 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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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. 29,863

10 JEFF GUTHRIE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
13 Drew D. Tatum, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   James W. Grayson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Liane E. Kerr
20 Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 GARCIA, Judge.

24          Defendant Jeff Guthrie pleaded no contest to one count of fourth-degree
 1 criminal sexual penetration (child thirteen to sixteen) (CSP IV), contrary to NMSA

 2 1978, Section 30-9-11(G)(1) (2007) (amended 2009). In the plea agreement, Guthrie

 3 reserved the right to appeal the district court’s order granting the State’s motion in

 4 limine to exclude evidence of the past sexual conduct of S.M. (Victim). On appeal,

 5 Guthrie argues the district court abused its discretion in excluding evidence that

 6 Victim had a ten-month-old child pursuant to New Mexico’s rape shield statute. We

 7 affirm the district court.

 8 BACKGROUND

 9        Guthrie was charged with three counts of CSP IV, contrary to Section 30-9-

10 11(G)(1). At the time the charged acts allegedly occurred, Guthrie was thirty-five

11 years old, and Victim was fifteen years old.

12        The State filed a motion in limine to exclude evidence or testimony regarding

13 Victim’s past sexual conduct pursuant to NMSA 1978, Section 30-9-16(A) (1993),

14 and Rule 11-413(A) NMRA. During an in camera hearing, the State argued that the

15 district court should exclude any evidence or testimony that Victim had a ten-month-

16 old child at the time the alleged acts occurred. The State argued that the fact that

17 Victim had a child was indicative of past sexual conduct and that it was required to

18 be excluded under Rule 11-413(A) absent a written motion by Guthrie demonstrating

19 that (1) the testimony is relevant and material, and (2) its probative value outweighs


                                             2
 1 its prejudicial impact.

 2        Guthrie responded that the fact that Victim had a ten-month-old child at the

 3 time the alleged acts occurred supported his mistake of fact defense. Specifically,

 4 Guthrie argued that he believed Victim was seventeen years old because Victim told

 5 Guthrie and other persons that she was seventeen years old, Victim had a ten-month-

 6 old child, and Victim behaved as if she was seventeen years old. Guthrie asserted that

 7 the purpose of the evidence was not to inflame the jury by showing that Victim was

 8 promiscuous but to support Guthrie’s mistake of fact defense.

 9        The State countered that Guthrie could still argue his mistake of fact defense

10 even without evidence that Victim had a child. The State further asserted that

11 evidence of Victim’s first child was not relevant and that it would inflame the jury by

12 showing that because Victim had a child when she was fifteen years old, Victim was

13 sexually promiscuous and had bad morals and conduct. The State clarified that

14 Victim had two children, one child who was ten months old at the time of the alleged

15 incident and a second child as a result of the alleged acts. The State argued that

16 evidence of Victim’s second child was relevant and admissible because the child was

17 allegedly the result of the charged acts, but evidence of Victim’s first child was

18 irrelevant and inadmissible.

19        The district court ordered that evidence of Victim’s first child would be


                                              3
 1 excluded because the prejudicial effect of the evidence outweighed any probative

 2 value. The court further reasoned that evidence of Victim’s first child was not clearly

 3 presented as relevant to the case. However, the court ruled that evidence of Victim’s

 4 second child, who was allegedly fathered by Guthrie, was admissible. The district

 5 court further clarified that Guthrie would have certainly been allowed to present his

 6 mistake of fact defense had the case proceeded to trial and that its ruling only affected

 7 a portion of that defense.

 8        Guthrie subsequently entered a plea agreement and reserved his right to appeal

 9 the district court’s ruling on the State’s motion in limine. The district court entered

10 a written order granting the State’s motion to exclude evidence of Victim’s past sexual

11 conduct, and Guthrie appealed.

