IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 26,523 4 JOEL CORDOVA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 7 Peggy J. Nelson, District Judge 8 Gary K. King Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Hugh W. Dangler, Chief Public Defender 14 Nancy M. Hewitt, Appellate Defender 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 18 VANZI, Judge. 19 Defendant appeals his convictions for tw o counts of criminal sexual penetration 20 of a minor (CSPM), and four counts of criminal sexual contact of a minor (CSCM). 212 Defendant’s arguments on appeal concern the exclusion of certain evidence, pre1 indictment delay, and violation of his doubl e jeopardy rights. As discussed in this 2 opinion, we affirm Defendant’s convictions. 3 BACKGROUND 4 At the time of the incidents in this cas e, Kathy L. (Kathy) was living in Taos 5 with her two daughters from a previous re lationship, and Defe ndant was working as 6 a police officer for the Town of Taos. Defendant and Kathy began a relationship 7 sometime in 1995. Shortly after meeting Defendant, Kathy and her daughters moved 8 into Defendant’s home. After two months , when Defendant as ked them to leave, 9 Kathy and her daughters moved into an apartment. However, Defendant and Kathy 10 continued their relationship. After about another year, Kathy and her daughters 11 moved back into Defendant’s home. In 1998, Kathy and Defendant were married. 12 In March 2000, Kathy’s oldest daughter (referred to in th is opinion as A.R.) 13 told Kathy that Defendant had molested her. When confrontedby Kathy, Defendant 14 denied the allegations. Kathy and Defendant took A.R. to speak to the pastor at the 15 church they attended. Pastor Caldwell and his wife (the Caldwells) met with the 16 couple and with A.R. According to Pastor Caldwell, A.R. described two incidents 17 where Defendant rubbed against her while they were both fully clothed. Because 18 Pastor Caldwell decided that no criminal behavior had occurred, he took no action. 193 After A.R. told Kathy that Defendant had molested her, Kathy began to notice 1 behavioral changes in A.R. Kathy testified that A.R. wa s angry with Kathy and did 2 not want to be “at the house. ” A.R. began to drink alcoholand became very protective 3 of her younger sister. Kathy also noticed that Defendant became more possessive and 4 controlling. Some time after the visit w ith the Caldwells, Defendant moved a “very, 5 very young” girl into the home and “set her up as an authority figure.” During that 6 time, Defendant made comments to Kathy th at A.R.’s allegations could not “get out,” 7 that it would “ruin” him. Based on th e behavioral change s in A.R., Defendant’s 8 decision to move a young girl into the home, stories Kathy had heard concerning 9 Defendant, and Defendant’s comments, Kathy feared that A.R. was not safe with 10 Defendant. In March 2001, Kathy implemented a plan, which she kept secret from 11 Defendant, to take her daughters and move to Georgia. After arriving in Georgia, 12 Kathy and her daughters receive d counseling. Kathy contacted an acquaintance in the 13 Taos district attorney’s office and reporte d the allegations made by A.R. No action 14 was taken at that time. 15 In June 2002, when she r eached the age of eighteen, A.R. moved back to New 16 Mexico and lived with various relatives, first in Taos fo r a few months and then in 17 Albuquerque. In July 2003, while living in Albuquerque and attending school, A.R. 18 visited a medical clinic. On the questionnaire she was given, she indicated that she 194 had been sexually abused in the past. She spoke to the nurse about the abuse and was 1 told that the clinic was required to report her allegations to police. After a report was 2 made by the clinic, the State began its investigation on or about July 21, 2003. 3 Defendant was indicted on charges of se xual abuse on February 24, 2005. Defendant 4 was charged with twenty-four counts of CSPM and twenty counts of CSCM. 5 Following a jury trial, Defe ndant was found guilty of tw o counts of CSPM and four 6 counts of CSCM. Defendant appeals. 7 DISCUSSION 8 Defendant claims that the district court erred in excluding evidence that 9 purportedly would have shown that A.R. habitually used false accusations of sexual 10 abuse for purposes of manipulation. Defe ndant also claims th at the delay between 11 disclosure of the allegations of abuse and filing of the indictment violated his right to 12 due process and that his convictions for CSPMand CSCM violated his right to be free 13 from double jeopardy, particularly because th ere is nothing to indicate what evidence 14 the jury relied on in reaching its decision. 15 Exclusion of Evidence 16 Defendant sought to admit into evidence two items that reportedly pertained to 17 prior allegations made by A.R. of abus e against herself and her younger sister. 