State v. Romero, 311 P.3d 1205

Romero convicted of criminal sexual contact of a minor (CSCM) as a lesser-included offense of criminal sexual penetration of a minor (CSPM) following Victim’s testimony.
Victim, aged around 11, originally claimed earlier abuse by Romero; State charged CSPM counts 1–2, CSCM count 3, and aggravated indecent exposure count 4.
Romero underwent a polygraph; the polygrapher claimed 90% certainty of truthfulness regarding the questions related to Victim’s allegations.
State delayed calling/disclosing its polygraph expert; defense argued Brady disclosure obligations, but district court denied discovery.
During trial, the State amended count one from CSPM to CSCM after defense moved for directed verdict, based on Victim’s trial testimony.
Jury deliberated, some counts deadlocked; district court queried numerical vote breakdown and directed further deliberations; one count (amended CSCM) yielded a guilty verdict, other counts were dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether amendment of count one was fundamental error	Romero contends prejudice from amendment; notice insufficient.	Romero argues amendment violated fair notice; prejudiced defense planning.	No fundamental error; CSCM is a lesser-included offense of CSPM; notice adequate.
Whether the State’s polygraph: Brady disclosure was required	Defendant asserts Brady material withheld from polygraph expert findings.	State’s expert not disclosed; defense lacked access to favorable evidence.	No Brady violation; disclosed or cumulative evidence would not change outcome; no reasonable probability of different result.
Whether the district court’s jury handling amounts to a shotgun instruction	Defense claims coercive effect from numerical breakdown and continued deliberations.	Procedural steps coercive; violated jury independence.	No fundamental error; actions did not coerce or contaminate honest convictions; allowed to continue deliberations.

State v. Marquez, 1998-NMCA-010, 124 N.M. 409, 951 P.2d 1070 (1998-NMCA-010) (lesser-included offenses and notice adequacy)
State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995-NMCA-?) (framework for determining lesser-included offenses)
State v. Hester, 1999-NMSC-020, 127 N.M. 218, 979 P.2d 729 (1999-NMSC-020) (regarding defense tactics and notice)
State v. Rickerson, 199? NMCA-?, 95 N.M. 666, 625 P.2d 1183 (199? NMCA-?) (coercive effect considerations for jury inquiries)
State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591 (2003-NMCA-144) (limits on jury numerical division inquiries and shotgun instruction)
State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579 (2006-NMCA-144) (penetration vs. contact analysis for lesser-included offenses)
State v. McCarter, 1980-NMCA-? (1980-NMCA-?) (jury deliberation and discretion standard)
State v. Chavez, 1993-NMSC-? (1993-NMSC-?) (discovery duties and polygraph material disclosure)
Case v. Hatch, 2008-NMSC-024, 144 N.M. 20, 183 P.3d 905 (2008-NMSC-024) (materiality and Brady framework)