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

 2 LEON ALFORD and
 3 SANDRA ALFORD,

 4          Petitioners-Appellants,

 5 v.                                                                    NO. A-1-CA-35652

 6 D. CHIPMAN VENIE d/b/a
 7 FREEDOM LAW CENTER,

 8          Respondent-Appellee.

 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 Carl J. Butkus, District Judge

11 Grayson Law Office, LLC
12 Brian G. Grayson
13 Albuquerque, NM

14 for Appellants

15 D. Chipman Venie
16 Rio Rancho, NM

17 Pro Se Appellee

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   This appeal, a fee dispute between D. Chipman Venie and Leon and Sandra

 2 Alford (Mr. and Mrs. Alford, collectively, the Alfords), stems from a contract for legal

 3 services rendered by Venie who was representing Mr. Alford in a criminal matter. The

 4 jury returned a verdict in favor of Venie. On appeal, the Alfords argue that the district

 5 court abused its discretion by admitting testimony concerning the nature of the

 6 criminal charges, Mr. Alford’s purported commission and admission to them, and

 7 Mrs. Alford’s fraudulent complicity in the alleged crimes. We address the Alfords’

 8 evidentiary claim and reverse.

 9 BACKGROUND

10   {2}   In response to the Alfords’ petition for accounting of money, services, property,

11 and other assets, Venie filed an answer and counterclaim for breach of contract and

12 quantum meruit, all related to his legal representation of Mr. Alford in the criminal

13 cases. Venie described the case as a “garden-variety fee dispute.” Subsequent to the

14 Alfords’ filing of their petition and withdrawal of their counsel, the Alfords proceeded

15 pro se. Prior to trial on the fee dispute, the district court dismissed the Alfords’

16 petition but allowed Venie’s counterclaim to proceed to trial.

17   {3}   Before commencement of the jury trial on the contract dispute, the Alfords filed

18 a motion in limine seeking to prevent Venie from revealing “the nature of the criminal




                                               2
 1 charges against [Mr.] Alford that . . . Venie defended [Mr. Alford] on.” The motion

 2 further stated:

 3         1.     [Mr. Alford] was acquitted by a jury of all wrong-doing;

 4         2.     That the nature of the charges against [Mr. Alford], from which he
 5                was completely exonerated, are such that they would prejudice the
 6                jury against him;

 7         3.     The issues in this case are simply that . . . Venie has been paid in
 8                full pursuant to a [f]ee [a]greement and that he is entitled to no
 9                additional money from [the Alfords];

10         4.     The charges which . . . Venie defended [Mr.] Alford on are not an
11                issue in this case[;]

12         5.     The [Alfords] have made no claim that . . . Venie did not perform
13                his job as defense counsel.

14                WHEREFORE [the Alfords] would respectfully request that
15         . . . Venie be instructed by the Court not to mention the nature of the
16         charges to the jury, including in all aspects of the trial such as voir dire,
17         opening, testimony or closing.

18   {4}   The district court orally ruled on the motion in limine prior to voir dire. In

19 granting the motion, the district court addressed Venie’s assertion that the nature of

20 the crimes and Mr. Alford’s culpable admissions to him were admissible in the fee

21 dispute: “I’m still not convinced that it’s relevant, and plus I’ve got concerns on the

22 prejudice aspect.” The district court further stated, “I’ve made a ruling that [Venie’s]

23 not going to go into it, and he isn’t going to go into it anyway in the voir dire. I mean,

24 I don’t want [the criminal allegations] argued on the merits. . . . [I]f we get to the point


                                                3
 1 where . . . Venie wants to let it in—because, I mean, even if he wants to let it in, I

 2 want to hear the foundation testimony before we get there.”

 3   {5}   During opening statements Venie stated, “That’s [Mr.] Alford, child molester,

 4 sex predator. That’s his wife, [Mrs. Alford, who] covered up for him for 50 years.”

 5 Venie further stated that Mr. Alford’s daughter believed him to be a “child molester”

 6 and listed the crimes that Mr. Alford had been charged with. “[T]hey hired me to

 7 defend [Mr.] Alford in an incest case, . . . [for] having sex with [his] own

 8 granddaughter[.]” Venie stated that Mr. Alford “tried to kill witnesses” and that he

 9 “choked” Mrs. Alford when she “brought up his sexual predations” for “what he had

10 done to her granddaughter.” Venie also stated that he represented Mr. Alford for

11 “forcible rape, forcible sodomy on children, [and] kidnapping[.]” Concerned that

12 Venie had placed an “awful lot of emphasis on guilt[,]” the district court cautioned

13 Venie that he did not “want to declare a mistrial in [the] case.”

14   {6}   Prior to Venie calling his first witness, Mrs. Alford, the district court again

