{1} Dеfendant was convicted of four counts of first degree criminal sexual penetration of a minor under the age of thirteen (CSPM) in violation of NMSA 1978, Section 30-9-11(0(1) (2001) (amended 2007), and two counts of third degree criminal sexual contact of a minor under the age of thirteen (CSCM) in violation of NMSA 1978, Section 30-9-13(A)(l) (2001) (amended 2003). Defendant appeals, arguing (1) that his right to due process was violated by the lengthy charging period and by the fact that the charges were not sufficiently specific to provide him with adequate notice and an opportunity to defend himself, (2) that the district court erred in admitting certain hearsay testimony, (3) that the district court improperly instructed the jury on several matters, and (4) that prosecutorial misconduct deprived him of a fair trial. We conclude that the lack of specific factual information in the indictment and the evidence introduced at trial constitute a violation of Defendant’s right to due process as to two of the convictions of CSPM. Therefore, we reverse Defendant’s convictions for one count of vaginal CSPM and one count of anal CSPM. We conclude that no other reversible errors occurred at trial, and we affirm Defendant’s remaining convictions.
BACKGROUND
{2} After Defendant’s seven-year-old niece, L.T., told family members that Defendant had molested her, Defendant was charged with two counts of first degree CSPM for vaginal penetration, two counts of first degree CSPM for anal penetration, one count of CSCM for touching L.T.’s genitalia, and one count of CSCM for forcing L.T. to touch his genitalia.
{3} Defendant was alleged to have had regular access to L.T. when she had overnight visits with her father, who is Defendant’s brother, and when she had weekly visits at her paternal grandparents’ home. Originally, the charging period for each count of the indictment began on January 24, 2002 and ran through December 31, 2004. The charges were based on L.T.’s statements that Defendant had vaginal intercourse with her “lots of times,” had anal intercourse with her “about [three] times,” touched her genitalia with his hand “about [ten] times,” and made her touch his penis “about [four] times.” Defendant moved for a bill of particulars, and the State narrowed the time frame to the period beginning September 30, 2002 and ending December 26, 2004 — a period of twenty-seven months. Despite the more limited time frame, Defendant moved to dismiss, arguing that both the length of the charging period and the lack of factual specificity in the charges violated his right to due process. Eventually, after the State conducted further interviews with L.T., the district court issued an order clarifying that the factual bases for the charges were four specific incidents that the parties referred to as the “Hooter’s incident,” the “Rash incident,” the “Mouth-Covering incident,” and the “Last Time or
{4} At trial, L.T. described the Hooter’s incident as an act of CSCM based on her testimony that Defendant “touched” her “private parts” with his “whole hand.” L.T. testified that the Mouth-Covering incident involved Defendant “toueh[ing]” her. L.T. did not testify about a specific incident that gave her a rash, although she did testify that Defendant’s acts of touching her with his hand, touching her with his penis, and rubbing his penis against her butt generally made her feel like she either had or might get a rash. As to the Christmastime incident, L.T.’s testimony indicated that Defendant did something to her that she did not like, but she did not specify what the act was. L.T. did not indicate that any of the four specific incidents began with an act of CSCM and progressed to an act of CSPM, as had been previously posited by the State. Therefore, there was no evidence at trial that any of the four specific incidents designated in the district court’s order involved an act of CSPM.
{5} The prosecution did elicit testimony at trial from L.T. that Defendant engaged in a non-specific course of conduct involving both vaginal and anal CSPM: L.T. testified that Defendant would “touch” her “private” with his “private” and that when he did this “[i]t just keeps going up and up and it hurts real bad” and that this happened “[l]ots of times.” L.T. also stated that “sometimes [Defendant] would stick [his private] inside ... my butt” and that he did this “more than one time.” Several other witnesses testified about statements L.T. had made to them regarding the abuse, but this testimony did not add any information about the specific incidents of abuse.
{6} The jury found Defendant guilty on all six charges. Defendant appeals.
