{1} Dеfendant was convicted of multiple counts of criminal sexual contact of a minor (CSCM) in the third degree, multiple counts of criminal sexual penetration (CSP) in the first degree (child under thirteen), and two counts of bribery or intimidation of a witness, as well as a single count of attempted CSP in the first degree (child under thirteen). On appeal, Defendant raises the following issues: (1) whether the district court erred in denying a motion to compel the victims to submit to psychological evaluations, (2) whether the victims’ medical records should have been provided in discovery, (3) whether the district court erred in admitting testimony on post-traumatic stress disorder (PTSD), (4) whether examinations of the victims should have been excluded, (5) whether lesser-included offense instructions should have been given, and (6) whether prosecutorial misconduct effectively denied Defendant a fair trial. Because we determine that no error occurred, we affirm Defendant’s convictions.
BACKGROUND
{2} Defendant’s convictions stem from events that occurred between 1991 and 1996, when the victims, A.D. and J.D., were between the ages of three and eleven. During that period of time Defendant lived with the victims and their mother in a single household.
{3} A.D. and J.D. testified that after Defendant moved into their home, he began sexually abusing them. Although they reported Defendant’s conduct to their mother, she did not protect them. In August 1996, J.D. called her grandmother for help. The grandmother immediately took J.D. and her brother from the house; A.D. was spending the night with a friend. The grandmother and her sister later obtained legal custody of the victims and their brother.
{4} Roughly a month after A.D. and J.D. left their mother’s household, their grandmother took them to a counselor, Daniel Blackwood, to seek help with behavioral issues. Mr. Blackwood diagnosed the victims with a number of disorders, including PTSD. Approximately six months later, the victims were taken to Adrienne Larkin, a cliniсal psychologist who specialized in individual psychotherapy. She also diagnosed A.D. and J.D. with PTSD and confirmed that their symptoms were consistent with sexual abuse. In addition to seeing Mr. Blackwood and Dr. Larkin, A.D. received counseling from Clair Neilsen at Hogares, a treatment facility for children and adolescents. Ms. Neilsen similarly concluded that A.D. suffered from PTSD, consistent with sexual abuse.
{5} The sexual abuse was not immediately reported to the police. Rather, the victims’ grandmother elected to wait until guardianship proceedings had been concluded, which resulted in a lapse of approximately one year from when the children were removed from their mother’s household. In August 1997, the authorities were notified and Safehouse interviews were conducted to facilitate the criminal investigation. In October 1997, A.D. and J.D. were taken to a medical doctor, Dr. Renee Ornelas, for physical examinatiоns. Dr. Ornelas observed no abnormalities, but opined at trial that the victims’ conditions were consistent with the reported sexual abuse.
{6} The defense was based on the theory that the allegations of abuse were fabricated by the victims, because they did not like Defendant and they wanted him to leave their household. Primarily, as developed through the testimony of the defense expert, the defense characterized the victims’ PTSD as consistent with other traumas in their lives. Defendant also took the stand, denying that any improper contact had occurred.
{7} The jury rejected Defendant’s theory, returning guilty verdicts on three counts of CSCM in the third degree, three counts of CSP in the first degree, one count of attempted CSP in the first degree, and two counts of bribery or intimidation of a witness.
DISCUSSION
A. Psychological Evaluations of the Victims
{8} Shortly before trial, Defendant filed a motion to allow his defense expert to conduct forensic psychological evaluations of the victims. The district court denied the motion on grounds of timeliness and relevancy. Defendant challenges these determinations on appeal.
