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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,816 9 ROBERT SHARP , 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Kenneth Martinez, District Judge 13
Gary K. King, Attorney General 14 Nicole Beder, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Karl Erich Martell, Assi stant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 ROBLES, Judge. 232 Robert Sharp (Defendant) appeals his conviction for three counts of criminal 1 sexual penetration in the first degree, c ontrary to NMSA 1978, Section 30-9-11(C)(1) 2 (2003) (as amended through 2009); five counts of criminal sexual contact of a minor 3 in the second degree, contrary to NMSA1978, Section 30-9-13(A) (2003);one count 4 of criminal sexual contact of a minor inthe third degree, contrary to NMSA 1978, 5 Section 30-9-13(C) (1987) (as amended through 2003); one count of bribery, contrary 6 to NMSA 1978, Section 30-24-3(A)(3) (1997); and one count of contributing to the 7 delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990). Defendant 8 assigns four claims of error that he avers should result in the reversal of his conviction 9 and a remand for a new trial. Defendant speci fically alleges that (1) the district court 10 erred in suppressing evidence relating to allegations of the molestation of other 11 children; (2) the district court erred in allowing the amendment of the indictment 12 during trial; (3) the district court erred in allowing expert testimony despite the 13 expert’s late availability for pretrial interview; and (4) cumulative error in the trial 14 ultimately resulted in depravation of due process rights. We affirm. 15 I. BACKGROUND 16 At Defendant’s trial, the following fact s were developed. In November 2004, 17 Faye and her daughter, A.M., moved in with Faye’s other daughter, Renae. At the 18 time, A.M. was eight years old, and Renae was thirty years old. Also living in the 193 apartment was Renae’s child, E.J., who was seven years old at the time. Renae’s 1 boyfriend, Defendant, was not th e father of E.J., but was the father of Renae’s child, 2 P.J., who was born shortly thereafter on March 15, 2005. 3 After living in the apartment for two months, Faye and A.M. moved to other 4 accommodations in Albuquerque. On May 8, 2005, Faye and A.M. left Albuquerque 5 for Arizona and, within the few days that followed, A.M. revealed to her mother that 6 Defendant had sexually abused her. Upon learning this, Faye took A.M. to Dr. 7 Virginia Rutz. Further facts will be developed as needed. 8 II. DISCUSSION 9 Defendant asserts that erro rs resulted in an unjust conviction and, accordingly, 10 encourages this Court to reverse his c onviction and remand his case for a new trial. 11 We review each of his claims in turn. 12 A. Preclusion of Testimony 13 Before the trial, the State filed moti ons in limine to preclude evidence from 14 being introduced that A.M. had reported to Dr . Rutz that Defendant had also molested 15 E.J. and P.J. At the hearing on the moti on, Defendant proffered that A.M. told Dr. 16 Rutz that the other two children had been molested by Defendant which, in turn, led 17 to an investigation by the Children, Youth and Families Department (CYFD). CYFD 18 concluded that the allegations of sexual abuse were unsubstantiated with regard to E.J. 194 and P.J., but substantiated as to A.M. Defe ndant stated that he wished to call a CYFD 1 case worker to establish that the allegations of abuse as to the other two children were 2 unsubstantiated. Further, the defense inte nded to cross-examine Dr. Rutz during the 3 trial about A.M.’s statements regarding th e abuse of the other children and intended 4 to cross-examine A.M. about the allegations. 5 The State, for its part, argued that CYFD’s conclusion regarding the allegations 6 concerning the other two children simply meant that there was not enough evidence 7 to substantiate the claims. The State noted that CYFD’s conclusions regarding 8 whether an allegation of abuse is “substantiated” or “unsubstantiated” is not the same 9 legal standard as applie d in a court of law. Moreover, evidence of CYFD’s 10 conclusions that followed its investigati on would also be a comment on the credibility 11 of witnesses, would invadethe province of the jury, and should be excluded under 12 Rule 11-403 NMRA because the evidence w ould be misleading and would “require 13 a trial within a trial to determine the reas on the CYFD investigator substantiated some 14 allegations and unsubstantiate d other allegations.” Fi nally, the State noted that 15 information regarding the other two children was not rele vant to whether A.M. had 16 been abused, and such testimony would open the door to examining why CYFD’s 17 conclusions as to A.M.’s abuse were substantiated. 