This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. A-1-CA-31243 4 JOHN ERIC OCHOA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Mike Murphy, District Judge 8 Hector H. Balderas, Attorney General 9 Sri Mullis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Nina Lalevic, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 182 {1} This case comes to us on Defendant’s mo tion to recall mandate and to address 1 the five remaining issues in his appeal in light of the Supreme Court’s opinion in State 2 v. Ochoa , 2017-NMSC-031, 406 P.3d 505, which re versed this Court’s 2014 decision 3 reversing Defendant’s convictions for violation of his constitutional right to a speedy 4 trial. See State v. Ochoa , 2014-NMCA-065, 327 P.3d 1102. 5 {2} Defendant was convicted of one count of interference with communications, 6 contrary to NMSA 1978, Section 30-12-1 ( 1979) and two counts of criminal sexual 7 contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13 (2003), 8 stemming from allegations that Defendant engaged in sexual abuse of his daughter, 9 EO. For the following reasons, we affirm. 10 {3} Defendant raises the following issues: (1) that the district court denied 11 Defendant his constitutional right to pres ent a defense when it prohibited him from 12 presenting expert testimony and permitted the State to put on its own expert; (2) that 13 the district court erred in denying Defendant ’s motion for a severance; (3) that the 14 State failed to disclose EO’s recantation; (4) that the district court erred in refusing to 15 instruct the jury on unlawfulness as an el ement of CSCM; and (5) that as a result of 16 the State’s failure to instruct the jury on the issue of unlawfulness, the State failed to 17 present sufficient evidence to support De fendant’s convictions for CSCM. Because 18 this is a memorandum opini on and the parties are familiar with the facts and 193 procedural posture of the case, we set fo rth only such facts and law as are necessary 1 to decide the merits. 2

BACKGROUND 3 {4} Defendant was charged in an indictme nt with sixteen felony and misdemeanor 4 counts relating to alleged acts of sexual a buse of four of his children—JD, KO, IO, 5 and EO—in April and May 2008. The State filed a nolle prosequi on three counts 6 prior to trial: two counts of CSCM of IO and one count of attempted criminal sexual 7 penetration of EO. After a trial on the re maining thirteen counts, the jury found 8 Defendant guilty of two counts of CSCM of EO and one count of interference with 9 communications. The jury either acquitted or hung on the remaining ten counts. 10 Defendant appeals. 11 {5} Because this is a memorandum opinion, additional factual and procedural 12 background is provided in our analysis as required. 13 DISCUSSION 14 I. The District Court Did Not Deny Defendant His Constitutional Right to 15 Present a Defense 16 {6} Defendant contends that “[i]n excluding Dr. [Alexander J.] Paret’s, [Ph.D.] 17 testimony concerning the safehouse intervie ws, including the leading questions used 18 and the resulting suggestibility -evidence supporting the theory of defense, the 194 [district] court abused its discretion and denied [Defendant] his fundamental right to 1 due process and a fair trial. ” In addition, Defendant argue s that the error in excluding 2 Dr. Paret’s testimony was “further co mpounded when it erroneously allowed 3 Detective Irma Palos of the Las Cruces, Ne w Mexico Police Department, to offer her 4 unqualified opinion that in her training and experience it is not unusual for children 5 to fail” to make full disclosures. Finally , Defendant argues that even assuming the 6 district court correctly excluded Dr. Paret from testifying, it should have allowed 7 Defendant additional time to find a new expert. 8 A. The District Court Did Not Abuse Its Discretion 9 {7} Rule 11-702 NMRA provides that “[a] witn ess who is qualified as an expert by 10 knowledge, skill, experience, training, or e ducation may testify in the form of an 11 opinion or otherwise if the expert’s sc ientific, technical, or other specialized 12 knowledge will help the trier of fact to understand the evid ence or to determine a fact 13 in issue.” Three requirements must be satis fied for expert testimony to be admissible 14 under Rule 11-702: (1) that the expert bequalified; (2) that the testimony be of 15 assistance to the trier of fact; and (3) that the expert ’s testimony be about scientific, 16 technical, or other specialized knowledge with a reliable basis. See State v. Alberico , 17 1993-NMSC-047, ¶¶ 43-45, 116 N.M. 156, 861 P.2d 192. “The admission of expert 18 testimony lies in the discretion of the trial court.” Loper v. JMAR , 2013-NMCA-098, 195 ¶ 18, 311 P.3d 1184. “An abuse of discretion arises when the evidentiary ruling is 1 clearly contrary to logic and the f acts and circumstances of the case.” State v. Downey , 2 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 3 {8} “Under Rule 11-702, a witness must qualify as an expert in the field for which 4 his or her testimony is