A-1-CA-35962 | Omnilex

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Court of Appeals of New Mexico
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: Court of Appeals of New Mexico
Filed 10/22/2019 9:08 AM

Filing Date: October 22, 2019 i
Pol
No. A-1-CA-35962 Mark Reynolis

STATE OF NEW MEXICO,

Plaintiff-Appellee,

THOMAS STEVENSON,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee
Law Offices of Adrianne R. Turner
Adrianne R. Turner

Albuquerque, NM

for Appellant

OPINION
VARGAS, Judge.
{} Defendant appeals his convictions for shooting at a motor vehicle (great
bodily harm), in violation of NMSA 1978, Section 30-3-8(B) (1993), and aggravated
assault with a deadly weapon, in violation of NMSA 1978, Section 30-3-2(A)
(1963). He raises four main arguments on appeal, as discussed below. After careful
consideration of Defendant’s issues, we affirm.
I. BACKGROUND
{2} This case arises out of a violent confrontation between Defendant Thomas
Stevenson (Defendant), Codefendant Oshay Toney (Codefendant), and Marvin Ellis
(Victim). During the confrontation more than twenty shots were fired into the
vehicle (SUV) Victim was driving, with both Defendant and Codefendant firing
multiple shots. Defendant claimed he fired in defense of himself or others, and raised
both of those doctrines as defenses at trial. He provided evidence that the SUV was
driving forward when he fired at it, that he thought it had run over someone, and that
it was headed toward a house that was sheltering several children. The State
introduced contrary evidence indicating that the SUV was backing out of the
driveway when the shooting started and was therefore not threatening Defendant or
anyone else. The jury rejected Defendant’s version of the events and convicted him

of felony murder, voluntary manslaughter, shooting at a motor vehicle resulting in

great bodily harm, and aggravated assault with a deadly weapon. The latter
conviction was based on the fact that the owner of the SUV was in the passenger
seat at the time the shooting began. Subsequently, the district court vacated the
felony murder and voluntary manslaughter convictions on legal grounds not relevant
to this opinion. Further facts will be provided as they are relevant to each issue
discussed below.

II. DISCUSSION

A. Best-Evidence Rule

3} The State presented testimony from Victim’s nephew (Nephew) about certain
text messages he had seen on Victim’s phone on the day of the incident. Nephew
was able to identify the sender of the text messages as Defendant, and the messages
(at least one of them) were threatening in tone. Defendant objected to admission of
Nephew’s testimony, arguing that the best evidence rule required the State to
introduce the messages themselves, not second-hand testimony from a person who
had merely read the messages.

(4; Text messages are “writings” for purposes of the best-evidence rule and,
absent an applicable exception, the original text messages or authorized duplicates
of the same must be produced at trial. See State v. Hanson, 2015-NMCA-057, {ff 6-7,
348 P.3d 1070. In Hanson we also recognized that an exception to the rule, for lost

or destroyed evidence, could be applicable if a proper foundation was laid. See id.

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4 13. In order to establish such a foundation, we held, the state must establish that it
engaged in a diligent effort to obtain the originals of the writings at issue. Jd. The
State attempted to make that showing in this case by offering the testimony of
Detective Leah Acata, the case agent working this homicide case.

{5} Detective Acata testified on voir dire that (1) she obtained Victim’s cell phone
from the owner of the SUV, Victim’s girlfriend (Girlfriend), who was present in the
SUV when the shooting began; (2) she obtained a warrant authorizing her to access
the contents of the phone and took the phone to the New Mexico Regional Computer
Forensic Laboratory (RCFL), which is affiliated with the Federal Bureau of
Investigation (FBI); (3) at the RCFL Detective Acata used the “Cellebrite” system
at a kiosk to attempt to access the phone’s contents, but was unable to get past the
phone’s “swipe passcode”; (4) she had previously used the same program and
RCFL’s kiosks hundreds of times to access phones, but as to Victim’s phone the
system was unable to get past the swipe passcode; (5) she contacted different
members of Victim’s family to see if any of them knew the swipe passcode that
would grant her access to the phone, or, in the alternative, Victim’s email address
and PIN for the phone, to no avail; (6) she then left the phone with RCFL and
submitted a service request asking RCFL personnel to access the phone, but was
notified that RCFL was also unable to unlock the phone; (7) Detective Jeremy

Guilmette from RCFL informed her that a program had not yet been written that

could unlock the particular model of phone owned by Victim, given Victim’s use of
a swipe passcode instead of a numeric passcode; and (8) the phone was returned to
Detective Acata by RCFL. Detective Acata reiterated several times that without a
passcode, access to the phone’s contents, including the text messages in question,
could not be achieved.

