State v. Schuessler

This 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 30,893 5 WARREN SCHUESSLER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Kenneth H. Martinez, District Judge 9 Gary K. King, Attorney General 10 Margaret E. McLean, Assistant Attorney General 11 Joel Jacobsen, Assistant Attorney General 12 Santa Fe, NM 13 for Appellee 14 Bennett J. Baur, Acting Chief Public Defender 15 Will O’Connell, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 1 MEMORANDUM OPINION 2 BUSTAMANTE, Judge. 3 {1} Convicted of two counts of criminal sexual penetration of a minor (CSPM) and 4 two counts of criminal sexual contact with a minor (CSCM), Warren Schuessler 5 (Defendant) appeals. Defendant alleges that the district court erred in admitting 6 improper character evidence, that there was insufficient evidence of criminal sexual 7 contact, and that the jury convicted him of multiple indistinguishable counts. We 8 affirm. 9 BACKGROUND 10 {2} Defendant was indicted on eleven counts of molesting his niece (Child) and her 11 older sister. Defendant is seven years older than Child. Child also has a younger 12 sister. Prior to trial, the counts involving Child and her sister were severed. Thus, the 13 charges relevant to the present case are only those in which Defendant is accused of 14 sexual contact with Child when Child was between the ages of eleven and twelve. As 15 part of the order severing the counts involving Child’s sister, the district court ordered 16 exclusion of all evidence related to those charges. Additional facts are provided as 17 necessary to our discussion of Defendant’s arguments on appeal. [2] 1 DISCUSSION 2 {3} Defendant makes six arguments. In his first point Defendant argues that, even 3 though evidence pertaining to the counts related to Child’s sister was supposed to be 4 excluded, “the State introduced evidence throughout the trial suggesting that 5 [Defendant] molested [Child’s] sisters . . . as well.” Defendant concedes that evidence 6 that he groomed Child for a sexual relationship with him by giving her alcohol and 7 drugs was permissible. But, he submits, evidence that he similarly groomed Child’s 8 sisters was inadmissible because it was tantamount to evidence that he had molested 9 the sisters. He asserts that evidence of grooming the sisters was “other bad acts 10 evidence” that should have been excluded under New Mexico’s rules of evidence. 11 Rule 11-404(B) NMRA. 12 {4} The State argues in response that the older sister’s testimony merely 13 corroborated Child’s testimony and therefore was not evidence of other “bad acts.” 14 It maintains that “[h]aving conceded that [use of the evidence of grooming of Child 15 was permissible], Defendant should not be permitted to turn around and deny that the 16 corroborating testimony of an eyewitness to the exact same events was reversible 17 error.” 18 {5} We review the district court’s rulings as to admission of testimony for abuse of 19 discretion. State v. Armendariz, 2006-NMSC-036, ¶ 6 , 140 N.M. 182 , 141 P.3d 526 , [3] 1 overruled on other grounds by State v. Swick, 2012-NMSC-018 , 279 P.3d 747 . “An 2 abuse of discretion occurs when the ruling is clearly against the logic and effect of the 3 facts and circumstances of the case. We cannot say the trial court abused its discretion 4 by its ruling unless we can characterize it as clearly untenable or not justified by 5 reason.” State v. Rojo, 1999-NMSC-001, ¶ 41 , 126 N.M. 438 , 971 P.2d 829 (internal 6 quotation marks and citations omitted). 7 {6} Rule 11-404(B)(1) prohibits admission of “[e]vidence of a crime, wrong, or 8 other act . . . to prove a person’s character in order to show that on a particular 9 occasion the person acted in accordance with the character.” Such evidence is not 10 always prohibited, however. “[E]vidence of prior acts with the complaining witness 11 can directly bolster the complaining witness’s testimony by providing significant 12 corroboration. When used for such a purpose, this evidence is admissible and not 13 considered propensity evidence.” State v. Dietrich, 2009-NMCA-031, ¶ 42 , 145 N.M. 14 733, 204 P.3d 748 (internal quotation marks and citation omitted). In addition, even 15 if not admissible for showing propensity to act in a certain way, “evidence [of other 16 acts] may be admissible for another purpose, such as proving motive, opportunity, 17 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 18 Rule 11-404(B)(2). [4] 1 {7} Here, Child testified that Defendant gave her alcohol “[a]ll the time. As many 2 times as he had it[,]” and that he would give alcohol to both her and her older sister. 