DISCUSSION
The Length of the Charging Period in the Indictment and the Bill of Particulars
{7} Defendant argues that the extended charging period violated his right to due process. We review this legal argument de novo. See N.M. Bd. of Veterinary Med. v. Riegger,
{8} In State v. Baldonado,
1. The age and intelligence of the victim and other witnesses, and their ability to particularize the date and time of the alleged offense;
2. The surrounding circumstances; including whether a continuing course of conduct is alleged, as opposed to a relatively few, discrete or isolated events;
3. The extent to which [the] defendant had frequent, unsupervised access to the victim;
4. The nature of the offense, including whether it is likely to occur at a specific time or is likely to have been discovered immediately;
5. The length of the alleged period of time in relation to the number of individual criminal acts alleged;
6. The length of time asserted in the indictment;
7. The passage of time between the period alleged for the crime and the time the abuse was asserted and/or the time [the] defendant was arrested and/or indicted;
8. The extent and thoroughness of the [s]tate’s efforts to narrow the time frame; and
9. Whether the defendant can assert a plausible alibi defense.
Id. ¶ 27. Although we stated that the two-year charging period in Baldonado “approached] the outer edges of constitutional propriety,” we declined to hold that it was too long as a matter of law because “[i]t is possible that a two-year period, or larger, may be thе most narrow time frame the prosecutor can be required to muster in an appropriate case.” Id. ¶ 23.
{9} In this case, the charging period was originally thirty-five months. After Defendant moved for a bill of particulars, the district court directed the State to attempt to narrow the charging period. After meeting with L.T. and her mother, the State narrowed the charging period to approximately twenty-seven months. The State made additional efforts to narrow the time frame even further. The State amended the bill of particulars to add details about the first time and the last time the abuse occurred but ultimately concluded that “[t]he State believes L.T. was molested on a continuous basis between the time frame of September 30, 2002 through December 20, 2004. Even though the State can narrow down the overnight visits [that L.T. had with her father], the State believes several acts of sexual abuse occurred during the day at her grandparentfs’] home.”
{10} Defendant moved to dismiss pursuant to Baldonado. The district court issued a detailed order denying Defendant’s motion. The district court weighed the reasonableness of the State’s efforts to narrow the charging period against the potential prejudice to Defendant caused by the State’s twenty-seven-month time frame.- In doing so, it focused on most of the Baldonado factors. The district court noted that: (1) the crimes were alleged to have occurred while L.T. was bеtween the ages of five and seven, and although L.T. was apparently of sound intelligence for her age, it was clear from the multiple interviews with L.T. that she did not have the capacity to provide more particular dates or time periods for the alleged incidents; (2) the alleged incidents occurred on a continuous basis and were not just a few isolated events; (3) although the extent to which Defendant had frequent and unsupervised access to L.T. was disputed, it was not disputed that he was often present in the same residence as L.T. during the daytime and overnight; (4) the nature of the charged offenses was such that they did not occur in the presence of other witnesses, and because L.T. suffered no physical injury in this case, the alleged offenses were not of the sort that was likely to be discovered immediately; and (5) according to L.T.’s statements that Defendant had vaginal intercourse with her “lots of times,” had anal intercourse with her “about three times,” touched her genitalia with his hand “about ten times,” and made her touch his penis “about four times,” L.T. was abused a total of seventeen times. If each incident of abuse occurred at separate times, then the events occurred approximately once every 1.64 months. If the events occurred in combination, then they occurred less frequently.
{11} The district court noted other Baldonado factors as well. The length of time in the indictment was originally three years but had been narrowed to approximately twenty-eight months. The State engaged in a thorough attempt to narrow the time frame, and it appeared that L.T. was unable to identify more specific dates or otherwise further reduce the charging period. There were no other available means by which the State could obtain information about when the events occurred. Defendant’s claim of prejudice was based on his proposed alibi defense, but his evidence of an alibi — such as bank records, cell phone records, employment records, and vacation records — would all require extremely narrow time frames such as specific dates in order to be effective. Given L.T.’s limited capabilities and the evidence about how often Defendant might have had access to L.T., the State’s evidence did not lend
{12} Although the revised charging period was lengthy, we agree with the district court’s conclusion that the State demonstrated it had done everything it reasonably could have done to narrow the charging period and that Defendant was not unduly prejudiced. See State v. Ervin,
{13} Defendant also claims that the State should have limited the charging period to the specific visitation days scheduled at L.T.’s father’s home and at her paternal grandparents’ home. Although we note that the State did provide guidance in an attachment to its bill of particulars as to when some of the visits occurred between September 30, 2004 and December 26, 2004, this information was obtained from L.T.’s mother, and she did not have records of other visitation dates. In light of the fact that the abuse was alleged to have occurred on an ongoing basis for more than two years prior to these specific dates, the State would not be required to limit the charging period to these specific dates. In addition, witnesses testified that both the overnight weekend visits with L.T.’s father and the weekday visits with her grandparents did not occur on a fixed schedule but changed regularly. Therefore, it appears that the State could not have reconstructed the visitation schedule to arrive at more particular dates within the charging period.