12 DISCUSSION

13        On appeal, Guthrie argues the district court erred in excluding evidence that

14 Victim had a ten-month-old child at the time the alleged acts occurred because the

15 evidence was relevant to Guthrie’s mistake of fact defense, and the probative value

16 of the evidence outweighed its prejudicial impact. Additionally, Guthrie argues that

17 the district court’s order excluding evidence of Victim’s first child denied Guthrie his

18 right to present a defense.

19 Standard of Review


                                               4
 1        “A district court’s decision to exclude evidence of a victim’s prior sexual

 2 conduct is reviewed for abuse of discretion.” State v. Stephen F., 2008-NMSC-037,

 3 ¶ 8, 144 N.M. 360, 188 P.3d 84. “We cannot say the [district] court abused its

 4 discretion by its ruling unless we can characterize it as clearly untenable or not

 5 justified by reason.” State v. Casillas, 2009-NMCA-034, ¶ 24, 145 N.M. 783, 205

 6 P.3d 830 (internal quotation marks and citation omitted). We will not reverse a

 7 district court’s determination regarding the admissibility of evidence absent a clear

 8 abuse of discretion. State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964

 9 P.2d 72.

10 Exclusion of Past Sexual Conduct

11        Rule 11-413(A) provides that “evidence of the victim’s past sexual conduct,

12 opinion evidence thereof or of reputation for past sexual conduct shall not be admitted

13 unless, and only to the extent,” that the district court makes the following findings:

14 (1) “evidence of the victim’s past sexual conduct is material and relevant to the case,”

15 and (2) “its inflammatory or prejudicial nature does not outweigh its probative value.”

16 Rule 11-413(A); see § 30-9-16(A). Our Supreme Court has suggested the following

17 five factors to assist the district court in determining the admissibility of a victim’s

18 past sexual conduct:

19        (1) whether there is a clear showing that the complainant committed
20        the prior acts;

                                              5
 1        (2) whether the circumstances of the prior acts closely resemble those
 2        of the present case;

 3        (3) whether the prior acts are clearly relevant to a material issue, such
 4        as identity, intent, or bias;

 5        (4) whether the evidence is necessary to the defendant’s case; and

 6        (5) whether the probative value of the evidence outweighs its
 7        prejudicial effect.

 8 Stephen F., 2008-NMSC-037, ¶ 8 (internal quotation marks and citation omitted).

 9 However, our Supreme Court clarified that in adopting the five factors, it “did not

10 intend to limit the [district] courts in the exercise of discretion under the rule and

11 statute, but rather to suggest a possible framework for exercising that discretion.” Id.

12 (internal quotation marks and citation omitted). Furthermore, the district court must

13 determine the admissibility of past sexual conduct under Rule 11-413 on a case-by-

14 case basis. State v. Payton, 2007-NMCA-110, ¶ 7, 142 N.M. 385, 165 P.3d 1161.

15        Initially, we note that Guthrie does not provide argument and authority on

16 appeal that the existence of a child does not constitute “sexual conduct” under Rule

17 11-413(A) and Section 30-9-16(A) or that our rape shield law is inapplicable. Instead,

18 Guthrie analyzes whether evidence of Victim’s child is admissible pursuant to Rule

19 11-413(A) and Section 30-9-16(A). This Court will not address issues unsupported

20 by argument and authority. State v. Torres, 2005-NMCA-070, ¶ 34, 137 N.M. 607,

21 113 P.3d 877. Accordingly, we do not address whether the district court erred in

                                              6
 1 concluding that the existence of a child constitutes evidence of sexual conduct under

 2 Rule 11-413(A) and Section 30-9-16(A).

 3        Guthrie argues that he satisfied each of the five factors for weighing the

 4 admissibility of sexual conduct. See Stephen F., 2008-NMSC-037, ¶ 8. In analyzing

 5 the first two factors, Guthrie argues that the existence of Victim’s first child

 6 establishes both that Victim committed the prior act and that the circumstances of the

 7 prior act closely resemble those of the present case. The State does not dispute that

 8 the first factor was satisfied, and we agree that the existence of Victim’s child

 9 established that Victim committed the prior act. However, Guthrie’s only argument