3 She also testified that Defendant gave her and her older sister marijuana. The older 4 sister testified that Defendant gave her and Child alcohol and marijuana. Child’s 5 younger sister testified that Defendant drank with “[her] and [her] sisters,” that she 6 had observed Child and her older sister smoking marijuana with Defendant, and that 7 she had smoked marijuana with Defendant. The sisters’ testimony thus addressed 8 both that Defendant gave alcohol and marijuana to Child and that Defendant also gave 9 them to the sisters. Assuming without deciding that admission of this testimony was 10 contrary to Rule 11-404(B), we conclude that its admission was harmless. See State 11 v. Gallegos, 2005-NMCA-142, ¶ 32 , 138 N.M. 673 , 125 P.3d 652 , aff’d in part, rev’d 12 in part on other grounds, 2007-NMSC-007 , 141 N.M. 185 , 152 P.3d 828 (stating that 13 we apply a harmless error analysis to improperly admitted evidence). 14 {8} “Improperly admitted evidence is not grounds for a new trial unless the error 15 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25 , 275 P.3d 110 . 16 Here, Defendant alleges a violation of the rules of evidence; the error alleged is 17 therefore non-constitutional, see State v. Barr, 2009-NMSC-024, ¶ 53 , 146 N.M. 301 , [18] 210 P.3d 198 , overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 35 , which [5] 1 we review to determine whether “there [is] a reasonable probability that [the evidence] 2 contributed to the [defendant’s] conviction.” 3 To judge the “probable” effect of an evidentiary error, 4 courts must evaluate all circumstances surrounding the 5 error. We examine the error itself, including the source of 6 the error and the emphasis placed on the error at trial. To 7 put the error in context, we often look at the other, non8 objectionable evidence of guilt, not for a sufficiency-of-the9 evidence analysis, but to evaluate what role the error played 10 at trial. [In addition,] . . . courts may, depending upon the 11 circumstances of the cases before them, examine the 12 importance of the erroneously admitted evidence in the 13 prosecution’s case, as well as whether the error was 14 cumulative or instead introduced new facts. This is a case15 by-case examination. 16 State v. Leyba, 2012-NMSC-037, ¶ 24 , 289 P.3d 1215 (internal quotation marks and 17 citation omitted). 18 {9} Under this standard of review, we conclude that the admission of this testimony 19 was harmless. In the context of this twelve-day jury trial, we cannot say that there is 20 a reasonable probability that the sisters’ somewhat oblique references to provision of 21 alcohol and marijuana to them by Defendant “contributed to [D]efendant’s 22 conviction.” Id. (internal quotation marks and citation omitted). The testimony did 23 not play a major role in the prosecution’s case. First, the testimony complained of 24 constituted only a few minutes out of the entire trial and the State did not highlight the 25 sisters’ testimony that Defendant had given them alcohol and marijuana in opening [6] 1 or closing arguments. Cf. id. ¶¶ 27-29 (holding that improperly admitted evidence 2 was harmful because “[t]actically, the [s]tate used the diary as a centerpiece of its 3 case[,]” including addressing the evidence in direct and cross-examination as well as 4 opening and closing arguments.). 5 {10} In addition, we note that the jury received instruction that there were no charges 6 against Defendant for conduct with the younger sister. After defense counsel objected 7 to a question of the younger sister, the district court instructed the jury that there had 8 been no allegations by the younger sister against Defendant of improper sexual 9 conduct. Even though the district court gave this instruction in the context of 10 testimony about the younger sister’s safe house interview, the instruction limits, if not 11 eliminates, the probability that the verdict would have been different without the 12 younger sister’s testimony that Defendant offered her marijuana. 13 {11} Further, the impact of the sisters’ testimony is minimal in light of the other 14 evidence adduced at trial. See id. ¶ 24 (“To put the error in context, we often look at 15 the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence 16 analysis, but to evaluate what role the error played at trial.”). Here, Child testified at 17 length about Defendant’s conduct and about her living arrangements before, during, 18 and after the charging period, including her mother’s debilitating alcohol use, the lack 19 of supervision by the mother, and Defendant’s visits to Child’s home and Child’s [7] 1 visits to Defendant’s home. Other witnesses testified as to the same topics. 