{ "id": 4078111, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BERNARDINO ROMERO, Defendant-Appellant", "name_abbreviation": "State v. Romero", "decision_date": "2013-09-30", "docket_number": "No. 34,202; Docket No. 30,607", "first_page": "77", "last_page": "84", "citations": [ { "type": "official", "cite": "2013-NMCA-101" } ], "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": "93 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568664 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "710" }, { "page": "1244" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0708-01" ] }, { "cite": "95 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575577 ], "weight": 10, "year": 1981, "pin_cites": [ { "page": "667-68", "parenthetical": "reaffirming the rule that states that convictions will be reversed only if the cumulative effect of the district court's actions had a coercive effect on the jury" }, { "page": "1184-85", "parenthetical": "reaffirming the rule that states that convictions will be reversed only if the cumulative effect of the district court's actions had a coercive effect on the jury" }, { "page": "668" }, { "page": "1185", "parenthetical": "citation omitted" }, { "page": "668" }, { "page": "1185" }, { "page": "667" }, { "page": "1184" }, { "page": "668" }, { "page": "1185", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0666-01" ] }, { "cite": "2009-NMCA-095", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 56" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0853-01" ] }, { "cite": "116 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727699 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "813" }, { "page": "1195" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0807-01" ] }, { "cite": "152 P.2d 828", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "2007-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669553 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0185-01" ] }, { "cite": "115 N.M. 536", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725423 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "541", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "368", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0536-01" ] }, { "cite": "2008-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001995 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 44" }, { "page": "\u00b6 53" }, { "page": "\u00b6 54" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0020-01" ] }, { "cite": "2009-NMCA-055", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244528 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0267-01" ] }, { "cite": "2002-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183137 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 48, 50" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0709-01" ] }, { "cite": "1999-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257633 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0218-01" ] }, { "cite": "2006-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671441 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0815-01" ] }, { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "45" }, { "page": "738" }, { "page": "45" }, { "page": "738", "parenthetical": "holding that if the defendant could not commit the greater offense as it is described in the indictment without committing the lesser offense, he should be fully aware of the potential offenses he may face at trial and should have ample opportunity to prepare a defense" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "1998-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18668 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0409-01" ] }, { "cite": "103 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711354 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "371" }, { "page": "1181" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0364-01" ] }, { "cite": "2009-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243229 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0088-01" ] }, { "cite": "2003-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77156 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 47" }, { "page": "\u00b6 49", "parenthetical": "reaffirming the rule that states that convictions will be reversed only if the cumulative effect of the district court's actions had a coercive effect on the jury" }, { "page": "\u00b6 50" }, { "page": "\u00b6 52" }, { "page": "\u00b6 56" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0648-01" ] }, { "cite": "2004-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428026 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0621-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "87", "parenthetical": "holding that \"the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution\"" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 1043, "char_count": 24932, "ocr_confidence": 0.772, "pagerank": { "raw": 4.864208760852274e-08, "percentile": 0.3063012554013767 }, "sha256": "4fec574acdf7dd3d27a1a055fba538c59b165bfde77e51a180a40d342c498388", "simhash": "1:934a240369d89382", "word_count": 