{6} In response to Detective Acata’s voir dire testimony, Defendant did not
present any evidence contradicting the information she provided concerning swipe
passcodes and the ability to unlock Victim’s phone. Counsel for Codefendant did
point out that Detective Acata did not send the phone to “Quantico” (a reference to
the FBI’s central forensics laboratory) for processing. However, Detective Acata
testified on redirect that it was her understanding that Quantico would not be able to
access the phone unless a program had been written to do so, and no evidence was
presented indicating that Quantico would have had any more success accessing the
phone than did RCFL. Similarly, Codefendant raised the possibility that the
necessary information to access the phone could have been obtained from Victim’s
phone carrier. But Detective Acata testified that such an effort would not have been
successful, and no evidence contradicting this assertion was provided to the district
court.

{7} Having considered the foregoing evidence, the district court found that the

State had met its burden under Hanson to show that it made a diligent effort to obtain

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the original text messages. See 2015-NMCA-057, § 13. The court also found that the
inaccessibility of the messages was the equivalent of having the messages be
physically lost or destroyed, for purposes of the best-evidence rule. Therefore, the
court allowed Nephew to testify about the text messages he had seen on Victim’s
phone.

{8} In reviewing this issue, we note first that Defendant does not challenge the
district court’s determination that the inaccessibility of the text messages was the
functional equivalent of the loss or destruction of those messages. We therefore need
not decide that legal question in this opinion. With respect to the merits of the
“diligent efforts” question, the applicable standard for our review is abuse of
discretion. See id. | 5. Given the evidence of the efforts made by Detective Acata to
unlock Victim’s phone, as well as the lack of any evidence indicating that additional
efforts may have been successful, the district court’s decision that the State had made
diligent efforts to obtain the original text messages was not “clearly against the logic
and effect of the facts and circumstances of the case.” See id. (stating abuse of
discretion standard). We affirm the district court’s decision as to this issue.

B. Possible Extraneous Information Reaching the Jury

{9} Almost three months after the trial was concluded, the district court received
an email from the jury foreman, stating in pertinent part as follows:

I was the foreman for the jury in the Thomas Stevenson and Oshay
Toney case. I have been wondering about something since we sat on

NOnBWN —

the case and the latest gun violence makes me ask the question. Why

were the individuals not charged with possession of a firearm as a felon

and conceal carry as a felon? Is that included in the charge of

committing the crime with a gun? Also it was mentioned that the

weapons were “enhanced” so why was the use of a silencer not part of

the charges?
{10} The district court notified the parties about the email, and Defendant
subsequently filed a motion requesting an evidentiary hearing, claiming that the
email indicated extraneous information may have reached the jury during the trial.
Defendant asked that the district court issue a subpoena to the jury foreman, directing
the foreman to appear for a hearing at which he could be questioned about any
extraneous information. The district court denied the motion.
{11} Following a jury trial, jurors are forbidden from testifying about any part of
the deliberation process or from providing a statement to the court about that process,
subject to three exceptions: a juror may testify about whether (a) extraneous
prejudicial information was improperly brought to the jury’s attention; (b) an outside
influence was improperly brought to bear on any juror; or (c) a mistake was made in
entering the verdict on the verdict form. Rule | 1-606(B) NMRA. Where a party files
a motion for new trial based on the possibility that extraneous information reached
the jury, the party “must make a preliminary showing that he or she has competent
evidence that material extraneous to the trial actually reached the jury.” State v.

