{ "id": 4077313, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. WAYNE BENT, Defendant-Appellant", "name_abbreviation": "State v. Bent", "decision_date": "2013-12-04", "docket_number": "No. 34,331; Docket No. 29,227", "first_page": "153", "last_page": "164", "citations": [ { "type": "official", "cite": "2013-NMCA-108" } ], "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": "521 U.S. 507", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 915698 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/521/0507-01" ] }, { "cite": "406 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170178 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0205-01" ] }, { "cite": "374 U.S. 398", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8490 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/374/0398-01" ] }, { "cite": "1999-NMCA-060", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257801 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0393-01" ] }, { "cite": "2007-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669553 ], 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"reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243097 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0232-01" ] } ], "analysis": { "cardinality": 1420, "char_count": 35875, "ocr_confidence": 0.77, "pagerank": { "raw": 6.784635367476801e-08, "percentile": 0.4152176439630264 }, "sha256": "cceb9cf1afe598cf6de32a8aff7c6d00aa695c0c61af30a695cbe803ee6b3df8", "simhash": "1:cb0af8e068c33647", "word_count": 5814 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Chief Judge", "JONATHAN B. SUTIN, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. WAYNE BENT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nKENNEDY, Chief Judge.\n{1} The Opinion previously filed in this matter on August 15, 2013 is hereby withdrawn, and the following Opinion is being issued in its place.\n{2} Wayne Bent (Defendant) appeals his conviction for criminal sexual contact with a minor and two convictions of contributing to the delinquency of a minor. Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings. In a previous opinion, we reversed his convictions based on problems with the grand jury indictment. The New Mexico Supreme Court reversed and instructed this Court to consider the rest of Defendant\u2019s arguments on remand.\n{3} Defendant\u2019s remaining issues on appeal are numerous. Defendant argues that (1) the district court excluded certain witnesses, photographs, and his closing presentation soundtrack; (2) the prosecution wrongly exceeded the scope of direct examination on its cross-examination; (3) his proposed jury instructions regarding lawfulness were erroneously denied; (4) there was insufficient evidence to convict him of the crimes charged; (5) his counsel was ineffective by failing to raise a defense under New Mexico \u2019s Religious Freedom Restoration Act (RFRA); and (6) he was deprived of a fair trial by cumulative error. We see no error and affirm.\nI. BACKGROUND\n{4} Defendant was the spiritual leader of a religious group that lived together on an area of land in northern New Mexico. Two teenage sisters, L.S. and A.S., each paid a visit alone to Defendant and lay in his bed naked with him. Whether he touched L.S. and A.S. illegally during their visits, and whether the events were religiously motivated or the result of coercion was disputed below and on appeal. Defendant was indicted by a grand jury on two counts of criminal sexual contact with a minor (CSCM) and two coiints of contributing to the delinquency of a minor (CDM). He was acquitted of one count of CSCM and convicted on the remaining charges.\nII. DISCUSSION\nA. Limitation of Defendant\u2019s Witnesses and Evidence Was Not Error\n{5} Defendant argues that he was not allowed to present his desired evidence due to time constraints imposed by the district court and, specifically, he was not permitted to present his full list of witnesses. He claims on appeal that this prevented him from presenting any female members of the community he led, including L.S.\u2019s and A.S.\u2019s aunt and grandmother with whom the sisters lived. Defendant also disputes the district court\u2019s exclusion of some of the photographs offered into evidence. The State argues that the district court properly granted its motion to exclude what it deemed to be cumulative witnesses. \u201cThe admission or exclusion of evidence is within the discretion of the [district] court. On appeal, the [district] court\u2019s decision is reviewed for abuse of discretion.\u201d State v. Downey, 2008-NMSC-061, \u00b6 24, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and citation omitted).