185 The district court, after reviewing the CYFD reports, concluded that the 1 allegations concerning the other two children were “false issues” because the jury was 2 charged only with determining whether De fendant committed the alleged offenses in 3 the indictment. The other allegations were not probative to the allegations in front of 4 the jury, were not “relevant to the probl em” concerning the abuse of A.M., and would 5 create a “trial within a trial” that would “confuse the jury or deflect them from proper 6 inquiry.” The district court granted the State’s motion in limine and ordered counsel 7 to “not make mention of this either in que stionings or statements before the jury and 8 advise your witnesses not to make mention of an allegation that [A.M.] had indicated 9 that [E.J.] and [P.J.] were all also vic tims of [D]efendant’s conduct.” At a bench 10 conference during the trial, while A.M. wa s being cross-examined, Defendant again 11 indicated that he wished to question A.M. regarding her allegati ons of the other two 12 children’s abuse. Specifically, Defendant clarified “for the record ” that he wished to 13 ask whether A.M. had ever witnessed De fendant touch the other two children 14 inappropriately. Again, the district court effectively held that such issues were not 15 relevant to the proceedings and would open the door to CYFD’s findings. 16 On this issue as framed before the districtcourt, we concludethat the court did 17 not abuse its discretion in excluding the ev idence. The admission of such evidence 18 would be an invasion in the province of the jury to determine the credibility of 196 witnesses. See State v. Duran , 2006-NMSC-035, ¶ 21, 140 N.M. 94, 140 P.3d 515 1 (“[C]redibility of witnesses is to be determined by the jury, not by the witnesses.”); 2 see also Rule 11-608(B) NMRA (“Specific instances of the conduct of a witness, for 3 the purpose of attacking or supporting the witn ess’s character for truthfulness . . . may 4 not be proved by extrinsic evidence. Theymay, however, in the discretion of the 5 court, if probative of truthfulness oruntruthfulness, be inquired into on 6 cross-examination.”). In addition, CYFD’s investigation pertaining to other alleged 7 victims was a collateral matter that the district court had wide discretion to admit or 8 exclude. State v. Montoya , 95 N.M. 433, 437, 622 P.2d 1053, 1057 (Ct. App. 1981) 9 (“[O]pinion as to the victim’s character, offered to prove conduct in conformity with 10 character, went to a collateral matter [that] is within the trial court’s discretionary 11 control.”). 12 In his brief-in-chief, Defendant now make s the claim that the district court’s 13 decision to exclude evidence regarding alle gations of the other two children’s abuse 14 violated his confrontation clause rights. Defendant avers this issue was preserved 15 “through the State’s motion in limine and argument thereon,” and the district court 16 should have been alerted to the claimed erro r by virtue of the fact that the evidence in 17 question was the focus of “extensive discu ssions.” Defendant circuitously concedes 18 that this issue was not specifically raised below. See Kilgore v. Fuji Heavy Indus. 197 Ltd. , 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 1127 (“The primary purposes 1 for the preservation rule are[] (1) to specifi cally alert the district court to a claim of 2 error so that any mistake can be corrected at that time, (2) to allow the opposing party 3 a fair opportunity to respond to the claim of error and to show why the district court 4 should rule against that claim, and (3) to create a record sufficient to allow this Court 5 to make an informed decision re garding the contested issue.”); State v. Martinez , 6 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (stating that “merely mentioning 7 ‘due process’ was not sufficient to alert th e judge to a Confrontation Clause claim and 8 did not fairly invoke a ruling”); cf. State v. Lopez , 2000-NMSC-003, ¶¶ 11-13, 128 9 N.M. 410, 