{ "id": 12167922, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. KEVIN PITNER, Defendant-Appellant", "name_abbreviation": "State v. Pitner", "decision_date": "2016-09-08", "docket_number": "S-1-SC-36109; Docket No. 33,807", "first_page": "715", "last_page": "720", "citations": [ { "type": "official", "cite": "2016-NMCA-102" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "370 P.3d 472", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCERT-012", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "363 P.3d 1259", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2016-NMCA-006", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 12166716 ], "pin_cites": [ { "page": "\u00b6\u00b6 19, 23" } ], "opinion_index": 0, "case_paths": [ "/nm-app/9/0194-01" ] }, { "cite": "2009-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0719-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "1985-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 17-24" } ], "opinion_index": 0 }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "1967-NMSC-151", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "267 P.3d 820", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2011-NMCA-121", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188007 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0074-01" ] }, { "cite": "2009-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245720 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0351-01" ] }, { "cite": "2010-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246466 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0820-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "1999-NMCA-146", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106534 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0382-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "1988-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "110 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716997 ], "weight": 3, "pin_cites": [ { "parenthetical": "alteration omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0237-01" ] }, { "cite": "1990-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "287 P.3d 344", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-092", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190025 ], "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0532-01" ] }, { "cite": "2009-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242962 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0202-01" ] }, { "cite": "2008-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002169 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0305-01" ] } ], "analysis": { "cardinality": 799, "char_count": 15362, "ocr_confidence": 0.783, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2468369777543015 }, "sha256": "235029842542ed564d9a445b17d46b2335dc88c9ab6d29fa5f13f9fd1d6467cb", "simhash": "1:c8fc296222a04af1", "word_count": 2478 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Ross C. Sanchez, District Judge", "TIMOTHY L. GARCIA, Judge", "RODERICK T. KENNEDY, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. KEVIN PITNER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\n{1} Defendant appeals his conviction for criminal sexual contact of a minor (CSCM), in violation ofNMSA 1978, Section 30-9-13(A) (2003). On appeal, Defendant argues that: (1) the State failed to present sufficient evidence to sustain the verdict; (2) the jury was improperly instructed; and (3) Defendant received ineffective assistance of counsel at trial. We affirm Defendant\u2019s conviction.\nI. BACKGROUND\n{2} A jury found Defendant guilty of one count of second degree CSCM after Victim, the nine-year-old cousin of Defendant\u2019s girlfriend, accused him of unzipping her \u201cfootie\u201dpajamas and using his fingers to rub the skin below her underwear and \u201ca little above [her] privates.\u201d Victim testified that on the night of the incident, she was staying overnight at her aunt\u2019s house, where Defendant was also staying. She stated that she and her nine-year-old, male cousin were watching a movie in the top bunk of a bunk bed when they fell asleep. She described that she was wearing \u201cfootie\u201d paj amas that covered her \u201cfeet[] to [her] neck.\u201d\n{3} Victim testified that in the middle of the night, due to a bad dream, she moved from the top bunk to the lower bunk to sleep with her female cousin, Defendant\u2019s girlfriend. At the time Victim moved to the lower bunk, Defendant was not sleeping in the lower bunk with her cousin. But when Victim awoke in the morning, her \u201cpajamas were unzipped and [Defendant\u2019s] hand was in [her] pants.