 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                   NO. 27,008

 5 STEPHANIE OSBORNE,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Stephen Bridgforth, District Judge

 9 Gary K. King, Attorney General
10 Ann M. Harvey, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Hugh W. Dangler, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                              MEMORANDUM OPINION

18 FRY, Chief Judge.

19        Defendant was convicted of negligently permitting child abuse stemming from

20 an incident in which her live-in boyfriend applied duct tape to her son, R.O., and left

21 him tied up for nearly an hour. At trial, Defendant sought to introduce evidence that

22 R.O. had gotten into trouble on numerous occasions and that he therefore had a

23 motivation to lie so that he would be removed from his mother’s home and sent to live
 1 with his aunt and uncle. The district court excluded this evidence. On appeal,

 2 Defendant argues that the district court erred by excluding this evidence and by

 3 refusing to grant a mistrial when the prosecutor commented on Defendant’s inability

 4 to show that R.O. had any motive to lie during closing arguments. For the following

 5 reasons, we affirm the district court.

 6 BACKGROUND

 7        This case arose from an incident of child abuse perpetrated against R.O. by

 8 Defendant’s boyfriend. In September 2005, Defendant’s boyfriend applied duct tape

 9 to R.O. at their home in Doña Ana County. According to R.O., he had been grounded

10 for some trouble he had at school and he was not supposed to leave his room. After

11 disregarding his punishment and leaving his room on four separate occasions, R.O.

12 testified that his mother’s boyfriend came into R.O.’s room and applied duct tape to

13 R.O.’s hands, ankles, wrists, eyes and mouth. According to R.O., he was unable to

14 free himself for approximately fifty minutes and lay on the floor trying to free himself

15 and get up. After the thirty to fifty-minute period had passed, the boyfriend returned

16 to the room and removed the duct tape from R.O.’s eyes. R.O. was then able to hop

17 out to the kitchen, where he saw his mother making coffee. According to R.O., he

18 was crying at the time and tried to communicate with his mother to help him get free




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 1 but she simply looked at him and walked away. R.O. was eventually able to free

 2 himself and then proceeded to clean tape residue from his body.

 3        According to Defendant’s testimony and that of her boyfriend, R.O. was not

 4 being punished. Instead, there was testimony that R.O. frequently liked to play a

 5 game in which he would ask to be tied up in order to see how long it took him to get

 6 free. According to Defendant, on the day in question, R.O. was bound only at his

 7 wrists and he was not distressed or upset by the incident. Defendant’s story is

 8 consistent with a version of the events that R.O. told to his biological father on the day

 9 of the incident. However, after R.O. spoke to his father and the deputy, R.O. spoke

10 to Officer Chavez, whom he informed that he had been tied up as punishment and in

11 the manner he described at trial.

12        Prior to the trial, the State filed a motion in limine to exclude evidence of

13 specific incidents of R.O.’s misconduct that led to his being grounded. According to

14 Defendant, the evidence was admissible because it tended to show that R.O. had a

15 motivation to lie because he frequently got into trouble, he did not like the punishment

16 he received at home, and he wanted to be removed from his home so he could live at

17 his aunt’s house where he would not be punished as harshly. The court granted the

18 State’s motion, ruling that evidence of specific instances of misconduct were

19 inadmissible, but it allowed Defendant to introduce evidence that R.O. was a difficult


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 1 child who was routinely disciplined. The court also ruled that the defense could

 2 question R.O. about any motivation he had to lie. The court informed Defendant that

 3 it would reconsider its ruling during trial if Defendant so requested. Defendant never

 4 asked the court to reconsider its motion, nor did Defendant directly ask R.O. about any

 5 motivation he may have had to lie. Following her conviction, Defendant filed this

 6 appeal.