3958 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "JAMES J. WECHSLER, Judge", "CYNTHIA A. FRY, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BERNARDINO ROMERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} Defendant Bernardino Romero appeals his conviction and sentence for criminal sexual contact of a minor (CSCM), under NMSA 1978, Section 30-9-13(C)(l) (2003). Defendant contends that the district court erred by (1) allowing an amendment to the indictment during the trial, (2) refusing to require the State to disclose its expert\u2019s assessment of Defendant\u2019s polygraph examination result, and (3) issuing a shotgun jury instruction. We address each issue in turn and, for the reasons stated herein, affirm.\nI. BACKGROUND\n{2} The facts in this case are undisputed. Defendant and Victim were neighbors. When Victim was eleven years old, she told her mother that Defendant engaged in inappropriate sexual conduct with her when she was about five or six years old. Victim subsequently repeated her assertions to a law enforcement official as well as to an investigator from the New Mexico Public Defender Department. Consistent with Victim\u2019s statements during those interviews, the State charged Defendant with two counts of criminal sexual penetration of a minor (CSPM) (counts one and two). Based on Victim\u2019s additional claim that Defendant forced her to touch his penis, the State also charged him with CSCM (count three) and a single count of aggravated indecent exposure (count four).\n{3} In preparation for trial, defense counsel arranged for Defendant to undergo a polygraph examination. The polygrapher asked Defendant three questions during the examination, each based on the content of Victim\u2019s interviews. He asked Defendant: (1) \u201cDid you ever put your penis into [Victim\u2019s] vagina[?]\u201d; (2) \u201cDid you ever penetrate [Victim\u2019s] vagina to any extent?\u201d; and (3) \u201cDid [Victim] ever touch your penis with her hand?\u201d Defendant answered each query in the negative, and his polygrapher determined that the data produced during the examination revealed to a ninety percent degree of certainty that Defendant\u2019s responses were truthful. Following disclosure of the polygraph result, the State sought and was granted a continuance in order to have its own polygraph expert analyze the results.\n{4} At trial, the State elected not to give notice of or call an expert witness regarding\nthe polygraph or to offer evidence of any alternative evaluation of Defendant\u2019s polygraph result. Nor did the State disclose to Defendant any findings its own expert may have prepared. Despite being unaware of the information, if any, produced by the State\u2019s polygrapher, Defendant asserted that the State withheld relevant Brady material in the form of its polygrapher\u2019s opinion and during trial sought disclosure of any such evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that \u201cthe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution\u201d). The State responded that it was not required to disclose its expert\u2019s findings because that expert was never listed as a witness. The State further argued that disclosure was unwarranted because Defendant had not sought information regarding, or an interview with, the State\u2019s polygrapher prior to trial. The district court denied Defendant\u2019s oral motion for disclosure, finding that although the information sought was relevant, defense counsel should have specifically sought discovery or subpoenaed the State\u2019s expert before trial commenced.\n{5} At trial, Victim was the State\u2019s only witness able to testify regarding the specific acts of sexual abuse alleged in each count. As to count one, Victim\u2019s testimony varied in content from her assertions of penetration made during interviews prior to trial. Instead, she maintained only that Defendant rubbed his \u201cprivate part\u201d against hers, making skin-on-skin contact. Following the State\u2019s presentation of evidence, Defendant sought a directed verdict dismissing all charges, noting specifically that there was insufficient evidence to support the CSPM alleged in count one. Without objection from Defendant, the State moved to amend count one to charge the lesser-included offense of CSCM based on Victim\u2019s trial testimony.\n{6} Following trial, at which Defendant also testified and denied ever having sexually abused Victim, the jury deliberated approximately five-and-a-half hours before the foreperson notified the district court that the jury was \u201chaving an impossible time reaching a unanimous decision on any of the charges.\u201d The district court returned the jury to the courtroom and asked the foreperson: \u201cWithout advising the [district court] which way the vote is going, can you give me a numerical breakdown of the divisionf for each count]?