{ "id": 4240687, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. AUGUSTINE TAPIA, Defendant-Appellant", "name_abbreviation": "State v. Tapia", "decision_date": "2015-04-20", "docket_number": "No. 35,182; No. 35,190; Docket No. 32,277", "first_page": "663", "last_page": "678", "citations": [ { "type": "official", "cite": "2015-NMCA-048" } ], "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": "1988-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "weight": 5, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "2011-NMCA-046", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4248994 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0536-01" ] }, { "cite": "114 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731625 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/114/0659-01" ] }, { "cite": "1992-NMSC-051", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0 }, { "cite": "2002-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260694 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0505-01" ] }, { "cite": "884 P.2d 1369", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "323-24", "parenthetical": "summarizing the Daniels test" } ], "opinion_index": 0 }, { "cite": "459 P.2d 225", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 6, "year": 1969, "pin_cites": [ { "parenthetical": "in bank" }, { "page": "227-28" }, { "page": "231, 238" }, { "page": "238" }, { "page": "238" } ], "opinion_index": 0 }, { "cite": "1998-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834282 ], "weight": 3, 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"category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783611 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0549-01" ] }, { "cite": "110 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716983 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0517-01" ] }, { "cite": "1990-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352678 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 40" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0117-01" ] }, { "cite": "92 N.M. 680", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557198 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/92/0680-01" ] }, { "cite": "1979-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { 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{ "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "1994-NMSC-121", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "116 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727611 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/116/0746-01" ] }, { "cite": "1994-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 3-4" } ], "opinion_index": 1 }, { "cite": "334 P.3d 425", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2014-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 1 }, { "cite": "331 P.3d 930", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2014-NMCA-088", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239960 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 38" } ], "opinion_index": 1, "case_paths": [ "/nm-app/6/0503-01" ] }, { "cite": "2000-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106501 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 1, "case_paths": [ "/nm/128/0777-01" ] }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 1, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "1994-NMSC-121", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1475, "char_count": 49727, "ocr_confidence": 0.776, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34711135668527393 }, "sha256": "40cd0286f83c03483a4e05a1394cf7510942381c6b1b13ae1f562be354101ce3", "simhash": "1:592ab05afbfee278", "word_count": 8114 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "CYNTHIA A. FRY, Judge", "TIMOTHY L. GARCIA, Judge, (concurring in part, dissenting in part).", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. AUGUSTINE TAPIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\nDefendant appeals his conviction for five counts of criminal sexual penetration of a minor (CSPM), five counts of criminal sexual contact of a minor (CSCM), and four counts of kidnapping. He asserts: (1) there was insufficient evidence presented at trial to support all but one of his convictions for CSPM and CSCM; (2) the State failed to prove two counts of CSPM were separate and distinct from one another; (3) the conduct charged as kidnapping was incidental to sexual assault and not a separate crime; (4) the jury instructions were contradictory, resulting in fundamental error; and (5) the district court erred by allowing a non-expert witness to testify that her findings were consistent with sexual abuse. We affirm in part, reverse in part, and remand for \u25a0 resentencing in accordance with this Opinion.\nBACKGROUND\nDefendant\u2019s convictions are a product of multiple instances of sexual assault perpetrated against his eight-year-old daughter, H.T., and his four-year-old stepdaughter, L.T. Both victims testified attrial, as did the physician\u2019s assistant (the PA) who examined the girls following the sexual assaults. Due to the numerous counts of conviction and the many issues on appeal, we reserve further discussion of the underlying facts for the accompanying analysis.\nCSPM CONVICTIONS\nA jury convicted Defendant of five instances of CSPM: Counts 2, 8, 11, 12, and 13. Counts 2 and 13 charged Defendant with digitally penetrating the vaginas of L.T. and H.T., respectively. Count 8 charged Defendant with engaging in anal intercourse with H.T. Counts 5,7, 11, and 12 arose from Defendant engaging in what constitutes the statutory definition of \u201csexual intercourse\u201d with L.T. and H.T.\nDefendant appeals his CSPM convictions on Counts 2,8,11, and 13, asserting that there was insufficient evidence presented at trial to support digital vaginal penetration, anal penetration, or \u201csexual intercourse.\u201d Our sufficiency of the evidence review is a two-step process: we first view the evidence in the light most favorable to the verdict, and then we legally determine \u201cwhether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.\u201d State v. Apodaca, 1994-NMSC-121, \u00b6 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citation omitted). We do not reweigh the evidence, nor will we substitute our judgment for that of the fact finder so long as the record contains sufficient evidence to support the verdict. State v. Sutphin, 1988-NMSC-031, \u00b6 21, 107 N.M. 126, 753 P.2d 1314. \u201cWhere ... a jury verdict in a criminal case is supported by substantial evidence, the verdict will not be disturbed on appeal.\u201d Id.\n\u201cCriminal sexual penetration\u201d as defined by NMSA 1978, Section 30-9-11(A) (2009), in relevant part, is \u201cthe unlawful and intentional causing of a person to engage in sexual intercourse ... or the causing of penetration, to any extent and with any object, of the genital or anal openings of another[.]