\n{6} Rule 11-403 NMRA permits a court to exclude relevant evidence if its probative value is outweighed by the danger of, among several things, \u201cneedless presentation of cumulative evidence.\u201d City of Albuquerque v. Westland Dev. Co., 1995-NMCA-136, \u00b6 27, 121 N.M. 144, 909 P.2d 25 (internalquotation marks and citation omitted). \u201c[T]he [district] court in its discretion may properly exclude cumulative evidence.\u201d State v. Marquez, 1998-NMCA-010, \u00b6 24, 124 N.M. 409, 951 P.2d 1070.\n{7} Defendant attempted to present several members of the community as witnesses to testify to the general nature of the touching they observed in the healing rituals of their religion, none of whom were teenage girls or others who had been touched in a similar manner as L.S. and A.S. The district court permitted \u201cone, maybe two,\u201d because it did not want \u201ceight omine people saying the same thing.\u201d The district court ruled that L.S.\u2019s and A.S\u2019s grandmother and aunt also could not testify because they were only offered for \u201cunrelated experiences\u201d that did not deal with the issues being tried. Defendant did not argue before or after this ruling that the grandmother and aunt had relevant testimony that was non-cumulative. He raised that argument for the first time on appeal. As well, Defendant did not argue at trial that the \u00e9ight or nine witnesses had individualized experiences about healing rituals. By failing to argue or make an offer of proof below that the witnesses had distinct, non-cumulative testimony, Defendant failed to preserve this argument. In order to preserve an issue for appeal, a defendant must make a timely objection or motion that specifically apprises the district court of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280. A party may claim that evidence was excluded in error only if it affects a substantial right of the party, and \u201cthe party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.\u201d Rule 11-103 (A)(2) NMRA. Without such an objection to the district court\u2019s exclusion of the cumulative witnesses or submission of an offer of proof, we affirm the district court\u2019s decision as it did not abuse its discretion.\n{8} Defendant makes a similar argument with respect to numerous photographs he attempted to admit into evidence. Again, he fails to show, with any particularity, how the photographs would have been non-cumulative. A nearly identical situation arose in Westland Development when \u201c[t]he court examined a box of pictures offered by Westland and required Westland to pick the five best representatives of what it wanted to show[.]\u201d 1995-NMCA-136, \u00b6 30. We affirmed the district court in that case because Westland failed to establish why the unadmitted photographs were not needlessly cumulative. Id. Here, again, Defendant failed to articulate both in district court and on appeal how the excluded photographs were non-cumulative. Rule 11-103(A)(2). We affirm the district court\u2019s decision on the photographs as it was not an abuse of discretion.\n{9} Defendant\u2019s final argument in this vein is that he was prevented from playing, and the jury was prevented from hearing, a song during his closing presentation. He intended the song to be the soundtrack to a video slideshow of photographs that had been admitted into evidence. The district court sustained the State\u2019s objection to the song, asking that the sound be turned off, although permitting the slideshow to play. Defendant argues on appeal that this prejudiced him in front of the jury and disrupted his closing. He does 'not explain further how this refusal to allow the audio track prejudiced him and, at the time, his only argument was \u201c[ijt\u2019s just commentaryf.]\u201d \u201cBecause district judges are in the best position to assess the impact of any questionable comment, we afford them broad discretion in managing closing argument.\u201d State v. Ramos-Arenas, 2012-NMCA- 117, \u00b6 16, 290 P.3d 733 (alteration, internal quotation marks, and citation omitted), cert. denied, 2012-NMCERT-010, 297 P.3d 332. Without further explanation from Defendant as to the relevance or necessity of musical accompaniment to his slideshow or, more specifically, regarding the alleged prejudice to his case, we defer to the district court and affirm the decision to refuse the playing of new musical material during closing argument.