STATE OF NEW MEXICO v. GONZALO CALDERON (2025)

OPINION

{1} A jury found Defendant Gonzalo Calderon guilty of two counts of criminal sexual penetration (CSP) in the second degree (child age 13-18) (force or coercion), in violation of NMSA 1978, Section 30-9-11(E)(1) (2009). Defendant asks this Court to reverse his convictions, arguing that (1) there is insufficient evidence of Defendant's use of “physical force” to cause or perpetrate the nonconsensual penetration of Victim; (2) Section 30-9-11(E)(1) is unconstitutionally vague because it does not provide fair warning that a person can be convicted of nonconsensual sexual penetration of a child age thirteen to eighteen by “physical force,” when the “physical force” used to perpetrate the penetration was no greater than that used in consensual intercourse; and (3) the district court erred in admitting internet searches extracted from Defendant's cellphone using Cellebrite software because the State failed to establish with expert testimony the scientific basis and reliability of the Cellebrite software, or in the alternative, the searches were either irrelevant, under Rule 11-401 NMRA, or unduly prejudicial, under Rule 11-403 NMRA. Because we find all of these arguments to be without merit, we affirm Defendant's convictions.

DISCUSSION

{2} We group the issues raised in this case concerning the construction of the term “physical force” together, and then discuss the evidentiary issues concerning the admission of internet searches downloaded from Defendant's cellphone. We provide the factual and procedural background relevant to each set of issues at the outset of each discussion.

I. CSP Is Caused or Perpetrated by “Physical Force” When Any Degree of Physical Force, However Minimal, Is Used to Penetrate an Unwilling Victim

A. Background

{3} Seventeen-year-old Victim and Defendant's teenage daughter (Daughter) were best friends. Victim, who was living with her grandmother in Santa Fe, New Mexico, visited Daughter, who lived in Rio Rancho, New Mexico, often. Victim knew Defendant and Daughter's mother well, had stayed overnight often at the family's home, and had gone camping with the family.

{4} Around three o'clock in the morning on November 17, 2019, after spending an evening with her boyfriend, Victim arrived at Defendant's home, where she had made plans to spend the night with Daughter. The girls went to Daughter's bedroom and talked for about an hour before going to sleep. Victim slept on an air mattress, which was on the floor next to the bed where Daughter slept.

{5} Victim testified that she was awakened by flashing lights and a clicking noise that she described as sounding like a camera. She then felt Defendant massaging her foot and her lower leg. Victim testified that she was frightened, and was trembling. She described being in a state of shock, unable to move. Defendant removed the blanket covering Victim. Apparently noticing that Victim was trembling, Defendant asked if she was cold. She replied that she was.

{6} Defendant left the bedroom and returned with another blanket, which he put over Victim. He then got under the blankets next to her on the air mattress and proceeded to touch Victim's legs, chest, and buttocks, before falling asleep with his hand on Victim's chest.

{7} After about fifteen minutes, Defendant woke up and left the room. He returned a while later. Defendant did not say anything to Victim. This time, Defendant removed the blanket covering Victim and pulled down Victim's pants slowly.¹ Defendant lay down beside Victim and began to masturbate, rubbing himself against her and touching Victim's vaginal and anal areas with his fingers. Defendant touched his penis against both Victim's labia and anus. Victim described stiffening all her muscles, trying to resist Defendant's touch. Defendant continued this for ten to fifteen minutes. Defendant then pulled up Victim's pants, put a blanket over her, and left the room.

{8} Defendant soon returned to the bedroom a fourth time, during which he removed both Victim's pants and underwear. Victim testified that Defendant inserted his fingers into her “vaginal and anal area,” and touched her up her leg, thighs, and hips. Victim felt him pressed against her, masturbating himself. Victim stated that Defendant penetrated her labia with both his fingers and his penis. This went on for ten to fifteen minutes. Defendant pulled up Victim's pants, left the bedroom, and did not return.

{9} Victim was awake the rest of the night. Daughter was in her bed, asleep, the entire time. Victim left Defendant's home early that morning and drove to her grandmother's house in Santa Fe. When she told her grandmother what had happened, her grandmother called the police. The New Mexico State Police began an investigation, led by a case agent who served as the primary investigator.² Defendant was charged with two counts of second degree CSP under Section 30-9-11(E)(1): Count 1 for Defendant's penetration of Victim's vagina by a finger, and Count 2 for Defendant's penetration of Victim's vulva by a penis.

{10} Section 30-9-11(E)(1) provides:

E. [CSP] in the second degree consists of all [CSP] perpetrated:

(1) by the use of force or coercion 3 on a child thirteen to eighteen years of age. (Emphasis added.)

{11} The case was tried in October 2022 with Victim testifying as described. After the State presented its case in chief, Defendant made a motion for directed verdict, claiming that there was a “complete lack of evidence” from which force or coercion could be inferred. Defendant alleged that Victim did not testify to the use of either physical force or coercion by Defendant. The district court denied Defendant's motion, concluding that the evidence was legally sufficient for the matter to go to the jury.

{12} The jury was instructed that to convict Defendant of CSP in the second degree, they must find, for Count 1:

1. [D]efendant caused the insertion, to any extent, of a finger into the vagina of [Victim];

2. [D]efendant used physical force or physical violence;

3. [Victim] was at least [thirteen] but less than [eighteen] years old;

4. [D]efendant's act was unlawful;

5. This happened in New Mexico on or about November 17, 2019.

The jury instructions for Count 2 were identical to the quoted instructions for Count 1, with the exception of the first paragraph, which stated, “[D]efendant caused the insertion, to any extent, of a penis into the vulva of [Victim].” The jury was also instructed that Defendant must have acted intentionally and that the word “unlawful,” in paragraph four in the above-quoted instruction on the elements of the offense, meant that the act “must have been done without consent and with the intent to arouse or gratify sexual desire.”