{9} We will begin with the timeliness of the motion. Following an earlier appeal to this Court, this case was remanded on September 12, 2002, for retrial. Defendant did not file the motion until September 17, 2003, twelve days before the second trial. Because of the short time frame, the district court was unable to schedule a hearing on the motion before trial. The motion was heard and denied on the opening day of trial. Under such circumstances, we believe the district court could reasonably have denied the motion because it was untimely. Cf. State v. Aragon,
{10} Even if the motion had been timely, Defendant made an inadequate showing of support. At a minimum, the movant must demonstrate a specific basis or a compelling need for a psychological evaluation of a victim. See State v. Ruiz,
{11} Defendant’s expert and the State’s experts and other witnesses testified at length about other traumatic events with which the victims’ PTSD was or may have been consistent and to which their PTSD could have been related. In addition, Defendant did not satisfy his burden to show by an offer of proof or otherwise how a present evaluation for PTSD could be relеvant in regard to whether the PTSD suffered years back would be consistent with traumatic events other than or in addition to sexual abuse. See State v. Slayton,
{12} Defendant nevertheless argues that evaluations were required in order to establish the onset of the victims’ PTSD, thereby potentially rebutting the State’s assertion that the victims’ psychological disorders were temporally related to the alleged sexual abuse. We see no support in the record that reliable information about the onset of the victims’ PTSD could have been gathered so many years after all of the suggested triggering events occurred. In light of Defendant’s
{13} Finally, Defendant argues that the examinations should have been granted as a matter of fundamental fairness because the State was permitted tо impeach his expert with the lack of opportunity to evaluate the victims on a first-hand basis. Our review of the transcript reveals that the district court offered to prohibit the State from pursuing this line of questioning. Defendant rejected that offer; instead, he specifically sought permission to introduce evidence about the lack of opportunity to conduct evaluations of the victims. This was clearly a tactical decision, which cannot provide a basis for relief on appeal. See, e.g., State v. Bonham,
{14} We therefore reject Defendant’s first assertion of error and hold that the district court did not abuse its discretion in denying Defendant’s motion to allow forensic psychological evaluations.
B. Discovery of the Victims’ Medical Records
{15} Defendant contends that the district court erred in denying his motion for discovery of the victims’ medical records. Where medical records are sought by the defense in cases such as this, we require “a threshold showing by [the] defendant that the records may reasonably be expected to provide information material to the defense.” Ruiz,
{16} The district court ruled that the State was only required to produce medical records reflecting treatment for physical abuse or specifically noting that the medical care provider “either found injuries or didn’t find injuriеs” that would suggest physical abuse. Given that Defendant was able through witness testimony to establish a lack of medical corroboration for the alleged beatings, we conclude that the district court’s approach reflects an appropriate balance between Defendant’s interest in obtaining material evidence and the victims’ interest in maintaining a degree of privacy. See id. ¶ 36 (observing that the production of medical records requires a balancing of the interests of the child-victim against the interests of the defense).
{17} Defendant further contends that the district court erred in failing to review the victims’ medical records in camera. Defendant’s assertion that he requested in camera review of the victims’ medical records is unsupported. The portion of the transcript that Defendant has cited deals with a separate discovery dispute, whereby defense counsel sought in camera review of any counseling records that might have been withheld by the State. The transcript contains no request for in camera review of the victims’ medical records. The district court’s failure to conduct such a review sua sponte does not provide a basis for reversal. See State v. Martinez,
C. Expert Testimony Concerning PTSD
{18} As briefly described earlier in this opinion, the State called three of the victims’ counselors to testify at trial: Daniel Black-wood, Adrienne Larkin, and Clair Neilsen. After describing their observations, each of these witnesses confirmed that the victims suffered from PTSD аnd opined that their symptoms were consistent with sexual abuse. Defendant challenges the admission of this testimony on the following grounds: (1) lack of scientific basis; (2) problematic sources of background information; (3) inappropriate commentary; and (4) impermissible vouching. We address each in turn.
1. Scientific Basis
{19} Defendant attacks the scientific basis for the State’s PTSD evidence, asserting that the diagnoses were not “forensic” in nature and were therefore derived from flawed methodologies.
{20} More particularly, Defendant contends that a critical distinction must be made between a therapeutic, clinical, treatment diagnosis of PTSD on one hand, and a forensic diagnosis on the other hand. According to Defendant, the former brand of diagnosis for evidentiary purposes is scientifically unsound because the counselor does not question the truth of what is reported by the victim, assumes the truth of the statements withоut looking beyond the statements and investigating the truth or falsity of the statements, and is actually required to believe the truth of what the victim reports, thereby having questionable scientific reliability and underpinning. Defendant asserts that Rules 11-401 and 11-701 NMRA and the cases of Daubert and Torres required the district court to exclude the testimony of the counselors who testified for the State. See Daubert v. Merrell Dow Pharm., Inc.,
{21} The New Mexico Supreme Court has definitively addressed the admissibility of expert testimony on the subject of PTSD. In State v. Alberico,
{22} More specifically, Defendant contends that the testimony was scientifically unreliable on the ground it was premised on self-reporting by the victims to a counselor who must assume or believe the truth of the reports. Defendant cites several articles that he believes support the view that forensic-based opinions are neutral, providing an objective evaluation, while treatment-based opinions are not neutral and can all too easily be based on statements emanating from intentional lying or adult influence. Defendant further asserts that forensic-based assessments are superior because they look into
{23} We are not persuaded by Defendant’s arguments for several reasons. First, the record does not show that the counselors actually formed beliefs that what the victims reported was true and then based their individual diagnosis on those beliefs. Defendant’s claim is only a broad, general assertion, namely, that therapeutic, clinical counselors who treat victims of sexual abuse must believe in the truth of the victims’ reports and, therefore, the diagnoses of PTSD are scientifically suspect because the counselors are unable to show that the statements are true, thereby losing a critical premise behind the diagnoses.
