A-1-CA-35323 | Omnilex

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Filed
Court of Appeals of New Mexico
2/21/2018 2:11:59 PM
Office of the Clerk
Mark Reynolds

OCR transcription for search; preserved printed pages are authoritative

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Filed

Court of Appeals of New Mexico
2/21/2018 2:11:59 PM

‘O pe of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ February 21, 2018

No. A-1-CA-35323

STATE OF NEW MEXICO,
Plaintiff-Appellee,

DALLAS HNULIK,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Lisa B. Riley, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Laurie P. Blevins, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Mark Reynolds

OPINION

KIEHNE, Judge.

{1} | Defendant appeals his conviction for second-degree murder arising from the
shooting of his girlfriend, Brandy Capps (Victim). Defendant argues that statements
made by Victim should not have been admitted at trial because they were
inadmissible hearsay, and that his conviction must be reversed. We hold that all but
one of the challenged statements were properly admitted under Rule 11-803(3)|-
NMRA. The remaining statement was not admissible under any exception to the rule
against hearsay, but its admission was harmless error. Defendant also challenges the
admission of evidence about a previous domestic violence dispute between him and
Victim. We hold that the domestic dispute evidence was admissible under Rule 11-
404(B) NMRA.

BACKGROUND

2} Defendant was in a romantic relationship with Victim for the two years that
preceded her death. The evidence showed that the relationship was rocky and
Defendant occasionally became violent with Victim. At the time of Victim’s death at |
the end of July 2010 she lived in Lubbock, Texas, but was visiting Defendant and
friends in Artesia, New Mexico, where she used to live. On the day of Victim’s death,

Defendant was in the driver’s seat of Victim’s car as the couple set out from

Defendant’s father’s house to run errands. Victim was in the passenger seat.
Defendant testified that he reached into the back seat area to get a revolver, and as he
brought the gun to the front seat area, it went off. A bullet struck Victim in the face
and she died as a result of the gunshot wound.

3} At trial, the State argued that Defendant intentionally shot Victim to prevent
her from testifying against him in a domestic violence case pending against him in
Lubbock, and out of anger because she planned to break up with him. Defendant
testified that the shooting was an accident and that the gun simply “went off.”
Defendant claimed that the gun was in a bag of clothing in the back seat of the car.
He testified that he did not know the hammer of the gun was cocked, and that as he
was bringing the gun over the seat, the gun fired accidentally.

{4} Among the evidence the State presented to prove that the shooting was not an
accident, Victim’s friends and family testified about statements Victim had made to
them. Collectively, they testified that Victim stated that she was anxious to leave
Artesia and never return, and that she wanted to break off her relationship with
Defendant. The State also presented evidence of a 2009 domestic violence incident
in Artesia involving the couple in which the officer who arrested Defendant heard
him shout “I’m not going to jail over this shit,” and saw him standing over Victim in

an aggressive manner.

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5} Defendant challenges the admission of Victim’s statements on hearsay grounds,
and argues that the domestic violence incident was.improper propensity evidence and
that it was unfairly prejudicial. For the reasons that follow, we are not persuaded.
DISCUSSION

16} “Wereview the admission of evidence under an abuse of discretion standard
and will not reverse in the absence of clear abuse.” State v. Sarracino, 1998-NMSC-
022, 7 20, 125 N.M. 511, 964 P.2d 72. An abuse of discfetion occurs when a trial

court “exercises its discretion based on a misunderstanding of the law.” State v. Vigil,

2014-NMCA-096, 7 20, 336 P.3d 380.

I. Two of Victim’s statements were relevant to negate Defendant’s accident
defense

{7n The State introduced statements that Victim made to two witnesses, Brooklyn

Edwards, Victim’s niece, and Dova Cronian, a former coworker and friend of
Victim’s. Defendant objected to these statements as hearsay. The Court admitted the
statements made to Ms. Edwards as both excited utterances and evidence of Victim’s
state of mind and future intent, and it admitted the statements made to Ms. Cronian
as evidence of Victim’s state of mind.

