{ "id": 4241434, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESSE DURAN, Defendant-Appellant", "name_abbreviation": "State v. Duran", "decision_date": "2014-12-16", "docket_number": "Docket No. 32,530", "first_page": "262", "last_page": "269", "citations": [ { "type": "official", "cite": "2015-NMCA-015" } ], "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": "2011-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249805 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0110-01" ] }, { "cite": "2009-NMSC-055", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244893 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0386-01" ] }, { "cite": "116 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727626 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0450-01" ] }, { "cite": "1993-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 21-22" } ], "opinion_index": 0 }, { "cite": "116 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0456-01" ] }, { "cite": "1993-NMSC-065", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 19-20" } ], "opinion_index": 0 }, { "cite": "73 P.3d 911", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 175929 ], "year": 2003, "pin_cites": [ { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/or/335/0555-01" ] }, { "cite": "77 S.W.3d 566", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9411949 ], "year": 2002, "pin_cites": [ { "page": "571", "parenthetical": "determining that \"[t]here could be only two possible purposes for [questioning an expert about whatpercentage of children delay in reporting sexual abuse]: (1" } ], "opinion_index": 0, "case_paths": [ "/sw3d/77/0566-01" ] }, { "cite": "2008-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002710 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6\u00b6 41-42" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0360-01" ] }, { "cite": "286 P.3d 265", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189276 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 55" }, { "page": "\u00b6 55" }, { "page": "\u00b6 55" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0562-01" ] }, { "cite": "289 P.3d 1215", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191345 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0001-01" ] }, { "cite": "305 P.3d 936", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4333597 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0449-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6\u00b6 36, 42" }, { "page": "\u00b6 43" }, { "page": "\u00b6 43" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "639 So. 2d 1247", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11351805 ], "year": 1993, "pin_cites": [ { "page": "1252-53" } ], "opinion_index": 0, "case_paths": [ "/so2d/639/1247-01" ] }, { "cite": "834 A.2d 354", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "356-59" }, { "page": "359" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "109 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590342 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0263-01" ] }, { "cite": "1989-NMCA-086", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 11, 15" } ], "opinion_index": 0 }, { "cite": "121 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566706 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0481-01" ] }, { "cite": "1996-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 31-32" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257742 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0020-01" ] }, { "cite": "2008-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243435 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0220-01" ] } ], "analysis": { "cardinality": 879, "char_count": 21415, "ocr_confidence": 0.765, "pagerank": { "raw": 6.259854024151598e-08, "percentile": 0.38628468300661545 }, "sha256": "71228102eb71e6a5afdad4b9e3b44b72e99bbb44382329a53c40e07527afe52c", "simhash": "1:9b596cb0cc8437d2", "word_count": 3375 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TIMOTHY L. GARCIA, Judge", "JONATHAN B. SUTIN, Judge", "MICHAEL E. VIGIL, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESSE DURAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nDefendant, Jesse Duran, appeals from his conviction for criminal sexual penetration of a minor in the first degree (CSPM). He contends, among other things, that the district court erred by allowing the individual who conducted the S.A.F.E. House interview ofthe victim to testify, as a lay witness, that a majority of children she interviewed delayed in disclosing sexual abuse. We agree. This delayed disclosure testimony was the proper subject for expert testimony as opposed to lay testimony. We also conclude that the error was not harmless. Accordingly, we reverse Defendant\u2019s conviction and remand for a new trial.\nBACKGROUND\nDefendant was accused of digitally penetrating his girlfriend\u2019s daughter (Victim) sometime between 1996 and 1998. Defendant was not charged with CSPM until May 2006. Victim was twenty-one years old at the time she testified at Defendant\u2019s trial.\nVictim testified that Defendant abused her when she was in either second or fourth grade. Defendant was Victim\u2019s mother\u2019s boyfriend at the time, and Victim was sleeping on a mattress with Victim\u2019s sister in the living room of Defendant\u2019s mother\u2019s house. Victim testified that she woke up to Defendant \u201ctouching [her].