{14} Defendant asserts that the prejudice he suffered as a result of the lengthy charging period was “real and substantial.” Applying three of the Baldonado factors, he argues that the charging period is facially unreasonable, that the charges were for a few discrete incidents within that lengthy period, and that if the period had been shorter he could have used his employment records, school records, bank records, and phone records to provide an alibi defense. See Baldonado,
{15} First, Defendant’s argument that the charges arise from a few discrete incidents is not accurate or persuasive. The district court’s order specifically stated that the two CSCM charges were not for specific incidents but were for a continuing pattern of conduct. As we discuss later in this opinion, the evidence submitted regarding the CSPM charges also described an ongoing pattern of conduct, not a few discrete incidents. Therefore,
{16} Second, Defendant’s desire to present an alibi defense is one of the factors to consider. Id. ¶ 29. The State is not required to “rely only on evidence that lends itself to an alibi defense.” Id. (internal quotation marks and citation omitted). Furthermore, Defendant is unable to adequately demonstrаte on appeal that he was deprived of the ability to present an alibi defense. Defendant asserts that he possessed relevant records covering the entire charging period. However, at trial, he introduced only a sample of such records that he characterized as “representative.” These representative records have not been designated as part of the record for review on appeal. See Rule 12-212 NMRA (governing the designation of exhibits on appeal). Because neither the actual nor the representative records are before us, Defendant is unable to show this Court that he would have been able to establish a plausible alibi defense for any of the time periods he was around L.T. Without these records, we cannot review the district court’s determination that Defendant was not prejudiced by the failure to shorten the charging period to fit his alibi defense. See Baldonado,
{17} While one of the Baldonado factors for measuring prejudice is the length of the charging period,
{18} In this case, the State’s efforts at narrowing the charging period were prompted by the seriousness with which the district court took its responsibility to diligently protect the due process rights of Defendаnt. See Ervin,
The Lack of Factual Specificity in the Charges and in the Evidence at Trial
{19} Defendant argues that his due process rights were also violated because of the “State’s failure to allege sufficient facts to provide [Defendant] with notice as to [the] specific acts [with which] he was charged.” After the State filed its bill of particulars and after the district court required the State to make additional efforts to link the charges to specific events, the district court determined that the four counts of CSPM were intended
{20} Defendant relies primarily on State v. Dominguez,
{21} In Dominguez, this Court affirmed the dismissal of those indistinguishable counts of an indictment that were based on the victim’s statements that the same type of abusive behaviors were repeated over a period of time. Id. ¶¶ 7, 10-11. The state was able to proceed with prosecution of those acts for which it was able to provide a factually distinct basis. Id. ¶¶ 10-11. As to the five dismissed charges, this Court held that it would have violated the defendant’s due process rights to have to defend against the five carbon-copy counts when the state was unable to provide facts that would distinguish any one of the incidents from another. Id. Relying on the Sixth Circuit Court of Appeals reasoning in Valentine v. Konteh,
{22} In the present case, Defendant’s Dominguez argument is somewhat misapplied. In Dominguez, all of the charges were exactly the same in that each charged an act of CSCM by the same means, on the same victim, and within the same date range. See id. ¶2. Here, all of the charges in the indictment were for acts that occurred with the same victim and within the same date range. However, the remaining characteristics were different. It is clear that the one count of CSCM for Defendant’s act of touching L.T.’s genitalia is different from the second count of CSCM that is based on Defendant
{23} The State argues that the two counts of vaginal CSPM are in fact distinguishable because Count 1 for vaginal CSPM was intended to be a single count for a pattern of conduct of penetrating L.T.’s vulva and Count 2 for vaginal CSPM was intended to be a single count for a pattern of penetrating L.T.’s vaginal canal. This argument is not supported by the indictments, the evidence at trial, or by the record. In particular, such a distinction cannot be made where the jury instructions were the same for both Count 1 and Count 2. These instructions permitted the jury to find Defendant guilty if he “caused the insertion to any extent, of a penis into the vagina and/or vulva” of L.T.
