore, the 2 court stated that “[o]bviously[, defense couns el] can inquire into [the nightmares] and 3 establish who had custody of [Victim] at this earlier date of the nightmares and 4 whether or not . . . Defendant had significant access. . . . [T]hat is [a] perfectly 5 appropriate inquiry in this matter.” 6 We conclude that the district court did not abuse its di scretion in denying 7 admission of the above-described testimony. At issue was whether the testimony had 8 a tendency to make the fact that Victim ’s nightmares corres ponded with Defendant’s 9 molestation more or less true. Here, th e connection between the proffered testimony 10 and the nightmares was too attenuated to be relevant. The testimony from Trevino 11 and Carrillo described uncharg ed conduct occurring seventeen to nineteen years prior 12 to trial. These incidents do not demonstr ate that Victim was having nightmares prior 13 to the molestation as Defendant sought to show. Rather, they show that Victim’s 14 father may have molested two family member s when he was a minor. In addition, the 15 testimony regarding Victim’s father as anadult groping and atte mpting to have sex 16 with another adult while intoxicated also fails to disprove the fact that Victim began 17 having nightmares when she was molestedby Defendant as the incidents do not 186 involve children. We agree that the alcohol-related activitie s of adults are irrelevant 1 to the issue of Victim’s nightmares. 2 Since the testimony was with regard toincidents too attenuated in time and 3 subject matter, we conclude that the di strict court properly excluded the testimony 4 offered by Defendant. 5 B. Double Jeopardy 6 Defendant contends that he was subjected to double jeopardy by being charged 7 with two counts of criminal sexual penetration of a minor because the jury was given 8 “carbon copy” jury instructions that did not distinguish the first count from the 9 second. We review constitutional issues regarding double jeopardy violations under 10 a de novo standard of review. State v. Andazola , 2003-NMCA-146, ¶ 14, 134 N.M. 11 710, 82 P.3d 77. In Swafford v. State , our Supreme Court enumerates three separate 12 protections created by the double jeopardy prohibition, which include protection 13 “against a second prosecution for the same offense after acquittal[,] against a second 14 prosecution for the same offense after conviction[, a]nd . . . against multiple 15 punishments for the same offense.” 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) 16 (internal quotation marks and citation omitted). There are two types of cases involved 17 in the double jeopardy prohibition against multiple punishments: “cases in which a 18 defendant has been charged with multiple violations of a single statute based on a 197 single course of conduct, know n as ‘unit of prosecution’ cases; and cases in which a 1 defendant is charged with vi olations of multiple statutes for the same conduct, known 2 as ‘double-description’ cases.” State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 N.M. 3 211, 131 P.3d 61 (citation omitted). The case at hand is a unit of prosecution case as 4 Defendant was charged with multiple violations of the same statute for conduct that 5 he contends was unitary. 6 In State v. Dombos , 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, we dealt 7 with a similar situation “when two identicalinstructions were submitted to the jury 8 based on two counts of attempted [criminal sexual penetration (CSP),] . . . both of 9 which were alleged to have occurred” during th e same time period. Id. ¶ 20. There, 10 we determined that, through testimony, the victim “distinguished each attempt by time 11 and circumstance, and she desc ribed intervening events.” Id. ¶ 22. We upheld the 12 defendant’s convictions for the multiple counts of CSP and f ound that the carbon copy 13 jury instructions did not violate double jeopardy rights “because the incidents were 14 separated by time and intervening events.” Id. ¶ 23. 15 Similarly, in State v. Martinez , 2007-NMCA-160, ¶¶ 4-17, 143 N.M. 96, 173 16 P.3d 18, we upheld the defendant’s convictions for CSPM when the jury was given 17 carbon copy instructions as to multiple counts of CSPM. There, the victim “testified 18 to the particulars” of each incident, giving specific details and distinguishing when the 198 events took place. Id. ¶¶ 12-13, 16, 17. In addition, the defendant had admitted to 1 having sexual intercourse with the victim. Id. ¶ 14. We determined that double 2 jeopardy was not violated because substantial evidence supported each count, and 3 “[t]he fact that some incidents were in structed identically does not change this 4 conclusion.” Id. ¶¶ 14, 17. 5 The central issue here is whether proof of the two counts of CSPM was separate 6 and distinct, so the jury could disti nguish between the c ounts and convict on each 7 individually. “Conduct is not unitary if suffi cient indicia of distinctness separate the 8 transaction into several acts. In making this determination, weevaluate separations 9 in time and space as well as the quality and nature of the acts or the results involved.” 