 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 28,627

10 PAUL ANTHONY FORE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Stan Whitaker, District Judge

14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 McGarry Law Office
19 Kathleen McGarry
20 Glorieta, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 GARCIA, Judge.

24          Defendant appeals his conviction of two counts of child abuse (intentionally
 1 and negligently inflicted) pursuant to NMSA 1978, Section 30-6-1(D)(2) (2004)

 2 (amended 2009). Defendant raises four issues on appeal: (1) the district court abused

 3 its discretion by allowing testimony regarding two uncharged domestic violence

 4 incidents; (2) the district court abused its discretion by denying his motions to excuse

 5 the entire jury panel or to excuse individual jurors for cause; (3) the district court erred

 6 by convicting Defendant of two counts of child abuse even though he was only

 7 charged with one count; and (4) there was insufficient evidence for Defendant’s

 8 conviction. We reverse and remand this case to the district court for a new trial

 9 because the district court abused its discretion by admitting evidence of uncharged

10 domestic violence incidents, resulting in prejudicial error to Defendant. Although

11 Defendant had concerns regarding Juror 22’s negative comment during voir dire, we

12 do not reach this issue because we determine that Defendant should be granted a new

13 trial on other grounds. Similarly, we do not reach Defendant’s argument regarding

14 sufficiency of the evidence.

15 DISCUSSION

16 I. Indictment With One Count of Child Abuse

17        Defendant argues that the district court erred in sentencing him on two counts

18 of child abuse because he was indicted on only one count of child abuse with four

19 alternative grounds. At oral argument, the State conceded that the judgment and


                                                2
 1 sentence should be modified to vacate one of the convictions. Because we ultimately

 2 reverse both convictions and remand to the district court for a new trial based on the

 3 improper admission of uncharged acts, we need not address the State’s concession of

 4 the error in the judgment and sentence further. However, we analyze Defendant’s

 5 conviction based upon only one count of child abuse.

 6 II. Testimony Regarding Uncharged Domestic Violence Incidents

 7        Defendant argues that the district court abused its discretion by allowing

 8 testimony regarding two uncharged acts of domestic violence that were allegedly

 9 committed by Defendant against B.B.’s (Victim’s) mother.             Defendant raises

10 alternative bases for granting him a new trial: (1) the district court abused its

11 discretion by not granting him a mistrial after Victim’s mother testified regarding the

12 uncharged acts in violation of the court’s ruling; and (2) the district court abused its

13 discretion by allowing the testimony under Rules 11-403 and 11-404(B) NMRA 2008.

14 Because we rule for Defendant based upon the district court’s abuse of discretion in

15 admitting testimony of uncharged acts under Rule 11-404(B), we do not address

16 Defendant’s alternative argument.

17 A. Factual and Procedural History

18        The first uncharged domestic violence incident occurred following a dispute

19 between Defendant and Victim’s mother regarding Victim’s use of a pacifier.


                                              3
 1 Defendant took away Victim’s pacifier because he thought it was causing Victim’s

 2 thrush condition. Victim’s mother testified that she did not remember what Defendant

 3 did with the pacifier, but she thought he threw it in Victim’s direction or the direction

 4 of the crib. Defendant did not actually hit Victim with the pacifier, and Victim’s

 5 mother testified that she did not think that he intended to hit Victim. Victim’s mother

 6 gave the pacifier back to Victim and then walked into a separate room at the other end

 7 of the house. Victim’s mother then testified that Defendant grabbed her and knocked

 8 her head into a windowsill (the window incident). The second incident at issue

 9 involves Victim’s mother’s testimony that on another occasion, Defendant shoved her

10 face into a mattress and threatened her (the mattress incident).

11        Prior to trial, Defendant filed a motion in limine to exclude “[a]ny testimony by

12 [Victim’s mother] regarding domestic violence or abuse by Defendant.” After hearing

13 the motion in chambers, the district court ruled, “[I]n that context within which the

14 pacifier was thrown—what it is that [Defendant] did to [Victim’s mother] in that same

15 circumstance, that’s the only domestic violence reference we’ll allow.” The district

16 court clarified that the State could elicit testimony regarding what Defendant did to

17 Victim’s mother in the context of the pacifier incident, but not “prior circumstances

18 and situations.”

