{ "id": 3783293, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Derrick ERVIN, Defendant-Appellant", "name_abbreviation": "State v. Ervin", "decision_date": "2007-10-10", "docket_number": "No. 25,887", "first_page": "493", "last_page": "506", "citations": [ { "type": "official", "cite": "143 N.M. 493" }, { "type": "parallel", "cite": "177 P.3d 1067" }, { "type": "parallel", "cite": "2008-NMCA-016" } ], "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": "1999-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 73" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0192-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "766", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "760", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "1999-NMCA-146", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106534 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0382-01" ] }, { "cite": "2006-NMCA-066", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2545547 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0603-01" ] }, { "cite": "1999-NMCA-152", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106482 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 37-38" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0345-01" ] }, { "cite": "2002-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260670 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 7-8" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0114-01" ] }, { "cite": "111 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715214 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "359" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0357-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 14" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "2006-NMCA-110", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671519 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 10" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0356-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "8" }, { "page": "1228" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "2006-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544090 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0211-01" ] }, { "cite": "2007-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668315 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0512-01" ] }, { "cite": "1999-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827421 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0646-01" ] }, { "cite": "114 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731653 ], "weight": 2, "pin_cites": [ { "page": "477" }, { "page": "1243" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0472-01" ] }, { "cite": "92 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557035 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "452" }, { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0450-01" ] }, { "cite": "101 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586359 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "6", "parenthetical": "\"[I]n a prosecution for criminal sexual penetration, the testimony of the victim need not be corroborated and the lack of corroboration has no bearing on the weight to be given the testimony.\"" }, { "page": "619", "parenthetical": "\"[I]n a prosecution for criminal sexual penetration, the testimony of the victim need not be corroborated and the lack of corroboration has no bearing on the weight to be given the testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0005-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "opinion_index": 0 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0 }, { "cite": "42 P. 66", "category": "reporters:state_regional", "reporter": "P.", "year": 1895, "pin_cites": [ { "page": "67", "parenthetical": "noting that defendant waived objection to qualification of a juror by going to trial on the merits" } ], "opinion_index": 0 }, { "cite": "8 N.M. 70", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4663618 ], "year": 1895, "pin_cites": [ { "page": "74", "parenthetical": "noting that defendant waived objection to qualification of a juror by going to trial on the merits" } ], "opinion_index": 0, "case_paths": [ "/nm/8/0070-01" ] }, { "cite": "90 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867778 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "669-70", "parenthetical": "noting that defendant waived objections to grand jury proceedings based on the entry of a plea" }, { "page": "195-96", "parenthetical": "noting that defendant waived objections to grand jury proceedings based on the entry of a plea" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0667-01" ] }, { "cite": "79 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737468 ], "weight": 2, "pin_cites": [ { "page": "515" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0514-01" ] }, { "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 33" } ], "opinion_index": 0 }, { "cite": "90 N.M. 614", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870795, 2867109 ], "weight": 2, "pin_cites": [ { "page": "618-19" }, { "page": "1156-57" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0614-02", "/nm/90/0614-01" ] }, { "cite": "1998-NMCA-132", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834341 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0688-01" ] }, { "cite": "73 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321319 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "462", "parenthetical": "noting that although it is a criminal defendant's right to have a preliminary hearing, that right can be waived by the entry of a plea" }, { "page": "400", "parenthetical": "noting that although it is a criminal defendant's right to have a preliminary hearing, that right can be waived by the entry of a plea" } ], "opinion_index": 0, "case_paths": [ "/nm/73/0459-01" ] }, { "cite": "74 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803216 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "525", "parenthetical": "\"[T]he right to have a preliminary hearing may be and is waived upon entry of a plea in district court.\"" }, { "page": "354", "parenthetical": "\"[T]he right to have a preliminary hearing may be and is waived upon entry of a plea in district court.