offered before such testimony is admissible.” Id. ¶ 26 (internal 5 quotation marks and citation omitted). “In order to testify, it must appear that an 6 expert witness has acquired sufficient knowledge, skill, training, or experience that 7 such testimony will aid the fact[-]finder, but no set criteria can be laid down to test 8 such qualifications.” Id. (internal quotation marks and citation omitted). “The use of 9 the disjunctive ‘or’ in Rule 11-702 permits a witness to be qualified under a wide 10 variety of bases, knowledge, skill, experience, training, or education, and underscores 11 that broad discretion intentionally is given tothe [district] court to determine whether 12 expert testimony will assist the trier of fact.” Id. (internal quotation marks and citation 13 omitted). 14 {9} Here, Dr. Paret testified thathe was trained in how to apply research in forensic 15 psychology. Dr. Paret employed this traini ng in his work at Clinical Forensic 16 Neuropsychological Associates of New Mexico (CFNANM) as a specialist in 17 providing expert testimony and evaluations concerning competency to stand trial, 18 amenability to treatment, as well as a ssessing for dangerousness in children and 196 adults. Dr. Paret also testifie d that he worked for four-and- a-half years at the Intensive 1 Crisis Counseling Program (ICCP) in Orlando, Florida, which was designed to help 2 children who had allegedly b een sexually abused, where he received six months of 3 intensive training in performing intervie ws with children w ho had allegedly been 4 sexually abused using the “cognitive interviewing technique[.]” While working at 5 ICCP, Dr. Paret conducted over four hundred cognitive interviews of children who 6 allegedly suffered sexual abuse. However, Dr. Paret c onceded that during his time at 7 CFNANM, he had never performed a safehous e interview, had never testified as an 8 expert witness in safehous e interview techniques in any state, and had never 9 previously engaged in a record review of safehouse interviews prior to Defendant’s 10 case. Dr. Paret also conceded that he had never received training, researched, or 11 published scholarship in the area of safehouse interviewing techniques, and that 12 neither his master’s thesis nor his Ph.D. dissertation concerned cognitive or safehouse 13 interviewing techniques. 14 {10} The district court ruled that while qualified to render opinions on the matters 15 of competency, dangerousness, and amen ability to therapy, Defendant failed to 16 establish that Dr. Paret was qualified to render opinions on safehouse interview 17 techniques, with which he was unfamiliar, never studied, and had not employed. 18 Further, the district court also found, because Dr. Paret had not conducted a 197 safehouse-type interview since 2002, it was nota subject of his expertise to critique 1 the particular safehouse interviews conducte d in Defendant’s case. Under these facts, 2 the district court’s determination that Dr. Paret was not qualified to testify as an expert 3 in safehouse interview techniques was not clearly contrary to logic and the facts and 4 circumstances of the case. We therefore conclude that the district court did not abuse 5 its discretion excluding the testimony of Dr. Paret from trial. 6 {11} We also conclude that the district court did not abuse its discretion in permitting 7 Detective Palos to render the lay opinion that based on her training and experience, 8 it is not unusual for children to fail to make full disclosures. Opinion testimony by a 9 lay witness is “rationally based on the w itness’s perception” and is “not based on 10 scientific, technical, or other speciali zed knowledge.” Rule 11-701(A), (C) NMRA. 11 To lay a foundation for her opinion, the St ate elicited testimony from Detective Palos. 12 Detective Palos testified that she had recei ved training as a forensic interviewer for 13 physically and sexually abused children using the CornerHouse safehouse interview 14 method and personally conducte d the safehouse interview of JD. Detective Palos 15 testified that she “had also received other training. I don’t know right off the top of my 16 head, but I attend any training that I possibly can regarding . . . sexual or physical 17 abuse.” Defendant argues that Detective Palos’s statement cannot constitute expert 18 testimony under Rule 11-702. The State argue s that the Detective’s testimony was 198 admitted as lay witness opinion testimony, not expert testimony. It appears from the 1 record that the district court accepted Detective Palos’s opinion testimony as a lay 2 witness. Defendant has provide d us with no authority to demonstrate that the district 3 court erred when it considered Detective Palos’s statement as lay opinion testimony 4 in light of her particular experience as a police officer and forensic interviewer. 5 {12} Under these facts, Detective Palos’ opi nion that “[n]o, it is not unusual for a 6 child to not disclose fully what happe ned or what they experienced” during an 7 interview was not inadmissible for lack of foundation. Accordingly, we conclude that 8 the district court did not abuse its discretion in admitting the opinion testimony of 9 Detective Palos. 