 7 DISCUSSION

 8 Evidence of Victim’s Prior Bad Acts is Inadmissible

 9         The specific bad acts that Defendant sought to introduce consisted of testimony

10 that R.O. had brought a knife to school, had tried to burn his house down, had broken

11 a neighbor’s windows, had verbally abused his teachers, had gotten into fights at

12 school, and was generally a troubled child. Defendant argues that the district court

13 abused its discretion in ruling that this evidence was inadmissible and that this error

14 prevented Defendant from presenting her defense to the jury and denied her the right

15 to a fair trial.

16         As a general rule, the “[a]dmission of evidence is entrusted to the discretion of

17 the [district] court, and rulings of the [district] judge will not be disturbed absent a

18 clear abuse of discretion.” State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250

19 (1984). With respect to the admission of evidence of prior bad acts of the victim of


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 1 a crime, “an abuse of discretion may be found only if the exclusion of the evidence

 2 precluded the criminal defendant from proving an element of his defense.” State v.

 3 Baca, 114 N.M. 668, 672, 845 P.2d 762, 766 (1992).

 4        Defendant argues that evidence of R.O.’s prior bad acts was admissible under

 5 Rule 11-404(B) NMRA, which provides that while “[e]vidence of other crimes,

 6 wrongs or acts is not admissible to prove the character of a person in order to show

 7 action in conformity therewith,” such evidence may “be admissible for other purposes,

 8 such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or

 9 absence of mistake or accident.” Defendant argues that R.O.’s prior bad acts fall

10 within the motive exception to Rule 11-404(B) because the bad acts show that R.O.

11 had a motive to lie about what had happened so that he could be removed from his

12 home. Defendant’s reliance on this rule is misplaced.

13        The motive exception in Rule 11-404(B) is intended to allow evidence of a

14 defendant’s prior bad acts to be admitted to show that the defendant had a motive to

15 commit a crime, not, as Defendant argues, to show that a witness has a motive to lie.

16 See State v. Allen, 2000-NMSC-002, ¶ 41, 128 N.M. 482, 994 P.2d 728 (filed 1999)

17 (holding that evidence of a defendants prior bad acts was admissible because it

18 showed that he had a motive to murder his victim so that she could not report the

19 crime). Where, as here, the motive to be shown is a motive to lie, not a motive to


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 1 commit a crime, Rule 11-404(B) is inapplicable. The evidence is being used to attack

 2 the credibility of the witness and is therefore governed by Rule 11-608 NMRA. State

 3 v. Lovato, 91 N.M. 712, 715, 580 P.2d 138, 141 (Ct. App. 1978) (noting that

 4 “evidence of character and conduct attacking the credibility of [a] witness” is

 5 governed by Rule 11-608, not Rule 11-404).

 6        Rule 11-608 specifically precludes the admission of extrinsic evidence for the

 7 purpose of attacking or supporting a witness’s character for untruthfulness. Rule 11-

 8 608(B). Specific instances of conduct may be inquired into on cross examination if

 9 the conduct concerns the witness’s character for truthfulness, but extrinsic evidence

10 cannot be brought in to prove the conduct. Id. Thus, under Rule 11-608, Defendant

11 could have inquired about R.O.’s prior bad acts during R.O.’s cross examination, but

12 only if the bad acts reflected on R.O.’s character for truthfulness or untruthfulness.

13 Id.

14        The evidence that R.O. had attempted to burn his house down, had taken a knife

15 to school, had broken windows, and had fought with classmates and teachers did not

16 have any direct bearing on his character for truthfulness. None of the bad acts

17 Defendant sought to introduce involved dishonesty, and thus they do not fall within

18 the scope of Rule 11-608(B). See State v. Miller, 92 N.M. 520, 522, 590 P.2d 1175,

19 1177 (1979) (holding that evidence that the defendant had hired a person to kill


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 1 someone did not concern the defendant’s character for truthfulness and did not fall

 2 within the scope of Rule 11-608, but that questions concerning buying stolen property,

 3 selling illegal drugs, and failing to account for the proceeds of a sale did have a

 4 bearing on credibility since they were crimes of dishonesty). Thus, Defendant could

 5 not properly inquire about R.O.’s bad acts during cross examination because they had

 6 no bearing on his character for truthfulness.

