The slip opinion is the first version of an opinion released by the Chi ef Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain d eviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number:

________________ 2

F iling Date: June 29, 2022 3

No. A

- 1

- CA

- 39180 4

STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7

FERMIN MORENO

- ORTIZ, 8

Defendant

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 10 James Waylon Counts, District Judge 11
Hector H. Balderas, Attorney General 12 Maris Veidemanis, Assistant Attorney General 13 Santa Fe, NM 14

for Appellee 15

Bennett J. Baur, Chief Public Defender 16 C arrie Cochran, Assistant Appellate Defender 17 Santa Fe, NM 18

for Appellant 19OPINION 1

YOHALEM , Judge. 2

{1} Defendant Fermin Moreno

- Ortiz appeals his conviction for one count of 3
criminal sexual penetration (CSP) in the third degree, contrary to NMSA 1978, 4

Section 30

- 9

- 11(F) (2009). Defendant challenges the sufficiency of the evidence 5
supporting his conviction and argues that a witness’s statement offered by the 6
prosecution that Defendant is “savage and tries to hook up with all the girls” is 7

inadmissible charact er evidence requiring reversal. 8

{ 2 } We conclude that sufficient evidence in the record supports Defendant’s 9

conviction, and that, although the witness’s statement was character evidence which 10

was inadmissible under Rule 11

- 404(A) (1) NMRA, Defendant did not object. 11
Because its admission was not plain error requiring reversal, we affirm Defendant’s 12

conviction. 13

BACKGROUND 14

{ 3 } The charges in this case arose when Victim attended a party in a house 15

Defendant shared with friends. Victim was acquainted with Defendant, but testified 16
that she had no interest in dating him. Carlos Nagdi, a young man whom Victim was 17

attracted to and w ith whom she had once before had a sexual encounter
, was also in 18
attendance. Everyone at the party was drinking. Both Nagdi and Victim testified that 192 they had quite a lot to drink that night. Nagdi estimated that he had more than twenty 1

drinks. 2

{ 4 } At one point, Victim was feeling “really drunk” and moved into the den to 3
sleep it off. Nagdi followed her and they began making out. Nagdi and Victim agreed 4

that this conduct was consensual. Victim testified that she “blacked out” and the next 5
thing she remembe rs was waking up in Defendant’s bedroom. She testified that 6
when she “came to,” Nagdi was in front of her with his penis in her mouth
, and 7
Defendant was behind her, penetrating her vaginally. Victim testified that she 8
consented to sex with Nagdi but not wi th Defendant. Victim reported the incident to 9

poli ce early the following morning. 10

{ 5 } Nagdi was called to the stand by the prosecution. He testified that he had 11

consensual sex with Victim in Defendant’s bedroom. He claimed Victim was 12
interactive and engage d the entire time. He admitted, however, that he was so drunk 13
at the time he could not remember parts of the sexual e ncounter. 14

{ 6 } Nagdi was interviewed at the police station the morning after the party. The 15

interview was not offered or admitted into evide nce at trial. Nagdi, however, was 16
asked by the prosecution on direct examination whether during the police interview 17

he had made the statement that “[Defendant ] is savage and tries to hook up with all 18
the girls.” Nagdi denied making that statement. Later t he prosecutor questioned 19
Detective Guerrero, one of the officers who interviewed Nagdi, about whether Nagdi 203 had made the statement during his interview at the police station. Detective Guerrero 1
contradicted Nagdi, testifying that s he recalled Nagdi making that statement. 2

Defendant di d not object to this testimony. 3

{ 7 } Defendant was found guilty of third degree criminal sexual penetration (force 4
or coercion). On appeal, Defendant argues (1) the evidence is insufficient to support 5

his conviction ; and (2) the admission of Nagdi’s statement that “[Defendant ] is 6
savage and tries to hook up with al l the girls” requires reversal. 7

DISCUSSION 8

I. Sufficient Evidence in the Record Supports Defendant’s Conviction 9

{ 8 } Defendant argues that his conviction is not supported by sufficient evidence 10
in the record. Specifically, Defendant claims that the State failed to prove that Victim 11
was unconscious, asleep or physically helpless when Defendant had sex with her and 12
that even if Victim was unconscious, asleep or phys ically helpless, Defendant knew 13
or had reason to know of her condition. Defendant points to Nagdi’s testimony that 14
Victim was responsive while he was having sex with her and claims that the term 15
“blacked out,” which was used by the Victim, is ambiguous and can refer to being 16
unconscious or instead to being unable to rem ember, while behaving normally. 17