{33 Ms. Edwards was one of Victim’s closest friends. Ms. Edwards testified that
Victim moved to Lubbock from Artesia because she wanted to start getting her life

together, go to school, and leave Defendant. She understood that Victim planned to

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go to Artesia for the weekend in order to get the rest of her belongings and to talk to
Defendant to “get things figured out.” Ms. Edwards testified that Victim called her
on Friday night, the night before the shooting, and said that she was upset, angry,
ready to go home to Lubbock, “tired of everything” and frustrated. Victim also told
her that she and Defendant had been fighting. Victim planned to get all ofher things,
go home to Lubbock, said she was “done with him,” and did not want to return to
Artesia.

i Ms. Cronian testified that Victim called her because Victim had run out of gas
in Defendant’s mother’s driveway. She stated that Victim sounded anxious and said
“please hurry and come over here and bring me gas as fast as you can get here.” When
Ms. Cronian arrived, Victim said that she “needed [Ms. Cronian] to get the gas as
soon as [she] could because [Victim] needed it so she could leave as soon as
possible.” Victim told Ms. Cronian that she was going back to Lubbock and was
never returning to Artesia.

0} Ms. Cronian invited Victim to go with her to get the gas, but Victim said that
she could not, again asking Ms. Cronian to hurry because “she needed to leave as
soon as possible,” and stated that she would explain later why she could not go with
her. After dropping off the gas, Ms. Cronian called Victim and asked her if she would

be all right, and Victim replied, “I will be. I will be leaving as soon as I can, and I’m

gonna get the fuck out of here, and I’m never fucking coming back.” Victim then
assured Ms. Cronian that she would call her as soon as she got onto the highway to
Lubbock.

11} “Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted.” State v. King, 2015-NMSC-030, § 24, 357 P.3d 949 (internal quotation
marks and citation omitted); see Rule 11-801(C) NMRA. “Hearsay ts not admissible
except as provided by [the New Mexico Rules of Evidence] or by other rules adopted
by four] Supreme Court or by statute.” Rule 11-802 NMRA. One such exception
permitted by the Rules is a hearsay statement showing the declarant’s “then-existing
mental, emotional, or physical condition.” Rule 11-803(3). This includes statements
which show the declarant’s “motive, intent or plan.” Jd. Our Supreme Court has held
that while evidence demonstrating the declarant’s state of mind is admissible as an
exception to the rule against hearsay, evidence explaining the reasons for the}:
declarant’s state of mind is inadmissible. King, 2015-NMSC-030, § 27. “Although
[Rule 11-803(3)] allows hearsay statements that show the declarant’s then existing
mental condition, the rule does not permit evidence explaining why the declarant held
a particular state of mind.” State v. Leyba, 2012-NMSC-037, J 13, 289 P.3d 1215
(internal quotation marks and citation omitted); State v. Baca, 1995-NMSC-045, 4 19,

120 N.M. 383, 902 P.2d 65 (same).

12} Butitis not enough that a declarant’s statements fall within the state-ofmind
hearsay exception; they must also be relevant to some issue in the case. See Rule 11-
401 NMRA (“Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence, and. . . the fact is of consequence in
determining the action.”). Baca indicates that in a criminal prosecution, statements
within the state-of-mind exception are admissible only ifthe declarant’s state of mind
is of consequence to the determination of the declarant’s conduct. 1995-NMSC-045,
q 20; see Leyba, 2012-NMSC-037, J 15 (indicating that statements expressing a
declarant’s mental state must be relevant). ““When the state of mind does not prove
or negate action or inaction by the declarant, then admissibility of hearsay state-of-
mind evidence must be considered under some other rule.” Baca, 1995-NMSC-045,
q 20.