{24} Second, our Supreme Court in Alberico saw the weakness associated with self-reporting and the distinction between clinical credibility and objectively verifiable truth.
{25} Third, Defendant fails to provide any authority that holds that a treatment-based diagnosis of PTSD does not satisfy scientific principles because it is based on an assumption that the victims’ statements are true. As we just indicated, Alberico relegates concerns about this to cross-examination.
{26} Fourth, the principles enumerated in Torres do not suggest, much less compel, the result Defendant advances. The State’s experts’ PTSD testimony meets the Torres requirements. The experts were qualified; the showing that PTSD symptomatology is consistent with sexual abuse made the testimony relevant; and the testimony was limited to an area of specialized scientific knowledge in which the experts were qualified. See Torres,
{27} Defendant also contends that the district court erred in failing to conduct a Daubert hearing on the scientific reliability of the State’s PTSD testimony. We disagree. The district courts have “discretionary authority ... to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted.” Lente,
2. Sources of Background Information
{28} Defendant raises issues that are specific to the sources of background information
{29} As we previously discussed in this opinion, the scientific validity of the standard diagnostic process for a PTSD diagnosis is well-established. Neilsen testified that she applied standard diagnostic procedures and formulated her own professional opinion, based on the DSM and first-hand interaction with A.D. Alberico provides that testimony of this nature has a sound basis in scientific principle. See Alberico,
{30} In addition, we do not perceive any Confrontation Clause problem. As the United States Supreme Court recently clarified, the Confrontation Clause applies exclusively to testimonial statements. See Davis v. Washington, — U.S. -,
3. Commentaries
{31} Defendant also challenges a series of specific comments attributed by Defendant to the State’s experts, to the effect that: (1) A.D.’s symptoms were “more consistent than inconsistent” with sexual abuse, (2) sexual abuse can cause PTSD, and (3) the chance of any given event causing PTSD increases with the frequency of occurrence. Defendant contends that each of these statements amounted to improper testimony on causation. We disagree.
{32} The first comment was made in response to a valid question, whether A.D.’s symptoms were consistent with sexual abuse. Alberico expressly permits this sort of testimony.
{33} Defendant did not object to the second and third statements on grounds that they contained improper commentary on causation. As a result, Defendant’s challenge was not preserved. See generally State v. Clark,
4. Vouching
{34} Defendant argues that the State’s experts invaded the province of the jury by commenting on the сredibility of the victims. While PTSD testimony is “grounded in valid scientific principle” and generally admissible “to show that the victim suffers from symptoms that are consistent with sexual abuse, it may not be offered to establish that the alleged victim is telling the truth; that is for the jury to decide.” Alberico,
D. Expert Medical Testimony
{35} At trial, the State called Dr. Ornelas to testify about her physical examinations of the victims. Defendant contends that the district court erred by: (1) permitting Dr. Ornelas to describe the victims’ histories, (2) concluding that Dr. Ornelas’ opinion testimony was premised in valid and reliable scientific principle, and (3) failing to conduct a Daubert hearing.
1. Recitation of Victim Histories
{36} Prior to examining the victims, Dr. Ornelas obtained histories describing the variety of sexual contact to which they had been subjected. At trial, Dr. Ornelas explained that she relies upon such histories because the scope of the examination is dictated by the types of contact involved. Dr. Ornelas then summarized the histories that she obtained in relation to A.D. and J.D., related her findings, and opined about the significance of those findings.
{37} Defendant argues that the victims’ histories as to the alleged sexual contact should have been excluded from evidence. He relies on the case of State v. Lucero,
{38} Below, the district court concluded that Lucero did not present a bar to Dr. Ornelas’ testimony about the victims’ histories. We agree, for three reasons. First, Lucero applies to PTSD testimony. Dr. Ornelas did not testify on this subject. Second, Lucero applies to the testimony of psychologists. Dr. Ornelas did not testify in this capacity. Rather, she conducted physiсal examinations and testified about her findings from those examinations. Finally, the statements deemed inadmissible in Lucero all involved identification of the perpetrator. Id. at 452,
{39} In a recent case, this Court was presented with a challenge to the repetition of victim statements by an examining physician.
