March 29, 2012 – State of New Mexico v. Vincent Montoya, No. 30,470

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	March 29, 2012
NO. 30,470
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
VINCENT MONTOYA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
M. Monica Zamora, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Vincent Montoya was charged with kidnapping, attempt to commit
criminal sexual penetration (CSP), aggravated battery against a household member,
and interference with communications. He was convicted of all but attempted CSP.
At issue in this appeal is whether his Confrontation Clause rights were violated by the
district court’s pre-trial ruling preventing him from questioning Victim about her prior
sexual history with him. We hold that they were not and affirm.
I. 	BACKGROUND
{2} 	The facts of this case are not in dispute. 	Defendant and Victim had been
arguing. Defendant wanted to have sex with Victim, but Victim was not similarly
inclined. Defendant got on top of Victim and attempted to remove her pants. Victim
pushed and kicked Defendant until he stopped. Although Defendant was capable of
forcing Victim to have sex with him, he did not. 	The two continued fighting, and
Defendant bit Victim’s inner thigh and pushed her over a table, hitting her head and
hurting her back. Eventually, Victim’s parents arrived and she was able to leave.
{3} 	What is disputed, and what was the pivotal issue below, was Defendant’s intent.
Did he intend to commit a sexual offense against Victim regardless of whether she
consented, or did he believe he was engaging in a consensual act of “make-up sex”?

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Arguing the latter, Defendant filed a motion under Rule 11-413 NMRA to introduce
evidence of Victim’s past sexual conduct with Defendant. Defendant represented that
Victim would testify “that she believed Defendant was trying to have ‘make-up sex’
with her and that they had engaged in make-up sex in the past.” 	According to
Defendant, “make-up sex” meant the use of sexual intercourse as a method of
resolving disputes or of reconciling subsequent to a dispute. Defendant argued that
the sexual history testimony was relevant to his state of mind regarding the specific
intent crimes of kidnapping and CSP because it would show that “his intent was to
have consensual sexual relations with his long-time girlfriend, not to have sex with
her against her will.”
{4} 	The district court denied Defendant’s motion, finding that Victim’s past sexual
conduct was “inflammatory and prejudicial in nature and [was] not outweighed by its
probative value.” 	It ordered that Defendant was precluded from asking whether
Victim and Defendant had a long-standing sexual relationship, whether Victim and
Defendant “engage[d] in sexual relations after an argument to make[-] up,” or whether
Victim had ever not consented to Defendant’s sexual advances prior to the events at
issue in the case. 	The court noted that “Defendant’s confrontation rights are
implicated by the material the defense seeks to introduce but that material may be

4
elicited by other legally proper means than through the alleged [V]ictim.” 	A jury
acquitted Defendant of attempted CSP but convicted him of kidnapping.
{5} 	Although Defendant was prevented from introducing evidence of his sexual
history with Victim, he was able to produce some evidence at trial in support of his
theory that he never intended to commit a sexual offense against Victim. Notably,
Victim testified that she had been Defendant’s girlfriend for about two years. Victim
agreed that she was not terrified that he was going to penetrate her and that penetration
was not the issue. She also agreed that she perceived his advances not as an attempt
to force sex on her, but as an attempt to obtain her consent for sex. Finally, she agreed
that she believed Defendant would not have had sex with her unless she consented.
II. 	DISCUSSION
{6} 	Defendant makes two arguments on appeal. First, he contends that the district
court erred in excluding evidence of Victim’s sexual history with Defendant that
Defendant believes would have negated the specific intent element of the kidnapping
charge. Second, Defendant argues that it was error for the district court to instruct the
jury that attempted CSP was only a general intent crime. We address each argument
in turn.