18 According to Defendant, proof of prior alle gations of abuse was contained in a file 195 generated by the Children, Youth and Families Department (CYFD) and in a 1 statement made by A.R. to an examining nur se at the Albuquerqueclinic. Defendant 2 also sought to review the file of an atto rney that represented someone in a different 3 case who was allegedly name d as having sexually assau lted A.R. Defendant claims 4 that he did not seek admission of the evid ence to show that A.R. or her sister had 5 accused others, falsely or truthfully, in the past. Defendant wanted the evidence 6 admitted to attack A.R.’s credibility and to show that A.R. “knew how to manipulate 7 situations to get her own way” by making accusations of sexual abuse and, in this 8 case, she used her knowledge “to get [Defendant] out of her household.” 9 Relevant evidence may be excluded if the district court determines that the 10 probative value of the evidence is outweighe d by the danger of unfair prejudice to the 11 defendant. Rule 11-403 NMRA; see State v. Jordan , 116 N.M. 76, 78-79, 860 P.2d 12 206, 208-09 (Ct. App. 1993). The district c ourt has great discretion in applying the 13 balancing test under Rule 11-403, and we will not reverse the district court’s decision 14 absent abuse of that discretion. See Jordan , 116 N.M. at 78-79, 860 P.2d at 208-09; 15 see also Rule 11-413(A) NMRA (providing that insex crimes cases, “evidence of the 16 victim’s past sexual conduct, opinion evidence thereof or of reputation for past sexual 17 conduct shall not be admitted unl ess, and only to the extent that the court finds, that 18 evidence of the victim’s past sexual conduct is material and relevant to the case and 196 that its inflammatory or prejudicial nature does not outweigh its probative value”). 1 Defendant argued below that A.R. learne d from her mother how to manipulate 2 situations by making false sexual accusati ons. To support his theory, Defendant 3 wanted to introduce into ev idence an alleged report madeby A.R. to CYFD that her 4 mother’s previous boyfriend had sexually molested her younger sister. Defendant also 5 wanted to introduce A.R.’s me dical records, which would purportedly show that A.R. 6 told an examining nurse that she had beensexually assaulted tw o days prior to the 7 exam at the clinic in July 2003. Finally , Defendant wanted access to the records of 8 an attorney who represented Kathy duri ng her divorce from A.R.’s father. Defendant 9 believed that the attorney’s file containe d evidence regarding previous sexual abuse 10 allegations made by A.R. 11 Prior to trial, the parties agreed thatthe district court should conduct an in 12 camera review of all the files. The districtcourt reviewed the files and concluded that 13 they contained no information related to allegations of abuse by A.R. or by Kathy. 14 The district court stated that Dr. Lensen’s report indicated that when asked, A.R. 15 denied she had been sexually abused. The di strict court also discussed some of the 16 contents of the CYFD report, including th e interview of A.R. by a psychologist about 17 allegations of sexual abuse at a home day care where the alleged victims were small 18 children and included A.R.’s sister. Finally, th e district court stated that the attorney’s 197 file contained references to “some kind of sexual abuse” re lated to A.R.’s sister. We 1 have also reviewed the sealed documents, and we agree with the district court’s 2 determination that the files do not contain information regarding allegations of sexual 3 abuse made by A.R. or Kathy. There is nothing in the sealed documents that would 4 have supported Defendant’s theory that A.R. learned from her mother to concoct 5 stories of sexual abuse for manipulation purposes . As noted by the district court, there 6 are indications that A.R. was interviewed about alleged sexual mole station of others, 7 but there is no information to support Defe ndant’s claims that A.R. made allegations 8 of sexual abuse against Kathy’s former boyfrie nd. We hold that the district court did 9 not abuse its discretion by excluding the evid ence contained in the sealed documents. 10 Pre-Indictment Delay 11 Defendant contends that the delay in bringing him to trial violated his due 12 process rights. In his brief, Defendant initially refers to the five years between the 13 time of “disclosure” and trial, but later focuses on the time between March 2001, 14 when Kathy first contacted the district attorney’s office in Taos, and November 2005, 15 when the trial commenced. Defendant discusses other dates, including July 2003, 16 when A.R. visited the medical clinic and re vealed that she had suffered sexual abuse, 17 and March 2004, when the Caldwells were in terviewed. Ultimately, Defendant claims 18 that there was a fifty-six m onth delay, and he was prej udiced by the delay because, if 198 he had been informed earlier of the dates on which the offenses were alleged to have 1 occurred, he could have investigated his business and personnel records and found 2 other witnesses who could provide hi m with an alibi on those dates. 