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0524-01" ] }, { "cite": "351 F.2d 61", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 807948 ], "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/f2d/351/0061-01" ] }, { "cite": "82 N.M. 378", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327411 ], "weight": 2, "pin_cites": [ { "page": "383" }, { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0378-01" ] }, { "cite": "80 N.M. 586", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357823 ], "weight": 3, "pin_cites": [ { "page": "587" }, { "page": "839" }, { "parenthetical": "alterations, internal quotation marks, and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0586-01" ] }, { "cite": "96 N.M. 566", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577348 ], "weight": 2, "pin_cites": [ { "page": "567-68" }, { "page": "1205-06" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0566-01" ] }, { "cite": "2000-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217148 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0328-01" ] }, { "cite": "113 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723229 ], "weight": 2, "pin_cites": [ { "page": "263" }, { "page": "1065" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0256-01" ] }, { "cite": "2001-NMCA-108", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183087 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0390-01" ] }, { "cite": "2003-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77166 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0326-01" ] }, { "cite": "2002-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260706 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0032-01" ] }, { "cite": "116 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727626 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "453" }, { "page": "1074" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0450-01" ] }, { "cite": "2006-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671441 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 52" }, { "page": "\u00b6 52" }, { "page": "\u00b6 50" }, { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0815-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "487" }, { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "2000-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217118 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0556-01" ] }, { "cite": "116 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727672 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "170" }, { "page": "206" }, { "page": "176" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0156-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "4", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "234", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "103 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711409 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "284" }, { "page": "1135" }, { "page": "284" }, { "page": "1135" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0282-01" ] } ], "analysis": { "cardinality": 1467, "char_count": 42247, "ocr_confidence": 0.693, "pagerank": { "raw": 7.247653647229247e-08, "percentile": 0.4322792564354138 }, "sha256": "f9bda2b9c7215a05f73cabf729ee2e1ec55d8e2d473ebf2d35b56f413fac6001", "simhash": "1:b22a2923e0f96140", "word_count": 6812 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD, and IRA ROBINSON, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Derrick ERVIN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} Convicted of one count of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, \u00a7 30-9-ll(A), (C) (2003), five counts of criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, \u00a7 30-9-13(A) (2003), one count of tampering with evidence, contrary to NMSA 1978, \u00a7 30-22-5 (2003), fourteen counts of sexual exploitation of children by manufacturing of child pornography, contrary to NMSA 1978, \u00a7 30-6A-3(D) (2001), and four counts of sexual exploitation of children by possession of child pornography, contrary to Section 30-6A-3(A), Defendant Derrick Ervin appeals. We reverse two of Defendant\u2019s convictions for CSCM as a violation of double jeopardy and affirm his remaining convictions.\nFACTS AND PROCEDURAL HISTORY\n{2} Defendant\u2019s wife, Child\u2019s mother, found compromising pictures of Child, who was Defendant\u2019s step-daughter, on the family\u2019s home computer. When confronted about the pictures, Defendant tore the computer cables out of the wall, threw the computer down onto a porch, destroyed the hard drive with barbells, and disposed of the computer into a garbage receptacle. Defendant\u2019s wife called the police, who searched the home and found a digital camera containing more compromising photographs of Child. They also found other, unrelated child pornography.\n{3} A criminal information was filed on February 3, 2004, charging Defendant with multiple crimes. Defendant waived his right to a preliminary hearing. On December 30, 2004, pursuant to a court order and prior to the commencement of trial, Child gave a videotaped deposition in lieu of her trial testimony. Prior to Child\u2019s deposition, the State informed Defendant if Child testified that Defendant had penetrated her in any way, it would add additional charges of CSPM. Defendant agreed to this arrangement. During the deposition, Child testified that Defendant licked her vagina and gave her a full-body massage. Defendant declined to cross-examine Child during the deposition.\n{4} On January 3, 2005, the State filed an Amended Criminal Information, adding a charge of CSPM, and removing eight previously charged sexual exploitation of children counts. There was no preliminary hearing on the charge of CSPM, and Defendant did not waive a preliminary hearing. On January 5, 2005, before trial, the State told the district court of the prior agreement with Defendant that a charge of CSPM could be added if Child was able to articulate the necessary evidence. During the same conversation with the district court, Defendant indicated to the State that he would be ready to proceed to trial. The district court judge asked Defendant if he understood the additional charge and Defendant said that he understood. Defendant entered pleas of not guilty to all of the charges. The trial then commenced.