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A. 	The Rape Shield Rule
{7} 	In 1975, our Legislature enacted a rape shield law which provides that
[E]vidence of the victim’s past sexual conduct, opinion evidence of the
victim’s past sexual conduct or of reputation for past sexual conduct,
shall not be admitted unless, and only to the extent that the court finds
that, the evidence is material to the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
NMSA 1978, § 30-9-16(A) (1975) (amended 1993). Our Supreme Court has adopted
a similar rule of evidence. See Rule 11-413(A). For convenience, we will confine our
discussion to the rule in this Opinion. 	The rule confers upon the district court
discretion to exclude evidence of past conduct. See id. However, “[i]f application of
the rape shield law or rule would conflict with the accused’s confrontation right, if it
operates to preclude the defendant from presenting a full and fair defense, the statute
and rule must yield.” State v. Johnson, 1997-NMSC-036, ¶ 24, 123 N.M. 640, 944
P.2d 869.
{8} 	Defendant’s rape shield argument breaks down into two parts: 	(1) a
constitutional component under the Confrontation Clause; and (2) an evidentiary
component, looking at the district court’s application of the rule. The admissibility
of evidence under the rape shield rule is separate from the objection based on the
Confrontation Clause. Cf. State v. Henderson, 2006-NMCA-059, ¶ 8, 139 N.M. 595,
136 P.3d 1005 (noting that a hearsay objection to pre-trial testimony was separate

6
from a Confrontation Clause objection to the same testimony). We begin with the
Confrontation Clause because, as we discuss below, the rape shield rule must yield
when exclusion of the evidence would violate a defendant’s confrontation rights.
First, however, we must discuss the standard of review.
1. 	Standard of Review
{9} 	Our Supreme Court has sent confusing signals regarding the standard of review
for cases involving both the rape shield rule and the Confrontation Clause. 	Most
recently, in a case that dealt exclusively with the confrontation implications of the
rape shield rule, the Court stated that we review decisions to exclude evidence under
the rape shield rule for abuse of discretion. State v. Stephen F., 2008-NMSC-037, ¶ 8,
144 N.M. 360, 188 P.3d 84. 	However, other cases indicate that we review
Confrontation Clause issues de novo. 	See, e.g., State v. Lopez, 2011-NMSC-035,
¶ 10, 150 N.M. 179, 258 P.3d 458; State v. Lasner, 2000-NMSC-038, ¶ 24, 129 N.M.
806, 14 P.3d 1282. In State v. Gonzales, 1999-NMSC-033, ¶ 22, 128 N.M. 44, 989
P.2d 419, our Supreme Court noted that the right to confrontation is not absolute, and
the district court retains wide latitude to limit cross-examination. 	This language
would seem to implicate an abuse of discretion standard, but in its ruling the Court
held that “under the de novo standard, . . . the trial court acted within its ‘wide

7
latitude.’” Id. We find it necessary to review the case history in this area to clarify the
standard of review applicable.
{10} 	In Johnson, the Court first considered the tension between the defendant’s
confrontation right to cross-examine witnesses and the State’s interest in protecting
the victims’ privacy under the rape shield rule. 	The Court framed the issue by
observing that “evidence of prior sexual conduct must be admitted if a defendant
shows that evidence implicates his or her constitutional right of confrontation.” 1997-
NMSC-036, ¶ 22 (emphasis added); id. ¶ 24 (“If application of the rape shield law or
rule would conflict with the accused’s confrontation right, if it operates to preclude
the defendant from presenting a full and fair defense, the statute and rule must
yield.”). 	Citing a Wisconsin case, the Court adopted a five-prong test as a non-
exclusive framework for “establish[ing] a constitutional right to present evidence
otherwise excluded by” the rape shield rules:
(1) whether there is a clear showing that the complainant committed the
prior acts; (2) whether the circumstances of the prior acts closely
resemble those of the present case; (3) whether the prior acts are clearly
relevant to a material issue, such as identity, intent, or bias; (4) whether
the evidence is necessary to the defendant’s case; [and] (5) whether the
probative value of the evidence outweighs its prejudicial effect[.]
Id. ¶¶ 27-28. It concluded that “a showing sufficient under the five-pronged . . . test
establishes a constitutional right to present evidence otherwise excluded by our

