This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 28,225 9 TIMOTHY DEEDS, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Albert S. “Pat” Murdoch, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defendant 19 J. K. Theodosia Johnson, A ssistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 BUSTAMANTE, Judge. 242 Defendant is appealing his convictions for criminal sexual penetration of a 1 minor, attempted criminal sexual penetrati on of a minor, criminal sexual contact of 2 a minor, and bribery of a witness. On appeal, Defendant claims that (1) reversible 3 error occurred when the prosecutor asked him on cross-examination about a prior 4 juvenile adjudication of delinquency, (2) a nurse’s testimony impermissibly exceeded 5 the scope of the hearsay exception that permits the admission of out-of-court 6 statements related to medical diagnoses , and (3) double jeopardy requires merger of 7 his convictions for criminal sexual contact of a minor and attemp ted criminal sexual 8 penetration of a minor. We agree w ith Defendant on the double jeopardy claim; 9 accordingly, we reverse and remand with instructions to set aside the conviction for 10 criminal sexual contact of a minor. We affirm on the remaining issues. 11 BACKGROUND 12 Defendant lived briefly with his sister and her three dau ghters. All three 13 daughters were under the age of seven at that time. The middle child, Analicia, 14 accused Defendant of inappropriate touching. Defendant’s sister called the police. 15 Analicia was examined by a Sexual A ssault Nurse Examiner (SANE nurse). 16 Defendant was subsequently indicted on three counts of criminal sexual penetration 17 of a minor, one count of attempted crimin al sexual penetration of a minor, one count 183 of criminal sexual contact of a minor, one count of contributing to the delinquency of 1 a minor, and one count of bribery of a witness. 2 Prior to trial, Defendant filed a moti on in limine to exclude any extrinsic 3 evidence or reference to Defendant’s prior juvenile case i nvolving sexual misconduct. 4 On the morning of trial the State agreed not to mention it unless Defendant opened the 5 door to its use by his testimony. Believi ng that Defendant thereafter opened the door 6 to this line of questioning in his testimony on direct examination, the State asked 7 Defendant on cross-examination if it was truethat he had been convicted of similar 8 acts when he was a juvenile. 9 At trial the State relied primarily on the testimony of Analicia , her older sister, 10 her mother, and the SANE nurse. The juryrejected Defendant’s testimony that the 11 charged conduct did not occur and convicted him of one of the counts of criminal 12 sexual penetration of a minor, attempted criminal sexual penetration of a minor, 13 criminal sexual contact of a minor, and brib ery of a witness. This appeal followed. 14 DISCUSSION 15 1. Cross-Examination 16 Defendant contends that the State impermissibly referred to his prior juvenile 17 adjudication of delinquency during cross-examination. Defendant claims that the 18 Rules of Evidence bar any reference to j uvenile adjudications . “We review the 194 admission of evidence under an abuse of discretion standard and will not reverse in 1 the absence of a clear abuse.” State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 2 511, 964 P.2d 72. “An abuse of discretion arises when the evidentiary ruling is clearly 3 contrary to logic and the facts and circumstances of the case.” State v. Armendariz , 4 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. 5 Here, Defendant was asked on direct ex amination about his reaction to his 6 sister’s questions concerning the accusations. He responded “I toldher I would never 7 do anything like that, that was gross.” The State thereafter commenced its cross8 examination of Defendant as follows: 9 Q: [Defendant], a minute ago whenyou were testifying you said that 10 you told your sister that you would never do something like this because 11 it is gross, correct? 12 A: I was repeating what I had said to her. 13 Q: But that is -- that’s what you said, correct? 14
A: Yes. 15 Q: But, as a matter of fact, that’s not true, as a juvenile you were 16 convicted of doing something similar to this, weren’t you? 17