{24} We agree with Defendant that, as in Dominguez, the two undifferentiated counts of vaginal CSPM and the two undifferentiated counts of anal CSPM ultimately violated Defendant’s right to due process. Although the State factually alleged that these CSPM charges arose out of one of the four distinguishable incidents, the evidence at trial did not support this allegation. At trial, L.T. only described a pattern of vaginal CSPM and a pattern of anal CSPM and then said that each happened lots of times, without relating any act to a specific incident. As a result, due process will only permit Defendant to be convicted of a single count of vaginal CSPM and a single count of anal CSPM for each pattern of conduct. See Valentine,
{25} This case is also different from Dominguez because in Dominguez, the district court dismissed several of the charges prior to trial due to the state’s inability to differentiate the indistinguishable charges in its bill of particulars. Here, the State argues that any insufficiency in the indictment was cured by the district court’s later order that the counts were supported by the four particular incidents and the fact that the district court indicated that each incident included at least one act of CSCM and one act of CSPM. However, at trial, the testimony established that only acts of CSCM occurred at the Hooter’s incident and the Mouth-Covering incident. The State did not elicit testimony specifying what happened during the Christmastime incident or describing a particular occurrence that could be identified as the Rash incident. Therefore, any adequate notice of the four CSPM charges that may have been satisfied by the State’s bill of particulars and the district court’s order was undermined by the evidence at trial. The State’s evidence was only sufficient to prove one undifferentiated count of vaginal CSPM and one undifferentiated count of anal CSPM. Ultimately, it is the evidence admitted at trial that must be reevaluated by the district court to determine whether a criminal charge is sufficient to satisfy the due process requirements under Dominguez.
{26} Finally, Defendant asserts that Foster requires reversal of all six of his convictions. In Foster, the defendant was indicted
{27} As with Defendant’s Dominguez argument, Defendant’s contention under Foster is somewhat unclear. Defendant asserts generally that he is entitled to sufficient notice of the crimes charged in order to prepare a defense. Like the defendant in Foster, Defendant asserts that he “now sits in prison, entirely unable to determine for which acts he has been convicted,” and that he would not be able to “plead prior jeopardy in a subsequent trial.” See id. at 157-58,
{28} Defendant was on notice that the two acts of CSCM were charged as continuing patterns of conduct based on multiple events within the specific charging period, and that the four acts of CSPM were based on multiple events within the same charging period. See State v. Salazar,
{29} Furthermore, since Foster, we have repeatedly affirmed the principle that multiple incidents may be charged as a single count. See, e.g., Altgilbers,
{30} This Court has held that when the state chooses to use a broad charging period, it will not be able to use any incidents of the same type of acts as those charged within that charging period as the basis for a subsequent prosecution. State v. Martinez,
The Nurse’s Hearsay Testimony About the Child’s Statements
{31} At trial, Rosella Vialpando, a nurse who examined L.T., testified about statements L.T. had made to her. Nurse Vialpando testified that L.T. told her that Defendant touched her more than one time with his private, that he touched her butt with his private, and that he made her touch his private with her hands. The district court determined that the statements were admissible under Rule 11-803(D) NMRA as an exception to the hearsay rule. Relying on State v. Ortega,
{32} We must first determine whether the right for any reason doctrine applies to Nurse Vialpando’s statements. The district court did not accept the State’s argument that Nurse Vialpando’s statements were not hearsay. This Court may affirm on a basis not relied upon by the district court if doing so would be fair to the appellant. State v. Gallegos,
{33} Rule 11-803(D) provides that “[statements made for purposes of medical diagnosis or treatment and describing medical history,
{34} In Mendez, as in Ortega, this Court relied heavily on facts indicating that the рurpose of a SANE examination was to collect evidence for use in prosecuting the alleged perpetrator. We noted that the SANE examination occurred after the child had already been taken to a pediatric nurse for an examination, that a police officer was present for the interview portion of the SANE examination, that the victim’s mother was presented with a form authorizing the release of the results of the examination to the state police, and that the victim’s mother signed a form in which she acknowledged that a SANE examination is not a routine medical examination and that the SANE nurse could not be held responsible for identifying, diagnosing, or treating new or existing medical problems. Mendez,
{35} The present case is distinguishable from the factual circumstances in Mendez. The evidence does not suggest that the examination was a SANE examination performed primarily for law enforcement purposes. Nurse Vialpando testified that she is a family nurse practitioner and that as such she does “pretty much what a primary care doctor does.” She stated that she is trained to assess, diagnose, and treat acute and chronic illnesses. Nurse Vialpando stated that she works at a pediatric specialty clinic at the University of New Mexico called Para Los Niños and that the clinic sees children and adolescents who hаve been brought in because of a concern about sexual abuse. She stated that in this case, L.T.’s mother brought L.T. in for the examination. Nurse Vialpando talked to L.T. about why she was there, listened to L.T.’s description of what happened, and then performed an examination of L.T.’s genital and anal areas.