\nB. The Prosecution Did Not Exceed the Scope of Direct Examination on Cross-Examination\n{10} We next consider whether the State exceeded the scope of direct examination when it cross-examined Defendant. \u201cThe general rule upon the scope of cross-examination ... is that the examination can only relate to the facts and circumstances connected with the matters stated in the direct examination of the witness.\u201d State v. Carter, 1915-NMSC-084, \u00b6 8, 21 N.M. 166, 153 P. 271 (internal quotation marks and citation omitted). It is well settled that in cross-examination,\n[f]or the purpose of testing the credibility of a witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description.\nId. \u00b6 13. The district court has broad discretion to control the scope of cross-examination, see State v. Martin, 1984-NMSC-077, \u00b6 20, 101 N.M. 595, 686 P.2d 937, including the discretion to control cross-examination to ensure a fair and efficient trial. Sanchez v. State, 1985-NMSC-060, \u00b6 6, 103 N.M. 25, 702 P.2d 345, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 272 P.3d 110.\n{11} The scope of Defendant\u2019s direct examination was very limited. Defense counsel only asked Defendant questions regarding whether he touched L.S. and A.S. when they came to his house, and whether he would generally ever encourage delinquency in a minor. On appeal, Defendant specifically identifies a few places in cross-examination that he claims exceeded the scope of direct. Defendant states that the prosecution\u2019s questions about his position of spiritual authority were improper, particularly those in relation to statements he made in a television special filmed about his community. Defense counsels objected generally to several of the State\u2019s questions about a two-minute-long video segment containing an interview of Defendant. The district court expressed its concern with the State\u2019s attempt to impeach Defendant by referring to prior interviews and instructed the State to first make Defendant state his current position on the question before impeaching him with a prior inconsistent statement. Ultimately, the district court took a recess and instructed the State to use the time to review the video interview. After the State reviewed the video, the prosecution proceeded without further objections as to the scope of cross-examination or improperly referring to the video interview. The district court later overruled new objections from defense counsel that Defendant was being questioned about a lack of prior statements consistent with his position, as Defendant could address the matter on redirect. The State\u2019s clumsy questions related to D efendant\u2019s conduct were corrected by the district court and did not amount to \u201cimproper argumentative questioning of . . . Defendant in front of the jury\u201d as Defendant claims. The conferences between counsel and the district court were extensive enough that the jury was sometimes sent out of the room. However, the cross-examination did not exceed the scope of Defendant\u2019s direct examination in a way that amounts to trial error.\n{12} We focus on the scope of cross-examination because that is how Defendant frames his appeal. \u201cOrdinarily[,j the scope of cross-examination should be limited to facts and circumstances connected with matters inquired of in direct examination. An exception to this limitation is where the cross-examination tends to discredit or impeach the witness or shows his bias or prejudice.\u201d State v. Mireles, 1972-NMCA-105, \u00b6 18, 84 N.M. 146, 500 P.2d 431. Here, as we described above, the State was attempting to discredit or impeach the witness.\n{13} We reiterate that the district court has broad discretion over cross-examination. State v. Smith, 2001-NMSC-004, \u00b6 23, 130 N.M. 117, 19 P.3d 254 (stating that \u201cthe [district] court has broad discretion to control the scope of cross-examination\u201d). None of this questioning exceeds the scope of cross-examination, which can include questioning designed to impeach the witness. Defendant could properly be questioned about his conflicting statements and abottt the factual circumstances to which they related. We conclude that the district court did not abuse its discretion in permitting the State to question Defendant on his prior statements about whether he had touched L.S. and A.S.\nC. The District Court Did Not Err in Refusing Some of Defendant\u2019s Proposed Jury Instructions\n{14} Defendant next argues that the district court erred in denying four of his requested jury instructions. First, Defendant wanted to define the term \u201cbreast,\u201d which he states is not defined in the context of the CSCM statute with which he was charged or any CSCM case'law. Second, Defendant argues that the jury should have been given a \u201c[mjistake of [f]act\u201d or \u201cunlawfulness\u201d instruction that he believed he was touching L.S. and A.S. for a religious purpose. Defendant also argues that this should have been the subject of an \u201cunlawfulness\u201d instruction, in which he wanted to instruct the jury that \u201cCSC does not include a touching for purposes of religious beliefs.