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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,866 9 STEVEN H., 10 Child-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 12 John W. Pope, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Margaret E. McLean, Assistant Attorney General 16 Joel Jacobsen, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee 19 Liane E. Kerr 20 Albuquerque, NM 21 for Appellant 22 MEMORANDUM OPINION 23 GARCIA, Judge. 242 Steven H. (Child) appeals from an ad judication of delinquency based upon the 1 district court’s finding that he committed third-degree criminal sexual contact of a 2 minor (CSCM) under thirteen years of ag e, contrary to NMSA 1978, Section 30-9- 3 13(C)(1) (2003), and NMSA 1978, Secti on 32A-2-3(A) & (B) (2005) (amended 4 2009). Child raises four issues on appeal: (1) Child’s due process right was violated 5 by the victim advocate’s active involvement inthe case; (2) Child’s right to prepare 6 a defense was violated when the distri ct court denied Child the opportunity to 7 interview Jane Doe (Victim), ordered late interviews with the State’s remaining 8 witnesses, and denied Child’s motion for a continuance; (3) there was insufficient 9 evidence for Child’s adjudication of delinque ncy; and (4) Child received ineffective 10 assistance of counsel. We conclude that th e district court viol ated Child’s right to 11 prepare a defense by denying Child the opportunity to conduct a pretrial interview 12 with Victim based upon the conduct of Child’s counsel. Furthermore, retrial would 13 not implicate double jeopardy concerns b ecause sufficient evidence supports Child’s 14 adjudication of delinquency. As a resu lt, we reverse Child’s adjudication of 15 delinquency and remand to the district court for a new trial. Because we reverse on 16 these grounds, we do not reach the remain ing issues raised by Child on appeal. 17 BACKGROUND 183 On October 1, 2007, the State filed a petition asserting that Child was a 1 delinquent child based upon hi s alleged commission of one count of first-degree 2 criminal sexual penetration (C SPM) (child under thirteen y ears of age) and two counts 3 of second-degree CSCM (child under thirteenyears of age). The State subsequently 4 issued a witness list, including Victim, Vi ctim’s parents, and several additional 5 witnesses who reside in Arizona. 6 After the parties’ unsuccessful attemp t to reach an agreement regarding 7 scheduling interviews of Victim and other witnesses, Child filed a motion to compel 8 witness interviews, requesting that the di strict court require the State to produce 9 Victim and other Arizona witne sses for interviews at least si x weeks prior to trial. At 10 the resulting hearing, the parties agreed that Victim was subject to a pretrial interview, 11 but disagreed regarding when and how the interview would be conducted since Victim 12 was five-years-old and lived out-of-state. Child argued that mistaken identity was a 13 potential issue because Victim knew another boy named Steven, and Victim never 14 referred to Child as “Steven,” but only as “the big, tall boy.” As a result, Child 15 contended that Victim’s interview neededto be scheduled with sufficient time to 16 allow the defense to hire an e xpert to evaluate Victim’s st atement. Child further relied 17

on State v. Orona , 92 N.M. 450, 589 P.2d 1041 (1979), to argue that not allowing 184 Child sufficient time before trial to interv iew Victim and other witnesses would deny 1 Child the right to prepare a defense. 2 The State recognized that Victim was “the main witness in this case” and 3 argued that it would be “abusive” to require Victim to travel from Arizona to New 4 Mexico for both a pretrial interview and trial in such a short period of time. 5 Additionally, the State argued that since Child already had information from a safe 6 house interview with Victim, an interview the weekend before trial would allow Child 7 sufficient time to prepare a defense. In response, Child argued that the safe house 8 interview was insufficient since it “was probably less than ten minutes [in duration], 9 and it wasn’t done in a manner that’s c onducive to protecting a defendant’s rights, 10 especially another juvenile’s rights.” Child further contended that Child had no 11 opportunity to ask questions regarding the possible mistaken identity in the safe house 12 interview. 