2 Defendant testified, denying that he sexually abused Child. Two experts testified, one 3 for the State and one for the defense, about the physical evidence of sexual abuse and 4 the significance of the lack of evidence of injury in Child’s examination. Under the 5 circumstances of this case, we conclude that there is no reasonable probability that the 6 testimony at issue contributed to Defendant’s convictions and that its admission was, 7 therefore, harmless. 8 {12} Defendant’s second argument is that the district court erred in denying his 9 motion for a new trial after a detective testified that, after receiving a referral from the 10 Children, Youth and Families Department, she began investigating by “contact[ing] 11 the persons that were involved, the females that were involved, or their parents.” 12 Defendant characterizes this testimony as “unmistakable that the [d]etective was 13 referring to multiple female victims of sexual abuse” and that this testimony, in 14 combination with that of the sisters, “would have improperly induced the jury to 15 convict [him and therefore] the [district] court abused its discretion in failing to grant 16 a mistrial.” The State argues that (1) the statement was unobjectionable because 17 “[s]tating that more than one female was involved in the investigation is simply not 18 the same as saying that more than one female made allegations against Defendant[;]” 19 (2) the district court’s finding that the statement was not intentionally elicited by the [8] 1 prosecution obviates the need for any analysis of whether the improperly admitted 2 evidence “could have induced the jury’s verdict[;]” and (3) the possible prejudicial 3 effect of the testimony was cured when the district court offered to give a curative 4 instruction. 5 {13} We review the denial of a motion for a new trial for an abuse of discretion. 6 Gallegos v. State Bd. of Educ., 1997-NMCA-040, ¶ 30 , 123 N.M. 362 , 940 P.2d 468 . 7 If evidence of prior bad acts is improperly admitted inadvertently, “the prompt 8 sustaining of an objection and an admonition to disregard the witness’s answer cures 9 any prejudicial effect of the inadmissible testimony.” State v. Ruiz, 2003-NMCA-069 , 10 ¶ 6, 133 N.M. 717 , 68 P.3d 957 . Even when the defendant refuses a curative 11 instruction, the district court’s offer of an instruction “is sufficient to cure any 12 prejudicial effect.” State v. Fry, 2006-NMSC-001, ¶ 53 , 138 N.M. 700 , 126 P.3d 516 . 13 If the State intentionally sought the prohibited testimony, however, “we must 14 determine whether there is a reasonable probability that the improperly admitted 15 evidence could have induced the jury’s verdict.” Ruiz, 2003-NMCA-069, ¶ 6 . 16 {14} Here, the district court determined that the statement was inadvertently elicited. 17 Similarly, we discern nothing in the State’s questioning of the detective that indicates 18 an intent to elicit reference to allegations against Defendant by people other than Child 19 and Defendant does not argue to the contrary. Cf. id. ¶¶ 8-9 (determining that the [9] 1 prosecutor intentionally elicited prohibited testimony where it was clear “that the 2 witness was trying to avoid improper reference to the penitentiary” and “[r]ather than 3 accept[ing] that testimony,” the prosecutor pushed the witness to refer to the 4 penitentiary.). The district court offered a curative instruction, which was refused by 5 Defendant. We conclude that the district court’s offer, even if refused by Defendant, 6 was sufficient to address the possible prejudicial effect of the testimony. See Fry, [7] 2006-NMSC-001, ¶ 53 . 8 {15} Defendant’s remaining four arguments pertain to whether there was sufficient 9 evidence of distinct acts of CSCM or CSPM and whether his right to be free from 10 double jeopardy was violated. Before addressing these arguments, we make several 11 observations about the charges and the testimony. The indictment alleges four counts 12 of CSPM and two counts of CSCM that occurred between October 7, 2001 and July 13 17, 2003. These dates correspond to Defendant’s eighteenth birthday and the day 14 before Child’s thirteenth birthday, respectively. Thus, the State sought to specify a 15 charging period in which the alleged conduct would constitute CSPM in the fourth 16 degree and in which Defendant could be sentenced as an adult. See NMSA 1978, § 17 30-9-11(D)(1) (2009); NMSA 1978, §§ 31-18-15.1(G) (2009), -15.2 (1996). Two 18 counts alleged digital penetration of Child (CSPM) and two counts alleged sexual 19 intercourse with Child (CSPM). Two counts alleged that Defendant caused Child to [10] 1 touch his penis (CSCM). The jury instructions for each two-count set of charges were 2 identical. The jury instructions for CSPM based on digital penetration permitted the 3 jury to convict for the step-down offense of CSCM. During trial, the State argued that 4 each type of contact occurred at least once when Child was eleven years old and at 5 least once when Child was twelve years old. The jury instructions did not, however, 6 require jurors to differentiate between acts occurring when Child was eleven and acts 7 occurring when Child was twelve, since the charging period in all of the instructions 8 were the same. Child testified that Defendant first began touching her sexually when 9 she was seven years old and that he continued to have sex with her until she was 10 thirteen years old. 11 {16} With this context in mind, we turn to Defendant’s specific arguments. 