\u201d Finally, he argues that it was error by the court to refuse and modify his proffered intent instruction. \u201cThe propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.\u201d State v. Salazar, 1997-NMSC-044, \u00b6 49, 123 N.M. 778, 945 P.2d 996.\n{15} Defendant argues that \u201cbreast\u201d could mean \u201centire frontal section of the body,\u201d or \u201cthe entire area where the female and male breasts are conjoined.\u201d Defendant submitted an unnumbered jury instruction to the court that contained his definition of \u201cbreast.\u201d The district court wrote on the page that the instruction was \u201c[njever requested and never given.\u201d Defendant fails to point us to any part of the record where he pursued the matter. The jury instruction for CSCM in the second degree defines several body parts. UJI 14-926 NMRA; UJI 14-981 NMRA. However, the committee commentary explains that \u201c[djefinitions for \u2018breast\u2019 . . . were not included because these terms are in common usage and have a commonly understood meaning.\u201d UJI 14-981 comm. cmt.\n{16} We find no record of this definition being specifically requested in the remainder of the record. Defendant cites to a part of the record in which he opposed the inclusion of the word \u201cbreast\u201d in another instruction. However, there was no discussion of the issue of the word\u2019s definition at that point either. Therefore, we conclude that the issue of the definition of \u201cbreast\u201d was not adequately preserved, and we do not consider Defendant\u2019s arguments. Varela, 1999-NMSC-045, \u00b6 25 (\u201cIn order to preserve an error for appeal, it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the [district] court to the claimed errors or errors, and that a ruling thereon then be invoked.\u201d (internal quotation marks and citation omitted)). We hold that no error was made by the district court on this issue.\n{17} We next address Defendant\u2019s proposed mistake of fact instruction. We agree with the State that Defendant is actually arguing a \u201cmistake of law\u201d defense. The disputed instruction offered by Defendant at trial states that \u201c[t]he burden is on the [S]tate to prove beyond a reasonable doubt that . . . [Defendant did not act under an honest and reasonable belief in the existence of those facts [that the touching ofL.S. and A.S. was a religious act].\u201d This instruction does not claim a mistake of fact. Rather, it concedes the touchings while stating a legal justification. \u201cA mistake of law is a mistake about the legal effect of a known fact or situation, whereas a mistake of fact is a mistake about a fact that is material to a transaction; any mistake other than a mistake of law.\u201d State v. Hubble, 2009-NMSC-014, \u00b6 22, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). Defendant does not dispute his actions in this instruction. Instead, he disputes the fact of his understanding of the legality of his actions. Legal justification is not a factual matter. As we discuss below in response to Defendant\u2019s vagueness and statutory defense arguments, there is no legal exception to CSCM based on a religious purpose for the contact. It is well established that \u201c[n]o instruction on [mistake of law] shall be given.\u201d UJI 14-5121 NMRA Use Note 1. \u201cWhen a person voluntarily does that which the law forbids and declares to be a crime, it is no defense that he did not know that his act was unlawful or that he believed it to be lawful.\u201d UJI 14-5121.\n{18} Defendant\u2019s unlawfulness and intent arguments stem from a single premise that because he believed that touching L.S. and A.S. was a religious act, he was not guilty of committing a crime. The CSCM statute limits the offense to instances where the touching is unlawful and, specifically, exempts touching for non-abusive medical treatment and parental care.\nWe begin our analysis by noting that the [criminal sexual penetration of a minor (CSPM)] and CSCM statutes specifically limit the application of such offenses to instances wherein [the] defendant\u2019s conduct in touching or penetrating the child is \u201cunlawful\u201d or \u201cunlawfully\u201d committed. The terms \u201cunlawful\u201d or \u201cunlawfully\u201d limit the scope of prohibited conduct to those acts that are without legal justification or excuse.