{1} Dеfendant was convicted of one count each of false imprisonment and interference with communications; two counts each of criminal sexual penetration (CSP), kidnapping, and attempted CSP resulting in physical injury; and three counts of battery on a household member. All of the convictions stemmed from Defendant’s relationship with his wife during a three-week period in February 2004 while they lived in Alamogordo, New Mexico. On appeal, Defendant challenges several of his convictions on due process and double jeopardy grounds, argues that the trial court made multiple errors that deprived him of a fair trial, claims that he was not afforded effective assistance of counsel, and argues that he was subject to prosecutorial misconduct. We affirm.
I. BACKGROUND
{2} The following facts derive primarily from the testimony of Ms. Dombos. Defendant met her in late November 2003. Ms. Dombos lived in a trailer park in Tucson, Arizona, where Defendant worked as a maintenance man. Ms. Dombos had diabetes and was living on Social Security disability benefits she received for her diabetes and depression. Defendant and Ms. Dombos quickly developed a friendship and within a few days began living together. The relationship that developed between the two involved a routine of daily drinking to the point of intoxication, talking, sleeping, and having daily consensual sexual intercourse. Neither party worked. In spite of several violent episodes resulting in the hospitalization of Ms. Dombos, the couple married in early January 2004 — just a little more than a month after their first meeting. By February 1, 2004, they had moved to Alamogordo, New Mexico, where they continued the lifestyle they had begun in Arizona.
{3} Ms. Dombos testified that there were several occasions in February when she would awaken to find Defendant tying her wrists and ankles. He would talk to her while she was tied up and tell her stories. While she was bound, Defendant would not attempt any sexual activity. He would then untie her. Afterward, he would usually try to force her to perform oral sex. She stated that he did this by pulling her hair to force her head down toward his lap and then running his finger around her lips in an attempt to open her mouth. Ms. Dombos testified that this series of events — her being tied up, followed by his attempt to force her to perform oral sex — “occurred at least four times in the three weeks” between February 1 and February 20.
{4} Sometime around February 18, 2004, Ms. Dombos developed a painful bladder infection, which led her to call a halt to the couple’s daily, consensual sexual intercourse. On the evening of February 20, 2004, Ms. Dombos was awakened by Defendant’s anally penetrating her. She testified that Defendant told her that because her infection prevented her from having vaginal sex and because she would not perform oral sex, “there’s only one other way.” Ms. Dombos testified that she screamed and begged Defendant to stop but that he would not. After Defendant finished and went to the bathroom, Ms. Dombos called 911, claiming that she could not breathe. Defendant came into the room and knocked the phone out of Ms. Dombos’s hand. Ms. Dombos was taken to the hospital, and Defendant accompanied her. At the hospital, Ms. Dombos told an emergency room physician about the sexual assault, and Defendant was arrested.
{5} Sometime after February 21, 2004, Ms. Dombos discovered a videotape in her camcorder. She was surprised to find that the
{6} Defendant was indicted and convicted on ten separate counts as follows: one count of false imprisonment, contrary to NMSA 1978, § 30-4-3 (1963); two counts of CSP, contrary to NMSA 1978, § 30-9-11 (2003); one count of interference with communications, contrary to NMSA 1978, § 30-12-l(D) (1979); two counts of kidnapping, contrary to NMSA 1978, § 30-4-1 (A)(4) (2003); two counts of attempted CSP resulting in physical injury, contrary to Section 30-9-11(D)(3), and NMSA 1978, § 30-28-1 (1963); and three counts of battery on a household member, contrary to NMSA 1978, § 30-3-15 (2001). The one count of false imprisonment and one count of CSP related to the anal intercourse that occurred on February 20, 2004; the other count of CSP was for the anal penetration with the carrot. The two сounts of first-degree kidnapping were based on the acts of restraining Ms. Dombos in connection with the attempted oral sex, and the two counts of attempted CSP related to the acts of trying to force her to perform oral sex. The one count of interference with communications was for the act of knocking the phone out of Ms. Dombos’s hand when she tried to call 911 after the anal intercourse. Finally, the three counts of battery on a household member were based on the physical abuse to which Ms. Dombos testified. All counts of Defendant’s sentence were run consecutively for a total of fifty-nine and a half years of imprisonment.
{7} Additional facts will be presented as needed in addressing the issues on appeal.