10 B. The District Court Did Not Abus e Its Discretion in Denying Defendant’s 11 Request for Extra Time to Find a New Expert Witness 12 {13} “The trial court ha s broad discretion in granting or denying a motion for a 13 continuance, and absent a demonstrated abuse resulting in prejudice to the defendant, 14 there is no basis for reversal.” State v. Salazar , 2006-NMCA-066, ¶ 21, 139 N.M. 603, 15 136 P.3d 1013 (internal quotation marks and ci tation omitted). “An abuse of discretion 16 is a ruling that is clearly ag ainst the logic and effect of the facts and circumstances of 17 the case.” State v. Gonzales , ___-NMCA-___, ¶ 32, 406 P. 3d 534, (internal quotation 18 marks and citation omitted), cert. denied, 2017-NMCERT-___ (No. S-1-SC-36577, 199 Aug. 15, 2017). “[T]he burden of establishi ng an abuse of discre tion rests with the 1 defendant.” State v. Sanchez , 1995-NMSC-053, ¶ 17, 120 N.M. 247, 901 P.2d 178. 2 {14} In reviewing the denial of a request for a continuance, appellate courts consider 3 the following factors: “(1) the length of th e requested delay; (2) the likelihood that a 4 delay would accomplish the movant’s objectives; (3) the existence of previous 5 continuances in the same matter; (4) the de gree of inconvenience to the parties and the 6 court; (5) the legitimacy of the motives in requesting the delay; (6) the fault of the 7 movant causing a need for the delay; and (7) the prejudice to the movant in denying 8 the motion.” Gonzales , ___-NMCA-___, ¶ 33. 9 {15} Considering these factors in light of the f acts of this case, we conclude that the 10 district court did not abuse its discretion in denying Defendant’s request for additional 11 time to find a new expert witn ess. First, Defendant did not specify how much time he 12 needed to find a new expert. However, atthe March 8, 2010 trial setting, when the 13 State first raised the issue of Dr. Paret’ s qualifications, defense counsel stated that 14 “[w]hen we left the trial in October, I spoke with the State regarding Dr. Paret, and it 15 was my understanding that they were not going to challenge him as an expert. If I had 16 thought they were going to do that, I woul d have brought in Dr. Maxann Schwartz, 17 [Ph.D.], Dr. Paret’s co-worker on this.” Dr . Schwartz had beenlisted on Defendant’s 18 witness list since December 1, 2008. From th ese facts, we glean that if Defendant 1910 would have brought in Dr. Schwartz to replace Dr. Paret, the de lay resulting from a 1 continuance to retain and prepare Dr. Sc hwartz for trial would likely have been 2 minimal, since she was apparently aware of and familiar with the case. As a result, this 3 factor weighs in favor of granting Defendant’s request for additional time. 4 {16} Second, the objective of Defendant’s re quest for additional time was to find a 5 new expert witness to testify on the issu e of safehouse interviewing technique who 6 would satisfy the district court’s required qualifications. However, there is no 7 indication that the district court would find the new expert qualified to testify. As a 8 result, this factor weighs against granting Defendant’s request. 9 {17} Third, and as alluded to by the districtcourt, multiple continuances (requested 10 by Defendant and the State) and rescheduling of the trial setting had been permitted, 11 resulting in significant delay in bringing Defe ndant’s case to trial. As a result, this 12 factor weighs against granting Defendant’s request for additional time. 13 {18} Fourth, in denying Defendant’s request fo r additional time, the district court 14 reasoned that Defendant had filed four motions to dismiss on speedy trial grounds, 15 Defendant had been “in jail a long time[,]” and that trial had been postponed multiple 16 times based on “unusual” circumstances. These facts support a conclusion that the 17 degree of inconvenience to both the parties and court as a result of granting 1811 Defendant’s request would have been high under the circumstances. As a result this 1 factor weighs against granting Defendant’s request for additional time. 2 {19} Defendant represented to the district court at the March 8, 2009 trial setting, 3 that it was his original belief that the State was not going to challenge the 4 qualifications of Dr. Paret. This created a legitimate reason to request additional time. 5 As a result, the fifth and sixth factors we igh in favor of gran ting Defendant’s request 6 for additional time. 7 {20} Finally, with regard to prejudice, Defe ndant argues that it was “incumbent” on 8 the district court to allow a con tinuance under the circumstances, citing March v. 9 State , 1987-NMSC-020, 105 N.M. 453, 734 P.2d 231, and arguing that although the 10 “denial of a motion for a continuance rests inthe sound discretion of the court, . . . a 11 defendant has a fundamental, constitutional right to due process of the law” to 12 establish his defense. This argument is unpersuasive. In its May 5, 2010 ruling, in 13 which the district court found Dr. Paret unqualifie d to testify as an expert at trial, the 14 district court did not preclude an otherw ise qualified expert fro m testifying on proper 15 safehouse interviewing techniques. Rather, th e district court’s ruling left Defendant 16 free to retain a new expert prior to the commencement of trial on May 17, 2010. 