\nState v. Pierce, 1990-NMSC-049, \u00b6 12, 110 N.M. 76, 792 P.2d 408. \u201cNeither CSPM nor CSCM prohibit the touching or penetration of the intimate parts of a minor for purposes of providing reasonable medical treatment to a child, nor do they criminalize non[-]abusive parental or custodial child care.\u201d Id. The statute specifically exempts \u201cmedically indicated procedures[,]\u201d and the case law makes clear that non-abusive care is also not unlawful. NMSA 1978, \u00a7 30-9-11(B) (2009). As we explain more fully below, despite Defendant\u2019s arguments, there is no such justification for touching minors that would otherwise fall under the statute. While Defendant is correct that the State must establish that the touching was unlawful, he is incorrect in asserting that the question is rooted in fact. Nor does he provide authority to support his assertion that religiously motivated touching is lawful. In fact, as far as Defendant argues intent, we note that our Supreme Court has stated that it \u201c[does] not believe the [Legislature intended to adopt a requirement of specific sexual intent as an element of either [CSPM or CSCM] statute.\u201d Pierce, 1990-NMSC-049, \u00b6 21. Defendant was mistaken as to whether his conduct was illegal, not as to what he did. Therefore, the fact that Defendant believed that his behavior was excepted, because it was motivated by a sincere religious belief, from what would otherwise be considered criminal, is not an appropriate matter for the jury, and the instruction was properly rejected by the district court.\nD. Sufficient Evidence Supported the Jury\u2019s Verdict\n{19} Substantial evidence claims can be raised for the first time on appeal. State v. Stein, 1999-NMCA-065, \u00b6 9, 127 N.M. 362, 981 P.2d 295. \u201cIn reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176. Consequently, \u201c[w]e determine whether a rational factfinder could have found that each element of the crime was established beyond a reasonable doubt.\u201d State v. Kent, 2006-NMCA-134, \u00b6 10, 140 N.M. 606, 145 P.3d 86.\n{20} Defendant argues that the State did not provide enough evidence on the elements of CSCM to support his conviction with regards to A.S. He was convicted of one count of CSCM, which is defined as:\nA. Criminal sexual contact of a minor is the 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. For the purposes of this section, \u201cintimate parts\u201d means the primary genital area, groin, buttocks, anus[,] or breast.\nB. Criminal sexual contact of a minor in the second degree consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:\n(2) on a child thirteen to eighteen years of age when:\n(a) the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit}.]\nNMSA 1978, \u00a7 30-9-13 (2003). Defendant was convicted of CSCM with respect to A.S., who testified that he kissed her \u201c[o]n the breast}].\u201d Defendant argues that because A.S. testified on cross-examination that he had not touched her anywhere that would be covered by a bikini, there was insufficient evidence that he had criminal sexual contact with the unclothed intimate parts of a minor. We note that CSCM also may be committed over clothes, although here, Defendant was charged with the offense of touching unclothed intimate parts. Section 30-9-13(A). A.S. did testify at trial that Defendant had not touched her anywhere that would be covered by a bikini. However, she also testified that he kissed her \u201c[o]n the breast}].\u201d \u201cContrary evidence supporting acquittal does notprovide a basis for reversal because the jury is free to reject [a witness\u2019s] version of the facts.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829. Because the jury was free to weigh the conflicting testimony and give weight to A.S.\u2019s description of Defendant kissing her breast, there was sufficient evidence to support his conviction for CSCM. To the extent that he also argues that there was not enough evidence to support the jury finding of criminal intent, as opposed to religious intent, we note again that there is no exception to the statute based on religious purpose. As Defendant cites no authority in making an argument for one, we consider it no further. Section 30-9-13.\n{21} Defendant next argues that the CSCM statute is vague and he was therefore inadequately notified that there was no religious exception to the statute. Defendant claims that he was \u201cnot informed that CSCM would find him to have criminal intent to commit sexual contact and be a sex offender when he did not have sexual intent, but rather a religious one.