\u201d UJI 14-982 NMRA defines \u201csexual intercourse\u201d as \u201cthe penetration of the vulva or vagina, the female sex organ, by the penis . .. to any extent.\u201d The \u201cvulva\u201d is defined as \u201cthe external parts of the female organ of sexual intercourse[,] . . . composed of the major and minor lips, the clitoris and the opening of the vagina[,]\u201d and the \u201cvagina\u201d is \u201cthe canal or passage for sexual intercourse in the female, extending from the vulva to the neck of the uterus.\u201d UJI 14-981 NMRA.\nA. Counts 2 and 13: Digital Vaginal Penetration\nThe State alleged in Counts 2 and 13 that Defendant penetrated the vaginas of L.T. and H.T., respectively, with his finger. At trial, L.T. testified that one night when she was alone in the living room with Defendant, he \u201crubbed\u201d her \u201cprivates\u201d with his hand. L.T. did not provide any additional details about specifically how or where Defendant touched her. The PA who examined L.T. for evidence of sexual abuse, later that same day, testified that she observed redness on L.T.\u2019s labia majora and minora, including a small scratch to the right labia minora. The PA indicated that her observations could be the result of sexual abuse, L.T.\u2019s underwear being too tight, scratching herself, \u201cor something like that.\u201d Similarly, as to Count 13, H.T. testified that Defendant would \u201cslide his fingers up and down on [her] private part.\u201d H.T. elaborated that Defendant would not move his fingers \u201cin and out\u201d but \u201cup and down.\u201d When the PA examined H.T. several days later, she did not observe any injuries.\nAs to each count, the jury was instructed that in order to find Defendant guilty of CSPM, it must find that the State proved that Defendant \u201ccaused the insertion, to any extent, of a finger into the vagina\u201d of L.T. and H.T. Although it was instructed as to the statutory definitions of both \u201cvagina\u201d and \u201cvulva,\u201d the jury was not told that penetration of the latter was sufficient to find Defendant guilty of either or both counts. Defendant contends that this exclusion is fatal to the convictions. The State answers that use of the term \u201cvagina\u201d in the jury instructions for Counts 2 and 13 was sufficient to support convictions for CSPM premised upon the testimony of L.T. and H.T. because \u201cvagina\u201d as contained in the jury instruction \u201cwas meant to'convey not just the vaginal canal but rather the area of the vulva or genital openings of the female.\u201d The State relies on this Court\u2019s clarification in State v. Tafoya that the definition of sexual intercourse, as contained within the jury instruction for CSPM, includes not only penetration of the vagina but of the vulva as well. 2010-NMCA-010, \u00b6 52, 147 N.M. 602, 227 P.3d 92.\nIt is true that in Tafoya, we held that the definition of \u201csexual intercourse\u201d includes penetration not just of the vagina, but also of the vulva; thus, we concluded that the CSPM statute was meant to be inclusive of the \u201cbroader sense of the female genitalia as opposed to just the vaginal canal.\u201d Id. Indeed, the statutory definition of vagina is inclusive of the vulva. See UJI 14-981 (stating that the \u201cvagina\u201d is \u201cthe canal or passage for sexual intercourse in the female, extending from the vulva to the neck of the uterus\u201d). Our holding in Tafoya in no way altered the anatomical definition of \u201cvulva\u201d and \u201cvagina\u201d as defined by our' Supreme Court, see UJI 14-981, when it amended UJI 14-982 (2010), nor do we view Tafoya as requiring anatomical specificity in every case in which the sexual organs of a child have been penetrated to the slightest degree. Compare UJI 14-982 (2009) with UJI 14-982 (2010) (modifying the definition of sexual intercourse to include penetration of the vagina as well as the vulva). To the contrary, the statutory language clearly instructs that CSPM occurs if the Defendant engaged in an act of \u201cpenetration[] to any extent.\u201d Section 30-9-11 (A). Although there may be circumstances of a given case that warrant scrutiny of particular parts of the genitalia, pursuarit to the sufficiency of the evidence standard of review, we review the evidence in the light most favorable to the verdict this jury rendered. See Sutphin, 1988-NMSC-031, \u00b6 21 (stating that under a sufficiency of the evidence standard of review, we \u201cmust view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict\u201d).\nMoreover, at trial Defendant elected not to challenge the CSPM charges against him based upon any absence of definitional distinctions, but rather upon the victims\u2019 lack of credibility and the factual impossibility of the occurrences of the charged crimes. Defendant\u2019s closing argument was premised upon the difficulty of defending this case, stating \u201chow does one . . . explain [that] a child isn\u2019t being truthful[?] We all want to believe that a child wouldn\u2019t lie about something like this[.]\u201d Yet Defendant now argues that the evidence and the inferences from the evidence do not support the jury verdict, not from the standpoint of nonoccurrence, but from the asserted failure of the State to present evidence of precisely which portion of the victims\u2019 genitalia were penetrated by his fingers. When reviewing the presence or absence of substantial evidence on appeal, however, we need not be so anatomically exacting. Here, the nature of the acts testified to by both victims involved physical interaction that was skin to skin, and during which Defendant rubbed or repetitiously slid his fingers upon both child\u2019s unclothed genital openings. Moreover, given that L.T. and H.T. were seven and eleven years old at the time they testified, respectively, it would be unwise for us to establish within our caselaw any requirement that the trial record reflect comprehension of anatomic specifics or the technical nuances of what constitutes penetration under the applicable jury instruction. Applying the definitions of vagina and vulva in light of the requirement that penetration minimally occur to any extent, the testimony given by both victims, and the PA as to L.T., was sufficient to allow a jury to utilize its fact finding autonomy to find that the State satisfied its evidentiary burden as to the penetrative element of CSPM within Counts 2 and 13. On the basis of this record as to these Counts, we affirm.\nB. Count 8: Anal Penetration\nCount 8 alleged that Defendant engaged in anal intercourse with H.T. At trial, H.T. testified that Defendant \u201cgot his private part and put it up where I go poop.\u201d On cross-examination when defense counsel sought to determine whether Defendant \u201cput his private on [her] butt ... or in [her] butt[,]\u201d H.T. clarified that it actually went \u201cin.