{40} Defendant also challenges the admission of Dr. Ornelas’ testimony about the victims’ histories on grounds that they were hearsay statements, and on grounds that the histories were filled with inaccuracies. Wе reject both of these arguments. The histories do not appear to have been offered for the truth of the matters asserted. Rather, they were offered to explain the scope of Dr. Ornelas’ physical examinations. As a result, we dispute their classification as hearsay. Additionally, it appears that the histories were compiled by Dr. Ornelas’ staff for the purpose of facilitating medical diagnosis or treatment. Accordingly, they fall within the hearsay exception set forth in Rule 11-803(D) NMRA. See, e.g., State v. Massengill,
{41} With respect to the alleged inaccuracies, we acknowledge that the histories written down may have been far less detailed than the victims’ testimonial descriptions of the sexual contact. However, as previously described, Dr. Ornelas merely required general information about the type of contact reported, so that she could focus her examinations on appropriate anatomical areas and test for diseases that could have been communicated under the circumstances. To the extent the specifics of the reported sexual contact could have had an impact on her opinions, they were presented in appropriate hypothetical questions based on the victims’ testimony at trial. See generally Rule 11-705 NMRA. Potential inconsistencies were also developed on cross-examination. We therefore perceive no impropriety.
{42} Finally, Defendant challenges the admission of the histories on Confrontation Clause grounds. We observe that an argument of this nature must be preserved. See State v. Trujillo,
2. Existence of a Valid Scientific Basis for Dr. Ornelas’ Medical Testimony
{43} Defendant argues that much of Dr. Ornelas’ testimony should have been excluded on the ground that her “diagnosis” lacked a valid scientific basis, having been based, he contends, solely on the victims’ histories alone and a lack of abnormal findings.
{44} As previously described in this opinion Dr. Ornelas’ testimony was fairly limited. She described the examination process and related the histories she had obtained for the victims. She explained that both A.D. and J.D. had “normal” exams, meaning that she discovered neither physical indicia of trauma nor sexually transmissible diseases. Dr. Ornelas then opined that the “normal” examinations were consistent with the victims’ histories, in light of the significant lapse of time between the alleged sexual contact and the examinations, in light of the rapid rate of healing of mucosal tissue, in light of the victims’ natural physical development, and in light of ambiguity concerning the extent of penetration.
{45} Defendant’s attack on the scientific basis for Dr. Ornelas’ testimony appears to be focused on the sexual aspect of the abuse,
{46} As previously stated, Dr. Ornelas’ testimony was addressed as to thе consistency of the normal examinations with the alleged sexual abuse. Contextually, it is clear that this consistency reflected compatibility or consonance. We note that Defendant does not take issue with the scientific validity of Dr. Ornelas’ comments about the effects of time, the natural developmental, and healing processes. Insofar as these comments provided the scientific basis for her opinion that the normal test results were consistent with the victims’ histories, we reject Defendant’s assertion of error.
{47} Defendant also challenges the basis for Dr. Ornelas’ statements about the frequency of normal examinations in cases involving sexual abuse, and about common behaviors on the part of common offenders. With respect to the former, Defendant merely sought the opportunity to conduct recross-examination and the request was granted. With respect to the latter, the district court sustained Defendant’s prompt objection and no further relief was sought. As a result, neither statement presents a basis for relief on appeal. See State v. Laney,
3. Failure to Conduct a Daubert Hearing
{48} Finally, Defendant contends that the district court erred in denying his request for a Daubert hearing to evaluate Dr. Ornelas’ testimony. As we have previously observed, the district courts have “discretionary authority ... to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted.” Lente,
E. Instructions on Lesser-included Offenses
{49} Defendant requested that the jury be instructed on the lesser-included offense of CSCM in relation to both Count 1, attempted CSP (involving A.D.), and Count 6, CSP (involving J.D.). The district court denied the request, finding the lesser-included offenses and the instructions to have been unsupported by the evidence. Defendant challenges this determination on appeal.