\u201d Defendant cites only Pierce for this proposition, which in fact held the opposite. \u201cAfter reviewing the statutory provisions of our CSPM and CSCM statutes, we do notbelieve the [Ljegislature intended to adopt a requirement of specific sexual intent as an element of either statute.\u201d 1990-NMSC-049, \u00b6 21. Defendant points out that Pierce states that \u201c[t]he terms \u2018unlawful\u2019 or \u2018unlawfully\u2019 limit the scope of prohibited' conduct to those acts that are without legal justification or excuse.\u201d Id. \u00b6 12. And, we agree. There is little need to inform Defendant of a proposition of law that does not exist. As we previously discussed in relation to Defendant\u2019s jury instruction argument, there is no support for including religious ceremonies within those activities that are legally justified, particularly when, as in this case, he was convicted under the section of the statute that requires only a violation of bodily integrity. We conclude that Defendant\u2019s intent argument fails to identify any basis for a religious intent exception to our CSCM statute.\n{22} Defendant\u2019s final argument based on sufficiency of the evidence is that it was inconsistent that the jury found him guilty of CDM, but not CSCM, with respect to L.S., because the jury instructions for both required that the jury find that he touched L.S.\u2019s breast. He maintains that if he was found not guilty of CSCM, it is impossible for him to be found guilty of the other.\n{23} The CDM statute requires that \u201ccommitting any act or omitting the performance of any duty, which act or omission causes or tends to cause or encourage the delinquency of any person under the age of eighteen years.\u201d NMSA 1978, \u00a7 30-6-3 (1990). The jury instruction defined the necessary elements of this particular instance of contributing to delinquency as permitting \u201cL.S.[] to take her clothes off and lay naked with him and touched her unclothed intimate part, to wit: breast, with a part or parts of his body [.]\u201d L.S. testified that Defendant did not touch her breast.\n{24} We reiterate that \u201c[cjontrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [a witness\u2019s] version of the facts.\u201d Rojo, 1999-NMSC-001, \u00b6 19. Still, the fact that the jury did not believe the witness does not establish that the opposite of her testimony is true. See State v. Wynn, 2001-NMCA-020, \u00b6 6, 130 N.M. 381, 24 P.3d 816. \u201cThe test for sufficiency of the evidence is 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. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (emphasis added) (internal quotation marks and citation omitted). \u201cA reasonable inference is a conclusion arrived at by a process of reasoning. . . . This conclusion, however, must be a rational and logical deduction from facts admitted or established by the evidence, when such facts are viewed in light of common knowledge or common experience.\u201d Dull v. Tellez, 1971-NMCA-133, \u00b6 13, 83 N.M. 126, 489 P.2d 406 (internal quotation marks and citation omitted); State v. Romero, 1968-NMCA-078, \u00b6 17, 79 N.M. 522, 445 P.2d 587.\n{25} L.S. testified that, while she was unclothed and in bed next to the unclothed Defendant, he put his chest on her chest below her breast, he embraced her by putting his arm on her back as they lay on their sides, and he laid his head and hand on her heart. She stated that there was distance between them at first, but then he held her closer. She could not remember if they had been \u201cskin-to-skin.\u201d We conclude that it is possible that a rational factfinder could find from the circumstances L.S. described- \u2014 close proximity, lack of clothing, and touching of various areas of her chest \u2014 that Defendant touched her unclothed breast.\n{26} The fact that the jury did not convict Defendant of CSCM does not matter. In a case where a defendant was similarly convicted on a CDM charge, but acquitted on an assault charge for the same behavior, this Court has stated that \u201c[f]or its acquittal . . . , the jury is answerable only to conscience. The verdict of acquittal is beyond our control. Our business is to review the verdict of conviction.\u201d State v. Leyba, 1969-NMCA-030, \u00b6 36, 80 N.M. 190, 453 P.2d 211 (explaining further that \u201cwe can only speculate that the jury found [the] defendant did not commit an assault . . . . ' The jury acquitted him on that charge. They may have done so for any number of reasons. They may have decided that one punishment would meet the ends of justice. [The defendant's guilt of assault may have been plain and the jury may have refused to convict in defiance of reason\u201d). We therefore will not review the acquittal for CSCM and conclude that there was sufficient evidence to support the jury\u2019s conviction for CDM.