{13} The jury convicted Defendant of both counts of second degree CSP, in violation of Section 30-9-11(E)(1), finding both sexual penetration by fingers and by penis; lack of consent by Victim; and the use of physical force or physical violence.

B. Standard of Review

{14} Because Defendant's challenge to the sufficiency of the evidence on appeal is based on his construction of Section 30-9-11(E)(1), and specifically on his construction of the first statutory definition of force or coercion in NMSA 1978, Section 30-9-10(A)(1) (2005)—which defines force or coercion as “the use of physical force or physical violence”—we first address legislative intent as to the meaning of the phrase “the use of physical force or physical violence.”

{15} Questions of statutory construction are issues of law that we review de novo. State v. Holt, 2016-NMSC-011, ¶ 9, 368 P.3d 409. Only after reviewing the construction of the statutory terms under a de novo standard, do we then proceed to apply a substantial evidence standard of review to determine whether the verdict is supported by sufficient evidence in the record. See State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891.

{16} New Mexico's principles of statutory construction instruct that we look first to the text of the statute as “the primary, essential source of its meaning.” NMSA 1978, § 12-2A-19 (1997). “In interpreting statutes, we should read the entire statute as a whole so that each provision may be considered in relation to every other part,” in a way that facilitates the operation of the statute and the achievement of the Legislature's goals. N.M. Pharm. Ass'n v. State, 1987-NMSC-054, ¶ 8, 106 N.M. 73, 738 P.2d 1318. We must also consider the history and background of the statute, attempting to discern the purpose the Legislature seeks to achieve. See State v. Smith, 2004-NMSC-032, ¶¶ 9-10, 136 N.M. 372, 98 P.3d 1022.

{17} We note at the outset that we have the benefit of guidance from precedent both from our Supreme Court and this Court construing our CSP statutes. In State v. Stevens, our Supreme Court undertook a comprehensive review of the history of New Mexico's CSP statutes, going back to the origin of the crime of rape in the common law. 2014-NMSC-011, ¶¶ 24-41, 323 P.3d 901. Given the complex history of the law of CSP, the Court emphasized the origins, legislative history, and motiving purposes of the CSP statutes in ascertaining the meaning of statutory terms, rather than focusing on the meaning of individual words. See id. ¶ 24 (noting that our appellate courts “have struggled with trying to determine legislative intent by simply parsing individual words and phrases of the [CSP] statute”). Stevens cautions that looking solely to the plain meaning of the words used in our CSP statute is likely to result in a construction “contrary to the spirit of the statute” and thus contrary to the Legislature's intent. Id. ¶ 15 (internal quotation marks and citation omitted).

C. Legislative Intent in Including “Physical Force or Physical Violence” as One of the Definitions of Force or Coercion

{18} “[CSP]” is defined generally in Section 30-9-11(A):

A. [CSP] is the 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.

{19} Section 30-9-11(E)(1) provides:

E. [CSP] in the second degree consists of all [CSP] perpetrated:

(1) by the use of force or coercion on a child thirteen to eighteen years of age.

{20} Force or coercion, as used throughout the CSP statute is defined in Section 30-9-10(A) to mean:

(1) the use of physical force or physical violence;

(2) the use of threats to use physical violence or physical force against the victim or another when the victim believes that there is a present ability to execute the threats;

(3) the use of threats, including threats of physical punishment, kidnapping, extortion or retaliation directed against the victim or another when the victim believes that there is an ability to execute the threats;

(4) the perpetration of [CSP] or criminal sexual contact [(CSC)] when the perpetrator knows or has reason to know that the victim is unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act; or

(5) the perpetration of [CSP] or [CSC] by a psychotherapist on [their] patient, with or without the patient's consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy.

The CSP statute does not define either the phrase “physical force” or the word “force.”

{21} Defendant's statutory construction argument focuses narrowly on the plain meaning of the phrase “the use of physical force,”⁴ the first of the five definitions of force or coercion listed in Section 30-9-10(A), and even more narrowly on the meaning of the word “force.” To bolster his argument that “physical force” must mean force sufficient to overcome a victim's resistance rather than merely the force required for unwilling sexual penetration, Defendant turns to the various dictionary definitions of the word “force,” settling on a definition of “force” as a “powerful and violent action that compels someone to do something.” We note that the definitions of “force” in Webster's Third New International Dictionary focus not only on powerful or violent actions but also include: “strength or power of any degree that is exercised without justification or contrary to law upon a person or thing” (emphasis added), and “any power or agency ․ that makes an individual follow a will not his own.” Force, Webster's Third New Int'l Dictionary 887 (Unabridged ed. 2002). Given the wide range of definitions of “force,” including definitions that do not focus on the amount of force but rather on overcoming an individual's will, we do not find Defendant's reliance on selected definitions persuasive authority for Defendant's argument that our Legislature intended to define the term narrowly to include only violent or powerful force or exertion. Heeding our Supreme Court's admonition about the danger of attempting to construe our CSP statute by taking a word or phrase out of context, see Stevens, 2014-NMSC-011, ¶ 24, we turn to the history of the use of physical force in our CSP law.

{22} Originally, under the common law, and under New Mexico CSP statutes in place until 1975, a conviction of rape could not be based on the woman's ⁵ testimony that the intercourse was involuntary: evidence that the victim had physically resisted the penetration and proof that “her resistance [was] forcibly overcome,” id. ¶ 27, was required to establish as a matter of fact that a sexual act was involuntary. See R. Bruce Washburn, Rape Law: The Need for Reform, 5 N.M. L. Rev. 279, 282 (1975) (explaining that “[a]t one time the state was required to prove that the woman had resisted to her utmost, regardless of the circumstances”). The requirement that the victim physically resist to her utmost meant that obtaining a conviction of rape required the state to show that the defendant had overcome the victim's resistance with violent or powerful physical force. Additionally, juries at the time were reluctant to convict of rape unless the defendant was shown to have used violence. See Kenneth A. Cobb & Nancy R. Schauer, Michigan's Criminal Sexual Assault Law, 8. U. Mich. J.L. Reform 217, 220 n.30 (1974).