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statute.” 	Id. ¶ 28. 	This statement evokes a de novo determination regarding a
constitutional right.
{11} 	However, in the same paragraph, it characterized the confrontation right as
merely “inform[ing] the [district] court’s exercise of discretion under the statute and
rule,” a characterization that speaks to the abuse of discretion review normally
associated with the application of a rule of evidence. 	Id. 	At first glance, this latter
statement seems to be in conflict with the earlier invocation of a de novo standard of
review.
{12} 	After setting forth these apparently contradictory standards, Johnson concluded
that the defendant had not made any argument that implicated his right to
confrontation. 	Id. ¶ 29. 	The Court concluded that the contested evidence did not
support a theory of relevance other than propensity. See id. ¶¶ 39-40. It appears to
have reached this conclusion as a matter of law, reasoning that the evidence offered
was not probative of motive to fabricate and therefore did not implicate the
defendant’s right to confrontation. 	See id. ¶ 29. Having rejected the confrontation
objection, Johnson held that the district court had not abused its discretion in applying
the rape shield rule to exclude the evidence of prostitution. Id. ¶ 40. The Court did
not apply the test it had just announced to either the confrontation or the rape shield
analysis.

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{13} 	Our Supreme Court revisited the tension between the rape shield rule and the
Confrontation Clause in Stephen F. 	Although the opinion discussed only the
confrontation issue, the Court reviewed the district court’s action for abuse of
discretion. See 2008-NMSC-037, ¶ 8. It employed a two-step process. First, as in
Johnson, the Court required the defendant to “establish a valid theory of relevance
and . . . support that theory with adequate facts showing a nexus between his proffered
evidence and his theory.” 	Stephen F., 2008-NMSC-037, ¶ 36. 	Second, the Court
balanced 	the 	State’s 	interest 	in 	excluding 	the 	evidence 	against 	the 	victim’s
confrontation rights, which it viewed through the lens of the Johnson factors. Stephen
F., 2008-NMSC-037, ¶¶ 28-31.
{14} 	Applying this process, the Court examined the Johnson factors, which it said
aided “in determining whether the defendant has adequately established his theory of
relevance.” 	Stephen F., 2008-NMSC-037, ¶ 8. First, it concluded that because the
second factor was not relevant, this Court had not erred in disregarding it. 	See id.
¶¶ 12-17. The Court noted that the third factor, which is “designed to help the court
determine the relevancy of [a] defendant’s theory,” was met because the defendant
was attempting to show the witness’s motive to lie. Id. ¶ 19. Furthermore, the Court
concluded that the testimony was necessary to the defendant’s case because without
it, his “argument that [the witness] had a motive to lie became groundless and

10
ineffective.” Id. ¶ 21. The Court concluded that the defendant’s constitutional right
to cross-examine the victim had been violated. Id. ¶ 38.
{15} 	Our understanding of Stephen F. is as follows. The Court applied an abuse of
discretion standard. However, implicit in the standard in this context is that we review
the application of the law to the facts de novo, and that a district court abuses its
discretion when it bases its decision on a misapprehension of the law. See, e.g., State
v. 	Martinez, 	2008-NMSC-060, 	¶ 	10, 	145 	N.M. 	220, 	195 	P.3d 	1232 	(“A
misapprehension of the law upon which a court bases an otherwise discretionary
evidentiary ruling is subject to de novo review.”). 	The abuse of discretion review
employed in Stephen F. thus encompasses both a de novo review of whether the
confrontation right is implicated and a de novo review of whether restrictions on
cross-examination were within the district court’s “wide latitude.” 	See Gonzales,
1999-NMSC-033, ¶ 22 (internal quotation marks and citation omitted).
{16} 	Consistent with this view, we observe in Johnson and Stephen F. three different
questions subject to three different standards of review. First, in both Johnson and
Stephen F., the Court first reviewed de novo whether the theory upon which the
defendant sought to introduce evidence implicated his confrontation rights. 	In
Johnson, the defendant’s confrontation rights were not implicated, and the inquiry

