memorandum opinion was not selected for publication in the
New Mexico Appellate Reports. Please see Rule 12-405 NMRA for
restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum
opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court
of Appeals and does not include the filing date.
FROM THE DISTRICT COURT OF BERNALILLO COUNTY Christina P.
Argyres, District Judge.
H. Balderas, Attorney General Santa Fe, NM for Appellee.
Law Firm Robert Jason Bowles Albuquerque, NM for Appellant.
TIMOTHY L. GARCIA, JUDGE.
Defendant-Appellant Trinidad Ybarra (Defendant) appeals his
convictions for criminal sexual penetration of a minor
(CSPM), criminal sexual contact of a minor (CSCM) and
intimidation of a witness. We previously issued a notice of
proposed summary disposition in which we proposed to affirm.
Defendant has filed a memorandum in opposition, which we have
duly considered. Because we remain unpersuaded, we uphold the
In the notice of proposed summary disposition, we set forth
the relevant background information, as well as our analysis
of the issues. We will avoid undue reiteration here. Instead,
we will focus on the content of the memorandum in opposition.
First, Defendant renews his argument that the district court
erred in denying his motion to bar retrial following the
declaration of a mistrial for manifest necessity. [MIO 15-22]
Defendant contends that the prosecutor's failure to
instruct one of its witnesses to avoid any reference to
Defendant's prior sexual relationship with the
victim's mother, which resulted in the birth of a child
(Joseph), together with the prosecutor's failure to
ensure that the defense had full discovery of all of the
victim's medical records prior to trial, should be
regarded as misconduct in willful disregard of the resulting
mistrial. [MIO 16-20] We remain unpersuaded.
The record reflects that the State had no information about
the doctor's visit with which the records are associated
until the victim mentioned them on the stand at trial. [RP
120, 168] Upon that revelation, the State immediately
obtained those records and provided them to the defense. [RP
120] Defendant contends that the State should have been more
diligent in ferreting out those records and providing them to
the defense. [MIO 17] Be that as it may, the trial court
reviewed the records, determined that the information was not
exculpatory, found no prejudice to the defense, and
determined that the opportunity for review prior to
recommencement of the trial proceedings constituted an
adequate cure. [RP 121, 168] In light of these unchallenged
findings, the district court's handling of the situation
cannot be regarded as an abuse of discretion. See State
v. Ortega, 2014-NMSC-017, ¶¶ 43, 49-50, 327
P.3d 1076 (observing that materiality, prejudice, and
susceptibility to cure are relevant considerations when
evidence is disclosed for the first time during trial, and
holding that a mistrial was properly denied where the
defendant failed to demonstrate prejudice, and where the late
disclosure was adequately cured); and see generally
State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M.
84, 84 P.3d 701 (indicating that rulings on late discovery
are reviewed for abuse of discretion, and "[i]n order to
find an abuse of discretion, we must conclude that the
decision below was against logic and not justified by
The record similarly reflects that neither the parties nor
the district court considered the admissibility of evidence
of the prior sexual relationship between Defendant and the
victim's mother until the trial was well underway. [RP
120-21] The matter appears to have been formally raised on
the morning of the second day of trial, at which time the
district court ruled that no mention of that relationship
should be made. [RP 121] A witness for the State who was
called later that morning was advised not to mention the
relationship between Defendant and Joseph (the child who was
born of Defendant's sexual relationship with the
victim's mother). [RP 121] However, on the stand, the
witness answered a question in an unanticipated fashion,
alluding in an abortive fashion to "a one-time sexual
relationship" before the prosecutor interrupted. [RP
122] The district court found that the prosecutor's
handling of the situation did not evince a deliberate
intention to provoke a mistrial or willful disregard. [RP
168] Once again, we perceive no abuse of discretion.
Defendant faults the prosecutor for failing to instruct the
witness in advance that he should not refer to the sexual
relationship between Defendant and the victim's mother.
[MIO 17] However, given that this issue was not raised until
the thirteenth hour, the prosecutor had little or no
opportunity for prior instruction. Defendant also faults the
prosecutor for failing to clearly describe the prohibited
subject matter. [MIO 17-18] Although the prosecutor's
statement was imprecise, given the relationships involved,
the prosecutor could reasonably have believed that he had
conveyed the essential information to the witness. In light
of that advisement, as well as the unexpected nature of the
witness's response to the precipitating question and the
State's prompt objection when the relationship was
mentioned, [RP 122] we conclude that the district court acted
well within its discretion in determining that the ensuing
mistrial was not ascribable to the sort of prosecutorial
misconduct which bars retrial. See generally State v.
Gutierrez, 2014-NMSC-031, ¶ 21, 333 P.3d 247
(indicating that "manifest mistrial rulings are reviewed
for abuse of discretion"); State v.
McClaugherty, 2008-NMSC-044, ¶ 25, 144 N.M. 483,
188 P.3d 1234 (observing that the bar of double jeopardy is
an exceedingly uncommon remedy which applies only in cases of
the most severe prosecutorial transgressions). We therefore
reject Defendant's first assertion of error.
Next, Defendant renews his challenge to the sufficiency of
the evidence to support his convictions. [MIO 22-25] As we
previously described at greater length in the notice of
proposed summary disposition, the State presented evidence in
support of each of the elements of the offense. [CN 5-8]
Defendant does not dispute this, apart from contending that
one of the counts of digital penetration was unsupported by
any evidence that Defendant compelled the victim to perform
the act. [MIO 22-23] Although that may have been the basis
for one of the counts as originally charged in the
indictment, [RP 1] it was not the basis for either of the
counts for which Defendant was ultimately convicted. [RP
206-07] See generally State v. Arrendondo,
2012-NMSC-013, ¶ 18, 278 P.3d 517 ("[J]ury
instructions become the law of the case against which the
sufficiency of the evidence is to be measured."
(internal quotation marks and citations omitted)). We
therefore remain unpersuaded.
We understand Defendant to further contend that the evidence
was too vague and conflicting to establish the dates upon
which the various offenses occurred. [MIO 23] However, the
verdict clearly reflects that the jury found the evidence to
be sufficient, notwithstanding any inconsistencies or lack of
specificity in the victim's testimony. See generally
State v. Sena, 2008-NMSC-053, ¶ 11, 144 N.M. 821,
192 P.3d 1198 ("When parts of a witness's testimony
are conflicting and ambiguous[, ] . . . [i]t is the exclusive
province of the jury to resolve [the] factual inconsistencies
in [that] testimony." (alterations in original)
(internal quotation marks and citation omitted)).
In connection with his challenge to the sufficiency of the
evidence, Defendant contends that the State should have been
required to narrow the charging period. [MIO 23-25] However,
in light of Defendant's failure to raise this issue
below, [MIO 24] we decline to consider this unpreserved
argument. See State v. Huerta-Castro, 2017-NMCA-026,
¶ 15, 390 P.3d 185 (indicating that a defendant must
move for a bill of particulars in order to preserve a
Baldonado issue for appeal); State v.
Altgilbers, 1989-NMCA-106, ¶ 46, 109 N.M. 453, 786
P.2d 680 (holding that a defendant who does not raise lack of
notice by requesting a statement of facts before trial has
waived any such claim). Defendant also contends that one of
the two counts of CSPM based on digital penetration should be
vacated because the jury instructions do not contain
differentiating characteristics. [MIO 24-25] However, to the
extent that the victim testified that this occurred on more
than one occasion (and Defendant does not dispute our
presumption in this regard), [DS 5;CN 6] the evidence is
sufficient to support two convictions. ...