17 Moreover, we reemphasize that at the March 8, 2010 trial setting, Defendant stated 18 that it would have been possible to substitu te Dr. Schwartz for Dr. Paret, who had 1912 been listed on Defendant’s witness list sin ce December 1, 2008, and was “Dr. Paret’s 1 co-worker on this.” Under these facts, we find the prejudice to Defendant as a result 2 of the denial of his request for additional time was low. As a result, this factor weighs 3 against granting Defendant’s request for additional time. 4 {21} We conclude that the district court’ s denial of Defendant’s request was not 5 against the logic and effect of the facts and circumstances of the case, and therefore 6 did not result in an abuse of discretion. 7 II. The District Court Did Not Err in Denying Defendant’s Motion to Sever 8 {22} Defendant claims that the district c ourt erred in denying his motion to sever 9 counts that involved the different victim s, times, and circumstances under Rule 5- 10 203(C) NMRA (“If it appears that a defendant or the state is prejudiced by a joinder 11 of offenses or of defendants by the filing of a statement of joinder for trial, the court 12 may order separate trials of offenses, gr ant a severance of defendants, or provide 13 whatever other relief justice requires.”). Becauseof the district court’s ruling, the four 14 Ochoa children testified at Defendant’s trial. As a result, Defendant contends that 15 without severance of the counts,“the jury would believe [that] if he did one act, he 16 must [have been] guilty of the othe r acts” resulting in extreme prejudice. 17 {23} Additionally, Defendant contends, evenassuming evidence of the offenses 18 involving the different victims in the case wa s admissible in separate trials under Rule 1913 11-404(B)(2) NMRA (providing that evidence of crimes, wrongs, or other bad acts of 1 a party “may be admissible [to prove] motiv e, opportunity, intent, preparation, plan, 2 knowledge, identity, absence of mistake, or lack of accident”), the probative value of 3 the evidence was substantially outweighe d by the danger of prejudice under Rule 11- 4 403 NMRA (stating that “[t]he court may ex clude relevant eviden ce if its probative 5 value is substantially outwe ighed by a danger of . . . unfair prejudice, confusing the 6 issues, misleading the jury, undue delay, wasting time, or needlessly presenting 7 cumulative evidence”). This, Defendant argues, is because “[c]ases involving alleged 8 child sexual abuse inherently app eal to the passions of the jury.” 9 {24} New Mexico appellate courts “review a [d istrict] court’s deni al of a severance 10 motion for an abuse of discretion.” State v. Lovett , 2012-NMSC-036, ¶ 10, 286 P.3d 11 265. “One test for abuse of discretion in a failure to sever case is whether prejudicial 12 testimony, inadmissible in a separate trial, is admitted in a joint trial.” Id. ¶ 11 13 (alterations, internal quotation marks, and citation omitted). We assume, without 14 deciding, that the testimony of the children would not be cross-admissible in separate 15 trials limited to offenses for each child, and that the distri ct court therefore abused its 16 discretion in denying Defendant’s motion for severance. But “[e]ven when the trial 17 court abuses its discretion in failing to sever charges, appe llate courts will not reverse 18 unless the error actually prejudiced the defendant.” State v. Gallegos , 2007-NMSC- 1914 007, ¶ 18, 141 N.M. 185, 152 P.3d 828; see State v. Garcia , 2011-NMSC-003, ¶ 16, 1 149 N.M. 185, 246 P.3d 1057 (“The decision to grant a severance motion lies within 2 the [district court] judge’s discretion and will not be overturned on appeal unless the 3 joinder of offenses results in actual prejudice against the moving party.”). The moving 4 party “bears the burden of establishing that he [or she] was actually prejudiced by a 5 failure to sever.” Id. 6 {25} We therefore proceed to address whether Defendant was actually prejudiced as 7 a result of the failure to sever; or, in other words, whether denial of his motion to 8 sever constituted a harmless error. See Gallegos , 2007-NMSC-007, ¶¶ 37-38. 