11
ended. 	In Stephen F., the defendant’s confrontation right to show the witness’s
motive to lie was implicated, and the inquiry proceeded.
{17} 	The Court in Stephen F. next proceeded to the second step, balancing “the
[s]tate’s interest in applying the rape shield [rule]” against “the effect that excluding
the evidence had on [the defendant’s] constitutional rights.” 2008-NMSC-037, ¶¶ 28,
31. 	It measured the defendant’s rights by examining the Johnson factors and by
analogizing to other cases. 	Stephen F., 2008-NMSC-037, ¶¶ 31-36. 	The Court
appears to have undertaken this balancing de novo as well. 	We understand this
balancing test to represent an inquiry into the district court’s ability to restrict the
scope of cross-examination under the Confrontation Clause. 	We believe this is
consistent with our Supreme Court’s cases that review restrictions on the scope of
cross-examination de novo to determine if the district court acted within its wide
discretion. See Gonzales, 1999-NMSC-033, ¶ 22.
{18} 	The third and final step is the review of the application of the rule itself—as
distinguished from the Confrontation Clause implications—for abuse of discretion.
In Stephen F., this was not necessary, as the Court reversed on the Confrontation
Clause issue. 	In Johnson, the Court simply stated that it “believe[d] the [district]
court’s explanation of its reasons for excluding the evidence show[ed] that it exercised
its discretion and reached a result a judge reasonably might reach on the arguments

12
and evidence.” 	1997-NMSC-036, ¶ 40. 	This is consistent with how evidentiary
decisions are generally reviewed. See, e.g., Martinez, 2008-NMSC-060, ¶ 10.
{19} 	In summary, we discern three steps and three standards of review in our case
law regarding application of the rape shield rule. First, we review de novo whether
a defendant has presented a theory of admissibility that implicates his confrontation
rights. If he has, we undertake a de novo balancing of the state’s interest in excluding
the evidence against the defendant’s constitutional rights to determine if the district
court acted within the wide scope of its discretion to limit cross-examination. If the
Confrontation Clause is not implicated or if there has been no Confrontation Clause
violation, we examine whether the district court has abused its discretion in its
application of the rule itself. In practice, some or all of these inquiries appear to have
been merged in the Johnson factors, but need not be analyzed in that manner. With
this framework in mind, we proceed to the facts of the case before us.
2. 	Confrontation Clause
{20} 	Defendant argues that the exclusion of evidence of Victim’s sexual history with
him violated his confrontation rights. In support, he contends that the evidence was
relevant to his intent and that therefore the evidence was offered under “a theory of
relevance other than propensity.” 	He does not argue that he was prevented from

13
showing Victim’s bias or otherwise attacking her credibility. Instead, his argument
is that he was prevented from challenging an opposing version of the facts.
{21} 	“The Confrontation Clause of the Sixth Amendment is made applicable to the
states through the Fourteenth Amendment.” State v. Lopez, 2000-NMSC-003, ¶ 14,
128 N.M. 410, 993 P.2d 727. 	The Sixth Amendment guarantees the right of an
accused in a criminal prosecution “to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. “The most important element of the right of confrontation
is the right of cross-examination.” State v. Sanders, 117 N.M. 452, 459, 872 P.2d 870,
877 (1994). “Cross-examination is the principal means by which the believability of
a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308,
316 (1974). 	Although the right to cross-examination is a crucial benefit of
confrontation, it is not absolute:
The trial court retains wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant. The Confrontation Clause merely
guarantees an opportunity for effective cross-examination; it does not
guarantee that the defense may cross-examine a witness in whatever
way, and to whatever extent, the defense might wish.
Sanders, 117 N.M. at 459, 872 P.2d at 877 (alterations, internal quotation marks, and
citations omitted).