13 The district court ordered that Child beallowed to intervie w Victim and other 14 witnesses in Phoenix, Arizona. The c ourt reasoned that interviewing Victim in 15 Phoenix would provide a reasonable compromise between Victim’s comfort and 16 Child’s right to prepare for trial. The c ourt further reasoned that it would be “very 175 difficult for [Child] to prepare for trial without having any kind of contact with 1 [Victim] before trial.” Specifi cally, the court concluded that 2 if [Child is] going to be able to ev en attempt to put up a mistaken identity 3 defense, he’s almost going to have to be able to interview [Victim]. And 4 . . . if he is going to interview [V ictim] for a mistaken identity defense, 5 he’s going to almost have to able to do that with some time to be able to 6 verify . . . what [Victim] says. 7 Subsequent to the scheduled interviews in Phoenix, the State filed a notice of 8 ineffective assistance of defense counsel and a motion for protective order. The State 9 alleged and provided evidence that Child’s c ounsel attempted to videotape the witness 10 interviews without either a prior agreement with the State or a court order, and Child’s 11 counsel “became enraged, hostile and violen t” after the State refused to allow 12 videotaping of the interviews. The Stat e further provided evidence that the first 13 interview with an investigating detective was unsuccessful because after the detective 14 refused to answer questions that he deemedirrelevant, Child’s counsel then told the 15 detective to “get out.” Due to this conduc t, Child’s counsel was escorted from the 16 building, and the interviews with Victim and other witnesses were cancelled. The 17 State additionally provided evidence that Ch ild’s counsel subsequently had Victim’s 18 parents personally served withsubpoenas for alternate pretri al interviews despite the 19 State’s rejection of interviews on the speci fied date. The State argued that defense 206 counsel’s conduct fell below th e standard of care for a reasonably effective attorney, 1 and that the district court should find defens e counsel ineffective. In the alternative, 2 the State asked the district court to enter a protective order that would require that all 3 interaction between Child’s counsel, Victim , and the State’s additional witnesses be 4 supervised by the district court. The State did not ask the court to prohibit Child from 5 interviewing the complaining witness. In response, Child filed a motion to dismiss 6 due to prosecutorial misconduc t and violation of Child’s right to prepare a defense. 7 Child argued that defense counsel attempted to videotape the interviews at the request 8 of Child’s expert witness and that the St ate allowed the interviews to be cancelled 9 without regard for Child’s rights or the court order. 10 The district court heard the parties’ mo tions at a hearing on March 6, 2008. The 11 court expressed concern that trial was coming up and that Victim had not yet been 12 interviewed. Victim’s advocate then stated that she had “very grave concerns” about 13 subjecting Victim to a pretrial intervie w with Child’s counsel based upon his conduct 14 in Phoenix. As a result, Victim’s advocate asked the court to exercise its discretion 15 to prevent Child’s counsel from intervie wing Victim since very young children are 16 protected from confrontation even in a trial setting, and Child’s “constitutional rights 17 are not at play.” The State subsequently argued that one of its biggest concerns was 187 whether Child was going to receive effective assistance of counsel that would “defend 1 [Child’s] constitutional rights,” and further described its attempts to protect those 2 rights by providing pretrial interviews. The State asserted that the interviews did not 3 occur “[s]olely because of what [Child’s c ounsel] did.” As a result, the State asked 4 the court to find defense counsel ineffective. In the alternative, the State asked that 5 the witness interviews be supervised by the court, reasoning that its main concern was 6 protecting Victim in light of defense counsel’s conduct. 7 Child responded by correcting several alleged misrepresentations, including 8 explaining that defense counsel asked to vi deotape the interviews at the request of 9 Child’s expert witness. Child further c ontended that although de fense counsel and the 10 State were both assertive toward each other, defense counsel was not unprofessional. 