10 State v. Montoya , 2011-NMCA-___, ¶ 31, ___ N.M . ___, ___ P.3d ___ (No. 28,881, 11 May 27, 2011) (internal quotation marks and c itation omitted). As we have stated in 12 State v. Salazar , “if there was sufficient evidence from which the jury could have 13 found that each act was in some sense dis tinct from the other, then the conduct was 14 not unitary.” 2006-NMCA-066, ¶ 31, 139 N.M. 603, 136 P.3d 1013. 15 In this case, the State failed to provi de evidence that Defendant’s conduct was 16 not unitary. Victim, who was seven years old at the time of the trial, testified 17 generally that she was repeatedly forced to engage in fe llatio with Defendant. Victim 189 testified that Defendant “[p]ut his private in [her] mouth” more than once. The direct 1 examination of Victim by the State went as follows: 2 Q[:] How often would this happen? 3 A[:] It happened a lot of times. 4 Q[:] Was it more than once? 5 A[:] Yes. 6 Q[:] More than twice? 7 A[:] Yes. 8 Q[:] More than three times? 9 A[:] Yes. 10 The State never asked Victim about specific encounters, nor did the State 11 attempt to elicit testimony from Victim that would distinguish one encounter from 12 another by a difference in time, place, or conduct. Unlike the evidence presented in 13 Dombos or Martinez , nothing indicated that the encounters with Defendant were 14 separate and distinct besides Victim’s testimony that the sexual abuse happened 15 multiple times. In failing to distinguish one instance from another, Defendant could 16 potentially have been convicted twice for the same conduct, subjecting him to double 17 jeopardy. See State v. Garcia , 2011-NMSC-003, ¶ 38, 149 N.M. 185, 246 P.3d 1057 18 (“The bar on double jeopardy serves the obvi ous purpose of ensuring that a defendant 1910 is not punished twice for the same offense. ”). Because the State failed to demonstrate 1 that each encounter was separate and distinct, the eviden ce indicates that Defendant’s 2 course of conduct was unitary. Thus, wereverse Defendant’s conviction for the 3 second count of CSPM. 4 C. Mistrial Was Required by Manifest Necessity 5 When the district court declares a mistrial, “the double jeopardy protection 6 generally prohibits a defendant from being retried for the same offense unless the 7 mistrial was found to have been declaredfor reasons of manifest necessity.” State v. 8 Yazzie , 2010-NMCA-028, ¶ 10, 147 N.M. 768, 228 P.3d 1188 (internal quotation 9 marks and citation omitted). Defendant argues that the district court improperly 10 granted a mistrial at his first trial, followi ng an incident in whic h a juror believed she 11 had been threatened during deliberations by a person who indicated that he was related 12 to Defendant. “To say that a mistrial is required because of manifest necessity means 13 that in order to preserve the ends of public justice, it is clear and evident that 14 terminating the trial is necessary because of something extraordinary which occurred 15 in the trial.” Id. ¶ 11 (internal quotation marks omitted) . Manifest necessity is always 16 the grounds for the mistrial when the court chooses to declare a mistrial sua sponte. 17 Id. The requirement of manifest necessity in such a situation ensures that the 1811 defendant’s constitutional protection against double jeopardy will only yield to the 1 public’s interest when supported by a sufficient reason. Id. 2 As explained above, the circumstances that necessitate the mistrial on these 3 grounds must be extraordinary. Id. ¶ 13. When balanci ng a defendant’s interest 4 against the public’s, “where the irregularityinvolves possible partiality within the 5 jury, it has been more often he ld that the public interest infair verdicts outweighs [a] 6 defendant’s interest in obtaining a verdict by his first choice of jury.” State v. De 7 Baca , 88 N.M. 454, 459, 541 P. 2d 634, 639 (Ct. App. 1975). We also examine 8 whether the district court considered less severe alternatives to the mistrial that would 9 also ensure an impartial verdict. Yazzie , 2010-NMCA-028, ¶¶ 12-13. “Affecting the 10 scope of inquiry required are the factors of magnitude of prejudice and the point at 11 which the proceedings are terminated. As the magnitude of possible prejudice 12 increases, we would expect less effort to be expended in seeking alternative 13 resolutions.” De Baca, 88 N.M. at 460, 541 P.2d at 640. 14 Prior to the threat involving a juro r, the jury had not reached unanimity, 15 though the jury foreperson announced that the jury might be able to reach a verdict if 16 permitted to go home and resume deliberati ons in the morning, which the court 17 allowed. The next morning a juror reported to the court th at she was threatened at a 18 restaurant by a teenage boy who had appro ached her and stated: “You had better not 1912 vote for a guilty verdict for my grandpa.” As a result, the juror was “very shaken 1 [and] very concerned.” 