Certiorari Denied, No. 31,548, March 5, 2009

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-034

Filing Date: January 12, 2009

Docket No. 27,194

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DARRELL CASILLAS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Joe Parker, District Judge

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Navin H. Jayaram, Assistant Appellate Defender
Santa Fe, NM

for Appellant
                                         OPINION

FRY, Judge.

{1}     Defendant Darrell Casillas appeals from his convictions for two counts of criminal
sexual penetration in the first degree (child under thirteen), five counts of criminal sexual
contact in the second degree (child under thirteen), and one count of criminal sexual contact
in the third degree (child under thirteen). On appeal, Defendant seeks a new trial,
contending that the district court (1) erroneously denied his motion to strike the jury pool as
not representing a cross-section of the community, (2) improperly denied his motion

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requesting the court to ask potential jurors whether they had seen him in shackles, and (3)
abused its discretion in a number of evidentiary rulings more fully discussed below. We
affirm.

BACKGROUND

{2}     In 2005, Defendant was living with his girlfriend and her four children. On April 13,
2005, the oldest of the four children, M.R. (Victim) told her mother that Defendant had
molested her on five occasions between January 2005 and April 2005. Victim alleged that
Defendant penetrated her vagina with his fingers, touched her breasts and stomach, and
touched her vagina over her clothes on various occasions while her mother was working, and
on one occasion while her mother was taking a nap. Defendant left the home after Victim
made the allegations. The next day, Victim’s mother took her to be examined by a sexual
assault nurse examiner. Victim was later interviewed at the OASIS Child Advocacy Center
and testified before a grand jury.

{3}     Defendant was charged with two counts of first degree criminal sexual penetration,
five counts of second degree criminal sexual contact of a minor, and one count of third
degree criminal sexual contact of a minor. The State filed a motion in limine to exclude any
evidence of Victim’s alleged past sexual conduct or reputation regarding past sexual conduct
under NMSA 1978, § 30-9-16(A) (1993), known as the rape shield statute, and under Rule
11-413(A) NMRA, on the ground that such information was irrelevant, immaterial, and
unfairly prejudicial to Victim. At a pretrial hearing, the district court granted the State’s
motion to exclude evidence that Victim had previously made false allegations of a sexual
nature against a different individual.

{4}     Defendant filed a motion to strike the jury pool, asserting that he was deprived of an
impartial jury of his peers because the pool did not represent a fair cross-section of the
community. The district court denied the motion, finding that the jury had been assembled
in accordance with the statute governing jury selection. NMSA 1978, § 38-5-3 (2007). The
parties then stipulated to a continuance of the trial, and a new jury venire was assembled.

{5}     A few days prior to trial, Defendant filed a motion asking the court to order a
psychological evaluation of Victim pursuant to NMSA 1978, § 30-9-18 (1987). The motion
was based upon several of Victim’s statements from the OASIS interview and Victim’s
mother’s testimony about Victim’s mental state. After holding an evidentiary hearing and
reviewing a DVD of the OASIS interview, the court denied Defendant’s motion, concluding
that Victim sounded rational and had a firm grasp of the facts and her emotions.

{6}     On the morning of trial, Defendant filed a second motion to strike the jury pool,
citing to United States census data to support his assertion that Hispanics were under-
represented. Defendant argued that because the court clerk was too lenient in excusing
potential jurors and because jury summonses were not in Spanish, there was a negative
impact on the number of Hispanics reporting for jury duty. The district court denied

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Defendant’s motion and instructed the parties to go forward with jury selection.

{7}     During voir dire of the potential jurors, one individual said that he had seen
Defendant being escorted by two police officers, which led him to believe that Defendant
was already incarcerated. The juror was disqualified because he made various other
comments about the State’s burden of proof and stated that seeing Defendant escorted by the
officers “defeats the purpose” of trial. Defendant then moved that each potential juror be
brought into the courtroom individually to be questioned as to whether they had seen
Defendant escorted by police officers or in shackles. The district court denied Defendant’s
motion on the ground that drawing attention to the issue would be more likely to result in
jury prejudice.