\u201d The foreperson stated that the jurors were divided eleven votes to one vote on count one, six votes to six votes on count two, nine votes to three votes on count three, and eight votes to four votes on count four. The district court then inquired, \u201cDo you think if I sent you back into the jury room to deliberate further, that you would be able to reach a verdict on one or more of these counts?\u201d The foreperson responded, \u201cI believe that we might be able to reach a unanimous decision on one count . . . [a]nd the rest, really not.\u201d The district court replied, \u201cWell, I\u2019ll have you return to the jury room to continue deliberations then.\u201d\n{7} Defense counsel did not immediately object to this colloquy or to the district court\u2019s instruction that the jury continue its deliberation. Approximately one-half hour later, the jury returned a guilty verdict as to the lesser-included offense of CSCM, which constituted the amended count one. The jury deadlocked with regard to counts two through four, which were subsequently dismissed by the State. Following his conviction, Defendant filed a motion for a new trial, arguing that the verdict was a product of the district court\u2019s issuance of an impermissible shotgun instruction. The court denied the motion and sentenced Defendant. This appeal ensued.\nII. DISCUSSION\nA. The District Court Did Not Err in Permitting the State to Amend the Indictment\n{8} Defendant contends that his conviction should be vacated because he was prejudiced when, during trial, the district court allowed the State to amend count one from CSPM to CSCM. Defendant contends that the amendment constituted an impermissibly prejudicial modification to the indictment, which as altered failed to provide him with sufficient notice of the pending charges and therefore deprived him of a fair opportunity to prepare a defense. Because Defendant failed to raise this objection to the district court, we review only for fundamental error. Rule 12-216(B)(2) NMRA (providing an appellate court the discretion to review questions of fundamental error or fundamental rights-as an exception to the preservation rule); State v. Barber, 2004-NMSC-019, \u00b6 8, 135 N.M. 621 92 P.3d 633; State v. Laney, 2003-NMCA-144, \u00b6 47, 134 N.M. 648, 81 P.3d 591. For an error to be deemed fundamental, it must go \u201cto the foundation or basis of a defendant\u2019s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive.\u201d State v. Gallegos, 2009-NMSC-017, \u00b6 27, 146 N.M. 88, 206 P.3d 993 (internal quotation marks and citation omitted).\n{9} In a criminal case, the defendant \u201cis entitled to know what he is being charged with and to be tried solely on those charges. It is improper to instruct the jury as to a crime not formally charged if that crime is not a lesser included offense of the crime formally charged.\u201d State v. Johnson, 103 N.M. 364, 371, 707 P.2d 1174, 1181 (Ct. App. 1985). Rule 5-204(C) NMRA permits amendment of the indictment at trial only so long as the ensuing charging variation conforms with the evidence of the case and the particulars of the offense. Unless the amendment prejudices the defendant\u2019s substantial rights, it is not \u201cgrounds for . . . acquittal.\u201d Rule 5-204(C). Prejudice exists when the defendant is unable to reasonably anticipate from the indictment the nature of the proof the state will produce at trial. State v. Marquez, 1998-NMCA-010, \u00b6 20, 124 N.M. 409, 951 P.2d 1070. In seeking acquittal, the defendant must demonstrate actual prejudice; the mere assertion of prejudice alone is insufficient to establish error warranting reversal. Id.\n{10} We conclude that as to count one, CSCM is a lesser-included offense of the CSPM with which Defendant was charged. An offense is deemed to be lesser-included only if the defendant cannot commit the greater offense, as it is described in the indictment, without also committing the lesser offense. State v. Meadors, 121 N.M. 38, 45, 908 P.2d 731, 738 (1995). Under Section 30-9-13(A), CSCM is defined as \u201cthe unlawful and intentional touching of or applying force to the intimate parts of a minor.\u201d The statute includes the genital area within the definition of intimate parts. Id. As a matter of physiology, the intentional touching or the application of force to the intimate parts of a minor is inherent in the criminal sexual penetration of a minor. Here, Victim testified that the events underlying count one involved skin-to-skin genital contact, a level of contact subsumed by the nature of the penetration alleged in count one. As such, the charged penetration unavoidably entailed contact to some extent. See State v. Paiz, 2006-NMCA-144, \u00b6 52, 140 N.M. 815, 149 P.3d 579 (analyzing an offense where, physiologically, contact and penetration overlapped based on the behavior described in the indictment). Thus, CSCM constitutes a lesser-included offense of the CSPM charge, and Defendant was on notice and could have anticipated that evidence of the CSCM would be presented at trial.