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{22} 	Our appellate courts have found confrontation violations when a defendant was
prevented from putting on evidence regarding the bias or credibility of a witness. See,
e.g., Stephen F., 2008-NMSC-037, ¶ 31 (finding a confrontation violation when the
district court prevented cross-examination necessary to show a witness’s motivation
to lie); State v. Martinez, 1996-NMCA-109, ¶ 17, 122 N.M. 476, 927 P.2d 31 (finding
a confrontation violation when a defendant was restricted from cross-examining a
witness regarding bias towards the state); accord Sanders, 117 N.M. at 460, 872 P.2d
at 878 (holding that there was no confrontation violation when the excluded evidence
did not reflect the witness’s bias, motivation to lie, or credibility). Federal cases have
reached similar results. See, e.g., Davis, 415 U.S. at 317-18 (holding that it was error
to prohibit cross-examination of a witness on bias he might have due to his status as
a probationer).
{23} 	In the instant case, Defendant concedes that neither bias nor credibility is at
issue. 	Instead, he rests his Confrontation Clause argument on his inability to
challenge an opposing version of the facts. This language comes from Johnson, where
our Supreme Court stated that “[a] defendant’s right of confrontation—with its
protection of the right to cross-examine, test credibility, detect bias, and otherwise
challenge an opposing version of facts—is a critical limitation on the [district] court’s
discretion to exclude evidence a defendant wishes to admit.” 1997-NMSC-036, ¶ 23

15
(emphasis added). Specifically, Defendant argues that this language confers upon him
the right to elicit from Victim testimony that the acts occurred “in the context of a
long sexual relationship that included ‘make[-]up sex’ used to resolve arguments.”
{24} 	We do not agree with Defendant’s reading of this language from Johnson.
Under Defendant’s interpretation, this language would turn any limitation on cross-
examination—regardless of its relation to bias, credibility, and motive to lie—into a
violation of the Confrontation Clause. We do not believe this is the effect that our
Supreme Court intended. As the Court has stated, “[t]he Confrontation Clause merely
guarantees an opportunity for effective cross-examination; it does not guarantee that
the defense may cross-examine a witness in whatever way, and to whatever extent, the
defense might wish.” Sanders, 117 N.M. at 459, 872 P.2d at 877 (internal quotation
marks and citation omitted). Defendant’s proposed reading of Johnson is in direct
contradiction to the Court’s observation that “‘trial judges retain wide latitude insofar
as 	the 	Confrontation 	Clause 	is 	concerned 	to 	impose 	reasonable 	limits
on . . . cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.’” State v. Meadors, 121 N.M. 38, 49, 908 P.2d
731, 742 (1995) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(alteration in original)).

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{25} 	We understand the “challenge an opposing version of facts” language in
Johnson to refer to a defendant’s confrontation right to challenge the truth and
accuracy of a witness’s testimony through cross-examination. 1997-NMSC-036, ¶ 23;
see Davis, 415 U.S. at 316 (“Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested.” (Emphasis
added)); but see Stephen F., 2008-NMSC-037, ¶ 6 (“[A] court’s decision to restrict
a defendant’s ability to confront a witness, even when based on legitimate state
interests, ‘calls into question the ultimate integrity of the fact-finding process and
requires that the competing interest be closely examined.’” (quoting Chambers v.
Miss., 410 U.S. 284, 295 (1973)). Here, Defendant sought not to confront Victim, but
to use her to introduce additional substantive evidence unrelated to the truth or
accuracy of her testimony. While there may be some cases in which a defendant’s
confrontation rights are violated by the restriction of cross-examination regarding
sexual history evidence not related to bias or credibility, we do not believe this is one
of them.
{26} 	We conclude that Defendant’s confrontation rights were neither implicated nor
violated. Defendant has explicitly disclaimed reliance on the theories of relevance our
cases have indicated are critical to the right to cross-examine. Furthermore, we reject
his contention that Johnson’s language regarding challenging opposing versions of the

17
facts creates a confrontation right to question witnesses on topics not relevant to the
truth or accuracy of the witness’s testimony. 	We hold that as a matter of law,
Defendant has not shown that he has a theory of relevance implicating his right to
confront Victim, and therefore his confrontation rights were not violated.
3. 	Evidentiary Ruling
{27} 	We proceed to the question of whether the district court abused its discretion
in applying the rape shield rule. 	We have chosen to analyze this in light of the
Johnson factors. 	See Stephen F., 2008-NMSC-037, ¶ 8 (suggesting the Johnson
factors as one possible framework a district court could use in exercising its discretion
under the rape shield rule). 	Under the circumstances of this case, we cannot
characterize the district court’s ruling as “clearly untenable or not justified by reason.”
State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation
marks and citation omitted). Looking to the Johnson factors, there were several that
Defendant was unable to prove. Neither party contests the first factor, that Victim had
an ongoing sexual relationship with Defendant which included make-up sex. 	We
examine each of the remaining four factors in turn.
{28} 	Before doing so, however, we must briefly address the somewhat unusual
procedural posture of this rape shield case. 	Defendant was acquitted of attempted
CSP but convicted of kidnapping, which required the State to prove that he intended

