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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,505 9 OCTAVIANO THOMAS CLARK, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas R. Driggers, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Anne Kelly, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Acti ng Chief Public Defender 19 Karl Erich Martell, Assi stant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 242 Defendant Octaviano Clark appeals his convictions for criminal sexual contact 1 of a minor in the second degree (CSCM s econd degree) and criminal sexual contact 2 of a minor in the third degree (CSCM third degree). On appeal, Defendant argues that 3 (1) there was insufficient evidence supporti ng his convictions, (2) the district court 4 erred by allowing improper character evid ence that Defendant supplied cocaine to 5 attendees of a party, (3) the State committed prosecutorial misconduct by putting forth 6 improper character evidence in closing, (4 ) he was denied due process when his 7 motion for alibi was ignored instead of bei ng treated as a motion for a new trial, and 8 (5) he did not receive effective assistance of counsel. We hold that sufficient evidence 9 supports Defendant’s convictions. However, because the district court erred in 10 allowing character evidence that Defendant supplied cocaine to the attendees of a 11 party, we reverse and remand for a new trial. As a result, we do not reach the last 12 three issues. 13 BACKGROUND 14 Defendant’s convictions arose out of anincident that occurred during a party 15 in late 2005. The victim was twelve years old at the time. The party occurred at the 16 home of the victim’s cousin Claudia Avila(Claudia). Defendant, who was Claudia’s 17 boyfriend, was present at the party. Vic tim’s cousin Victor Avila (Victor), Victor’s 18 wife, victim’s mother Sonia Avila (Sonia) , victim’s stepfather Ernesto Rodriguez 193 (Ernesto), victim’s brother Noe Avila (Noe), victim’s stepsister Erica Avila (Erica), 1 victim’s minor sister (J.), and Claudia’s three minor daughters were also present at the 2 party. Additionally, Erica testified that a heavyset, tall man w ith a mustache was also 3 present for two hours but left before midnight. 4 The jury heard testimony that most of the adults were drinking alcohol and 5 using cocaine at the party, including Defe ndant, Erica, and Sonia. Before trial, 6 Defense counsel asked the district court to not allow testimony that Defendant 7 supplied the cocaine to the party, arguing that such testimony was prejudicial and not 8 relevant to the offense. Initially, the district court agreed and stated “there should be 9 no reference made to who brought the cocaineto the party.” However, the district 10 court ultimately decided to allow testimony that Defendant supplied the cocaine, as 11 long as the testimony did not paint Defendant “as a major cocaine dealer,” noting that 12 what the adults at the party were “under the in fluence of [is] a factthat relates to the 13 case.” Over a trial objection, Erica testif ied that Defendant “was the one that gave 14 [her] cocaine” at the party. 15 The victim testified that she, J., and Cl audia’s three daughters spent most of the 16 night in one of the two bedrooms in the home. Claudia’s daughters slept together on 17 the top bunk of a bunk bed, and the victim and J. slept on the bottom bunk. The 18 victim went to sleep around 2:00 a.m. She aw oke to “a really cold hand touching [her] 194 body.” She testified that as she woke up sh e felt a “hand in my vagina,” beneath her 1 pants and underwear and that she pushed it away. After she pushed the hand away 2 from her vagina, the hand moved up and grabbed and rubbed the victim’s breasts, 3 under her shirt but over her bra. She ag ain pushed the perpetrator away, and the 4 perpetrator “stepped back” and told the victim “[d]on’t tell anybody.” After the 5 victim told him to “[g]et out,” the perpetrator left the bedroom. 6 The victim identified the perpetrator as Defendant by name and during an in7 court identification. While the victim never saw the perp etrator’s face, she identified 8 him as Defendant based on “his baseball cap and his long-sleeved blue shirt” that she 9 remembered him wearing the night of the party. Further, she identified Defendant 10 because the perpetrator was “skinny,” and the males she remembered who attended 11 the party were bigger than Defendant. When asked if there was anything else she 12 could recall that identified Defendant, the vic tim testified that his voice also aided the 13 identification and that Defendant did not sound like the other two males she knew at 14 the party. 