\n{5} After the defense rested, Defendant moved for a mistrial. Defendant alternatively moved to dismiss the CSPM count, based on its late addition to the charges and because Defendant did not cross-examine Child regarding penetration during the deposition because the CSPM count had not yet been added. Defendant acknowledged the agreement with the State regarding the additional charge, but contended that he did not think Child\u2019s deposition testimony would be sufficient to support a charge of CSPM. Defendant also argued that he was effectively denied cross-examination because the district court would not allow the defense to present evidence from Defendant\u2019s parents and Child\u2019s mother to rebut Child\u2019s allegations.\n{6} Defendant\u2019s ten issues on appeal generally fall into four categories: (1) evidentiary errors by the district court, in allowing testimony from the following witnesses: the sexual assault nurse examiner (SANE), Detective Yoakum, and Child\u2019s grandmother; (2) procedural errors by the district court, in allowing the amendment of the criminal information, refusing to give a jury instruction for a lesser-included charge of CSCM, and depriving Defendant of a right to present a defense; (3) a violation of Defendant\u2019s right to be free from double jeopardy; and (4) general errors by the district court, in allowing a conviction where there was insufficient evidence, and cumulative error. While we agree with Defendant concerning a violation of the double jeopardy rule, we do not find support for his other arguments.\nDISCUSSION\nI. Evidentiary Issues\nA. The SANE Nurse\u2019s Testimony Regarding Child\u2019s \u201cVaginal Vault\u201d\n{7} Defendant argues that the SANE nurse\u2019s testimony that she could see Child\u2019s \u201cvaginal vault\u201d is reversible error. Prior to trial, Defendant made a motion in limine to the district court regarding the SANE nurse\u2019s testimony. The State advised the district court that it would not be inquiring into penetration, although it conceded that it would broach the topic if Defendant were to open the door. The State also informed the district court that it had already instructed the SANE nurse to \u201cstay away from\u201d the topic of penetration.\n{8} The SANE nurse testified about her examination of Child. Her testimony was as follows: \u201c[T]o visualize the vagina, I take my hands and gently grab ahold of the labia, pull out and open, and on someone of [Child\u2019s] age I shouldn\u2019t be able to see into the vagina vault which I was able to do.\u201d Defendant immediately objected, approached the court for a bench conference, asked the district court for a mistrial, and twice requested that the court strike the nurse\u2019s testimony. The district court ruled that as long as the SANE nurse did not state any conclusions, he would continue to allow her to testify. The district court then allowed the State to continue its examination, without striking the testimony. Defendant argues on appeal that the testimony violated Rules 11-401 and 11-403 NMRA.\n{9} We review the district court\u2019s evidentiary ruling under an abuse of discretion standard. State v. Saavedra, 103 N.M. 282, 284, 705 P.2d 1133, 1135 (1985). An abuse of discretion occurs when the district court\u2019s decision can be characterized as \u201cclearly untenable or not justified by reason.\u201d State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (internal quotation marks and citation omitted). \u201cAbuse of discretion has also been defined as being clearly against the logic and effect of the facts and circumstances before the court.\u201d State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993).\n{10} Defendant argues that the testimony violated Rule 11-401 because it was not relevant to the charge of CSPM. Rule 11-401 defines relevant evidence as \u201cevidence having any tendency to. make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d We agree with Defendant that the SANE nurse\u2019s testimony was not strictly relevant to the charge of CSPM, charging that Defendant \u201clicked\u201d Child\u2019s vagina. Although the State did not do anything to elicit the testimony given by the SANE nurse, it obviously did not prepare her as it said it had, since when asked about how she performed the exam, she proffered this irrelevant, possibly inflammatory testimony. We worry because of the possibility to infer a connection between an \u201cenlarged vaginal vault\u201d and penetration as a cause. This testimony invites jurors to speculate from an irrelevant fact about why Child\u2019s \u201cenlarged vaginal vault\u201d was of import in this case.\n{11} We defer to the discretion of the district court in the admission or exclusion of such evidence. Saavedra, 103 N.M. at 284, 705 P.2d at 1135. We also apply a harmless error standard to the admission of evidence. State v. Gonzales, 2000-NMSC-028, \u00b6 32, 129 N.M. 556, 11 P.3d 131. Although we agree with Defendant that the evidence was not relevant and was potentially troublesome, we cannot say that the testimony resulted in harmful error. \u201cError in the admission of evidence in a criminal trial must be declared prejudicial and not harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction.\u201d Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991). We cannot hold that the admission of the SANE nurse\u2019s testimony was harmful error, contributing to Defendant\u2019s conviction, in light of the full scope of her testimony.\n{12} Although the SANE nurse\u2019s testimony might rise to an inference of vaginal penetration, there was no other testimony at trial specifically regarding penetration. Indeed, the SANE nurse herself testified on both direct and cross-examination that Child never told her that Defendant touched her vagina. The SANE nurse did not explain what she meant by an enlarged vaginal vault, nor was this testimony emphasized again by the State or the district court. The jury was instructed to find Defendant' guilty of CSPM if the State proved the following elements beyond a reasonable doubt: \u201cThe [Defendant caused [Child] to engage in cunnilingus or caused the insertion, to any extent, of a tongue into the vulva or vagina of [Child.]\u201d The jury was further instructed that \u201ccunnilingus\u201d included touching the edge or inside of the female sex organ with the tongue or lips. See, e.g., State v. Paiz, 2006-NMCA-144, \u00b6 52, 140 N.M. 815, 149 P.3d 579. We cannot conclude from the SANE nurse\u2019s testimony, that the jury inferred that Defendant inserted his tongue into Child\u2019s vagina to cause the observed condition, when even Child\u2019s testimony indicates that he only \u201clicked\u201d her vagina. We therefore hold that the SANE nurse\u2019s statement was not prejudicial to Defendant and could not have reasonably affected the jury\u2019s verdict.