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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,286 9 ALBERTO MENDOZA, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Ernesto Romero, Dist rict Judge (Trial) 13 Stan Whitaker, District Judge (Sentencing) 14 Gary K. King, Attorney General 15 Ann M. Harvey, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Trace L. Rabern 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 BUSTAMANTE, Judge. 232 Defendant, Alberto Mendoza, appeals hi s conviction on six counts of criminal 1 sexual contact of a child under thirteen , and one count of witness tampering. 2 Defendant argues that his c onviction should be reversed and/or remanded for a new 3 trial. On appeal, we consider (1) whether the district court erred in excluding 4 evidence of sexual contact with a step-sibli ng by one of the victims that occurred over 5 two years after the alleged c ontact by Defendant; (2) whether the district court erred 6 in refusing to strike jurors for cause base d on sentiments that they would like to hear 7 Defendant’s testimony as to his innocence, and why Defendant did not testify; (3) 8 whether the district court improperly admitted hearsay testimony by allowing a 9 witness to read from her report of the victim s’ prior account of abuse; (4) whether the 10 district court erred by allowing the prosecu tion to improperly probe a defense witness 11 for bias; and (5) whether the district court erred in excluding reports of prior CYFD 12 investigations of the victims’ mother. We affirm. 13 BACKGROUND 14 Defendant was convicted on two counts of criminal sexual contact of a minor 15 in the second degree, four counts of crimin al sexual contact of a minor in the third 16 degree, and one count of bribery of a witn ess. The victims were Defendant’s two 17 step-granddaughters, Child 1 and Child 2. Child1 is the older of the two siblings and 18 was ten-years-old at the time of the abuse. Child 2 was eight-y ears-old. The events 193 leading to Defendant’s indictment began when Defendant’s daughter, Laura Mendoza 1 (a.k.a “Hita”), discovered Child 1 “squatted in the corner” beside the bed, “huddled 2 up” with her younger cous in, apparently trying to kiss hi m. Laura was sixteen at the 3 time. Laura and the children’s grandmother, Defendant’s wife, phoned the children’s 4 parents to come over to deal with what they believed to be Child 1’s inappropriate 5 behavior. In the midst of what became an apparently h eated and dramatic encounter 6 with her family, Child 1 b ecame very upset and began yelling something to the effect 7 of “[t]his is what [Defendant] did to me,” or “[y]ou should see what [Defendant] did 8 to [Child 2].” Based on these initial alle gations, the children were interviewed and 9 examined, at which time they gave more detailed accounts of their accusations. 10 However, no physical evidence of abuse wa s discovered. Defendant was tried and 11 convicted approximately three years later and now appeals. 12 DISCUSSION 13 1. The District Court did not Err in Excluding Evidence of Other Sexual 14 Abuse Suffered by the Children 15 At trial, Defendant attemp ted to admit evidence that Child 2 had been digitally 16 penetrated by her step-sibling. Defendant argued that this evidence was relevant 17 because it showed that the children had likely been subjected to abuse, but not by 18 Defendant, and that such other abuse provided the basis for children’s sexual 19 knowledge. After hearing argument on this issue, the district court excluded the 204 evidence under Rule 11-402 NMRA, and Ru le 11-403 NMRA. Rule 11-402 states 1 that “[e]vidence which is not relevant is not admissible.” Rule 11-403 provides that, 2 even where evidence is relevant, it “maybe excluded if its probative value is 3 substantially outweighed by th e danger of unfair prejudice, confusion of the issues or 4 misleading the jury.” 5 “We review the admission of evidence under an abuse of discretion standard 6 and will not reverse in the ab sence of a clear abuse.” State v. Sarracino , 1998-NMSC7 022, ¶ 20, 125 N.M. 511, 964 P.2d 72 (citation omitted). “An abuse of discretion 8 occurs when the ruling is clearly agains t the logic and effect of the facts and 9 circumstances of the case. We cannot say the trial court abused its discretion by its 10 ruling unless we can characterize it as clearly untenable or not justified by reason.” 11 State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998) 12 (internal quotation marks and citation omitted). 