15 According to the victim, after Defendant left the room, the victim called Erica 16 to the bedroom and told her what had happened. Erica to ld the victim to wait inside 17 the bedroom and returned with Sonia. The victim then told Sonia what had happened. 18 The victim, Sonia, Erica, Ernesto, Noe and J. left and went to the victim’s house. Erica 195 testified that no one reported the incident th at night because of th e cocaine use at the 1 party, and she did not report it the next day because she went home to El Paso. 2 According to Sonia, the victim only told Erica about what happened that night, that 3 she did not find out until two days later, and that she did not report the incident to the 4 police. 5 In May 2007, the victim stayed at her cousin’s girlfriend Laura Astorga’s 6 (Laura) house. The victim became ill and called Sonia because she wanted to go 7 home. During the phone call, the victim became upset upon discovering that 8 Defendant was at the victim’s home with J. The victim told Laura what had 9 previously happened with Defendant at th e party in 2005. Laura contacted a local 10 hospital on May 27, 2007, which in turn contacted the police. 11 After interviewing the victim, Detec tive Irma Palos interviewed Defendant. 12 Defendant voluntarily waived his Mirandarights and agreed to talk with Detective 13 Palos. He denied the victim ’s allegations as to touching her breast and vagina at the 14 party in 2005. Defendant admitted entering the bedroom where the children were 15 sleeping to “cover his children,” but stated that nothing inappropriate happened. 16 Defendant was charged with and convi cted of CSCM second degree and CSCM 17 third degree. This appeal timely followed. 18 SUFFICIENCY OF THE EVIDENCE 196 Defendant argues that the evidence was insufficient to support his convictions 1 for criminal sexual contact with a minor. In order to convict Defendant of CSCM 2 second degree, the State had to prove beyond a reasonable doubt that (1) Defendant 3 touched or applied force to the unclothed vagina of the victim, and (2) the victim was 4 twelve years of age or younger. In order to convict Defendant of CSCM third degree, 5 the State had to prove beyond a reasonabl e doubt that (1) Defendant touched or 6 applied force to the clothed breast of the vi ctim, and (2) the victim was twelve years 7 of age or younger. In particular, Defendantargues that the evid ence was insufficient 8 as to the second element of each count because there was no physical evidence that 9 anyone touched or applied fo rce to the victim’s vaginaor breast. Additionally, 10 Defendant argues that the evidence was insuffi cient as to whether the perpetrator was 11 Defendant, because the victim identified Defendant without seeing his face, and no 12 one saw Defendant enter the bedroom. 13 “The test for sufficiency of the evid ence is whether substantial evidence of 14 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 15 reasonable doubt with respect to every element essential to a conviction.” State v. 16 Sena , 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks 17 and citation omitted). “[S]ubstantial evidence means such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” State v. Baca , 197 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and 1 citation omitted). We view the evidence inthe light most favorable to, and indulge 2 all inferences in favor of, the verdict. Sena , 2008-NMSC-053, ¶ 10; State v. Sanders , 3 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is su fficient evidence 4 supporting the verdict, we do not reweigh the evidence or substitute our judgment for 5 that of the factfinder. State v. Fuentes , 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 6 P.3d 1181. 