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Date: 10-15-2020

Case Style:


Case Number: A-1-CA-37295

Judge: Zachary Ives


Plaintiff's Attorney: Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General

Defendant's Attorney:

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Albuquerque, NM - Criminal defense lawyer represented defendant Luis Martinez charged with criminal sexual contact of a minor in the third degree (child under 13).

4 {2} Defendant was charged with multiple counts of CSCM for sexually abusing
5 Victim, who was twelve years old, during two separate incidents on Thanksgiving
6 Day 2014. Victim disclosed the incidents to her mother (Mother) the Tuesday after
7 Thanksgiving, following a family discussion concerning allegations—which had
8 resulted in charges that were ultimately dismissed—that Defendant had previously
9 engaged in sexual abuse of minors. Defendant’s trial theory was that Victim
10 fabricated the allegations after the family meeting because Mother’s bias against
11 Defendant and his mother, who Mother allegedly believed contributed to her divorce
12 from Victim’s father, prejudiced Victim against Defendant and his mother.
13 {3} Defendant filed a motion in limine to exclude testimony by Victim’s family
14 regarding these prior allegations and the resulting charges against Defendant, which
15 had been dismissed. The State did not oppose the motion, specifically noting in
16 response that it would seek to introduce prior bad act evidence for impeachment or
17 rebuttal only if Defendant “opened the door.” At the hearing on the motion, both
18 Defendant and the State acknowledged that the family discussion, despite its
19 prejudicial subject matter, was “integral” to the circumstances surrounding Victim’s
20 disclosure. To avoid specific mention of the prior allegations in testimony explaining

1 those circumstances, the district court ruled that the State would be allowed to ask
2 Victim’s family members “a leading question or two about having a family
3 discussion concerning [Defendant] . . . but not specifically what was discussed in
4 that family meeting[.]” Defendant agreed to this resolution of the issue.
5 {4} Nevertheless, defense counsel, in opening statement, stated that Mother had
6 “spoke[n] badly about [Defendant]” during the family discussion. And when defense
7 counsel cross-examined Victim’s brother, counsel asked him whether Mother had
8 said “bad things about [Defendant]” during the discussion, eliciting an affirmative
9 response. Before redirect, the State requested a bench conference to discuss how it
10 could clarify that defense counsel’s reference to “bad things” had nothing to do with
11 the divorce, and how it could respond to defense counsel’s suggestion that Mother
12 had influenced Victim, causing her to make false allegations against Defendant. The
13 district court stated that it would allow the State to ask two questions, and that the
14 State could ask if the conversation occurred out of concern for the children’s
15 “safety.” On redirect, the State attempted to clarify that the discussion had been
16 about “safety.” Later, during Mother’s testimony, the State elicited that the safety
17 concerns addressed in the family discussion were based on “something [Mother had]
18 looked up,” rather than being made up or based upon Mother’s own feelings.

1 {5} The jury found Defendant guilty of one count of CSCM and hung on the
2 remaining charges, which the State subsequently dismissed by filing a nolle
3 prosequi. This appeal followed.
5 {6} We “review the district court’s evidentiary rulings for an abuse of discretion.”
6 State v. Comitz, 2019-NMSC-011, ¶ 46, 443 P.3d 1130. “An abuse of discretion
7 occurs when the ruling is clearly against the logic and effect of the facts and
8 circumstances of the case”—when it is “clearly untenable or not justified by reason.”
9 Id. (internal quotation marks and citation omitted).
10 I. The District Court’s Mid-Trial Ruling Does Not Warrant Reversal
11 {7} We first briefly address Defendant’s argument that he was prejudiced by the
12 district court excluding prior bad acts evidence before trial but then adjusting its
13 ruling midtrial to allow the State to introduce what Defendant contends is prior bad
14 acts evidence. Although Defendant correctly concedes that motions in limine are
15 “subject to reconsideration by the district court during trial[,]” he argues that the
16 district court’s decision to reconsider was an abuse of discretion in this case because
17 the court reversed itself “without warning or thoughtful reconsideration of the
18 rulings it had made pretrial[,]” under which the State could address the family
19 discussion only generically through a leading question regarding a “family
20 discussion about [Defendant.]” But during trial Defendant’s counsel asserted that

1 Mother had said “bad things” about Defendant and had “spoke[n] badly about
2 [Defendant]” during the family discussion. Critically, as the district court pointed
3 out during a bench conference, the parties never discussed the propriety of testimony
4 regarding “bad things” during the hearing on the motion in limine. Thus, the district
5 court’s ruling on the motion in limine did not contemplate that either party would
6 describe the subject matter of the family discussion. The district court adjusted its
7 ruling and allowed the State to clarify that the conversation was about the children’s
8 safety only in response to developments during trial.
9 {8} We conclude that this adjustment does not warrant reversal of Defendant’s
10 convictions. Defendant has not cited any legal authority supporting a different
11 conclusion. Instead, Defendant relies on cases in which a defendant, after foregoing
12 or choosing an avenue of defense in reliance on a district court’s evidentiary ruling,
13 had that choice backfire to the defense’s detriment when the district court radically
14 changed course midtrial. See State v. Ruiz, 2001-NMCA-097, ¶¶ 45, 48, 131 N.M.
15 241, 34 P.3d 630 (indicating in dicta that the district court erred by changing an
16 earlier ruling admitting test results favorable to the defendant after permitting the
17 defendant, in reliance on the earlier ruling, to elicit testimony regarding their
18 significance and interpretation); State v. Glasgow, 2000-NMCA-076, ¶¶ 10, 20, 129
19 N.M. 480, 10 P.3d 159 (concluding that the trial court had erred in ruling that the
20 state would be permitted to cross-examine the defendant regarding his use of cocaine