Mann, 2002-NMSC-001, J 19, 131 N.M. 459, 39 P.3d 124 (alteration, internal

quotation marks, and citation omitted). Although Defendant did not file a motion for

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a new trial, but instead filed a motion to force the juror to testify concerning the
extraneous-information question, we see no reason to depart from the requirement
of a preliminary showing of competent evidence before forcing a juror to testify
under oath.

{123 Defendant points to the jury foreman’s email and suggests that it indicates a
possibility that extraneous information reached the jury. The district court rejected
this interpretation of the email, and we do as well. The fact that both Defendant and
Codefendant had prior felony convictions was revealed by each while each was
testifying. There is no suggestion that either weapon used in the shooting had a
silencer attached, and this portion of the email is more probably a result of confusion
caused by the phrase “firearm enhancement” that was part of the charges read to the
jury at the beginning of trial. To the extent Defendant argues that the email exhibits
some knowledge of the judicial system and felon-in-possession issues, jurors are
allowed to use knowledge they already possess in deciding a case, and this is not an
indication that impermissible extraneous information reached the jury during trial.
See id. JJ 27-28. The district court did not abuse its discretion in holding that the
juror’s email did not provide a basis to force the juror to attend a hearing and testify
under oath concerning the source of his knowledge about criminal law and

procedure.

C. Purported Brady Violation

{13} At trial, Girlfriend testified favorably for the State, including testimony that
she did not hear Victim threaten Defendant, that Victim did not have a gun in his
hand when he was shot, and that the SUV was backing out of the driveway and had
exited it when the shooting began. After Girlfriend testified, but before the trial
ended, Girlfriend was arrested and charged with a number of counts of fraud arising
out of her employment. Defendant learned of the arrest after trial and filed a motion
for new trial raising the State’s failure to disclose the arrest as one of the grounds for
the motion.

{14} On appeal Defendant contends the prosecutor committed a Brady violation by
failing to disclose the investigation and arrest of one of the State’s most important
witnesses. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring prosecution to
disclose evidence in its possession that could be favorable to a defendant); Case v.
Hatch, 2008-NMSC-024, 9 44-47, 144 N.M. 20, 183 P.3d 905 (discussing
standards applicable to a Brady claim in New Mexico). Defendant maintains the
information about the investigation and arrest would have been valuable
impeachment material. Material bearing on a witness’s credibility, and thus useful
for purposes of impeachment, is governed by the disclosure requirements of Brady
and its progeny. See Case, 2008-NMSC-024, § 50, 53; see also United States v.

Bagley, 473 U.S. 667, 678-83 (1985).

{15} We decline to address Defendant’s Brady argument because it was not
preserved below. Defendant argues that he preserved the issue in his motion for new
trial. That motion, however, fails to mention Brady or any other case discussing the
requirements of the Brady doctrine. More importantly, the motion did not discuss or
even mention any of the doctrinal bases for the Brady requirements, such as due
process or prosecutorial misconduct. See, e.g., Case, 2008-NMSC-024, ff 44, 47;
State v. Balenquah, 2009-NMCA-055, 911, 146 N.M. 267, 208 P.3d 912.
Furthermore, neither the State nor the district court understood Defendant to be
raising a Brady issue. Instead, the State’s response addressed Defendant’s claim as
a matter of newly-discovered evidence and Defendant did not file a reply brief
clarifying that he was raising a Brady issue. Ultimately, the district court decided the
motion relying on newly discovered evidence principles.

{16} We acknowledge that the nomenclature used in a motion is not controlling
and that legal citations contained in a motion are not determinative of the issue being
raised. See, e.g., State v. Paiz, 2011-NMSC-008, 931, 149 N.M. 412, 249 P.3d 1235.
Instead, we look to the substance of the motion to determine the actual issue raised.
Id. The motion for new trial filed in this case did not in any way alert the district
court to the potential Brady issue or provide it with a fair opportunity to rule on a
Brady issue. See Rule 12-321(A) NMRA (“To preserve an issue for review, it must

appear that a ruling or decision by the [district] court was fairly invoked.”). The