7 Regarding Defendant’s first argument, th at the evidence was insufficient as to 8 whether the victim was touched because there was no physical evidence, New Mexico 9 appellate cases have never required physical evidence in a prosecution for criminal 10 sexual contact or penetration. In State v. Nichols , 2006-NMCA-017, ¶¶ 10-11, 139 11 N.M. 72, 128 P.3d 500, this Court recognized, in a prosecution for criminal sexual 12 penetration of a minor, that the victim ’s uncorroborated testimony, even when 13 impeached to some degree, was sufficient evidence to support a conviction. Thus, 14 even without physical evidence or other corroboration, the victim’s testimony was 15 sufficient for a jury to conclude that some one touched or applied force to the victim’s 16 unclothed vagina and clothed breast. See id. It was exclusively the province of the 17 jury to weigh the evidence and determine the credibility of the victim’s testimony in 18 its role as factfinder. See id. ¶ 11. 198 Defendant also argues that the State presented insufficient evidence as to 1 Defendant’s identity as the person who touche d the victim because the victim testified 2 that she did not see the perpetrator’s face. However, the victim’s testimony regarding 3 Defendant’s characteristics and identity as th e perpetrator was sufficient to support the 4 jury’s conclusion that it was Defendant who touched the vi ctim. As noted, the victim 5 testified that Defendant had a slender build compared to the other males at the party 6 and that the perpetrator was skinny. The victim also identified Defendant as the 7 perpetrator based on the clothi ng that he was wearing the ni ght of the incident and his 8 voice, and Erica corroborated the victim’s testimony as to Defendant’s clothing. 9 Further, although he denied touching the victim, Defendant admitted to Detective 10 Palos that he entered the bedroom where the victim and the other minors were 11 sleeping to cover his stepdaughters. This ev idence, viewed in the light most favorable 12 to the verdict, was sufficient for a reasonable mind to conclude that it was Defendant 13 who touched the victim. See Sena , 2008-NMSC-053, ¶ 10; Baca , 1997-NMSC-059, 14 ¶ 14. 15 CHARACTER EVIDENCE 16 Defendant next argues that the distri ct court erred in allowing improper 17 character evidence that Defendant supplied cocaine to the attendees of the party. We 18 review the admission of evidence under an abuse of discretion standard. State v. 199 Flores , 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P. 3d 641. “An abuse of discretion 1 occurs when the ruling is clearly agains t the logic and effect of the facts and 2 circumstances of the case. We cannot say th e [district] court abused its discretion by 3 its ruling unless we can characterize it as cl early untenable or not justified by reason.” 4 Id. (internal quotation marks and citation omitted). 5 Character evidence of the accused is governed by Rule 11-404(B) NMRA, 6 which provides that: 7 [e]vidence of other crimes, wrongs or acts is not admissible to prove the 8 character of a person in order to show action in conformity therewith. 9 It may, however, be admissible for other purposes, such as proof of 10 motive, opportunity, intent, preparation, plan, knowledge, identity or 11 absence of mistake or accident. 12 Rule 404(B) therefore “prohibits the use of otherwise relevant evidence when its sole 13 purpose or effect is to prove criminal propensity” and allows evidence of other acts 14 when they are relevant toa non-character purpose. State v. Gallegos , 2007-NMSC15 007, ¶ 22, 141 N.M. 185, 152 P.3d 828. In order for a district court to properly admit 16 evidence of other acts for a non-character purpose, (1) the proponent must “identify 17 and articulate the consequential fact to whic h the evidence is directed,” and (2) “even 18 if other-acts evidence is relevant to some thing besides propensity, such evidence will 19 not be admitted if the probativ e value related to its permi ssible purpose is substantially 20 outweighed” by unfair prejudice. Id. 2110 As to the first requirement, the district court determined that the testimony 1 about Defendant supplying the cocaine was part of the “res gestae” and relevant “to 2 know what went on.” However, this Court has rejected an iden tical argument in a 3 case with similar facts. See State v. Rael , 117 N.M. 539, 873 P.2d 285 (Ct. App. 4 1994). In Rael , this Court held that the district court abused its discretion in allowing 5 testimony that the defendant wa s a “known cocaine dealer.” Id. at 540, 873 P.2d at 6 286. The defendant was charged with bei ng a felon in possession of a firearm after 7 police executed a search warrant and