{36} In this case, unlike the circumstances in Mendez, there was no evidence that L.T. had already had a pediatric examination pri- or to her examination at Para Los Niños. Unlike Mendez, there was no testimony that law enforcement instigated, was present for, or was otherwise involved with L.T.’s examination. Although Nurse Vialpando stated that she was obligated to report suspicion of sexual or physical abuse to the state Children, Youth and Families Department (CYFD), she indicated that this is a mandatory obligation imposed by law upon all teachers, doctors, nurses, and others who work with children. See NMSA 1978, § 32A-4-3(A) (2005) (placing a duty on “[e]very person ... who knows or has a reasonable suspicion that a child is an abused or neglected child [to] report the matter immediately” to the police, CYFD, or other authorities). Nurse Vialpando testified that when she teaches at a nurse practitioner program, she informs students “how to access law enforcement.” A comment indicating that a health care provider might fulfill her statutory duty to report evidence of a crime against a сhild to the police does not alone transform that health care practitioner’s medical examination into a forensic investigation. Defendant points out that Nurse Vialpando testified that when a person has reported being sexually abused within the prior seventy-two hours, Nurse Vialpando will perform a rape kit to swab for physical evidence and that this kit is then sent to law enforcement. While we agree with Defendant that providing this evidence to the police is not part of either the diagnosis or treatment of any medical disorder, there was no evidence in this case that Nurse Vialpando performed a rape kit or that she provided other evidence to the police. We are unwilling to conclude that because Nurse Vialpando sometimes provides
The Judge’s Statement in Response to a Juror’s Question About Facts Not in Evidence
{37} Prior to trial, Defendant filed a motion seeking a psychological evaluation of L.T. The district court denied Defendant’s motion. At trial, Defendant presented expert testimony about false reporting of child sexual abuse and about the need to psychologically evaluate a child who makes a claim of abuse in order to minimize the possibility of such false reporting. A juror submitted a written question to the court, asking whether L.T. had ever been psychologically evaluated. The district court informed the jury that “since June 6, 2006, any issues related to testing and/or evaluations if any have been subject to the jurisdiction of the [cjourt.” The court instructed the jury “not to speculate regarding the existence or nonexistence of testing and/or evaluations.” Defendant contends that his convictions should be reversed because the district court’s statement that the issues related to evaluation and testing were subject to the court’s jurisdiction constituted an improper instruction to the jury.