\n{11} Defendantnonetheless contends that, had he known Victim would vary her story from that which she had previously told and the district court would amend the indictment to charge CSCM with respect to count one, he would have modified the polygraph test to address questions related to the contact component of count one. Notably, the case centered around Victim\u2019s and Defendant\u2019s conflicting testimony. Defendant\u2019s use of a polygrapher therefore bore the potential to bolster his trial credibility. Moreover, Defendant asserts that in preparing his case, his understanding was that he was not entitled to the lesser-included offense instruction of CSCM based on Victim\u2019s allegation of penetration and not contact. As such, Defendant explains that his polygraph test, which for accuracy purposes consisted of only three questions, was \u201ctailored specifically to combat the charges in the indictment and [Victim]\u2019s repeated allegations . . . that supported counts [one through three].\u201d\n{12} Despite the post-amendment absence of precise harmony between the trial evidence and the contents of Defendant\u2019s pretrial polygraph examination, we cannot conclude that the district court fundamentally erred in amending count one from CSPM to CSCM. The mere fact that Defendant\u2019s chosen trial tactics, including preparation of expert testimony, focused on penetration rather than the contact inherently involved in achieving penetration does not diminish the act of CSCM within the CSPM offense with which Defendant was originally charged. By being so charged, Defendant was on notice of the facts constituting the CSCM, forwhichhe was ultimately convicted. Meadors, 121 N.M. at 45, 908 P.2d at 738 (holding that if the defendant could not commit the greater offense as it is described in the indictment without committing the lesser offense, he should be fully aware of the potential offenses he may face at trial and should have ample opportunity to prepare a defense).\n{13} We conclude that Defendant was not prejudiced by the indictment\u2019s amendment, nor did the amendment constitute fundamental error under the circumstances of this case. Defendant was fairly on notice of the lesser included offense, and it was his chosen trial tactic to \u201cgear[] his defense to eliminat[e] the CSPM charge completely.\u201d See State v. Hester, 1999-NMSC-020, \u00b6 11, 127 N.M. 218, 979 P.2d 729 (noting that it is not the role of an appellate court to second guess trial tactics).\nB. The District Court Did Not Err in Denying Defendant Access to Evidence Produced by the State\u2019s Polygraph Expert\n{14} Defendant contends that the State violated Brady and Rule 5-501 (A)(4) NMRA when it refused to disclose information obtained from its expert regarding his assessment of Defendant\u2019s polygraph examination result. See Brady, 373 U.S. at 87; see also Rule 5-501 (A)(4) (stating that polygraph results and reports are subject to disclosure by the state). In New Mexico, an assertion of a Brady violation is an allegation of prosecutorial misconduct. See State v. Trujillo, 2002-NMSC-005, \u00b6\u00b6 48, 50, 131 N.M. 709, 42 P.3d 814. We review the district court\u2019s ruling on prosecutorial misconduct for abuse of discretion because it \u201cis in the best position to evaluate the significance of any alleged prosecutorial errors.\u201d Id. \u00b6 49 (internal quotation marks and citation omitted). Under an abuse of discretion standard, the district court\u2019s ruling should be upheld unless it is arbitrary, capricious, or beyond reason. State v. Balenquah, 2009-NMCA-055, \u00b6 11, 146 N.M. 267, 208 P.3d 912. In order to establish a Brady violation, the defendant \u201cmust show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was' material to the defense.\u201d Case v. Hatch, 2008-NMSC-024, \u00b6 44, 144 N.M. 20, 183 P.3d 905 (internal quotation marks and citation omitted).\n{15} We conclude that Defendant cannot demonstrate the materiality element of the Brady analysis. \u201c[Ejvidence is material [under Brady] only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.\u201d Case, 2008-NMSC-024, \u00b6 53 (alterations in original) (internal quotation marks and citation omitted). When we evaluate materiality under Brady, we look to the entire trial record to determine if the conviction was obtained in violation of due process through a trial \u201ctainted with fundamental unfairness because certain evidence was not disclosed to the defense.\u201d State v. Baca, 115 N.M. 536, 541, 854 P.2d. 363, 368 (Ct. App. 1993) (internal quotation marks and citation omitted). \u201cEvidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory.\u201d Id. (internal quotation marks and citation omitted).\n{16} Evenifthe State\u2019s polygraph expert\u2019s findings were favorable to the defense, there is no reasonable probability that a different outcome would have resulted had the evidence been provided to Defendant. Defendant already possessed and presented evidence from his own polygraph expert showing that Defendant was truthful in denying Victim\u2019s allegations with regard to the original counts of CSPM and CSCM alleged in count three. The persuasiveness of this evidence seemingly contributed to the jury\u2019s inability to reach a unanimous decision on those charges, resulting in a mistrial as to them. Additional information or testimony from the State\u2019s polygraph expert would at best have been cumulative to that presented by Defendant\u2019s own polygrapher.