13 Defendant cites State v. Stephen F. , 2007-NMCA-025, 141 N.M. 199, 152 P.3d 14 842, aff’d by 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84, to argue that the district 15 court was required to admit evidence of th e victim’s sexual history in this case. 16 Stephen F. was a rape case where a fifteen-year-old male admitted to sexual contact 17 with the alleged sixteen-year-old vic tim, but argued that it was consensual. Id. ¶¶ 4-5. 18 The issue we addressed on appeal was whether, notwithstanding rape shield laws, 195 evidence of the alleged victim’s sexual history was relevant to establish the defense 1 of consent. Id. ¶ 9. Ultimately, we c oncluded that this evidence was relevant because 2 it tended to prove motivation to fabricate a cl aim of rape out of fear of punishment by 3 the alleged victim’s parents. Id. ¶ 20. 4 These cases are distinguishable for several reasons. First, Stephen F. dealt with 5 evidence of prior sexual contact, whereas th e excluded evidence in this case dealt with 6 subsequent contact. Second, the evidence in Stephen F. was relevant in order to 7 demonstrate the defense of consent whereas , here, consent is not a valid defense. 8 Further, our ruling in Stephen F. was based on the application of a five-factor test to 9 determine whether the district court’s ruling on the evidence was an abuse of 10 discretion. Defendant cites the test but provides no analysis on its application to this 11 case. In line with Stephen F. ’s recognition that evidentiary questions lie within the 12 sound discretion of the district court, we conclude that Defendant has not met his 13 burden of showing an abuse of discretion. 14 Defendant also relies on State v. Payton , 2007-NMCA-110, 142 N.M. 385, 165 15 P.3d 1161, to argue that evidence of Child 2’s encounter with her step-sibling was not 16 only relevant, but that exclusion of this evidence constituted reversible error. In 17 Payton , we found reversible error where the defendant was not allowed to introduce 18 evidence of prior sexual abuse of a child vi ctim to establish an alternative source of 196 sexual knowledge. Id . ¶ 15. We stated that the “jury would naturally assume that a 1 young victim could not have known about sexual matters and mu st have known about 2 them only because [the d]efendant actually committed the offenses.” Id. However, 3 Paytonis distinguishable because it dealt with evidence of prior abuse. Id. ¶ 14. This 4 case deals with evidence of subsequent abus e. The encounter with the step-sibling 5 occurred over two years after the childrens’ initial detailed accounts of their abuse that 6 are documented in the transcript of their safe house interviews. In the case below, the 7 defense conceded that there was no tempor al connection between the incident with 8 Child 2 and her step-sibling and the charges against Defendant. 9 The details of the safe house intervie ws were allowed as evidence and were 10 presented to the jury through the prosecu tion’s witness, Nurse Rosala Villalpondo. 11 Ms. Villalpondo conducted those interviews and compiled a report. Reading from her 12 report, she testified that Child 2 stated th at Defendant had touc hed her on her “private 13 part” with his hand and that his penis touc hed her vagina. This evidence demonstrated 14 that Child 2 had sexual knowle dge before any encounter th at she may have had with 15 her step-sibling. The district court also noted that Defendant had the opportunity to 16 attack the victims’ credibility by highlighting any contrasts in their testimony between 17 the time that they were initially intervie wed (before the encounter with the step18 sibling) and that time that they actually te stified at trial (after the encounter). We 197 agree with the district court that this subs equent incident was irrelevant to establish 1 an alternative source of sexual knowledge. A ccordingly, we conclude that the district 2 court did not abuse its discretion in ex cluding this evidence. Having upheld the 3 district court’s determination as to relevance, we do not address the district court’s 4 alternative basis for its decision under Rule 11-404 NMRA. 5 2. The District Court did not err in Denying Defendant’s Juror Strikes for 6 Cause 7 During voir dire, Defendant attempted to strike five venire members for cause. 8 Of the five challenges, the di strict court granted two: one against juror Compton, and 9 the other against juror Keepers. Of the remaining three, juror Rodriguez-Ortiz, and 10 juror Roe were peremptorily stricken. The remaining juror, Natha, was not 11 peremptorily stricken even though Defendant had not yet exhausted all of his 12 peremptory strikes when juror Natha was called. Natha sat as juror number seven. 