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to commit “a sexual offense.” 	By its terms, the rape shield rule does not apply to
kidnapping. See Rule 11-413(A) (limiting the rule to “prosecutions [pursuant to] . . .
[NMSA 1978, Sections 30-9-11 to -15 (1975, as amended through 2009”); Section 30-
9-16 (same); NMSA 1978, § 30-4-1 (2003) (defining kidnapping). However, it does
apply to attempted CSP. 	See § 30-9-11 (defining CSP). 	Thus, although only the
kidnapping conviction is at issue on this appeal, we must also consider the effect of
the evidence on the attempted CSP charge of which Defendant was acquitted. With
respect to kidnapping, Defendant’s intent to commit a sexual offense is at issue. But
we must also keep in mind that the excluded evidence was relevant to Victim’s
consent in the attempted CSP charge.
{29} 	Returning to the Johnson factors, we begin with the second factor, “whether the
circumstances of the prior acts closely resemble those of the present case.” Defendant
claims the circumstances of the charged incident are similar to the previous make-up
sex in that “the couple had resolved arguments in the past by having sex.” The State
counters that “[V]ictim told defense counsel that [the] incident involved in this case[]
was different than any other time they had sex in the past and that [D]efendant’s
behavior during this incident was not normal.”
{30} 	The district court could reasonably have found against Defendant on this factor.
First, the court could have concluded that Defendant’s arguments under this factor

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were the sorts of propensity arguments that the rule seeks to exclude. With respect to
the CSP charge, the district court could reasonably conclude that the similarity of
circumstances was primarily a propensity argument—that because Victim had
consented on previous occasions, she consented on this occasion. 	Regarding the
kidnapping charges, the court could also have concluded that the similarity of
circumstances was a propensity argument, albeit a strange one—because Victim had
engaged in legal consensual make-up sex in the past, Defendant restrained her on this
occasion on the expectation that legal consensual make-up sex would once again
ensue. Indeed, this appears to be the exact argument Defendant makes on appeal.
{31} 	Regarding the fourth factor, “whether the evidence is necessary to the
defendant’s case,” Defendant argues that without the evidence of their history of
make-up sex, the jury was led to an inference that Defendant “was acting in anger,
indifferent to [Victim’s] wishes, and that he intended to rape.” The State contends that
Defendant presented substantial circumstantial evidence of his intent by showing (1)
that Defendant and Victim had been dating for two years, (2) that Defendant was
strong enough to have forced sex upon her without consent but did not, (3) that Victim
viewed Defendant’s actions as an attempt to obtain her consent, (4) that Victim was
not terrified of being penetrated and did not think penetration was the issue, and (5)
that Victim believed Defendant did not have sex with her because she did not consent.

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According to the State, the sexual history was therefore merely cumulative. We agree
with the State. Significant evidence was introduced that was relevant to Defendant’s
intent. Evidence of Defendant’s sexual history with Victim was not necessary in order
to prove that he did not intend to commit a sexual offense.
{32} 	Finally, with respect to the fifth factor, “whether the probative value of the
evidence outweighs its prejudicial effect,” Defendant baldly asserts that the sexual
history is highly probative, and that “[i]ts only discern[able] ‘prejudicial’ effect was
to negate the State’s theory of prosecution.” However, as we discussed above, the
probative value was diminished in light of the significant amounts of admissible
evidence regarding Defendant’s intent, and the sexual history evidence was useful
primarily to show propensity. Further, the district court found that testimony about
Victim’s sexual history was “inflammatory and prejudicial in nature.” We conclude
that the restriction was within the wide scope of permissible limitation on cross-
examination. See Gonzales, 1999-NMSC-033, ¶ 22. We cannot say the district court
abused its discretion in denying Defendant’s Rule 11-413 motion.
B. 	Jury Instructions
{33} 	Defendant’s second argument is that errors in the jury instructions require the
reversal of his kidnapping conviction. The State contends that this argument was not