{38} Although Defendant relies on authority stating that reversal is required when a district court incorrectly instructs the jury on the elements of an offense, see State v. Ellis,
{39} Defendant’s second argument asserts that the district court’s response to the jury question and accompanying instruction implied that the court had determined that L.T. did not need to be psychologically evaluated. We disagree. In context, the district court simply instructed the jurors that they should not speculate about whether any еvaluation had or had not been performed. This instruction informed jurors that they should not speculate since there was no evidence presented one way or the other. As this is a correct statement of the law, see UJI 14-101 NMRA (stating that jurors “must decide the case solely upon the evidence received in court”), we hold that the district court did not err in so instructing the jury. See State v. Lucero,
The Jury
{40} After the close of evidence, Defendant submitted a proposed jury instruetion on the elements of CSPM. For the two counts of anal CSPM, Defendant’s proposed instruction stated that the State must prove beyond a reasonable doubt that Defendant caused L.T. to engage in “anal intercourse,” in addition to the other elements of CSPM. For the two counts of vaginal CSPM, Defendant’s proposed instruction stated that the State must prove beyond a reasonable doubt that Defendant caused L.T. to engage in “sexual intercourse,” in addition to the other elements of CSPM. The district court rejected Defendant’s proposed instructions and instead instructed the jury that as to anal CSPM, the State must prove beyond a reasonable doubt that Defendant “caused the insertion to any extent, of a penis into the anus” of L.T. As to vaginal CSPM, the district court instructed the jury that the State must prove beyond a reasonable doubt that Defendant “caused the insertion to any extent, of a penis into the vagina and/or vulva” of L.T. Defendant argues that these instructions were reversible error because they did not follow New Mexico’s Uniform Jury Instructions (UJIs) and because the instructions on vaginal CSPM permitted the jury to convict him for acts that only constituted vaginal CSCM. We review the validity of jury instructions de novo. State v. McClennen,
{41} The general use note to the criminal UJIs provides that “when a uniform instruction is provided for the elements of a crime, ... the uniform instruction must be used without substantive modification or substitution.” UJI-Criminal General Use Note NMRA. It also provides that when there are alternative instructions, “only the alternative supported by the evidence in the case may be used.” Id. Defendant contends that the instructions given by the district court were erroneous because the district court did not use the correct version of the instruction where two alternatives were provided in UJI 14-957 NMRA. Therefore, we must determine whether it was error under the general use note to the criminal UJIs to give the “caused the insertion, to any extent, of [an object]” alternative when the “sexual intercourse” and “anal intercourse” alternatives were more narrowly tailored to the charges in this ease. The UJIs at issue are intended to reflect the law criminalizing sexual penetration of a minor as provided in Section 30-9-11. Therefore, we look to that statute to inform our determination of which of UJI 14-957’s two alternatives should have been given. See State v. Marshall,
{42} The first alternative instruction for the conduct that constitutes CSPM in UJI 14-957 is that the defendant “caused - (name of victim) to engage in -.” Id. (footnotes omitted). The notes to the instruction indicate that the second blank is to be filled in with one of the following acts: “ ‘sexual intercourse’, ‘anal intercourse’, ‘cunnilingus’ or ‘fellatio.’ ” Id. The notes in UJI 14-957 indicate that the applicable definition of the relevant act from UJI 14-982 NMRA must be given after the instruction. In UJI 14-982, the definition of “[s]exual intercourse” is “the penetration of the vagina, the female sex organ, by the penis, the male sex organ, to any extent.” The definition of “[a]nal intercourse” is “the penetration of the anus by the penis to any extent.” Id.
{43} The second alternative instruction for the conduct that constitutes CSPM in UJI 14-957 is that the defendant “caused the insertion, to any extent, of a --into the •-of-(name of victim).” (Footnotes omitted.) The notes indicate that the first blank should be filled in with “the object used.” Id. The second blank should be filled in with either “vagina,” “penis,” or “anus,” and the applicable definition from UJI 14-981 NMRA must be given after the instruction. UJI 14-957. In UJI 14-981, the definition of “vagina” is “the canal or passage for sexual intercourse in the female, extending from the vulva to the neсk of the uterus.” The definition of “anus” is “the opening to the rectum.” Id.
{44} We agree with Defendant that the district court erred in submitting the second alternative “insertion, to any extent” instructions to the jury for the four counts of CSPM in this case. The use notes to UJI 14-957’s
{45} We do not agree with Defendant that the district court’s error in selecting from UJI 14-957’s two alternatives requires automatic reversal. This Court reviews jury instructions as a whole to determine whether they provide a correct statement of the law. See State v. Laney,
{46} The instruction that was given on anal intercourse stated that the jury should find Defendant guilty if the State proved beyond a reasonable doubt that Defendant “caused the insertion to any extent, of a penis into the anus of’ L.T. As this instruction conveys the same definition and meaning in the instruction that should have been given — that Defendant caused L.T. to engage in anal intercourse and that anal intercourse is defined as penetration of the anus by the penis to any extent — -we conclude that this instruction accurately presented the applicable law. See UJI 14-957; UJI 14-982. Therefore, we hold that any error in the alternate instruction given on anal intercourse was not reversible error.