12 Defendant’s third argument is that “[t]here was no testimony of distinct acts of 13 CSC[M] that occurred within the time charged. Accordingly, [Defendant’s] 14 convictions for CSCM must be vacated.” To determine whether the evidence was 15 sufficient to support the CSCM convictions, we first view the evidence in the light 16 most favorable to the verdict. State v. Apodaca, 118 N.M. 762, 766 , 887 P.2d 756 , 17 760 (1994). Then, we assess “whether the evidence viewed in this manner could 18 justify a finding by any rational trier of fact that each element of the crime charged has 19 been established beyond a reasonable doubt.” Id. (internal quotation marks and [11] 1 citation omitted). “[A] reviewing court will not second-guess the jury’s decision 2 concerning the credibility of witnesses, reweigh the evidence, or substitute its 3 judgment for that of the jury.” State v. Lucero, 118 N.M. 696, 699 , 884 P.2d 1175 , 4 1178 (Ct. App. 1994). 5 {17} In essence, Defendant’s argument is that Child did not testify to acts of sexual 6 contact separate from that inherent in acts of sexual penetration that occurred during 7 the charging period. The State argues that Child’s specific testimony that Defendant 8 touched her vagina with his hand and then had sex with her and that Defendant had 9 sex with her multiple times when she was eleven and twelve years old supports the 10 CSCM convictions. We agree with the State that this evidence is sufficient to permit 11 the jury’s verdict as to the CSCM counts because this Court has previously held that 12 CSC and CSP convictions arising from unitary conduct are appropriate. See State v. 13 Pisio, 119 N.M. 252, 261 , 889 P.2d 860, 869 (Ct. App. 1994) (stating that convictions 14 for CSP and CSC were “proper units of prosecution” even when they arose from 15 unitary conduct). 16 {18} In his fourth argument, Defendant maintains that the “[m]ultiple 17 undifferentiated sexual abuse charges that are factually indistinguishable violate[d] 18 [his] due process rights and protections against double jeopardy.” Citing State v. 19 Tafoya, 2010-NMCA-010 , 147 N.M. 602 , 227 P.3d 92 and State v. Dominguez, 2008- [12] 1 NMCA-029, 143 N.M. 549 , 178 P.3d 834 , Defendant argues that “[b]ecause the State 2 was unable to offer evidence that distinguished the generic, identical counts described 3 in the [identical] jury instructions, the resulting duplicative convictions must be 4 reduced to a single count [of each type].” He requests that we vacate one conviction 5 for CSCM and one conviction for CSPM. 6 {19} The right to due process of law stems from the Fourteenth Amendment to the 7 United States Constitution and “requires the State to provide reasonable notice of 8 charges against a person and a fair opportunity to defend.” Dominguez, 2008-NMCA- 9 029, ¶ 5 (internal quotation marks and citation omitted); see U.S. Const. amend XIV. 10 The right to due process also “requires that criminal charges provide criminal 11 defendants with the ability to protect themselves from double jeopardy.” Dominguez, [12] 2008-NMCA-029, ¶ 5 (internal quotation marks and citation omitted). Following 13 these principles, “[an] indictment [is] defective [when] it provide[s] the defendant with 14 little ability to defend himself [because] the counts [are] not anchored to particular 15 offenses.” Tafoya, 2010-NMCA-010, ¶ 21 (internal quotation marks and citation 16 omitted). An insufficiently particular indictment offends the prohibition against 17 double jeopardy in two ways: first, it does not 18 permit the defendant to plead a conviction or an acquittal as a bar to 19 future prosecutions, and second, . . . “undifferentiated counts introduce[] 20 the very real possibility that [the defendant] would be subject to double [13] 1 jeopardy in his initial trial by being punished multiple times for what 2 may have been the same offense.” 