\u201d The jury was instructed that in order to find Defendant guilty of CSPM as to Count 8, the State must prove that Defendant \u201ccaused [H.T.] to engage in anal intercourse^]\u201d It was also instructed that \u201canal intercourse\u201d is \u201cthe penetration of the anus by the penis to any extent\u201d and that the \u201c \u2018anus\u2019 is the opening to the rectum.\u201d The jury found Defendant guilty on Count 8.\nOn appeal, Defendant contends that CSPM requires penetration of the anal opening, and because H.T. was never \u201casked whether she understood the difference between penetrating the cheeks of the buttocks and penetrating the anus itself[,]\u201d there was no evidence of physical penetration. Defendant maintains that H.T.\u2019s testimony was \u201ctoo vague and conclusory to allow the jury to infer beyond a reasonable doubt that [Defendant] penetrated her anus, as opposed to touching her buttocks with his unclothed penis.\u201d Defendant relies on Herron v. State for the proposition that \u201c[e]vidence equally consistent with two hypotheses tends to prove neither.\u201d 1991-NMSC-012, \u00b6 18, 111 N.M. 357, 805 P.2d 624.\nIt is well established that in \u201cprosecutions for [CSP], the testimony of the victim need not be corroborated and lack of corroboration has no bearing on weight to be given to the testimony,\u201d State v. Nichols, 2006-NMCA-017, \u00b6 10, 139 N.M. 72, 128 P.3d 500 (alterations, internal quotation marks, and citation omitted). Furthermore, \u201c[t]he determination of the weight and effect of evidence, including all reasonable inferences to be drawn from both direct and circumstantial evidence, is reserved for determination by the trier of facts, which in this case is the jury.\u201d State v. Luna, 1979-NMCA-048, \u00b6 15, 92 N.M. 680, 594 P.2d 340. This Court will not weigh the evidence presented during the trial. Id. H.T.\u2019s testimony made very clear that Defendant put his penis both \u201cin [her] butt\u201d and \u201cup where [she goes] poop.\u201d By its guilty verdict, the jury determined that Defendant penetrated H.T.\u2019s anus. See State v. Smith, 2001-NMSC-004, \u00b6 40, 130 N.M. 117, 19 P.3d 254 (\u201cJuries are presumed to have followed the written instructions.\u201d). We will not substitute our judgment for that of the jury. Sutphin, 1988-NMSC-031, \u00b6 21. Because evidence within the record is sufficient to support Defendant\u2019s conviction for CSPM in Count 8, we affirm.\nC. Counts 5, 7, and 11: \u201cSexual Intercourse\u201d\nCounts 5, 7, and 11 respectively alleged that Defendant committed CSPM by engaging in \u201csexual intercourse\u201d with H.T. and L.T. The State maintained that Defendant penetrated the labia of both victims with his penis, an act that it termed \u201clabial coitus.\u201d For each count, the jury was provided with the CSPM instruction; however, as to Count 5, the jury was alternatively instructed as to CSCM. The jury ultimately found Defendant guilty of CSPM as to H.T. in Count 11 and guilty of CSCM as to L.T. in Count 5. Defendant was acquitted of Count 7.\nDefendant appeals all three counts, arguing that the State failed to prove its theory of labial coitus as neither victim testified that any penetration occurred. Because Defendant was acquitted of Count 7, there is no basis on which to review Defendant\u2019s argument. As to Count 5, Defendant was convicted of CSCM, which contains no penetrative element. We therefore need only review Defendant\u2019s argument as it pertains to his CSPM conviction in Count 11.\nRegarding Count 11, the jury was instructed that in order to find Defendant guilty, the State must have proven that Defendant \u201ccaused [H.T.] to engage in sexual intercourse])]\u201d The jury was definitionally instructed that \u201c[s]exual intercourse means the penetration of the vulva or vagina ... by the penis\u201d and that the \u201cvulva\u201d is \u201cthe external parts of the female [sex] organ . . . composed of the major and minor lips, the clitoris and the opening of the vagina.\u201d Accordingly, to any'extent that Defendant\u2019s penis penetrated beyond or within H.T.\u2019s labia majora, the outermost lips of the vulva, such would constitute \u201csexual intercourse\u201d for purposes of CSPM.UJI 14-981; see \u00a7 30-9-11(A).\nAs to Count 11, H.T. testified that she was made to remove her clothing and await Defendant on her mother\u2019s bed prior to the first time he sexually assaulted her. Once Defendant had removed his own clothing, he \u201cput his private part on [her private part]\u201d and started moving \u201cup and down.\u201d H.T. additionally explained that \u201cevery time after he abused [her], he would get up and . . . shake his private part and white stuff would come out.\u201d As we have stated, we allow a jury all reasonable inferences in support of a verdict, and we view the evidence in the light most favorable to that verdict. State v. Haar, 1990-NMCA-076, \u00b6 14, 110 N.M. 517, 797 P.2d 306. Under this standard, we conclude there is sufficient evidence for the jury to determine that Defendant\u2019s repeated movement of his penis against H.T.\u2019s unclothed genitalia, prior to the emission she witnessed, penetrated the labia majora to the slightest .extent or beyond, and thereby met the penetrative element of the \u201csexual intercourse\u201d CSPM jury instruction. Considered cumulatively, the act described by H.T. was evidence upon which a jury could conclude that penetration \u201cto any extent\u201d took place. Section 30-9-11(A). We will not second guess or substitute our judgment for such a jury\u2019s determination of fact, nor require a child victim to utilize specific and exacting terminology in the context of a sexual assault to establish the threshold of abuse a jury, must consider given the aggregate testimony provided by such a witness. We affirm Defendant\u2019s conviction on Count 11.\nCSCM CONVICTIONS\nA. Counts 3 and 4\nDefendant' was charged with two counts of CSCM based on the State\u2019s assertion that Defendant twice forced L.T. to place her hand upon his penis. The jury convicted Defendant on both counts. Defendant appeals these convictions, arguing that there was insufficient evidence presented at trial to prove two separate and distinct counts of CSCM. Despite L.T.\u2019s testimony, Defendant maintains that there was insufficient evidence to support the convictions because H.T.\u2019s testimony, that she was present during and perceived the nature of this abuse of L.T., was both self-contradictory and incompetent due to her indirect personal knowledge of the relevant facts.\nAt the outset, we note that the language within and the jury instructions for both Counts 3 and 4 are identical, requiring conviction only upon the jury\u2019s determination beyond a reasonable doubt that Defendant \u201ccaused [L.T.] to touch [his] penis . . . [and] [t]his happened in New Mexico on or between the 26th day of July, 2008 and the 12th day of November, 2009.