\nB. The SANE Nurse\u2019s Testimony Was Not Inadmissible Hearsay\n{13} Defendant argues that the SANE nurses\u2019s testimony that child told her that Defendant had once given Child a massage, touching her breasts and buttocks, was inadmissible hearsay evidence and bolstered Child\u2019s testimony. The SANE nurse testified that she \u201casked [Child] if [Defendant] had touched her, and she said that he gave her a full body massage once touching her breasts and her butt, but not her vagina.\u201d Because this issue was not preserved at trial, Defendant complains of both plain and fundamental error.\n{14} Defendant would be entitled to relief if either plain error or fundamental error occurred, even if Defendant did not raise an objection at trial. State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). \u201cIn either case, we must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict.\u201d Id. (internal quotation marks and citation omitted).\n{15} \u201cTo establish plain error, the error complained of must have affected substantial rights[.]\u201d Id. (internal quotation marks and citation omitted). Defendant relies on Alberico for the proposition that an expert may not testify regarding the perpetrator of a crime. See generally Alberico, 116 N.M. 156, 861 P.2d 192. However, Defendant only points us to the portion in the opinion which states that an expert may not testify as to the identity of the perpetrator of the crime, and fails to read further in the opinion. Our Supreme Court stated: \u201cIncidental verification of victim\u2019s story or indirect bolstering of her credibility, however, is not by itself improper. All testimony in the prosecution\u2019s case will tend to corroborate and bolster the victim\u2019s story to some extent.\u201d Id. at 176, 861 P.2d at 211. The testimony in this case involved one statement by the SANE nurse. We cannot say that this one statement resulted in improper bolstering.\n{16} \u201c[Fundamental error will be found only when there exist circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.\u201d State v. Martinez, 2002-NMSC-008, \u00b6 9, 132 N.M. 32, 43 P.3d 1042 (internal quotation marks and citation omitted). However, Defendant fails to identify why the SANE nurse\u2019s testimony resulted in fundamental error. Defendant fails to show how the SANE nurse\u2019s testimony either shocked the conscience of the court or implicates fundamental unfairness. In fact, in light of our disposition of the double jeopardy issue, in which we hold that Defendant may be convicted of only one count of CSCM based on the massage incident, and in light of Defendant\u2019s admission to Detective Yoakum of his interest in child pornography and of his giving Child a full-body massage, there is nothing whatsoever shocking about Defendant\u2019s conviction, and we cannot say that the SANE nurse\u2019s testimony added much to the evidence against Defendant. We therefore hold that the SANE nurse\u2019s testimony was not plain or fundamental error.\nC. Detective Yoakum\u2019s Testimony\n{17} Detective Yoakum was present at both Child\u2019s safehouse interview and Child\u2019s videotaped deposition. During direct examination, the State asked Detective Yoakum whether there was any difference between the safehouse interview and the videotaped deposition. Detective Yoakum responded that \u201c[t]he only difference is she was able to elaborate further in detail [during her videotaped deposition], as we had found out, and the penetration of the vaginal area.\u201d Defendant objected to the testimony and argued to the district court that the tape was the best evidence of Child\u2019s statement and not the Detective\u2019s testimony. Defendant argues that Detective Yoakum\u2019s testimony regarding Child\u2019s safehouse interview improperly bolstered Child\u2019s videotaped deposition. The State argues that Defendant\u2019s best evidence objection did not preserve the appellate issue of hearsay or reference to penetration. We agree.\n{18} \u201cRule 11-103(A)(1) NMRA ... provides that error may not be predicated upon a ruling admitting evidence in the absence of a ... specific objection.\u201d State v. Abril, 2003-NMCA-111, \u00b6 12, 134 N.M. 326, 76 P.3d 644. \u201cOur case law is clear that in order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon.\u201d State v. Elliott, 2001-NMCA-108, \u00b6 21, 131 N.M. 390, 37 P.3d 107. Raising a best evidence objection does not preserve the issue of improper bolstering for appellate review. Gutierrez v. Albertsons, Inc., 113 N.M. 256, 263, 824 P.2d 1058, 1065 (Ct.App.1991) (stating that the best evidence rule \u201cis only applicable when a party seeks to prove the contents of a writing\u201d).\n{19} Ruling on Defendant\u2019s objection, the district court told Defendant that he could put the videotape of the safehouse interview into evidence. The State conceded that the safehouse interview could be played, but told the district court that it would not be introducing the safehouse interview into its case. The discourse at the bench reveals that Defendant\u2019s objection was ruled upon and granted. Although the district court expressed some concern about the Detective\u2019s comparison of the two videotapes, the judge granted Defendant\u2019s motion and had the State produce the safehouse interview videotape for Defendant to use at trial. Defendant did not use the videotape. Defendant did not object based on improper bolstering or hearsay; therefore, those arguments on appeal have not been preserved.\nD. Child\u2019s Grandmother\u2019s Testimony Was Proper\n{20} Defendant argues that Child\u2019s grandmother\u2019s testimony was improper because it characterized several \u201cinteractions\u201d between Defendant and Child as \u201cbad acts\u201d only to show that Defendant was a \u201cmean, bad person.\u201d Specifically, Defendant complains the testimony that Defendant was short and angry with Child when she wanted to stay in her newborn brother\u2019s hospital room, testimony that Defendant got angry with Child when she did not pack up an outdoor blow-up swimming pool, and testimony that Defendant called Child stupid for not remembering the name of a movie being released, was propensity evidence and should have been prohibited at trial. We disagree.