3 Dominguez, 2008-NMCA-029 , ¶ 9 (second alteration in original) (quoting Valentine 4 v. Konteh, 395 F.3d 626, 634-635 (6th Cir. 2005)). Whether a defendant is at risk of 5 being convicted multiple times for the same conduct depends on whether the evidence 6 at trial supports multiple distinguishable counts. Tafoya, 2010-NMCA-010, ¶¶ 24 , 25 7 (“[I]t is the evidence admitted at trial that must be reevaluated by the district court to 8 determine whether a criminal charge is sufficient to satisfy the due process 9 requirements under Dominguez.”). 10 {20} Child testified that Defendant had sex with her when she was eleven years old 11 and when she was twelve years old. Although at one point she stated she could not 12 remember a specific instance in each of those years, at another point in her testimony 13 she testified about a specific instance of sexual abuse after her grandmother died, 14 including the location of the incident, details about which family members were in the 15 house at the time, what she and Defendant were drinking at the time, and what they 16 were doing before the sexual activity began. She also testified that Defendant had sex 17 with her “more than once” when she was eleven and “more than one time” when she 18 was twelve. In addition, she testified that Defendant began having sex with her when 19 she was seven years old and continued until she was thirteen years old. Child also 20 stated that the sexual abuse occurred in different locations, designated at trial as “the [14] 1 two-story house” (where Defendant lived) and “the blue house” (where Child lived). 2 A number of witnesses testified about the dates that Child lived in the blue house and 3 visited the two-story house, as well as the dates that Defendant lived in the two-story 4 house. Although there are some conflicts in the testimony, it appears that at least a 5 portion of the charging period overlaps with these periods, which themselves overlap 6 with Child’s eleventh and twelfth years. See State v. Sena, 2008-NMSC-053, ¶ 11 , [7] 144 N.M. 821 , 192 P.3d 1198 (stating that appellate courts must assume the trier of 8 fact resolved conflicts in the testimony in favor of the prevailing party). 9 {21} This testimony is sufficient to satisfy due process. Child’s testimony about a 10 specific incident of sexual penetration supports a single CSPM count. Her testimony 11 about a pattern of conduct in addition to that incident supports another CSPM count. 12 The State also distinguished between the two CSPM counts through Child’s testimony 13 that Defendant had sex with her multiple times in each of her eleventh and twelfth 14 years, which indicates a pattern of conduct in each year. Thus, the evidence at trial 15 sufficiently distinguished between the two CSPM counts on either of these bases. See 16 State v. Altgilbers, 109 N.M. 453, 466 , 786 P.2d 680, 693 (Ct. App. 1989) (stating that 17 the State is not required to choose “between either one count in toto or one count for 18 each act” and that “[t]he charging pattern that best reconciles the community’s interest 19 in proper enforcement of the laws and the interest . . . in fairness to the defendant may [15] 1 well be a charging pattern fitting between the two extremes.”). Similarly, the two 2 CSCM counts are distinguished by Child’s testimony about a specific instance of 3 touching preceding sexual intercourse and that “[i]t [(sexual intercourse)] pretty much 4 happened the same way every time. He’d start with touching me, and then, that’s 5 when it progressed.” Like the CSPM counts, this testimony supports one count for 6 a specific instance and one count for a pattern of conduct. The identical CSCM and 7 CSPM counts did not violate the prohibition against double jeopardy. 8 {22} Defendant’s fifth argument is that the jury instructions “allowed the jury to use 9 the same acts to support four convictions” such that “[Defendant] may have been 10 punished multiple times for . . . the same offense.” Defendant relies on Griffin v. 11 United States, 502 U.S. 46 (1991) and State v. Olguin, 118 N.M. 91, 98 , 879 P.2d 92 , 12 99 (Ct. App. 1994), aff’d in part, set aside in part by State v. Olguin, 120 N.M. 740 , 13 741, 906 P.2d 731, 732 (1995) to argue that “this Court [must] vacate all but one 14 count of CSP[M].” 15 {23} When a jury instruction allows conviction on alternate theories, one of which 16 would violate double jeopardy, the protections against double jeopardy are violated 17 unless it is clear from the record that the jury convicted only on the adequate ground. 