993 P.2d 727 (filed 1999) (holding thatwhere a defendant objected to the 10 admission of a recording of a witness’s statement because of the “inability to cross[- 11 ]examine or confront the witness,” the defendant’s objection based on the 12 confrontation clause was adequately preserve d). We conclude that this issue was not 13 preserved for appellate review. In antic ipation of such a conclusion, Defendant 14 argues, in the alternative, that this C ourt should review for fundamental error. See 15 State v. Dietrich , 2009-NMCA-031, ¶ 51, 145 N.M. 733, 204 P.3d 748, cert. denied , 16 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29. Generally , “we review a trial 17 court’s admission of evidence under an excepti on to the hearsay rule only for an abuse 18 of discretion.” State v. Torres , 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267, 198 overruled on other grounds by State v. Alvarez-Lopez , 2004-NMSC-030, 136 N.M. 1 309, 98 P.3d 699. Likewise, we “review th e admission of evidence under an abuse 2 of discretion standard and will not reverse in the absence of a clear abuse.” See 3 Sarracino , 1998-NMSC-022, ¶ 20. “When a defendant alerts the trial court to a 4 confrontation issue with a proper objection, heor she raises a question of law” that, 5 upon appeal, requires a de novo standard of review. Lopez , 2000-NMSC-003, ¶ 10. 6 However, after concluding the issue was not preserved, this Court will not reverse 7 absent a showing of fundamental error. Fundamental error includes both “cases with 8 defendants who are indisputably innocent, and cases in which a mi stake in the process 9 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the 10 accused.” State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M . 621, 92 P.3d 633. The 11 record before us does not suggest Defe ndant’s “indisputable innocence,” so we, 12 therefore, review with an eye toward wh ether a mistake in the process made his 13 conviction fundamentally unfair. Id. ¶ 14. 14 “The Confrontation Clause of the Sixth Amendment is made applicable to the 15 states through the Fourteenth Amendment.” Lopez , 2000-NMSC-003, ¶ 14 (citing 16 Pointer v. Texas , 380 U.S. 400, 406 (1965)). A primary interest afforded by the 17 confrontation clause is the right of cross-examination. See Dietrich , 18 2009-NMCA-031, ¶ 50. Confrontation clau se issues should be examined on a 199 case-by-case basis, taking into account a defe ndant’s right to cross-examine, as well 1 as the risk factors associated with admission of the evidence. See State v. Stephen F ., 2 2008-NMSC-037, ¶ 6, 144 N.M. 360, 188 P.3d 84. In weighing whether evidence 3 must be admitted under the confrontation clau se, the district court should balance the 4 probative value of the eviden ce sought to be introduced against the risk its admission 5 may entail. See State v. Smith , 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254. 6 The district court holds broad discretion to impose reasonable limits on 7 cross-examination to avoid harassment, prejudice, confusion of the issues, 8 endangering the witness, and the injection of cumulative or collateral evidence. Id. 9 New Mexico courts have previously recognized that a defendant’s right to 10 cross-examine and confront adverse witnesses is not absolute and must “accommodate 11 other legitimate interests in the criminal trial process.” Stephen F ., 2008-NMSC-037, 12 ¶ 6 (internal quotation marks and citation omitted). “However, a court’s decision to 13 restrict a defendant’s ability to confront a witness, even when based on legitimate state 14 interests, calls into question the ultimate integrity of the fact-finding process and 15 requires that the competing interest be closely examined.” Id. (internal quotation 16 marks and citation omitted). 