\u201d Victim stated that when she went to bed, she zipped her pajamas \u201c[a]ll the way to [her] neck\u201d and she did not unzip them during the night; however, when she awoke, her pajamas were unzipped to \u201cabout [her] waist[]line.\u201d She stated that Defendant, who was laying on the other side of Victim\u2019s female cousin, positioned his hand \u201c[i]n [her] underwear[J\u201d and when she looked at him, \u201che pulled his hand away . . . and he acted like he was asleep[,]\u201d closing his eyes \u201cright away.\u201d She described that while Defendant\u2019s hand was \u201c[n]ot very far\u201d into her underwear, Defendant \u201cwas . . . touching [the] skin. . . [u]nderneath [her] underwear\u201d in a \u201crubbing\u201d motion. On cross-examination, Victim clarified that Defendant\u2019s hand did not touch her \u201cprivates,\u201d birt that \u201c[i]t was above \u2014 a little above [her] privates.\u201d\n{4} Victim testified that she then \u201cgot up and [she] went to go and tell [her] aunt.\u201d While she told her aunt that Defendant was unzipping her pajamas, she chose not to tell her aunt that Defendant put his hand in her underwear as she was embarrassed and scared. Soon thereafter, her aunt called her mother, and her mother \u201crushed over to the house\u201d to pick her up. It was not until later, when she arrived at her own home that she told her mom Defendant put his hand in her underwear.\n{5} Following the trial, the jury was provided, in relevantpart, with the instruction containing the elements of CSCM and the definitions of \u201cmons veneris,\u201d \u201cvulva,\u201d and \u201cvagina.\u201d The jury was not provided with an instruction defining \u201cgroin.\u201d During closing arguments, the State informed the jury that \u201c[t]here is no legal definition for the groin area.\u201d The State posed to the jury: \u201c[i]s there a way for a 21-year old man to have his hands in [her] underpants without touching the groin area? What do you consider the groin? . . . [D]oes the groin area extend past the underpants? If it does, we have ourselves an element[] that is met.\u201d Defendant did not object to the State\u2019s comments in closing arguments or to the absence of a definition for \u201cgroin\u201d in the jury instructions. The jury convicted Defendant of CSCM. Defendant appeals this conviction.\nII. DISCUSSION\na. There Was Sufficient Evidence Presented to Sustain Defendant\u2019s Conviction\n{6} Defendant contends that there was insufficient evidence presented at trial to sustain his conviction for CSCM. The standard of review for a sufficiency of the evidence claim requires the appellate court to evaluate whether substantial evidence exists to support the verdict. See State v. Rudolfo, 2008-NMSC-036, \u00b6 29, 144 N.M. 305, 187 P.3d 170. This standard requires that \u201c[w]e review the evidence introduced at trial to determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Gipson, 2009-NMCA-053, \u00b6 4, 146 N.M. 202, 207 P.3d 1179 (internal quotation marks and citation omitted). \u201cThis Court evaluates the sufficiency of the evidence in a criminal case by viewing the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all permissible inferences in favor of upholding the conviction, and disregarding all evidence and inferences to the contrary.\u201d State v. Trujillo, 2012-NMCA-092, \u00b6 5, 287 P.3d 344. \u201cWe do not reweigh the evidence or substitute our judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.\u201d Gipson, 2009-NMCA-053, \u00b6 4.\n{7} CSCM consists of \u201cthe unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one\u2019s intimate parts.\u201d Section 30-9-13(A). The statute defines \u201c \u2018intimate parts\u2019 \u201d as \u201cthe primary genital area, groin, buttocks, anus or breast.\u201d Id. In order for the State to prove CSCM in this case, it was required to show, in relevant part, beyond a reasonable doubt that Defendant \u201ctouched or applied force to the unclothed [vagina, vulva, and/or groin area] of\u2019 Victim. UJI 14-925 NMRA. The jury here was instructed accordingly. Both parties recognize, and this Court has previously acknowledged thatthe CSCM statute does not provide a definition of \u201cgroin.\u201d See State v. Benny E., 1990-NMCA-052, \u00b6 18, 110 N.M. 237, 794 P.2d 380 (recognizing that the Legislature has not \u201cspecifically defined\u201d the term \u201cgroin\u201d as it pertains to CSCM).\n{8} Defendant contends that the State failed to prove that Defendant unlawfully touched Victim\u2019s \u201cunclothed vagina, vulva and/or groin\u201d as Victim was \u201csmall for her age\u201d and her underwear were \u201cgranny panties,. .. such that the waist band of the underwear when worn was near the belly button of [a] small girl.