13 By the end of voir dire, Defe ndant had exhausted all of hi s peremptory strikes. On 14 appeal, Defendant argues that the district c ourt erred in not granting all of his strikes 15 for cause. 16 Defendant’s strikes for causewere based on responses tothe inquiry of whether 17 it would “bother anybody” if Defendant declined to take the stand. This portion of the 18 voir dire was as follows: 198 [Defense Counsel]: Does it bother a nybody over here if 1 [Defendant] doesn’t testify? Does anybody 2 agree with [Juror] Comp ton that they would 3 like to hear [Defendant’s] story? 4 [Juror] Natha? 5 JUROR NATHA: I would think so, because if I was ever 6 accused with something, I would want to 7 make sure that they heard my story. Along 8 with the State having to prove it, the second 9 part is if I was accused of something, and I 10 didn’t do it, I would want to put my side up 11 there as well. 12 [Defense Counsel]: And [Juror] Rodriguez-Ortiz? 13 JUROR 14 RODRIGUEZ-ORTIZ: Yeah, I would like to hear his story, the whole 15 side of the story. 16 [Defense Counsel]: Again, if [D efendant] didn’t give a story, 17 would that make you look disfavorably on 18 [Defendant]? 19 JUROR 20 RODRIGUEZ-ORTIZ: Not necessarily, but I would like to hear his 21 story. 22

. . . . 23 [Defense Counsel]: I saw other hands. [Juror] Roe? 24 JUROR ROE: I would find it—I would give children, 25 testifying in a court of law, the benefit of the 26 doubt, unless there was evidence of huge 27 motive for them to be lying. And given that, 289 without testimony on the other side, I would 1 find it difficult. 2 [Defense Counsel]: [Juror] Keeper s, did you raise your hand, too? 3 JUROR KEEPERS: I would ju st wonder why [Defendant] 4 wouldn’t testify himself. 5 [Defense Counsel]: And would that wonder bother you in 6 assessing the case? 7 JUROR KEEPERS: I don’t know if it would bother me. I’m not 8 sure the schedule of testimony, but right now 9 I don’t understand why [D efendant] wouldn’t 10 testify. 11 Defendant argues that this issue presents a question of structural error to be 12 reviewed de novo. However, the proper standard of reviewis abuse of discretion. See 13 Benavidez v. City of Gallup , 2007-NMSC-026, ¶ 10, 141 N.M. 808, 161 P.3d 835. 14 “Trial courts are vested with wide discreti on regarding the jury selection process, and 15 we will not reverse absent an abuse of that discretion.” Id. ¶ 10. It is an abuse of 16 discretion to “force a party to exhaust his peremptorychallenges on persons who 17 should be excused for cause.” Fuson v. State , 105 N.M. 632, 634, 735 P.2d 1138, 18 1140 (1987) (internal quotation marks and citation omitted). “The burden of 19 establishing an abuse of discretion rests on the moving party.” State v. Hernandez , 20 115 N.M. 6, 22, 846 P.2d 312, 328 (1993) (citation omitted). 2110 Defendant cites Fusonto argue that it was error to not grant his strikes for 1 cause where all his peremptory ch allenges were exhausted. In Fuson , a juror was 2 seated who, in voir dire, had stated that he could not “say with certainty that [he] 3 could be totally impartial,” and that his knowledge of six indivi dual witnesses in the 4 case could affect the way he decided the case. Fuson , 105 N.M. at 633, 735 P.2d at 5 1139. On appeal, our Supreme Court concl uded that, despite the district court’s 6 discretion in this area, it was error to not exclude this juror, stating that “[i]t is 7 manifest from the person’s responses to ques tions asked during voir dire that he could 8 not be impartial.” Id. 9 Unlike Fuson, the jurors challenged for cause in this case never expressed that 10 they could not be impartial. Their responses generally expressed an interest in having 11 Defendant testify, but they were not as ked any other questions which might reveal 12 any actual bias that may result from this perspective. During voir dire, the district 13 court noted that no one asked the venire members whether or not they could follow 14 the court’s instruction on this matter. Th e court’s instruction stated “[y]ou must not 15 draw any inference of guilt from the fact that[Defendant] did not testify in this case, 16 nor should this fact be discussed by you or enter into your deliberations in any way.” 17 Without inquiry as to whether jurors had fixed opinions of impartiality about 18 Defendant not testifying, even notwithstanding the instruction, we cannot conclude 1911 that the district court did not abuse its disc retion in failing to strike these jurors for 1