\nE. Prosecutorial Misconduct\n{27} Although the brief-in-chief headings include one for a \u201cprosecutorial misconduct\u201d argument, no material follows the heading, and we disregard the issue as it is not raised on appeal.\nF. It Was Not Ineffective Assistance that Defendant\u2019s Counsel Did Not Raise RFRA at Trial\n{28} Defendant next claims- that it constituted ineffective assistance by his counsel to fail to assert a defense based specifically on RFRA, NMSA 1978, \u00a7 28-22-3 (2000). Defendant claims that because religion was a key aspect of his entire defense, his counsel could have only omitted mention of RFRA in error. The State argues that Defendant fails to show how the merits of a RFRA argument would have been relevant at trial and that he had no religious defense available and therefore was not prejitdiced by the lack of mention of RFRA. At trial, Defendant\u2019s counsel frequently raised his religion as a defense, particularly to the unlawfulness of his behavior. We note that this Court rejected Defendant\u2019s previous arguments above that used religious purpose to justify unlawfulness with regard to jury instructions, statutory vagueness, and mistake of law.\n{29} \u201cThe standard of review for claims of ineffective assistance of counsel is de novo.\u201d State v. Boergadine, 2005-NMCA-028, \u00b6 33, 137 N.M. 92, 107 P.3d 532. \u201c[The defendant has the burden of demonstrating ineffective assistance of counsel by showing that trial counsel did not exercise the skill of a reasonably competent attorney and that [the defendant was prejudiced by trial counsel\u2019s performance.\u201d State v. Harrison, 2000-NMSC-022, \u00b6 61, 129 N.M. 328, 7 P.3d 478. A defendant cannot make a claim for ineffective assistance of counsel \u201cif there is a plausible, rational strategy or tactic to explain the counsel\u2019s conduct.\u201d Lytle v. Jordan, 2001-NMSC-016, \u00b6 26, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted).\n{30} \u201c[The defendant has the burden of showing that there is a reasonable probability that, but for counsel\u2019s deficient performance, the result of the trial would have been different.\u201d Harrison, 2000-NMSC-022, \u00b6 61. Accordingly, we examine whether the results of the trial would have been different had defense counsel raised a RFRA defense in addition to the other religious arguments, and therefore turn to the merits of RFRA as applied to Defendant\u2019s case. The RFRA states:\nA government agency shall not restrict a person\u2019s free exercise of religion unless:\nA. the restriction is in the form of a rule of general applicability and does'not directly discriminate against religion or among religions; and\nB. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.\nSection 28-22-3. \u201c \u2018[F]ree exercise of religion\u2019 means an act or a refusal to act that is substantially motivated by religious belief}.]\u201d NMSA 1978, \u00a7 28-22-2(A) (2000). On appeal, neither party relies on New Mexico cases interpreting RFRA. Both cite to federal cases interpreting the federal RFRA. Defendant specifically claims that \u201c[i]t is presumed the [f]ederal RFRA is a guideline.\u201d We note that the federal RFRA and the New Mexico statute differ and any guidance from the federal statute is misplaced. The New Mexico statute states that the government shall not restrict free exercise of religion unless the law is one of general applicability, does not discriminate against or among religions, furthers a compelling governmental interest, and is the least restrictive means of furthering that interest. Section 28-22-3. Therefore, when a statute is one of general applicability, RFRA is not violated if the government demonstrates that such a law furthers a compelling interest and is the least restrictive means to do. so. Id.\n{31} Defendant focuses on his claim that the least restrictive enforcement of the law would have allowed him to present a religious exception to the CSCM and CDM statutes to the jury in line with his claim that his religious purpose prevented him from forming the requisite intent, or otherwise excused his actions. This argument echoes his earlier claims that the law permits a religious exception to the general CSM statute, which we dealt with above.\n{32} A law is generally applicable \u201cwhen it does not impose burdens on select groups.