9 {26} In the context of an error in denying a motion to sever, the error is harmless 10 “when there is no reasonable probabilitythe error affected the verdict.” State v. 11 Tollardo , 2012-NMSC-008, ¶¶ 36, 275 P.3d 110. The central inquiry of “whether an 12 error was likely to have affected the jury’s verdict” is require d in a harmless error 13 review on a case-by-case analysis. See id. ¶¶ 42, 44. The courts are guided by the 14 following non-exhaustive list of factors: 15 Factors weighing in favor of prejudice include: (1) the prosecution 16 intertwining the offenses in opening statement, during its case-in-chief, 17 or in closing argument; (2) the defendant being found guilty on all 18 counts; (3) factual similarities linking the offenses; (4) offenses that are 19 inflammatory in nature; (5) unusuallylong and complex trials; and (6) 20 a conviction on a charge where the ev idence is thin. On the other hand, 21 factors tending to show that a de fendant was not prejudiced by going to 22 trial on the joined offenses include: (1) dissimilar offenses such that a 2315 jury would not confuse them; (2) th e defendant being acquitted of some 1 charges; and (3) proper jury instruc tions that adequately make clear to 2 the jury that it must not consider evidence inadmissible to a particular 3 count when coming to a verdict on that count. 4 Lovett , 2012-NMSC-036, ¶ 56 (alteration, internal quotation marks, and citation 5 omitted). However, we only consider those f actors that are relevant to a given case. 6 See id. ¶ 57. 7 {27} Considering the relevant factors, we conclude that Defe ndant was not actually 8 prejudiced by the district court’s denial of his motion to sever. There was some 9 intertwining by the State of the offenses involving the different Ochoa children in its 10 opening statement and closing argument. Wealso acknowledge that crimes involving 11 illegal sex acts against children are inherently inflammatory. See Gallegos , 2007- 12 NMSC-007, ¶ 43; State v. Montoya , 1993-NMCA-083, ¶ 17, 116 N.M. 72, 860 P.2d 13 202 (“Evidence that a defendant committed a prior illegal sex act against a child is 14 extremely prejudicial.”). However, th ese factors supporting actual prejudice are 15 negated by the factors weighing against actual prejudice. 16 {28} Specifically, the jury was instructed to “consider[] separately” each crime 17 charged in the indictment. This instruction made it clear to the jury not to consider 18 evidence of a particular c ount when coming to a verd ict on other counts. This is 19 evident by the fact that of the thirteen c ounts that went to the jury, Defendant was 20 found guilty of only two counts of CSCM i nvolving only one of the alleged victims, 2116 EO, as well as guilty of the single count of interference with communications. See 1 State v. Duffy , 1998-NMSC-014, ¶¶ 44-45, 126 N.M . 132, 967 P.2d 807 (holding that 2 even if the district court’s failure to sever drug paraphernalia and felony-murder 3 charges was an abuse of discretion, the de fendant failed to esta blish that he was 4 actually prejudiced by the failure to sever where he was acquitted by the jury of the 5 paraphernalia charge), overruled on other grounds by Tollardo , 2012-NMSC6 008, ¶ 37; State v. Sero , 1970-NMCA-102, ¶¶ 7-8, 82 N.M. 17, 474 P.2d 503 (holding 7 that where jury acquitted the defendant of two of three counts of receiving stolen 8 property, the district court’s refusal to se ver the three counts did not actually prejudice 9 the defendant). 10 {29} Accordingly, although we assume that the district court abused its discretion in 11 denying Defendant’s motion to sever, we conclude thatDefendant was not actually 12 prejudiced by this presumed error, and it was therefore harmless. 13 III. The Argument That the State Failed to Disclose EO’s Claimed Recantation 14 Was Not Preserved 15 {30} Defendant claims that the State engaged in a violation of its obligations under 16 Brady v. Maryland, 373 U.S. 83 (1963) when it failed to turn over statements made 17 by EO in which her allegations against her father changed. Defendant contends that 18 because of the State’s failure to provi de him with these statements, which he 1917 characterizes as a “recantation[,]” he was deprived of the ability to cross-examine and 1 impeach EO about the statements, warranting a new trial. 2 {31} Defendant’s claim arises from an exch ange between EO and the prosecutor 3 during direct examination, during which the prosecutor asked EO whether her 4 grandma Ochoa buys her things. Defendantobjected to the State’s question on 5 grounds of relevance. The district court sustained the objection, and the State asked 6 for a bench conference. At the bench conference, the prosecutor argued that she 7 believed that EO started “backing down” on her story when her grandma Ochoa came 8 back into her life, and that EO’s answer to the question of whether her grandma Ochoa 9 buys her things would “show the jury how she’s hesitant about some of the things 10 she’s discussing.” The district court then permitted the prosecutor to ask the question, 11 to which EO answered “[y]es.” 12 {32} The State responds that Defendant failed to preserve his claim of a Brady 13 violation by failing to specifically bring the i ssue to the attention of the district court. 