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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-36172 4 ARON SARELLANO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Freddie J. Romero, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Tania Shahani, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 HANISEE Judge. 172 {1} Defendant Aron Sarella appeals from hi s conviction of third degree criminal 1 sexual contact of a minor (CSCM). We previously issued a notice of proposed 2 summary disposition in which we proposedto affirm. Defendant has filed a 3 memorandum in opposition. After due consideration, we remain unpersuaded. We 4 therefore affirm. 5 {2} The pertinent background information was set forth in the notice of proposed 6 summary disposition. We will avoid undue repetition here, and focus instead on the 7 content of the memorandum in opposition. 8 {3} In the memorandum in opposition, Defe ndant challenges our proposed finding 9 that the district court properly consideredCSCM as a lesser included offense of the 10 charged crime of criminal sexual penetration (CSPM) sua sponte. [MIO 8-12; CN 4] 11 See State v. Archuleta , 1989-NMCA-022, ¶ 9, 108 N.M . 397, 772 P.2d 1320 (“[I]n a 12 bench trial, a lesser included charge may be argued by either party, or may be 13 considered sua sponte by the trial court. ”). Defendant argues as follows: (1) the 14 victim’s testimony unequivocally established th at penetration occurred; (2) thus, there 15 is no reasonable view of the evidence pursuant to which CSCM was the highest 16 degree of crime committed; (3) it follows th at Defendant would not have been entitled 17 to a CSCM instruction in a jury trial; and (4) therefore, the district court should not 18 have considered it because, in effect, CSCM was not a lesser included offense of 193 CSPM under the facts of this case. [MIO1, 6, 7-12] Because we disagree with 1 Defendant’s original premise, we do not address the legal validity of the rest of his 2 argument. 3 {4} Specifically, we disagree with Defendant’s assertion that the victim’s testimony 4 unequivocally established that penetration occurred. [MIO 1] Penetration in this 5 context is defined as “the insertion, to any extent,” of an object into the victim’s vulva 6 or vagina. UJI 14-957 NMRA. As Defendant acknowledges, the young victim testified 7 that Defendant “touched her on the inside of her private[s] where she pees.” [RP 144; 8 MIO 1] Without more, we believe that what a child means by “touched” or “the inside 9 of her private[s] where she pees” is ambiguous. Unlike the cases relied on by 10 Defendant, the victim did not explicitly testify that Defendant penetrated her vulva or 11 vagina. [MIO 12] Contrast with State v. Lente , 2005-NMCA-111, ¶ 15, 138 N.M. 312, 12 119 P.3d 737 (“[The v]ictim testified that [the d]efendant both touched and penetrated 13 her, [therefore] there was no confusion that digital penetration had occurred on 14 occasions to support the CSPM charges.”); State v. Paiz , 2006-NMCA-144, ¶ 51, 140 15 N.M. 815, 149 P.3d 579 (“[The victim] clearly sp ecified at trial that [the d]efendant 16 attempted to penetrate her[.]”). The vic tim likewise did not de scribe conduct which, 17 “as a matter of physiology, . . . went beyond the edge . . . of the female sex organ[.]” 18 Id. ¶ 52 (internal quotation mark s and citation omitted). Becausewe conclude that the 194 victim’s testimony was ambiguous as to wh ether penetration occurred as opposed to 1 mere contact, we do not address the remai nder of Defendant’s argument on this point. 2 We further conclude that the district c ourt properly considered the lesser included 3 offense of CSCM sua sponte. Archuleta , 1989-NMCA-022, ¶ 9. 