{13} Baca explains that evidence of a crime victim’s state of mind is commonly
relevant, and properly admissible, to help a jury decide issues of “(1) self defense
(rebutted by extrajudicial declarations of the victim’s passive state of mind), (2)
suicide (rebutted by statements inconsistent with a suicidal bent), and.(3) accident
(rebutted by [the] victim’s fear of placing self in way of such harm).” /d. J 21. Such
evidence of the victim’s state of mind “is a relevant part of the conduct in question|[, |”

because it “precedes and informs the conduct.” Id. That sort of properly-admitted

evidence “is distinguishable from a state of mind that arises out of the conduct and
is relevant not because it itself is of consequence but only because an inference can
be drawn therefrom to make the existence of some other fact more or less probable.”
Id. The latter sort of evidence, which is offered after the fact to show “the truth of the | ©
underlying facts rather than solely to show state of mind,” must be excluded because
of the danger that “the jury will consider the victim’s statement of fear [as] somehow
reflecting on [the] defendant’s state of mind rather than the victim’s[.]” Jd. {22
(internal quotation marks and citations omitted).

14 Under this standard, all of Victim’s statements made to Ms. Edwards and Ms.
Cronian were properly admitted, except for Victim’s statement to Ms. Edwards that
she was upset because she and Defendant had been fighting, which we will address
below. These statements demonstrated Victim’s state of mind and future intent: that
she was upset, wished to end her relationship with Defendant, and intended to return
home to Lubbock as soon as possible. Evidence of Victim’s state of mind was
relevant because it “preced[ed] and inform[ed] the conduct” at issue. Jd. J 21. At trial,
Defendant claimed that the shooting was an accident. In support of this claim, defense
counsel argued that although Victim and Defendant had arguments, their relationship
was generally good, and that there was no tension or argument between them in the

hours leading up to the shooting. Victim’s statements were relevant because they |

provided a possible motive for the shooting—Defendant’s anger over her plan to
break up with him—and rebutted Defendant’s claim that he shot Victim by accident.
Defendant acknowledged that they had been arguing immediately before the shooting
when he said, “I don’t even remember what we were arguing about.” In closing
argument, the State asked the jury to consider Victim’s statements as evidence that
Defendant had a motive to shoot Victim.

415} Defendant argues, however, that Victim’s statements were irrelevant because
his own mental state was the only one at issue. Defendant argues that statements
about a victim’s state of mind might be admissible to rebut a defense claim that a
victim’s own conduct caused his or her accidental death, but here there was no claim
that Victim fired the gun. Instead, Defendant never disputed that he fired the fatal
gunshot, and the only question was whether he intended to shoot Victim, or whether
the shooting was an accident. According to Defendant, Victim’s plans shed no light
on his intent, but statements about her plans were improperly offered to show his
motive.

6} In support of his claim, Defendant relies on our Supreme Court’s opinions in
Baca and Leyba, but those opinions are distinguishable. First, neither opinion
disapproves of evidence about a victim’s state of mind that is relevant to show the

existence of a possible motive for the defendant’s actions. Second, both opinions

involved very different facts that made the state-of-mind statements then at issue
inadmissible.

a7 First, Baca did not involve a claim of self-defense, accident, or suicide. In
Baca, the defendant was charged with killing his wife by shooting her, and then |
running over her and their three-year-old daughter with a car. See Baca, 1995-NMSC-
045, 4 1-2. His defense was that another man committed the crimes. See id. 78. The
daughter survived, and later nodded her head when a therapist asked if she was afraid
of her father. See id. ¢ 9. Testimony about this non-verbal statement was admitted
against the defendant at trial. See id. 11. On appeal, our Supreme Court held that
this statement was both irrelevant and unfairly prejudicial. d. ff] 20-22. Our Supreme
Court explained that state-of-mind evidence is frequently relevant when a criminal
defendant raises issues of self-defense, suicide, or accident: “In such cases the state
of mind of the victim is a relevant part of the conduct in question[,]” because it
“precedes and informs the conduct.” Jd. 921. That sort of evidence “is distinguishable
from a state of mind that arises out of the conduct and is relevant not because it itself
is of consequence but only because an inference can be drawn therefrom to make the
existence of some other fact more or less probable.” Jd. Baca held that the daughter’s
after-the-fact fear of her father was inadmissible because it had not been offered

solely to show the daughter’s state of mind, but was instead offered to prove “that her

father attempted to kill her and that he did in fact kill her mother|.]” Jd. { 22.