{8}     The court instead opted to hold an evidentiary hearing to determine whether the jury
could possibly have seen Defendant in shackles inside the courtroom. Counsel questioned
the officers who escorted Defendant and a paralegal for the defense who had stopped the
officers from entering the courtroom with Defendant in shackles. Based upon the testimony,
the court found that since Defendant did not fully enter the courtroom in shackles, there was
no reason to believe the jury had been tainted. Following a two-day trial, Defendant was
found guilty of all charges.

DISCUSSION

1.     Motion to Strike Jury Pool

{9}     Defendant argues that the district court erroneously denied his motion to strike the
jury pool under NMSA 1978, § 38-5-16 (1969). This presents a mixed question of law and
fact that we review de novo. United States v. Alanis, 265 F.3d 576, 583 (7th Cir. 2001).

Preservation

{10} The State argues that Defendant failed to preserve this issue for appeal because he
did not cite the Sixth and Fourteenth Amendments to the United States Constitution in
support of his argument. We disagree. Defendant clearly argued that he had been deprived
of a jury pool representing a fair cross-section of the community and he invoked a definite
ruling on this argument from the trial court. See State v. Hodge, 118 N.M. 410, 418, 882
P.2d 1, 9 (1994) (“One preserves an issue for appeal by invoking a ruling from the court on
the question[.]” (emphasis omitted)). Because Defendant’s argument was obviously based
on the constitutional right to a fair and impartial jury, we review Defendant’s argument
based on the United States Constitution. See Rule 12-216(B)(2) NMRA.

{11} On the other hand, we decline to review Defendant’s argument to the extent that it
relies on the New Mexico Constitution and the Treaty of Guadalupe Hidalgo. In his motion
to strike the jury, Defendant cited Article VII, Section 3 of the New Mexico Constitution,
which protects the rights of New Mexicans to vote, hold office, and sit upon juries, but it

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does not protect a defendant’s right to an impartial jury. See N.M. Const. art. VII, § 3. That
provision does not correspond to the impartial jury provision of the Sixth Amendment to the
United States Constitution or to the equal protection guarantees of the Fourteenth
Amendment. See U.S. Const. amends. VI, XIV. Defendant did not argue before the district
court that the rights of New Mexico jurors were being violated, and the district court did not
make a ruling on that issue. Defendant did not cite N.M. Const. art. II, § 14, the provision
that protects the right to an impartial jury. Therefore, he did not preserve any argument
under the state constitution. See State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168
P.3d 768 (holding that preservation for review requires a fair ruling or decision by the
district court in order to provide the lower court with an opportunity to correct any mistake,
give the opposing party an opportunity to demonstrate why the district court should rule in
its favor, and create a record which enables this Court to make informed decisions).

{12}    Similarly, while Defendant also cites the Treaty of Guadalupe Hidalgo in his reply
brief, he fails to explain how the treaty supports his argument that he was deprived of a fair
and impartial jury. Because Defendant did not clearly develop his arguments based upon the
New Mexico Constitution or the Treaty of Guadalupe Hidalgo, we do not consider them on
appeal. Reule Sun Corp. v. Valles, 2008-NMCA-115, ¶ 19, 144 N.M. 736, 191 P.3d 1197
(refusing to consider the application of a statute to the facts of the case where neither party
fully developed an argument based upon the statute), cert. granted, 2008-NMCERT-008,
145 N.M. 255, 195 P.3d 1267.

Representative Cross-Section of the Community

{13} We turn now to Defendant’s challenge under the United States Constitution. On the
morning of trial, Defendant moved to strike the jury pool under Section 38-5-16, arguing that
the panel did not represent a cross-section of the community and that he would, therefore,
be deprived of a fair and impartial jury. In order to show a prima facie violation of the fair
cross-section requirement, a defendant must demonstrate that (1) the group alleged to be
excluded is a “distinctive” group in the community, (2) the group’s representation in venires
from which juries are selected is not fair and reasonable in relation to the number of such
persons in the community, and (3) this under-representation results from the systematic
exclusion of the group in the jury-selection process. See State v. Lopez, 96 N.M. 456, 459,
631 P.2d 1324, 1327 (Ct. App. 1981) (citing Duren v. Missouri, 439 U.S. 357 (1979)).