\u201d Elane Photography, LLC v. Willock, 2012-NMCA-086, \u00b6 36, 284 P.3d 428, 441, cert, granted, 2012-NMCERT-008, 296 P.3d 491. In a case dealing with whether spanking in childcare facilities violates regulations prohibiting physical punishment, this Court has stated: \u201cWe find nothing within [the childcare] statutes [and regulations] that detracts from their character as being generally applicable and religion-neutral. We find nothing that intimates a legislative intent to discriminatorily burden religious exercise.\u201d Health Servs. Div., Health & Env\u2019t Dep\u2019t of State of N.M. v. Temple Baptist Church, 1991-NMCA-055, \u00b6 18, 112 N.M. 262, 814 P.2d 130. The criminal prohibition against sexual contact of minors or contributing to their delinquency is no less generally applicable.\n{33} Further, protecting minors from criminal sexual contact and delinquency is a compelling state interest. See Oldfield v. Benavidez, 1994-NMSC-006, \u00b6 15, 116 N.M. 785, 867 P.2d 1167 (\u201cThe state itself has a compelling interest in the health, education, and welfare of its children.\u201d); see also State v. Lucero, 1982-NMSC-069, \u00b6 14, 98 N.M. 204, 647 P.2d 406 (holding child abuse statutes to be strict liability because of the \u201cobvious public interest of prevention of cruelty to children\u201d).\n{34} In addition, the statutes are the least restrictive method of achieving the government\u2019s goal of protecting children by punishing their abusers. The \u201cleast restrictive\u201d factor does not permit a defendant to present instructions to the jury on an incorrect religious exception to intent. As we stated above, the Supreme Court has stated: \u201c[W]e do not believe the [Ljegislature intended to adopt a requirement of specific sexual intent as an element of either statute.\u201d Pierce, 1990-NMSC-49, \u00b6 2. Therefore, to the extent that Defendant argues that there is a religious exception to intent, showing that he had a religious intent does not negate any element of the crimes, or contribute to an argument that the statutes are not the least restrictive means for achieving the government\u2019s goal.\n{35} The CSCM and CDM statutes are laws of general applicability that do not directly discriminate against or among religions, further the compelling governmental interest of protecting minors from sexual abuse and delinquency, and are the least restrictive means of doing so. We conclude that Defendant\u2019s RFRA argument is without merit, and his counsel\u2019s tactical decision to not raise RFRA as part of his other religious argument did ' not constitute ineffective assistance by his counsel.\nG. ThereWasNoErrorandThereforeNo Cumulative Error\n{36} Defendant finally claims that cumulative error deprived him of a fair trial. \u201cThe doctrine of cumulative error requires reversal when a series of lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial that the defendant was deprived of the constitutional right to a fair trial.\u201d State v. Duffy, 1998-NMSC-014, \u00b6 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State v. Gallegos, 2007-NMSC-007, \u00b6 17, 141 N.M. 185, 152 P.3d 828.\n{37} Here, we have found no error in any of the district court\u2019s decisions thatDefendant challenges. When there is no error, \u201cthere is no cumulative error.\u201d State v. Aragon, 1999-NMCA-060, \u00b6 19, 127 N.M. 393, 981 P.2d 1211. Because there was no individual error, we find no cumulative error.\nIII. CONCLUSION\n{38} We hold there was no error in the remaining claims raised by Defendant on appeal. We affirm his convictions.\n{39} IT IS SO ORDERED.\nRODERICK T. KENNEDY, Chief Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nTIMOTHY L. GARCIA, Judge\nThe federal RFRA sought \u201cto restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened}.]\u201d 42 U.S.C. \u00a7 2000bb(b)(l). It was held unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997).", "type": "majority", "author": "KENNEDY, Chief Judge." } ], "attorneys": [ "Gary K. King, Attorney General Nicole Beder, Assistant Attorney General Santa Fe, NM for Appellee", "Law Works L.L.C. John A. McCall Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, December 4, 2013,\nNo. 34,331\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-108\nFiling Date: August 26, 2013\nDocket No. 29,227\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. WAYNE BENT, Defendant-Appellant.\nGary K. King, Attorney General Nicole Beder, Assistant Attorney General Santa Fe, NM for Appellee\nLaw Works L.L.C. John A. McCall Albuquerque, NM for Appellant" }, "file_name": "0153-01", "first_page_order": 169, "last_page_order": 180 }