motion did not claim that the prosecutor herself knew of the investigation or of
Girlfriend’s arrest. Nor did it even allege that the prosecution team was aware of the
investigation or Girlfriend’s arrest. See Case, 2008-NMSC-024, § 46 (explaining
that “the ‘prosecution’ for Brady purposes encompasses not only the individual
prosecutor handling the case, but extends to the prosecutor’s entire office, as well as
law enforcement personnel and other arms of the state involved in investigative
aspects of the case” (alteration, internal quotation marks, and citation omitted)); see
also Smith v. Sec’y of N.M. Dep't of Corr., 50 F.3d 801, 824, 831-32 (10th Cir. 1995)
(discussing a prosecution team theory and imputation of knowledge to the
prosecutor). The factual allegations of Defendant’s motion were limited to assertions
that Albuquerque Police Department (APD) officers prepared the complaint and the
arrest warrant issued against Girlfriend, and subsequently arrested Girlfriend and
that Detective Acata, an employee of APD, sat at counsel table with the prosecutors
at Defendant’s trial.

1173 Defendant’s assertion that one APD officer, who was not “involved in
investigative aspects of the case,” investigated and arrested Girlfriend for alleged
offenses completely distinct from the case in which she testified, is simply
insufficient to alert anyone to a potential Brady issue. See, e.g., Case, 2008-NMSC-
024, J 46 (alteration, internal quotation marks, and citation omitted); see also Smith,

50 F.3d at 824 (stating that for Brady purposes, knowledge of arms of the state

“involved in investigative aspects of a particular criminal venture” is imputed to the
prosecutor). Defendant’s motion seemingly seeks to impose some sort of strict
liability upon the State for a discovery violation—Defendant asserted that APD
possessed the information about Girlfriend’s arrest, that Detective Acata sat at the
counsel table with the prosecutors, and that the State failed to disclose the arrest,
thus violating LR2-400(D)(1), (3) NMRA (2016), as well as Rule 5-501(A)(3)
NMRA. This, though, is not the same as a Brady violation and nothing in the motion
was sufficient to raise an allegation of a Brady violation. In sum, merely alleging
that possible impeachment information, entirely unconnected to the case at hand,
was possessed by a law enforcement officer who also had no connection to the case
at hand, does not implicate Brady to a sufficient extent to preserve such an argument
for appeal. We therefore will not address the Brady argument brought for the first
time on appeal. See Paiz, 2011-NMSC-008, { 33 (“On appeal we only consider
issues raised in the [district] court unless the issues involve matters of jurisdictional
or fundamental error.”).

{18} Although Defendant has argued the merits of the Brady issue and has not
asked us to address it as a matter of fundamental error, our Supreme Court has
indicated (albeit in an unpublished decision) that an improperly preserved Brady
issue should be analyzed for fundamental error. See State v. Gardner, No. S-1-SC-

35981, dec. | 30 (N.M. Sup. Ct. Mar. 8, 2018) (non-precedential); see also State v.

Trujillo, 2002-NMSC-005, § 52, 131 N.M. 709, 42 P.3d 814 (stating that when an
issue of prosecutorial misconduct has not been properly preserved by a timely
objection at trial, we have discretion to review the claim on appeal for fundamental
error). We find no fundamental error occurred. To establish a Brady violation a
defendant must show three things: “(1) the prosecution suppressed evidence; (2) the
evidence was favorable to the accused; and (3) the evidence was material to the
defense.” Case, 2008-NMSC-024, {| 44 (internal quotation marks and citation
omitted). As we have alluded to above, Defendant’s submission to the district court
did not raise a viable question as to the first prong of the test—whether the
prosecution suppressed the evidence. Absent information indicating a member of the
prosecution team, as opposed to an unidentified APD officer, possessed the
information, knowledge of that information cannot be imputed to the prosecutor and,
therefore, no prosecutorial suppression occurred.