11 Child confirmed that the interviews were ultimately “shut down by the officers 12 because the officers were butting heads with [Child’s counsel] so bad that [he] finally 13 did ask the officer to leave.” Finally, Child argued that the main question was how 14 Child was going to receive a fair trial under the circum stances since Child was not 15 given an opportunity to interview the witn esses. Child further contended that he 16 needed to conduct the interviews in order to prepare Child’s th eory of the case and 17 allow experts to prepare to testify regarding Child’s theory of the case. 188 The district court ultimately denied th e State’s motion to find defense counsel 1 ineffective, reasoning that although there were certain ethical issues, the court 2 believed Child’s counsel to be “quite cap able of going forward with this case.” 3 Without providing additional reasoning, the c ourt further stated that it was “not going 4 to order that [Victim] have any pretrial interviews at this point,” and that the court 5 would order that the remaining interviews be supervised by the court. In a written 6 order following the hearing, the court found th at Child’s right to prepare a defense did 7 not include videotaping the witness intervie ws and that “pretrial interviews should be 8 conducted utilizing protective measures.” As a result, the court ordered that pretrial 9 interviews with Victim “will not be allowe d” and that a bailiff of the court would 10 supervise the interviews with all other w itnesses for the State. At a subsequent 11 hearing, the court clarified that the conduc t of Child’s counsel was the reason for the 12 protective measures. 13 At a hearing on March 13, 2008, the district court heard Child’s motion to 14 dismiss, or in the alternative, to ex clude witness testimony or grant Child a 15 continuance. Child argued that due to the court’s order regarding pretrial interviews, 16 his “opportunity to get a fair trial and to prepare his defense [was] irretrievably lost 17 at [that] point.” Child further contende d and his expert witness testified that a 189 continuance was needed to allow Child time to prepare for the interview with the 1 State’s expert on the following day and also to allow Child’s expert time to adequately 2 evaluate the statements before trial. Child argued that he had insufficient time to 3 prepare a defense regarding mistaken iden tity or evaluate whether testimony would 4 constitute impermissible vouching for the credibility of Victim. The court summarily 5 denied Defendant’s motion for dismissal, suppression, or a continuance without any 6 reasoning or findings. 7 During a bench trial on March 17-18, 2008, Child waived cross-examination 8 of Victim. In Child’s closing statement, Child argued that Victim had never referred 9 to Child as “Steven” but as “the boy” or the “big tall boy,” but the State in rebuttal 10 contended that no testimony was presented tosupport Child’s argument. The district 11 court adjudged Child deli nquent based upon the commission of third-degree CSCM, 12 and Child subsequently appealed. Wereverse and remand for a new trial. 13 DISCUSSION 14 Right to Prepare a Defense 15 Child argues that his right to prepare a defense was violated when the district 16 court denied Child the opportunity to interv iew Victim, ordered late interviews with 17 the State’s remaining witnesses, and de nied Child’s motion for a continuance. 1810 Specifically, Child contends that since Victim referred to another person named 1 “Steven” and referred to Child only as “that boy,” an interview with Victim was 2 crucial in order for Child to prepare a mistaken identity defense. 3 We review a district court’s granting or denial of discovery in a criminal case 4 under an abuse of di scretion standard. State v. Layne , 2008-NMCA-103, ¶ 6, 144 5 N.M. 574, 189 P.3d 707. “We cannot say the [d istrict] court abused its discretion by 6 its ruling unless we can characterize it as cl early untenable or not justified by reason.” 7 State v. Casillas , 2009-NMCA-034, ¶ 24, 145 N.M. 783, 205 P.3d 830 (internal 8 quotation marks and citation omitted). 9 Initially, we note that in the districtcourt below, the parties and Victim’s 10 advocate agreed that Victim wa s subject to a pretrial interview, but disputed when and 11 how the interview would be c onducted. As a result, the issue of whether Victim was 12 subject to an interview is not before th is Court, and we onl y review whether the 13 district court abused its discretion by denying Child an opportunity to interview 14 Victim based upon defense counsel’s conduct. 