{14} The distinctive group Defendant alleges to have been excluded from the jury pool is
the Hispanic population of Roosevelt County. We assume without deciding that Hispanics
are a distinctive group within the community with regard to representation on jury venires.

{15} To show that the number of Hispanics on jury venires is not representative of the
number of such individuals in the community, Defendant used United States census data
showing that 33 percent of the entire population of Portales, New Mexico is Hispanic.
Defendant argues that because only 8 to 16 percent of the first and second jury venires
(respectively) assembled for his trial had a Hispanic surname, Hispanics are unfairly and

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unreasonably under-represented. However, Defendant compares the percentage of Hispanics
in the population at large (which includes those who may not be eligible for jury service)
with the percentage of individuals in the jury venire having a name that sounds Hispanic.
Hispanic surnames do not accurately indicate the number of potential jurors who are in fact
Hispanic. “An analysis of [H]ispanic surnames, without more, is not an adequate indicator
of whether an individual is of [H]ispanic descent.” State v. Neely, 112 N.M. 702, 713, 819
P.2d 249, 260 (1991). Defendant relies almost exclusively on this method in support of his
argument.

{16} Defendant also points to the court clerk’s practice of excusing jurors and the fact that
Spanish-language jury summonses are not provided. He asserts that these practices, when
combined, result in the systematic exclusion of Hispanics from the jury venire. Defendant
contends that the clerk of the court excused 216 people under NMSA 1978, § 38-5-2 (2005),
which allows a judge’s designee to excuse individuals for whom jury duty would be unduly
burdensome. However, apart from claiming that 40 percent of those excused by the clerk
had Hispanic surnames, Defendant does not show how the clerk’s excusal practices unfairly
or systematically excluded Hispanics from the jury pool. Defendant’s argument that the
clerk of the court appears to grant all requests for excusals from jury duty, regardless of the
race, gender, or other characteristics of the person requesting the excusal, does not support
his argument that Hispanics are systematically excluded.

{17} Defendant further maintains that since 26 percent of the population of Roosevelt
County speaks a language other than English in the home, Hispanics are under-represented
because Spanish-speaking potential jurors do not know what to do with their jury
summonses. However, Defendant offers no documentation to show that the language spoken
by 26 percent of the Roosevelt County population is necessarily Spanish. Defendant also
admits that he does not know whether those who speak another language in the home are
bilingual or speak only a language other than English. Although it is logical to assume that
some individuals who speak a language other than English in the home are both eligible
jurors and Spanish-only speakers, Defendant has offered no proof whatsoever that this is so,
nor has he shown what proportion of the 26 percent speaks only Spanish.

{18} Defendant has not met his burden under the Duren test and has failed to establish a
prima facie case of systematic exclusion of Hispanics from the jury pool. This is especially
so because, as the State notes, jury summonses in Roosevelt County, New Mexico, are sent
out randomly in a gender- and race-neutral manner to all eligible potential jurors. Further,
as Defendant concedes, jurors who seek to be excused by the court clerk are excused without
regard to their ethnicity. To be systematic, the exclusion of a distinctive group must be
“inherent in the particular jury-selection process.” Duren, 439 U.S. at 366. Defendant has
not made a showing that Hispanics are under-represented, or even if they are, that the under-
representation results from a systematic practice. This is in contrast to the circumstances in
Duren, where the defendant showed that the practice of excluding women from jury venires
occurred weekly for almost one year and resulted from selection practices that specifically
targeted women. Id. at 369. We hold that the district court properly denied Defendant’s

                                              5
motion to strike the jury pool.

2.     Defendant’s Entrance Into the Courtroom

{19} Defendant asserts that the district court abused its discretion and failed to reasonably
ensure Defendant a fair and impartial jury when it denied his motion to question each
potential juror individually as to whether they had seen Defendant enter the courtroom in
shackles. Defendant requests a new trial.

{20} We have observed that “a prisoner coming into court for trial is entitled to make his
appearance free of shackles or bonds.” State v. Gomez, 82 N.M. 333, 334, 481 P.2d 412, 413
(Ct. App. 1971). In Gomez, we held that the trial court did not abuse its discretion in
denying the defendant’s motions to strike the entire jury panel and for a mistrial when
several of the jurors saw the defendant in handcuffs in the hallway prior to the trial and again
when they returned to the courtroom after the lunch break. Id. We reasoned that because
the defendant was not handcuffed in the courtroom during trial or jury selection, his rights
were not substantially prejudiced. Id.