\u201d She said that Defendant placed his fingers in her vagina while she was asleep. She stated Defendant asked her \u201cif it felt good,\u201d and that she responded by pushing him away. Victim said that she then got up and went to school. She stated that, after this incident, she \u201ctried to stay away [from Defendant] as much as [she] could\u201d and \u201cnever felt comfortable in front of him[.]\u201d\nVictim testified that she did not tell anyone about the incident at the time because she \u201cwas scared\u201d and that she \u201c[didn\u2019t] know\u201d why she was scared. She said that she later told her sister, three of her cousins, and two of her close friends. None of these six family members or friends testified at trial. When Victim was in sixth grade, she told her mother that Defendant had touched her. Victim\u2019s mother confronted Defendant, who denied the allegation, and Victim\u2019s mother did nothing further. Victim told her mother again in the fall of 2004, a few months after her mother had broken off her \u2022 relationship with Defendant. This time, Victim\u2019s mother reported the incident to law enforcement, who conducted an investigation. Victim was interviewed by Denise Clement, a forensic interviewer at a child S.A.F.E. House on January 25, 2005.\nClement testified at trial that a child S.A.F.E. House is a child advocacy center where professionals interview children who are suspected to be victims of sexual abuse, physical abuse, or who have witnessed violent crimes. She testified about her interview of Victim and her experience . as a S.A.F.E. House interviewer in general. Clement testified that she worked as a S.A.F.E. House interviewer from 2002 to 2008 and conducted between 1400 and 1600 interviews during that period of time. She described the interview as \u201ca structured conversation with a child\u201d that is \u201cdesigned to try and elicit accurate events about the child[\u2019s] . . . account.\u201d She explained that \u201cthe goal of the interview is to either refute or corroborate the allegation.\u201d\nDuring a lengthy bench conference during Clement\u2019s testimony, defense counsel argued that Clement should not be allowed to testify about the percentage of children who delay reporting sexual abuse. Defense counsel argued that this was a subject for expert testimony, and Clement was not qualified as an expert. The district court overruled Defendant\u2019s objection, stating:\nWell, it seems to me that, really, this is an issue in the case, and everybody realizes that it is an issue, and it\u2019s an issue in many child sexual abuse cases. This witness, based upon her training, and most especially, her experience in meeting with these children who are victims of sexual assault, this is not an expert opinion, but is more of a lay opinion, based upon her experience in the unit. And so I\u2019m going to go ahead and allow the testimony.\nThe jury was excused for further questioning of Clement. The prosecutor asked Clement: \u201c[B]ased on your experience, what percentage of the children that you personally interviewed have a delayed disclosure. Do you know what I mean by that?\u201d Clement answered, \u201cYes, I do. It\u2019s been awhile since I reviewed the statistics, but it\u2019s greater than 50 percent.\u201d Clement explained that this percentage was based on her personal experience and the S.A.F.E. House\u2019s internal record-keeping. Clement later clarified: \u201cI was really referring to what I\u2019m remembering about the data. I certainly can\u2019t say what percentage of kids I interviewed, because I didn\u2019t keep track of that.\u201d\nWhen the jury returned, the prosecutor asked Clement, \u201cCan you put a percentage on how many children delay in disclosing?\u201d Clement stated that she could not give a percentage, but that \u201c[i]n the majority of children that I\u2019ve interviewed at the [S.A.F.E.] House, there is a delay in disclosure.\u201d When the issue was raised once again prior to closing arguments, the district court stated, \u201cI think it\u2019s fairly well-known and considered of people in the field that... delayed reporting is common in these types of cases. ... I don\u2019t find it in any way to be a stretch or outside, you know, learned treatises and other facts[.]\u201d\nIn its closing argument, the State told the jury that it was \u201cto determine whether or not [it] believefd Victim]\u201d and that if it \u201cbelieve[d] that she was telling the truth . . . , then the State has proven its case[.]\u201d The jury found Defendant guilty of CSPM. Defendant was sentenced and this appeal followed.\nDISCUSSION\nDefendant raises two issues on appeal. First, he contends the district court erred in allowing Clement to testify that a majority of children she interviewed delayed in disclosing sexual abuse because her statement was not a lay opinion, and she was not qualified as an expert to offer such testimony. Second, he contends the district court erred in failing to excuse three jurors for cause. Because we agree that the district court erred with respect to Clement\u2019s lay testimony about delayed disclosure, and because we conclude that the error was not harmless, we reverse Defendant\u2019s conviction and do not address the juror issue.