{23} In 1975, however, New Mexico enacted the original version of our current CSP statute, see 1975 N.M. Laws, ch. 109, guided by Michigan's then-recently enacted Criminal Sexual Conduct Act, see 1974 Mich. Pub. Acts 266; Stevens, 2014-NMSC-011, ¶ 28. Michigan's statutory reform of its previous rape law, removed the presumption of consent by the victim along with the requirement that the prosecution rebut that presumption by proving that the victim resisted in order to establish that the sexual act was nonconsensual and unwilling or involuntary. See W. Patrick Dreisig, Criminal Law—Sexual Offenses—A Critical Analysis of Michigan's Sexual Conduct Act, 23 Wayne L. Rev. 203, 208-9 (1976) (comparing prior version of Michigan CSP statute with the 1975 version). The reforms adopted by Michigan and twenty-eight other states arose in large part from the recognition that requiring a victim to forcefully resist the perpetrator endangered the victim, subjecting them to powerful or violent physical force in response to their physical resistance. See Stevens, 2014-NMSC-011, ¶ 28 (citing Dreisig, supra, at 204 n.8). Victims who did not resist were found to suffer serious injury far less frequently than those who resisted. See Washburn, supra, at 284.

{24} New Mexico's 1975 sexual penetration statute adopted this new approach to CSP, punishing sexual penetration, defined as the invasion of bodily integrity of another committed without the lawful consent of the victim; removed the presumption of consent and the requirement for proof of resistance by the victim;⁶ and added a requirement that the nonconsensual sexual penetration be perpetrated by force or coercion. Force or coercion was broadly defined by our Legislature to include not only “the use of physical force or physical violence,” but also the “use of threats,” either of force or of financial loss or defamation; knowledge that the victim is “unconscious” or otherwise unable to understand the “nature or consequences of the act”; or taking undue advantage of the victim based on a position of authority. 1975 N.M. Laws, ch. 109, § 1(A)(1)-(4).

{25} It is evident from this history, and from the current CSP statute's five definitions of force or coercion in Section 30-9-10(A), which include not only penetration by “the use of physical force,” but also by threats of force, threats of retaliation, extortion, physical inability to consent, or use of a position of authority, that force or coercion is conduct of the defendant that provides evidence of the elements of lack of consent and involuntary penetration of the victim without requiring resistance by the victim or physical violence by the defendant. Compelling or inducing a person to have sex against their will is all that is required for all but the highest degrees of the crime, where the Legislature relied on harm to the victim to increase the degree of the crime and the punishment imposed. See § 30-9-11(D) (stating that first degree CSP requires CSP be perpetrated either “on a child under thirteen years of age” or “by the use of force or coercion that results in great bodily harm or great mental anguish to the victim”).

{26} Each subsection of Section 30-9-11(E), second degree CSP, the crime at issue here—requires lack of consent by the victim, either as a matter of law (if the victim is underage or incompetent) or as a matter of fact (if the victim can lawfully consent), and also requires that the penetration be caused, or “perpetrated,” by force or coercion sufficient to show that the sexual act was involuntary. In other words, the jury must find that the victim did not or could not legally consent and that force or coercion was used to overcome the victim's unwillingness to engage in the act of penetration. See § 30-9-11(E)(1). It follows from the Legislature's clear statement at the conclusion of Section 30-9-10(A)’s list of definitions of force or coercion that “[p]hysical or verbal resistance of the victim is not an element of force or coercion,” that where physical force is the type of force or coercion used by the defendant, the “physical force” required depends on the circumstances and can be minimal, even no more than that required for consensual sex, so long as the jury finds that, considering all of the circumstances, the victim did not consent and the penetration was involuntary.

{27} Our conclusion that the “physical force” used to commit felony CSP need not be violent or powerful is not new. This Court previously construed the term “physical force” under our related CSC statute, NMSA 1978, § 30-9-12 (1993). See State v. Huff, 1998-NMCA-075, ¶ 9, 125 N.M. 254, 960 P.2d 342. We stated that “physical force,” like the other elements of CSC, “describe[s] the quality of [a d]efendant's actions, but do[es] not require a particular quantum of force ․[; ‘t]he issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent.’ ” Id. ¶ 12 (quoting the committee commentary for UJI 14-902 NMRA (CSC)). Commentators on the law of rape have agreed that under modern CSP statutes like New Mexico's, “[t]he existence of forcible compulsion in a rape case does not depend on the quantum of force that is applied but rather on whether the act is consummated against the victim's will.” 65 Am. Jur. 2d Rape § 3 (2025). American Jurisprudence's commentary specifically rejects Defendant's primary argument that the physical force used must be more than that used in consensual sexual intercourse: “Physical force need only be sufficient to support a finding that the sexual activity was against the victim's will; it need not be substantially different or substantially greater than the force inherent in consensual sexual activity.” Id. Our Supreme Court has repeatedly agreed. See State v. Martinez, 2021-NMSC-012, ¶ 21, 483 P.3d 590 (concluding that “the use of force or coercion is inherent in the sexual penetration of a victim who is unable to consent” (emphasis added)); see also State v. Apodaca, 2025-NMSC-015, ¶ 37, 572 P.3d 913 (noting that “[t]he physical force or physical violence alternative of force or coercion does not require the [s]tate to prove that a significant amount of strength or exertion was used to perpetrate the sexual penetration; force or coercion simply means that the victim did not consent”).

{28} It flows from our Legislature's focus on nonconsensual, involuntary submission to a sex act forced or compelled by a defendant's conduct, that, where a victim is a seventeen-year-old child who is initially asleep, then freezes and does not physically or verbally resist out of fear, the jury reasonably can find that sexual penetration, perpetrated with no more force than that used in consensual sexual activity, was nonconsensual and involuntary, and, amounted to second degree CSP under Section 30-9-11(E)(1).