21
preserved, and that we should therefore review only for fundamental error. We do not
reach the question of whether there was fundamental error because no error exists.
{34} 	Defendant apparently concedes that his late objection to the instructions was
insufficient to preserve the issue, arguing only that the instructions, combined with the
district court’s refusal to clarify those instructions in response to jury questions, was
fundamental error.
{35} 	In State v. Benally, our Supreme Court observed:
The standard of review we apply to jury instructions depends on
whether the issue has been preserved. If the error has been preserved we
review the instructions for reversible error. 	If not, we review for
fundamental error. Under both standards we seek to determine whether
a reasonable juror would have been confused or misdirected by the jury
instruction.
2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and
citations omitted). The difference is that, “[u]nder fundamental error review, . . . the
jury verdict will not be reversed unless necessary to prevent a miscarriage of justice.”
State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016 (internal
quotation marks and citation omitted).
{36} 	Benally is directly on point to the instant case. In Benally, a defendant who had
been convicted of second-degree murder argued that incorrect jury instructions
“prevented the jury from appreciating that the [s]tate had the burden of disproving
self- defense.” 2001-NMSC-033, ¶ 1. Instruction 12, which set forth the elements for

22
second-degree murder, did not include the element of unlawfulness. 	Id. ¶ 10.
Additionally, instruction 15, which defined self-defense, did not set forth the burden
of proof. 	Id. ¶ 11. However, a second self-defense instruction, instruction 25, was
also given that correctly set forth the burden of proof but that applied to the separately
charged crimes of aggravated battery and voluntary manslaughter. See id. ¶¶ 17, 25
(Baca, J., dissenting).
{37} 	The Court addressed the question of whether instruction 25 “was capable of
rescuing the jury from the confusion that stemmed from the omission in instruction
12.” Id. ¶ 17. It began with “the common sense proposition that the jury understands
the inclusion and omission of language in a jury instruction to reflect the intent of its
author.” 	Id. ¶ 18. 	The Court concluded that jurors would have understood the
omission of burden of proof language in instructions 12 and 15 to be intentional and
proceeded to address whether jurors would have thought that the language in
instruction 25 applied not only to the offenses it addressed, but also to those addressed
by instructions 12 and 15. See id. But “[n]othing on the face of the instructions, nor
in their placement, suggested to the jury that . . . instruction 25 applied to second-
degree murder.” 	Id. ¶ 19. 	The correct instruction was separated from the second-
degree murder instruction by thirteen other instructions. Id. An additional instruction

23
informed the jury that each crime charged should be considered separately. Id. ¶ 20.
{38} 	We conclude that, under the reasoning from Benally, a reasonable juror would
not have been confused or misdirected into concluding that only general intent was
required in order to convict Defendant of kidnapping in this case. By its terms, the
general intent instruction in this case applied only to “criminal sexual penetration,
aggravated battery against a household member without great bodily harm, and
interference with communications.” We conclude that, as in Benally, a jury would
have understood that the inclusion of these three crimes and the omission of
kidnapping was intentional. 	Also like Benally, the kidnapping instruction was
separated from the general intent instruction by the numerous (in this case, ten)
instructions setting forth the elements of the three crimes to which the general intent
instruction did apply. Finally, as in Benally, the jury was instructed that “[e]ach crime
charged in the indictment should be considered separately.” 	Accordingly, we
conclude that a reasonable juror would have arrived at a correct understanding of the
intent element of kidnapping from the instructions in this case. As we find no error,
we need not decide whether there was fundamental error.
III. 	CONCLUSION
{39} 	For the foregoing reasons, we affirm.

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{40} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
E CONCUR:
CELIA FOY CASTILLO, Chief Judge
MICHAEL E. VIGIL, Judge