{21} Defendant alleges that one of the potential jurors saw him in shackles, but the record
does not support his assertion. The trial transcript reflects that only one potential juror saw
Defendant begin to enter the courtroom escorted by police officers. A paralegal from
defense counsel’s office noted that Defendant was shackled at the time, but because
Defendant did not fully enter the courtroom and there was no showing that any of the
potential jurors saw Defendant’s shackles, we conclude that Defendant was not any more
prejudiced than the defendant in Gomez.

{22} Defendant argues that the district court abused its discretion by failing to question
all of the potential jurors individually to determine what each juror saw. The district court
opted instead to hold an evidentiary hearing and questioned the police officers who escorted
Defendant and the paralegal who stopped them from entering the courtroom to determine
what the jury pool may have seen.

{23} The district court listened to all of the testimony and arguments and found that
Defendant had not entered the courtroom while he was in shackles, that the arm shackles
were covered by Defendant’s suit jacket, and that the leg shackles did not jingle. The court
ruled that Defendant had not been unduly prejudiced and that questioning the jurors might
have unnecessarily brought attention to the fact that Defendant was incarcerated at the time
of trial. We cannot say that the district court’s means of dealing with the matter constituted
an abuse of discretion.

3.     Evidentiary Rulings

{24} Defendant argues that the district court abused its discretion in several evidentiary
rulings. “We review the admission of evidence under an abuse of discretion standard and

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will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-NMSC-022,
¶ 20, 125 N.M. 511, 964 P.2d 72. “We cannot say the trial court abused its discretion by its
ruling unless we can characterize it 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).

State’s Motion in Limine

{25} Defendant contends that the district court abused its discretion by granting the State’s
motion to bar evidence of Victim’s past allegations against a third party, denying
Defendant’s motion for an in camera hearing on those allegations, and failing to consider
Defendant’s confrontation rights when it granted the State’s motion. The State responds that
the evidence was properly excluded under both the rape shield statute and the general
standards of relevance.

{26} After the district court granted the State’s motion, Defendant moved for an in camera
 hearing on Victim’s past allegations. At the hearing on Defendant’s motion, both the State
and Defendant proffered evidence as to the nature of the allegations. After hearing the
evidence that Victim claimed that a classmate had brushed a hand against her buttocks, the
court denied Defendant’s motion for an in camera hearing to further develop the facts. The
district court found that the prior allegations related to Victim’s reputation for past sexual
conduct and were subject to exclusion under Section 30-9-16(A). Under this statute,

        evidence 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.

§ 30-9-16(A).

{27} We consider whether the district court could reasonably exclude the evidence by
evaluating the evidence under a five-factor test: (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 pertinent case; (3) whether the circumstances of 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. See State v. Johnson, 1997-NMSC-036, ¶ 27, 123 N.M. 640,
944 P.2d 869.

{28} The State argues that Defendant failed to make a showing sufficient to justify
admission of the prior allegations. We agree. First, although Victim clearly did make
allegations against a third party at an earlier date, Defendant offered no proof that the
allegations were demonstrably false. The situation was resolved between the parents of

                                               7
Victim and the parents of her classmate, and Defendant made no showing that the prior
instance had not occurred as Victim claimed.

{29} Second, the circumstances of the prior incident in no way resemble the allegations
that led to the charges against Defendant. The previous allegations were that a classmate had
once brushed his hand against Victim’s buttocks, while Defendant is charged with repeatedly
molesting Victim, including penetrating her vagina with his fingers, over a four-month
period.

{30} Third, Defendant did not show that the circumstances of the prior allegations were
clearly relevant to any material issue in the present case other than propensity. Defendant
did not indicate how or why Victim’s past allegations would show a motive to lie in this case
or that they were in any way relevant to the charges. Defendant’s sole argument as to the
admissibility of the prior allegations was that “[i]t’s got everything to do with [Victim’s]
credibility and her veracity on making these accusations.” While credibility of an accusing
witness is important, here, as in Johnson, “[the d]efendant never expressed his intention to
use the prior sexual conduct evidence to expose the victims’ motives to lie or as a basis for
a theory of relevance other than propensity.” Id. ¶ 37.