found a firearm at his home. Id. at 539, 873 P.2d 8 at 285. At trial, the state presented te stimony that the defendant was a known cocaine 9 dealer and in closing argument argued th at “[d]rug dealers use weapons to defend 10 themselves” and that “[k]eeping a gun is c onsistent with being a drug dealer.” Id. at 11 540, 873 P.2d at 286. This C ourt overturned the defendant’s conviction, rejecting the 12 state’s rationale that the references to the defendant as a drug deal er were “part of the 13 res gestae or complete story” and instead held that they were an attempt to “convince 14 the jury [that the d]efendant was a known drug dealer so, ipso facto, the shotgun must 15 belong to him.” Id. at 542, 873 P.2d at 288 (internal quotation marks and citation 16 omitted). In this case, to the extent th at the State argues that the testimony that 17 Defendant supplied the cocaine was necessary “to know what went on” or was part 18 of the “res gestae,” Rael is controlling and the district court abused its discretion in 1911 allowing the testimony. 1 Additionally, the State argues that the testimony that Defendant supplied the 2 cocaine at the party was re levant for two other non-character reasons: (1) “it 3 explained the atmosphere of the party inwhich the adults were using drugs and 4 alcohol and may not have been as discerni ng as if they were sober,” and (2) “it 5 explained[,] in part[,] why Erica and Sonia did not follow up with the police regarding 6 the victim’s allegations.” We agree thatwhether Defendant and the party’s attendees 7 consumed cocaine and alcohol during the party was relevant. Th e cocaine and alcohol 8 use was relevant as to why Erica and Sonia did not report the incident to police and 9 was a fact for the jury to consider in applying weight to the witnesses’ testimony as 10 to their memory of the party. However, the cocaine and alcohol use is distinct from 11 the identity of the supplier of the cocaine. Whether Defendant or someone else 12 supplied the cocaine does not further explain the atmosphere at the party or explain 13 why the incident went unreported. The State therefore did not meet its burden of 14 identifying and articulating a “consequential fact” apart from propensity for the 15 testimony that Defendant supplied cocaine to the party. 16 Further, even if the State had met its burden of establishing a consequential fact 17 apart from propensity for De fendant supplying the cocaine to the party, the unfair 18 prejudice substantially outweighs its probative value. This Court has previously 1912 determined that “[t]he danger of unfair prejudice from admission of the drug-related 1 evidence [is] great.” Rael , 117 N.M. at 543, 873 P.2d at 289 (internal quotation marks 2 and citation omitted). The unfair prejudice wa s especially high in this case, as the 3 State argued in closing that Defendant was of questionable character and supplying 4 cocaine to the party illustrated his character . During rebuttal closing, the State told 5 the jury: “They’d been partying, doing cocaine. Not just drinking alcohol, but doing 6 cocaine that . . . [D]efendant gave them. What does that tell you about him?” As 7 discussed, the probative value that Defendant supplied cocaine was low. As a result, 8 the district court abused its discretion in allowing the testimony. See Gallegos , 2007- 9 NMSC-007, ¶ 22. 10 Although the district court erred in admitting the testimony that Defendant 11 supplied the cocaine, we will not reverse De fendant’s convictions if the evidentiary 12 error was harmless. See State v. Barr , 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210 13 P.3d 198. “[A] non-constitutional error is harmless when there is no reasonable 14 probability the error affected the verdict.” Id. (emphasis omitted). We consider three 15 factors when determining whether error is harmless: whether (1) substantial evidence 16 supports the defendant’s convictions without reference to the improper evidence, (2) 17 there is such a disproportionate volume of permissible evidence that the improper 18 evidence will appear minuscule in comparison, and (3) there is s ubstantial conflicting 1913 evidence to discredit the state’s testimony. Id. ¶ 56. 