15 Child relies on Oronato argue that his right to prepare a defense was violated. 16 92 N.M. at 452-53, 589 P.2d at 1043-44. InOrona , the defendant was charged with 17 CSPM involving a child under thirteen years of age, the state’s witness list included 1811 both the alleged victim and her older sister, and the allege d victim and her sister were 1 the state’s main witnesses. Id. at 451-52, 589 P.2d at 1042-43. Prior to trial, the 2 prosecution presented evidence that the defe ndant had contacted the alleged victim’s 3 sister in an attempt to persuade her not to testify against him. Id. at 451, 589 P.2d at 4 1042. As a consequence, the district court entered an order that neither the defendant 5 nor his attorneys could contact or depos e the alleged victim or her sister. Id. 6 However, the court “allow[ed] copies of the witnesses’ grand jury testimony to be 7 made available to defense counsel in order to assist [the] defendant in preparation of 8 his case.” Id. Our Supreme Court reversed the defendant’s convictions, holding that 9 the circumstances did not justify an outright prohibition on access to the alleged 10 victim and her sister and that the order vi olated the defendant’s right to prepare a 11 defense. Id. at 452-53, 589 P.2d at 1043-44. Instead, the Court reasoned that the 12 district court could have “fashion[ed] some means to ensure that the witnesses [would] 13 be protected from intimidation without undul y impairing [the] defendant’s right to 14 prepare a defense.” Id. 15 We conclude that Oronacontrols this case. Similarly to Orona , Child was 16 charged with CSPM involving a child under thirteen years of age inwhich the alleged 17 victim was one of the St ate’s main witnesses. See id. at 451-52, 589 P.2d at 1042-43. 1812 Furthermore, where defendant’s access to grand jury testimony was not sufficient to 1 protect the defendant’s right to prepare for trial in Orona , we conclude that Child’s 2 access to Victim’s safe house interview and other discovery was not sufficient to 3 protect Child’s right to prepare a defense in this case. See id. at 451, 453, 589 P.2d 4 at 1042, 1044. Specifically, the safe hous e interview and other discovery did not 5 address any discrepancies in identity and did not give Child the opportunity to 6 question Victim regarding the possible mi stake of identity. Finally, just as Orona 7 concluded that an absolute restriction on the defendant’s access to the alleged victim 8 was not justified by the defendant’s improper conduct, we concludethat an absolute 9 restriction on Child’s access to Victim wa s not justified by the conduct of defense 10 counsel. See id. at 452-53, 589 P.2d at 1043-44. We echo our Supreme Court’s 11 concerns expressed in Orona . We are aware of the sensitiv e nature of this case, the 12 nature of the alleged crimes , and the problems that could have arisen in a pretrial 13 interview due to Victim’s age and the conduct of defense counsel. See id. at 453, 589 14 P.2d at 1044. However, we conclude that the district court abused its discretion by 15 denying Child any subsequent opportunity to interview Victim before trial. Instead, 16 the district court could have fashioned so me reasonable protective means, short of an 17 absolute restriction, that would have allo wed the necessary interview so Child could 1813 prepare an adequate defense, while ensuring that Victim would be protected from 1 improper intimidation by defense counsel. See id. 2 The State argues that Oronais distinguishable because the district court did not 3 impose an “absolute restricti on” on Child’s access to Victim. See id. (reasoning that 4 “in the absence of some demonstrable good cause, a [district] court may not impose 5 an absolute restriction on defense counsel’s access to the [s]tate’s prospective 6 witnesses”). Specifically, the State contends that the court did not deny Child the 7 opportunity to interview Victim because Child’s counsel could have interviewed 8 Victim in Phoenix had his conduct not resu lted in the cancellation of the interview. 