\u201d Despite their seeming indistinguishability, L.T. and H.T. provided testimony in support of separate acts of CSCM. See State v. Dominguez, 2008-NMCA-029, \u00b6 10, 143 N.M. 549, 178 P.3d 834 (sanctioning identically worded counts \u201c[w]hen a child cannot remember specific dates, ... if the child or other witnesses are able to provide facts sufficient to identify distinct incidents of abuse\u201d). L.T. specifically testified that Defendant \u201ctouched [her] privates and then he made [her] touch his.\u201d She elaborated, stating that \u201cI touched [his penis] with my hand and then . . . he . . . got my hand and he made [me] touch it and then I pulled my hand off and he kept pulling it back.\u201d Similarly, H.T. testified to two incidents where she and L.T. were both in the same room with Defendant. H.T. stated that during both incidents Defendant \u201cmade us put . . . our hand on his private part.\u201d When asked whether she directly observed L.T.\u201cdo that to him[,]\u201d however, H.T. responded that she had not.\nL.T.\u2019s testimony alon\u00e9is sufficient to establish one count of CSCM. See Sutphin, 1988-NMSC-031, \u00b6 21. Additionally, H.T.\u2019s testimony served to not only circumstantially corroborate L.T.\u2019s testimony regarding the act Defendant made L.T. perform, but also to establish its occurrence on two occasions. As to the nature of the specific abuse, H.T. testified that Defendant made both her and L.T. touch his penis, but conceded that she did not directly see L.T.\u2019s hand when it touched Defendant\u2019s penis. Defendant maintains that if H.T. \u201csubjectively believed but did not actually see [L.T.] being abused, her belief was not competent testimony\u201d under Rule 11 - 602 NMRA.\nDefendant is correct that our Supreme Court recognizes \u201c[b] elief or opinion testimony alone, no matter how sinceref, not to be] equivalent to personal knowledge\u201d and therefore not admissible evidence. Martinez v. Metzgar, 1981-NMSC-126, \u00b6 9, 97 N.M. 173, 637 P.2d 1228. But Defendant\u2019s argument in this regard is misplaced. H.T. did not testify that she believed, thought, or assumed that L.T. touched Defendant\u2019s penis. She stated that on two occasions Defendant \u201cmade us put . . . our hand on his private part.\u201d The circumstances under which she and L.T. found, themselves, which included the individual actions Defendant required of H.T., were described to the jury not as belief or opinion, but as an event of which H.T. possessed personal knowledge, however imperfect. As to one participant in the events she described, H.T.\u2019s testimony directly corroborated L.T.\u2019s testimony, leaving the jury with both direct and circumstantial evidence upon which it could resolve the separate and distinct questions of fact associated with Counts 3 and 4. See State v. Sena, 2008-NMSC-053, \u00b6 11, 144 N.M. 821, 192 P.3d 1198 (\u201cWhenparts of a witness\u2019s testimony are conflicting and ambiguous, it is the exclusive province of the jury to resolve the factual inconsistencies in that testimony.\u201d (alterations, internal quotation marks, and citation omitted)). Because it is the jury\u2019s role to resolve any conflict in witness testimony, and H.T.\u2019s testimony regarding two incidents of contact could justify a finding by a rational trier of fact that Defendant \u201ccaused [L.T.] to touch [his] penis\u201d on two separate occasions, we affirm Defendant\u2019s convictions of Counts 3 and 4. See id.\nJURY INSTRUCTIONS\nDefendant next requests that we reverse each CSCM and CSPM conviction and remand for a new trial on the basis that the jury instructions defining \u201csexual intercourse\u201d and \u201ccriminal sexual contact\u201d \u201chopelessly confus[ed]\u201d the jury. Defendant\u2019s argument again arises from the alteration in the jury instruction for \u201csexual intercourse\u201d that followed this Court\u2019s decision in Tafoya. Prior to Tafoya, UJI 14-982 defined \u201csexual intercourse\u201d as \u201cthe penetration of the vagina ... by the penis ... to any extent.\u201d UJI 14-982 (2009). However, in response to our suggestion that the instruction be modified, our Supreme Court altered it specifically to include \u201cpenetration of the vulva or vagina[.]\u201d UJI 14-982 (2010). Defendant asserts that because the CSCM instruction still includes \u201cvagina\u201d as one of the applicable alternative points of contact, it is impossible for a jury to distinguish between CSCM and \u201csexual intercourse\u201d for the purposes of CSPM because it is impossible to contact the vagina without first penetrating the vulva. UJI 14-909 NMRA.\nDefendant maintains that this instructional error fundamentally undermined his CSPM and CSCM convictions. \u201cThe doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.\u201d State v. Barber, 2004-NMSC-019, \u00b6 8, 135 N.M. 621, 92 P.3d 633. Fundamental error review serves to safeguard a defendant\u2019s substantive rights under two circumstances: (1) \u201cwhere a defendant has been convicted of a crime despite undisputable innocence\u201d and (2) \u201cwhen a mistake in process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.\u201d State v. Nevarez, 2010-NMCA-049, \u00b6 24, 148 N.M. 820, 242 P.3d 387 (internal quotation marks and citation omitted).\nThe first component in a fundamental error analysis requires that we \u201cdetermine whether a reasonable juror would have been confused or misdirected by the jury instruction.\u201d Barber, 2004-NMSC-019, \u00b6 19. If we determine that there was an instructional error, we then \u201creview the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the defendant\u2019s conviction was the result of a plain miscarriage of justice.\u201d Nevarez, 2010-NMCA-049 \u00b6 25 (alteration, internal quotation marks, and citation omitted). We have held that \u201c[tjhere is no miscarriage of justice where, despite any misunderstanding by the jury, the circumstances of the case demonstrate that all the necessary elements of the offense were satisfied beyond a reasonable doubt.\u201d Id. \u00b6 26.\nDefendant asserts that the district court fundamentally erred in instructing the jury on all counts of CSPM and CSCM. Defendant was convicted of CSCM on Counts 3, 4, 5, 9, and 14, and of CSPM on Counts 2, 11, 12, and 13. We note that the only count on which the jury received both an instruction for CSPM and CSCM was Count 5. As to each remaining count, the jury was solely instructed on either CSPM or CSCM, and therefore, there was no possible risk of confusion between the requisite elements of each offense. As such, we will solely address Count 5 in our fundamental error analysis and reject Defendant\u2019s overly broad contention that somehow the distinction in verbiage within the sexual intercourse instruction and the CSCM instruction theoretically bore aspects of overlapping error that rendered infirm the convictions as to either crime.