14 We agree. SeeRule 12-321 NMRA (“To preserve anissue for review, it must appear 15 that a ruling or decision by the trial court was fairly invoked.”); Trace v. Univ. of N.M. 16 Hosp. , 2015-NMCA-083, ¶ 11, 355 P.3d 103 (“The principal purpose of this rule is 17 to alert the trial judge to the claimed error, giving the trial court an opportunity to 18 correct the matter.”). Here, Defendant objectedto the State’s question to EO regarding 1918 whether her grandma Ochoa buys her things on grounds of relevance, but failed to 1 bring to the district court’s attention his contention of a Bradyviolation. Because 2 Defendant failed to pres erve his claim of a Bradyviolation, we decline to address the 3 issue further. See State v. Plouse , 2003-NMCA-048, ¶ 56, 133 N.M. 495, 64 P.3d 522 4 (holding that the defendant failed to preserve a Bradyviolation where he “failed to 5 specifically raise the Bradyissue or to invoke [the district court’s] ruling on the 6 issue”), abrogated on other grounds by State v. Garza , 2009-NMSC-038, ¶¶ 47-48, 7 146 N.M. 499, 212 P.3d 387. 8 IV. The District Court’s Failure to Incl ude the Element of Unlawfulness in the 9 Jury Instructions for Defendant’s Co unts of CSCM Did Not Give Rise to 10 Reversible Error 11 {33} Defendant claims that the district c ourt committed reversible error when it 12 refused to instruct the jury on unlawfulne ss as it related to his charges of CSCM. 13 Defendant argues that his testimony, “whileappearing to deny any touching [of EO] 14 at all, when read in its entirety and in c ontext clearly supports the view that he only 15 denied touching” her in a sexual manner, but did not deny touching her in a non16 sexual way. Because Defendant requested and was refused CSCM instructions 17 including the element of unlawfulness, Defendant’s claim was preserved and we 18 review for reversible error. See State v. Percival , 2017-NMCA-042, ¶ 8, 394 P.3d 979 19 (stating an alleged error is “p reserved by the tender but refu sal of an instruction” and 2019 “[i]f the alleged error has been preserved, wereview for reversibleerror” (alterations, 1 internal quotation marks, and citation omitted)). 2 {34} We review a trial court’s rejection of requested jury instructions de novo. See 3 id. ¶ 8. “A jury instruction which does not in struct the jury upon all questions of law 4 essential for a conviction of any crime submitted to the jury is reversible error.” Id. 5 In State v. Osborne , the Supreme Court held “that unlaw fulness is an essential element 6 of the offense of CSCM as defined by our [L]egislature.” 1991-NMSC-032, ¶ 16, 111 7 N.M. 654, 808 P.2d 624; seeSection 30-9-13(A) (providing that “[c]riminal sexual 8 contact of a minor is the unlawful and intentional touching of or applying force to the 9 intimate parts of a minor or the unlawful and intentional causing of a minor to touch 10 one’s intimate parts” (emphasis added )). The Court revisited its holding in Osborne 11 in State v. Orosco , stating that the trial court does not err in failing to instruct the jury 12 on the element of unlawfulness in CSCM where the lawfulness of the defendant’s 13 actions is not in issue. See 1992- NMSC-006, ¶¶ 10-11, 18-20, 113 N.M. 780, 833 14 P.2d 1146. 15 {35} “To determine whether unlawfulness is ‘i n issue,’ we consider whether there 16 was any evidence or suggestion in the facts, however slight, that could have put the 17 element of unlawfulness in issue.” State v. Luna , 2018-NMCA-025, ¶ 30, ___ P.3d 18 ___, (internal quotation marks and citation omitted), cert. denied , ___-NMCERT-___, 1920 (No. S-1-SC-36896, Mar. 16, 2018); See Orosco , 1992-NMSC-006, ¶ 10, (same). In 1 making this determination: 2 [w]e do not look to the defendant’s assertions alone [because] we 3 recognize that even if a defendant be lieved that he or she had performed 4 an innocent or lawful touching, the defendant might prefer, as a matter 5 of trial strategy or for some other reason, to deny that the incident 6 occurred rather than attempt to esta blish that the touching, though it may 7 have occurred, was lawful. 8 Orosco , 1992-NMSC-006, ¶ 10. 9 {36} In Osborne , the child claimed that the defendant “patted or rubbed her buttocks 10 on one occasion” while she was hugging the defendant goodnight and wearing 11 underwear and a long t-shirt. 1991-NMSC-032, ¶ 6. The “[d]efendant did not recall 12 ever touching [the child’s] bottom and saidthat while it was possible he might have 13 touched her bottom at some poi nt, it would not have been in an inappropriate manner 14 or with an inappropriate intent.” Id. ¶ 7. The Court determined that the issue of 15 lawfulness was raised by this evidence, and that it therefore had no way of knowing, 16 “because of an erroneous instruction, . . . whether the conviction was or was not on 17 the basis that the touching was done ‘unlawfully.’ ” Id. ¶ 41 (internal quotation marks 18 and citation omitted). In other words, the “i nstructions failed to require the jury to 19 resolve the issue, raised in the evidence at trial, of whether [the] defendant’s touching 20 was done innocently as a mere affectionatepat or rub of [the child’s] bottom, or 21 whether it was done in a sexual or other improper manner.” Id. Accordingly, the Court 2221 held that the district court’s failure to in struct the jury on the element of unlawfulness 1 constituted fundamental error. See id. ¶¶ 41, 43. 