\nA. The Behavior of Child Victims of Sexual Abuse in General is Not a Proper Subject for Lay Testimony\nDefendant contends the district court erred in allowing Clement to testify about the frequency of delayed disclosure of sexual abuse in children because this is not a proper subject for lay testimony. Generally, we review a district court\u2019s evidentiary rulings for an abuse of discretion. State v. Martinez, 2008-NMSC-060, \u00b6 10, 145 N.M. 220, 195 P.3d 1232. But we review de novo \u201c[a] misapprehension of the law upon which a court bases an otherwise discretionary evidentiary ruling[.]\u201d Id.; see also State v. Torres, 1999-NMSC-010, \u00b6 28, 127 N.M. 20, 976 P.2d 20 (\u201c[T]he threshold question of whether the trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal.\u201d).\nNew Mexico courts have reported numerous decisions addressing the admissibility of expert testimony on the subject of the behavior of children who allege sexual abuse. See, e.g., State v. Casaus, 1996-NMCA-031, \u00b6\u00b6 31-32, 121 N.M. 481, 913 P.2d 669 (affirming admission of expert testimony about how a child remembers an event); State v. Newman, 1989-NMCA-086, \u00b6\u00b6 11, 15, 109 N.M. 263, 784 P.2d 1006 (affirming admission of expert testimony concerning the general characteristics of sexually abused children). However, we have no published authority addressing the admissibility of lay testimony on the subject of children\u2019s behavior when alleging sexual abuse.\nRule 11-701 NMRA governs the admissibility of opinion testimony by lay witnesses and provides:\nIf a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is\nA. rationally based on the witness\u2019s perception,\nB. helpful to clearly understanding the witness\u2019s testimony or to determining a fact in issue, and\nC. not based on scientific, technical, or other specialized knowledge within the scope of Rule 11-702 NMRA.\nRule 11-702 allows a witness \u201cwho is qualified as an expert\u201d to testify \u201cin the form of an opinion or otherwise\u201d if the witness has \u201cscientific, technical, or other specialized knowledge\" that \u201cwill help the trier of fact to understand the evidence or to determine a fact in issue.\u201d (Emphasis added.)\nDefendant contends that the frequency of delayed reporting of sexual abuse by children is not a proper subject for lay testimony and can only be admitted through expert testimony. Defendant characterizes Clement\u2019s testimony as \u201cgeneralities in a specialized area in the abstract.\u201d The State argues that Clement\u2019s testimony was properly admitted under Rule 11-701 because it was based on Clement\u2019s personal observations, not any specialized knowledge. We disagree with the State.\nOther authorities have concluded that testimony about the behavior of sexually abused children must be admitted as expert testimony and not lay testimony. In State v. Gonzalez, 834 A.2d 354, 356-59 (N.H. 2003), the New Hampshire Supreme Court held that a social worker\u2019s and detective\u2019s testimony about the frequency of victim recantations or denials and of delayed disclosure of sexual abuse could not be admitted as lay opinion. There, the detective testified at trial that he was trained to interview child victims of sexual abuse and that based on his experience as a lead investigator, \u201cit is not unusual for a sexual assault victim to delay disclosure.\u201d Id. at 359. The court concluded that this testimony should have been excluded. It explained, \u201cWhile [the detective\u2019s] testimony was based upon his personal observations while investigating sexual assault cases, his observations and conclusions regarding the frequency of delayed disclosures required specialized training, experience^] and skill not within the ken of the ordinary person.\u201d Id. (internal quotation marks and citation omitted); see also 1 Paul DerOhannesian II, Sexual Assault Trials \u00a7 11.17 at 856 (3d ed. 2006) (\u201cOpinions about sexual abuse victims\u2019 denials and recantations ordinarily require training, observations, and experience not within the common knowledge of the general public and are not admissible as lay witness testimony.\u201d). We agree with these authorities and conclude that statements about the behavior of children alleging sexual assault is not a proper subject for lay testimony because it is neither the kind of personal observation that a lay person is capable of making nor common knowledge within the general public.\nThe record reflects that the district court conflused the requirements of Rule 11-701 and Rule 11-702. The district court explained that it would allow Clement to testify about delayed disclosure \u201cbased upon her training, and most especially, her experience in meeting with these children who are victims of sexual assault}.]