\nInitially, we do not disagree that following the change in the definition of \u201csexual intercourse\u201d to include \u201cpenetration of the vulva,\u201d there ultimately can be no contact with the vagina without a penetration of the vulva occurring. See UJI 14-981 (indicating that the opening of the vagina is encompassed within the vulva). We acknowledge that the overlap in the language of the CSCM instruction and the sexual intercourse instruction could have resulted in some juror confusion. However, we do not conclude that incongruencies in the jury instructions were fatal to the jury\u2019s comprehension of the definitions within or the elements of the crimes of which it chose to convict Defendant or that any such discrepancy amounted to fundamental error.\nAs to Count 5, the jury was instructed that in the event that it had a reasonable doubt as to whether Defendant committed CSPM, it must proceed to determine whether Defendant committed the lesser included offense of CSCM. To find Defendant guilty of CSCM, the jury was first instructed that he must have \u201ctouched or applied force to the vagina and/or groin area of [L.T.] with his penis[.j\u201d The jury did not find Defendant guilty of CSPM on Count 5, but did find him guilty of CSCM. Similarly, the jury acquitted Defendant of Count 7, which reflects its reasoned belief that the State failed to prove Defendant engaged in \u201csexual intercourse\u201d with H.T. and neither penetrated her vulva or vagina as set forth in Count 7. Our review of the record regarding Count 5, however, indicates thatL.T. provided specific testimony describing how Defendant unzipped her pajamas, pulled down her underwear, and lay on top of her with his unclothed \u201cprivate\u201d touching her unclothed \u201cprivate,\u201d skin to skin. It is clear that the jury determined that this incident did not amount to CSPM as it convicted Defendant of the lesser-included CSCM, which instructed that Defendant could be found guilty if he \u201ctouched or applied force to the vagina and/or groin[.]\u201d\nBased on L.T.\u2019s testimony, the jury could have reasonably determined that Defendant touched her unclothed groin area with his penis, amounting to CSCM, and it is not our role to disturb this finding on appeal. See Sutphin, 1988-NMSC-031, \u00b6 21. Accordingly, \u201cno distinct possibility exists from the evidence that the jury convicted Defendant without finding all the elements beyond a reasonable doubt.\u201d Barber, 2004-NMSC-019, \u00b6 26. We conclude that the CSCM jury instruction, even though arguably flawed from the standpoint of anatomical definitional accuracy, did not create such confusion in the jury that it would undermine the judicial process. However, as a result of any ambiguity or contradiction that may arise out of the change in the definition of \u201csexual intercourse\u201d under UJI 14-982, we believe that \u201cvagina\u201d should be removed from the list of anatomy that can be included within the jury instructions for any criminal sexual contact. See Tafoya, 2010-NMCA-010, \u00b6 52 (calling into question the wording of UJI 14-982 and making a suggestion for appropriate modification).\nKIDNAPPING\nThe jury convicted Defendant of four \u25a0kidapping charges: Counts 6, 10, 15, and 16. Kidnapping in New Mexico is defined as the \u201cunlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent ... to inflict ... a sexual offense on the victim.\u201d NMSA 1978, \u00a7 30-4-l(A)(4) (2004). These charges arose from conduct attendant to the multiple sexual assaults Defendant perpetrated against H.T. and L.T. Defendant challenges these convictions, arguing that the Legislature did not intend to punish related incidental movement and restraints occurring prior to and during sexual assaults as the separate crime of kidnapping. Defendant further maintains that the evidence supporting his kidnapping convictions was insufficient as it failed to establish conduct beyond actions that were contemporaneous with and incidental to the sexual assaults.\nWe agree. Our review of these four convictions commences with a query of whether, in the light most favorable to the verdict, see State v. Gipson, 2009-NMCA-053, \u00b6 4, 146 N.M. 202, 207 P.3d 1179, the restraints and movements to which the victims testified are sufficient, as a matter of law, to support convictions for kidnapping. State v. Trujillo, 2012-NMCA-112, \u00b6 6, 289 P.3d 238, cert. granted, 2012-NMCERT-011, 297 P.3d 1227. This Court has already held that \u201cthe Legislature did not intend to punish as kidnapping restraint or mo vementfs] that [are] merely incidental to another crime.\u201d Id. \u00b6 1. In Trujillo, we analyzed whether the \u201cmomentary restraint of [a v]ictim in the course of a fight\u201d was meant to be punished as kidnapping. 2012-NMCA-l 12, \u00b6 22. After examining and interpreting our kidnapping statute, as well as those of other states, we determined that New Mexico follows the majority position that \u201ckidnapping statutes do not apply to unlawful confinements or movements incidental to the commission of other felonies.\u201d Id. \u00b6 31 (internal quotation marks and citation omitted). We additionally examined the three major tests employed by other courts to determine whether a restraint or movement is incidental to another crime, concluding that the overarching question of these three tests is \u201cwhether the restraint or movement increases the culpability of the defendant over and above his culpability for the other crime.\u201d Id. \u00b6\u00b6 31 -3 8. While we found the tests instructive to determining what conduct qualifies as incidental to another crime, we declined to explicitly adopt any of the tests on the basis that the facts of that case so clearly evidenced incidental conduct. Id. \u00b6 39. Thus, we were able to make the determination as a matter of law. Id. \u00b6 42. However, we did make it clear that the determination of incidental conduct was fact dependent based on the totality of the circumstances and stated our preference that more complicated factual situations are better resolved by a jury. Id. \u00b6\u00b6 42-43.\nIn this case, our review of the record reflects that L.T. testified to Count 6, and H.T. testified to Counts 15,16, and 10, respectively referred to as the \u201cfirst time,\u201d a \u201cdifferent time,\u201d and the \u201clast time[.]\u201d As to Count 6, L.T. testified that before Defendant sexually assaulted her, she, H.T., and Defendant were \u201cin [her] mom\u2019s room.