{47} We also conclude that the erroneous instructions on vaginal CSPM did not constitute reversible error. Those instructions stated that the jury should find Defendant guilty of CSPM if it determined that Defendant “caused the insertion to any extent, of a penis into the vagina and/or vulva” of L.T. Defendant argues that permitting the jury to convict him for CSPM for penetration of the vulva was reversible error because the vulva includes the external parts of the female genitalia and merely penetrating into these external parts, rather than into the vaginal canal itself, constitutes CSCM rather than CSPM. Defendant’s argument relies on the assertion that the term “sexual intercourse” in Section 30-9-ll(A) does not include penetration of the vulva, and he contends that even if a penis were an “object” under the terms of the statute, statutory penetration of the “genital ... opening[ ] of another” includes only the vaginal canal and not the vulva. The State, on the other hand,
{48} Although our appellate courts have indirectly recognized that penetration of the vulva is a basis for a CSPM conviction, the State has not pointed us to any New Mexico authority expressly deciding that penetration of a vulva with a penis constitutes “sexual intercourse” for the purposes of CSPM as set forth under Section 30-9-ll(A). Cf. State v. Brown,
{49} Other state courts have also held that references to “sexual intercourse” or “vaginal intercourse” in their CSP statutes are intended to include penetration of the vulva, based on the conclusion that their statutes were intended to reflect the common law crime of rape. See, e.g., State v. Albert,
{50} We note that our interpretation of the term “sexual intercourse” is consistent with the other related provisions in Section 30-9-11(A). See Smith v. Ariz. Pub. Serv. Co.,
{51} In light of the historical recognition defining the common law crime of rape and a proper construction of all of the terms of Section 30-9-ll(A), we determine that penetration of the vulva constitutes “sexual intercourse” under the New Mexico statute. The instruction given by the district court accurately reflected the statutory law by stating that the jury could find that Defendant committed CSPM if his penis penetrated either L.T.’s vulva or vagina to any extent. Any error in the mistaken alternative instruction given by the district court was harmless and did not constitute reversible error.
{52} We note, however, that our UJIs do not clearly state that penetration of the vulva constitutes CSP. UJI 14-982 provides that “[sjexual intercourse means the penetration of the vagina, the female sex organ, by the penis, the male sex organ, to any extent.” The committee commentary states that the definition of sexual intercourse is the legal definition of that element of rape. Id. By referring to the common-law crime of rape, the commentary suggests that the word “vagina” is meant in the broader sense of the female genitalia as opposed to just the vaginal canal. UJI 14-981 defines “vagina” specifically as the “canal or passage for sexuаl intercourse in the female, extending from the vulva to the neck of the uterus” and goes on to separately define the “vulva” as “the external parts of the female organ of sexual intercourse” including the “major and minor lips, the clitoris and the opening of the vagina.” The language that the vagina extends “from the vulva” could be read two ways. It could be interpreted to mean that the vagina extends from the beginning of the vulva, thereby including the vulva within the definition of “vagina.” Or, it could be interpreted to mean that the vagina begins where the vulva ends, thereby excluding the vulva and, as such, defining “vagina” as the lower vaginal canal to the neck of the uterus. This second reading of UJI 14-982 in conjunction with UJI 14-981 would suggest that the uniform jury instructions are in conflict with the statutory definition of sexual intercourse, since they suggest that sexual intercourse requires penetration of the vaginal canal and is not achieved by penetration of the vulva alone. As a service to the bar, we believe that UJI 14-982 would accurately reflect the law if it is modified to provide that “sexual intercourse means penetration of the vulva or vagina, the female sex organ, by the penis, the male sex organ, to any extent.” Cf. State v. Mantelli,
The Jury Instructions on Unanimity
{53} Defendant contends that the district court’s instruction on unanimity was insufficient to actually ensure that the jury was unanimous. Defendant cites no legal authority in support of this argument in his brief in chief, and we therefore decline to address this argument. See Rule 12-213(A)(4) NMRA (requiring the brief in chief to contain “an argument which, with respect to each issue presented, shall contain a statement of the applicable standard of review, [and] the contentions of the appellant ... with citations to authorities”); In re Adoption of Doe,
The Prosecutor’s Conduct
{54} At trial, the prosecutor made several statements that Defendant contends
{55} On cross-examination of Defendant’s mother, in an attempt to establish that she was biased in Defendant’s favor, the prosecutor asked whether Defendant’s mother and father were paying his attorney’s fees. Defendant objected on grounds of relevance and moved for a mistrial. The district court denied the request for a mistrial and, in the presence of the jury, directed the prosecutor to withdraw the question. The prosecutor did so, and asked whether Defendant’s mother would be willing to help her son in a time of need. Defendant asserts that the question improperly commented on his invocation of his constitutional right to counsel and that the question “implied to the jury that [Defendant] had obtained high cost representation necessitated by his guilt.”