\u201d Furthermore, Defendant argues that because Victim explicitly stated that Defendant did not touch \u201cher privates, . . . there is no way the jury could have found that [Defendant] touched [Victim\u2019s] vagina, vulva, mons veneris[,] or groin area.\u201d We disagree.\n{9} Victim testified that while Defendant\u2019s hand was \u201c[n]ot very far\u201d underneath her underwear, it was \u201ca little above [her] privates.\u201d It would be reasonable for a jury to assume that when Victim, a young child, was testifying regarding her \u201cprivates,\u201d she was referring to what is technically termed to be her \u201cvulva\u201d or her \u201cvagina.\u201d Thus, Victim made clear that Defendant did not \u201ctouch[] or appl[y] force to [her] unclothed [vagina or vulva.]\u201d UJI 14-925. Accordingly, we must determine whether there was sufficient evidence presented at trial for a jury to conclude beyond a reasonable doubt that Defendant \u201ctouched or applied force to [Victim\u2019s] unclothed [groin area.]\u201d Id. (alteration omitted).\n{10} As we have stated, the Legislature has not promulgated a definition for the terms \u201cgroin or groin area.\u201d Therefore, we must turn to this Court\u2019s previously identified \u201ccommon meaning of the word \u2014 the fold or depression marking the line between the lower part of the abdomen and the thigh, as well as the region of that line.\u201d Benny E., 1990-NMCA-052, \u00b6 18. The best way to clearly describe and explain the area encompassed by this \u201ccommon meaning\u201d is to imagine an individual sitting in a chair. When a person is sitting, a fold naturally appears delineating \u201cthe lower part of the abdomen and the thigh[.]\u201d Id. As the common meaning encompasses the \u201cregion of that line,\u201d id., if we were to place a straight-edge across the fold that is created, the line of the straight-edge would fall slightly above the mons veneris. The mons veneris is identified as \u201cthe rounded eminence or protuberance at the lowest point of the abdomen of a woman that is ordinarily covered with pubic hair on an adult.\u201d UJI 14-981 NMRA (\u201cThe upper border of the hair on the mons veneris forms a horizontal line.\u201d). Accordingly, when Victim stated that Defendant put his hand beneath her underwear and was rubbing the skin \u201ca little above [her] privates[,]\u201d a jury could have reasonably determined that Defendant \u201ctouched or applied force to [Victim\u2019s] unclothed [groin area.]\u201d UJI 14-925; State v. Sutphin, 1988-NMSC-031, \u00b6 21, 107 N.M. 126, 753 P.2d 1314 (stating that an appellate courts does \u201cnot weigh the evidence and may not substitute its judgment for that of the fact finder so long as there is sufficient evidence to support the verdict\u201d).\n{11} Insofar as Defendant argues that Victim\u2019s underwear may have been too large, such that the waistband was near her bellybutton, and she testified that Defendant\u2019s hand was \u201c[n]ot very far\u201d beneath the waistband of her underwear we first note that Defendant points us to nothing in the record showing how the underwear fit Victim at the time of the assault. See Rule 12-213 (A)(4) NMRA (stating that the appellant is responsible for providing citations to the record relevant to his or her argument). Furthermore, Victim testified that Defendant was rubbing \u201ca little above [her] privates[,]\u201d and \u201c[i]t is the exclusive province of the jury to resolve factual inconsistencies in [that] testimony.\u201d State v. Ortiz-Burciaga, 1999-NMCA-146, \u00b6 22, 128 N.M. 382, 993 P.2d 96 (internal quotation marks and citation omitted). Accordingly, we conclude there was sufficient evidence presented at trial to sustain Defendant\u2019s conviction ofCSCM.\nb. The Jury Was Not Improperly Instructed\n{12} Defendant alleges that the State \u201ccreated an issue when [it] offered a conjectural definition for \u2018groin\u2019 that does not match the commonly accepted definition[.]\u201d As Defendant acknowledges, in the district court below, he neglected to object to the jury instructions or the State\u2019s comments during closing argument that he now disputes. Thus, he asks that we review this issue for fundamental error. \u201cThe doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.\u201d State v. Barber, 2004-NMSC-019, \u00b6 8, 135 N.M. 621, 92 P.3d 633. One basis for \u201cestablishing fundamental error occurs when a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.\u201d State v. Nevarez, 2010-NMCA-049, \u00b6 24, 148 N.M. 820, 242 P.3d 387 (internal quotation marks and citation omitted). In such a context, we must first make \u201ca determination as to whether a reasonable juror would have been confused or misdirected by the jury instruction.