\u201d The fact that, as part of Clement\u2019s training and experience, she learned that delay occurred in a number of cases of alleged child abuse is not a legitimate .basis for admitting the opinion of a lay witness; it can be important in admitting the opinion of an expert witness. See Rule 11-702 (defining an expert witness as \u201c[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education\u201d). Training and experience are factors to be considered in evaluating expert testimony, not lay testimony. The court also explained that the frequency of delayed reporting is well-known by people in this field and reflected in learned treatises. Knowledge contained in treatises and understood by practitioners in their particular field is the type of testimony presented by an expert witness because it is not the type of information generally known by an ordinary citizen or the general public. See Hopkins v. State, 639 So. 2d 1247, 1252-53 (Miss. 1993) (reversing the defendant\u2019s conviction where a social worker testified as a lay witness regarding the defendant\u2019s prior crime of a pedophilic nature to establish that such a crime was relevant for the propensity of truthfulness and to impeach the defendant\u2019s credibility without additional expert testimony relying on statistical studies or treatises).\nMoreover, during her voir dire examination Clement said that her statement on delayed disclosure was based not just on her personal observations, but also on specific statistics compiled in the S.A.F.E. House\u2019s specialized work environment. She explained that, in answering the prosecutor\u2019s question about the frequency of delayed disclosure, she \u201cwas really referring to what [she was] remembering about the data.\u201d Thus, her statement about delayed disclosure data was based on \u201cspecialized knowledge\u201d and thus should not have been admitted under Rule 11 - 701. See Rule 11-701 (stating that lay witness opinion testimony cannot be \u201cbased on scientific, technical, or other specialized knowledge within the scope of Rule 11-702\u201d).\nWe conclude that the district court erred in allowing Clement to testify as a lay witness that \u201c[i]n the majority of children that I\u2019ve interviewed at the [S.A.F.E.] House, there is a delay in disclosure.\u201d We reach this conclusion because this statement was based on \u201cspecialized knowledge\u201d within the purview of experts under Rule 11-702 and infers that Victim\u2019s delayed disclosure was consistent with most of the children that Clement has interviewed.\nB. The Error in Allowing the Interviewer to Testify Regarding the Frequency of Delayed Reporting in Child Abuse Victims Was Not Harmless\nWe next consider whether the district court\u2019s error in admitting Clement\u2019s testimony on delayed disclosure was harmful. See State v. Tollardo, 2012-NMSC-008, \u00b6 25, 275 P.3d 110 (\u201cImproperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful.\u201d). \u201cWe review improperly admitted evidence for non-constitutional harmless error.\u201d State v. Serna, 2013-NMSC-033, \u00b6 22, 305 P.3d 936. A non-constitutional error is harmless \u201cwhen there is no reasonable probability the error affected the verdict.\u201d Tollardo, 2012-NMSC-008, \u00b6\u00b6 36, 42 (internal quotation marks and citation omitted) (stating that the \u201ccentral inquiry\u201d of non-constitutional harmless error analysis is \u201cwhether [the] error was likely to have affected the jury\u2019s verdict\u201d).\nIn \u201c \u2018assessing the probable effect of evidentiary error,\u2019 \u201d we \u201c \u2018should evaluate all of the circumstances surrounding the error.\u2019 \u201d Serna, 2013-NMSC-033, \u00b6 23 (quoting Tollardo, 2012-NMSC-008, \u00b6 43). These circumstances include \u201cthe source of the error [and] the emphasis placed on the error,\u201d Serna, 2013-NMSC-033, \u00b6 23; \u201cthe other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error played at trial],]\u201d State v. Leyba, 2012-NMSC-037, \u00b6 24, 289 P.3d 1215; \u201cthe importance ofthe erroneously admitted evidence in the prosecution\u2019s case,\u201d State v. Lovett, 2012-NMSC-036, \u00b6 55, 286 P.3d 265 (alteration, internal quotation marks, and citation omitted); and \u201cwhether the error was cumulative or instead introduced new facts[,]\u201d Tollardo, 2012-NMSC-008, \u00b6 43 (alteration, internal quotation marks, and citation omitted). We remain mindful that \u201c[t]hese considerations, however, are not exclusive].]\u201d Serna, 2013-NMSC-033, \u00b6 23. \u201c[T]hey are merely a guide to facilitate the ultimate determination \u2014 whether there is a reasonable probability that the error contributed to the verdict.\u201d Id. The State bears the burden to prove that the error was harmless. See State v. Stephen F., 2008-NMSC-037, \u00b6 38, 144 N.M. 360, 188 P.3d 84.\nThe State contends that any error was harmless because there was sufficient evidence of Defendant\u2019s guilt even in the absence of Clement\u2019s testimony about delayed disclosure. We disagree for the following reasons.\nFirst, the State was \u201cthe source of the error,\u201d not Defendant. See Serna, 2013-NMSC-033, \u00b6 23. Defendant did not elicit Clement\u2019s improper testimony \u2014 the State did.\nSecond, the delayed disclosure testimony was not \u201ccumulative\u201d \u2014 it presented the jury with the \u201cnew fact[]\u201d that in \u201cthe majority of children [Clement interviewed at the S.A.F.E. House], there was a delay in disclosure.\u201d See Lovett, 2012-NMSC-036, \u00b6 55.