\n{17} Furthermore, with regard to the amended count one for which Defendant was convicted, Defendant concedes that the polygraph examination did not address the component of contact inherent within the originally alleged penetration. Any additional evidence derived from the State\u2019s expert would likewise fail to support Defendant\u2019s testimony with regard to that charge, just as did Defendant\u2019s own polygrapher\u2019s analysis. Thus, there is no reasonable probability that obtaining access to the State\u2019s polygraph expert would have resulted in a different trial outcome. See Case, 2008-NMSC-024, \u00b6 54 (noting that materiality is only present if the withheld evidence introduces a reasonable doubt that did not already exist).\n{18} We conclude that any evidence the State refused to disclose regarding Defendant\u2019s polygraph examination would not have created a reasonable probability of a different outcome in this case even if it were in accord with Defendant\u2019s own polygraph evidence. See id. \u00b6\u00b6 54-55 (refusing to find an abuse of discretion where there was no reasonable probability that the verdict would differ even if the evidence had been disclosed to the defense). We thus affirm on this ground. See State v. Gallegos, 2007-NMSC-007, \u00b6 26, 141 N.M. 185, 152 P.2d 828 (stating that an appellate court will affirm the district court\u2019s decision if it was right for any reason so long as it is not unfair to the appellant to do so). Although we agree with the district court that Defendant\u2019s request in this regard was tardy, we reiterate that the State is \u201cobligated to make a reasonably diligent effort to comply with a legally proper discovery request and may not obstruct another party\u2019s access to evidence.\u201d State v. Chavez, 116 N.M. 807, 813, 867 P.2d 1189, 1195 (Ct. App. 1993); see Rule 5-501(A)(4) (\u201c[T]he state shall disclose or make available to the defendant. . . any results or reports of . . . polygraph examinations of the defendant}.]\u201d).\nC. The District Court Did Not Err in Asking the Jury for a Numerical Breakdown and in Directing the Jury to Continue Its Deliberations\n{19} Defendant contends that his conviction should be reversed because the district court erred in asking for a numerical breakdown of jury votes and by issuing an impermissible shotgun instruction that \u201cmay have had an improper, coercive effect\u201d on a holdout juror. Since Defendant did not inform the district court of his objection to the court\u2019s communication with the jury until he filed his motion for a new trial five days after the claimed erroneous jury instruction, this issue was not properly preserved, and we therefore review the district court\u2019s actions only for fundamental error. See Rule 12-216(B)(2) (giving appellate courts the discretion to review for fundamental error as an exception to the rule requiring issue preservation); see also Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, \u00b6 56, 146 N.M. 853, 215 P.3d 791 (holding that a motion for a new trial is typically not sufficient to preserve an issue that was not otherwise raised during the proceedings).\n{20} As we discussed above, under the fundamental error standard of review, the defendant must show the existence of circumstances that \u201cshock the conscience\u201d owing to the fact that the defendant is indisputably innocent or because a mistake in the process makes the conviction fundamentally unfair. Barber, 2004-NMSC-019, \u00b6 17 (internal quotation marks and citation omitted). Since Defendant does not contend that he is indisputably innocent, he must demonstrate that the \u201ccumulative effect- of the district court\u2019s actions and the circumstances under which they arose were so egregious and so unduly coercive on the jury [as to cause the jury] to abandon its honest convictions.\u201d Laney, 2003-NMCA-144, \u00b6 49; see State v. Rickerson, 95 N.M. 666, 667-68, 625 P.2d 1183, 1184-85 (1981) (reaffirming the rule that states that convictions will be reversed only if the cumulative effect of the district court\u2019s actions had a coercive effect on the jury).\n{21} Here, in response to a note from the jury foreperson indicating the jury was \u201chaving an impossible time reaching a unanimous decision on any of the charges [,]\u201d the district court requested a numerical breakdown as to each count, indicating that it should be done without revealing whether the votes were for conviction or acquittal. The district court then inquired as to whether the jury would be able to reach a verdict if the jury was sent back to deliberate further. In response to this question, the foreperson indicated that the jury \u201cmight\u201d be able to reach a unanimous decision with regard to one of the counts. The district court then sent the jury back for further deliberations. Defendant asserts that asking for a numerical breakdown and then instructing the jurors to continue deliberations without admonishing the jurors not to surrender their honest convictions amounted to an impermissible shotgun instruction that could have coerced the holdout juror to abandon his honest convictions.