{18} Second, the daughter’s statement in Baca was irrelevant because it said nothing
about her state of mind before the criminal act occurred, and thus provided no
relevant information about the crime itself or the defense. Instead, the daughter’s
statement arose out of the alleged conduct and was offered for the improper purpose
of encouraging the jury to infer that because the daughter was afraid of her father, he
must-be guilty as charged. Here, by contrast, Victim’s statements related to her state
of mind before the shooting, and were relevant because they demonstrated the
existence of a possible motive for Defendant to shoot her.

9} Defendant’s reliance on Leyba is equally unavailing. In that case, the defendant
killed his pregnant girlfriend and her father, but claimed that he acted in self-defense.
2012-NMSC-037, {ff 2-4. At trial, the state offered excerpts from the victim’s diary
in which the victim wrote that her boyfriend (i.e. the defendant) had beat her up, and
she expressed fear of the defendant based on those acts. See id. f3, 8. Our Supreme
Court held that some of the statements were improperly admitted because they did not
reflect the victim’s state of mind at the time she wrote them. But even those that did
were irrelevant because “anxiety or confusion or even her fear proves nothing without
the cause of those emotions—[the d]efendant’s alleged prior acts—which are not

admissible under this hearsay exception.” Jd. J 15. The state did not explain why the

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victim’s fear was relevant, and thus the statements were only offered to show the
defendant’s state of mind, which was improper. See id. [J 15-16. In other words, the
cause of the victim’s fear was not properly admitted under the state-of-mind
exception, and the victim’s fear, by itself, did not rebut the defendant’s self-defense
claim. Here, by contrast, all of Victim’s statements except her statement that she was
upset because she and Defendant had been fighting were properly admitted under the
state-of-mind exception, and they were relevant because they showed the existence
of a possible motive for the shooting.

0} Wearenotalone in holding that a victim’s statements of intent to break up with
or divorce a partner or spouse are properly admitted to show the existence of a motive
to commit violence on the part of the partner or spouse. For example, in State v.
Calleia, 20 A.3d 402, 419 (N.J. 2011), the New Jersey Supreme Court held that a
wife’s statements of intent to divorce her husband were admissible, along with other
evidence of their deteriorating relationship, to show that her husband had a motive
to kill her. The court acknowledged general statements in previous case law that
evidence of a victim’s state of mind should not be used to prove a defendant’s |
motivation or conduct, but clarified that the correct rule is that a “deceased victim’s
then-existing state of mind cannot directly prove a defendant’s motive; the state-of-

mind exception to the hearsay rule does not permit imputation of a defendant’s state

of mind out of no more than a deceased person’s feelings about that defendant.”
Id. at 412-13. In other words, “subject to certain exceptions, a fact probative of the
victim’s state of mind, standing alone, does not tend to prove any material fact about
a defendant’s conduct or state of mind.” Jd. at 413. But “[w]hen a victim’s projected
conduct permits an inference that [the] defendant may have been motivated by that
conduct to act in the manner alleged by the prosecution, the statement satisfies the
threshold for relevance.” Jd. at 415. Other courts have reached similar conclusions.
See, e.g., United States v. Donley, 878 F.2d 735, 738 (3d Cir. 1989) (stating that the
defendant claimed he killed his wife in the heat of passion after finding her with
another man; evidence that the victim said she planned to leave the defendant was
properly admitted “to persuade the jury to infer from her statements that she had such
a plan and, in turn, to infer from that plan and the defendant’s awareness of it that he
had a motive for murder other than the one he claimed”); Pierce v. State, 705 N.E.2d
173, 176 (Ind. 1998) (allowing evidence of the victim’s statements indicating a poor
relationship with the defendant as relevant “to controvert defense evidence” that the
defendant and the victim “were getting along well at the time of the murder”);

Commonwealth v. Tassinari, 995 N.E.2d 42, 49 (Mass. 2013) (noting that evidence |.

of the victim’s request for divorce and her statements indicating a tense relationship

with her husband were relevant to the defendant husband’s motive to kill her). We

hold that Victim’s statements were properly admitted under Rule 11-803(3).

