{
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  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Robert MARTINEZ, Defendant-Appellant",
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  "casebody": {
    "judges": [
      "DONNELLY and NEAL, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Robert MARTINEZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nDefendant appeals his convictions of burglary and C.S.P.II (criminal sexual penetration in the second degree). Issues listed in the docketing statement, but not briefed, were abandoned. State v. Brown, 95 N.M. 3, 617 P.2d 1324 (Ct.App.1980). The five issues briefed are concerned with the propriety of the C.S.P. conviction; the burglary conviction is not attacked. We: (1) answer four issues summarily, and (2) discuss C.S.P. perpetrated in the commission of another felony.\nThere is evidence that defendant entered a trailer residence at a time when the only occupants were the 15-year-old victim and .her younger brother. There is evidence that defendant forced both children into a bedroom, ransacked drawers in another bedroom, then returned to the children. There is evidence that defendant forcibly removed the victim\u2019s clothes and then had sexual intercourse with the victim.\nIssues Answered Summarily\n(a) The prosecution failed to timely disclose to the defense attorney that samples of defendant\u2019s hair were being tested. Defendant complained of this nondisclosure immediately before the trial began. There is nothing showing that any test results were available at that time. The trial court ruled that if test results became available during the trial, the results would not be admitted as evidence. See R.Crim.Proc. 30. Defendant contends the test results may have been exculpatory, and because the test results were not timely disclosed, his conviction for C.S.P. should be reversed. We disagree.\nThe trial court ordered the prosecuting attorney to telephone the laboratory and find out what test results were available. The record as to the hair testing ends at that point. We do not know if there were any test results or, if there were, what the tests showed. Defendant did not seek a new trial on the basis of belatedly disclosed test results. See State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979). Speculation that there may have been test results and that the test results may have been exculpatory does not establish a nondisclosure of exculpatory evidence.\n(b) The victim testified that defendant\u2019s penis penetrated her vagina. On cross-examination, defendant sought to impeach the victim on the basis of an inconsistent statement as to penetration. Defendant contends the trial court erred in excluding evidence of the inconsistent statement.\nThe alleged inconsistent statement was an answer the victim made to a question asked the victim when the victim was interviewed at the police station. Defendant made a tender of proof as to the alleged inconsistency. This tender was on the basis of a purported transcript of questions and answers during the interview; it was a purported transcript because there was no evidence that the transcript was an accurate record of the interview. Defendant\u2019s contention is based on the following question and answer:\n[Q] ... The next question she [Linda Valdez who helped conduct the interview] asked is, \u201cOkay, when this happened this morning, you knew that the man was inside you.\u201d You answered, \u201cUh-huh\u201d\u2014excuse me, \u201cHuh-uh.\u201d Do you remember that?\nA No.\nThe trial court disallowed the tender of proof; \u201cafter reading .. . [the transcript], I don\u2019t think there is an inconsistent statement.\u201d\nWe do not know what the trial court read, the transcript is not before us. Did the victim clarify her use of \u201cUh-huh\u201d and \u201cHuh-uh\u201d? We do not know. Once the victim testified she did not remember the alleged inconsistent answer, defendant could have introduced evidence of an inconsistency pursuant to Evidence Rule 613(b). See State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975). Defendant tendered no witnesses to establish an inconsistent answer and did not attempt to have the transcript included as a part of the tender.\nThere is no basis for holding the trial court erred in ruling there was no inconsistent statement.\n(c) During closing argument, the prosecutor argued to the jury that there was no contradictory testimony as to what happened. Defendant objected to this argument, contending this was an improper comment in that it referred \u201cto the fact that defendant didn\u2019t testify.\u201d The prosecutor\u2019s comment was not an improper reference to defendant\u2019s failure to testify. State v. Aguirre, 84 N.M. 376, 503 P.2d 1154 (1972); State v. Montoya, 91 N.M. 752, 580 P.2d 973 (Ct.App.1978). Defendant asks us to overrule these decisions. We have no authority to overrule Aguirre. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973), Even if we had such authority, defendant has not demonstrated that the Aguirre rule should be changed.\n(d) Defendant requested instructions on battery as a lesser offense included within the C.S.P.II offense, which was criminal sexual penetration perpetrated during the commission of the burglary. Section 30-9-ll(B)(4), N.M.S.A.1978. We need not decide whether battery is a lesser offense included within this particular C.S.P. offense. State v. Ruiz, 94 N.M. 771, 617 P.2d 160 (Ct.App.1980). No instruction on a lesser offense should be given when there is no evidence to suggest the lesser offense was the highest degree of the crime committed. State v. Romero, 94 N.M. 22, 606 P.2d 1116 (Ct.App.1980). There was no evidence to suggest that battery was the highest degree of defendant\u2019s offense. The requested instructions on battery were properly refused.\nC.S.P. Perpetrated in the Commission of Another Felony\nOn appeal, defendant contends the trial court erred in failing to instruct the jury on C.S.P.III. See \u00a7 30-9-ll(C), N.M. S.A.1978. Defendant did not request a C.S. P.III instruction and did not contend, in the trial court, that a C.S.P.III instruction should be given. See R.Crim.Proc. 41(d); State v. Najar, 94 N.M. 193, 608 P.2d 169 (Ct.App.1980). There is no appellate issue as to a C.S.P.III instruction.\nDefendant\u2019s contention in the trial court was that no C.S.P.II instruction should be given. The C.S.P.II offense charged was criminal sexual penetration perpetrated \u201cin the commission of any other felony\u201d, in this case, the felony of burglary. Section 30-9-11(B)(4), supra. Defendant argued:\n[A] burglary is complete upon the completion of entry which is unauthorized and with the required intent. When the perpetrator of this crime entered the trailer, at the completion of the entry, the burglary was complete, so the criminal sexual penetration could not have occurred during the commission of a burglary. ' And, therefore, the state should not be entitled to an instruction of criminal sexual penetration in the second degree.\nWe answer this contention.\nThe crime of burglary is complete when there is an unauthorized entry with the requisite intent. State v. Madrid, 83 N.M. 603, 495 P.2d 383 (Ct.App.1972); State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970). Defendant correctly argues that the burglary was complete when he entered the trailer. This, however, does not answer the question of whether the C.S.P. offense was perpetrated \u201cin the commission of\u201d the burglary.\nThe phrase \u201cin the commission of\u201d in our C.S.P. statute has not been previously discussed in an appellate decision. The same phrase appears in \u00a7 30-2-l(A)(2), N.M.S.A.1978 (1981 Cum.Supp.); murder in the first degree includes murder perpetrated \u201cin-the commission of . . . any felony\u201d.\nState v. Flowers, 83 N.M. 113, 489 P.2d 178 (1971), states:\n[I]f a homicide occurs within the res gestae of a felony, the felony-murder provision of our statute is applicable, and whether the homicide occurred before or after the actual commission of the felony is not determinative of the applicability of the felony-murder provision.\nState v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977), points out that for the homicide to come within the res gestae, the felony and the homicide must be part of one continuous transaction and closely connected in point of time, place and causal connection. Harrison held that causation must be the acts of defendant leading to the homicide without an independent force intervening. See also State v. Perrin, 93 N.M. 73, 596 P.2d 516 (1979); State v. Adams, 92 N.M. 669, 593 P.2d 1072 (1979).\nThe meaning of \u201cin the commission of\u201d in the felony-murder statute is also the meaning of \u201cin the commission of\u201d in the felony-C.S.P.II statute, \u00a7 30-9-ll(B)(4), supra. Defendant\u2019s claim, that the C.S.P. offense was not perpetrated in the commission of the burglary, is without merit; the trial court did not err in instructing on C.S.P.II perpetrated in the commission of the burglary.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nDONNELLY and NEAL, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "Elliot L. Weinreb, Santa Fe, for defendant-appellant.",
      "Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Sante Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "644 P.2d 541\nSTATE of New Mexico, Plaintiff-Appellee, v. Robert MARTINEZ, Defendant-Appellant.\nNo. 5427.\nCourt of Appeals of New Mexico.\nMarch 16, 1982.\nCertiorari Denied May 6, 1982.\nElliot L. Weinreb, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Sante Fe, for plaintiff-appellee."
  },
  "file_name": "0027-01",
  "first_page_order": 65,
  "last_page_order": 68
}