19        During trial, Victim’s mother testified regarding the window incident without


                                               4
 1 objection by Defendant. Subsequently, however, Defendant objected to testimony

 2 regarding the mattress incident and moved for a mistrial based upon the violation of

 3 the district court’s earlier ruling on the motion in limine. In response, the State argued

 4 that it did not solicit the testimony and that it was not “any more damaging to

 5 [D]efendant than what ha[d] already come out.” The district court denied Defendant’s

 6 motion for mistrial but instructed the State to start directing the witness because the

 7 State was “letting her go way too far.”

 8 B. Preservation

 9        The State argues that Defendant did not preserve the issue of whether the

10 district court abused its discretion by allowing testimony regarding the window

11 incident under Rule 11-404(B). Specifically, the State argues that even though the

12 district court had already ruled on whether the incident was admissible in response to

13 Defendant’s motion in limine, Defendant was required to object to the testimony

14 during trial in order to preserve the issue. We disagree.

15          To preserve an issue for appeal, “it is essential that the ground or grounds of

16 the objection or motion be made with sufficient specificity to alert the mind of the trial

17 court to the claimed error or errors, and that a ruling thereon then be invoked.” State

18 v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation

19 marks and citation omitted). Here, Defendant raised the issue of whether uncharged


                                               5
 1 acts of domestic violence were admissible under Rule 11-404(B) through his motion

 2 in limine. The district court ruled that the uncharged act of domestic violence

 3 associated with the pacifier incident was relevant and admissible to show context. By

 4 raising the issue with sufficient specificity and invoking a ruling, Defendant preserved

 5 the issue. Defendant was not required to object to the testimony during trial because

 6 the district court had already specifically ruled that the testimony was admissible. See

 7 Robertson v. Carmel Builders Real Estate, 2004-NMCA-056, ¶ 33, 135 N.M. 641, 92

 8 P.3d 653 (determining that an issue was preserved by a motion in limine); see also

 9 State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829 (reasoning that a

10 defendant is required to object to testimony only if it exceeds the scope of pretrial

11 motions).

12 C. Rule 11-404(B) Analysis

13        Defendant argues that the district court abused its discretion by ruling that

14 testimony regarding uncharged domestic violence was admissible under Rules 11-

15 404(B) and 11-403.

16        “Evidence of other crimes, wrongs or acts is not admissible to prove the

17 character of a person in order to show action in conformity therewith. It may,

18 however, be admissible for other purposes, such as proof of motive, opportunity,

19 intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Rule


                                              6
 1 11-404(B). This rule “prohibits the use of otherwise relevant evidence when its sole

 2 purpose or effect is to prove criminal propensity.” State v. Gallegos, 2007-NMSC-

 3 007, ¶ 22, 141 N.M. 185, 152 P.3d 828. Evidence of other acts may, however, be

 4 admissible if it is relevant to a non-character purpose either listed or illustrated by the

 5 rule. Id. Before evidence of other acts may be admitted for a non-character purpose,

 6 the proponent of the evidence must fulfill two requirements. First, the proponent must

 7 “identify and articulate the consequential fact to which the evidence is directed.” Id.

 8 Second, even if the evidence is relevant to a material issue other than propensity to

 9 commit a crime, the district court “must determine that the probative value of the

10 evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403.” State v.

11 Otto, 2007-NMSC-012, ¶ 10, 141 N.M. 443, 157 P.3d 8.

12        We review a district court’s admission of evidence under Rule 11-404(B) for

13 abuse of discretion. State v. Sena, 2008-NMSC-053, ¶ 12, 144 N.M. 821, 192 P.3d

14 1198. An abuse of discretion “occurs when the court’s ruling is clearly against the

15 logic and effect of the facts and circumstances of the case. We cannot say the trial

16 court abused its discretion . . . unless we can characterize it as clearly untenable or not

17 justified by reason.” Id. (internal quotation marks and citation omitted).