2 {37} In contrast, in Orosco (two consolidated appeals), the Court determined that the 3 district court’s failure to instruct the juryon the element of unlaw fulness in CSCM did 4 not give rise to fundamental error, where none of the facts put the element of 5 lawfulness at issue. See1992-NMSC-006, ¶¶ 18-19. The fi rst defendant “was alleged 6 to have fondled the child ’s intimate parts in the restroom of a bar.” Id. ¶ 11. The 7 second defendant was alleged to have “fondled” a child “f or three hours in defendant’s 8 truck.” Id. Both defendants denied that any touching took place. Under the facts of 9 these cases, the Court reasoned, the ev idence of unlawfulness upon which the jury 10 relied was undisputed and the jury was able to “effectively determine[] the existence 11 of the omitted element.” Id. ¶ 19. Accordingly, the Court held that “in neither case did 12 the [district] court improperly remove th e issue of unlawfulness from the jury.” Id. ¶ 13 18; see also Luna , 2018-NMCA-025, ¶ 31 (holding that where the child testified the 14 defendant exposed his own penis to the child , then touched the child’s clothed penis 15 with the defendant’s hand and mouth, the evidence did not put the lawfulness of the 16 defendant’s alleged touchings inissue; and the district court’s failure to give the jury 17 a CSCM instruction including the element of unlawfulness did not give rise to 18 fundamental error). 1922 {38} In State v. Landers , a case we described as a “middle ground” between Osborne 1 and Orosco , the child testified that between the ag es of eleven and thirteen years old, 2 the “defendant came to her room to wakeher for school, he would lift her nightgown 3 and put his hand down her panties.” 1992-NMCA-131, ¶¶ 2, 6, 115 N.M. 514, 853 4 P.2d 1270, overruled on other groundsby State v. Kerby , 2005-NMCA-106, ¶¶ 28-29, 5 138 N.M. 232, 118 P.3d 740. This occurred almost daily for two years. Landers , 6 1992-NMCA-131, ¶ 2. The child also stated that on one occasion, “when she was in 7 the bathroom, [the] defendant forced her to her hands and knees and rubbed his penis 8 against her vaginal area.” Id. The defendant “denied thathe sexually touched the 9 [child] while waking her up and denied the occurrences of the incident in the 10 bathroom.” Id. ¶ 3. The defendant also stated that “if he ever touched” the child, “it 11 was always in a fatherly way.” Id. ¶ 6. Under these facts, we reasoned that: 12 although [the] defendant c ontended that all touching of the [child] was 13 colorably lawful, there was no eviden ce from which the jury could infer 14 that the particular touchings that th e [S]tate sought to prove were lawful. 15 The only way to view [the] defendant’s evidence is that he did not touch 16 the [child] whatsoever in th e manner the [S]tate alleged and that all of 17 his other touchings were lawful. Becau se [the] defendant did not allege 18 that the particular touchings formi ng the basis for the charges of CSCM 19 were lawful, we conclude that th e issue of the lawfulness of those 20 touchings was not at issue. 21 Id. ¶ 7. Accordingly, we held that the district court’s failure to give the lawfulness 22 instruction was not fundamental error. Id. 2323 {39} Considering the testimony of EO and Defendant, we conclude that the 1 lawfulness of Defendant’s actions toward EO was not in issue. EO testified that during 2 a hug between she, IO, and Defendant that Defendant put his hands in her pants and 3 underwear and squeezed the skin of her “bo ttom[,]”—i.e., her buttocks, and did this 4 to her on “two or three” other separate occasions.When questioned about the specific 5 touchings alleged by his children, including EO, Defendant stated that he “didn’t do 6 any kind of sexual anything with any of [his] children” and that he “never touched any 7 of [his] children in an improper way or [in] any sexual manner. It’s such a disgusting 8 thing.” Defendant testified further that “[t] he truth of the situation was there was no 9 sexual or anything at all withregards to myself and the children,” that he “never 10 touched any of [his] children in a sick or perverted way[,]” and that he had “never” 11 engaged in “criminal sexual typeof contact” with his children. 12 {40} The facts of this case are similar to the facts of Osborne , where the defendant 13 was alleged to have patted or rubbed the child’s buttocks while giving her a hug and 14 claimed that while he may have touched her buttocks at some point, it would not have 15 been in an inappropriate manner or with an inappropriate intent. See 1991-NMSC-032, 16 ¶¶ 6-7. Under these facts, in Osborne , our Supreme Court held that the district court 17 erred fundamentally in failing to instruct the jury on the element of unlawfulness in 18 the offense of CSCM. Id. ¶¶ 41, 43. Further, every pare nt touches their child, and a 1924 statement by a parent that she or he has ne ver touched their child in an inappropriate 1 manner is still, in effect, a statement that the parent has touched their child. This is 2 why Orosco teaches that we do not look to the defendant’s assertions alone in 3 determining whether the lawfulness of a defendant’s touchings were at issue, since 4 “even if a defendant believe d that he or she had perfo rmed an innocent or lawful 5 touching, the defendant might prefer, as a matter of trial strategy or for some other 6 reason, to deny that the incident occurred rather than attempt to establish that the 7 touching, though it may haveoccurred, was lawful.” Orosco , 1992-NMSC-006, ¶ 10. 