1 We must first determine whether s ubstantial evidence supports Defendant’s 2 convictions without referen ce to Defendant supplying the cocaine to the party. See 3 id. As we previously determined in our sufficiency of the evidence analysis, 4 substantial evidence supported Defendant ’s convictions without reference to 5 Defendant supplying the cocaine to the party. Therefore, the first factor weighs in 6 favor of the error being harmless. 7 We next determine whether the volume of evidence relating to Defendant 8 supplying the cocaine to the party was so disproportionately small in comparison to 9 the permissible evidence that it appears minuscule by comparison. See id. The State 10 argues that the testimony that Defendant s upplied cocaine to the party was simply a 11 passing reference “brought up by one question” from the St ate and answered with “a 12 simple and unadorned ‘yes.’” While thatmay accurately describe the testimony 13 regarding Defendant supplying the cocaine tothe party, the State further used the 14 testimony in rebuttal closing. During rebuttal closing, the State told the jury: “They’d 15 been partying, doing cocaine. Not just drinking alcohol, but doing cocaine that . . . 16 [D]efendant gave them. What does that tell you about him?” Thus, not only did the 17 State use the improper evidence in closing, th e State used it to e ssentially argue that, 18 because Defendant supplied co caine, he was of questionable character. This type of 1914 argument is precisely what Rule 11-404(B) was designed to protect against. See State 1 v. Ruiz , 2001-NMCA-097, ¶ 13, 131 N.M. 241, 34 P.3d 630 (“One cannot ignore the 2 long tradition of courts and commentators expressing fear that jurors are too likely to 3 give undue weight to evidence of a defendant’s prior misconduct and perhaps even to 4 convict the defendant solely because of a belief that the defendant is a bad person.” 5 (internal quotation marks and citation omitte d)). Additionally, the jury apparently 6 considered who brought the cocaine to the party. After Erica testified, a juror 7 submitted a question to the district c ourt inquiring “How/who provided drugs? Were 8 they brought in?” The district judge res ponded to the question by answering that the 9 “previous witness asked and answered.” Therefore, even though the State did not 10 present extensive testimony that Defendant supplied the cocaine, the volume of 11 impermissible evidence was high considering that the State used it to argue that 12 Defendant had questionable character and the issue was clearly noted by the jury. 13 The third factor is whether there is “s ubstantial evidence that discredited the 14 State’s case.” State v. Branch , 2010-NMSC-042, ¶ 16, 148 N.M. 601, 241 P.3d 602. 15 As we addressed in the sufficiency of th e evidence analysis, th e State’s case was not 16 strong. There was no physicalevidence, the incident we nt unreported for almost a 17 year and one-half, and the victim identif ied Defendant as the perpetrator based on 18 clothing, voice, and build and testified that she did not see his face. Additionally, 1915 there were no eyewitnesses to Defendant entering the bedroom and uncertainty as to 1 who attended the party. Further, the State’s witnesses w ho were at the party admitted 2 to drinking alcohol and using cocaine at the party. There was therefore substantial 3 evidence that discredited the State’s case and the third factor weighs against harmless 4

error. 5 Considering that the volume of the impermissible evidence is not minuscule and 6 the weakness of the State’s case, there was a reasonable probability that the admission 7 of evidence that Defendant supplied the cocai ne to the attendees of the party affected 8 the verdict. See Barr , 2009-NMSC-024, ¶ 53. The ad mission of the evidence was 9 therefore not harmless error. See id. As a result, we reverse Defendant’s convictions 10 and remand for a new trial. See State v. Elinski , 1997-NMCA-117, ¶ 27, 124 N.M. 11 261, 948 P.2d 1209. 12 CONCLUSION 13 Because the district court erred inallowing testimony under Rule 11-404(B) 14 that Defendant supplied cocaine to the party and the error was not harmless, we 15 reverse Defendant’s convicti ons and remand for a new trial. We therefore do not reach 16 Defendant’s remaining issues. 17 IT IS SO ORDERED. 1816 ________________ ________________ 1 JAMES J. WECHSLER, Judge. 2 WE CONCUR: 3

__________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5

__________________________________ 6 TIMOTHY L. GARCIA, Judge 7