18        First, we determine whether the State articulated a consequential fact other than

19 propensity to which the evidence of the uncharged domestic violence incidents were


                                                7
 1 directed. At the district court level, the State failed to articulate any reason under Rule

 2 11-404(B) for admitting testimony regarding the mattress incident. Regarding the

 3 window incident, the district court ruled that testimony regarding what Defendant did

 4 to Victim’s mother was admissible to show the context in which the pacifier was

 5 thrown. We have recognized that evidence of uncharged acts may be admissible to

 6 provide context for the charged act. State v. Dietrich, 2009-NMCA-031, ¶ 44, 145

 7 N.M. 733, 204 P.3d 748 (holding that nude photographs of two victims that were

 8 found on the defendant’s computer were admissible to corroborate the victims’

 9 testimony and provide context for the charged acts); State v. Crump, 82 N.M. 487,

10 494-95, 484 P.2d 329, 336-37 (1971) (holding that other criminal acts committed by

11 the defendant against the same victim were admissible where they were not

12 independent of the charged crime, provided an explanation of the crime, and were

13 incidental to it). Factually, Defendant’s case is distinguishable because the window

14 incident was independent of the acts supporting the child abuse charge and was not

15 explanatory or incidental to the child abuse charge. The window incident occurred

16 after the relevant pacifier incident had been completed, the window incident occurred

17 in a different room from Victim and the location of the pacifier incident, the window

18 incident did not involve Victim, and the window incident was substantially more

19 violent than the relevant pacifier incident. Consequently, the window incident was


                                                8
 1 independent of the charged crime of child abuse against Victim, did not provide

 2 explanation for the charged crime of child abuse, and was not incidental to the pacifier

 3 incident. As a result, the district court erred by admitting testimony of the window

 4 incident to show context for taking and throwing the pacifier.

 5        On appeal, the State now argues that the uncharged acts of domestic violence

 6 were properly admitted to show intent and absence of mistake or accident. However,

 7 we determine that Defendant was not given a fair opportunity to respond to the facts

 8 underlying these new arguments at the district court level. An appellate court may

 9 affirm on grounds not relied upon by the district court “unless those grounds depend

10 on facts that [the defendant] did not have a fair opportunity to address in the

11 proceedings below.” State v. Torres, 1999-NMSC-010, ¶ 22, 127 N.M. 20, 976 P.2d

12 20. In Otto, the Court affirmed the admission of other acts as evidence to show intent

13 and absence of mistake, even though the district court admitted the evidence on

14 another ground. 2007-NMSC-012, ¶ 12. In Otto, the state argued at a pre-trial

15 hearing in district court that other bad acts evidence should be admitted to show intent

16 and absence of mistake. Id. ¶ 3. Although the district court admitted the evidence on

17 another ground, the defendant in Otto had a full opportunity to respond to the state’s

18 alternative theory based upon intent and absence of mistake during the district court

19 hearing. Id. ¶¶ 3, 12. Defendant did not have the same opportunity in this case


                                              9
 1 regarding the issues of intent and absence of mistake.

 2        Unlike Otto, the State failed to make a record in the district court regarding why

 3 the uncharged conduct was admissible under Rule 11-404(B). Consequently, we have

 4 no indication that Defendant had an opportunity to respond to the State’s arguments

 5 or address the underlying factual issues that may have been relevant to address the

 6 issues of intent and absence of mistake. We decline to speculate regarding whether

 7 the district court would have found these grounds applicable and the evidence

 8 sufficiently probative to overcome any unfair prejudice to Defendant. See Gallegos,

 9 2007-NMSC-007, ¶¶ 24-25 (addressing the state’s argument on appeal while

10 reaffirming the proponent’s obligation to present the Rule 11-404(B) evidence and

11 argument in district court); see also State v. Aguayo, 114 N.M. 124, 132, 835 P.2d

12 840, 848 (Ct. App. 1992) (holding that it was prejudicial error to admit evidence of

13 uncharged conduct where the Court was unable to determine whether the district court

14 properly balanced admission of the testimony against its prejudicial effect, due to the

15 state’s failure to articulate why a non-character purpose applied). Without such

16 evidence or argument, we are not convinced that evidence of uncharged acts of

17 domestic violence against Victim’s mother is admissible to show Defendant’s intent

18 or absence of mistake in committing child abuse against Victim.