17 In the instant case, we acknowledge th at Defendant sought to demonstrate to 18 the jury that the claims made by A.M. concerning the other two children could not be 1910 substantiated by CYFD’s inve stigation. The purpose was undoubtedly to attack her 1 credibility and lead the jury to question the veracity of all of A.M.’s allegations. We 2 note, however, that the district court wa s correct in observing that CYFD merely 3 concluded that the allegations concerning E. J. and P.J. were uns ubstantiated, which 4 does not mean that they wereor were not abused. Upon review, we determine that it 5 is not an unreasonable position for the district court to conclude that delving into such 6 issues would confuse the jury and would not be probative or relevant as to the issue 7 of A.M.’s abuse. See State v. Scott , 113 N.M. 525, 530, 828 P. 2d 958, 963 (Ct. App. 8 1991) (concluding that, in the context of rape shield laws, “the trial court is afforded 9 discretion on the question of whether to admit or exclude evid ence of the victim’s 10 prior allegations of rape”); Stephen F ., 2008-NMSC-037, ¶ 6 (noting that when a state 11 law or rule of evidence conflicts with an accused’s right of confrontation, the rule or 12 law should not be applied “mechanistically,” but the accused’s right to confront and 13 cross-examine “is not absolute and may, in appropriate cases, bow to accommodate 14 other legitimate interests in the criminal trial process” (internal quotation marks and 15 citation omitted)). We theref ore conclude that, on balan ce, no error occurred in this 16 particular case. 17 B. Amendment of the Indictment 1811 The indictment charged that the alle ged offenses happened sometime over a 1 forty-five day period between April 1 and May 15, 2005. At the close of the State’s 2 case-in-chief, but before the defense’s case, the State moved to amend the indictment 3 to conform with the eviden ce presented at trial. Specifically, the State sought to 4 enlarge the charging period pursuant to Ru le 5-204(C) NMRA, to include November 5 28, 2004—the date that Faye and A.M. moved to Albuquerque and into Renae’s 6 home—up to and including May 15, 2005. After hearing argument, the district court 7 allowed the amendment. The district court noted that Defendant was not relying on 8 an alibi defense and ruled that he was not prejudiced by the amendment. 9 “[A] court may at any time allow the indi ctment or information to be amended 10 in respect to any variance to conform to the evidence.” Rule 5-204(C). “A variance 11 is not fatal unless the accused cannot reas onably anticipate from the indictment what 12 the nature of the proof against him will be.” State v. Marquez , 1998-NMCA-010, 13 ¶ 20, 124 N.M. 409, 951 P.2d 1070 (filed 1997). A.M . testified that the four incidents 14 took place at some time between when sh e moved into Renae’s house and when she 15 left Albuquerque, although the ge neral nature of her testimony tended to show that she 16 was not exactly sure of when the incidents occurred. Faye testif ied that (1) Defendant 17 and Renae were dating while A.M. was living in the house, (2) Defendant would come 18 by periodically, and (3) she was not sure if Defendant would spend the night. She 1912 likewise testified that she was not sure who took A.M. and E.J. to school, but she 1 thought there were times when Defendant would pick the children up and take them 2 home. Finally, Faye stated that after she and A.M. had moved out, there were 3 instances where A.M. would visit and spend the night. Defendant, for his part, 4 testified that during the period that Fayeand A.M. were living in Renae’s house, he 5 visited the house one time. Further, he stated that after A.M. had moved out, he 6 started coming by more regularly. Likewise , Renae testified that Defendant (1) had 7 an apartment in Corrales, New Mexico; (2) came by one time while Faye and A.M. 8 were living there; and (3) started staying there after Faye and A.M. moved out. 9 Finally, Renae testified that A.M. visited Renae’s house two times with Faye after 10 A.M. and Faye had moved out. 11 Defendant’s defense restedon his assertion that he did not abuse A.M., and he 12 lacked the opportunity to commit the offens es. This argument does not amount to a 13 claim that Defendant was not on notice as to the nature of the charges against him, or 14 that his defense was compromised by the amendment. 15 No variance between those allegati ons of a complaint, indictment, 16 information or any supplemental pleading which state the particulars of 17 the offense, whether amended or not , and the evidence offered in support 18 thereof shall be grounds for the ac quittal of the defendant unless such 19 variance prejudices substantial rights of the defendant. 2013 State v. Dombos , 2008-NMCA-035, ¶ 25, 143 N.M. 668, 180 P.3d 675 (internal 1 quotation marks and citation omitted). Defendant knew who th e alleged victim of his 2 conduct was, and he was aware of the charges against him. See Marquez , 3 1998-NMCA-010, ¶ 21 (holding that where th e defendant was aware of the charges, 4 the identity of the victim, and was not rely ing on an alibi, the defendant suffered no 5 prejudice in the amending of the indictment). 