{31} Fourth, Defendant has not shown how the prior allegations relate to his defense. In
State v. Stephen F., 2007-NMCA-025, 141 N.M. 199, 152 P.3d 842, aff’d by 2008-NMSC-
037, 144 N.M. 360, 188 P.3d 84, we held that the defendant should have been allowed to
present evidence of the victim’s past acts because the defendant “specifically argued that he
intended the evidence to show that [the alleged victim] had a motive to lie, and . . . provided
the [district] court with a legitimate theory of relevance.” Stephen F., 2007-NMCA-025, ¶
16. In this case, Defendant failed to show the relevance of Victim’s prior conduct at any
time during the pretrial process or in his argument on appeal. Absent some showing by
Defendant of relevance, questions concerning Victim’s past sexual conduct were properly
excluded.

{32} Defendant also argues that the district court erred by failing to consider his
constitutional confrontation rights when granting the State’s motion in limine. However,
Defendant must show that the evidence was relevant or necessary to his defense before his
confrontation rights are at issue. Cf. id. ¶ 18, (“Because [the defendant] made the requisite
particularized showing that the evidence was both highly probative of [the alleged victim’s]
motive to lie and crucial to his defense, the [district] court's failure to address the evidentiary
issue under the confrontation aspect amounted to a misunderstanding of the balance the
[district] court must employ in these situations.” (internal quotation marks omitted)).
Defendant in this case did not establish that the evidence he wished to introduce was
relevant, and therefore his confrontation rights were not implicated. We conclude that the
district court did not abuse its discretion by granting the State’s motion in limine or by
denying Defendant’s motion for an in camera hearing.

Denial of Motion for Psychological Evaluation of Victim

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{33} Defendant argues that the district court abused its discretion by denying his motion
requesting a psychological evaluation of Victim under Section 30-9-18. In order to justify
such an evaluation to challenge a complaining witness’s credibility, “the defendant must
show a compelling reason for the evaluation. A compelling reason exists when the probative
value of the evidence reasonably likely to be obtained from the examination outweighs the
prejudicial effect of such evidence and the [complaining witness’s] right of privacy.” State
v. Dombos, 2008-NMCA-035, ¶ 30, 143 N.M. 668, 180 P.3d 675 (alteration in original)
(internal quotation marks and citations omitted), cert. denied, 2008-NMCERT-002, 143
N.M. 666, 180 P.3d 673.

{34} Defendant argues that he demonstrated compelling reasons for the examination
because Victim’s mother testified that Victim had been prescribed Seroquel, an anti-
psychotic drug, that Victim was sick and needed help, and that Victim had acted abusively
toward Defendant in the past. Defendant also relies on Victim’s statements in the OASIS
interview that she sometimes had hallucinations and trouble telling dreams from reality.
Defendant contends that the district court considered only the OASIS interview and failed
to consider the testimony of Victim’s mother. We disagree. There is no showing in the
record that the court failed to consider all of the evidence before making its determination.
To the contrary, the district court did not deny Defendant’s motion for a psychological
evaluation of Victim until after all of the evidence was presented. We hold that the district
court did not abuse its discretion in denying Defendant’s motion.

Victim’s Disagreements With Defendant

{35} Victim testified that she and Defendant disagreed “very often.” Defendant then
asked Victim about the types of things she and Defendant normally disagreed about. The
district court sustained the State’s objection to this question. Defendant does not explain
how the nature of the disagreements would tend to prove or disprove any material fact at
issue. See Rules 11-401, -402 NMRA. Therefore, we hold that the district court did not
abuse its discretion in sustaining the State’s objection.

School Records of Victim’s Brother

{36} Defendant also challenges the district court’s exclusion of Victim’s brother’s school
attendance records. Defendant asserts that the records were relevant to show whether
Victim’s brother “could have been everywhere [Victim] claims that he was during the times
she alleges that [Defendant] touched her.” However, as the State points out, Victim alleged
that all of the acts of molestation occurred at night or on weekends—times when Victim’s
brother would not have been at school. Based upon the evidence presented as to the dates
and times of the alleged incidents, the district court did not abuse its discretion by excluding
the records on relevance grounds.