\u201d H.T. left the room, and L.T. remained in the bedroom with Defendant. L.T. stated thatDefendant then lay on top of her on the bed and sexually assaulted her; no other evidence of restraint on her movement exists within the record. Similarly, H.T. testified that the \u201cfirst time\u201d Defendant sexually assaulted her, he \u201cmade [her] go to [her] mom\u2019s room.\u201d She later described the same incident, explaining that Defendant \u201ctook [her] to [her] mom\u2019s room.\u201d With regard to the \u201cdifferent time[,]\u201d H.T. explained that after Defendant \u201cmade\u201d her remove her clothing, they \u201cwent to [another] room[,]\u201d where the sexual assault occurred. The \u201clast time\u201d Defendant sexually assaulted H.T., she testified that she and Defendant were \u201cin [her] mom\u2019s room[,] . . . [h]e made [her] take off [her] clothes[,]\u201d and Defendant and H.T. \u201cgot on [her] mom\u2019s bed and . . . [Defendant] moved up and down and he made [her] put [her] mouth on top of his private.\u201d'\nThe State acknowledges that the sole supporting evidence of kidnapping in Count 6 is that Defendant restrained L.T. by lying on top of her during the sexual assault. It further agrees that based on this- Court\u2019s determination in Trujillo, lying on top of a victim during a sexual assault is insufficient to support a kidnapping conviction. \u201cAlthough the [s]tate concedes this issue, we are not bound to accept the [s]tate\u2019s concession.\u201d State v. Palmer, 1998-NMCA-052, \u00b6 12, 125 N.M. 86, 957 P.2d 71. However, in employing the Trujillo analysis, we determine that the nature of Defendant\u2019s incidental restraint did not increase his culpability beyond that already inherent to any sexual assault. L.T.\u2019s testimony does not assert that the restraint was any longer or greater than that necessary to commit sexual assault. See Trujillo, 2012-NMCA-112, \u00b6\u00b6 34, 39 (citing one test for determining whether a restraint is incidental to another crime as \u201cwhether a defendant intended to prevent the victim\u2019s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime\u201d (alteration, internal quotation marks, and citation omitted)). Furthermore, L.T.\u2019s testimony does not establish that the restraint imposed increased her risk of harm or the severity of the assault beyond that inherent to the underlying crime. See id. \u00b6\u00b6 36, 39 (citing a second test for determining incidental conduct, inquiring into whether the movements of the victim \u201csubstantially increase[d] the risk of harm over and above that necessarily present\u201d in the accompanying crime (internal quotation marks and citation omitted)). Lastly, the restraint herein did not serve to decrease Defendant\u2019s risk of detection or the difficulty of the commission of the crime. See id. \u00b6 37 (citing this third test for determining conduct incidental to a crime). Under any criterion we have favored or applied, the restraint L.T. described was incidental to the sexual assault perpetrated upon her and did not establish conduct that the Legislature intended to support a kidnapping conviction.\nAs to Count 10, H.T. did not explicitly testify that Defendant took, restrained, transported, or confined her. She stated that when she and Defendant were in her mom\u2019s room, he made her take off her clothes, and the two \u201cgot on [the] bed\u201d where he sexirally assaulted her. Notwithstanding, the State maintains that \u201c[a] jury could reasonably infer from [the] testimony that [Defendant exerted an independent amount of force or restraint on [H.T.] when he made her [remove her clothes] prior to exerting force or restraint during the sexual assault.\u201d Again employing the Trujillo analysis, any incidental restraint Defendant used in \u201cmaking\u201d H.T. remove her clothing is not the type of separate conduct that the Legislature intended to punish as kidnapping. This conduct did not increase Defendant\u2019s culpability beyond that inherent to the assault; the restraint was not longer or greater than necessary to complete the assault, see id. \u00b6\u00b6 34, 39; it did not increase the risk of harm to H.T. or the severity of the assault, see id. \u00b6\u00b6 36, 39; and the restraint used to compel the removal of H.T.\u2019s clothes in this situation is inherent to the sexual assault and was not done to make the commission of the crime easier or less detectable. See id. \u00b6 37. We conclude that any restraint that was utilized to compel H.T. to remove her clothing was incidental to the sexual assault.\nAs to Counts 15 and 16, we recognize that instead of examining whether a restraint was incidental to a sexual assault, we are called upon to examine whether a movement was incidental to a sexual assault. Although Trujillo primarily reviewed whether an instance of restraint was incidental to a crime, one of the major tests this Court employed in our analysis was the test detailed by the Supreme Court of California in People v. Daniels, 459 P.2d 225 (Cal. 1969) (in bank). The Daniels court specifically examined whether the movement of a victim from room to room in order to commit robbery and rape constituted kidnapping. Id. at 227-28. The California court, having already recognized that a movement in the course of a kidnapping must be one that is not merely incidental to the commission of another crime, employed a two-prong test to determine whether the movements were incidental to the commission of another crime. Id. at 231, 238; see People v. Rayford, 884 P.2d 1369, 323-24 (Cal. 1994) (summarizing the Daniels test).\nThe first prong analyzed the scope and nature of the movement in the context of the environment in which the movement occurred, and the second prong examined whether the movement subjected the victim to a substantial increase in risk of harm beyond that inherent in the accompanying crime. Id. The Court determined that when in the course of committing a crime, \u201ca defendant does no more than move [the] victim around inside the premises\u201d in which the victim is already found, the movement generally will not be determined to constitute kidnapping. Daniels, 459 P.2d at 238. Although the Court refrained from a detailed analysis into each prong of the test, it concluded that the conduct at issue constituted \u201cbrief movements\u201d that were compelled in furtherance of the robbery that did not subject the victims to a substantial increase in a risk of harm above and beyond the type of movement inherent in a robbery and, therefore, were incidental. Id.