II. Admission of Victim’s hearsay statement that she and Defendant had been
fighting was erroneous but harmless error

1; Ms. Edwards’s testimony that Victim said she was upset because she and
Defendant had been fighting was inadmissible as evidence of Victim’s state of mind,
because New Mexico law is that the state-of-mind exception does not include any
statement which explains the cause of the declarant’s state of mind. See King, 201 5-
NMSC-030, 9 27; Leyvba, 2012-NMSC-037, J 13 (‘Although [Rule 11-803(3)] allows
hearsay statements that show the declarant’s then-existing mental condition, the rule
does not permit evidence explaining why the declarant held a particular state of
mind.” (alteration, emphasis, internal quotation marks, and citation omitted)); Baca,
1995-NMSC-045, { 19 (same).

22: Neither was the statement admissible as an excited utterance under Rule 11-
803(2). Statements which relate to a startling event or condition, and are made while
the declarant is “under the stress or excitement” of the “startling event or condition,”
can be admitted as excited utterances. Rule 11-803(2). The rationale for allowing
their admission is that the exciting event or condition causes the declarant to
experience such surprise, “shock, or nervous excitement” that he or she temporarily
lacks the “capacity for conscious fabrication.” State v. Suazo, 2017-NMSC-011, 911,

390 P.3d 674 (internal quotation marks and citation omitted). A court should consider

the totality of the circumstances and several factors to determine the amount of |
“reflection or spontaneity” behind the statement. Jd. (internal quotation marks and
citation omitted). Such factors include: the amount of “time [that] passed between the
startling event and the statement[;]” whether “the declarant had an opportunity for
reflection and fabrication; how much pain, confusion, nervousness or emotional strife
the declarant was experiencing at the time of the statement; whether the statement

was self-serving; and whether the statement was made in response to an inquiry.” Jd.

(alteration, internal quotation marks, and citation omitted). There is no specific time

frame in which the statement must be made to fall under Rule 11-803(3). State v.
Hernandez, 1999-NMCA-105, § 15, 127 N.M. 769, 987 P.2d 1156. Rather, the
inquiry turns on whether the victim was under the stress and strain of the excitement
at the time the statement was made. State v. Lopez, 1996-NMCA-101, 931, 122 N.M.
459, 926 P.2d 784.

233 Attrial, the State argued that the statements made to Ms. Edwards were excited
utterances because Ms. Edwards stated that Victim was yelling and on the verge of
tears while she was making the statements. On appeal, however, the State does not
defend the district court’s ruling that this statement was admissible as an excited
utterance, and with good reason. The State did not present evidence about the factors

used to determine the spontaneity of the statement. The State did not, for example,

present evidence about when the argument between Defendant and Victim occurred,
so it is not possible to determine the amount of time which passed between the
startling event and the statement, or to determine whether Victim had time to reflect
or fabricate. Further, no evidence was presented to show whether this argument was
of the kind that would cause Victim to experience so much “pain, confusion,
nervousness, or emotional strife” that she would have been unable to reflect or
fabricate her statements. Suazo, 2017-NMSC-011, J 11 (internal quotation marks and
citation omitted). Thus, we hold that the statement was not admissible as an excited
utterance under Rule 11-803(2).

