December 28, 2022- State of New Mexico v. Phillip B. Salazar, No. A-1-CA-39340

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
1 2 3 4 5 6 7 V.
Opinion Number:
Filing Date: December 28, 2022
No. A-1-CA-39340
STATE OF NEW MEXICO,
Plaintiff-Appellee,
PHILLIP B. SALAZAR,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred Van Soelen, District Judge
Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM
for Appellant
Court of Appeals of New Mexico Filed 12/28/2022 10:49 AM
Mark Reynolds
8 9 10 11 12 13 14 15 16 17 18 19

OPINION	1
ATTREP, Judge.	2
{1} 	Defendant Phillip Salazar appeals his conviction for kidnapping in the first	3
degree (NMSA 1978, § 30-4-1 (2003)), claiming the district court made several	4
evidentiary errors at trial. We conclude that the district court committed reversible	5
error by preventing Defendant from impeaching the complaining witness with a	6
prior omission inconsistent with her testimony at trial about her failure to disclose,	7
during the investigation of the allegations against Defendant, the full extent of her	8
relationship with Defendant. Because we remand for a new trial on this ground, we	9
do not address Defendant’s other claims of error.	10
BACKGROUND	11
{2} 	Defendant was tried for kidnapping in the first degree, two counts of criminal	12
sexual penetration in the second degree, and aggravated burglary. The complaining	13
witness, Tammie Chavez, accused Defendant of sneaking into her apartment,	14
tackling her to the ground, repeatedly hitting her, sexually assaulting her, and	15
preventing her for nearly four hours from getting help or leaving her apartment.	16
Defendant and Chavez had dated for about one year before the alleged attack.	17
Although Defendant and Chavez disputed whether they were still dating when the	18
incident occurred, they both testified that they had consensual sex the day before.	19

2
{3} 	When reporting the alleged attack to law enforcement and when discussing	1
the alleged attack with emergency room personnel on the day of the incident, Chavez	2
did not disclose that Defendant had sexually assaulted her. The day after the incident,	3
Chavez went to the police department because she believed that the charges initially	4
filed against Defendant were not serious enough and that a stalking charge was more	5
appropriate. During that visit, Chavez alleged for the first time that Defendant had	6
sexually assaulted her. According to a proffer by Defendant’s counsel at trial,	7
Chavez did not disclose at the time that she had been in an ongoing, consensual	8
sexual relationship with Defendant ending the day before the alleged attack. Chavez	9
was examined by a sexual assault nurse examiner (SANE), who recorded that	10
Chavez described Defendant as an “ex-intimate partner.” According to the trial	11
proffer, Chavez did not disclose to the SANE that she recently had been in a sexual	12
relationship with Defendant or that, the day before the incident, she had engaged in	13
consensual sex with Defendant. Also according to the trial proffer, it was not until	14
some months after the incident, when DNA results were returned, that Chavez first	15
disclosed that she and Defendant had been in a consensual sexual relationship around	16
the time of the incident.	17
{4} 	On cross-examination, defense counsel questioned Chavez about her delay in	18
reporting the alleged sexual assault. Defense counsel also attempted to impeach	19
Chavez’s credibility by asking about her failure to disclose to law enforcement and	20

3
medical personnel her ongoing, consensual sexual relationship with Defendant. The	1
State objected on 	relevancy grounds. Defense counsel 	argued that 	Chavez’s	2
omission amounted to a prior inconsistent statement and therefore was relevant to	3
impeach her credibility. The district court judge stated that he was “not sure	4
[Chavez’s] credibility is material to the case” and then sustained the State’s	5
objection, deciding, sua sponte, that the line of questioning violated New Mexico’s	6
rape shield statute.	7
{5} 	At the close of the State’s case, the State dismissed the aggravated burglary	8
charge. Defendant testified in his own defense. He admitted hitting Chavez, but	9
denied sneaking into her apartment, restraining her, and sexually assaulting her. The	10
jury found Defendant guilty of kidnapping in the first degree, but acquitted him of	11
both counts of criminal sexual penetration.	12
DISCUSSION	13
{6} 	We first address whether it was error for the district court to limit the cross-	14
examination of Chavez under New Mexico’s rape shield statute. Concluding that it	15
was, we next consider whether affirmance is nonetheless appropriate on other	16
grounds. Because it is not, we finally examine whether the district court’s error was	17
harmful, such that reversal is required.	18