10 as to whether the circumstances resulting in the existence of Victim’s first child

11 closely resemble those of the present case was that a child resulted from both the prior

12 and presently charged acts. Furthermore, the parties have not presented any additional

13 argument or evidence regarding the similarity of the two acts. Consequently, we

14 conclude that the circumstances resulting in Victim’s first child are not relevant to

15 Guthrie’s defense that he believed that Victim was seventeen years old based in part

16 on the fact that she had a child. As a result, the second factor does not apply in this

17 case. See id. ¶ 12 (concluding that the second factor did not apply where the

18 circumstances underlying the prior act were irrelevant to the defendant’s theory).

19        Regarding the third factor, Guthrie contends that the existence of Victim’s first


                                              7
 1 child is relevant and material to the element of intent. Specifically, Guthrie argues

 2 that the existence of Victim’s first child supported Guthrie’s defense that he

 3 reasonably believed that Victim was seventeen years old and of legal age to engage

 4 in sexual relations. Guthrie further contends that the existence of Victim’s child made

 5 it more probable that Victim’s claim that she was seventeen years old was true. See

 6 Rule 11-401 NMRA (defining relevant evidence as “evidence having any tendency

 7 to make the existence of any fact that is of consequence to the determination of the

 8 action more probable or less probable than it would be without the evidence”). The

 9 State asserts, however, that even under the common law rule, our Supreme Court

10 viewed a minor victim’s prior sexual activity as immaterial in statutory rape

11 proceedings. See State v. Armijo, 64 N.M. 431, 432, 329 P.2d 785, 785 (1958)

12 (stating that the previous chastity of the alleged victim is ordinarily immaterial in

13 statutory rape proceedings). The State further contends that the only requirement for

14 having a child is sexual maturity and that a person may be under the age of sixteen

15 years old and still have a child.

16        “It is within the discretion of the [district] court to evaluate the relevance of

17 evidence.” State v. Duffy, 1998-NMSC-014, ¶ 31, 126 N.M. 132, 967 P.2d 807,

18 modified on other grounds by State v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M.

19 185, 152 P.3d 828. Furthermore, the defendant bears the burden under Rule 11-


                                              8
 1 413(A) of “establish[ing] a valid theory of relevance and . . . support[ing] that theory

 2 with adequate facts showing a nexus between his proffered evidence and his theory.”

 3 Stephen F., 2008-NMSC-037, ¶ 36. The district court specifically requested that

 4 Guthrie explain the nexus between the existence of Victim’s child and his mistake of

 5 fact defense. In response, Guthrie asserted that he believed Victim’s claim that she

 6 was seventeen years old based in part upon the existence of her ten-month-old child,

 7 but he did not provide additional facts or argument to explain the nexus between the

 8 evidence and his theory. As a result, we conclude that the district court did not abuse

 9 its discretion in concluding that Guthrie failed to clearly demonstrate the relevance of

10 the existence of Victim’s first child to his defense that he reasonably believed that

11 Victim was seventeen years old, rather than sixteen years old or younger.

12        Regarding the fourth factor, Guthrie argues that the existence of Victim’s first

13 child was necessary to his mistake of fact defense. We disagree. Guthrie argued

14 below that based upon his pretrial interviews, Victim would have testified at trial that

15 she told Guthrie and several other people that she was seventeen years old. Guthrie

16 further asserted that he would have testified that he believed that Victim was of legal

17 age to engage in sexual intercourse based upon Victim’s attitude, demeanor, and

18 actions; Victim’s statement to Guthrie that she was seventeen; Victim’s statements to

19 other specifically identified persons that she was seventeen; and the existence of her


                                              9
 1 ten-month-old child. Furthermore, the district court reasoned that its ruling only

 2 affected a portion of Guthrie’s mistake of fact defense and that Guthrie would have

 3 still been permitted to present other evidence supporting his mistake of fact defense

 4 had the case proceeded to trial. Based upon the availability of additional evidence in

 5 support of Guthrie’s mistake of fact defense, we conclude that the district court did

 6 not abuse its discretion in determining that the existence of Victim’s first child was

 7 not necessary to Guthrie’s defense.