 7        While it is clear that the evidence of R.O.’s prior bad acts was inadmissible

 8 under Rules 11-404 and 11-608, Defendant argues that the evidence was admissible

 9 because it showed that he had a motivation to lie, which is a form of bias. To reach

10 this conclusion, Defendant argues that evidence of R.O.’s specific bad acts would

11 have allowed Defendant to show that R.O. disliked the punishment he received from

12 his mother for the bad acts and was not punished by his aunt for the same conduct.

13 According to Defendant, this would have shown that R.O. lied about the duct tape

14 incident so that he could be removed from his mother’s home and placed with his

15 aunt. Thus, Defendant argues, the evidence of R.O.’s bad acts would have showed

16 that R.O. had a motivation to fabricate his story and would have impeached R.O.’s

17 testimony by showing that he was a biased witness. Defendant argues that the district

18 court’s exclusion that the evidence precluded her from presenting this defense and

19 “prevented the jury from doing its job.” We disagree.


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 1        Generally, a witness can be impeached by extrinsic evidence showing that a

 2 witness may have a bias, and evidence of prior bad acts could conceivably

 3 demonstrate that a witness has a bias or a motivation to lie. See State v. White, 58

 4 N.M. 324, 333, 270 P.2d 727, 733 (1954) (noting that evidence showing bias or

 5 interest is never excluded on the ground of being collateral). Evidence of R.O.’s prior

 6 bad conduct, however, did not in and of itself demonstrate bias.

 7        Furthermore, the district court’s ruling did not preclude Defendant from putting

 8 forth the defense that R.O. had a motive to lie because he preferred to live with his

 9 aunt and uncle. In fact, when the district court ruled that evidence of R.O.’s specific

10 conduct was inadmissible, the district court advised Defendant’s counsel that “[y]our

11 client may present evidence that the child was a difficult child . . . that they routinely

12 disciplined him by placing him in his room,” and that “he didn’t like it and didn’t react

13 to it well.” With respect to the issue of R.O.’s having fabricated his story, the court

14 advised counsel that “you certainly may ask the child if he fabricated it, and if he did

15 so to live with the” aunt and uncle and that “you could ask if [R.O.] is in any way

16 continuing a false story because he likes it at his aunt and uncle’s.” Finally, the court,

17 referring to the alleged fabrication of the story, advised that “[w]hen we get to that

18 point in time, if you want to approach the bench and ask me to reconsider in light of

19 what we’ve heard from the witness stand, I’ll certainly reconsider it.”


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 1        Thus, while the court ruled that R.O.’s prior bad acts were inadmissible, the

 2 court did not preclude Defendant from asserting that R.O. had fabricated the duct tape

 3 story because he preferred to live with his aunt and uncle. In fact, the court left

 4 Defendant with wide latitude to elicit testimony from R.O. that he had fabricated the

 5 story so that he could live with his aunt and uncle because he disliked the way his

 6 mother punished him. While the court precluded Defendant from eliciting the specific

 7 bad acts that had resulted in R.O.’s punishments, the court did not prevent Defendant

 8 from asking R.O. if he had been punished frequently, how he felt about the

 9 punishments, and if he wanted to live with his aunt and uncle to avoid being punished.

10 That Defendant’s counsel did not take the opportunity to question R.O. about his

11 motivation to lie is not an error of the court and is not grounds for reversal. Because

12 evidence of prior bad acts is inadmissible under Rules 11-404 and 11-608, and

13 because the district court’s ruling did not preclude Defendant from presenting her

14 defense to the jury, we cannot conclude that the district court abused its discretion in

15 excluding the evidence of R.O.’s misconduct.

16 Prosecutorial Misconduct

17        Defendant next argues that the district court abused its discretion by refusing

18 to declare a mistrial when the prosecutor commented on Defendant’s failure to show

19 that R.O. had any motive to fabricate his story. During closing arguments, the


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 1 prosecutor argued on three occasions that there was no motive for R.O. to lie. First,

 2 the prosecutor noted that “[f]or some crazy unknown reason, this 11-year-old boy . .