4
I. 	The District Court’s Reliance on the Rape Shield Statute Was Erroneous	1
{7} 	Defendant argues, and the State concedes, the district court erroneously ruled	2
that Defendant’s cross-examination of Chavez about her failure to disclose to law	3
enforcement and medical personnel her ongoing, consensual sexual relationship with	4
Defendant was prohibited by New Mexico’s rape shield statute, NMSA 1978, § 30-	5
9-16(A) (1993). See also Rule 11-412 NMRA (corresponding rule of evidence).	6
While we are not required to accept the State’s concession, see State v. Tapia, 2015-	7
NMCA-048, ¶ 31, 347 P.3d 738, we agree with the parties.	8
{8} 	Generally, we review a district court’s evidentiary decision, such as this one,	9
for an abuse of discretion. State v. Patterson, 2017-NMCA-045, ¶ 6, 395 P.3d 543.	10
A district court abuses its discretion if its ruling is “based on a misapprehension of	11
the law,” State v. Jaramillo, 2012-NMCA-029, ¶ 17, 272 P.3d 682, or is “clearly	12
untenable or not justified by reason,” State v. Layne, 2008-NMCA-103, ¶ 6, 144	13
N.M. 574, 189 P.3d 707 (internal quotation marks and citation omitted). We “review	14
de novo whether the district court applied the correct evidentiary rule.” State v.	15
Astorga, 2015-NMSC-007, ¶ 29, 343 P.3d 1245.	16
{9} 	“Rape-shield laws, as they are popularly known, reversed the long-standing	17
common-law doctrine that permitted a defendant accused of rape to inquire into the	18
complainant’s ‘character for unchastity,’ that is, [the complainant’s] propensity to	19
engage in consensual sexual relations outside of marriage.” State v. Johnson, 1997-	20

5
NMSC-036, ¶ 11, 123 N.M. 640, 944 P.2d 869 (internal quotation marks and citation	1
omitted). “To encourage victims to report incidents of sexual assault, states enacted	2
rape shield laws to protect victims from unnecessary intrusions into their past sexual	3
history, because states recognized that such evidence is usually only marginally	4
relevant.” State v. Montoya, 2014-NMSC-032, ¶ 42, 333 P.3d 935. New Mexico’s	5
rape shield statute thereby prevents the admission of evidence of a victim’s past	6
sexual conduct “unless . . . the evidence is material to the case and . . . its	7
inflammatory or prejudicial nature does not outweigh its probative value.” Section	8
30-9-16(A); see also Rule 11-412(B) (same). The statute “serves to emphasize the	9
general irrelevance of a victim’s sexual history, not to remove relevant evidence	10
from the jury’s consideration.” Johnson, 1997-NMSC-036, ¶ 21 (internal quotation	11
marks and citation omitted). “If a defendant makes . . . a [sufficient] showing [of	12
relevance], the [district] court must then weigh the probative value of that evidence	13
against the danger of unfair prejudice to the victim.” Montoya, 2014-NMSC-032,	14
¶ 29.	15
{10} 	We agree with the parties that the rape shield statute was not implicated by	16
the evidence Defendant attempted to elicit from Chavez. As Defendant observes,	17
“defense counsel’s questions were not about [Chavez’s] sexual conduct or reputation	18
for past sexual conduct; they were about her initial lack of candor to the authorities	19
about the nature of her relationship with [Defendant].” That is, Defendant’s cross-	20