\nAs we did in Trujillo, in the context of the restraint of a victim, we apply the Daniels analysis in the context of a movement of a victim. Trujillo, 2012-NMCA-112, \u00b6 39. Here, H.T. testified that as to Count 15, Defendant \u201cmade\u201d her go or \u201ctook\u201d her into another room, and as to Count 16, she and Defendant \u201cwent\u201d into another room. In both instances, the movement was from one room to another in the family residence where they were both already located. Furthermore, this movement didnotsubjectH.T. to a substantial increase in risk of harm above and beyond that inherent in a sexual assault. See Daniels, 459 P.2d at 238. Applying the Daniels test to the facts before us, we conclude these brief movements from one room to another, in furtherance of a sexual assault, were incidental to those crimes and cannot support separate kidnapping convictions.\nAccordingly, as to Counts 6, 10, 15, and 16, we reverse Defendant\u2019s convictions as a matter of law, and conclude that the restraints and movements described in the testimony were incidental to the sexual assaults, did not exceed the conduct inherent to a sexual assault, and did not evidence the type of conduct that the Legislature intended to be used to support separate kidnapping convictions. However, we note that the factual circumstances herein enable us to make this determination as a matter of law based upon the lack of complexity in the movements and restraints described. Trujillo, 2012-NCMA-112, \u00b6 42.\nTHE PHYSICIAN ASSISTANT\u2019S TESTIMONY\nDefendant argues that the district court erred in permitting the PA, whom the district court declined to qualify as an expert witness, to testify that her physical findings were consistent with sexual abuse. The State contends that the issue was not properly preserved. We agree.\nAt trial, the State called the PA who examined the victims after the sexual assaults to testify. She explained that at the time she met the victims, she was a physician assistant at Para Los Ni\u00f1os, an agency or department at \u201c[the University of New Mexico that takes] care of children who have disclosed that they have been sexually abused or there is a concern about sexual abuse.\u201d The PA stated that during the sixteen months she worked at Para Los Ni\u00f1os, she saw 310 sexual abuse cases. She further indicated that she had previously been qualified as an expert in approximately five to seven child sexual abuse cases. The State moved to tender the PA as an expert, but the defense objected on the basis that she did not have sufficient specialized training. The district court decided that it would not qualify the PA as an expert witness as she had not performed individual research and had not been peer reviewed; however, it ruled that \u201c[s]he can talk about what she observed. She can talk about what her observations may be consistent with. She just can\u2019t come to any conclusions.\u201d The court then asked if both the State and Defendant agreed with this ruling, and both parties responded affirmatively.\nThe PA testified in a manner consistent with the ruling agreed to by the parties, stating that at the time she examined L.T., she observed erythema or redness \u201con the labia majora and minora on the right and on the clitoris.\u201d The State then asked her what the possible reasons could be for the redness, and she responded that \u201c[i]t could be sexual abuse ... [or i]t also could be scratching or something like that.\u201d The defense never objected to the question or the answer. The PA later testified that L.T. had a \u201clittle scratch\u201d on the right labia minora. Again, the State asked if this injury \u201ccould be consistent with sexual abuse[.]\u201d The PA responded affirmatively. At this point, the defense objected on the basis that the PA is not an expert in sexual abuse and it was inappropriate for her to make such a conclusion. Outside of the jury\u2019s presence, the State argued that everyone previously agreed that it was allowable for the PA to discuss whether an observation is consistent with sexual abusebut not make a definitive diagnosis. The court found that the PA could testify whether the injuries were consistent with sexual abuse, but it was up to the jury to decide whether or not the injuries were definitively a result of sexual abuse. Back in the presence of the jury, the PA provided additional examples of what could have caused the injuries, including L.T. scratching herself, wearing tight underwear, or having urine or fecal matter in her underwear.\nRule 11-103 (A)(1)(a) NMRA requires that in order to preserve a claim of error, a party must make a timely objection. \u201cGenerally, evidentiary objections must be made at the time the evidence is offered.\u201d State v. Neswood, 2002-NMCA-081, \u00b6 18, 132 N.M. 505, 51 P.3d 1159. Prior to Defendant objecting, he had already agreed that it was appropriate for the PA to testify regarding her findings and what they might be consistent with. When Defendant finally did object during the PA\u2019s subsequent testimony, the PA had already previously testified, without objection, that the injuries could be consistent with sexual abuse or with L.T. scratching herself. It was not until the PA again testified about the possibility of sexual abuse that Defendant ultimately objected. As this Court has previously determined, under evidentiary circumstances such as these, \u201cthe horse was already out of the barn when Defendant tried to shut the door; the jury had already heard [of various possible causes of the injuries] before the objection was made.\u201d Id. Defendant should have objected immediately to the district court\u2019s inquiry into whether the party\u2019s were comfortable with the PA \u201ctalking] about what her observations may be consistent with.\u201d Accordingly, we decline to review this argument any further because Defendant\u2019s objection was untimely and therefore not preserved.\nCONCLUSION\nFor the foregoing reasons, we affirm Defendant\u2019s conviction as to Counts 2, 3,4, 5, 8, 11, and 13. We reverse as to Counts 6, 10, 15, and 16. We remand for resentencing in accordance with this opinion.\nIT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nI CONCUR:\nCYNTHIA A. FRY, Judge\nTIMOTHY L. GARCIA, Judge, (concurring in part, dissenting in part).\nFollowing the district court\u2019s dismissal of some counts prior to submission to the jury, the remaining seventeen counts were renumbered consecutively. Within this opinion, we numerically refer to the counts as each was renumbered.\nAlthough Count 12 is identically worded to Count 11 in that it alleges that Defendant engaged in \u201csexual intercourse\u201d with H.T., wo note that Defendant does not appeal this conviction. Therefore, we will not address it in our analysis. See City of Santa Fe v. Komis, 1992-NMSC-051, \u00b6 22, 114 N.M. 659, 845 P.2d 753 (\u201cIssues not briefed will not be reviewed by this Court.\u201d).\nWe assume Defendant requests fundamental error review on the basis that this asserted objection was not preserved in the district court. See State v. Castillo, 2011-NMCA-046, \u00b6 29, 149 N.M. 536, 252 P.3d 760 (stating that when a defendant fails to preserve an argument in district court, this Court can only review for fundamental error). Defendant fails to provide a citation to the record where he obj ected to the instructions now challenged, and this Court will not search the record to ascertain whether an issue was properly preserved absent a transcript reference by the challenging party. State v. Rojo, 1999-NMSC-001, \u00b6 44, 126 N.M. 438, 971 P.2d 829.