19        We determine that the State failed to meet its burden of articulating a


                                              10
 1 consequential fact other than propensity to which the evidence of the uncharged

 2 domestic violence incidents were directed. Consequently, admission of testimony

 3 regarding acts of domestic violence created a substantial risk that the jury would

 4 convict Defendant “for crimes other than those charged—or that, uncertain of guilt,

 5 it [would] convict anyway because a bad person deserves punishment.” Gallegos,

 6 2007-NMSC-007, ¶ 21 (internal quotation marks and citation omitted). The district

 7 court, therefore, erred by admitting evidence of the uncharged domestic violence

 8 incidents under Rule 11-404(B).

 9        Having determined that the district court erred in admitting testimony of

10 uncharged domestic violence incidents under Rule 11-404(B), we do not need to

11 analyze whether the district court also abused its discretion when it failed to weigh

12 whether the probative value of utilizing the uncharged acts to show context or for

13 other non-character purposes outweighed the risk of unfair prejudice to Defendant

14 under Rule 11-403. Gallegos, 2007-NMSC-007, ¶¶ 38-39. Instead, we next consider

15 whether the Rule 11-404(B) error was harmless. Id.

16        When evidence is improperly admitted under Rule 11-404(B), we apply “the

17 non-constitutional standard for the harmless error analysis.” State v. Branch, 2010-

18 NMSC-042, ¶ 15, ___ N.M. ___, 241 P.3d 602. “[A] non-constitutional error is

19 harmless when there is no reasonable probability the error affected the verdict.” Id.


                                            11
 1 (alteration in original) (internal quotation marks and citation omitted). We consider

 2 three factors in conjunction to determine the probability of whether the error affected

 3 the verdict: “[W]hether there is: (1) substantial evidence to support the conviction

 4 without reference to the improperly admitted evidence; (2) such a disproportionate

 5 volume of permissible evidence that, in comparison, the amount of improper evidence

 6 will appear minuscule; and (3) no substantial conflicting evidence to discredit the

 7 State’s testimony.” Id. (alteration in original) (internal quotation marks and citation

 8 omitted).

 9        First, we must determine whether there was still substantial evidence to support

10 Defendant’s child abuse conviction if the testimony regarding the two domestic

11 violence incidents had been excluded.           The jury found Defendant guilty of

12 intentionally or negligently causing Victim to be “tortured, cruelly confined or cruelly

13 punished” pursuant to Section 30-6-1(D)(2). We “view the evidence in the light most

14 favorable to the state, resolving all conflicts therein and indulging all permissible

15 inferences therefrom in favor of the verdict.” State v. Graham, 2005-NMSC-004, ¶

16 6, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted). We

17 also recognize that evidence of child abuse may be either direct or circumstantial. Id.

18 ¶ 10. In this case, Victim’s mother testified regarding the pacifier incident as well as

19 two additional incidents where she discovered marks, bruises, or cuts on Victim after


                                              12
 1 Victim had been in contact with Defendant. The investigating detective and the nurse

 2 practitioner who examined Victim both testified that some of Victim’s bruises were

 3 consistent with child abuse. Finally, photographs of Victim’s bruises and other direct

 4 evidence of Victim’s condition were admitted. Consequently, we conclude that there

 5 was sufficient evidence presented to uphold Defendant’s conviction and satisfy the

 6 first factor in our analysis.

 7        In this particular trial, however, the impermissible testimony regarding the two

 8 domestic violence incidents was not minuscule in relation to the permissible evidence.