{29} With this framework in mind, we review the record to determine whether sufficient evidence supports the jury's determination that Defendant perpetrated CSP by the use of force or coercion, in this case specifically by the use of “physical force.”

D. Sufficiency of the Evidence

{30} Defendant does not question the sufficiency of the evidence to support the following findings by the jury: (1) Victim was seventeen years old at the time of the offense, satisfying the statutory requirement that the victim be more than thirteen, but less than eighteen years old; (2) Victim was legally capable of consent; (3) Defendant penetrated Victim's labia once with his penis and her vagina once with his fingers; and (4) Defendant's acts were unlawful (defined for the jury as without Victim's consent). The sole finding of fact made by the jury that Defendant contends is without sufficient support in the evidence is the finding that “[Defendant] used physical force.” We therefore focus solely on that finding.

{31} In reviewing for sufficiency of the evidence on appeal, we determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Baroz, 2017-NMSC-030, ¶ 9, 404 P.3d 769 (internal quotation marks and citation omitted). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). “In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary.” Id. We will “not weigh the evidence or substitute our judgment for that of the fact[-]finder so long as there is sufficient evidence to support the verdict.” See State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (alterations, internal quotation marks, and citation omitted).

{32} We measure the sufficiency of the evidence to establish sexual penetration by “the use of physical force,” based on the broad meaning of the term “physical force,” which includes the entire range of physical force from powerful to minimal, leaving it up to the jury to determine whether the penetration of the victim was caused or perpetrated involuntarily by the use of force, rather than with consent. When the correct meaning of the term “physical force” is applied, it is readily apparent that the jury's finding that “[Defendant] used physical force” is supported by substantial evidence in the record at trial.

{33} Victim testified that Defendant entered Daughter's bedroom, where Victim and Daughter were sleeping, around 4:00 a.m. Victim was awakened by seeing flashes and hearing a camera-like clicking. Defendant then started rubbing her legs and her feet. Defendant left Victim's bedroom and returned multiple times. Each time he left and returned, he intruded further on Victim's bodily integrity. The last time he visited the bedroom where Victim was sleeping, Victim testified that Defendant removed the blanket covering her, pulled down her pants, including her underpants, and penetrated her genitals with his finger and then with his penis. Victim testified that she was so frozen in fear that she was unable to move. She described tightening all her muscles and holding herself rigid to try to prevent Defendant from penetrating her. Victim was adamant that she did not consent, that the two penetrations were against her will, and were forced upon her by Defendant.

{34} This evidence is more than sufficient to support the jury's finding that Defendant penetrated Victim involuntarily, against her will, and therefore by the use of “physical force.”⁷ We will not disturb the jury's finding that Victim testified credibly, that she did not consent, and that the sex act was perpetrated against her will, and therefore by force. See State v. Nichols, 2006-NMCA-017, ¶ 9, 139 N.M. 72, 128 P.3d 500 (“[W]e do not substitute our judgment for that of the fact[-]finder concerning the credibility of witnesses or the weight to be given their testimony.” (internal quotation marks and citation omitted)).

E. Section 30-9-11(E)(1) is Not Unconstitutionally Vague

{35} We next address Defendant's argument that Section 30-9-11(E)(1) is unconstitutionally vague, in violation of the Due Process Clauses of both the United States and New Mexico Constitutions. Defendant contends that our CSP criminal statute does not define the degree of physical force proscribed by Section 30-9-11(E)(1) with sufficient clarity to put a person of ordinary intelligence on notice that “physical force or physical violence” does not require violent or powerful physical force, such as “[g]rabbing, pushing, punching, choking, or pinning someone down to have sex.”⁸

{36} “We review a vagueness challenge de novo in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Anderson, 2021-NMCA-031, ¶ 8, 493 P.3d 434 (internal quotation marks and citation omitted). “We apply a two-part test for vagueness, considering whether the statute (1) fails to provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited, or (2) fails to create minimum guidelines for enforcement and thus encourages subjective and ad hoc application of the law.” Id. (internal quotation marks and citation omitted). “Our case law requires that we exercise the strong presumption of constitutionality that underlies each legislative enactment, and hold the party challenging constitutionality to its burden of proving the statute is unconstitutional beyond all reasonable doubt.” Id. (text only) (citation omitted). “Appellate courts have a duty to construe a statute in such a manner that it is not void for vagueness if a reasonable and practical construction can be given to its language.” Id. (internal quotation marks and citation omitted).

{37} Generally, we review a void-for-vagueness challenge “in light of the facts of each particular case.” State v. Luckie, 1995-NMCA-075, ¶ 6, 120 N.M. 274, 901 P.2d 205. Given the facts described above, we are not persuaded that our CSP statute is so vague and unclear that a person of ordinary intelligence would not understand that forcing a nonconsenting seventeen-year-old child to engage in a sexual act against her will is a felony, even if violence is not used to perpetrate the penetration.

{38} Furthermore, a statute is not vague simply because a term is not specifically defined by the Legislature. See State v. Segotta, 1983-NMSC-092, ¶ 8, 100 N.M. 498, 672 P.2d 1129 (“Although the phrase is not defined in the legislative act, that failure does not render the statute unconstitutionally va[gu]e.” (internal quotation marks and citation omitted)). The change in our CSP statute in 1975, from requiring the victim to physically resist, making the violence necessary to overcome that resistance an implicit element of the crime, to focusing on whether the penetration was perpetrated on a nonconsenting victim by the use of any degree of force or by coercion, was the subject of widespread public discussion over many years. Fifty years have passed since our Legislature adopted our current approach to CSP. In addition, our Supreme Court and this Court have both addressed the meaning of the phrase force or coercion in precedential opinions, explaining consistently that force or coercion is inherent in sexual penetration that is nonconsensual. See Huff, 1998-NMCA-075, ¶ 12 (“The issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent.”); Apodaca, 2025-NMSC-015, ¶ 37 (“The physical force or physical violence alternative of force or coercion does not require the [s]tate to prove that a significant amount of strength or exertion was used to perpetrate the sexual penetration; force or coercion simply means that the victim did not consent.”).

