State v. Sisneros, A-1-CA-39380

• Citation: A-1-CA-39380
• Case Date: December 20, 2021
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
PETER SISNEROS, Defendant-Appellant.

No. A-1-CA-39380

Court of Appeals of New Mexico

December 20, 2021

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Alisa A. Hart, District Judge.

Hector H. Balderas, Attorney General Santa Fe, NM for Appellee.

Bennett J. Baur, Chief Public Defender Thomas J. Lewis, Assistant Appellate Defender Santa Fe, NM for Appellant.

MEMORANDUM OPINION

JACQUELINE R. MEDINA, JUDGE.

{¶1} Defendant Peter Sisneros appeals from his conviction for solicitation of possession of visual medium of sexual exploitation of children under eighteen. This Court issued a notice of proposed summary disposition proposing to affirm the district court's judgment and sentence. Defendant filed a memorandum in opposition, which we have duly considered. Remaining unpersuaded, we affirm.

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{¶2} Defendant continues to raise the same five arguments he made in his docketing statement, although in a different order from how they were raised in the docketing statement.^[1] First, Defendant continues to argue that it was error for the district court to admit Special Agent Hartsock's lay opinion, based on his training and experience, regarding what Defendant meant when he requested "kid porn." [CN 6; MIO 5] We proposed to conclude in the notice of proposed disposition that Special Agent Hartsock's testimony was properly admitted as lay testimony because it was based on Special Agent Hartsock's personal experiences investigating child exploitation cases. [CN 8] Defendant argues that it was improper for the district court to admit Special Agent Hartsock's testimony on the basis of his experience and training and cited to authority in his memorandum in opposition that stands for the proposition that "[t]raining and experience are factors to be considered in evaluating expert testimony, not lay testimony." State v. Duran, 2015-NMCA-015, ¶ 16, 343 P.3d 207 (holding that a forensic examiner's personal observations of child sexual assault victims did not allow lay testimony as to the behavior of victims generally); see State v. Vargas, 2016-NMCA-038, ¶ 16, 368 P.3d 1232 (stating that "[t]he training and daily interactions undertaken by law enforcement officers are not part

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of the common knowledge and experience of an average person[, h]owever, law enforcement officers regularly make observations in the course of their professional duties, such as the speed of an automobile, that are proper lay opinion testimony from either an officer or a casual observer" (internal quotation marks and citation omitted)).

{¶3} Assuming, without deciding, that the district court improperly allowed Special Agent Hartsock to give lay testimony about what Defendant meant when he requested "kid porn," reversal is not required if the error was harmless. Nonconstitutional errors involving evidentiary rulings are "harmless when there is no reasonable probability the error affected the verdict." State v. Marquez, 2021-NMCA-046, ¶ 32, 495 P.3d 1150 (internal quotation marks and citation omitted), cert. granted, 2021-NMCERT-__, (No. S-1-SC-38502, Apr. 23, 2021).

In holistically assessing the harmfulness of the error, we consider, among other things, the circumstances of the error the emphasis placed on the error, evidence of a defendant's guilt apart from the error, the importance of the improperly-admitted evidence, and whether the erroneously admitted evidence introduced new facts or was merely cumulative

Id.

{¶4} The individual Defendant solicited pictures from online, Jenny Woods (Woods), testified that she understood Defendant's request for" 'kid porn' to involve naked pictures of anyone not of age or between the ages of five and sixteen."

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[RP 88 ¶ 11(i)] She also identified a printed chat conversation between herself and Defendant, in which Defendant states: "I actualy [sic] have some child porn Jenn"; "do you have any kid porn"; "send me them pweeease [sic]"; "child porn is like heaven"; "ok i [sic] think im [sic] gonna [sic]...