{56} We disagree. In context, it is clear that the question was intended to suggest bias and that the question was not one involving post-arrest conduct that might give rise to an inference that Defendant believed he was guilty because he invoked his right to counsel. Cf. id. ¶ 32 (noting that when a defendant invokes his right to counsel when questioned by the police, testimony about the invocаtion of that right may deprive a defendant of a fair trial in the same manner as a comment on a defendant’s invocation of his right to remain silent). The district court did not abuse its discretion in requiring the prosecutor to withdraw the question and ask the witness in another manner about any bias she may have for her son.
{57} Defendant also asserts that the prosecutor improperly attacked the integrity of defense counsel when she implied that defense counsel was concealing evidence. The prosecutor prefaced a question to Defendant’s expert with “[i]sn’t it true you told me before when I had a chance to interview you for five minutes in the hall a couple days ago.” Defendant objected, and the district court sustained the objection. Later, when moving Defendant’s school records into evidence, the prosecutor stated, “They’re from [defense counsel]. [The jury] can decide for themselves if they’re complete or not.” Defendant objected, not to the admission of the documents, but to the prosecutor’s comment, which he contended shifted the burden of proof by suggesting that Defendant was required to provide complete records to establish his innocence. The district court did not rule on the objection and admitted the documents into evidence. Defendant did not ask that the jury be instructed about the burden of proof at that time. The district court did nоt abuse its discretion by sustaining Defendant’s objection to the prosecutor’s statement about her interview with Defendant’s expert. In addition, the district court was not obligated to provide relief that Defendant did not seek in response to the prosecutor’s comment about interviewing Defendant’s expert or about the school records.
{58} Defendant asserts that two other statements by the prosecutor improperly appealed to the passions of the jury. The first was during cross-examination of L.T.’s father. The State asked whether L.T.’s father remembered that during a pretrial interview he failed to tell the State that he knew of Defendant’s penis piercing. L.T.’s father responded, “What I remember the most about this interview is that you were a witch ... [y]ou acted like I was the one on trial.” The State began to respond by saying, “I’m just trying to defend your daughter[.]” Defendant objected, stating, “Your honor ... it’s argument.” The district court instructed L.T.’s father that he should just answer the questions asked, and not make unsolicited statements. Defendant made no further objeetion.
{59} The second statement that Defendant argues improperly appealed to the passions of the jury was when the State asked Defendant a question that began with the hypothetical: “Assuming for a minute you did sexually abuse [L.T.].” Defendant objected, and the district court sustained the objection. The district court did not abuse its discretion in sustaining the objection, and Defendant sought no other relief. Again, we cannot conclude that this partial question, which was properly rejected by the district court, deprived Defendant of a fair trial.
{60} Although we conclude that none of these statements by the prosecutor alone warrants reversal, Defendant contends that the cumulative effect of the prosecutor’s conduct was to deprive him of a fair trial. Defendant relies on State v. Ashley,
CONCLUSION
{61} We hold that the two factually indistinguishable counts of vaginal CSPM and the two factually indistinguishable counts of anal CSPM violated Defendant’s constitutional right to due process. Accordingly, we reverse Defendant’s conviction for one count of vaginal CSPM and one count of anal CSPM. We remand to the district court with instructions to dismiss these two convictions and to amend Defendant’s judgment and sentence to accurately reflect the dismissal of these two counts of CSPM. As we are not persuaded by Defendant’s remaining claims of error, his remaining convictions are affirmed.
{62} IT IS SO ORDERED.