\nThird, although the State did not place \u201cemphasis\u201d on the delayed disclosure testimony, this testimony was important to its case. See Serna, 2013-NMSC-033, \u00b6 23; Lovett, 2012-NMSC-036, \u00b6 55. It was important, no -matter how briefly it was discussed, because it was designed to lead the jury to infer that Victim\u2019s delay in disclosing the incident was justified \u2014 an inference that would support Victim\u2019s credibility. See Miller v. Commonwealth, 77 S.W.3d 566, 571 (Ky. 2002) (determining that \u201c[t]here could be only two possible purposes for [questioning an expert about whatpercentage of children delay in reporting sexual abuse]: (1) to prove that [the victim] had, in fact, been abused because, like other abused children, she delayed reporting the abuse; or (2) to disprove an \u2022inference of fabrication arising from the delay in reporting\u201d).\nFourth, although we agree with the State that the other non-objectionable evidence admitted at trial would be sufficient to uphold the conviction, we do not analyze this evidence for \u201csufficiency\u201d; instead, we look at it \u201cto evaluate what role the [erroneously admitted evidence] played at trial.\u201d Leyba, 2012-NMSC-037, \u00b6 24. The only other evidence was Victim\u2019s testimony, her mother\u2019s testimony that Victim had told her about the incident, and Defendant\u2019s denials to the Victim\u2019s mother and the police. The State told the jury in its closing argument that this case was about \u201cwhether or not [the jury] believe[d Victim.]\u201d Thus, the \u201crole\u201d of the delayed disclosure testimony was to support Victim\u2019s credibility, which, as the State recognized in its closing argument, was the central factual issue that the jury was to determine at trial \u2014 whether Victim \u201cwas telling the truth.\u201d\nWe conclude that there is a reasonable probability that Clement\u2019s lay testimony on delayed disclosure affected the verdict. Where, as here, the improperly admitted evidence goes to the primary issue of credibility in a sexual abuse case, it is more likely to be prejudicial. Clement testified to her extensive training and experience working with victims of child sexual abuse over a six-year period with between 1400 to 1600 S.A.F.E. House interviews that she conducted. As a result, Clement\u2019s delayed-reporting testimony had the reasonable probability of carrying sufficient weight to have an impact and effect upon the jury. See State v. Marrington, 73 P.3d 911, 917 (Or. 2003) (concluding that erroneously admitted expert testimony about delayed reporting was harmful because the case \u201cinvolved a swearing contest}, t]he victim claimed that there had been sexual contact in the form of inappropriate touching}, the] defendant denied that it had occurred[, with there being] no other witnesses to the touching, and there was no physical evidence of any kind that corroborated the alleged abusef, thus t]he victim\u2019s delayed reporting was not a tangential issue, but [was] a central factual issue in this case\u201d); see also Stephen F., 2008-NMSC-037, \u00b6\u00b6 41-42 (concluding that the improper exclusion of a victim\u2019s motive to fabricate was not harmless error in an alleged rape case because our courts \u201ccannot overlook the fact that this [type of] case \u2014 like so many of its kind \u2014 boils down to a question of credibility\u201d); State v. Fairweather, 1993-NMSC-065, \u00b6\u00b6 19-20, 116 N.M. 456, 863 P.2d 1077 (holding that erroneous admission of expert\u2019s testimony about sexual abuse victim\u2019s truthfulness was harmful because \u201c[credibility ... was a pivotal issue at trial\u201d); State v. Lucero, 1993-NMSC-064, \u00b6\u00b6 21-22, 116 N.M. 450, 863 P.2d 1071 (concluding that an erroneous admission of expert testimony as to a sexual abuse victim\u2019s credibility was not harmless error because \u201c[t]he only witnesses to the alleged abuse were the defendant and the complainant\u201d and \u201ccredibility was a pivotal issue in [the] case\u201d); cf State v. Marquez, 2009-NMSC-055, \u00b6 25, 147 N.M. 386, 223 P.3d 931 (concluding improperly admitted evidence was not harmless because it undermined the defendant\u2019s credibility), overruled on other grounds by Tollardo, 2012-NMSC-008, \u00b6 37 n.6.\nCONCLUSION\nDefendant\u2019s conviction is reversed. Because Victim\u2019s testimony provided sufficient other evidence to support a conviction, we remand to the district court for a new trial. See State v. Dowling, 2011-NMSC-016, \u00b6 18, 150 N.M. 110, 257 P.3d 930 (recognizing that double jeopardy protections do not bar retrial where sufficient evidence was presented to support a conviction).\nIT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nMICHAEL E. VIGIL, Judge", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellee", "Law Offices of the Public Defender \u25a0 Jorge A. Alvarado, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe,NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-015\nFiling Date: December 16, 2014\nDocket No. 32,530\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. JESSE DURAN, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellee\nLaw Offices of the Public Defender \u25a0 Jorge A. Alvarado, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe,NM for Appellant" }, "file_name": "0262-01", "first_page_order": 278, "last_page_order": 285 }