II. DISCUSSION
{8} Defendant makes eight claims of error: (1) the evidence supported at most a single count of first-degree kidnapping; (2) double jeopardy requires that the two convictions for attempted CSP be reduced to a single conviction; (3) the trial court erred in refusing to order a pre-trial psychiatric examination of Ms. Dombos; (4) the trial court erred in admitting the videotape; (5) the trial court erred in allowing amendment of the indictment during trial; (6) there was prosecutorial misconduct; (7) Defendant received ineffective assistance of counsel; and (8) there was cumulative error. We address Defendant’s claims in turn.
A. Kidnapping and False Imprisonment
1. Continuous Confinement Versus Multiple Confinements
{9} Defendant argues that kidnapping is a continuous offense and that the convictions for two counts of first-degree kidnapping and one count of falsе imprisonment should therefore not have been charged as three distinct criminal acts. He argues further that because Ms. Dombos testified that she did not feel free to leave Defendant at any point between February 1 and February 20, 2004, these three counts were based on unitary conduct, and should have merged into one count of kidnapping, “beginning at the point that Ms. Dombos became a captive, and ending when she was freed.” Defendant claims that the separate charges subjected him to multiple punishments for the same offense, in violation of the Fifth Amendment to the United States Constitution. The State, however, argues that as to the kidnapping charges, there were at least two distinct confinements and that each began when Defendant tied up Ms. Dombos and ended when he stopped restraining her after attempting to force her to perform fellatio. The State also argues that the confinement on February 20, which culminated in anal intercourse, was separate and distinct from the other confinements. We review Defendant’s double jeopardy challenge de novo. See State v. Bernal,
{10} The Double Jeopardy Clause of the Fifth Amendment provides a defendant with two protections. First, it protects
{11} The unit of prosecution analysis typiсally entails two steps. See Bernal,
{12} As for the first part of the inquiry, the unit of prosecution is clear: a kidnapping begins when the victim is initially confined and ends when the victim is released. This is the clearly stated unit of prosecution for a kidnapping. See State v. McGuire,
{13} Moving to the second part of the inquiry, we must determine if the confinement was continuous or if there were individual instances of confinement that were separated by sufficient indicia of distinctness such that separate convictions do not violate double jeopardy. In determining whether an act is distinct, we look to a variety of factors. See Herron v. State,
2. Jury Instructions
{14} Defendant contends that the jury instructions were deficient because they did not set out findings to support the separate convictions and that reversal of one of the kidnapping convictions is therefore required in order to prevent double jeopardy. Although Defendant did not object to the jury instructions, he may raise a double jeopardy challenge on appeal, regardless of whether the issue was preserved. See State v. Cook,
{15} The indictment charged three counts of kidnapping: Counts 1, 4, and 6. Jury Instruction No. 8 related to Count 1 and was based on events that occurred on February 20. Jury Instruction Nos. 21 and 29 related to Counts 4 and 6 respectively, and both
{16} Defendant characterizes the kidnapping instructions on Counts 4 and 6 as carbon copy instructions because each covered the same time period and each alleged the same conduct. Then relying on Cook,
{17} Laguna is similarly unhelpful. In Laguna, the state charged the defendant, in two separate counts, with attemрted criminal sexual contact of a minor (CSCM). 1999— NMCA-152, ¶ 37,
{18} We now ton to Valentine. In Valentine, the defendant was convicted of forty counts of sexual abuse and sentenced to forty consecutive life sentences.
{19} The evidence presented at trial provided a factual basis for the two kidnapping charges alleged to have occurred between February 1 and 19, 2004. Further, the direction from the trial court explained to the jury that it was required to find two different incidents in order to convict on both counts. Thus, there was no violation of double jeopardy on the kidnapping convictions.
B. Double Jeopardy — Attempted CSP
{20} Defendant also claims that his due process and double jeopardy rights were violated when two identical instructions were submitted to the jury based on two counts of attempted CSP. Here, the State charged Defendant with two counts of attempted CSP, both of which were alleged to have occurred on or between February 1 and 19, 2004. Ms. Dombos testified that during that period of time, Defendant attempted to force her to perform fellatio “at least four times.” She further testified that “it didn’t happen at the same time” as the consensual intercourse but later, on different evenings, after Defendant “had ... been drinking all day.” She had already testified that she and Defendant had engaged in consensual sex on a daily basis. Based on this evidence, the jury was given two identical instructions on attempted CSP and was given the standard unanimity instruсtion. Defendant was convicted on two of the four counts, which creates no double jeopardy problem here. See State v. Altgilbers,
{21} Relying again on Valentine, Defendant claims that due process and double jeopardy were violated when multiple carbon copy counts of CSP were sent to the jury where the only evidence supporting the counts was based on the victim’s testimony that the attempted CSP happened several times. Valentine’s holding is based on due process violations contained in an indiсtment.