Victim’s OASIS Interview


                                               9
{37} Defendant asserts that the district court abused its discretion by denying Defendant’s
request to play a DVD of Victim’s OASIS interview at trial. However, the district court
admitted the DVD itself into evidence as Defendant’s Exhibit A. Although the OASIS
interview was not played for the jury in open court, Defendant cross-examined Victim about
the content of the OASIS interview and impressed upon the jury in closing argument the
importance of reviewing the DVD. Presentation of evidence is a matter for the trial court’s
discretion. Rule 11-611(A)(1), (2) NMRA; see State v. Hovey, 106 N.M. 300, 303, 742 P.2d
512, 515 (1987) (holding that the district court did not abuse discretion in limiting the
number of diary entries that could be read to the jury and explained by the defendant where
there were hundreds of diary entries and all diaries were admitted into evidence and
available for review by the jury). Because Defendant has not shown that the OASIS
interview was excluded from evidence, we hold that the district court did not abuse its
discretion in denying Defendant’s request to play the OASIS interview for the jury.

Victim’s Grand Jury Testimony

{38} Defendant asked that a recording of Victim’s grand jury testimony be played to the
jury and the State objected. Although the district court indicated that counsel would “talk
about [that] in just a moment,” the record does not reflect that the court ever ruled on the
issue. In order to preserve an issue for appeal, 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. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993
P.2d 1280. “Matters not of record present no issue for review.” State v. Hunter, 2001-
NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296. The record does not indicate that Defendant
ever urged the district court to make a definitive ruling.

{39} Absent preservation of the issue, Defendant must show that the district court’s
decision constituted fundamental error affecting a substantial right. “To the extent the record
does not provide a clear basis for appellate review[,] . . . [t]he court must be convinced that
the evidentiary decision constituted an injustice that creates grave doubts concerning the
validity of the verdict.” State v. Baca, 1997-NMSC-045, ¶ 17, 124 N.M. 55, 946 P.2d 1066.
Defendant wanted to use Victim’s grand jury testimony to rebut testimony that Victim
thought of Defendant as a father figure, thereby impeaching her credibility. Whether Victim
saw Defendant as a father figure was not a material issue at trial. Moreover, Defendant
himself testified that Victim thought of him as a father figure. Even if we held that the
district court erred in failing to play the grand jury testimony, that error would not create
serious doubt about the validity of the verdict.

Impeachment of Defendant’s Character for Truthfulness

{40} Defendant, citing only Rule 11-404 NMRA and cases interpreting that rule, argues
that the district court erred by allowing Defendant’s character for truthfulness to be placed
at issue through the admission of employment records showing that Defendant had been
fired for job abandonment and that he had been disciplined for a cash shortage. The State

                                              10
argues that Defendant failed to preserve this argument because he objected below only on
hearsay and general relevancy grounds.

{41} While on the stand, Defendant testified that he had voluntarily quit his job at Allsups.
To impeach this statement, the State introduced into evidence records from Allsups stating
that Defendant had been terminated for failure to report to work or call in. The State also
introduced documents showing that Defendant had been written up for cash shortages during
the course of his employment at Allsups. Defendant objected to the admission of the
termination document on hearsay and relevancy grounds, and he objected to the cash
shortage documents by arguing, “I don’t know what the relevancy is, . . . there’s been no
establishing (inaudible) veracity problem.” Over Defendant’s objections, the district court
admitted the termination record, without explaining the reasoning behind its ruling, and the
cash shortage records, reasoning that the documents were relevant to Defendant’s veracity.
On cross-examination of the Defendant’s next witness, a human resources supervisor from
Allsups, the State again inquired about the termination form as well as the circumstances
leading up to the cash shortage disciplinary action.