cause. See State v. Barrera , 2001-NMSC-014, ¶ 18, 130 N.M. 227, 22 P.3d 1177 2 (stating that “the pertinent inquiry is whether the jurors . . . had such fixed opinions 3 that they could not judge impartially the gu ilt of the defendant” (alteration in original) 4 (internal quotation marks and citation omitted)). 5 3. Defendant’s Challenge of Ms. Villalp ondo’s Testimony Fails for Lack of 6 Preservation 7 In order to preserve an issue for appeal, Defendant must make a timely 8 objection that specifically apprises the districtcourt of the nature of the claimed error 9 and invokes an intelligent ruling thereon. State v. Varela , 1999-NMSC-045, ¶ 25, 128 10 N.M. 454, 993 P.2d 1280. This Court will not search the record to find whether an 11 issue was preserved where defendant did not refer this Court to appropriate transcript 12 references. See Rojo , 1999-NMSC-001, ¶ 44. We w ill not address arguments not 13 preserved below, unless they involve matters of jurisdictional or fundamental error. 14 In re Aaron L ., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. 15 In her testimony, Ms. Villalpondo read directly from her report regarding her 16 prior examination of the victims. This testimony included reading to the jury the 17 victims’ answers to questions during the ex amination. On appeal, Defendant argues 18 that Ms. Villalpondo’s testimony, to the extent that it relayed the prior statements of 19 the victims, should have been excluded as hearsay. However, Defendant does not 2012 demonstrate how this issue was preserved below, nor does he argue jurisdictional or 1 fundamental error. Defendant states in hi s brief in chief that this testimony came in 2 “[o]ver defense hearsay objec tions,” but our review of the record and transcript 3 reveals no record of such an objection. Thus, Defendant’s challenge on this issue fails 4 for lack of preservation. 5 4. Defendant has not Demonstrated Thatthe State’s Questioning of Laura 6 Mendoza Resulted in Reversible Error 7 Defendant argues that it was improper for the State to cross-examine his 8 daughter, Laura, about her refusal to be interviewed by detectives without Defendant’s 9 counsel present. He claims this was animproper way to challenge this witness’s 10 credibility and “an improper comment on [Defendant’s] right to counsel.” In support 11 of this argument, Defendant cites to State v. Garcia , 118 N.M. 773, 887 P.2d 767 (Ct. 12 App. 1994). However, Garciais not helpful because that case dealt with whether a 13 defendant’s exercise of his post-arrest ri ght to remain silent was improperly used 14 against him as evidence at trial. Id. at 774, 887 P.2d at 768. Defendant draws no 15 parallels between Garciaand this case, and it is otherwise unclear how Garcia 16 supports Defendant’s argument. Thus , we cannot rule on this issue. See State v. King , 17 2007-NMCA-130, ¶ 17, 142 N.M. 699, 168 P.3d 1123 (refusing to consider 18 arguments unsupported by authority or analysis). 1913 5. Defendant’s Challenge Relating to Ev idence of the CYFD Reports Fails for 1 Lack of Preservation 2 Defendant argues that the district court erred in excluding reports of prior 3 CYFD investigations of the victims’ moth er. Defendant was ab le to elicit testimony 4 from the victims’ mother regarding these reports and this testimony was admitted by 5 the district court over objection by the State, but the actual reports were apparently 6 never admitted. Beyond mentioning these inve stigations in the opening argument, and 7 questioning the victims’ mother at trial, Defendant points to no motion to admit the 8 actual reports as evidence. On appeal , Defendant argues that the records were 9 admissible under Rule 11-803(H) NMRA which deals with public records and reports, 10 but concedes that this argument was not made below. Thus, it is unclear how 11 Defendant invoked the ruling of the district court on this issue. See Vill. of Angel Fire 12 v. Bd. Of County Comm’rs of Colfax County , 2010-NMCA-038, ¶ 15, N.M. , 13 P.3d (stating that “[i]n order to properly preserve an issue, it must appear that 14 [the party] fairly invoked a ruling of the [district] court on the same grounds argued 15 in the appellate court” (alterations in original) (internal quotation marks and citation 16 omitted)). Defendant correctly states that this Court will generally address 17 unpreserved issues if they constitute plain error, but does not present an argument that 18 plain error exists here. We see no error, much less plain error, on this issue. 1914 CONCLUSION 1 For the foregoing reasons, we affirm the entry of judgment by the district court. 2

__________________________________ 3 MICHAEL D. BUSTAMANTE, Judge 4

WE CONCUR: 5

6 RODERICK T. KENNEDY, Judge 7

8 ROBERT E. ROBLES, Judge 9