{22} Defendant contends that Ms. Dombos did not demonstrate that Defendant’s attempts to force fellatio were separate and distinct and that the evidence thus only supported one count. In determining whether an act is distinct, we look to the variety of factors listed in Herron. See
{23} Citing to Cook, Defendant also contends that in the absence of a distinct factual basis for each charge, the jury could have convicted him twice for unitary conduct, thereby violating double jeopardy.
C. Amended Indictment
{24} Partway through the trial, the State moved to amend the indictment. The original indictment charged that one count each of kidnapping, attempted CSP, and battery allegedly occurred “on or between February 9, 2004, and February 18, 2004,” and that another set of charges for the same crimes allegedly occurred “on or about February 19, 2004.” The State moved to change the dates on all of these charges to enlarge the time of occurrence to “on or between February 1 and February 19.” Defendant objected to the amendments on the ground that he had prepared his defense based on the original dates alleged in the indictment. The trial court found that the changеs would not prejudice Defendant and granted the State’s motion.
{25} We disagree with Defendant’s contention that the trial court erred when it permitted the State to amend the dates of some of the acts alleged in the indictment midway through trial. Rule 5-204(C) NMRA permits the trial court to amend the indictment to conform to the evidence at any time prior to the verdict. It also provides the following:
No variance between those allegations of a complaint, indictment, information or any supplemental pleading which state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be grounds for the acquittal of the defendant unless such variance prejudices substantial rights of the defendant.
Id. At trial, Defendant asserted that he would be prejudiced by the amendment “simply by virtue of the fact that [he] had prepared [for trial] based on the information” in the prior indictment. The trial court pointed out that in the absence of any specific showing by Defendant of how he was harmed by the amendment, he had not established prejudice.
{26} On appeal, Defendant does not assert any specific claim of prejudice and states only that a trial court cannot amend an indictment “so as to include an entirely new charge.” We agree with the State that changing the dates on the charges listed in the indictment does not create an entirely new charge and that Defendant has failed to describe any prejudice he may have suffered due to the amendment. This case is like State v. Marquez,
D. Psychological Examination
{27} Defendant argues that the trial court erred in refusing to order a pre-trial psychological examination of Ms. Dombos. We disagree. The trial court held two hearings on Defendant’s motions for the evaluation. In the first hearing, Defendant argued that Ms. Dombos was delusional and alcoholic, had suffered mental breakdowns, and was suffering from diabetic depression and that these mental disorders cоlored her ability to perceive or relate the events at issue in this case. The trial court ruled that it did not have jurisdiction to order a nonparty, such as Ms. Dombos, to undergo a psychological evaluation but that even if the court did have such authority, it would decline to exercise it
{28} The trial court concluded that it erred in the first hearing when it stated that it lacked jurisdiction to order Ms. Dombos to submit to a psychological evaluation. However, the court refused to order an evaluation of Ms. Dombos because of Defendant’s continued failure to provide any evidence to support his need for the requested discovery. Here, the latter deprived the trial court of the ability to consider Defendant’s request; the сourt was on firm ground either way.
{29} We review a trial court’s order granting or denying a motion for discovery in a criminal ease under an abuse of discretion standard. State v. Ryan,
{30} Where a defendant asks a court to order a psychological evaluation of a complaining witness in order to discover information that would allow the defendant to challenge that witness’s credibility, the defendant must show a “ ‘compelling reason’ ” for the evaluation. State v. Garcia,
{31} We need not decide whether we would have found a compelling reason had Defendant provided evidence in the form of affidavits, testimony, or documents indicating that Ms. Dombos had a pattern of making false complaints of sexual assault. Since Defendаnt provided no such evidence, he did not meet his burden of showing a reasonable likelihood that a psychological examination would have produced probative evidence relating to Ms. Dombos’s credibility — much less that the probative evidence would have outweighed the prejudicial effect of the evidence and Ms. Dombos’s privacy interests.