3 In determining whether a pre-indictment delay denied Defendant his right of 4 procedural due process, we conduct an independent review of the record and the law. 5 State v. Palmer , 1998-NMCA-052 ¶ 4, 125 N.M. 86, 957 P.2d 71; State v. Grissom , 6 106 N.M. 555, 565, 746 P.2d 661, 671 (Ct. App. 1987). Our S upreme Court has 7 determined that a two-prong test applies in cases involving pre-indictment delay. 8 Gonzales v. State , 111 N.M. 363, 365, 805 P.2d 630, 632 (1991). The test requires a 9 defendant to first establish prejudice and to then show that the prosecution 10 intentionally delayed the case in order to gain a tactical advantage. State v. Palmer , 11 1998-NMCA-052, ¶ 4, 125 N.M. 86, 957 P.2d 71. With respect to the prejudice 12 prong, Defendant has the burde n of persuasion, and prejudice will not be established 13 by mere conjecture, vague, or conclusory allegations of prejudice based on passage 14 of time or absence of witnesses, nominal prejudice, or speculation. See Gonzales , 111 15 N.M. at 365, 805 P.2d at 632. 16 Defendant claims that his defense was impaired because he could have 17 investigated records or found alibi witnesses if he had been informed of the 18 allegations on a date earlier than the fili ng date of the indictment on February 24, 199 2005. Defendant argues that he would have been able to “investigate business and 1 personnel records and could have found other witnesses who coul d provide him with 2 an alibi for [the] dates.” De fendant does not claim, for example, that the business and 3 personnel records he refers to were destroyed, lost, or otherwise unavailable once he 4 received notice by way of the indictment. Defendant does not claim that his alibi 5 witnesses were no longer available or wereunable to recall the time periods listed in 6 the indictment. Defendant argues only that his defense might have been stronger if 7 he had been able to locate evidence showi ng that it was not possible for him to have 8 committed the alleged offenses on the dates included in the indictment. In other 9 words, Defendant’s claim of prejudice is based only on conjecture, speculation, and 10 conclusory statements that alibi witnesses would have been found or that information 11 in business and personnel records in ge neral would have s upported his defense. 12 Defendant’s assertions cannot satisfy th e prejudice prong of the test outlined in 13 Gonzales and, therefore, Defendant failed to meet his burden of persuasion in this 14

case. See id. at 365, 805 P.2d at 632. 15 Moreover, Defendant presented no evidence to show that the State intentionally 16 delayed bringing him to trial in order to gain a tactical advantage. See id. Defendant 17 claims that it is unreasonable to require him to show that the State intentionally 18 delayed trial in order to gainan advantage. Defendant ar gues that a showing of gross 1910 negligence should be sufficient and that th e delay of over five years from when the 1 offenses allegedly occurred should be considered presumptively prejudicial, as it 2 would be in a speedy trial cas e. Defendant claims that the length of the delay alone 3 establishes actual prejudice. 4 Defendant’s arguments are contrary toprecedent of our Supreme Court. See 5 id. at 363-66, 805 P.2d at 630-33; see also Salandre v. State , 111 N.M. 422, 425 n.1, 6 806 P.2d 562, 565 n.1 (1991) (explaining thatdue process with respect to pre7 indictment delay is to be distinguished from due process regarding Sixth Amendment 8 speedy trial rights). We therefore reject Defendant’s arguments. See State ex rel. 9 Martinez v. City of Las Vegas , 2004-NMSC-009, ¶¶ 20, 22, 135 N.M. 375, 89 P.3d 10 47 (holding that this Court remains bound by Supreme Court precedent). Defendant 11 did not meet either prong of the test outlined in Gonzales . Therefore, Defendant failed 12 to establish that his due process rights were violated. 