6
examination was designed to impeach Chavez’s credibility for truthfulness, not to	1
establish her propensity to have consensual sex with him or for some other purpose	2
generally prohibited by the rape shield statute. See id. ¶¶ 41-45 (noting that the	3
“underlying concerns targeted by rape shield laws . . . do not appear to be prominent	4
in this case,” in part because the evidence of the defendant’s prior sexual relationship	5
with the complainant was offered to “present a complete defense” and not to	6
establish propensity); see also Johnson, 1997-NMSC-036, ¶¶ 11-12 (explaining that	7
rape 	shield 	statutes 	generally 	were 	adopted 	to 	“address 	the 	problem 	of	8
underreporting and reluctance to testify” in rape cases by prohibiting the use of a	9
complainant’s past sexual history to establish their “propensity to engage in	10
consensual sexual relations” (internal quotation marks and citation omitted)).	11
{11} 	But even if this line of questioning somehow implicated the rape shield	12
statute, 	it 	was 	confined 	to 	Chavez’s 	sexual 	relationship 	with 	Defendant—a	13
relationship she already had testified to at trial during her direct examination. In	14
other words, Defendant “did not seek to delve unduly into the details of their sexual	15
encounters, embarrass or harass [Chavez], elicit testimony regarding [her] sexual	16
conduct with others, or discredit her character,” based on “evidence of unchastity.”	17
See Montoya, 2014-NMSC-032, ¶¶ 42-43 (internal quotation marks and citation	18
omitted). We agree with the State, then, that “another question” mentioning	19
Defendant and Chavez’s sexual relationship “could not be inadmissible under [the	20

7
rape shield] statute.” Cf. id. ¶¶ 45, 48 (explaining that the complainant’s willingness	1
to testify about her sexual relationship with the defendant showed that the “proffered	2
evidence would have had little prejudicial impact on [her]”). It thus was an abuse of	3
discretion for the district court to limit the cross-examination of Chavez under the	4
rape shield statute.	5
II. 	We Will Not Affirm on Right for Any Reason Grounds	6
{12} 	Acknowledging the district court’s error, the State invokes the right for any	7
reason doctrine, arguing that we may affirm on other grounds—namely, that the	8
excluded evidence was irrelevant or cumulative. See State v. Vargas, 2008-NMSC-	9
019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (providing that, “[u]nder the right for any	10
reason doctrine,” we may affirm the district court “on grounds not relied upon by	11
the district court if those grounds do not require us to look beyond the factual	12
allegations that were raised and considered below” (internal quotation marks and	13
citation omitted)). Principally, the State asserts that the excluded evidence was not	14
relevant and therefore was properly excluded. Defendant argues, as he did at trial,	15
that the proffered evidence—as a prior inconsistent statement by omission—was	16
relevant and admissible impeachment evidence.1 See Rule 11-613 NMRA. We agree	17
with Defendant.	18
1 Because we agree with Defendant on this ground, we find it unnecessary to
consider his 	additional 	theories 	of relevance—specifically, 	that 	the 	excluded
evidence was proof of bias or motive to fabricate or was a specific instance of

8
{13} 	“Evidence that reflects on a witness’s credibility is relevant” and therefore	1
admissible. Patterson, 2017-NMCA-045, ¶ 7 (alteration, internal quotation marks,	2
and citation omitted). It is settled that a prior inconsistent statement may be used to	3
impeach a witness’s credibility. See Astorga, 2015-NMSC-007, ¶ 31 (“[P]rior	4
inconsistent 	statements 	are 	inherently 	relevant 	for 	a 	‘non-hearsay’ 	purpose:	5
impeaching a witness’s credibility.”); see also State v. Macias, 2009-NMSC-028,	6
¶ 20, 146 N.M. 378, 210 P.3d 804 (providing that “a witness’s prior inconsistent	7
statements may be used to cast doubt on the witness’s credibility”), overruled on	8
other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.	9
{14} 	It also is settled that a prior inconsistent statement may take the form of an	10
omission. Nearly a century ago, our Supreme Court described the circumstances in	11
which a prior omission is considered an inconsistency probative of a witness’s	12
credibility:	13
It 	is 	well 	understood 	that, 	if 	the 	witness 	when 	[they 	have] 	an	14
opportunity to speak, and where it would be natural to speak, or where	15
it was [the witness’s] duty to speak, fails to make an important	16
disclosure, which [the witness] afterwards makes on the stand, it is a	17
circumstance 	which, 	although 	susceptible 	of 	explanation, 	if	18
unexplained, tends to impair the credibility of the witness.	19
State v. Archer, 1927-NMSC-002, ¶ 9, 32 N.M. 319, 255 P. 396; see also State v.	20
Foster, 1998-NMCA-163, ¶ 15, 126 N.M. 177, 967 P.2d 852 (concluding that there	21
conduct bearing on Chavez’s character for truthfulness under Rule 11-608(B)(1)
NMRA.