\n{21} The State argues that Child\u2019s grandmother\u2019s testimony was proper to show that Defendant was a \u201ccontrolling or intimidating\u201d person. The State cites to Rule 11-404(B) NMRA for the proposition that other acts or wrongs can be admissible to show proof of motive, opportunity, preparation, or plan.\n{22} The issue before us is whether the district court abused its discretion in allowing the testimony of Child\u2019s grandmother and whether admission of the evidence was \u201cobviously erroneous, arbitrary, or unwarranted.\u201d See State v. Harrison, 2000-NMSC-022, \u00b6 18, 129 N.M. 328, 7 P.3d 478. Under Rule 11-404(B), \u201c[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.\u201d In order for the testimony to be admissible under Rule 11-404(B), it must be \u201crelevant to a disputed issue other than the defendant\u2019s character, and [the court] must determine that the prejudicial effect of the evidence does not outweigh its probative value.\u201d State v. Beachum, 96 N.M. 566, 567-68, 632 P.2d 1204, 1205-06 (Ct.App.1981).\n{23} We believe that the relevance of the testimony was marginal. On the other hand, the evidence did have some relevance in showing why Child might succumb to Defendant\u2019s advances, and not as mere propensity evidence. So, too, the testimony did not elaborate on any other \u201cbad acts\u201d similar in nature to the charged crimes. Thus, we cannot say that there was undue prejudice in the admission of the testimony. In short, we cannot say that the district court\u2019s view of the relevance of the evidence when balanced against the absence of undue prejudice was obviously erroneous, arbitrary, or unwarranted.\nII. Procedural Issues\nA. Addition of CSPM Charge Two Days Before Trial\n{24} Defendant argues that the amendment of the criminal information the day before trial was improper, violated his right to a preliminary hearing, violated his right to a grand jury, and was prejudicial and reversible error. Defendant further argues that he never waived his right to a preliminary hearing on the addition of the count of CSPM. On the day of trial, before voir dire, and in chambers, the State informed the district court of the additional charge. The State informed the court that it had previously discussed the addition of the count with Defendant prior to the videotaped testimony, telling Defendant that if Child was able to articulate the facts to support the charge of CSPM, then the State would add that count to the indictment. Defendant did not dispute what the State said and responded to the charges, including the charge of CSPM, by entering a plea of not guilty. Defendant did not request a preliminary hearing.\n{25} Defendant now argues that the district court did not have jurisdiction over Defendant due to the failure to provide a preliminary hearing on the charge of CSPM. We cannot agree. The district court initially acquired jurisdiction upon the filing of the information. See State v. Vasquez, 80 N.M. 586, 587, 458 P.2d 838, 839 (Ct.App.1969). \u201cThe jurisdiction so acquired can, however, be lost by failure of the court to remand for a preliminary examination when its absence is timely brought to the attention of the district court.\u201d Id. (alterations, internal quotation marks, and citation omitted). \u201cSince defendant was charged by an information, he had a constitutional right to a preliminary examination.\u201d State v. Archuleta, 82 N.M. 378, 383, 482 P.2d 242, 247 (Ct.App.1970). However, Defendant can waive his right to a preliminary examination by not requesting one.\n{26} It is well-settled law in New Mexico that \u201ca plea of guilty or not guilty to an information filed in a district court, in which case no preliminary hearing has been held, ... constitutes a waiver of the constitutional right to a preliminary examination.\u201d Silva v. Cox, 351 F.2d 61, 64 (10th Cir.1965); see Sanders v. Cox, 74 N.M. 524, 525, 395 P.2d 353, 354 (1964) (\u201c[T]he right to have a preliminary hearing may be and is waived upon entry of a plea in district court.\u201d); State v. Jones, 73 N.M. 459, 462, 389 P.2d 398, 400 (1964) (noting that although it is a criminal defendant\u2019s right to have a preliminary hearing, that right can be waived by the entry of a plea). After discussion in the judge\u2019s chambers the morning of trial regarding the addition of the charge of CSPM, Defendant told the district court that he understood the charge and proceeded to plead not guilty to all the charges. Through his plea of not guilty, Defendant waived his right to a preliminary hearing on the charge of CSPM.\n{27} We now turn to Defendant\u2019s contention that the late addition of the CSPM charge was prejudicial and reversible error. When an amendment to a charging document seeks to charge a new or different offense, our cases focus on whether the defendant has received \u201cnotice of the charge ... in time to defend against the charge.\u201d State v. Roman, 1998-NMCA-132, \u00b6\u00b6 13-14, 125 N.M. 688, 964 P.2d 852; see State v. Armijo, 90 N.M. 614, 618-19, 566 P.2d 1152, 1156-57 (Ct.App.1977). Although both of these cases reversed convictions based on lack of notice, this case is distinguishable from them.\n{28} Here, Defendant was given notice by the State prior to Child\u2019s videotaped deposition that if Child could articulate facts sufficient to support the charge of CSPM, the charge would be added to the information. Child\u2019s testimony that Defendant \u201clicked\u201d her vagina is sufficient to support penetration. Paiz, 2006-NMCA-144, \u00b6 52, 140 N.M. 815, 149 P.3d 579 (\u201c[Lacking of the vagina unavoidably entail[s] penetration to some extent.\u201d). Following Child\u2019s testimony as to Defendant\u2019s acts, the charge of CSPM was added to the criminal information, as promised by the State. On the morning of trial, Defendant did not object to the amendment of the criminal information. Defendant responded to the addition of the charge by pleading not guilty to all of the charges, including CSPM.\n{29} We review whether there was prejudice to Defendant through the addition of the CSPM charge. Defendant argues that he was prejudiced because he \u201cdid not question [Child] about penetration during her videotaped trial testimony.