{42} Defendant contends that the admission of the disciplinary form violated Rule 11-
404(A)(1), which precludes the admission of evidence of a person’s character “for the
purpose of proving action in conformity therewith.” Citing Rule 11-404(A)(1), Defendant
argues that because he did not testify about having a truthful character, the prosecution was
not allowed to offer evidence suggesting that he has an untruthful character. Defendant’s
reliance on Rule 11-404 is misplaced. Rule 11-404(A)(1) precludes the admission of
“[e]vidence of a person’s character or a trait of character . . . for the purpose of proving
action in conformity therewith” unless “offered by an accused, or by the prosecution to rebut
the same.” Thus, Defendant is correct that under Rule 11-404(A), the prosecution could not
offer evidence of Defendant’s character for untruthfulness unless he first offered evidence
that he had a character of truthfulness. However, Rule 11-404(A) applies only when
character evidence is being offered “to challenge the likelihood of an accused’s commission
of a charged crime,” not when being offered to impeach the credibility of a witness. State
v. Martinez, 2008-NMSC-060, ¶ 30, 145 N.M. 220, 195 P.3d 1232.

{43} In directing us to Rule 11-404(A)(1), Defendant ignores Rule 11-404(A)(3), which
allows the admission of evidence of the character of a witness, as provided in Rules 11-607,
-608, and -609 NMRA, to impeach the credibility of that witness. Under Rule 11-607, any
party may attack a witness’s credibility. A party may also inquire into particular instances
of a witness’s conduct on cross-examination, providing the conduct did not result in criminal
conviction and providing the conduct is probative of truthfulness or untruthfulness. See Rule
11-608(B)(1); State v. Marquez, 87 N.M. 57, 62, 529 P.2d 283, 288 (Ct. App. 1974). Thus,
by taking the stand in his defense, Defendant became a witness in the case, and it was
permissible under both Rules 11-404(A)(3) and 11-608(B)(1) for the prosecution to attack
Defendant’s credibility by establishing that he had a character for untruthfulness. Because
a cash register shortage tends to show a character of dishonesty, questions regarding
disciplinary action taken against Defendant for cash register shortages were proper under

                                             11
Rule 11-608(B)(1). See State v. Wyman, 96 N.M. 558, 560, 632 P.2d 1196, 1198 (Ct. App.
1981) (holding that “[q]uestions concerning embezzlement, burglary, auto theft and larceny
involve dishonesty, were probative as to truthfulness and were proper cross-examination
under . . . Rule 608([B])”).

{44} While Rule 11-608(B) permitted the prosecutor’s questions on cross-examination
regarding the disciplinary action, the rule explicitly precludes the admission of extrinsic
evidence to prove that specific instances of misconduct occurred. Thus, while the State
could properly inquire about the alleged cash shortages on cross-examination in order to
attack Defendant’s credibility by showing that he had a character for untruthfulness, the
State was not permitted to introduce any extrinsic evidence, such as the documents showing
that Defendant was disciplined for a cash shortage to prove that those alleged acts had
occurred. Therefore, the district court erred by admitting the documents.

{45} While admission of this extrinsic evidence was error, we hold that it was harmless
error. In determining whether improperly admitted evidence is harmless error, we must
determine whether there is any possibility that the evidence might have contributed to the
conviction. State v. Morales, 2002-NMCA-052, ¶ 24, 132 N.M. 146, 45 P.3d 406. Here,
prior to the admission of the document, the State had asked Defendant whether he had ever
been written up for a cash shortage while working at Allsups. Defendant admitted to having
been written up and then proceeded to testify about the write-up prior to the admission of the
exhibit. Defendant explained that there had been a glitch in the cash register’s computer
system and that all of the employees working at Allsups had been written up at the same
time. Thus, even if the document had not been admitted into evidence, the fact that
Defendant had been written up for a cash shortage was already properly before the jury.
Nothing in the document contradicted Defendant’s testimony that the entire shift had been
written up. Thus, the improperly admitted evidence was merely cumulative evidence that
corroborated what Defendant had already admitted—that he had been written up for having
a cash shortage in his register.

