STATE OF NEW MEXICO v. LUIS MARTINEZ

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



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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.



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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.

4 DISCUSSION

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



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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



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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



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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.



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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



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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

We affirm.