E. Admission of the Altered Videotape
{32} Contrary to Defendant’s argument, the trial court did not err in denying Defendant’s motion to exclude the videotape showing a man’s arm and hand holding a carrot and sodomizing Ms. Dombos with it. At trial, the videotape was introduced through the testimony of Lisa Delorem, the domestic violence investigator for the Otero County Sheriffs Department. Ms. Delorem did not state that she had any personal knowledge of the events on the video or that the video accurately depicted what it was purported to show. Later, when Ms. Dombos testified, she was able to identify herself on the tape, but she expressly stated that she had no memory of the events shown on the tape. Furthermore, she testified that she had not even watched the tape in its entirety, since when she started to watch it, she was so horrified that she quickly pressed the record button in order to tape over the footage. There was no one to testify as to the recording’s accuracy. This type of evidence, however, can be admitted under the “ ‘
{33} Under Rule 11-403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.” The trial court is vested with a great deal of discretion in applying this rule. See State v. Chamberlain,
{34} We conclude that under an abuse of discretion standard that grants the trial court wide latitude in deciding whether to exclude evidence under Rule 11-403, the trial court did not err in finding that the probative value of the videotape outweighed any danger of unfair prejudice to Defendant. The probative value of the tape — which was the only available evidence of the sexual penetration with the carrot, since Ms. Dombos did not remember the incident — was extremely high. While the prejudice to Defendant was also high, evidence showing a defendant in the admitted commission of an act constituting a crime usually is highly prejudicial. Defendant claims that the deleted portions of the video would have shown that the act was consensual. Ms. Dombos, however, testified that she would not have consented to such an act, and she testified that she was drugged at the time of the penetration. Under this set of circumstances, we cannot say that the trial court abused its discretion in admitting the videotape.
F. Prosecutorial Misconduct
{35} Defendant describes a number of examples of what he considers prosecutorial misconduct. During the closing argument, the State referred to Defendant as “vile,” a “sexual deviant,” and a “sick” person. The State also referred to Ms. Dombos’s rights as a victim under Article II, Section 24, of the New Mexico Constitution — including the right to be treated with fairness and dignity in the criminal justice system and the right to be protected from the accused. Defendant challenges the negative comments and also argues that the prosecutor justified these comments about Defendant by contending that the victim’s rights in Article II, Section 24, take precedence over the trial rights of criminal defendants. Defendant claims that the prosecutor’s remarks about him and comments about the victim’s rights warrant reversal.
{36} Defendant did not object to the prosecutor’s remarks at trial; on appeal, Defendant urges us to review the matter for fundamental error. Our Cоurt does review, in the absence of an objection, “certain categories of prosecutorial misconduct that compromise a defendant’s right to a fair trial.” State v. Allen,
{37} Defendant also argues that during closing, the prosecutor justified his negative comments about Defendant by contending that the victim’s rights in Article II, Section 24, take precedence over the trial rights of criminal defendants. Prosecutors should not suggest that a victim’s rights under Article II, Section 24, can outweigh a defendant’s constitutional rights. However, under the circumstances of our case, the prosecutor’s remark about these rights of Ms. Dombos did not constitute fundamental error. The closing comments focused on the instructions and elements of the crime and, taken in the context of the entire argument, did not suggest to the jury that the victim’s rights trumped Defendant’s rights.
{38} Pursuant to State v. Franklin,
G. Ineffective Assistance of Counsel
{39} In order for Defendant to prevail on his ineffective assistance of counsel claim, he must first demonstrate error on the part of his attorney and then show that the error prejudiced his defense. See Strickland v. Washington,
{40} As acknowledged by Defendant, the record on appeal does not provide enough information to evaluate adequately his attorney’s actions. When this occurs, New Mexico courts have expressed “a general preference that such claims be brought and resolved through habeas corpus proceedings.” Bernal,
{41} Based on the above, we conclude that Defendant has not presented a prima facie case of ineffective assistance of counsel, since he has established neither ineffectiveness nor prejudice. Howеver, Defendant may pursue habeas corpus proceedings should he be able
H. Defendant’s Remaining Arguments
{42} Defendant raises a number of additional claims pursuant to Franklin and Boyer. He does not inform us of how these issues were preserved. Therefore, we decline to address these issues on appeal. See Fitzgerald v. Open Hands,
I. Cumulative Error
{43} Defendant asks this Court to reverse his convictions under the doctrine of cumulative error. “The doctrine of cumulative error requires reversal when a series of lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial that the defendant was deprived of the constitutional right to a fair trial.” State v. Duffy,
III. CONCLUSION
{44} We affirm the trial court on all claims of error.
{45} IT IS SO ORDERED.