{39} Contrary to Defendant's argument, the language of our CSP statute does not suggest that physical violence such as “[g]rabbing, pushing, punching, choking, or pinning someone down to have sex” is an element of the second degree felony CSP charged in this case. The use of physical force that causes physical harm to the victim provides a separate basis for increasing the punishment for CSP. Compare § 30-9-11(E)(1) (second degree CSP, requiring no bodily harm to victim), with § 30-9-11(D)(2) (relying on “great bodily harm” as a means of elevating the crime to a first degree felony).

{40} Defendant's understanding of CSP to require that a defendant “apply physical strength or violence in any way to overwhelm [Victim's] physical resistance and ‘force’ her to have sex,” and his statement in his reply brief that “physical resistance is relevant to whether any force was used,” is inconsistent with Section 30-9-10(A)’s clear statement that neither physical nor verbal resistance of the victim are an element of force or coercion, as well as with longstanding precedent from our appellate courts explaining that “the issue is not how much force the defendant used or whether the victim resisted physically or verbally,” see State v. Perea, 2008-NMCA-147, ¶ 12, 145 N.M. 123, 194 P.3d 738, but just that force or coercion was used, rather than the sexual act being engaged in voluntarily, with the victim's consent, see Huff, 1998-NMCA-075, ¶ 12. The ordinary person, using common sense, would understand from both the statute and this precedent that the distinction between CSP and ordinary noncriminal sexual intercourse is not the amount of force used, but whether the sex act is consensual. See State v. Marquez, 2016-NMSC-025, ¶ 20, 376 P.3d 815 (“The felonious purpose of CSP ․ can be described as the imposition of sexual activity on those who are not willing participants in fact or in law.” (internal quotation marks and citation omitted)).

{41} In his briefs on appeal, Defendant also claims that the CSP law is vague because a person of ordinary intelligence “faces the impossible task of determining what type of ‘force’ each degree of CSP prohibits.” We are not persuaded by Defendant's assertion that the “type of force” prohibited varies with the degree of CSP charged. Rather, in every instance where penetration “by the use of physical force” is charged, that phrase has a uniform meaning. How much force is sufficient to cause penetration without the consent of the victim, and against the victim's will, depends on the circumstances, not on the degree of the crime as Defendant claims. If the victim is unconscious or, as in this case, awakened from sleep and frozen in fear, the degree of force used may be no more than that normally required to achieve penetration in consensual sex.

{42} Finally, Defendant points to confusion about what he claims is overlap between the elements of statutory rape, see § 30-9-11(G)(1), a fourth degree felony, and Section 30-9-11(E)(1), a second degree felony, claiming that these crimes can be charged interchangeably by the prosecution (a consideration in the vagueness analysis) if Section 30-9-11(E)(1) is not distinguished by the defendant's use of violent force. Defendant's focus is on victims aged thirteen to sixteen, who are protected by both statutes. Defendant's argument ignores the essential difference between statutory rape of a child between the age of thirteen and sixteen, see § 30-9-11(G)(1), and second degree CSP when that crime is committed against a child between the age of thirteen and sixteen, § 30-9-11(E). Under second degree CSP, the Legislature added to Section 30-9-11(E)(1) the requirement that the defendant use force or coercion. Although both second degree CSP and fourth degree CSP overlap regarding victims age thirteen to sixteen, the two crimes are distinguished by whether the child willingly participates. Our Legislature has made sexual penetration of a child under the age of sixteen—someone who cannot consent as a matter of law—a fourth degree felony if evidence shows that the child voluntarily participates. See § 30-9-11(G)(1). If, however, a defendant engages in sexual intercourse with a child age thirteen to sixteen who does not voluntarily participate, necessarily using force or coercion, the degree of the crime is increased to a second degree felony. See § 30-9-11(E)(1). There is nothing “nonsensical” about the Legislature's decision to punish statutory rape of a child between the ages of thirteen and sixteen, accomplished against the will of the child, more severely than sexual penetration with the child's agreement.

{43} Defendant has failed to persuade this Court that an ordinary person of common intelligence did not have fair warning from both statutory language and case precedent that his conduct in this case was a crime, punishable as a felony, or that there is any overlap in the definition of each crime. We, therefore, reject Defendant's vagueness challenge to Section 30-9-11(E)(1).

II. The District Court Did Not Err in Admitting the Internet Search History Extracted From Defendant's Cellphone

{44} Defendant challenges the admission of evidence of the dates, times, and contents of internet searches extracted from his cellphone on two grounds. First, Defendant argues that the State was required to establish a foundation for the admission of the downloaded data by having a qualified expert in computer technology explain how the Cellebrite software works and establish its reliability before the downloaded internet searches could be admitted into evidence. We conclude that the district court did not abuse its discretion by admitting the cellphone data under Rule 11-702 NMRA because the Cellebrite software has been generally accepted as reliable and, therefore, the court need not conduct a reliability hearing in every proceeding where that technology is used.

{45} Second, Defendant challenges the admission of the content downloaded from his cellphone as irrelevant, under Rule 11-401, or unduly prejudicial, under Rule 11-403. The Cellebrite report admitted into evidence showed that Defendant searched a pornographic website for “[s]leeping teens ass penetrated” a few hours after the assault on Victim, and searched for “New Mexico State Investigations people list” and “[h]ow long does it take for a rape investigation,” along with other related topics, on December 10, 2019, before being informed that Victim had accused him of CSP and that law enforcement was investigating. Because Defendant did not timely object on the grounds of relevance and undue prejudice argued on appeal, we review for plain error and conclude that reversal is not required.

{46} After explaining the relevant factual background of the Cellebrite search, we address each of Defendant's arguments in turn.