{ 9 } The State argues that the Victim’s use of the terms “blacked out” and “came 18
to” generally refers to being unco nscious or physically helpless, and that the 19
inference drawn by the jury that Defendant knew or should have known about 204 Victim’s condition was reasonable. We agree with the State and conclude that the 1
evidence was sufficient to support the jury’s verdict. 2

{ 10 } In reviewing the sufficiency of the evi dence, we begin by viewing “the 3
evidence in the light most favorable to the guilty verdict, indulging all reasonable 4
inferences and resolving all conflicts in the evidence in favor of the verdict.” State 5

v. Holt , 2016

- NMSC

- 011, ¶ 20, 368 P.3d 409 (internal quotation marks and citation 6
omitted). We then consider “whether, after viewing the evidence in the light most 7
favorable to the prosecution, any rational trier of fact could have found the essential 8

elements of the crime beyond a reasonable doubt.” State v. Cunningham , 2000

- 9

NMSC

- 009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation 10
omitted). “Contrary evidence supporting acquittal does not provide a basis for 11
reversal because the jury is f ree to reject [ the d]efendant’s version of the facts.” State 12

v. Rojo , 1999

- NMSC

- 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “The jury instructions 13
become the law of the case against which the sufficiency of the evidence is to be 14

measured.” Holt , 2016

- NMSC

- 011, ¶ 20 (alterations, internal quotatio n marks, and 15

citation omitted). 16

{ 11 } In this case, the jury was instructed that to find Defendant guilty of criminal 17
sexual penetration by force or coercion, they must find the following elements of the 18
crime beyond a re asonable doubt: “(1) [D] efendant caused [Victim] to engage in 19
sexual intercourse or anal intercourse; (2) [Victim] was unconscious, asleep or 205 physically helpless AND [D] efendant knew or had reason to know of the condition 1
of [Victim]; (3) This happened in New Mexico on or about April 21

- 22, 2016.” See 2

UJI 14

- 944 NMRA. 3

{ 12 } Defendant admitted to engaging in sexual intercourse with Victim, 4
establishing the first element of the offense. Defendant argues that the second 5

element

— that Victim was unconscious, asl eep or physically helpless

— was not 6
established by the evidence. This element requires the jury to assess Victim’s 7

condition at the time of the incident. Victim testified that she “blacked out” and did 8
not remember anything that happened from the time she s tarted making out with 9
Nagdi in the den until she “came to” in Defendant’s bedroom to find Nagdi and 10
Defendant having sex with her. 11

{ 13 } In addition to Victim’s testimony, the State called an expert witness, a 12
toxicologist, to testify about blood test resu lts showing the amount of alcohol and 13

other substances Vi ctim had in her body that night and the effect of those substances 14
on Victim at the time of the incident. The toxicologist estimated that Victim’s blood 15
alcohol content would have been at least 0.125 g/100mL approximately five hours 16
earlier when the incident at issue took place, well abo ve the 0.08 g/100 mL 17
presumptive intoxication limit for driving a car. S ee NMSA 1978, § 66

- 8

- 102(C)(1) 18
(2016). The toxicologist also testified that Victim had taken a seizure medication 196 that, when combined with alcohol, can cause excessive sleeping, confus ion, and 1
difficulties with memory or speaking. 2

{ 14 } While Defendant concedes that this testimony was sufficient to prove that 3
Victim “blacked out,” he argues that being “blacked out” does not necessarily mean 4
that she was “unconscious, asleep or physicall y helpless,” as required by the jury 5
instruction, or that her appearance and conduct would necessarily put others on 6
notice that she was unable to consent. Defendant relies on Nagdi’s testimony that 7
Victim was awake and interacting with him for the entire s exual encounter. Nagdi, 8
however, also admitted that he did not recall long periods from that night, including 9
some of the time he was having sex with Victim, because he had at least twenty 10
drinks that night. 11

{ 15 } Resolving all disputed facts in favor of the State and indulging all reasonable 12

inferences in support of the verdict, as we must, see Holt , 2016

- NMSC

- 011, ¶ 20, 13
we conclude that the evidence is sufficient to support the jury’s conclusion that 14
Victim was “unconscious, asleep or physically helpless ,” and that Defendant knew 15
or had reason to know of Victim’s condition. It was the duty of the jury to weigh the 16
evidence and to decide how to resolve the contradictions in Nagdi’s testimony. See 17