{46} Defendant was accused and convicted in this case of criminal sexual penetration of
a minor. While the majority of the evidence supporting Defendant’s conviction required the
jury to make a credibility determination as to whether they believed Defendant’s version of
the events or Victim’s version, we cannot conclude that the minor disciplinary action taken
against Defendant for having a cash registry shortage contributed to Defendant’s conviction
in any way. Even if the jury believed that Defendant had a character for untruthfulness
because he had been written up for a cash shortage, this evidence was already properly
before the jury based on the prosecution’s cross-examination of Defendant prior to the
erroneous admission of the extrinsic evidence. Thus, we find that the court’s error was
harmless error that did not affect the verdict in this case.

Prosecutor’s Statements in Closing Argument

{47}   In closing argument, the prosecutor stated that the evidence showed that Victim’s

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hymen was damaged, that Defendant had penetrated Victim’s vagina with his penis, and that
Victim thought of Defendant as a father figure. Defendant argues that all of these statements
were prejudicial and outside the scope of the evidence presented and that the statements
cumulatively constituted error requiring reversal of the jury’s verdict. When an issue of
prosecutorial misconduct is preserved by a timely objection at trial, we review the trial
court’s ruling for abuse of discretion. State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482,
994 P.2d 728. “An isolated, minor impropriety ordinarily is not sufficient to warrant reversal
[] because a fair trial is not necessarily a perfect one[.]” Id.(internal quotation marks and
citations omitted). We consider each remark in turn.

{48} First, Defendant argues that, contrary to the prosecutor’s statement in closing, the
nurse who examined Victim testified that Victim’s hymen was abnormal but not damaged.
However, Defendant’s argument misstates the nurse’s testimony. The nurse testified that
in her report she documented Victim’s hymen as abnormal, and she then went on to testify
about the nature of injuries to Victim’s vaginal area. This evidence reasonably could be
interpreted as consistent with the State’s characterization that Victim’s hymen was
“damaged.” Therefore, the district court did not abuse its discretion in overruling
Defendant’s objection to the prosecutor’s statement in closing argument.

{49} Second, Defendant complains about the prosecutor’s statement that Defendant
penetrated Victim’s vagina with his penis. When Defendant objected to the statement, the
prosecutor immediately corrected herself and apologized for the misstatement. We view the
prosecutor’s statement as isolated, minor, and not so prejudicial as to compel reversal. In
addition, we observe that Defendant did not request any curative instructions. We therefore
conclude that the prosecutor’s misstatement did not rise to the level of reversible error. See
In re Crystal L., 2002-NMCA-063, ¶ 19, 132 N.M. 349, 48 P.3d 87 (stating that prosecutor’s
statements, while improper, did not constitute reversible error without evidence of
substantial prejudice where defense counsel objected and the district court sustained the
objection, but the defense did not request a curative instruction or other remedy).

{50} Finally, Defendant argues that the State’s characterization of Defendant as a “father
figure” to Victim was error because it was contradicted by Victim’s grand jury testimony.
However, as the State points out, Defendant testified at trial that Victim thought of him as
a father figure. We are not persuaded that the State’s characterization was prejudicial. See
id.

{51} Because there was no error, we further conclude that there was no cumulative error.
State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d 1211.

CONCLUSION

{52}   For the foregoing reasons, we affirm Defendant’s convictions.

{53}   IT IS SO ORDERED.

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                                           CYNTHIA A. FRY, Judge

WE CONCUR:


MICHAEL D. BUSTAMANTE, Judge


RODERICK T. KENNEDY, Judge

Topic Index for State v. Casillas, No. 27,194

CL                   CRIMINAL LAW
CL-CP                Criminal Sexual Penetration
CL-SX                Sexual Offences

CD                   CHILDREN
CD-PS                Psychological Evaluation

CA                   CRIMINAL PROCEDURE
CA-CG                Closing Argument
CA-FT                Fair Trial
CA-GJ                Grand Jury
CA-ML                Motion in Limine
CA-MP                Misconduct by Prosecutor
CA-WT                Witnesses

EV                   EVIDENCE
EV-AE                Admissibility of Evidence
EV-CE                Character Evidence
EV-CH                Children as Witnesses
EV-CR                Credibility of Witnesses
EV-PB                Probative Value vs. Prejudicial Effect
EV-PA                Prior Acts or Statements
EV-RC                Relevancy, Materiality, and Competency
EV-WT                Witnesses




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