8 {41} We cannot ignore this Court’s pronouncement in Landersthat it is insufficient 9 to raise the issue of the lawfulness of a defendant’s alleged in appropriate touchings, 10 in the context of CSCM, by denying the sp ecific acts underlying the State’s charges, 11 but testifying that any other touching th at may have occurred was for a lawful 12 purpose. See1992-NMCA-131, ¶¶ 6-7. As refere nced above, Defendant’s testimony 13 denied the specific actions forming the basi s of the State’s CSCM charges against him 14 involving EO, but also affirmatively statedthat he had never touched his children, 15 including EO, in an unlawful manner. As a result, following Landers , where the 16 defendant denied touching the child in th e inappropriate manner alleged by the State, 17 but admitted that any touching of the child that occurred was in a fatherly way, we 18 also conclude here that there was no evidence presented at trial from which the jury 1925 could infer that the particular touchi ngs alleged by the State against Defendant 1 involving EO were lawful. Accordingly, weconclude that Defe ndant was not entitled 2 to an instruction on the offense of CSCM including the element of unlawfulness as to 3 the State’s charges relating to EO. 4 V. Sufficient Evidence Supported Defendant’s Convictions for Two Counts 5 of CSCM Against EO 6 {42} Defendant finally argues that his c onvictions for CSCM against EO were 7 unsupported by sufficient evidence. Defendant contends that unlawfulness is an 8 essential element of CSCM, and that becau se the jury was not instructed on the 9 element of unlawfulness, the State completely failed to prove an essential element of 10 the offense. However, unlawfulness is only an essential element of CSCM when the 11 unlawfulness of a defendant’s actions is at issue. SeeUJI 14-925 NMRA, Use Note 4 12 (stating an instruction including the element that “[t]he defendant’s act was unlawful” 13 essential element of CSCM “if the evidence raises a genuine issue of the unlawfulness 14 of the defendant’s actions”); Orosco , 1992-NMSC-006, ¶¶ 10-11. However, we have 15 concluded above that the evidence presented attrial did not put in issue the lawfulness 16 of Defendant’s touchings of EO. 17 {43} In jury trials, the jury instructions are the law of the case against which the 18 sufficiency of the eviden ce is to be measured. See State v. Duttle , 2017-NMCA-001, 19 ¶ 18, 387 P.3d 885. Here, the jurywas instructed that in order to find Defendant guilty 2026 of CSCM of a child under the age of thirteen against EO, as alleged in counts 10 and 1 11 of the indictment, the State was required to prove beyond a reasonable doubt that 2 two instances occurred in which: 3 1. [D]efendant touched or applied force to the unclothed buttocks 4 of [EO]; 5 2. [EO] was 12 years of age or younger; 6 3. This happened in New Mexico on or between the 14th day of April, 7 2008, and the 12th day of May, 2008. 8 As referenced above, EO tes tified that on two or three separate occasions, Defendant 9 put his hands in her pants and underwear and squeezed the skin of her “bottom,” and 10 the evidence was that EO was under the ag e of twelve at the time. Viewing this 11 evidence in the light most favorable to the guilty verdicts, and indulging all reasonable 12 inferences and resolving all conflicts in the evidence in favor of the verdicts, we 13 conclude that substantial evidence supporte d Defendant’s convic tions for two counts 14 of CSCM against EO beyond a reasonable doubt. See State v. Carrillo , 2017-NMSC15 023, ¶ 42, 399 P.3d 367 (stating that in revi ewing a challenge to the sufficiency of 16 evidence supporting a conviction, appellate c ourts “view the evidence in the light most 17 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 18 conflicts in the evidence in favor of the verdict” (internal quotation marks and citation 19 omitted)); State v. Suazo , 2017-NMSC-011, ¶ 32, 390 P.3d 674 (stating that the 20 central consideration in sufficiency of evidence review is whether substantial 2127 evidence, direct or circumstantial, exis ts to support a verdict beyond a reasonable 1 doubt as to all essential el ements of the crimes for which the defendant was 2 convicted). 3 CONCLUSION 4 {44} For the foregoing reasons we affirm De fendant’s convictions for CSCM and 5 interference with communications. 6 {45} IT IS SO ORDERED. 7

________________________________ 8 MICHAEL E. VIGIL, Judge 9

WE CONCUR: 10

____________________________ 11 M. MONICA ZAMORA, Judge 12

____________________________ 13 DANIEL J. GALLEGOS, Judge 14