\nDefendant was also convicted of CSPM as to Count 8. However, because Count 8 concerned anal penetration, we do not address it herein and consider only those convictions containing an element of genital contact or penetration.", "type": "majority", "author": "HANISEE, Judge." }, { "text": "GARCIA, Judge\n(concurring in part and dissenting in part)\nRespectfully, I disagree with one aspect of the majority decision and would reverse Defendant\u2019s conviction of CSPM alleged in Count 13 and remand for the entry of an amended judgment and resentencing on the lesser included offense of CSCM for Count 13.\nThe majority determined that sufficient evidence exists from the testimony to support a conviction of CSPM under Count 13 because \u201cit would be unwise for us to establish within our caselaw any requirement that the trial record reflect comprehension of anatomic specifics or the technical nuances of what constitutes penetration under the applicable jury instruction.\u201d Majority Opinion \u00b6 9. In effect, the majority explained that evidence need not be so anatomically exacting in situations such as this one, involving skin to skin contact where D efendant \u201cwould slide his fingers up and down on [H.T.\u2019s] private part.\u201d Majority Opinion \u00b6\u00b6 6, 9 (Emphasis added.) However, when specifically asked to clarify this testimony, defense counsel asked H.T., \u201c[Y]ou testified today that when [Defendant] put his hand on your private, he would move it in and out. Is that how you worded it?\u201d H.T.\u2019s response was \u201cNo, like ... he would move up and down.\u201d (Emphasis added.) The answer was confirmed a second time. \u201cUp and down?\u201d Answer: \u201cYes.\u201d The only other evidence or testimony regarding the factual allegations for Count 13 came from the PA who examined H.T. several days later and testified that \u201cshe did not observe any injuries\u201d on H.T. but did observe redness and small scratch injuries on her sister, L.T. Majority Opinion \u00b6 6.\nThe factual issue in this case is not about H.T.\u2019s comprehension of anatomical specifics or technical nuances. H.T.\u2019s reference to her vagina as \u201cmy private part\u201d is not at issue in this case. Defendant does not argue that his conviction should be overturned because H.T. failed to sufficiently describe Defendant\u2019s fingers sliding up and down on her vagina. The only issue is whether the evidence established the insertion, to any extent, ofDefendant\u2019s finger(s) into the vagina of H.T. See UJI 14-957 NMRA (requiring insertion into the body part of a child as one of the elements for CSPM of a child under the age of thirteen); \u00a7 30-9-11(A). When asked this specific question regarding whether Defendant put his hand in her private part, H.T. answered \u201cNo.\u201d The State does not challenge the veracity or truthfulness of H.T. \u2019s answer to the only question that was asked regarding the potential penetration of her vagina.\nSufficient evidence exists to affirm a conviction where substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to each essential element of a crime charged. Apodaca, 1994-NMSC-121, \u00b6 3. In reviewing an insufficiency claim, we must view the evidence in the light most favorable to the state and indulge all reasonable inferences in favor of the verdict. State v. Phillips, 2000-NMCA-028, \u00b6 7, 128 N.M. 777, 999 P.2d 421. The only evidence offered regarding whether Defendant inserted his finger, to any extent, into the vagina of the victim was specifically answered by H.T. \u2014 \u201cNo.\u201d The record is void of any other evidence of penetration of H.T.\u2019s vagina. Any other logical inference or conclusion of penetration that might be drawn from H.T.\u2019s answer is nothing more than pure speculation, conjecture, or guesswork. Our appellate courts do not permit the jury to determine guilt based upon speculation, guess, or conjecture. State v. Rojo, 1999-NMSC-001, \u00b6 31, 126 N.M. 438, 971 P.2d 829; State v. Slade, 2014-NMCA-088, \u00b6 14, 331 P.3d 930, cert. granted 2014-NMCERT-008, 334 P.3d 425; see UJI 14-6006 NMRA (instructing the jury not to base their verdict on speculation, guess or conjecture). The jury was asked to utilize speculation and conjecture to contradict H.T.\u2019s direct testimony and then impermissibly infer that other evidence established penetration into her private part.\nAs a result, I respectfully dissent regarding Defendant\u2019s conviction of CSPM under Count 13. Because the lesser included offense of CSCM was also presented to the jury regarding Count 13 and because sufficient evidence exists for a reasonable jury to convict Defendant of CSCM regarding Count 13, this Court should have remanded for the entry of judgment and resentencing for CSCM on Count 13. See Slade, 2014-NMCA-088, \u00b6 38 (Generally, \u201cappellate courts have the authority to remand a case for entry of judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense:\u201d (internal quotation marks and citations omitted)); State v. Haynie, 1994-NMSC-001, \u00b6\u00b6 3-4, 116 N.M. 746, 867 P.2d 416 (reversing the defendant\u2019s first degree murder conviction due to insufficient evidence and remanding to the district court for entry of judgment on the lesser included charge of second degree murder where the jury had been instructed on that charge, substantial evidence supported conviction on that charge, and the interests of justice would not be better served by a new trial). For the reasons stated herein, I would reverse the district court\u2019s determination of guilt for CSPM under Count 13 and would remand Count 13 for entry of judgment and resentencing for the lesser included charge of CSCM. I concur in the majority decision in all other respects.\nTIMOTHY L. GARCIA, Judge", "type": "concurring-in-part-and-dissenting-in-part", "author": "GARCIA, Judge" } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee", "Jorge A. Alvarado, Chief Public Defender David Henderson, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, April 20, 2015,\nNo. 35,182;\nCertiorari Denied, April 10, 2015,\nNo. 35,190\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-048\nFiling Date: February 17, 2015\nDocket No. 32,277\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. AUGUSTINE TAPIA, Defendant-Appellant.\nHector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee\nJorge A. Alvarado, Chief Public Defender David Henderson, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0663-01", "first_page_order": 679, "last_page_order": 694 }