15 cautioned Venie that he had not changed his prior ruling and that he would not allow

16 him to go into details “related to the admission [of Mr. Alford to Venie of his guilt]

17 at this point.” Venie inquired of Mrs. Alford if there were “[t]hree counts of having

18 sex with your granddaughter,” and “[i]ncest with your granddaughter[?]” Despite the

19 district court’s warning relative to Mr. Alford’s attorney-client statement to Venie, he



                                              4
 1 asked the following question: “To your knowledge, did [Mr.] Alford ever tell me that

 2 he had raped your granddaughter? Because that’s the truth. So to your knowledge, did

 3 [Mr.] Alford ever tell me . . . that he raped your granddaughter?” At the immediate

 4 bench conference that followed, the district court stated, “This is asking for me to

 5 declare a mistrial. . . . [Y]ou are still getting it out—was there . . . an admission

 6 to . . . committing a crime or crimes[?] . . . I think that coming in . . . is very

 7 prejudicial[.]” The district court then cautioned Venie that this was a contract case.

 8   {7}   Prior to Venie calling Mr. Alford as a witness, the district court cautioned:

 9 “[H]ere’s what we’re going to do: I have made the orders, and I don’t want . . . a

10 bunch of questioning that does refer to them as child molester[s.] . . . Because we are

11 talking about breach of contract . . . and I want to stay focused on the contract[.] . . . I

12 don’t want references to child molester . . . and I don’t want it done in an inferential

13 manner either[.]” Further, the district court cautioned, “I don’t want this to degenerate

14 into name calling and . . . going beyond the pale on this whole issue of molestation,

15 because it really doesn’t have much to do with the issues we’ve got in front of us

16 which is, was there a contract . . . or not[.]” In emphasis, the district court stated: “And

17 from the other side, . . . Venie, please stay away, you know, from being a child

18 molester and all that sort of thing.”




                                                5
 1   {8}   On direct examination of his former client, Mr. Alford, Venie asked the

 2 following question: “So did you admit your crimes to me or deny them?” To which

 3 Mr. Alford responded, “I admitted them to you.” The district court held an immediate

 4 bench conference. The colloquy from the district court—directed to Venie—began

 5 with, “What are we doing?” Responding to Venie’s argument that he did not refer to

 6 the crimes by name, again the district court admonished: “I think I stated . . . a number

 7 of times on the record so far that I think going into that has a potential—I have some

 8 questions about relevance for one thing, but beyond that, going into that has the

 9 potential to be unduly prejudicial. . . . I really don’t think that is part of this case,

10 which is essentially a breach of contract case.” After stating its concern—“that . . . the

11 horse is out of the barn”—and finding that the question and answer were unduly

12 prejudicial under Rule 11-403 NMRA, the district court directed the jury to “disregard

13 the last question and answer[.]”

14   {9}   Venie called himself to testify. After discussing many of the contract terms and

15 documents, Venie again revealed that he had represented Mr. Alford on the “types of

16 crimes” that are “the worst thing you can be accused of.” After excusing the jury, the

17 district court again cautioned Venie to stay away from testimony that inferred that Mr.

18 Alford committed the crimes for which he had been charged: “[I]t’s unduly

19 prejudicial[.] . . . I don’t want to put that in there because, frankly, I think it would be



                                                6
 1 almost reversible error to let it come in.” Continuing his testimony, Venie commented

 2 to the jury on the propriety of his revealing client confidences: “When you’re an

 3 attorney, you’re not really supposed to reveal their confidences and that sort of thing.”

 4 In stopping the testimony, the district court stated that this “area” is not to be argued

 5 before the jury. However, on Venie’s cross-examination by Mrs. Alford, Venie again

 6 responded that he had represented Mr. Alford on “three incest counts.”

 7   {10}   In closing argument Venie emphasized that he had represented Mr. Alford for

 8 three years on two separate cases covering “dozens of felonies, and we heard what

 9 they are.” Venie characterized Mr. Alford’s testimony as “lies out of a criminal’s

10 mouth” and “[a] lying criminal sits over there and asks you to help them.” Venie also

11 stated that Mr. Alford had “sued his granddaughter, the victim[,]” and that Mrs. Alford

12 “had covered up for 50 years for him,” and Mrs. Alford “didn’t cry when she found

13 out what happened to the granddaughter[.]”