A. Background

{47} In early December 2019 the agent assigned to lead the investigation into Victim's sexual assault allegations obtained a search warrant for Defendant's cellphone. Before contacting Defendant about Victim's allegations, the agent went to Defendant's house on December 10, 2019, to execute the warrant. When no one answered the door, the agent left his card with a note asking Defendant to contact him, without including any information about the reason for the contact.

{48} Law enforcement successfully executed the search warrant and took Defendant's cellphone into custody the next day, the afternoon of December 11, 2019, during a traffic stop. The agent interviewed Defendant at that time and explained the nature of the investigation. The State introduced a videotape of that interview into evidence at trial. During the interview, Defendant admitted that he had approached Victim during a family camping trip and asked her whether she would date him, and that she had told him no. He claimed that nothing had happened the night of the alleged sexual assault: he had simply covered Victim with a blanket because she was cold and returned to his own bed.

{49} The case agent testified at trial that he used a commercial computer software program called Cellebrite to extract and read the data on Defendant's cellphone. The search warrant authorized the agent to examine and copy pictures, text messages, and call logs from Defendant's cellphone from the day of the camping trip to the day of the sexual assault. Following that search, the agent obtained an amended search warrant a few days later allowing him to examine Defendant's search history.

{50} Using Cellebrite software, the agent prepared an extraction report listing, in readable form, the internet searches on Defendant's cellphone that had been downloaded by the program. The report showed that Defendant had used his cellphone to search a pornographic website for the phrase “[s]leeping teens ass penetrated” on November 17, 2019, later on the day the charged crimes occurred. In addition, the Cellebrite report showed that the following six searches were made on December 10, 2019, the day before the warrant was served:

1. New Mexico State Police Investigations people list[;]

2. New Mexico State Investigations people list[;]

3. Criminal Investigation Section/NMSU Police Department, New Mexico State University[;]

4. New Mexico State Investigations[;]

5. What to expect from criminal justice system[;]

6. How long does it take for a rape investigation.

{51} Prior to trial, Defendant filed a motion in limine to exclude the agent's testimony both about the procedure employed to extract the data from his cellphone and about the downloaded content, claiming that the State was required by Rule 11-702 to present the testimony of a qualified computer technology expert to explain how the Cellebrite software worked and to offer scientific evidence of the program's reliability before the cellphone searches could be admitted into evidence. In addition to arguing that the cellphone searches were inadmissible under Rule 11-702, Defendant also claimed that the searches were irrelevant under Rule 11-401 because their reliability had not been established. Finally, in an amended motion in limine filed just before trial began, Defendant argued that his search for “[s]leeping teens ass penetrated,” was unfairly prejudicial under Rule 11-403 because he was not accused of anal sex with Victim.

{52} The morning of trial, the district court heard argument on Defendant's motions in limine. The district court denied the relevant motions, noting that the question of admissibility would depend upon the evidence introduced at trial and reserving any ruling.

{53} At trial, the agent was the only witness called by the State concerning the data downloaded from Defendant's cellphone. The agent testified that he had been trained to use Cellebrite to extract cellphone data, and had used it close to forty times in his job as a law enforcement officer. He testified that Cellebrite is programmed to detect any problem downloading the data, and requires the user to restart the extraction process from the beginning if a problem is detected. According to the agent, the program appeared to function correctly when he extracted the data from Defendant's cellphone.

{54} Defendant timely objected two times to testimony about the nature of Defendant's internet searches, and was then allowed a continuing objection by the court. Defendant's objections renewed his pretrial argument that under Rule 11-702 expert testimony concerning Cellebrite's scientific reliability was needed to lay a foundation for the admission of Defendant's internet searches. The district court overruled these objections and admitted both the Cellebrite report and the agent's testimony about Defendant's internet searches into evidence. Defendant made no objection at trial under either Rule 11-401 or Rule 11-403.

B. Expert Testimony Was Not Required to Establish the Scientific Reliability of Cellebrite Software

{55} Defendant argues on appeal that the evidence downloaded from his cellphone was inadmissible without the testimony of a qualified scientific expert to establish its scientific reliability. When an argument is preserved by timely objection, as it was here, we review the admission of scientific evidence for an abuse of discretion. See State v. Fuentes, 2010-NMCA-027, ¶ 22, 147 N.M. 761, 228 P.3d 1181 (“[T]he rule in this [s]tate has consistently been that the admission of expert testimony or other scientific evidence is peculiarly within the sound discretion of the [district] court and will not be reversed absent a showing of abuse of that discretion.” (internal quotation marks and citation omitted)). A trial court abuses its discretion if its decision is manifestly erroneous, arbitrary, unwarranted, or is “clearly against the logic and effect of the facts and circumstances before the court.” State v. Alberico, 1993-NMSC-047, ¶¶ 58, 63, 116 N.M. 156, 861 P.2d 192.

{56} Rule 11-702, our evidentiary rule governing admission of expert testimony, imposes a requirement on the trial court to act as a gatekeeper, determining whether scientific evidence is both sufficiently reliable, and sufficiently relevant to help the jury reach accurate results. Fuentes, 2010-NMCA-027, ¶ 23. A hearing outside the presence of the jury is often required to enable the court to ensure that the three prerequisites for the admission of technical or scientific testimony are met: (1) the expert is qualified; (2) the testimony proffered will assist the trier of fact; and (3) the testimony concerns scientific, technical, or other specialized knowledge with a reliable basis. Id. The third factor is the sole factor at issue here.

{57} New Mexico courts generally evaluate the reliability of scientific data by considering the factors set forth in the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), factors adopted by our Supreme Court in Alberico, 1993-NMSC-047, ¶ 51. These factors include an analysis of whether the technique is grounded in traditional scientific principles and whether there are studies addressing the validity and reliability of the technique and assessing the rate of error. Id.

{58} Although the reliability of unusual or complex scientific testimony is evaluated with a hearing on the reliability of the expert's methodology, both the United States Supreme Court and our appellate courts have recognized that “ ‘in ordinary cases where the reliability of an expert's methods is properly taken for granted,’ ” the reliability requirement may be met without “ ‘unnecessary reliability proceedings.’ ” See Fuentes, 2010-NMCA-027, ¶ 26 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Kumho provides that a trial court retains “discretionary authority needed both to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability ․ is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning ․ reliability arises.” Id.