\n{22} The New Mexico Supreme Court has explained that, \u201c[w]hile inquiry into the numerical division of the jury is not to be encouraged, it is not error per se. . . . [S]uch inquiries are reversible error only when shown to have a coercive effect on the jury.\u201d Rickerson, 95 N.M. at 668, 625 P.2d at 1185 (citation omitted); Laney, 2003-NMCA-144, \u00b6 50. This is because \u201c[t]he inquiry itself is not coercive since the jury is already well aware of its numerical split.\u201d Rickerson, 95 N.M. at 668, 625 P.2d at 1185. To determine whether inquiry into numerical division has a coercive effect on jurors, there are three considerations: \u201c[(1)] whether any additional instruction or instructions, especially a shotgun instruction, were given; [(2)] whether the [district] court failed to caution a jury not to surrender honest convictions[;] and [(3)] whether the [district] court established time limits on further deliberations with the threat of mistrial.\u201d Id. at 667, 625 P.2d at 1184. Furthermore, the district court\u2019s communication with the jury is proper as long as the determination of whether or not it should deliberate further is left within the discretion of the jury. State v. McCarter, 93 N.M. 708, 710, 604 P.2d 1242, 1244 (1980). Shotgun instructions are prohibited by the New Mexico Supreme Court out of concern for \u201cthe potentially coercive effect it has on holdout jurors to abandon their convictions to arrive at a verdict with the majority.\u201d Laney, 2003-NMCA-144, \u00b6 52.\n{23} Under the circumstances of this case, we conclude that, cumulatively, the district court\u2019s conduct and actions did not have a coercive effect on any potential holdout jurors to abandon their honest convictions. Although asking for the numerical breakdown of votes was not ideal, the district court appeared to have made the inquiry so as to ascertain the \u201cprobability of agreement among the jury . . . pursuant to the court\u2019s duty to assure that a verdict is reached . . . and in determining whether further deliberations are needed.\u201d Rickerson, 95 N.M. at 668, 625 P.2d at 1185 (citation omitted). And, the district court was careful in admonishing the foreperson to avoid disclosing whether the votes were for or against conviction and the identities of the jurors for or against conviction. See Laney, 2003-NMCA-144, \u00b6 56 (noting that in avoiding asking the jurors which way their vote fell, the district court avoided targeting the holdout jurors).\n{24} Moreover, the district court did not simply order the jury to continue deliberations; rather, it asked whether further deliberations would help the jury reach a verdict on any of the counts. As the jury foreperson indicated that further deliberations coirld result in a verdict as to one of the counts, the district court\u2019s actions in sending the jury back for further deliberations was not so coercive as to warrant a finding of fundamental error. Id. \u00b6\u00b6 49, 51, 55 (discussing and rejecting the defendant\u2019s arguments that sending the' jury back to deliberate, despite ten jurors\u2019 belief that they were hopelessly deadlocked, amounted to a \u201cshotgun\u201d instruction, where the district court asked if the jurors could further deliberate and they expressed their willingness to do so). And, although the district court neglected to admonish the jurors not to abandon their honest convictions before returning to deliberations, the court issued this instruction at the initial commencement of deliberations.\n{25} After examining these cumulative circumstances, we cannot conclude that the district court\u2019s actions amounted to a shotgun instruction or were so egregious and so unduly coercive on the jury as to cause it to abandon its honest convictions. A finding of fundamental error is unwarranted.\nIII. CONCLUSION\n{26} For the reasons explained above, we affirm Defendant\u2019s conviction.\n{27} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nCYNTHIA A. FRY, Judge", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Yvonne Chicoine, Assistant Attorney General Santa Fe, NM for Appellee", "Bennett J. Baur, Acting ChiefPublic Defender Tania Shahani, Assistant Public Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, September 30, 2013,\nNo. 34,202\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-101\nFiling Date: July 31, 2013\nDocket No. 30,607\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BERNARDINO ROMERO, Defendant-Appellant.\nGary K. King, Attorney General Yvonne Chicoine, Assistant Attorney General Santa Fe, NM for Appellee\nBennett J. Baur, Acting ChiefPublic Defender Tania Shahani, Assistant Public Defender Santa Fe, NM for Appellant" }, "file_name": "0077-01", "first_page_order": 93, "last_page_order": 100 }