Romero v. H. A. Lott, Inc. , 1962

- NMSC

- 037, ¶ 11, 70 N.M. 40, 369 P.2d 777 (“Mere 18
inconsistencies or perhaps contradictions in the testimony of a witness only affect 19
his credibility and it is the duty of the trier of the facts to weigh the evidence, 207 determine the credibility of the witness and the weight to be given the testimony, 1
and, where the truth lies.”). Whether Victim was “unconscious, asleep or physically 2

helpless,” and whether her condition was or should have been visible to Defendant 3
are questions of fact for the jury to decide based on all the evidence. Th e fact that 4
Victim’s statement that she “blacked out” was ambiguous and could have been 5
interpreted in a manner that might support acquittal, does not mean that the evidence 6
was insufficient to support the decision made by the jury. See Rojo
, 1999

- NMSC

7

001 , ¶ 19 (“Contrary evidence supporting acquittal does not provide a basis for 8
reversal because the jury is free to reject [the d]efendant ’ s version of the facts .”). 9
There is sufficient evidence in the record to support the jury’s verdict. 10

II. Although Nagdi’s Statement Was Inadmissible Character Evidence 11 Offered to Show Propensity, Its Admission Did Not Amount to Plain 12 Error Requiring Reversal 13

{ 16 } Defendant next a rgues that Nagdi’s statement to the police that “[Defendant ] 14
is savage and tries to hook up with all the girls” was inadmissible evidence of bad 15
character and that its admission requires rever sal and remand for a new trial. The 16

State denies both that the s tatement was inadmissible, and, even if it was 17
inadmissible, that its admission was sufficiently prejudicial to require reversal. We 18
agree that the statement’s admission does not require reversal under the doctrine of 19

plain error. 208 A. Standard of review 1

{ 17 } The parties disagree about the proper standard of review on appeal. The State 2
claims that Defendant failed to object to either of the two instances where the 3
prosecution relied on the statement at trial. In the absence of an objection, the State 4

contends that this Court should review for fundamental error. Although Defendant 5
admits he made no objection to the prosecution’s second use of the statement in 6
questioning Detective Guerrero, he claims he objected to the original question to 7
Nagdi and argues that our review, therefore, should be for reversibl e error. 8

{ 18 } Our review of the transcript shows that defense counsel did not object either 9
to the prosecution’s original question to Nagdi about whether he made this statement 10
in his police interview or to the prosecution’s subsequent questioning of Officer 11

Guerrero im peaching Nagdi’s denial. When a timely objection has not been made, 12

we review the admission of evidence for plain error. 1 See State v. Lucero , 1993

- 13

NMSC

- 064, ¶ 13, 116 N.M. 450, 863 P.2d 1071 (stating that plain error applies to 14
evidentiary matters that w ere not brought to the attention of the district court); see 15

also Rule 11

- 103(E) NMRA (“A court may take notice of a plain error affecting a 16
substantial right, even if th e claim of error was not properly preserved.”)

. To reverse 17

1 Defendant objected later to a different question, which Defendant claimed had been asked and answered previously. No objection was made to the prosecution’s question about whether he recalled “telling Detective Guerrero that [Defendant] is savage and tries to hook up with all the girls.”9 a conviction based on plain error, the reviewing court must be convinced that the 1
testimony was admitted in error and that its admission affected the “substantial 2
right [ s ] ” of the accused. Rule 11

- 103(E). “[T]he Court must be convinced that 3
admission of the testimony constituted an injustice that created grave doubts 4
concerning the validity of the verdict.” State v. Montoya , 2015

- NMSC

- 010, ¶ 46, 5
345 P.3d 1056 (internal quotation marks and citation omitted). 6

B. The S tatement W as I mproper C haracter E vidence U nder Rule 11

- 7 404 (A)(1) 8

{ 19 } We look first at whether the challenged statement was admitted in error. In 9
this case, the jury heard the statement twice: first when Nagdi was questioned by the 10
prosecutor, and again when the prosecution impeached Nagdi’s denial that he had 11
made the statement with Detective Guerrero’s contrary testimony. Defendant claims 12
that the statement that he “is savage and tries to hook up with all the girls” is evidence 13
of bad character, and that it was offered by the prosecution for the sole purpose o f 14
showing that Defendant acted in conformance with his character b y committing the 15
crime charged. 16

{ 20 } Rule 11

- 404(A) (1) is designed to prohibit admission of negative character 17
traits to prove that a defendant acted in accordance with those traits. State v