{19} While the failure to satisfy the first Brady requirement alone would justify a
refusal to find fundamental error here, we note also that the lack of information about
Girlfriend’s investigation and arrest did not prevent Defendant from vigorously
challenging her credibility at trial. Defendant was able to elicit evidence that
Girlfriend had given different versions of the incident at different times, including
information as critical as who fired the first shots, Defendant or Codefendant. There

was also evidence that Girlfriend told different versions of the events to her own

daughter, and then denied at trial that she had even spoken to her daughter about the
shooting. Girlfriend’s daughter also testified that she knows her mother lies.
Significantly, Girlfriend was also forced to admit that she found a gun on the floor
of the SUV after the shooting, and instead of giving it to the police, she attempted to
hide it by tossing it into some bushes. She also testified on cross-examination that
during an interview with Detective Acata she repeatedly denied removing the gun
from the SUV until she was confronted with the possibility that DNA testing would
be done on the gun. The fact that the arrest information was not the only source of
impeachment material regarding Girlfriend, and that Defendant was able to cast
considerable doubt on her credibility without that information, is a factor weighing
against a finding of Brady materiality with respect to that information. See, e.g.,
Case, 2008-NMSC-024, J 54 (discussing materiality of suppressed information,
noting that the witness’s credibility had already been aggressively attacked, and
concluding that cumulative evidence is not material for purposes of Brady). Given
the facts that Defendant did not show the prosecution suppressed the information,
and that the materiality of that information is at best minimal, fundamental error was
not present here. Cf State v. Barber, 2004-NMSC-019, 17, 135 N.M. 621, 92 P.3d
633 (providing that fundamental error occurs in “cases in which a mistake in the

process makes a conviction fundamentally unfair’).

{20} Inaddition to the Brady argument, Defendant references the Rules of Criminal
Procedure as part of his presentation on this issue. His argument consisted of five
sentences in his brief in chief, pointing out that Defendant had filed a demand for all
discovery required by Brady and Rules 5-501, 5-503, and 5-505 NMRA, including
potential impeachment evidence; that the State had a continuing duty to disclose
newly discovered evidence under Rule 5-505(A); and that the State was therefore
required to disclose the filing of the criminal complaint against Girlfriend, the
issuance of the arrest warrant, and the arrest. Defendant did not develop any type of
argument about why the State would be responsible under the rules for disclosing
evidence of which the prosecution team was unaware, nor cite any authority beyond
the bare language of the rules that would explain why the discovery rules were
applicable and were violated under the circumstances of this case. We will not
address an undeveloped argument or perform Defendant’s research for him. See
State v. Guerra, 2012-NMSC-014, § 21, 278 P.3d 1031(explaining that appellate
courts are under no obligation to review unclear or undeveloped arguments); State
v. Clifford, 1994-NMSC-048, § 19, 117 N.M. 508, 873 P.2d 254 (reminding counsel
that the appellate courts are not required to do their research). We therefore do not
address the question of whether a violation of the Rules of Criminal Procedure

occurred under the particular circumstances of this case.

D. Evidence of Prior Violent Conduct

213} As part of his self-defense and defense-of-others claims, Defendant proposed
to introduce evidence of specific violent conduct engaged in by Victim in the past.
This evidence included a twenty-five-year-old murder conviction; another alleged
murder for which Victim had not been charged; an alleged rape of a male inmate
while Victim was incarcerated; alleged rapes of several women occurring since
2015, when Victim was released from prison; and the fact that Victim referred to
himself, or was known as, “Hit Man” or “the Don.” The State objected and argued
that if Defendant was allowed to introduce evidence of specific prior violent acts by
Victim, the State would be allowed to respond by presenting evidence of
Defendant’s own prior violent acts. The State relied on Rule 11-404(A)(2)(b)(ii)
NMRA as the basis of its argument, and presented a litany of prior violent acts by
Defendant, including prior convictions, charged conduct that did not lead to
convictions, and uncharged conduct, that the State wanted to present to the jury at
trial.

{223} Ata pretrial hearing the district court appeared to accept the State’s argument,
with the proviso that the “more prejudicial than probative” balancing provisions of
Rule 11-403 NMRA would apply to any prior conduct evidence that either side
attempted to introduce. The district court specifically reserved ruling as to any

particular piece of evidence concerning prior violent conduct and required the parties

to submit written filings explaining the evidence each side proposed to present so
the court could properly apply the Rule 11-403 balancing test to each such piece of
evidence. In sum, at the hearing the district court made no definitive ruling about
what prior violent conduct evidence would be allowed at trial, from either side.