\u201d Defense counsel informed the district court that he did not ask about penetration because, at the time, it was not a charged offense. Prior to the videotaped deposition, Defendant was notified that Child had articulated to her therapist that Defendant had licked her vagina. Right before the videotaped deposition, Defendant was informed that the information would be sought to be amended if Child\u2019s testimony established CSPM. When the videotaped deposition was taken, during the State\u2019s direct examination, Child testified that Defendant licked her vagina. Defendant had notice that the issue of penetration was in play. We will not second-guess the tactics of trial counsel as to why he did not take his opportunity to cross-examine Child about that incident.\n{30} When a defendant has an opportunity to cross-examine a witness, yet chooses not to do so, we cannot say that the defendant is prejudiced. See State v. Casaus, 1996-NMCA-031, \u00b6 33, 121 N.M. 481, 913 P.2d 669. This is the case here. Defendant knew in advance that Child might testify that Defendant licked her vagina, yet he chose not to cross-examine her regarding that incident, even after she articulated the incident in her testimony, during the direct examination. We cannot say that Defendant was prejudiced by the addition of the CSPM charge.\n{31} We also reject Defendant\u2019s argument that the addition of the CSPM charge violated Defendant\u2019s right to a grand jury. This argument has no merit. \u201cUnder N.M. Const. Art. II, \u00a7 14, a defendant may be charged either by grand jury action or by a criminal information.\u201d State v. Mosley, 79 N.M. 514, 515, 445 P.2d 391, 392 (Ct.App.1968); see Baird v. State, 90 N.M. 667, 669-70, 568 P.2d 193, 195-96 (1977) (noting that defendant waived objections to grand jury proceedings based on the entry of a plea); Territory v. Barrett, 8 N.M. 70, 74, 42 P. 66, 67 (1895) (noting that defendant waived objection to qualification of a juror by going to trial on the merits). The additional charge of CSPM was added to the criminal information charging Defendant, conforming to New Mexico law. Grand jury proceedings were not necessary in this case, and regardless, Defendant waived his right to a grand jury by entering a plea of not guilty and proceeding to a trial on the merits.\n{32} We hold that Defendant waived his right to a preliminary hearing based on his entry of a plea, Defendant was not prejudiced by the addition of the CSPM charge, and Defendant was not denied his right to a grand jury because he was charged by criminal information.\nB. The District Court Did Not Commit Reversible Error When It Did Not Give Jury Instructions on a Lesser-included Charge\n{33} Defendant argues that the district court erred when it refused to give an instruction on CSCM, as a lesser-included charge of CSPM. Defendant\u2019s argument can be summarized as follows: the jury could have believed that Defendant\u2019s tongue did not penetrate Child\u2019s vagina, rather Defendant licked the outside of her vagina and because there is an ambiguity, the jury should not be faced with an all-or-nothing approach to the charge. We disagree.\n{34} \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. In order to receive a jury instruction on a lesser-included offense, \u201cthere must be evidence that the lesser offense is the highest degree of crime committed.\u201d Id. \u00b6 50, 123 N.M. 778, 945 P.2d 996. \u201cWhere there is no ambiguity in a victim\u2019s testimony that could lead a rational juror to acquit a defendant of [criminal sexual penetration] but convict of CSCM, the defendant is not entitled to an instruction on the lesser-included offense.\u201d Paiz, 2006-NMCA-144, \u00b6 50, 140 N.M. 815, 149 P.3d 579.\n{35} This case is virtually indistinguishable from Paiz in this regard. In Paiz, the victim testified that the defendant \u201crepeatedly awoke her at night \u2018licking\u2019 her \u2018down there.\u2019\u201d Id. \u00b6 52, 140 N.M. 815, 149 P.3d 579. This Court held that \u201c[a]s a matter of physiology, the described contact with the vagina went beyond the edge ... of the female sex organ, and as such, the licking of the vagina unavoidably entailed penetration to some extent.\u201d Id. (internal quotation marks and citations omitted). In this case, Child\u2019s testimony indicates that Defendant licked her vagina. This testimony, alone, absent evidence that the licking never penetrated Child\u2019s vagina, stands to support the charge of CSPM by the very elements of the crime.\n{36} The jury was instructed that to find Defendant guilty of CSPM, they had to find that \u201c[Defendant caused [Child] to engage in cunnilingus or caused the insertion, to any extent, of a tongue into the vulva or vagina of [Child].\u201d Furthermore, criminal sexual penetration is defined as \u201cthe unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.\u201d Section 30-9-ll(A). Testimony that Defendant performed cunnilingus on Child was enough to support the charge of CSPM. Child\u2019s testimony did not need to be supported in any way by any other evidence. See State v. Hunter, 101 N.M. 5, 6, 677 P.2d 618, 619 (1984) (\u201c[I]n a prosecution for criminal sexual penetration, the testimony of the victim need not be corroborated and the lack of corroboration has no bearing on the weight to be given the testimony.\u201d). Because the rule on lesser-included offenses requires that in order to receive an instruction on a lesser offense, that lesser offense must be the highest degree of crime committed, we cannot hold that it was error for the district court to refuse to instruct the jury on the lesser offense of CSCM.\nC. The District Court Did Not Deprive Defendant of His Right to Present a Defense\n{37} At trial, Defendant sought to introduce his mother\u2019s testimony that Child had told her that Defendant did not improperly touch her or lick her vagina. The district court would not allow Defendant\u2019s mother to testify about statements made to her from Child. The district court allowed Defendant to ask his mother whether she had ever heard of the allegations concerning Defendant. The judge would not allow Defendant\u2019s mother to testify as to what Child said to her. Defendant also sought to have his father and Child\u2019s mother testify that Child had told them that there had been no sexual contact between Child and Defendant. Defendant chose not to call his father based on the district court\u2019s ruling that his mother could not testify that Child told her that Defendant did not inappropriately touch her or lick her vagina. Defendant\u2019s assertion that he was not allowed to call Child\u2019s mother is unavailing; Child\u2019s mother was the State\u2019s witness and Defendant does not explain why he did not pursue the statement when he was allowed to cross-examine her.