 3 . started telling a lie. . . . Why he ended up turning on them in the first place, nobody

 4 knows.” Next, the prosecutor started to argue that “[a]s for motive for [R.O.]—again,

 5 what’s [R.O.’s] motive to turn on his—” before being cut off by an objection and

 6 motion for mistrial from the defense. Finally, after the court overruled Defendant’s

 7 objection, the prosecutor argued that “nobody is offering a motive for why [R.O.], in

 8 the first place, changed his story and started saying, Hey, this is what really

 9 happened.”     Defendant argues that these comments amount to prosecutorial

10 misconduct and warrant a new trial. We disagree.

11         We review the denial of a motion for mistrial based on prosecutorial

12 misconduct for an abuse of discretion. State v. Gonzales, 2000-NMSC-028, ¶ 35, 129

13 N.M. 556, 11 P.3d 131. The district court abuses its discretion in denying a motion

14 for mistrial “when the ruling is clearly against the logic and effect of the facts and

15 circumstances of the case.” State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092,

16 1096 (1983), abrogated by State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d

17 1003.

18         Generally, a prosecutor has wide latitude during closing arguments, State v.

19 Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254, and may comment on the


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 1 evidence and discuss inferences that can be drawn from the evidence. State v.

 2 Hernandez, 104 N.M. 268, 275, 720 P.2d 303, 310 (Ct. App. 1986). Despite this wide

 3 latitude, the prosecution engages in misconduct when it makes improper comments

 4 that have “such a persuasive and prejudicial effect on the jury’s verdict that the

 5 defendant [is] deprived of a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126

 6 N.M. 132, 967 P.2d 807. In order to be deemed proper, the prosecution’s comments

 7 “must be based upon the evidence or be in response to the defendant’s argument.”

 8 Smith, 2001-NMSC-004, ¶ 38.

 9        In order for us to determine whether prosecutorial misconduct requires a new

10 trial, there must first actually be prosecutorial misconduct. See Duffy, 1998-NMSC-

11 014, ¶ 46 (noting that determination of the issue “rests on whether the prosecutor’s

12 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the

13 defendant was deprived of a fair trial”). Defendant argues that the prosecution was

14 prohibited from first preventing Defendant’s presentation of her defense to the jury

15 and then commenting on Defendant’s lack of a defense. As discussed above,

16 however, Defendant was not prevented from presenting her defense to the jury; she

17 was prevented only from presenting certain inadmissible evidence to the jury

18 regarding R.O.’s bad conduct. Defendant was free to attempt to show that R.O. had

19 a motivation to fabricate his story. Defendant chose not to attempt to elicit such


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 1 testimony from R.O. and instead chose to argue, during closing argument, that R.O.

 2 had fabricated his story. Had the prosecution commented on Defendant’s failure to

 3 show what R.O. had been punished for, then we would be presented with an entirely

 4 different question. However, where, as here, the prosecution did not refer to any of

 5 the excluded evidence, the prosecution did not make any improper statements. In

 6 addition, throughout the trial, Defendant had attacked the credibility of R.O. and had

 7 suggested to the jury that R.O. had fabricated his story. By commenting during

 8 closing on the dearth of evidence suggesting a motive to fabricate, the prosecutor was

 9 properly commenting on arguments Defendant had made and commenting on the

10 evidence introduced at trial. Because the prosecution did not make any improper

11 remarks during closing, we      cannot conclude that the prosecution engaged in

12 prosecutorial misconduct.

13        Because there was no prosecutorial misconduct in this case, the district court

14 did not err in denying Defendant’s request for a mistrial.

15 CONCLUSION

16        For the foregoing reasons, we affirm Defendant’s conviction.

17        IT IS SO ORDERED.



18
19                                         CYNTHIA A. FRY, Chief Judge

                                             12
1 WE CONCUR:



2
3 MICHAEL D. BUSTAMANTE, Judge



4
5 TIMOTHY L. GARCIA, Judge




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