13 Double Jeopardy 14 After the jury made its decision, De fendant filed a motion for a new trial 15 claiming violation of his double jeopardy rights. Defendant pointed out that he was 16 indicted on forty-four counts of CSPM and CSCM, but was f ound not guilty on all but 17 six counts. Two of the guilty verdicts , for Counts 15 and 16, were for offenses 18 occurring between February 12 and 13, 1997, and the State presented evidence that 1911 Kathy was in the hospital on those dates. Defendant claime d, however, that the other 1 four guilty verdicts were for offenses that occurred between January 3, 1997, and 2 April 2, 1997, a time span that included the dates of the offenses described in Counts 3 15 and 16. Defendant argued that the jury was not advised that it must find that any 4 offenses that might have occurred between January 3 and April 2, 1997, were separate 5 from those that occurred on February 12 and 13, 1997. Defendant claimed that 6 “[s]ince the jury did not c onvict on any other counts, it clearly found the evidence 7 insufficient to convict for any alleged o ffense that occurred on any date other than 8 February 12 [and] 13, 1997.” According to Defendant, no “additional evidence” was 9 presented with respect to “any offense that occurred during the January 1997 through 10 April 1997 period.” Although the jury was instructed to consider each crime 11 separately, Defendant argued, “there is no way to know whether the jury convicted 12 [him] twice for the acts he was found to have committed on February 12 [and] 13, 13 1997.” 14 On appeal, Defendant renews this ar gument by claiming that he was subjected 15 to multiple punishments for the same offens es when separate sentences were imposed 16 for the offenses described under Counts 11 through 14, and those offenses were based 17 on the same conduct underlying the offenses under Counts 15 and 16. We generally 18 apply a de novo standard of review to the constitutional question of whether there has 1912 been a double jeopardy violation. State v. Andazola , 2003-NMCA-146, ¶ 14, 134 1 N.M. 710, 82 P.3d 77. However, where factual issues are intertwined with the double 2 jeopardy analysis, the factual issues regarding whether Defendant’s actions, which 3 formed the basis of the charges, amounted to unitary conduct. Therefore, we apply 4 a deferential substantial standard of review to the district court’s decision to punish 5 Defendant separately for each of the six c ounts contained in the jury’s verdict. In 6 cases such as this where a defendant cl aims to have been subjected to multiple 7 punishments based on the same conduct, ourSupreme Court has adopted a two-part 8

test. See Swafford v. State , 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). First, we 9 must determine whether the conduct underlyi ng the offenses is unitary in that it 10 violates more than one statute. Id. Second, we must decide whether the legislature 11 intended to create separately punishable offenses. Id. “Only if the first part of the test 12 is answered in the affirmative, and the second in the negative, will the double jeopardy 13 clause prohibit multiple punishment in the same trial.” Id. Unless there is proof that 14 each act was “in some sense distinct” from other acts, we will assume that the 15 legislature did not intend multiple punishments. State v. Haskins , 2008-NMCA-086, 16 ¶ 17, 144 N.M. 287, 186 P.3d 916 (internal quotation marks and citation omitted), 17 cert. denied , 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677. On the other hand, 18 if the acts are distinct and not unitary, no double jeopardy violation occurred, and we 1913 need not apply the second part of the test. See Swafford , 112 N.M. at 14, 810 P.2d at 1 1234. 2 In determining whether the offenses de scribed in Counts 15 and 16 are distinct 3 from those described in Counts 11 through 14, we consider various factors. For 4 example, we consider whether the events were sufficiently separated by either time 5 or space. Id. at 13-14, 810 P.2d at 1233-34. We l ook to the quality and nature of the 6 acts and the objects involved, whether there wa s an intervening event, and we consider 7 a defendant’s behavior and utteran ces during or between the acts. Id. ; see State v. 8 Barrera , 2001-NMSC-014, ¶ 36, 130 N.M. 227, 22 P.3d 1177. We also consider 9 whether the victim was moved or repositi oned between acts, and whether there was 10 serial penetration of different orifices or repeated penetrations of the same orifice. See 11 Herron v. State , 111 N.M. 357, 361-62, 805 P.2d 624, 628-29 (1991). 12 In the indictment, Counts 11, 13, 15, and 16 describe acts of CSCM, and Counts 13 12 and 14 describe acts of CSPM. Count 11 states that Defendant caused A.R. to 14 touch his penis between the dates of Oct ober 3, 1996, and April 2, 1997. Count 13 15 states that Defendant touched or applied force to A.R.’s breast between the dates of 16 January 3, 1997, and April 2, 1997. Count 15 states that De fendant touched or applied 17 force to A.R.’s buttocks, and Count 16 states that Defendant touc hed or applied force 18 to A.R.’s vaginal area, both offenses occu rring on or between the dates of February 1914 12, 1997, and February 13, 1997. Count 12 states that Defendant inserted his finger 1 into A.R.’s vagina, and Count 14 states that Defendant caused A.R. to engage in 2 cunnilingus, both offenses occurring between the dates of January 3, 1997, and April 3 2, 1997. 