9
was “substantial probative value in [the d]efendant’s failure to mention an important	1
aspect of an incident when giving an ostensibly full account of the incident [to a	2
detective]”); State v. Calvillo, 1990-NMCA-046, ¶¶ 15, 17, 110 N.M. 114, 792 P.2d	3
1157 (concluding that the witnesses’ failures to report a suspect to police after the	4
defendant’s arrest were “probative of the witnesses’ credibility” because they were	5
inconsistent with their subsequent trial testimony portraying the suspect, not the	6
defendant, as the perpetrator). Although the substance of an omission is important	7
to determining whether it is the type of information that one would be expected to	8
include when giving an “ostensibly full account” of an incident to authorities, Foster,	9
1998-NMCA-163, ¶ 15, it is the inconsistency itself that calls a witness’s credibility	10
into question. See Macias, 2009-NMSC-028, ¶ 20 (“When impeaching with prior	11
inconsistent statements not made under oath, it is the fact of the inconsistency that	12
is admissible, not the substantive truth or falsity of the prior statement.”); see also	13
Roger Park 	& Tom Lininger, 	The New Wigmore: A Treatise on 	Evidence:	14
Impeachment 	and 	Rehabilitation 	§ 5.1 	(2023) 	(explaining 	that 	a 	witness’s	15
inconsistency demonstrates they are “capable of error about the matter in question,”	16
and that whether the error be “due to partisan bias, to defects of perception, to bad	17
memory, or to an outright lie,” it raises concern that the witness “has made errors at	18
other points in [their] testimony”).	19

10
{15} 	Defendant contends that Chavez’s months-long failure to disclose to law	1
enforcement and medical personnel her ongoing, consensual sexual relationship with	2
Defendant was inconsistent with her ready admission at trial to this relationship,	3
including to having consensual sex with Defendant the day before the incident.	4
Defendant further contends that the information Chavez provided at trial was of the	5
type one would expect Chavez to disclose when pursuing stalking, rape, kidnapping,	6
and battery charges against Defendant. We find Defendant’s contentions persuasive,	7
particularly in the absence of an argument from the State on these points. See State	8
v. Serna, 2018-NMCA-074, ¶¶ 32-34, 429 P.3d 1283 (declining to decide an	9
undeveloped, right for any reason argument); State v. Randy J., 2011-NMCA-105,	10
¶¶ 27-30, 150 N.M. 683, 265 P.3d 734 (same); State v. Fuentes, 2010-NMCA-027,	11
¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not review unclear or	12
undeveloped arguments [that] require us to guess at what [a] part[y’s] arguments	13
might 	be”). 	We 	agree 	with 	Defendant 	that 	information 	about 	Chavez 	and	14
Defendant’s ongoing, consensual sexual relationship is the type of information that	15
would have been “natural” to tell authorities when “giving an ostensibly full	16
account” of the allegations against Defendant. See Archer, 1927-NMSC-002, ¶ 9;	17
Foster, 1998-NMCA-163, ¶ 15. Chavez’s failure to disclose these naturally pertinent	18
facts was relevant to her credibility as a witness, which could have affected how the	19
jury weighed her testimony, including her testimony supporting the kidnapping	20

11
charge. See Patterson, 2017-NMCA-045, ¶ 7; see also Commonwealth v. Thayer,	1
479 N.E.2d 213, 215 (Mass. App. Ct. 1985) (holding that it was reversible error for	2
the trial court to exclude evidence that “the complainant was voluntarily keeping	3
friendly company with the two men she charged had raped her only forty-eight hours	4
earlier” because it contradicted the complainant’s trial testimony and thus “was a	5
circumstance that might have engendered skepticism in the minds of the jury about	6
[the complainant’s] version of the events”). Accordingly, we conclude that the	7
excluded evidence was a prior inconsistent statement by omission and plainly	8
relevant to Chavez’s credibility.	9
{16} 	To the extent the State advances the alternative argument that, if Chavez’s	10
omission is deemed relevant, it nonetheless was inadmissible because it was	11
cumulative of other evidence, we likewise are unpersuaded. See Rule 11-403 NMRA	12
(permitting a trial court to “exclude relevant evidence if its probative value is	13
substantially 	outweighed 	by 	a 	danger 	of,” 	among 	other 	things, 	“needlessly	14
presenting cumulative evidence”); see also State v. Stanley, 2001-NMSC-037, ¶ 32,	15
131 N.M. 368, 37 P.3d 85 (stating that a witness’s prior inconsistent statement must	16
meet the balancing test of Rule 11-403). According to the State, Chavez’s credibility	17
already had been impeached because defense counsel inquired about her initial delay	18
in reporting the alleged sexual assault. From this, the State surmises, Chavez’s	19
omission “would not have added anything to the jury’s . . . assessment of her	20