9 The State further argues that since the “s ole reason” for the order prohibiting the 10 interview was the conduct of counsel hire d by Child, Child in effect chose to not 11 conduct the interview by choosing to continue retaining said counsel. Finally, the 12 State argues that the restriction was only a partial restriction b ecause it only covered 13 the last eleven or fewer days prior to trial. 14 We conclude that the district court’ s order was an absolute restriction on 15 Child’s access to Victim. The State had faile d to make Victim available for interviews 16 prior to the cancellation of the interview inPhoenix. The court’s subsequent order 17 clearly states that “pretrial interviews will not be allowed with [Victim],” and the 1814 order does not include any exception permitting interviews to be conducted by 1 alternate counsel or under any other circumstances. Furthermore, although the order 2 only covered the remaining time period imme diately before trial, the language and 3 effect of the order imposed an absolute re striction that had the undisputed effect of 4 preventing Child from interviewing Victim before trial. 5 Finally, we decline to impute the c onduct of Child’s counsel to Child. Orona 6 clarifies that “[r]egardless of who prevents the interviews, the effect may be to deprive 7 [the] defendant of his right to prepare a defense.” Id. at 452, 589 P.2d at 1043. Orona 8 further declined to impute the defendant’s motives in contacting the alleged victim 9 and her sister to the defendant’s counsel. Id. at 453, 589 P.2d at 1044. The 10 defendant’s own improper conduct was insufficient to waiv e his right to interview the 11 alleged victim in Orona , and we conclude that th e improper conduct of Child’s 12 counsel is also insufficient to waive Child’s right to prepare an adequate defense by 13 interviewing Victim in an appropriate manner under court supervision. See id. As a 14 result, we conclude that the effect of the di strict court’s order was in fact an absolute 15 restriction that prevented Child from interviewing Victim prior to trial. 16 The State additionally argues th at even if this Court determines that an absolute 17 restriction occurred, the State showed good cause for the restriction by presenting 1815 evidence of Victim’s vulnerability and defens e counsel’s conduct. We disagree. First, 1 Victim’s age did not constitute good cause for an absolute restriction since both 2 parties and Victim’s advocate previously agreed that Victim was subject to an 3 appropriate interview. See Orona , 92 N.M. at 451, 453, 589 P.2d 1042, 1044 4 (concluding that the alleged victim’s young age of less than thirteen years did not 5 constitute good cause for an absolute restriction). Second, the conduct of Child’s 6 counsel did not constitute good cause for an absolute restriction where the district 7 court was capable of developing restrictive protective measures for Victim’s interview 8 that were adequate to respond to counsel’s conduct. See id. (concluding that the 9 defendant’s conduct did not constitute good cau se for an absolute restriction where 10 less restrictive measures could have been adopted to proceed while continuing to 11 protect the witnesses). Speci fically, we note that the State did not request an absolute 12 restriction preventing Child from interviewi ng Victim, but instead requested that the 13 “[c]ourt supervise any and all interaction between [Child’s counsel] and [Victim].” 14 As a result, we conclude that the districtcourt could have adopted less restrictive 15 measures to protect Victim than an ab solute restriction preventing Child from 16 interviewing Victim prior to trial. 1716 Finally, the State argues that the district court’s order did not prejudice Child 1 because the Child had access to Victim’s safe house interview and the interviews of 2 other witnesses. In Orona , our Supreme Court determined that “[n]o more prejudice 3 need be shown than that the [district] c ourt’s order may have made a potential avenue 4 of defense unavailable to the defendant.” Id. at 452, 589 P.2d at 1043. As a result of 5 the district court’s denial of an intervie w with Victim prior to trial, Child had no 6 opportunity to question Victim regarding th e possible mistake of identity in order to 7 prepare a mistaken identity defense. Furthermore, the district court previously 8 concluded that “if [Child is ] going to be able to even attempt to put up a mistaken 9 identity defense, he’s almost going to have to be able to interview [Victim].” Child’s 10 attempt at