233. On appeal Defendant argues that the State’s and the district court’s
interpretation of Rule 11-404(A)(2)(b)(ii) is erroneous and application of that
interpretation was reversible error. It is well established that a defendant claiming
self-defense or defense of others, as did Defendant here, may present evidence of
specific prior violent acts by the victim, if the defendant was aware of those prior
acts at the time of the incident in question. See State v. Maples, 2013-NMCA-052,
q{ 14, 18, 300 P.3d 749. The purpose of allowing such evidence is to permit the
defendant to establish his or her “subjective apprehension of the victim[,]” which
caused the defendant to act reasonably to prevent the victim from causing harm. /d.
q 18. It is also well established that Rule 11-403’s balancing test applies to prior
violent acts evidence, such that a defendant may not be permitted to submit to the
jury evidence of each and every violent act allegedly committed by the victim in the
past. See, e.g., State v. Baca, 1992-NMSC-055, J 5, 114 N.M. 668, 845 P.2d 762
(holding that the district court “retains the discretion to exclude specific instances of
the victim’s conduct if the evidence is substantially more confusing, cumulative, or

prejudicial than probative). Admission of prior violent conduct evidence is within

the district court’s discretion, and exclusion of some instances of the victim’s prior
conduct will constitute an abuse of discretion only if the defendant was prevented
from proving an element of his defense. See id. ] 9. In particular, where the evidence
is cumulative, no abuse of discretion is committed if the evidence is excluded. See
id. | 11. Thus, Defendant is correct that he was entitled to introduce at least some
evidence of Victim’s prior violent acts, as long as Defendant was aware of those acts
at the time of the shooting.

24} It also seems apparent that Defendant’s interpretation of Rule 11-
404(A)(2)(b)(ii) is correct, and the district court’s tentative acceptance of the State’s
interpretation was not. Neither the parties nor this Court has been able to locate
published cases discussing this provision of the rules. However, our Supreme Court,
in an unpublished decision, addressed the very issue raised by the parties in this case.
State v. Ramirez, No. S-1-SC-34576, dec., (N.M. Sup. Ct. Dec. 1, 2016) (non-
precedential). Ramirez, like this case, was a self-defense case. See id. § 59. At trial
the state was allowed to present evidence of a prior violent incident during which
the defendant had head-butted a police officer. /d. § 55. Our Supreme Court held that
this was error, stating as follows: “While it is correct that the defendant who offers
evidence of a victim’s pertinent character trait (e.g., violence) opens the door to
allow the prosecution to offer evidence of the defendant’s same character trait, under

Rules 11-404(A)(2)(b) and 11-404(A)(2)(b)(ii) . . . , the evidence that is admitted

may only be reputation or character evidence, unless the character trait is an
essential element of the crime charged.” Ramirez, No. S-1-SC-34576, dec. 59
(emphasis added). The Court went on to point out that introducing evidence of a
defendant’s past acts of violence does not prove an essential element of the crime
charged because violence is not a specific element of murder or self-defense. Jd.
Finally, the Court noted that it appeared that the evidence of the defendant’s prior
violent act was offered only to show the defendant’s propensity for violence, which
is impermissible. See id. Therefore, Ramirez held in essence that only reputation or
opinion evidence should have been admitted under Rule 11-404(A)(2)(b)(ii). See
Ramirez, No. S-1-SC-34576, dec. J 59.

25; Of course, as an unpublished opinion, Ramirez is not binding precedent, and
we discuss it only for its persuasive value. See Rule 12-405(A) NMRA. We note
first that Rule 11-404(A)(2)(b)(ii) is modeled after the federal version of that rule.
Rule 11-404 comm. cmt. (discussing 2012 amendment). When the federal version
of Rule 11-404(A)(2)(b)(ii) was added to Fed. R. Evid. 404, the Federal Rules
Advisory Committee discussed the purpose of the amendment and then made the
following statement: “By its placement in Rule 404(a)(1), the amendment covers
only proof of character by way of reputation or opinion.” Fed. R. Evid. 404 advisory
comm. notes. Since the federal rule is similar to our own, the advisory committee’s

discussion of the federal rule is persuasive authority for interpreting our own version.