12
credibility.” The State, however, fails to expound on or cite authority supporting this	1
idea; nor does the State advance any other argument why Chavez’s omission would	2
be inadmissible under Rule 11-403 or otherwise. See Serna, 2018-NMCA-074,	3
¶¶ 32-34; Randy J., 2011-NMCA-105, ¶¶ 27-30; State v. Guerra, 2012-NMSC-014,	4
¶ 21, 278 P.3d 1031 (providing that appellate courts are under no obligation to	5
review unclear or undeveloped arguments and may assume, in the absence of cited	6
authority, that no authority supporting the argument exists).	7
{17} 	In contrast to the State’s bare assertions that the failure to disclose was	8
cumulative, we find compelling Defendant’s argument that Chavez’s omission	9
regarding the ongoing, sexual relationship was “more powerful impeachment	10
evidence” than the evidence of her delayed reporting of the alleged sexual assault.	11
While the jury could have attributed Chavez’s one-day delay in reporting the alleged	12
sexual assault to recent trauma, the jury may not have attributed, to use Defendant’s	13
words, a “similarly innocent explanation” to her months-long failure to disclose the	14
full nature of her relationship with Defendant, all the while pursuing stalking, rape,	15
kidnapping, and battery charges against him. Cf. State v. Zamarripa, 2009-NMSC-	16
001, ¶ 59, 145 N.M. 402, 199 P.3d 846 (concluding, in a harmless error analysis,	17
that a witness’s self-inculpating statement was corroborative and not cumulative	18
because it “would be much more powerful in the eyes of the jury” than other	19
evidence establishing the same fact). Thus, we cannot say the probative value of	20

13
Chavez’s omission was so diminished by her other inconsistency that the omission	1
was cumulative. Cf. State v. Villanueva, 2021-NMCA-016, ¶ 39, 488 P.3d 680	2
(concluding that evidence was cumulative because the defendant could have	3
established “both the content and tone of the conversation by alternative means,	4
[thereby] greatly diminishing . . . the probative value of the [evidence]”), cert.	5
denied (S-1-SC-38679).	6
{18} 	Because we conclude that the excluded evidence was relevant and not	7
cumulative, we decline the State’s invitation to affirm the district court’s ruling on	8
other grounds. Accordingly, we hold that the district court erred by refusing to allow	9
Defendant to impeach Chavez with her prior omission. See Stanley, 2001-NMSC-	10
037, ¶ 33 (concluding that the district court abused its discretion by preventing the	11
defendant from impeaching a witness with his prior inconsistent statement because	12
the prior inconsistent statement contradicted the witness’s trial testimony and	13
“would have been especially probative,” which outweighed its prejudicial effect	14
under Rule 11-403).	15
III. 	The District Court’s Error Was Not Harmless	16
{19} 	An erroneous evidentiary ruling is not grounds for a new trial unless “the error	17
was prejudicial rather than harmless.” State v. Smith, 2016-NMSC-007, ¶ 46, 367	18
P.3d 420 (internal quotation marks and citation omitted). Nonconstitutional errors,	19
such as the evidentiary error at issue, are deemed harmful if there is a reasonable	20