. Lucero
, 18

1992

- NMCA

- 107 , ¶ 9 , 114 N.M. 489, 840 P.2d 1255 . In a criminal case, the 19
prosecution is not permitted to introduce negative character evidence if its sole aim 20
is proving the accused’s propensity to commit the crime charged. See i d. 2110 (“Testimony which amounts to evidence of a defendant’s bad character or 1
disposition to commit the crime charged is clearly inadmissible.”). Such evidence is 2
disallowed, not because character evidence lacks relevance, but because, although 3
relevant, it has a substantial prejudicial effect. State v. Martinez , 2008

- NMSC

- 060, 4

¶ 2 3, 145 N.M. 220, 195 P.3d 1232; see also State v. Rackley , 2000

- NMCA

- 027, 5

¶ 12, 128 N.M. 761, 998 P.2d 1212 (“Evidentiary rules restricting the use of 6
propensity evidence reflect a judgment that the probative value of such evidence is 7
outweighed by unfair prejudice, confusion and waste of time.”). 8

{ 21 } Although the State generally denies that it questioned Nagdi about the 9
statement to suggest that Defendant had a propensity to act consistently with Nagdi’s 10
negative description of his character, the State o ffers no legitimate purpose for 11
admitting this statement of bad character. The State fails to articulate any permissible 12
consequential fact it was attempting to prove with Nagdi’s statement. See State v. 13
Gallegos , 2007

- NMSC

- 007, ¶ 22, 141 N.M. 185, 152 P.3 d 828 (holding that a 14
permissible purpose must be articulated). 15

{ 22 } Although articulating no permissible purpose justifying admission of the 16
statement, the State claims that its questioning of Detective Guerrero was justified 17
to impeach Nagdi and undermi ne his credibility. This Court in Lucero , however, 18
rejected as improper the s tate’s successful attempt in that case to introduce 19
inadmissible evidence of prior misconduct by claiming it was impeachment of the 2011 defendant’s denial that misconduct had occurred . 1992

- NMCA

- 107, ¶ 14. Lucero 1
noted that allowing impeachment using otherwise inadmissible evidence of bad 2

character “permitted the [s] tate to introduce a collateral, irrelevant, and potentially 3
prejudicial issue into the case.” See id. ; see also State v. Ross , 1975

- NMCA

- 056, 4

¶¶ 6

- 9, 88 N.M. 1, 536 P.2d 265 (disallowing impeachment with testimony about 5

bad character because it would have been inadmissible under Rule 11

- 404 on direct 6

examination ). 7

{ 23 } We hold, therefore, that the challen ged statement was inadmissible evidence 8
of bad character, which had no purpose other than showing that Defendant acted 9
consistently with his bad character, committing the crime charged. Such a statement 10

was inadmissible, both when offered on direct examina tion and when used to 11
impeach Nagdi’s denial that he made the statement. 12

C. Admission of the S tatement D oes N ot A mount to P lain E rror 13

{ 24 } Having held that Nagdi’s statement was inadmissible character evidence, we 14
now turn to the second prong of the pla in error analysis: whether the admission of 15
the evidence creates “grave doubts concerning the validity of the verdict ” or the 16

fairness of the trial. See Montoya , 2015

- NMSC

- 010, ¶ 46. “Plain error is an 17
exception to the general rule that parties must raise timely objection to improprieties 18

at trial, and therefore it is to be used sparingly.” State v. Dylan J. , 2009

- NMCA

- 027, 19
¶ 15, 145 N.M. 719, 204 P.3d 44 (intern al quotation marks and citation omitted). 2012 { 25 } In this case, we conclude that the plain error doctrine does not demand 1
reversal. Defendant’s conviction turned primarily on whether Victim was too 2

impaired to consent to have sex and whether the extent of he r impairment should 3
have been obvious to Defendant. The statement that “[Defendant] is savage and tries 4
to hook up with all the girls” suggests only that Defendant looks for an opportunity 5
to have sex, not that he has forcible sex or sex with nonconsenting people. Defendant 6
did not deny seeking and having sex with Victim; the questions for the jury focused 7
on Victim’s level of intoxication and consciousness and on whether her inability to 8
consent would have been apparent to a reasonable person . We
, therefor e , conclude 9

that the admission of this statement did not create substantial prejudice to Defendant 10
concerning either the validity of the verdict or the fairness of the trial required to 11
constitute plain error. 12

CONCLUSION 13

{ 26 } For the reasons stated, we af firm Defendant’s conviction. 14

{ 27 } IT IS SO ORDERED. 15

_________________________________ 16 JANE B. YOHALEM , Judge 1713 WE CONCUR: 1

_________________________________ 2 J. MILES HANISEE , Chief Judge 3

_________________________________ 4 GERALD E. BACA , Judge 5