March 4, 2020- State of New Mexico v. Luis Martinez, No. A-1-CA-37295

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37295	4
LUIS MARTINEZ,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Christina Argyres, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Ben A. Ortega	13
Albuquerque, NM	14
for Appellant	15
MEMORANDUM OPINION	16
IVES, Judge.	17
{1} 	Defendant Luis Martinez appeals his conviction for criminal sexual contact of	18
a minor in the third degree (child under 13) (CSCM) in violation of NMSA 1978,	19
Section 30-9-13(C) (2003). Defendant appeals, arguing that the district court	20
Court of Appeals of New Mexico
Filed 3/4/2020 8:37 AM

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committed reversible error in changing a pretrial evidentiary ruling midtrial and in	1
admitting prior bad acts evidence. We affirm.	2
BACKGROUND	3
{2} 	Defendant was charged with multiple counts of CSCM for sexually abusing	4
Victim, who was twelve years old, during two separate incidents on Thanksgiving	5
Day 2014. Victim disclosed the incidents to her mother (Mother) the Tuesday after	6
Thanksgiving, following a family discussion concerning allegations—which had	7
resulted in charges that were ultimately dismissed—that Defendant had previously	8
engaged in sexual abuse of minors. Defendant’s trial theory was that Victim	9
fabricated the allegations after the family meeting because Mother’s bias against	10
Defendant and his mother, who Mother allegedly believed contributed to her divorce	11
from Victim’s father, prejudiced Victim against Defendant and his mother.	12
{3} 	Defendant filed a motion in limine to exclude testimony by Victim’s family	13
regarding these prior allegations and the resulting charges against Defendant, which	14
had been dismissed. The State did not oppose the motion, specifically noting in	15
response that it would seek to introduce prior bad act evidence for impeachment or	16
rebuttal only if Defendant “opened the door.” At the hearing on the motion, both	17
Defendant and the State acknowledged that the family discussion, despite its	18
prejudicial subject matter, was “integral” to the circumstances surrounding Victim’s	19
disclosure. To avoid specific mention of the prior allegations in testimony explaining	20

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

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{5} 	The jury found Defendant guilty of one count of CSCM and hung on the	1
remaining charges, which the State subsequently dismissed by filing a nolle	2
prosequi. This appeal followed.	3
DISCUSSION	4
{6} 	We “review the district court’s evidentiary rulings for an abuse of discretion.”	5
State v. Comitz, 2019-NMSC-011, ¶ 46, 443 P.3d 1130. “An abuse of discretion	6
occurs when the ruling is clearly against the logic and effect of the facts and	7
circumstances of the case”—when it is “clearly untenable or not justified by reason.”	8
Id. (internal quotation marks and citation omitted).	9
I. 	The District Court’s Mid-Trial Ruling Does Not Warrant Reversal	10
{7} 	We first briefly address Defendant’s argument that he was prejudiced by the	11
district court excluding prior bad acts evidence before trial but then adjusting its	12
ruling midtrial to allow the State to introduce what Defendant contends is prior bad	13
acts evidence. Although Defendant correctly concedes that motions in limine are	14
“subject to reconsideration by the district court during trial[,]” he argues that the	15
district court’s decision to reconsider was an abuse of discretion in this case because	16
the court reversed itself “without warning or thoughtful reconsideration of the	17
rulings it had made pretrial[,]” under which the State could address the family	18
discussion 	only 	generically 	through 	a 	leading 	question 	regarding 	a 	“family	19
discussion about [Defendant.]” But during trial Defendant’s counsel asserted that	20