 9 We “assess the impermissible evidence in light of the permissible evidence, the

10 disputed factual issues, and the essential elements of the crime charged. Our focus is

11 not limited to the quantity of permissible evidence, but, rather, encompasses the

12 quality of that evidence and its likely impact on the jury.” State v. Bullcoming, 2010-

13 NMSC-007, ¶ 39, 147 N.M. 487, 226 P.3d 1. The State argues that either of two

14 incidents supports Defendant’s conviction, one which allegedly occurred while

15 Defendant was alone babysitting Victim, and one which allegedly occurred while

16 Victim’s mother was asleep and no other witnesses were present. Because the State’s

17 evidence that Defendant either intentionally or negligently committed child abuse was

18 circumstantial, direct evidence that Defendant abused and threatened Victim’s mother

19 was particularly prejudicial. See State v. Johnson, 2004-NMSC-029, ¶¶ 35-37, 136


                                             13
 1 N.M. 348, 98 P.3d 998 (concluding that the error of admitting eyewitness testimony

 2 was not minuscule and consequently not harmless where it provided the only direct

 3 evidence of the defendant’s intent to commit armed robbery even though there was

 4 sufficient circumstantial evidence to support the conviction). Indeed, the State even

 5 acknowledged the prejudicial effect of Victim’s mother’s testimony by arguing that

 6 testimony regarding the mattress incident was not any more damaging to Defendant

 7 than prior testimony. Based upon the quality of direct evidence compared to

 8 circumstantial evidence, we similarly conclude that Victim’s mother’s eyewitness

 9 testimony regarding the domestic violence incidents was not cumulative of the

10 circumstantial evidence of domestic violence derived from Defendant’s repeated

11 phone calls to Victim’s mother. See id. ¶ 39 (reasoning that evidence is not

12 cumulative unless it is “so redundant that its corroborative effect is negligible”). As

13 a result, we determine that Victim’s mother’s testimony regarding uncharged acts of

14 domestic violence was not minuscule and that this factor does not weigh in favor of

15 harmless error.

16        Finally, substantial conflicting evidence tended to discredit the State’s

17 testimony. Defendant testified that he was not with Victim on the day of the first

18 alleged child abuse incident. On the day of the second alleged child abuse incident,

19 both Defendant and Victim’s mother were with Victim, Victim’s mother did not


                                             14
 1 witness Defendant abuse Victim, and Victim’s mother testified that Defendant denied

 2 injuring Victim. Defendant testified that he never hit Victim, and Victim’s mother

 3 similarly testified that she never saw Defendant strike Victim. In contrast, Victim’s

 4 mother testified that Victim frequently received bruises at daycare and that Victim

 5 sometimes fell and hit herself on the rail of her crib. Finally, Victim had multiple

 6 health conditions, including failure to thrive and dermatitis, and the nurse practitioner

 7 testified that dermatitis and child’s play accounted for some of the bruises. Because

 8 Defendant’s testimony directly contradicted the State’s evidence and the State’s

 9 evidence was internally contradictory, we conclude that substantial conflicting

10 evidence was introduced to discredit the State’s testimony. See State v. Soto, 2007-

11 NMCA-077, ¶ 24, 142 N.M. 32, 162 P.3d 187 (concluding that substantial evidence

12 discredited the state’s evidence where the defendant testified and directly contradicted

13 testimony of the state’s witnesses); see also State v. Tave, 1996-NMCA-056, ¶ 17, 122

14 N.M. 29, 919 P.2d 1094 (determining that substantial evidence discredited the state’s

15 evidence where conflicting testimony existed such that the outcome depended upon

16 which witnesses the jury found more credible).

17        When considering the circumstantial evidence supporting the child abuse

18 conviction conjunctively with the significant impermissible evidence and substantial

19 conflicting testimony, we determine that a reasonable probability exists that the


                                              15
 1 district court’s error in admitting testimony of the uncharged domestic violence

 2 incidents materially affected the verdict. Consequently, we conclude that the district

 3 court’s error was not harmless and actually prejudiced Defendant.

 4 CONCLUSION

 5        The district court abused its discretion by admitting testimony of Defendant’s

 6 uncharged conduct contrary to Rule 11-404(B), and that error caused actual prejudice

 7 to Defendant at his trial. As a result, we reverse Defendant’s conviction and remand

 8 this case to the district court for a new trial.

 9        IT IS SO ORDERED.


10                                                    ______________________________
11                                                    TIMOTHY L. GARCIA, Judge


12 WE CONCUR:



13 _________________________________
14 RODERICK T. KENNEDY, Judge



15 _________________________________
16 ROBERT E. ROBLES, Judge




                                               16