A: Yes. 18 As a general proposition, we note thatDefendant does not prevail on his 19 argument by relying on any particular rule of evidence that would exclude his prior 20 juvenile record. See State v. Rivera , 115 N.M. 424, 429, 853 P. 2d 126, 131 (Ct. App. 215 1993) (“[E]vidence admissible for one purpos e is not to be excluded because it is 1 inadmissible for another purpose.”). As such, we are not persuaded by Defendant’s 2 reliance on Rule 11-609(D) NMRA, governing the admissibility of any prior 3 convictions to impeach a witness. The plai n language of that rule excludes the use of 4 juvenile records as an accepted means of impeaching an accused’s testimony “under 5 this rule.” Id. We addressed this very issue in State v. Sena , 2008-NMCA-083, 144 6 N.M. 271, 186 P.3d 900. In that case, the prosecution introduced extrinsic evidence 7 of the defendant’s prior juve nile acts of delinquency. Id. ¶ 7. This Court observed 8 that Rule 11-609(D) expressly prohibited the use of juvenile records to impeach the 9 defendant. Sena , 2008-NMCA-083, ¶ 10. Nevertheless, applying the general 10 proposition that exclusion under one rule does not prohibit admission under a separate 11 rule, this Court considered the State’s c ontention that the reco rds were admissible to 12 rebut the false impression the defe ndant created in his testimony. Id. ¶ 11. Rule 11- 13 404(A)(1) NMRA permits character evidence “offered by an accused, or by the 14 prosecution to rebut the same[.]” See State v. Elinski , 1997-NMCA-117, ¶ 22, 124 15 N.M. 261, 948 P.2d 1209 (noting that where th e defendant introduces evidence of a 16 good character trait, Rule 11-404(A)(1) allows the prosecution to rebut that evidence). 17 As this Court explained in Sena , the method of proof restricts the use of character 186 evidence that would otherwise be admissible under the broad language of Rule 11-404(A)(1): 1 Rule 11-405 NMRA limits the manner in which the prosecution can 2 rebut a defendant’s character eviden ce. The Rule is entitled, “Methods 3 of proving character,” and provides: 4 A. Reputation or opinion. In all cases in which 5 evidence of character or a trait of character of a person is 6 admissible, proof may be made by testimony as to 7 reputation or by testimony in th e form of an opinion. On 8 cross-examination, inquiry is allowable into relevant 9 specific instances of conduct. 10 11 B. Specific instances of conduct. In cases in 12 which character or a trait of character of a person is an 13 essential element of a charge, claim or defense, proof may 14 also be made of specific inst ances of that person’s conduct. 15 16 Thus, “except on cross-examination, the method of proof is limited to 17 reputation or opinion evidence and does not include inquiry into specific 18 instances of misconduct unless character is an essential element of a 19 charge, claim, or defense.” 20 21 Sena , 2008-NMCA-083, ¶ 12 (quoting Elinski , 1997-NMCA-117, ¶ 22). 22 Although Defendant argues that Senais “virtually identi cal” to the present case, 23 the above-quoted language indicates a critical distinction. As noted in Sena , the 24 State’s method of proof was to introduce extrinsic evid ence concerning the 25 defendant’s juvenile history. Id. ¶ 9. This was not permitted under Rule 11-405. 26 However, Rule 11-405(A) expressly permits reference to relevant specific instances 27 of conduct on cross-examination. This wa s the case here. Because Defendant’s own 28 testimony opened the door to his character and whether he would ev er engage in this 297 type of sexual behavior, and because De fendant’s prior conduc t was highly probative 1 on this matter, we conclude that it was not error for the State to cross-examine 2 Defendant regarding this prior conduct. 3 2. Medical Testimony 4 Defendant challenges the admission of out-of-court statements made by 5 Analicia to the SANE nurse. Rule 11- 803(D) NMRA provides a hearsay exception 6 for statements made for medical diagnosis or treatment. However, this exception does 7 not permit testimony that strays beyond the limited purpose of the rule. See generally 8 State v. Ortega , 2008-NMCA-001, ¶¶ 16-27, 143 N.M. 261, 175 P.3d 929 (filed 2007) 9 (discussing limitations of the rule). Onappeal, Defendant argues that the SANE 10 nurse’s testimony exceeded the scope of the rule. 11 We do not deem it necessary to reach the merits of Defendant’s claim. In order 12 to preserve an issue for appeal, a de fendant must make a timely objection that 13 specifically apprises the district court of the nature of the claimed error and invokes 14 an intelligent ruling thereon. State v. Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 454, 15 993 P.2d 1280. We agree with the State thatDefendant did not object in a manner that 16 specifically alerted the district court to the claimed error. 17 During the direct testimony of the SANEnurse, where she was describing her 18 physical examination of Analicia, the following exchange took place: 198 Q: Now, why did you examine the genitals? 1 A: That was the area that the ch ild told me had been touched. 2 Q: What did she tell you? 3 A: Do you want me to give you her direct quotations or just 4 summarize it? 5 Q: Go ahead and give me the direct quotations. 6 [Defense Counsel]: I’m going to object. 7 The Court: Please approach, counsel. 8