{59} In determining whether, in a particular case, the reliability of the science could properly be taken for granted without expert testimony, this Court looks to whether the reliability of the science in question has long been accepted and, in particular, whether other federal or state courts have admitted the scientific evidence at issue without requiring a reliability hearing. See Fuentes, 2010-NMCA-027, ¶¶ 25-27 (relying on the longstanding acceptance of analysis of markings on bullets to identify the gun from which the bullet was fired, and federal case law admitting this evidence without expert testimony establishing its reliability). Fuentes held that where there is long use and acceptance by law enforcement and the public in New Mexico, and widespread acceptance by courts around the country, the trial court does not abuse its discretion in concluding that such evidence is generally accepted. Id. Fuentes holds that if a defendant believes that there is cause for questioning the reliability of the science or technology despite its general acceptance, the burden is on the defendant to support the request for a reliability hearing with a showing that there is some reason to doubt the reliability of that science or technology. See id. ¶ 28 (stating that the burden is on the defendant to “make an affirmative showing that there is some reason to doubt the reliability of that science before a district court is obligated to require a reliability hearing”).

{60} Although our appellate courts have not yet considered whether the reliability of data extracted from a cellphone using the Cellebrite software can, in the usual case, be taken for granted, other states and many federal appellate courts have admitted Cellebrite downloads in relatively uncomplicated criminal cases without conducting a reliability hearing. In its opinion in Wright v. State, 618 S.W.3d 887, 893 (Tex. App. 2021), for example, the Texas Court of Appeals found that no expert testimony is required to provide a reliability predicate for the use of Cellebrite software because software programs for downloading data are commonly used and well understood by the public and the courts. The Texas court found that there was little danger that jurors would be misled by testimony about the use of this well-known type of software. Id. The court relied on Texas law, which, like New Mexico law, acknowledges that “matters of common knowledge can be recognized without a prior determination of reliability.” Id. (internal quotation marks and citation omitted).

{61} The Supreme Judicial Court of Massachusetts similarly relied on the extensive experience of the public with programs like Cellebrite that download and transfer data from one computer system to another to find that it is common knowledge that these programs can be relied on to accurately copy data onto another device. See Commonwealth v. Caruso, 67 N.E.3d 1203, 1218 (Mass. 2017). There, the defendant challenged the reliability of evidence pertaining to electronic files that the police obtained pursuant to searches of the defendant's computer showing (1) “dates upon which certain files on the computer were last accessed; and (2) still images of files displayed on the computer monitor (screen[ ]shots).” Id. The court concluded that a jury “may rely on their own common sense and life experience in their role as fact[-]finders” to determine the reliability of the technology because such technology is “commonly and reasonably relied on.” Id. Further, the Massachusetts court found the defendant had presented no evidence questioning the reliability of the program, and that, therefore, the police officer's testimony was sufficient to establish the foundation for admission of the downloaded data. Id. at 1219.

{62} The federal circuit courts of appeals that have addressed the reliability of the Cellebrite program have also admitted the data downloaded by the program without a reliability hearing. In its opinion in United States v. Williams, the Court of Appeals for the Fifth Circuit surveyed the federal court decisions. 83 F.4th 994, 996-98 (5th Cir. 2023). The court in Williams concluded that, without exception, “[e]very circuit that has addressed this question,” going back to 2014, found that “the mere use and understanding of a Cellebrite extract at trial,” id. at 997-98, does not require expert testimony for its admission. See also United States v. Jimenez-Chaidez, 96 F.4th 1257, 1269 (9th Cir. 2024) (concluding in a Ninth Circuit case decided after Williams that the use of programs like Cellebrite for downloading data from one device so it can be read on another device to be so common that such programs are readily understandable by a jury without expert opinions “about the software's technical processes or reliability”).

{63} Here, Defendant presented no particular reason either to the district court, or now on appeal, to doubt the reliability of the Cellebrite software. Given the widespread acceptance of Cellebrite software (and similar data transferring platforms) by state and federal courts, in addition to the agent's testimony establishing his training and use of the program in extracting the data from Defendant's cellphone, we conclude that the district court did not abuse its discretion in admitting Defendant's downloaded internet searches without requiring expert testimony to establish the reliability of the Cellebrite software.

C. The Admission of Defendant's Internet Searches Was Not Plain Error

{64} In addition to his challenge under Rule 11-702, Defendant also challenges the admission of the internet searches extracted from his cellphone under Rules 11-401 and 11-403, claiming that both his November 17, 2019 internet search on the date of the sexual assault, and his six internet searches on December 10, 2019, are irrelevant or, if relevant, unfairly prejudicial.

{65} The State claims that Defendant failed to preserve an objection to the admission of this evidence under either Rule 11-401 or Rule 11-403. Our review of the record shows that Defendant's sole objection to the admission of his December 10, 2019 internet search history, regarding investigations of rape in New Mexico was his expert testimony objection under Rule 11-702. The relevance and unfair prejudice objections raised on appeal were not preserved. Although Defendant did object to the admission of his “[s]leeping teens ass penetrated” search in his second motion in limine, citing Rule 11-403, Defendant failed to renew this objection at trial. Our Supreme Court has held, “[b]y their very nature, motions in limine do not sufficiently preserve an issue because the rulings on them are subject to change, depending on the nature of the relevant evidence at trial.” State v. Carrillo, 2017-NMSC-023, ¶ 23, 399 P.3d 367. Thus, by not objecting at trial, Defendant failed to preserve his Rule 11-401 and Rule 11-403 objections, whether they were raised at the motion in limine stage or not.