trial to argue that a mistake of identity occurred was unsuccessful because 11 no testimony was presented in support of that defense. The district court’s denial of 12 a pretrial interview with Victim deni ed Child the opportunity to discover any 13 impeaching evidence. See Layne , 2008-NMCA-103, ¶ 13 (“Impeachment is crucial 14 to effective cross-examination because it gi ves a party the opportunity to discredit a 15 witness, so the [trier of fact] has a way to determine whether a witness is untruthful 16 or inaccurate.” (internal quotation marks and citation omitted)). Consequently, we 17 determine that the district court’s deni al of the opportunity to interview Victim 1817 prejudiced Child because it appears from the record available to have resulted in a 1 potential mistake of identity defense bei ng unavailable to Child. Because Child’s due 2 process right to prepare a defense was violat ed by the district court’s order that denied 3 an interview of Victim prior to trial, wereverse Child’s adj udication of delinquency. 4 Sufficiency of the Evidence 5 Having determined that the violation of Child’s right to prepare for trial 6 mandates reversal, we now consider Child ’s argument that there was insufficient 7 evidence for his adjudication of delinquency and that his charges should be dismissed. 8 We note that retrial would implicate double jeopardy concerns if insufficient evidence 9 was presented at trial to support Child’s adjudication of delinquency. See State v. 10 Mascareñas , 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4 P.3d 1221 (reasoning that as 11 long as sufficient evidence for a convicti on was presented at trial, double jeopardy 12 concerns are not implicated by reversing and remanding for a new trial). 13 In reviewing the sufficiency of the ev idence, we analyze “whether direct or 14 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 15 reasonable doubt with respect to every element essential for conviction.” State v. 16 Kent , 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. “We determine whether 17 a rational factfinder could have found that each element of the crime was established 1818 beyond a reasonable doubt.” Id. Furthermore, “we must view the evidence in the 1 light most favorable to the guilty verdic t, indulging all reasonable inferences and 2 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 3 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 4 To support Child’s adjudication of deli nquency based on the act of third-degree 5 CSCM as a lesser-included offense of CountIII of the petition, the State was required 6 to prove beyond a reasonable doubt that Ch ild unlawfully and intentionally caused 7 Victim to touch the penis of Child, that Victim was twelve years of age or younger, 8 and that the touching occurred in New Mexico on or about July 28, 2007. See§ 30-9- 9 13(A) & (C)(1); UJI 14-925 NMRA. 10 Child argues that there was insufficien t evidence that Child touched Victim’s 11 buttocks and vagina or that the touchi ng was intentional. This argument is 12 inconsistent with the evidence and adjudication in this case. Child’s adjudication of 13 guilt was based on Child’s alleged act of unlawfully and intentionally causing Victim 14 to touch the intimate parts of Child. As a result, we conclude that Child’s argument 15 is unsupported by the record. We further note th at at trial, Victim testified that the 16 boy named “Steven” who lived in New Mexi co asked her to “[t]ouch stuff on him,” 17 and Victim drew a picture showing where she touched him. Additionally, Victim’s 1819 out-of-court statement regarding sexual contact between Victim and Child was 1 introduced as an excited utterance. Finally, Child’s therapist testified that Victim was 2 suffering from an anxiety disorder, which included symptoms of arousal, regressive 3 behavior, and nervousness around strangers. As a result, we conclude that sufficient 4 evidence supported Child’s adjudication of delinquency for the purpose of our double 5 jeopardy analysis. 6 CONCLUSION 7 For the foregoing reasons, we reverse Ch ild’s adjudication of delinquency and 8 remand to the district court for a new trial. 9 IT IS SO ORDERED. 10

______________________________ 11 TIMOTHY L. GARCIA, Judge 12

WE CONCUR: 1320 ____________________________________ 1 MICHAEL D. BUSTAMANTE, Judge 2

____________________________________ 3 RODERICK T. KENNEDY, Judge 4