\n{38} Defendant now argues that by not allowing these witnesses to testify, the district court violated Defendant\u2019s right to present a defense. Defendant contends that Rule 11-806 NMRA decides this issue. Defendant argues that under Rule 11-806, the district court must admit impeachment evidence, and that \u201c[n]o more prejudice need be shown than that the trial court\u2019s order may have made a potential avenue of defense unavailable to the defendant.\u201d State v. Orona, 92 N.M. 450, 452, 589 P.2d 1041, 1043 (1979). Defendant argues the district court should have allowed Defendant\u2019s parents to testify to rebut the hearsay statements proffered by Detective Yoakum regarding the difference between Child\u2019s safehouse interview and the videotaped deposition. We are not persuaded.\n{39} Defendant argues that without the testimony of his parents and Child\u2019s mother, \u201c[tjhere was no other testimony to rebut the charges except for [Defendant\u2019s] own testimony.\u201d We disagree. We reiterate, Child\u2019s mother did testify that Child told her \u201crepeatedly that he didn\u2019t [penetrate her].\u201d Defendant asked that his father be dismissed as a witness, without calling him to the stand. Therefore, we decline to consider Defendant\u2019s father\u2019s purported testimony in our analysis. With regard to Defendant\u2019s mother\u2019s testimony, Defendant had ample opportunity to cross-examine Child during her videotaped testimony, yet chose not to do so. Using his mother\u2019s testimony to \u201cimpeach\u201d Child\u2019s testimony was inappropriate, considering Child never testified as to what she said, if anything, to any of Defendant\u2019s proffered witnesses. Defendant argues that the use of the testimony was \u201ccritical to his defense\u201d and that the evidence that would be procured went to \u201c[Child\u2019s] proclivity for truthfulness and was relevant to impeach her credibility.\u201d Defendant had an opportunity to develop this theory on cross-examination with Child, which he chose not to do. We hold that Defendant was not deprived of his right to present a defense.\n{40} Defendant\u2019s alternative argument concerns impeachment of Detective Yoakum\u2019s statement that Child\u2019s statements during the safehouse interview did not differ substantially from her testimony at the videotaped deposition. Defendant\u2019s argument is nugatory. Rule 11-806 addresses the right of a defendant to attack the credibility of a declarant\u2019s hearsay statement. This Court has noted that \u201c[a] hearsay declarant can be impeached just as any other witness.\u201d State v. Swavola, 114 N.M. 472, 477, 840 P.2d 1238, 1243 (Ct.App.1992). Defendant argues that Detective Yoakum was testifying as to Child\u2019s statements. However, Child\u2019s statements at her deposition were her testimony, and we reiterate that Defendant was afforded an opportunity to cross-examine Child about her allegation that Defendant \u201clicked\u201d her vagina, but did not do so. See Rule 11-613(B) NMRA (requiring the witness to be given the opportunity to explain or deny). Defendant did not raise the issue of Child\u2019s hearsay, and then did not mention Rule 11-806. Defendant did not offer the evidence at trial on the same basis that he argues on appeal. The district court did not err.\nIII. Defendant\u2019s Convictions Violate the Double Jeopardy Rule\n{41} Defendant argues that the full-body massage, from which three counts of CSCM are derived, only counts as one event for purposes of the double jeopardy rule. Defendant further argues that the three convictions violate his right to be free from double jeopardy because the convictions subjected him to multiple punishments for one act. The State concedes Defendant\u2019s arguments. Although we are not bound by the State\u2019s concession, State v. Foster, 1999-NMSC-007, \u00b6 25, 126 N.M. 646, 974 P.2d 140, we agree and reverse two of Defendant\u2019s convictions for CSCM.\n{42} The New Mexico Constitution contains a prohibition that no person \u201cbe twice put in jeopardy for the same offense.\u201d N.M. Const, art. II, \u00a7 15. A question of double jeopardy can be raised at any time. NMSA 1978, \u00a7 30-1-10 (1963) (\u201cThe defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.\u201d). The issue of double jeopardy involves a constitutional question, which we review de novo. State v. Ford, 2007-NMCA-052, \u00b6 7, 141 N.M. 512, 157 P.3d 77.\n{43} We surmise from Defendant\u2019s brief that he is arguing the \u201cunit of prosecution\u201d prohibition against double jeopardy. The \u201cunit of prosecution\u201d category of double jeopardy prohibits charging a defendant with \u201cmultiple violations of a single statute based on a single course of conduct.\u201d State v. DeGraff, 2006-NMSC-011, \u00b6 25, 139 N.M. 211, 131 P.3d 61. The relevant inquiry is whether \u201cthe legislature intended punishment for the entire course of conduct or for each discrete act.\u201d Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991). In this type of case, our first inquiry is into the legislative intent. State v. Cook, 2006-NMCA-110, \u00b6 9, 140 N.M. 356, 142 P.3d 944. We begin by looking to the statutory language for guidance, and if it is clear, \u201cwe follow the language, and the unit-of-prosecution inquiry is complete.\u201d State v. Bernal, 2006-NMSC-050, \u00b6 14, 140 N.M. 644, 146 P.3d 289. We next determine whether a \u201cdefendant\u2019s acts are separated by sufficient \u2018indicia of distinctness\u2019 to justify multiple punishments under the same statute.\u201d Id. (citation omitted).\n{44} Section 30-9-13(A) defines criminal sexual contact of a minor as the \u201cunlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one\u2019s intimate parts.\u201d That language is ambiguous in our determination of whether the legislature intended to create a separate offense for each touch or application of force. See Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991). Our ease law indicates that we have continuously treated this statute as ambiguous in criminal sexual contact cases. See State v. Segura, 2002-NMCA-044, \u00b6\u00b6 7-8, 132 N.M. 114, 45 P.3d 54; State v. Laguna, 1999-NMCA-152, \u00b6\u00b6 37-38, 128 N.M. 345, 992 P.2d 896. Having determined that this statute is ambiguous, we move on to whether the Legislature intended multiple punishments under this statute.