{50} An instruction on a lesser-included offense is only warranted if there is some reasonable view of the evidence pursuant to which the lesser offense is the highest degree of crime committed. Id. ¶ 14. Where there is no ambiguity in a victim’s testimony that could lead a rational juror to acquit a defendant of CSP but convict of CSCM, the defendant is not entitled to an instruction on the lesser-included offense. Id. ¶ 16. We aрply a de novo review here. Id. ¶ 14.
{52} Count 6, CSP involving J.D., was based on J.D.’s testimony that Defendant repeatedly awoke her at night “licking” her “down there.” When asked to be more specific, J.D. indicated that he would lick her “vagina.” Once again, Defendant relies on child-victims being “infamously unreliable reporters” and the lack of medical evidence of physical harm to support the theory that mere contact occurred. We are unpersuaded. As charged, the CSP invоlved cunnilingus, which is defined as “the touching of the edge or inside of the female sex organ with the lips or tongue.” UJI 14-982 NMRA. J.D. unambiguously described licking the vagina, and there is no indication in the record that J.D. was unclear about the meaning of that term. As a matter of physiology, the described contact with the vagina went beyond “the edge ... of the female sex organ,” id., and as such, the licking of the vagina unavoidably entailed penetration to some extent. See generally UJI 14-981 NMRA (providing physiological definitions); NMSA 1978, § 30-9-1KA) (1995) (amended 2003) (defining CSP in terms of “cunnilingus ... or the causing of penetration, to any extent ... of the genital ... openings”). Because the evidence is incapable of supporting a reasonable inference of mere contact, Defendant’s requested instruction was properly denied. See Lente,
F. Prosecutorial Misconduct
{53} Finally, Defendant contends that the prosecutor made a series of improper comments in the coursе of closing arguments, thereby denying him a fair trial. When an issue of prosecutorial misconduct is preserved by a timely objection at trial, we review the district court’s ruling for abuse of discretion. State v. Allen,
{54} First, Defendant contends that the prosecutor’s comments on credibility assessments and the burden of proof amounted to misconduct. Specifically, the prosecutor stated: “[I]f you believe the girls that he’s guilty.... If you believe they were sexually abused and you believe that he did it, then we proved our ease.” Because no objection was raised, we apply fundamental error rеview. A misstatement of the law may constitute misconduct. See State v. Taylor,
{55} Next, Defendant claims that the prosecutor improperly vouched for the credibility of the victims by asserting that they would not have testified before the jury if their assertions were untrue. As an initial matter, we observe that Defendant failed to object. Secondarily, we disagree with Defendant’s characterization. Generally speaking, vouching involvеs either “invoking the authority and prestige of the prosecutor’s office” or “suggesting the prosecutor’s special knowledge.” State v. Pennington,
{56} Finally, Defendant contends that the prosecutor impermissibly appealed to passion and sympathy by: (1) asserting that nothing the jury could do would diminish the mental anguish of the victims, but that the jury could “make it a lot worse”; (2) inviting the jurors to imagine whether they would have screamed, “at least in your head,” if they had been similarly assaulted as young children; and (3) as characterized by Defendant, asking the jurors to give the case the same consideration as if their relatives were the victims. Although these comments were largely improper, we conclude that they were not sufficiently egregious, pervasive, or prejudicial to deprive Defendant of a fair trial.
{57} With respect to the first statement, Defendant’s objection was promptly sustained, and the prosecutor was admonished to “stay away” from that line of commentary. “[T]here has been no showing that the trial court’s prompt sustaining of objections and admonishments to the jury failed to cure the effect of the prоsecutor’s overreaching.” Allen,
{58} With respect to the second statement, about the victims screaming, Defendant objected on grounds that the prosecutor had mischaracterized the evidence by stating that Defendant would cover J.D.’s mouth. However, J.D.’s testimony provided clear evidentiary support for the prosecutor’s comment. As a result, the objectiоn was properly overruled. In his briefs to this Court, Defendant now asserts that the prosecutor’s statement was objectionable because it invited the jurors to put themselves in the victims’ place. Because Defendant did not advance this argument below, it is only reviewable for fundamental error. See State v. Harrison,
{59} The third and final statement, by which the prosecutor requested that the jurors “give [this case] the same consideration
{60} In summary, we conclude that none of the challenged statements deprived Defendant of a fair trial, individually or collectively.
CONCLUSION
{61} For the foregoing reasons, we reject Defendant’s assertions of error. Defendant’s convictions are therefore affirmed.
{62} IT IS SO ORDERED.