4, The State contends that even if this Court were to hold that the testimony at
issue on appeal in this case was inadmissible, its admission was harmless error.
Defendant does not address the effect the errors he alleges had on the verdict.
Improperly admitted evidence is reviewed for non-constitutional harmless error. See
State v. Serna, 2013-NMSC-033, { 23, 305 P.3d 936. Non-constitutional error is |
harmless “when there is no reasonable probability [that] the error affected the
verdict.” State v. Tollardo, 2012-NMSC-008, § 36, 275 P.3d 110 (emphasis, internal
quotation marks, and citation omitted). Harmless error review “requires a case-by-

case analysis.” Id. J 44.

25} Wehold thatthe admission of the hearsay statement through Ms. Edwards was

harmless error, because there is no reasonable probability that the inadmissible
evidence contributed to Defendant’s conviction. See id. J 36, 43. Regardless of the
admission of the hearsay statement, there was ample evidence that Defendant was
abusive to Victim and that the couple had a tumultuous relationship, and thus the
statement was cumulative. Victim’s mother testified, without objection, that she
started to dislike Defendant “when the abuse began.” Ms. Edwards also testified,
without obj ection, that she had heard Defendant threaten Victim before, making
statements such as “I’m gonna whoop your ass,” and. “Ill kill you, bitch.” Ms. |
Edwards also explained her understanding that Victim did not intend to drop the
domestic violence charges pending against Defendant in Lubbock. Again, no
objection was made to this testimony. Defendant himself testified that he was
physical with Victim “a couple times,” before retreating and stating that he only hit
her one time, which led to his arrest in Lubbock. Ms. Cronian testified that Victim
was acting anxiously and strangely on the day of the shooting. Further, there was no
objection to the testimony of another witness, Pam Grey, who stated that on the day
before the shooting, Victim sent her a text message saying that she wanted to leave
Artesia. Evidence was also presented that, shortly following the shooting, Defendant
either said “I don’t even remember what we were arguing about,” or “we weren’t even

fighting.” A reasonable juror could infer from this statement that the couple was

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arguing, and that Defendant intended to shoot Victim, but upon later reflection
realized that his reasons for doing so were inadequate.

26} Testimony was also presented from an acquaintance of Defendant who was
then incarcerated for violation of probation, and had previously been convicted of
felonies including forgery. The witness testified that he was working at a car wash in
Artesia while Defendant was there, and that they saw a friend of Victim drive by.
Defendant gestured rudely at Victim’s friend, and explained to the witness that he and
Victim were arguing at the time of the shooting, that Victim was yelling at him so he
grabbed a gun, and that Victim had spat in Defendant’s face. At that point, Defendant
told the witness that he shot Victim. Defendant later asked the witness not to say
anything. In light of all the evidence presented at trial, we find that the isolated
hearsay statement that Victim and Defendant had been arguing was harmless error.

III. Defendant’s domestic violence arrest in Artesia was properly admitted
under Rules 11-404(B) and 11-403

27; At trial, the State presented evidence of Defendant’s arrests in Lubbock and
Artesia, both of which showed that Defendant had physically abused Victim.
Defendant does not argue that the admission of evidence of his June 2010 arrest in
Lubbock was improper. Rather, he argues that the evidence of his 2009 arrest in
Artesia was improper character evidence which should have been excluded under

Rule 11-404(B), particularly because it did not result in criminal charges. Defendant

further argues that this evidence was more prejudicial than it was probative, and
should have been excluded under Rule 11-403.

23s} We note that “Rule 11-404(B) is a rule of inclusion not exclusion, providing
for the admission of all evidence of other acts that is relevant to an issue in trial, other
than the general propensity to commit the crime charged.” State v. Phillips, 2000-
NMCA-028, J 21, 128 N.M. 777, 999 P.2d 421 (internal quotation marks and citation
omitted}, Evidence of a prior bad act is admissible “if it bears on a matter in issue,
such as intent, in a way that does not merely show propensity.” Sarracino, 1998-
NMSC-022, {22 (internal quotation marks and citation omitted). “Ifevidence of prior
acts is relevant and admissible for a purpose other than proving a defendant’s
propensity to commit a crime, the probative value of the evidence must outweigh its
prejudicial effect.” State v. Williams, 1994-NMSC-050, 17, 117 N.M. 551, 874 P.2d
12, overruled on other grounds by Tollardo, 2012-NMSC-008, {37 n.6; see State v.
Woodward, 1995-NMSC-074, { 29, 121 N.M. 1, 908 P.2d 231, abrogated on other
grounds as recognized by State v. Montoya, 2014-NMSC-032, { 15, 333 P.3d 935.
729; Inthiscase, the State offered evidence of the dispute in Artesia to establish that
Defendant had a motive to kill Victim to prevent her from testifying against him in
domestic violence cases. Although the event in Artesia did not lead to formal charges,