\n{45} Defendant relies on Henvn for the factors in determining whether he committed one continuous act or separate, distinct acts. Defendant argues that \u201c[t]he touching of [Child\u2019s] body during one massage, over a short period of time, with no intervening event, with no movement to a different place or area, and no repositioning of [Child], with one intent to massage her body, is simply one continuous touching of [Child\u2019s] private parts.\u201d\n{46} We agree with Defendant\u2019s assertion, and the State\u2019s concession, that Defendant\u2019s conduct falls under one continuous course of conduct, and cannot be counted as separate offenses. \u201c[W]e presume that the statute was not intended to impose multiple punishments for acts that are not sufficiently distinct.\u201d Cook, 2006-NMCA-110, \u00b6 10, 140 N.M. 356, 142 P.3d 944 (internal quotation marks and citation omitted). We have to decide \u201cwhether Defendant\u2019s acts bore sufficient indicia of distinctness.\u201d Id. \u00b6 13, 140 N.M. 356, 142 P.3d 944 (internal quotation marks and citation omitted). \u201c[W]e consider the timing, location, and sequencing of the acts, the existence of an intervening event, the defendant\u2019s intent as evidenced by his conduct and utterances, and the number of victims.\u201d Id. (internal quotation marks and citation omitted). The incident in which Defendant massaged Child\u2019s nude body, touching her breasts, buttocks, and vagina was one continuous course of conduct, not capable of being split into three charges merely because Defendant touched three different body parts. There was only one victim and Defendant apparently had only one motive. There was no lapse in time between the times Defendant touched Child\u2019s different body parts and no intervening event. We therefore conclude that only one act of CSCM occurred. Cf. State v. Salazar, 2006-NMCA-066, \u00b6 30, 139 N.M. 603, 136 P.3d 1013.\n{47} We conclude that Defendant\u2019s convictions on three counts of CSCM violate his right to be free from double jeopardy, and we remand to the district court for dismissal of two of the convictions for CSCM.\nIV. General Errors\nA. There Was Sufficient Evidence to Support Defendant\u2019s Child Pornography Convictions\n{48} Defendant argues that there was insufficient evidence to support his convictions of sexual exploitation of children by manufacturing child pornography. Defendant argues that the State only had thirteen photographs in its possession at trial to prove twenty counts of manufacturing child pornography. Child\u2019s mother testified that she saw between fifteen and twenty-four sexual photographs on Defendant\u2019s computer. She testified that she remembered that one photograph was dated January 2003. She was able to testify as to specifics of several of the photographs, for example, that it was Child in the photograph, where those photographs were taken, some of the items in the photographs, and the sexual nature of the photographs. The photographs were not available at trial because Defendant destroyed the computer.\n{49} Reviewing the sufficiency of the evidence is a two-step process. First, we view the evidence in the light most favorable to the verdict. State v. Ortiz-Burciaga, 1999-NMCA-146, \u00b6 22, 128 N.M. 382, 993 P.2d 96. Second, we make a legal determination of \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, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). We will not re-weigh the evidence or substitute our judgment for the judgment of the fact-finder as long as the verdict is supported by sufficient evidence. State v. Coffin, 1999-NMSC-038, \u00b6 73, 128 N.M. 192, 991 P.2d 477.\n{50} Defendant was convicted of fourteen counts of manufacturing child pornography, one more count than was proven using photographs. Child\u2019s mother testified as to the rest of the photographs on the computer. The jury was instructed on twenty counts of manufacturing child pornography and acquitted Defendant of six of those counts. Child\u2019s mother\u2019s testimony establishes that she and Child moved in with Defendant in October of 2001. Child\u2019s mother found the photographs that she described in her testimony in December of 2003. This establishes that the photographs of Child were taken between October of 2001 and December of 2003. The State was required to prove, beyond a reasonable doubt, that\n1.... Defendant manufactured an obscene visual or print medium depicting any prohibited sexual act or simulating such an act;\n2. At least one of the participants in the act was a child under the age of eighteen;\n3. This happened in New Mexico on, about, or between January 01, 2000, and December 8, 2003.\n{51} Child\u2019s mother\u2019s testimony established that Defendant\u2019s computer had photographs of a sexual nature of Child between October 2001 and when she discovered them in December of 2003. Further, Child\u2019s mother\u2019s testimony establishes at least one photograph had a date of January 2003. We cannot hold that there was insufficient evidence for the jury to find one additional count of manufacturing child pornography, above the physical photographs that the State presented, given Child\u2019s mother\u2019s testimony.\nB. Cumulative Error\n{52} \u201cWe must reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial.\u201d Ortiz-Burciaga, 1999-NMCA-146, \u00b6 9, 128 N.M. 382, 993 P.2d 96 (internal quotation marks and citation omitted). We only found error in two of Defendant\u2019s convictions for CSCM as a violation of double jeopardy. We cannot hold that those two errors alone support reversal for cumulative error.\nCONCLUSION\n{53} We hold that two of Defendant\u2019s convictions for CSCM were in violation of Defendant\u2019s right to be free from double jeopardy, and reverse and remand to the district court for dismissal of two of the convictions for CSCM. We affirm on all of Defendant\u2019s remaining convictions.\n{54} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD, and IRA ROBINSON, Judges.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-016\n177 P.3d 1067\nSTATE of New Mexico, Plaintiff-Appellee, v. Derrick ERVIN, Defendant-Appellant.\nNo. 25,887.\nCourt of Appeals of New Mexico.\nOct. 10, 2007.\nCertiorari Denied, No. 30,739, Jan. 22, 2008.\nGary K. King, Attorney General Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0493-01", "first_page_order": 529, "last_page_order": 542 }