18 State v. Montoya, 2011-NMCA-074, ¶ 39 , 150 N.M. 415 , 259 P.3d 820 . In Olguin, 19 this Court relied on Griffin to explain the differences between a verdict in which one [16] 1 of the alternate bases is factually inadequate and a verdict in which one of the alternate 2 bases is legally inadequate. Olguin, 118 N.M. at 97-98 , 879 P.2d at 98-99 . Reversal 3 is not required in the former case when at least one of the bases for conviction was 4 supported by sufficient evidence. Id. at 98 , 879 P.2d at 99 . In contrast, reversal is 5 required when one of the bases is contrary to law, such as when “the action in question 6 is protected by the Constitution, is time barred, or fails to come within the statutory 7 definition of the crime.” Id. (quoting Griffin, 502 U.S. at 59 ). 8 {24} As discussed, the instructions for counts one and two are identical and the 9 instructions for counts three and four are identical. Although the State’s theory at trial 10 was that one count of digital penetration and one count of sexual intercourse occurred 11 when Child was eleven and one count of each type occurred when Child was twelve, 12 the jury instructions all include the same twenty-one month charging period which 13 overlaps with but does not align precisely with Child’s eleventh and twelfth years. In 14 addition, the jurors asked several questions during deliberations. Specifically, in a 15 note to the district court, they stated, “Our issue regards the separation of [c]ounts 16 [one and two] from [c]ounts [three and four].” They then asked, “Regarding [c]ounts 17 [three and four], does sexual intercourse inherently include applying a force or 18 touching the vagina of [Child]?” and “Regarding [c]ounts [one and two], is sexual 19 contact limited to touching or applying a force by hand?” The district court refused [17] 1 defense counsel’s request to instruct the jury that counts one and two required them 2 to find that Defendant had touched Child by hand and instead told the jury to rely on 3 the instructions already given. 4 {25} Defendant argues that these questions indicate that the jury “was considering 5 convicting [Defendant] for CSC[M] based on something other than a manual touching, 6 which under the testimony provided them would be the touching inherent in the sexual 7 intercourse for which they separately convicted him in [c]ounts [three] and [four].” 8 He maintains there is no contrary evidence from which to “dismiss the . . . possibility” 9 that the jury convicted Defendant “four times for the same conduct.” Defendant 10 overstates the situation. At most, the jurors’ questions might be read to indicate that 11 they questioned whether Defendant could be convicted twice for CSCM for touching 12 inherent in the two sexual intercourse counts. These questions would imply at most 13 two possible duplicate convictions, not three, as Defendant argues. In any case, we 14 do not agree that any of the convictions require reversal. Even if we accept 15 Defendant’s argument that the jury convicted him of CSCM based on touching 16 associated with sexual intercourse, we have determined that such a verdict does not 17 violate double jeopardy and is, therefore, not legally inadequate. See Pisio, 119 N.M. 18 at 261, 889 P.2d at 869 . [18] 1 {26} In his final argument, Defendant contends that, should this Court decline to 2 vacate both CSCM convictions and one CSPM conviction on the grounds discussed 3 above, we should at least vacate the CSCM convictions because the jury’s questions 4 indicated “an intolerable quantum of confusion” in the deliberations. See State v. 5 DeSantos, 89 N.M. 458, 462-63 , 553 P.2d 1265, 1269-70 (1976). To the extent 6 Defendant’s argument is that the jury was confused as to whether they could convict 7 Defendant for CSCM based on touching inherent in sexual intercourse, we have 8 concluded that the verdict was not inappropriate because it was not error to do so. 9 Defendant does not elaborate on other ramifications of the alleged confusion nor 10 direct us to alternate authority. “We decline to review such an undeveloped 11 argument.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15 , 137 N.M. 339 , [12] 110 P.3d 1076 . 13 {27} Finally, we note the extraneous commentary in the State’s answer brief and 14 caution advocates to avoid language that is overly dramatic, snide, and/or belittling 15 of opposing counsel’s arguments because it is both unnecessary and unhelpful. See 16 Hagen v. Faherty, 2003-NMCA-060, ¶ 21 , 133 N.M. 605 , 66 P.3d 974 (“We think the 17 parties’ arguments in this case could have been made more effectively if they were 18 less strident and more tailored as a logical refutation of the other side’s arguments.”). 19 CONCLUSION [19] 1 {28} Having found no reversible error in the district court, we affirm Defendant’s 2 convictions. 3 {29} IT IS SO ORDERED. [4] 5 MICHAEL D. BUSTAMANTE, Judge 6 WE CONCUR: 7 _________________________________ 8 RODERICK T. KENNEDY, Chief Judge 9 _________________________________ 10 J. MILES HANISEE, Judge