his statement at the time, “I’m not going to jail over this shit,” was still relevant to

show that he generally had a strong desire not to go to jail, which supported the
State’s argument that he was motivated to shoot Victim in part to avoid going to jail

for the Lubbock charges, which Victim had not dropped. The evidence was also
relevant to rebut Defendant’s efforts to portray his relationship with Victim as a
loving one and his efforts to minimize the seriousness of their previous disputes. See
Woodward, 1995-NMSC-074, J 17 (holding that evidence of the defendant’s violent
behavior toward the victim, his wife, was admissible to show “motive, intent, plan,

or knowledge”); see also State v. Rojo, 1999-NMSC-001, J 47, 126 N.M. 438, 971

P.2d 829 (admitting evidence of the defendant’s prior violent acts towards victim to
rebut the defendant’s argument that she loved him and had no motive to reject him).
30} Defendant placed his own intent at issue by claiming that the gun fired by
accident. See State v. Niewiadowski, 1995-NMCA-083, J 13, 120 N.M. 361, 901 P.2d
779 (noting that the defendant placed his intent at issue by claiming that he acted in
self-defense). Thus, evidence of Defendant’s prior arrests for violence against Victim
was admissible to rebut his claim of accident and to establish that he intended to

shoot Victim, either to prevent her from testifying against him, or due to anger at her
plan to break up with him, or simply during the course of one of their many
arguments.

313 Wealso hold that Defendant was not unfairly prejudiced by the introduction

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of the Artesia arrest, much less that the probative value of that evidence was
outweighed by unfair prejudice under Rule 11-403. “Because a determination of
unfair prejudice ts fact sensitive, much leeway is given trial judges who must fairly
weigh probative value against probable dangers.” Woodward, 1995-NMSC-074, [19
(internal quotation marks and citation omitted). Defendant does not explain how this
evidence would confuse or mislead the jury, and we are unable to identify any such
danger. Defendant began informing the jury as early as the voir dire process that he
had been accused of domestic violence. In fact, although not evidence, defense
counsel questioned potential jurors for approximately twenty minutes about their
experiences with, and feelings about, domestic violence. Defendant admitted on the
stand that he and Victim argued frequently, that he was physically abusive to Victim
“a couple times,” and that he hit her on the night he was arrested in Lubbock. The
arresting officer for the Lubbock incident was called—without objection—to give his
account of the events and testified that Victim was acting nervous and scared when |
he arrived on scene, and that she had a scratch on her hand and bruising on her
eyelids which appeared fresh. Ms. Edwards testified about seeing Victim shortly after
the incident in Lubbock. Telephone calls made by Defendant to Victim from jail were
played in which the two discussed whether neighbors saw him hitting her. Given this |

extensive evidence that Defendant abused Victim, it cannot be said that one

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additional instance of potential domestic violence against Victim was unfairly
prejudicial or that any unfair prejudice outweighed its probative value.
CONCLUSION

32} For the reasons set forth above, we affirm the district court’s judgment and
sentence.

333 ITISSO ORDERED.

WE CONCUR:

Whe Prva

M. MONICA ZAMORA, Iibige

oMDr—

J. MILES HANISEE, Judge

February 21, 2018- State of New Mexico v. Dallas Hnulik, No. A-1-CA-35323

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