 8        Finally, Guthrie argues that the inflammatory or prejudicial nature of the

 9 evidence of Victim’s first child does not outweigh its probative value. “Determining

10 whether the prejudicial impact of evidence outweighs its probative value is left to the

11 discretion of the [district] court.” State v. Rojo, 1999-NMSC-001, ¶ 48, 126 N.M.

12 438, 971 P.2d 829 (alteration omitted) (internal quotation marks and citation omitted).

13 The district court has discretion to limit or exclude testimony regarding a victim’s past

14 sexual conduct “if the cross-examination is cumulative or only marginally relevant,

15 or to protect against certain legitimate concerns, such as undue harassment, prejudice,

16 or confusion of the issues[.]” Stephen F., 2008-NMSC-037, ¶ 27 (internal quotation

17 marks and citation omitted). However, the court’s restriction on the testimony must

18 not be arbitrary or a disproportionate balancing between a defendant’s constitutional

19 right of confrontation and the purposes of Rule 11-403(A) and Section 30-9-16(A) in


                                              10
 1 protecting victims from unwarranted intrusions on privacy. See Stephen F., 2008-

 2 NMSC-037, ¶¶ 1, 27.

 3        Given Guthrie’s failure to clearly demonstrate the relevance of the evidence of

 4 Victim’s first child, the availability of additional evidence supporting Guthrie’s

 5 mistake of fact defense, and the State’s concern that the evidence would inflame the

 6 jury against Victim by showing a propensity toward bad conduct and sexual

 7 promiscuity, we conclude that the district court did not abuse its discretion in

 8 determining that the evidence of Victim’s first child was more prejudicial than

 9 probative. Under these circumstances, we cannot say that the district court’s decision

10 was arbitrary or a disproportionate balancing of the competing interests between

11 Guthrie’s constitutional right to confront the witnesses against him and the State’s

12 interest in protecting Victim from unwarranted intrusions on her privacy pursuant to

13 Rule 11-413(A) and Section 30-9-16(A). See Stephen F., 2008-NMSC-037, ¶¶ 1, 27.

14 As a result, we affirm the district court’s motion in limine to exclude evidence of

15 Victim’s first child pursuant to Rule 11-413(A) and Section 30-9-16(A).

16 Right to Present a Defense

17        Guthrie asserts that the district court’s exclusion of evidence regarding Victim’s

18 first child denied him the right to present a mistake of fact defense. Guthrie relies

19 upon State v. Lucero to argue that “a defendant is entitled to have his or her theory of


                                              11
 1 the case submitted to the jury under proper instructions where the evidence supports

 2 it.” 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143 (alteration omitted) (internal

 3 quotation marks and citation omitted). Specifically, Guthrie contends that the

 4 question of whether his mistake of fact was reasonable should have been a question

 5 for the jury.

 6        We conclude that Guthrie’s argument is not supported by the record. The

 7 district court clarified that Guthrie would have been allowed to present his mistake of

 8 fact defense had the case proceeded to trial and further clarified that its ruling only

 9 affected a portion of that defense. However, because Guthrie entered into a plea

10 agreement, the district court did not issue a jury instruction regarding Guthrie’s

11 mistake of fact defense. As a result, we conclude that the district court did not deny

12 Guthrie the right to present a mistake of fact defense.

13 CONCLUSION

14        For the foregoing reasons, we affirm the district court’s order granting the

15 State’s motion in limine to exclude evidence of Victim’s past sexual conduct.

16        IT IS SO ORDERED.


17                                                ______________________________
18                                                TIMOTHY L. GARCIA, Judge




                                             12
1 WE CONCUR:



2 _________________________________
3 CYNTHIA A. FRY, Judge



4 _________________________________
5 RODERICK T. KENNEDY, Judge




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