See State v. Lopez, 1997-NMCA-075, J 10, 123 N.M. 599, 943 P.2d 1052 (stating
the same proposition with respect to federal case law and legislative history). The
federal version of the rule does not allow proof of character by way of prior violent
acts, but only by reputation or opinion evidence, which is exactly what Ramirez held.
26} In addition, the discussion in Ramirez comports with the purposes of our
evidentiary rules concerning prior conduct by parties. As Ramirez implies,
admission of evidence of prior conduct is severely limited because in many cases
the only purpose for offering such evidence is to establish a propensity by a party to
act in a certain way. See Ramirez, No. S-1-SC-34576, dec. J 59 (“It seems that the
information of [the d]efendant head-butting an officer is being used only to show
[the d]efendant’s propensity for violence.”). The case before us clearly illustrates the
issue. Defendant sought to introduce evidence of Victim’s prior violent acts for a
permissible purpose, to show he was afraid of Victim. See Maples, 2013-NMCA-
052, § 18. In response, the State offered no permissible purpose for allowing
evidence of Defendant’s prior violent conduct, relying solely on the language of the
rule. And as Defendant argued below and argues on appeal, Defendant’s violent
history has no relevance to the issues in this case, other than as impermissible
propensity evidence tending to show Defendant did not act in self-defense or in
defense of others. Adopting the State’s interpretation of the provision would, in self-

defense cases, essentially abrogate the evidentiary rules’ forceful limitation of prior

conduct evidence to a few permissible purposes, and would allow the State to
introduce such highly prejudicial evidence against a defendant simply because the
defendant attempted to prove his defense by showing he was aware of the victim’s
history of violent acts. We reject such an interpretation and instead adopt the one set
out in Ramirez: under Rule 11-404(A)(2)(b)(ii), the evidence that the state may
responsively introduce is limited to reputation or opinion evidence in most instances,
unless the defendant’s character trait is an essential element of the crime charged.

273 The fact that the State’s interpretation of Rule 11-404(A)(2)(b)(ii) and the
district court’s apparent acceptance of that interpretation was wrong, does not end
our inquiry. We must still decide whether Defendant established that he was
prejudiced as a result. See State v. Fernandez, 1994-NMCA-056, 4 13, 117 N.M.
673, 875 P.2d 1104 (“In the absence of prejudice, there is no reversible error.”).
Defendant argues that the district court’s action “gutted [Defendant’s] ability to
support his self-defense and defense of another claims.” We have difficulty with this
assertion, however, because Defendant was allowed to introduce some evidence of
Victim’s prior violent conduct, and the State was allowed to introduce almost no
evidence of Defendant’s own violent conduct except that which had resulted in
convictions. Defendant testified that he knew of Victim’s prior murder conviction
and felt threatened as a result. He was also allowed to call Victim “Hit” or “Hit Man”

on the stand several times, mentioning that the nickname also made him feel

threatened. Through cross-examination of Girlfriend, Defendant was allowed to
present evidence that Victim had four other felony convictions since 2008, in
addition to the murder conviction about which Defendant testified.

{28} In response to this “prior violent conduct” evidence concerning Victim, the
State was not allowed to delve into any of the many instances of Defendant’s prior
charged or uncharged conduct that the State had originally proposed to explore.
Instead, the district court limited the State to eliciting evidence of Defendant’s prior
felony convictions.

429} On appeal Defendant has not argued that any of the evidence concerning his
prior convictions was wrongly admitted. Instead, he argues that he was inhibited
from even attempting to introduce evidence about Victim’s prior violent acts, such
as the alleged rape of an inmate or the alleged rapes of women since 2015, due to
the district court’s apparent acceptance of the State’s position regarding Rule 11-
404(A)(2)(b)(ii). We point out that Defendant was not inhibited from presenting all
of the prior violent conduct evidence for which he sought admission, as we have
discussed above.