1 after inducing defense counsel to forgo voir dire as to jurors’ beliefs regarding drugs
2 and their relation to homicide by initially ruling that evidence of cocaine use was
3 inadmissible), overruled on other grounds by State v. Tollardo, 2012-NMSC-008,
4 275 P.3d 110. In this case, by contrast, the district court’s change of course was a
5 modest one that allowed Defendant to present one aspect of his defense—that “bad
6 things” said during the family discussion had influenced Victim to falsify her
7 accusations—while permitting the State, as explained more fully below, to present
8 a measured rebuttal of the prejudice potentially arising from this vague and
9 unanticipated testimony. The court’s rulings on the State’s questioning allowed the
10 State to respond to Defendant’s theory of the case: that Mother’s extreme bias
11 against Defendant influenced Victim to falsely accuse Defendant of illegal sexual
12 contact. Contrary to Defendant’s argument, the district court’s rulings did not
13 amount to an “inconsistent application of the rules [that had] a prejudicial effect
14 upon defense strategy.” Glasgow, 2000-NMCA-076, ¶ 14.
15 II. The District Court Did Not Abuse Its Discretion in Admitting the
16 Challenged Testimony
17 {9} Defendant argues that the references to “safety concerns” and Mother’s
18 testimony that those concerns were based on “something [she] looked up”
19 constituted inadmissible evidence of prior bad acts that was highly prejudicial

because it “necessarily implie[d] the existence of some kind of record.”1 1 We are not
2 persuaded that the admission of this testimony requires reversal because we
3 conclude that the testimony was admissible under the doctrine of curative
4 admissibility. “When a defendant makes a claim that ‘opens the door’ to
5 inadmissible evidence, the doctrine of curative admissibility in some circumstances
6 may permit the State to rebut that claim with otherwise inadmissible evidence.”
7 Tollardo, 2012-NMSC-008, ¶ 22; accord Comitz, 2019-NMSC-011, ¶ 47; see also
8 State v. Gonzales, ___-NMCA-___, ¶ 12, ___ P.3d ___ (No. A-1-CA-36059, Dec.
9 23, 2019) (“Under the doctrine of curative admissibility, a party may introduce
10 inadmissible evidence to counteract the prejudice created by their opponent’s earlier
11 introduction of similarly inadmissible evidence.”).
12 {10} Although the district court had, at Defendant’s request, previously ruled that
13 the substance of the family discussion would not be admitted, Defendant opened the
1 Defendant argues that the “safety” and “looked it up” testimony was
inadmissible under Rule 11-404(B) NMRA. However, that rule—which provides
that prior bad acts evidence is inadmissible “to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character[,]” Rule 11-404(B)(1)—only “prohibits the use of otherwise relevant
[prior bad acts] evidence when its sole purpose or effect is to prove criminal
propensity.” State v. Samora, 2016-NMSC-031, ¶ 40, 387 P.3d 230 (internal
quotation marks and citation omitted). The State introduced the testimony at issue
here not to prove Defendant’s criminal propensity, but to rebut the inference that, as
the State put it at trial, Mother had “slander[ed Defendant]” in the family discussion.
Rule 11-403 NMRA, rather than Rule 11-404(B), governs the testimony’s
admissibility for that purpose.

1 door to the testimony at issue by eliciting testimony regarding the contents of the
2 family discussion—specifically, by asking if Mother had said “bad things” about
3 Defendant. It was well within the district court’s discretion to conclude that the likely
4 impact of the phrase “bad things” as a characterization of the contents of the family
5 discussion would be to suggest to the jury that Mother, as a result of her bias against
6 Defendant, had falsely made statements about Defendant that were sufficiently
7 negative to influence Victim to fabricate her allegations. See Williams v. BNSF Ry.
8 Co., 2015-NMCA-109, ¶ 25, 359 P.3d 158 (“Our courts have repeatedly recognized
9 that the trial court is in the best position to evaluate the effect of trial proceedings on
10 the jury.” (internal quotation marks and citation omitted)). The State had a right to
11 rebut that suggestion, as the district court recognized, and the rebuttal the district
12 court allowed was not excessive. The testimony was not sufficiently specific to be
13 unfairly prejudicial in the context in which it was admitted. See Samora, 2016-
14 NMSC-031, ¶¶ 40-41 (holding that the district court had not abused its discretion in
15 admitting evidence that the defendant, a registered sex offender, had been wearing a
16 GPS monitor at the time he allegedly committed the crime where “the generic
17 information that Defendant was subject to GPS monitoring . . . did not strongly imply
18 that Defendant was a sex offender”). Without unfairly prejudicing Defendant, the
19 evidence served its purpose under the doctrine of curative admissibility: rebutting
20 the inference that Mother’s preexisting bias against Defendant and his mother led

1 Mother to falsely make negative statements about Defendant in the family discussion
2 that Defendant argued precipitated Victim’s disclosure. We conclude that admitting
3 the testimony at issue was an appropriate and proportionate response to Defendant’s
4 elicitation of the “bad things” testimony, and we therefore hold that the district court
did not abuse its discretion.2 5

Outcome: We affirm.

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