{66} Recognizing that his relevance and undue prejudice arguments may not be preserved, Defendant asks this Court to review the admission of his internet searches for plain error. “A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.” Rule 11-103(E) NMRA. We will reverse for plain error only where we find that there is “(1) error, that is (2) plain, and (3) that affects substantial rights.” State v. Hill, 2008-NMCA-117, ¶ 21, 144 N.M. 775, 192 P.3d 770 (internal quotation marks and citation omitted). To reverse a conviction under the plain error doctrine, “this Court must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict.” Id. (internal quotation marks and citation omitted).

{67} Our plain error review requires us first to determine whether there was obvious error in admitting the evidence. See id. ¶ 21. We begin with the admission of Defendant's December 10, 2019, internet searches for information about rape investigations in New Mexico. Defendant alleges that this evidence is not relevant to any issue. Rule 11-401(A) defines “relevant evidence” as evidence having “any tendency to make a fact more or less probable than it would be without the evidence.” We are not persuaded that there was obvious error in admitting this evidence as relevant to Defendant's defense, which was that he never engaged in sexual contact with Victim. His search for rape investigations in New Mexico prior to being told that he was being investigated for the rape of Victim shows a consciousness of guilt that is inconsistent with his defense. The fact that Defendant argued that there were other reasons he searched for information about rape or that he might have heard about the claims earlier does not undercut the relevance of this evidence—the jury resolves conflicts in the evidence. Finding no error in the admission of this evidence, we need not determine whether the district court's admission of the evidence affected Defendant's substantial rights. See Hill, 2008-NMCA-117, ¶¶ 21-22 (considering first whether there was error).

{68} We move next to Defendant's claim of plain error in the admission of his search for “[s]leeping teens ass penetrated.” Defendant argues that this internet search should have been excluded under Rule 11-403 because “its probative value is substantially outweighed by [the] danger of ․ unfair prejudice.” Defendant claims that the mention of anal penetration in his internet search was unfairly prejudicial because he was not charged with anal penetration of Victim.

{69} We are not persuaded that unfair prejudice outweighed the relevance of Defendant's internet search. The central issue at trial was whether Victim's testimony that Defendant sexually assaulted her at night, awakening her from sleep, was credible. Defendant denied any sexual assault. Given the close proximity in time to the charged crime, and the reference to penetration of “[s]leeping teens,” something uncannily similar to Victim's allegations, this internet search was highly relevant to the key question before the jury. Moreover, although Defendant was not charged with anal penetration, Victim testified without objection that Defendant “inserted his fingers into [her] vaginal and anal area.” Further, the trial court mitigated any unfair prejudice related to the mention of anal penetration by limiting the State's questioning about the DNA testing of Victim to avoid any suggestion of uncharged anal penetration. We note that “[t]he purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but only against the danger of unfair prejudice.” State v. Otto, 2007-NMSC-012, ¶ 16, 141 N.M. 443, 157 P.3d 8 (alteration, internal quotation marks, and citation omitted). The prejudice to Defendant here was neither irrelevant to the issues before the jury nor so unduly prejudicial that its admission was obvious error.

CONCLUSION

{70} Not persuaded by Defendant's claims of error, we affirm.

{71} IT IS SO ORDERED.

FOOTNOTES

1.   Victim testified that she was wearing underwear under her pants. Her testimony is not clear about whether Defendant also removed her underwear during this third encounter. During their fourth encounter, Victim testified both pants and underwear were removed.

2.   A Sexual Assault Nurse Examiner (SANE) nurse examined Victim. The SANE exam revealed no physical injuries; however, DNA swabbed from Victim's labia revealed a DNA profile that matched Defendant's.

3.   We italicize the statutory phrase force or coercion throughout the rest of this opinion for ease of reading instead of using quotation marks.

4.   Neither party here has claimed that Defendant used “physical violence.” The definition of force or coercion found in Section 30-9-10(A)(1)—by “the use of physical force or physical violence”—separates “physical force” and “physical violence” with the disjunctive word “or.” “As a rule of construction, the word ‘or’ should be given its normal disjunctive meaning unless the context of a statute demands otherwise.” Elite Well Serv., LLC v. N.M. Tax. & Revenue Dep't, 2023-NMCA-041, ¶ 14, 531 P.3d 635 (internal quotation marks and citation omitted). We, therefore, focus our discussion solely on the meaning of “physical force.”

5.   Only rape of a woman was then criminal in New Mexico. Stevens, 2014-NMSC-011, ¶ 28. New Mexico's CSP statutes were made gender-neutral by our Legislature in 1975. See 1975 N.M. Laws, ch. 109, § 2 (stating that CSP is the “unlawful and intentional causing of a person ․ to engage in sexual intercourse” (emphasis added)).

6.   The express statement that “[p]hysical or verbal resistance of the victim is not an element of force or coercion,” was adopted by our Legislature in 1975, see 1975 N.M. Laws, ch. 109, § 1(A)(4), and remains in the statute today, see § 30-9-10(A).

7.   Our conclusion is consistent with our holdings in Huff, 1998-NMCA-075 and State v. Perea, 2008-NMCA-147, 145 N.M 123, 194 P.3d 738. We are not persuaded by Defendant's argument that the amount of physical force used in Huff and Perea set a higher threshold for the use of force, which must be met in every case. Huff and Perea simply find that there was sufficient evidence in those cases under the particular facts and circumstances before the jury to support each jury's finding that the penetration was nonconsensual and perpetrated by physical force. See Huff, 1998-NMCA-075, ¶ 12 (holding that “physical force” under our CSP statute “do[es] not require a particular quantum of force ․ [; t]he issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent”).

8.   Defendant preserved his void-for-vagueness claim by filing his motion for judgment notwithstanding the verdict, raising the same issue he now argues on appeal. We note, however, that “we review void-for-vagueness constitutional claims even when they are not preserved below.” State v. Chavez, 2019-NMCA-068, ¶ 11, 451 P.3d 115.

JANE B. YOHALEM, Judge

WE CONCUR: JACQUELINE R. MEDINA, Chief Judge J. MILES HANISEE, Judge