30} In addition, Defendant did not preserve this “inhibition” argument below. As
we noted above, at the pretrial hearing the district court made no definitive ruling as
to what evidence would be permitted and what would not. At trial, the district court

reiterated that it was reserving ruling on the evidence of prior violent conduct, as to

both Victim and Defendant. Defendant did subsequently state that he did not plan
on “going into” the alleged prison rapes or other alleged rapes, but he did not explain
why. Defendant never made a request to have the district court make a final
determination about what evidence would be permitted and what would not, or how
the State might be permitted to retaliate if he introduced other evidence of prior
violent acts by Victim. He also did not attempt to introduce additional evidence of
prior violent conduct by Victim. By failing to do so, he gave the district court no
opportunity to apply Rule 11-403 to any other evidence he might have wanted to
offer, or to address his concerns about the alleged inhibitory effect of the court’s
interpretation of Rule 11-404(A)(2)(b)(ii). It is axiomatic that the district court
cannot be expected to rule on matters that are not presented to it for decision, and
we will not reverse the court on grounds not presented to that court. See State v.
Montoya, 2015-NMSC-010, § 45, 345 P.3d 1056 (“In order to preserve an issue for
appeal, a defendant must make a timely objection that specifically apprises the
[district] court of the nature of the claimed error and invokes an intelligent ruling
thereon.” (internal quotation marks and citation omitted)).

31} In the end, Defendant attempted to introduce only two instances of prior
violent conduct by Victim that he knew about at the time of the shooting: Victim’s
murder conviction, and Victim’s “Hit Man” nickname. The district court allowed

him to testify about both, and as we have discussed, did not allow the State to

introduce its own violent-conduct evidence in response. To the extent he now argues
that he was sub silentio inhibited from attempting to present evidence of additional
prior violent acts, that is not a question we can review without a record supporting
it. See State v. Hunter, 2001-NMCA-078, § 18, 131 N.M. 76, 33 P.3d 296 (“Matters
not of record present no issue for review.”). We therefore hold that any prejudice
Defendant may have suffered as a result of the district court’s erroneous
interpretation of Rule 1 1-404(A)(2)(b)(ii) is not of record and cannot be the basis for
reversal.

323 A review of the evidence introduced at trial, which is all we can consider at
this point, shows that the district court was appropriately cautious about admitting
evidence of prior violent conduct as to both Victim and Defendant, given the
restrictions of Rule 11-403. The district court specifically stated that it wanted to
avoid “mini[ ]trial[s]” on extraneous matters. Although the district court appears to
have misconstrued Rule 1 1-404(A)(2)(b)(ii), when put to the test and presented with
the actual evidence that Defendant and the State wanted to introduce, the court
rejected most of the evidence proffered by the State and admitted only evidence that
was admissible under other rules or for other reasons. No error has been claimed as
to the specific pieces of evidence that were presented to the district court for a
decision as to admissibility. As to other rulings that the district court could have

been, but was not, asked to make, we will not speculate.

17
18

33} Asa final note, when a victim’s prior violent acts are excluded by the district
court, the main issue on appeal is whether a defendant was deprived of the
opportunity to present his defense. See State v. Armendariz, 2006-NMSC-036, {J 14,
18, 140 N.M. 182, 141 P.3d 526, overruled on other grounds by State v. Swick, 2012-
NMSC-018, 4 31, 279 P.3d 747. That did not happen here. Defendant was allowed
to present evidence that he feared Victim, and to show that he had reason to do so
given Victim’s violent history. Defendant also testified about the specific facts
surrounding the shooting that caused him to fire at the SUV—that he thought the
SUV may have run over a person and that it was driving toward a house containing
a number of children. Defendant therefore had an adequate opportunity to present
his claims of self-defense and defense of others, and we will not reverse the district
court on this issue.

Ill. CONCLUSION

34} Based on the foregoing, we affirm Defendant’s convictions.

35) ITIS SO ORDERED.

JULIE J. VARGAS, Judge

hte Lae

—

WE CONCUR:

+ Wn

J. MILES HANISEE, Chief Judge

Sastre Bagardlae

KRISTINA BOGARDUS, Judge

October 22, 2019- State of New Mexico v. Thomas Stevenson, No. A-1-CA-35962

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