. . . . 9 [Defense Counsel]: I don’t want her reading from a document that 10 isn’t in evidence. I understand the [c]ourt was probably going to find 11 these statements were made for medical diagnosis or treatment, but it 12 looked like she was about to read from a document which has not been 13 admitted into evidence. She can summarize them. 14 The Court: The statements were made . . . for purposes of medical 15 diagnosis and treatment, I will ask you first to ask her to testify from 16 memory. If she can’t, then sh e can refresh her recollection. 17 It is clear from this exchange that not only did defense counsel fail to 18 specifically alert the district court to the issue of whether the nurse’s testimony 19 exceeded what is allowed under Rule 11- 803(D), she conceded the issue and was 20 instead addressing the nurse’s reliance on a document not admitted into evidence. 21 This interpretation is reinforced by couns el’s failure to object to the Court’s 22 subsequent ruling on the nature of the S ANE nurse’s testimony. At no point did 239 defense counsel argue that the testimony concerning the out-of-court statements went 1 beyond the purpose of medical diagnosis. 2 On appeal, we will not consider issues notraised in the district court unless the 3 issues involve matters of jurisdictional or fundamental error. In re Aaron L ., 4 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. Fundamental error occurs 5 “only where the defendant’s guilt is open to such question as would shock the 6 conscience if the conviction were permitted to stand.” State v. Jett , 111 N.M. 309, 7 314, 805 P.2d 78, 83 (1991). Defendant has not made any argument in support of 8 fundamental error, instead relying on the cl aim that the issue was preserved. Having 9 concluded that the issue wa s not preserved, and in the absence of any argument in 10 support of fundamental error, we summarily reject its applicati on here. Finally, with 11 respect to Defendant’s argument that the error was not harmless, we note that the 12 harmless error analysis is inapplicable because Defendant has not established error. 13 See generally State v. Barr , 2009-NMSC-024, ¶¶ 46-57, 146 N.M. 301, 210 P.3d 198 14 (discussing harmless error doctrine). 15 3. Double Jeopardy 16 Defendant claims that double jeopardy requires merger of his convictions for 17 criminal sexual contact of a minor and attempted criminal sexual penetration of a 18 minor. The State concedes that Defendant is correct on this issue. We are not bound 1910 by the State’s concession, and we therefore engage in our own analysis as to whether 1 Defendant’s conduct was unitary. See State v. Caldwell , 2008-NMCA-049, ¶ 8, 143 2 N.M. 792, 182 P.3d 775. 3 “Merger in New Mexico is a remedial measure in response to a violation of the 4 double jeopardy protection against multiple punishments for a single offense[.]” State 5 v. Santillanes , 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456. Because this case 6 involves multiple statutes, it is classifiable as a double-description case. See 7 Armendariz , 2006-NMSC-036, ¶ 20. We must theref ore apply a two-part test in order 8 to determine whether a double je opardy violation has occurred. Id. “The first part of 9 the test requires the determination of whether the conduc t underlying the offenses is 10 unitary. If it is, we proceed to the sec ond part of the test, which requires us to 11 examine the relevant statutes to determin e whether the Legislature intended to create 12 separately punishable offenses.” Id. ¶ 21 (citations omitted). In order to assess 13 whether the conduct underlying the offenses is unitary, we turn to the evidence 14 presented below in the context of the respective jury instructions. See id. (The issue 15 of whether conduct is unitaryunder the first part of a Swafford analysis requires a 16 careful review of the evidence.). 17 Here, the jury was instructed that in order to find Defendant guilty of attempted 18 criminal penetration, it had to find the following: 1911 1. The defendant intended to commit the crime of [c]riminal 1 [s]exual [p]enetration (Child [u]nder 13); 2 2. The defendant began to do an act which constituted a 3 substantial part of the [c]riminal [s]exual [p]enetration (Child [u]nder 13) 4 but failed to commit the [c]riminal [s ]exual [p]enetration (Child [u]nder 5 13)[.] 6 Criminal sexual penetration was defined as: 7 1. The defendant caused Analicia . . . to engage in sexual 8 intercourse; OR caused the insertion, toany extent, of the penis into the 9 anus and/or vagina of Analicia[.] 10 Criminal sexual contact was defined as: 11 1. [D]efendant touched or applied force to the unclothed 12 vagina and/or buttocks of Analicia[.] 13 Defendant’s convictions on these counts are based on Analicia’s testimony that 14 Defendant “put his pee-pee between my butt.” Her testimony indicates that this 15 episode was limited to touching, with no penetration, and the State in closing 16 argument made it the basis for the attempte d criminal sexual penetration and criminal 17 sexual contact charges. As such, we conclude that the State relied on unitary conduct. 18 Turning to the second part of our doubl e jeopardy analysis, we are guided by 19 our Supreme Court’s conclusion that th e Legislature did not intend separate 20 punishments for both criminal sexual contact of a minor and criminal sexual 21 penetration of a minor. State v. Pierce , 110 N.M. 76, 80, 792 P.2d 408, 412 (1990); 22 see also State v. Mora , 2003-NMCA-072, ¶ 27, 133 N.M. 746, 69 P.3d 256. 2312 Accordingly, we reverse Defendant’s convi ction for criminal sexual contact of a 1 minor. See Mora , 2003-NMCA-072, ¶ 29 (setting aside criminal sexual contact of a 2 minor conviction based on merger with conviction for attempted criminal sexual 3 penetration of a minor). 4 CONCLUSION 5 For the reasons set forth above, we affirm Defendant’s convictions for criminal 6 sexual penetration of a minor , attempted criminal sexual penetration of a minor, and 7 intimidation of a witness. We reverse Defendant’s conviction for criminal sexual 8 contact of a minor, and we remand this matter to the district court to set aside that 9 conviction and to resentence Defendant. 10 IT IS SO ORDERED. 11

12 MICHAEL D. BUSTAMANTE, Judge 13

WE CONCUR: 14

15 CELIA FOY CASTILLO, Judge 16

17 TIMOTHY L. GARCIA, Judge 18