2 Defense counsel specifically requested a mistrial “because of what happened 3 to this jury and [because both counsel and the court] don’t know what’s going on [in 4 the jury room] at this point.” The St ate agreed, asserting that if the juror 5 communicated the incident to the rest of the jury, the jury would likely use such 6 information to infer negative attributes about “the type of person [Defendant] is[.]” 7 The district court indicated its reluctance to have a mistrial, stating that it would 8 “like to see the jury” and that Defendant “i s entitled to his day incourt and he’s had 9 it. The jury is deliberating. This is . . . very serious.” The district court brought the 10 juror in to determine whether such a threat would affect her ability to make an 11 impartial decision, and whether she had di scussed the matter with the other jurors. 12 The juror stated that she “w as furious” about the teenagers coming to her table and 13 one of them making the threat. The juror indicated that, in addition to the threat, 14 “they” had been following her this morning from her home to the courthouse, and 15 “they were sure watching [her].” She disc losed that she had already discussed the 16 incident with the rest of the jury. 17 Subsequently, the district court summone d the jury and counsel to court and 18 stated that it had no choice but to declare a mistrial. The court explained: 1913 [W]hat I am going to do is declare a mistrial in this matter. It’s the only 1 thing that I can do and be fair to . . . Defendant and . . . the jurors. This 2 is something that we did not anticipate. We never anticipate any type of 3 allegation like this coming forth where jurors are placed in a situation 4 that bothers them, that concerns them. 5 And so there’s just as far as th e [c]ourt’s concerned, a manifest 6 necessity to say thanks. I’m going to release you. I’m going to tell you 7 that this [c]ourt is going to retain jurisdiction to retry this case. 8 We conclude that the threat to th e juror, her reaction to it, and her 9 communication of the threat to the other jurors were adequate grounds for granting a 10 mistrial for manifest necessity. The iden tification of the threat as emanating from 11 Defendant’s family, the additional contact the following morning from the teenager 12 who made the threat, and the communication of the incident to the entire jury posed 13 too great a likelihood of prejudice toward Defendant and sufficiently justified the 14 court’s declaration of a mistrial even wh en weighed against Defendant’s right to be 15 protected from double jeopardy. As defense counsel had argued, the juror’s emotions 16 likely weighed upon the other jurors, creati ng unfair prejudice toward Defendant. By 17 granting the mistrial, the court chose toprotect both the public’s and Defendant’s 18 interest in having a fair trial without the involvement of prejudice created by the 19 threat. This interest greatly outweighed Defendant’s interest in being tried by his first20 choice jury. 2114 The district court clearly considered less severe alternatives than a mistrial, as 1 it was reluctant to declare one. While determining whether the juror would still be 2 impartial and whether the entire jury was tainted by the incident, the district court 3 determined that the juror was still distraught over the matter and that the entire jury 4 had learned of the threat. At this point, we agree that the district court could not 5 ensure impartiality of the jury without granting a mistrial. The threat jeopardized the 6 jury’s ability to consider the facts without bias against Defendant. Since the 7 magnitude of the prejudice was great, we do not expect the district court to spend 8 more effort than it did in determining alternatives to a mistrial. 9 We conclude there was a manifest necessityto grant a mistrialdue to the threat 10 communicated to one of the jurors. Thus, Defendant’s convic tions from his second 11 trial are valid. 12 II. CONCLUSION 13 Because the jury instructions for two counts of CSPM violated Defendant’s 14 right to be free from double jeopardy, we reverse Defendant’s conviction for the 15 second count of CSPM. The district court properly excluded certain testimony offered 16 by Defendant in his defense. The district court also properly determined that manifest 17 necessity was established at Defendant’s firs t trial, and his subsequent retrial did not 1815 violate Defendant’s protection from double je opardy. Hence, we affirm Defendant’s 1 remaining convictions for one count of CSPM and one count of CSCM. 216 IT IS SO ORDERED. 1

_______________________________ 2 RODERICK T. KENNEDY, Judge 3

WE CONCUR: 4

_________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

_________________________________ 7 TIMOTHY L. GARCIA, Judge 8