\u201d Id. \u00b6 25. However, we have stated that \u201c[tjhere is no miscarriage of justice where, despite any misunderstanding by the jury, the circumstances of the case demonstrate that all the necessary elements of the offense were satisfied beyond a reasonable doubt.\u201d Id. \u00b6 26.\n{13} We note that aside from citing caselaw for the fundamental error standard of review and the \u201ccommon meaning\u201d for the definition of \u201cgroin,\u201d Defendant fails to present a comprehensive and developed argument explaining how the jury instructions or the State\u2019s descriptive statements during closing arguments constituted fundamental error. Defendant does not argue that UJI 14-925 was not the proper instruction in this case. Defendant merely asserts that \u201cthe prosecutor created an issue],]\u201d but does not elaborate or develop the issue any further. If the State created an issue of fundamental error during closing arguments, it is the Defendant\u2019s responsibility to establish this error. See State v. Sosa, 2009-NMSC-056, \u00b6 26, 147 N.M. 351, 223 P.3d 348 (recognizing the three factors that influence an appellate court\u2019s decision for determining whether an error meets the threshold to reverse a conviction are \u201c(1) whether the statement invades some distinct constitutional protection; (2) whether the statement is isolated and brief, or repeated and persuasive; and (3) whether the statement is invited by the defense\u201d). Defendant has failed to establish or develop any error in this case. Id. \u00b6 25 (\u201cOnly in the most exceptional circumstances should [the appellate court], with the limited perspective of a written record, determine that all the safeguards at trial level have failed [to address improper statements by counsel during closing argument and] should we reverse the verdict of a jury[.]\u201d). \u201c[T]his Court\u2019s policy is to refrain from reviewing unclear or undeveloped arguments [that] require us to guess at what [a party\u2019s] arguments might be[;]\u201d thus, we decline to review this undeveloped argument any further. State v. Urioste, 2011-NMCA-121, \u00b6 29, 267 P.3d 820 (internal quotation marks and citation omitted).\nc. Defendant Failed to Show He Received Ineffective Assistance of Counsel\n{14} Finally, pursuant to State v. Franklin, 1967-NMSC-151, \u00b6 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, \u00b6\u00b6 17-24, 103 N.M. 655, 712 P.2d 1, Defendant argues that his trial counsel was ineffective as counsel did not object to the jury instructions or the State\u2019s reference to the term \u201cgroin\u201d in closing arguments. \u201cWe review claims of ineffective assistance of counsel de novo.\u201d State v. Dylan J., 2009-NMCA-027, \u00b6 33, 145 N.M. 719, 204 P.3d 44.\n{15} We note that while Defendant contends he was subjected to ineffective assistance of counsel, he does little more than cite to relevant caselaw. Additionally, he fails to provide a developed argument or analysis that would assist this Court in determining whether a prima facie case for ineffective assistance of counsel was established. As we have stated, we will not review unclear or undeveloped arguments that would require us to speculate as to the party\u2019s intended argument. See Urioste, 2011-NMCA-121, \u00b6 29. Accordingly, the Court is unable to properly analyze Defendant\u2019s ineffective assistance of counsel argument, and we must further conclude that Defendant has not established a prima facie case for ineffective assistance of counsel. Defendant can still pursue habeas corpus proceedings regarding this claim. See State v. Hobbs, 2016-NMCA-006, \u00b6\u00b6 19, 23, 363 P.3d 1259 (stating that there is a preference for habeas corpus proceedings as the avenue for adjudicating ineffective assistance of counsel claims, especially when the record fails to establish a prima facie case and further development is necessary), cert. denied, 2015-NMCERT-012, 370 P.3d 472.\nIII. CONCLUSION\n{16} For the foregoing reasons, we affirm Defendant\u2019s conviction.\n{17} IT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee", "Bennett J. Baur, Chief Public Defender Karl Erich Martell, Assistant Public Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, October 27, 2016,\nS-1-SC-36109\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-102\nFiling Date: September 8, 2016\nDocket No. 33,807\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. KEVIN PITNER, Defendant-Appellant.\nRoss C. Sanchez, District Judge\nHector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee\nBennett J. Baur, Chief Public Defender Karl Erich Martell, Assistant Public Defender Santa Fe, NM for Appellant" }, "file_name": "0715-01", "first_page_order": 731, "last_page_order": 736 }