14
probability that the error affected the verdict. State v. Vargas, 2016-NMCA-038,	1
¶ 24, 368 P.3d 1232. To determine the likely effect of the error, we must evaluate all	2
of the circumstances, including, as relevant here, the importance of the witness’s	3
testimony to the prosecution’s case, other evidence of the defendant’s guilt to	4
understand the role of the error within the context of the trial, and the cumulative	5
nature of the error. See Tollardo, 2012-NMSC-008, ¶ 43 (citing State v. Johnson,	6
2004-NMSC-029, ¶ 11, 136 N.M. 348, 98 P.3d 998); Johnson, 2004-NMSC-029,	7
¶ 11.	8
{20} 	We conclude that Defendant has met the initial burden of establishing	9
prejudice. See Astorga, 2015-NMSC-007, ¶ 43 (“[The d]efendant bears the initial	10
burden of demonstrating that he was prejudiced by the error.”); State v. Cabral,	11
2021-NMCA-051, ¶ 35, 497 P.3d 670 (same). Defendant persuasively argues that	12
he was prejudiced by the district court’s ruling, in that “[Chavez] was the State’s	13
most crucial witness, making impeachment of her critical to the defense.” He	14
explains that Chavez’s credibility was especially important to the kidnapping charge	15
because Chavez “provided the State’s only evidence of restraint, including evidence	16
of restraint beyond that involved in the battery to which [Defendant] admitted.” See	17
Patterson, 2017-NMCA-045, ¶ 12 (explaining that the state’s primary witness’s	18
“credibility and character for truthfulness” was “axiomatically central” to the case	19
because his testimony was “crucial to the case against [the d]efendant”). Given the	20

15
prosecution’s reliance on Chavez’s testimony, especially that as to restraint, we	1
agree with Defendant that Chavez’s credibility was “the lens through which the jury	2
evaluated the State’s case.” See id. ¶ 20.	3
{21} 	And there is reason to believe the jury doubted Chavez’s credibility. The jury	4
acquitted Defendant on the two criminal sexual penetration charges, the evidence of	5
which came primarily from Chavez’s testimony. See Tollardo, 2012-NMSC-008,	6
¶ 56 (noting that the jury must have had “at least some serious doubts about [the	7
witness’s] credibility” because it acquitted the defendant on two other charges that	8
were “supported almost exclusively” by that witness’s testimony). While the State	9
surmises that the excluded impeachment evidence would have done nothing to call	10
Chavez’s credibility into further doubt, we see it differently. As discussed, the	11
excluded evidence was not merely cumulative of other impeachment evidence, but	12
instead offered potentially more powerful impeachment evidence. See Johnson,	13
2004-NMSC-029, ¶ 39 (“[O]nly in very clear instances of accumulated evidence—	14
where the evidence is so redundant that its corroborative effect is negligible—should	15
the improper admission or exclusion of one accretion of such evidence be considered	16
‘cumulative’ for purposes of our harmless-error analysis.”). There was substantial	17
probative value in Chavez’s failure to mention her ongoing, consensual sexual	18
relationship with Defendant when giving her account to law enforcement and	19
medical personnel; the jury—if presented with this evidence—properly could have	20

16
found a telling inconsistency between Chavez’s prior omission and her trial	1
testimony, drawing her credibility into further doubt. See Foster, 1998-NMCA-163,	2
¶ 15.	3
{22} 	Given the importance of Chavez’s credibility to the State’s case, particularly	4
as to restraint, as well as the significant probative value of the excluded impeachment	5
evidence, we conclude Defendant was prejudiced by the district court’s ruling. Cf.	6
State v. Martinez, 1996-NMCA-109, ¶ 21, 122 N.M. 476, 927 P.2d 31 (concluding	7
that the district court’s decision to prevent the defendant from impeaching a witness	8
was not harmless error, where the witness was the only one who testified in support	9
of the charge against the defendant, and the state’s case was “intimately tied to [the	10
witness’s] credibility”); State v. Stephen F., 2008-NMSC-037, ¶ 41, 144 N.M. 360,	11
188 P.3d 84 (concluding that a district court’s refusal to allow cross-examination of	12
the state’s witness regarding her motive to lie was not harmless error because the	13
case “boil[ed] down to a question of credibility”).	14
{23} 	In response to Defendant’s showing of prejudice, the State asserts only that,	15
as to the kidnapping charge, the district court’s ruling “could not have prejudiced	16
Defendant . . . because whether he and [Chavez] still had some sexual relationship	17
ha[d] nothing to do with the elements of that charge.” The State misses the point.	18
The value of the excluded evidence was not to establish that Defendant and Chavez	19
had a sexual relationship. Instead, as discussed at length, the value of the excluded	20