4 As noted above, Defendant contends th at, because the offenses described in 5 Counts 11, 12, 13, and 14 occurred during a time period that included the dates on 6 which the offenses described in Counts 15 and 16 occurred, it is not possible to 7 determine whether the jury relied on the evidence presented in support of Counts 15 8 and 16 to support convictions under Count s 11 through 14. In addressing this 9 argument, we first summarize the evidence presented in support of Counts 15 and 16. 10 Counts 15 and 16, both for CSCM, occurred on or between February 12 and 13, 1997. 11 Defendant conceded that evidence was presented that Kathy was in the hospital on 12 those dates. A.R. testified that, when Kathy was in the hospital and A.R. was living 13 at Defendant’s home, Defendant took her to his bed, got on top of her and started 14 rocking back and forth on her with his crotch area placed on her vaginal area. A.R. 15 could feel that Defendant’s penis was ha rd. Defendant then turned A.R. onto her 16 stomach, got on top of her buttocks from behi nd, lifted her shirt, grabbed her breasts, 17 and licked and kissed her back while rocking back and forth. Again, A.R. could feel 18 that Defendant’s penis was hard. According to A.R.’s testimony, Defendant touched 1915 or applied force to her vaginal area and her buttocks, and used his hands to touch or 1 apply force to her breasts. 2 As to the events occurring on February12 and 13, 1997, A.R. never testified 3 that Defendant caused her to touch his penis (Count 11), inserted his finger into her 4 vagina (Count 12), or caused her to e ngage in cunnilingus (Count 14). A.R.’s 5 testimony about those dates could only havebeen viewed to support claims that 6 Defendant touched or applied force to A.R.’s buttocks (Count 15), vaginal area (Count 7 16), and breast (Count 13). As discussed be low in this opinion, however, a review of 8 the transcript reveals there was evidence, other than that concerning what transpired 9 on February 12 and 13, that De fendant touched A.R.’s breast. In addition, there was 10 evidence to separately support each ch arge described in Counts 11 through 14. 11 A.R. testified that the sexual abus e by Defendant occurred weekly for five 12 years, from the time she was ten years old until she was sixteen. A.R. testified that 13 during those five years, Defendant touche d her breasts on a weekly basis with his 14 hand; touched her breast with his mouth at least one time; and touched her vaginal 15 area with his mouth, placed her hand onto his penis, and put his finger “on the inner 16 part” of her vaginal area at least four times a month. With respect to the offenses that 17 occurred on February 12 and 13, A.R. testif ied that Defendant touched her breasts 18 with his hands, but did not testify that he touched her breasts with his mouth on those 1916 dates. Therefore, based on the evidence pres ented at trial, the jury could reasonably 1 find that Defendant touched A.R.’s breast with his hand on February 12 or 13, and 2 touched A.R.’s breast with his mouth on a different date during the time period 3 referred to in the indictment. In addition, based on A.R.’s testimony that different acts 4 occurred at least four times per month and based on the fact that Counts 11, 12, and 5 14 each referred to different orifices and/or body parts, the jury could reasonably find 6 support for Defendant’s convictions for th e offenses described in those counts. 7 Furthermore, to the extent that Defe ndant claims that the convictions under 8 Counts 15 and 16 were base d on unitary conduct, we disagree. The evidence 9 presented at trial showed that Defendant committed two distinct acts of CSCM on the 10 dates of February 12 and 13. First, he placed his crotcharea onto A.R.’s vaginal area 11 so that she could feel that his penis wa s hard against her body. Second, Defendant 12 repositioned A.R. by placing her onto her stom ach and lifting her shirt to touch her 13 breasts. He lay on top of her buttock area and began rocking. While he was rocking, 14 A.R. could feel his penis. The evidenceestablished that Defendant committed one 15 offense of CSCM involving A.R.’s vaginal area, repositioned A.R., and then 16 committed a separate offense of CSCM involving A.R.’s buttocks. See Herron , 111 17 N.M. at 361-62, 805 P.2d at 628-29. Wehold that the evidence supports a 18 determination that the acts described in Counts 15 and 16 were separate and distinct 1917 and not based on unitary con duct. We conclude thatDefendant’s double jeopardy 1 rights were not violated. 2 CONCLUSION 3 Based on the discussion in this opinion, we affirm Defendant’s convictions. 4 IT IS SO ORDERED. 5

______________________________ 6 LINDA M. VANZI, Judge 7

WE CONCUR: 8

_________________________________ 9 MICHAEL D. BUSTAMANTE, Judge 10

_________________________________ 11 JONATHAN B. SUTIN, Judge 12