6 Defendant next claims that the amendment violated the rule of State v. 7 Baldonado , 1998-NMCA-040, 124 N.M. 745, 955 P.2d 214. In Baldonado , the 8 defendant was charged with criminal sexual contact of a minor. Id. ¶ 3. The 9 indictment stated that the crimes occurred during a two-year period. Id. ¶ 4. The 10 defendant filed a motion for bill of particul ars, requesting more specificity for the 11 approximate time that the alle ged criminal acts occurred. Id. This Court noted that 12 the defendant may or may not have had analibi depending on the time of the alleged 13 offense. Id . ¶¶ 5-6. We concluded that no per se rule based on the time of the 14 charging period should be adopted, but instead district courts should look at each 15 situation on a case-by-case basis and conduct their analysis in light of nine, mutually 16 exclusive factors. Id. ¶¶ 23, 26-28, 30. However, we also stated that the analysis 17 depended upon “the natureof the challenge asserted by the defendant,” implying that 18 the district court’s factual development of the issue should be responsive to the 1914 defendant’s challenge. Id. ¶ 28. The instant case is distinct from Baldonado . There, 1 the issue concerned a charging period that lacked specificity and created difficulties 2 for the defense to establish whether an alibi defense existed. In contrast, the 3 immediate case concerns the expansion of a charging period in light of the evidence 4 presented within the context of the defens e being on notice as tothe specific charges 5 pending. Additionally, Defe ndant’s brief lacks development as to how the district 6 court’s ruling “violated the rule of . . . Baldonado ” and, accordingly, without a visible 7 error, we address the issue no further. 8 C. The District Court’s ExpertTestimony Evidentiary Ruling 9 On the first day of the trial, Defendant argued that Dr. Ornelas had only been 10 made available for an interview the Friday before and requested that her testimony be 11 excluded. The State chronicled its effort s to schedule multiple parties for pretrial 12 interviews and argued that Defendant wa s only available to conduct the pretrial 13 interview a week before. Additionally , Defendant argued that Rule 11-403 NMRA 14 should preclude the testimony of Dr. Ornelas because it would “bolster[] the testimony 15 of [A.M.].” The district court ruled thatthere was no discovery violation, and Dr. 16 Ornelas could provide opini on testimony. On appeal, Defendant acknowledges the 17 admission of evidence is within the purviewof the district court’s discretion. See 18 State v. Armendariz , 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. However, 1915 Defendant’s brief-in-chief states that “[De fendant] maintains the trial court abused its 1 discretion . . . and that a retrial is re quired.” This argument too lacks further 2 development, and we are unable to determine what Defendant’s claim of error is other 3 than the general complaint that Dr. Ornela s should not have tes tified. Without more 4 development, we are simply unable to address this issue. 5 D. Cumulative Error 6 Defendant argues that the net effect of the errors in this case warrants reversal 7 of his conviction. Cumulative error require s reversal when the errors that occurred 8 during the trial were “so prejudicial that the defendant was deprived of a fair trial.” 9 State v. Baca , 120 N.M. 383, 392, 902 P.2d 65, 74 ( 1995) (internal quotation marks 10 and citation omitted). “This doctrine is to be strictly applied[.]” State v. Woodward , 11 121 N.M. 1, 12, 908 P.2d 231, 242 (1995). Howe ver, “[t]he cumulative error doctrine 12 has no application if no errors were committed and if defendant receive d a fair trial.” 13 Scott , 113 N.M. at 530-31, 828 P.2d at 963-64. Becau se we have concluded that there 14 was no error, there is no basis for Defendantto claim that cumulative error requires 15 reversal. Id. 16 III. CONCLUSION 17 For the reasons discussed above, we affirm Defendant’s convictions. 18 IT IS SO ORDERED. 1916 _______________________________ 1 ROBERT E. ROBLES, Judge 2

WE CONCUR: 3

____________________________ 4 CYNTHIA A. FRY, Chief Judge 5

____________________________ 6 JAMES J. WECHSLER, Judge 7