17
evidence was to impeach Chavez’s credibility. Cf. Macias, 2009-NMSC-028, ¶ 20	1
(providing that “it is the fact of the inconsistency that is admissible, not the	2
substantive truth or falsity of the prior statement”). The State has not otherwise	3
addressed the harmfulness of the district court’s error. Thus, in light of Defendant’s	4
showing of prejudice, and the State’s undeveloped corresponding argument, we	5
conclude the error was not harmless. See Patterson, 2017-NMCA-045, ¶¶ 19-20	6
(observing that the state bears the burden to prove that an evidentiary error is	7
harmless, and that, in the absence of an argument as to why the error was harmless,	8
this Court will not guess at what that argument might be; concluding that the	9
exclusion of impeachment evidence relating to the state’s primary witness was not	10
harmless 	error); 	State 	v. 	Duran, 	2015-NMCA-015, 	¶¶ 19-20, 	343 	P.3d 	207	11
(providing, in the nonconstitutional error context, that “the [s]tate bears the burden	12
to prove that the error was harmless”); see also State v. Serna, 2013-NMSC-033,	13
¶ 32, 305 P.3d 936 (concluding that a nonconstitutional error was harmless because	14
“the [s]tate satisfie[d the Court] that ‘there is no reasonable probability’ that	15
evidence of [the d]efendant’s prior convictions affected [the] verdict and contributed	16
to [the d]efendant’s convictions”).2
17
2 Our case law has not been entirely consistent when describing the respective
burdens of the defendant and the state in the nonconstitutional harmless error
context. For example, prior to deciding Tollardo, our Supreme Court indicated that
it was the defendant’s burden alone to show that a nonconstitutional error warranted
reversal. See State v. Gonzales, 1991-NMSC-075, ¶ 27, 112 N.M. 544, 817 P.2d

18
CONCLUSION	1
{24} 	For the foregoing reasons, we reverse Defendant’s conviction for kidnapping.	2
Because Defendant has not challenged the sufficiency of the evidence supporting his	3
conviction, and we are otherwise satisfied that substantial evidence supported his	4
conviction, we remand for a new trial consistent with this opinion. See State v. Catt,	5
2019-NMCA-013, ¶ 7, 435 P.3d 1255 (providing that retrial is not barred on double	6
jeopardy grounds if the conviction was supported by sufficient evidence).	7
{25} 	IT IS SO ORDERED.	8
__________________________________	9
JENNIFER L. ATTREP, Judge	10
1186 (providing that the “defendant must show a reasonable probability that the
[district] court’s failure to allow the testimony contributed to his conviction”). This
is in contrast to later statements by our Supreme Court, as well as this Court, that the
defendant has the initial burden of showing a nonconstitutional error was prejudicial,
see, e.g., Astorga, 2015-NMSC-007, ¶ 43 (providing that, for nonconstitutional
errors, “[the d]efendant bears the initial burden of demonstrating that he was
prejudiced by the error” in the harmless error analysis); Cabral, 2021-NMCA-051,
¶ 35 (same), while the state appears to have the ultimate burden of showing the error
was 	harmless, 	see, 	e.g., 	Serna, 	2013-NMSC-033, 	¶ 32 	(observing, 	for 	a
nonconstitutional error, that the state satisfied its burden of showing harmlessness);
Duran, 2015-NMCA-015, ¶ 20 (providing that, for nonconstitutional errors, “[t]he
[s]tate bears the burden to prove that the error was harmless”); Patterson, 2017-
NMCA-045, ¶¶ 19-20 (observing that the state bears the burden to prove that an
evidentiary error is harmless). But even if the ultimate burden were on Defendant to
show the error was harmful, as in Gonzales, the result in this case is not altered
because Defendant has shown there is “a reasonable probability that the [district]
court’s [error] contributed to his conviction.” See 1991-NMSC-075, ¶ 27.

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WE CONCUR:
2
Laval E Bara
3
GERALD E. BACA, Judge
4 5
Katherine a. Wraz
KATHERINE A. WRAY, Judge
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