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

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

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because it “necessarily implie[d] the existence of some kind of record.” 1 We are not	1
persuaded that the admission of this testimony requires reversal because we	2
conclude 	that 	the 	testimony 	was 	admissible 	under 	the 	doctrine 	of 	curative	3
admissibility. 	“When 	a 	defendant 	makes 	a 	claim 	that 	‘opens 	the 	door’ 	to	4
inadmissible evidence, the doctrine of curative admissibility in some circumstances	5
may permit the State to rebut that claim with otherwise inadmissible evidence.”	6
Tollardo, 2012-NMSC-008, ¶ 22; accord Comitz, 2019-NMSC-011, ¶ 47; see also	7
State v. Gonzales, ___-NMCA-___, ¶ 12, ___ P.3d ___ (No. A-1-CA-36059, Dec.	8
23, 2019) (“Under the doctrine of curative admissibility, a party may introduce	9
inadmissible evidence to counteract the prejudice created by their opponent’s earlier	10
introduction of similarly inadmissible evidence.”).	11
{10} 	Although the district court had, at Defendant’s request, previously ruled that	12
the substance of the family discussion would not be admitted, Defendant opened the	13
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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door to the testimony at issue by eliciting testimony regarding the contents of the	1
family discussion—specifically, by asking if Mother had said “bad things” about	2
Defendant. It was well within the district court’s discretion to conclude that the likely	3
impact of the phrase “bad things” as a characterization of the contents of the family	4
discussion would be to suggest to the jury that Mother, as a result of her bias against	5
Defendant, had falsely made statements about Defendant that were sufficiently	6
negative to influence Victim to fabricate her allegations. See Williams v. BNSF Ry.	7
Co., 2015-NMCA-109, ¶ 25, 359 P.3d 158 (“Our courts have repeatedly recognized	8
that the trial court is in the best position to evaluate the effect of trial proceedings on	9
the jury.” (internal quotation marks and citation omitted)). The State had a right to	10
rebut that suggestion, as the district court recognized, and the rebuttal the district	11
court allowed was not excessive. The testimony was not sufficiently specific to be	12
unfairly prejudicial in the context in which it was admitted. See Samora, 2016-	13
NMSC-031, ¶¶ 40-41 (holding that the district court had not abused its discretion in	14
admitting evidence that the defendant, a registered sex offender, had been wearing a	15
GPS monitor at the time he allegedly committed the crime where “the generic	16
information that Defendant was subject to GPS monitoring . . . did not strongly imply	17
that Defendant was a sex offender”). Without unfairly prejudicing Defendant, the	18
evidence served its purpose under the doctrine of curative admissibility: rebutting	19
the inference that Mother’s preexisting bias against Defendant and his mother led	20

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Mother to falsely make negative statements about Defendant in the family discussion	1
that Defendant argued precipitated Victim’s disclosure. We conclude that admitting	2
the testimony at issue was an appropriate and proportionate response to Defendant’s	3
elicitation of the “bad things” testimony, and we therefore hold that the district court	4
did not abuse its discretion.2
5
CONCLUSION	6
{11} 	We affirm.	7
2 Defendant asserts that the district court should have given a curative
instruction to remedy any prejudice arising from the prior acts testimony, but
Defendant acknowledges that he did not request such an instruction at trial. See State
v. Salas, 2017-NMCA-057, ¶ 29, 400 P.3d 251 (“A district court does not err by
refusing to give a curative instruction in the absence of such a request.”). Because
we hold that the district court did not abuse its discretion by admitting the testimony
at issue, we construe Defendant’s argument to be that the district court erred by not
giving a limiting instruction sua sponte. See Rule 11-105 NMRA (“If the court
admits evidence that is admissible against a party or for a purpose—but not against
another party or for another purpose—the court, on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly.”). However, the
failure to request a limiting instruction “waives any right to complain of the trial
court’s alleged error, except in extreme circumstances under the fundamental and
plain error doctrines.” State v. Flores, 2018-NMCA-075, ¶ 20, 430 P.3d 534
(alterations, internal quotation marks, and citation omitted). Because Defendant does
not explain why we should hold that the absence of a limiting instruction rises to the
level of fundamental or plain error, we decline to give it further consideration. See
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments
might be.”).

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{12} 	IT IS SO ORDERED.	1
_________________________________	2
ZACHARY A. IVES, Judge	3
WE CONCUR:	4
_________________________________	5
J. MILES HANISEE, Chief Judge	6
_________________________________	7
MEGAN P. DUFFY, Judge	8