4 {5} Defendant next argues that he “was not on notice that he would have to defend 5 against the uncharged lesser offense of CSCM.” [MIO 13] We disagree. It is 6 well-established that whenever “one offens e is a lesser included offense of a crime 7 named in a charging document, the defendant is put on notice that he must defend not 8 only against the greater offense as charged but also against any lesser included 9 offense.” State v. Collins , 2005-NMCA-044, ¶ 8, 137 N.M. 353, 110 P.3d 1090, 10 overruled on other groundsby State v. Willie , 2009-NMSC-037, ¶ 18, 146 N.M. 481, 11 212 P.3d 369; see State v. Meadors , 1995-NMSC-073, ¶ 17, 121 N.M. 38, 908 P.2d 12 731 (“[A]n offense is a lesser[]included o ffense only if the defendant cannot commit 13 the greater offense in the manner described in the charging document without also 14 committing the lesser offense. Accordingly, th e defendant should be fully aware of the 15 possible offenses for which he or she may face prosecution and should have ample 16 opportunity to prepare a defense.”). Defendant’s reliance on State v. Notah-Hunter , 17 2005-NMCA-074, 137 N.M. 597, is unpersuasive. [MIO 13] In Notah-Hunter , we 18 held that we could remand the case for re sentencing on an uncharged lesser included 195 offense, following our finding that the evid ence presented at the defendant’s bench 1 trial was insufficient to support a conviction of the greater offense. Id. ¶ 27. We 2 reasoned that the defendant wa s on notice, per our holding in Meadors , that he could 3 be convicted of the lesser offense. Id. We further found it important that the defendant 4 had an opportunity to provide evidence thataddressed the elements of the lesser 5 charge. Id. ¶ 28. Likewise here, Defendant deni ed having touched th e victim at all, 6 thereby addressing the elements of CSCM. [MIO 3; RP 145] 7 {6} Defendant’s reliance on State v. Slade , 2014-NMCA-088, 331 P.3d 930, and 8 State v. Villa , 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017, is likewise misplaced. 9 Both of these cases held that the direct remand rule does not apply to cases involving 10 a jury trial where the jury was not in structed on a lesser included offense. See Slade , 11 2014-NMCA-088, ¶ 38; Villa , 2004-NMSC-031, ¶ 1. As we explained in Notah12 Hunter , such cases are distinguishable from cases like the currentmatter, where a 13 bench trial was held and notice is not an issue. 2005-NMCA-074, ¶¶ 27-29. 14 {7} Given our controlling precedent, which Defendant fails to address in the 15 memorandum in opposition, we also fi nd Defendant’s reliance on out-of-state 16 authorities unpersuasive. [MIO 13-14] 17 {8} Defendant also challenges our proposed finding that his CSCM conviction was 18 supported by sufficient evidence. [MIO 15; CN 2-3] Defendant reiterates his position 196 that the district court should only have cons idered the CSPM charge, which we reject. 1 [MIO 16] Defendant also argues that, “if the trial court found the witness testimony 2 incredible and the evidence inconsistent, those same shortcomings also prevented a 3 conviction for a lesser offense.” [MIO 17] As we stated in our calendar notice, 4 however, we are not at liberty to evaluate the credibility of the State’s witnesses or to 5 draw inferences that are contrary to the district court’s judgment. [CN 3] See State v. 6 Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for 7 the fact finder to resolve any conflict in the testimony of the witnesses and to 8 determine where the weight and credibility lie). 9 {9} Lastly, Defendant argues that this case is inappropriate for decision on the 10 summary calendar because the current record on appeal is unclear as to whether the 11 victim’s underwear had been laundered prior to submission to the police or whether 12 the SANE nurse had failed “to ‘actively’ perform an examination of [the victim.]” 13 [MIO 5, 11] Because this evidence is incons equential to our analysis, we decline to 14 reassign this case to our general calendar. 15 {10} Accordingly, for the reasons statedabove and in the notice of proposed 16 summary disposition, we affirm. 17 {11} IT IS SO ORDERED. 18

197 J. MILES HANISEE, Judge 1 WE CONCUR: 2

3 JONATHAN B. SUTIN, Judge 4

5 STEPHEN G. FRENCH, Judge 6