14 DISCUSSION

15   {11}   On appeal, we must determine whether the district court abused its discretion

16 under Rule 11-403 by allowing Plaintiff to repeatedly discuss the subject matter that

17 it previously excluded when it granted the Alfords’ motion in limine. We review the

18 district court’s decision to admit or exclude testimony for an abuse of discretion. See

19 Behrmann v. Phototron Corp., 1990-NMSC-073, ¶ 17, 110 N.M. 323, 795 P.2d 1015



                                               7
 1 (explaining that the district court has “a great deal of discretion in admitting or

 2 excluding evidence, and we will reverse the [district] court only when it is clear that

 3 the court has abused its discretion”). “An abuse of discretion occurs when the ruling

 4 is clearly against the logic and effect of the facts and circumstances of the case.”

 5 Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999

 6 (internal quotation marks and citation omitted). In balancing the probative value and

 7 the unfair prejudice of the evidence, an abuse of discretion occurs where the district

 8 court’s decision “is contrary to logic and reason.” Davila v. Bodelson, 1985-NMCA-

 9 072, ¶ 12, 103 N.M. 243, 704 P.2d 1119. Based on the record before us, we conclude

10 that the probative value of the evidence was substantially outweighed by a danger of

11 unfair prejudice, and it should have been excluded.

12   {12}   Evidence is unfairly prejudicial “if it is best characterized as sensational or

13 shocking, provoking anger, inflaming passions, or arousing overwhelmingly

14 sympathetic reactions, or provoking hostility or revulsion or punitive impulses, or

15 appealing entirely to emotion against reason.” State v. Stanley, 2001-NMSC-037, ¶ 17,

16 131 N.M. 368, 37 P.3d 85 (internal quotation marks and citation omitted). To be

17 excluded under Rule 11-403, the evidence must not only be prejudicial, it must be

18 unfairly so, which means that it has a “tendency to suggest decision on an improper




                                               8
 1 basis, commonly, though not necessarily, an emotional one.” Stanley, 2001-NMSC-

 2 037, ¶ 17 (internal quotation marks and citation omitted).

 3   {13}   The district court admonished Venie multiple times regarding the subject matter

 4 and effect of the introduction of such inflammatory evidence. In granting the Alfords’

 5 motion in limine, the district court properly executed its role as a gatekeeper and

 6 balanced the relevance of the inflammatory evidence against its probative value in a

 7 contract dispute. See State v. Pickett, 2009-NMCA-077, ¶ 13, 146 N.M. 655, 213 P.3d

 8 805 (discussing the role of the district court to act as “a gatekeeper to insulate the jury

 9 from prejudice and confusion”). Nonetheless, Venie persisted with his virulent

10 statements regarding the sexual content of the prior criminal charges against Mr.

11 Alford, his purported guilt, and Mrs. Alford’s alleged coverup. Despite the district

12 court’s ruling on the motion in limine, Venie continued his attack, to which the district

13 cautioned against the “emphasis on guilt,” stated that it did not “want to declare a

14 mistrial,” and noted that the evidence was irrelevant and unduly prejudicial—“the

15 horse is out of the barn” and that “it would be . . . reversible error to let it come in.”

16 Undeterred by the district court’s admonishments Venie continued his improper trial

17 strategy throughout trial and closing argument.

18   {14}   Our review of the record reveals the district court’s concerns that the multiple

19 references to the improper evidence was highly prejudicial, and we agree. “Evidence



                                                9
 1 should be excluded if it is calculated to arouse the prejudices and passions of the jury

 2 and is not reasonably relevant to the issues of the case.” State v. Chamberlain, 1991-

 3 NMSC-094, ¶ 9, 112 N.M. 723, 819 P.2d 673 (alteration, internal quotation marks,

 4 and citation omitted). The key part of Venie’s trial strategy in this breach of contract

 5 case was to portray Mr. Alford, his former client, as a child molester and sexual

 6 predator and that Mrs. Alford covered up these facts for 50 years. Venie executed this

 7 strategy in his opening statement, cross examination, and closing statement. In alerting

 8 the jury that Mr. Alford had hired Venie to represent him in criminal matters involving

 9 sex with his own granddaughter, forcible rape, forcible sodomy on children, and

10 kidnapping, on cross examination, Venie secured a confidential attorney-client

11 statement from Mr. Alford that he had admitted these crimes for which he had been

12 acquitted. We conclude that this evidence was unfairly prejudicial. See Stanley, 2001-

13 NMSC-037, ¶ 17 (explaining that the district court should exclude evidence deemed

14 “so extraordinarily inflammatory to the jury that the evidence substantially

15 outweighed its probative value”).

16   {15}   The district court acknowledged that the prejudicial evidence violated Rule 11-

17 403. The dispute concerned a breach of contract; thus, we also agree with the district

18 court’s conclusion that the probative value of the evidence was minimal. Despite

19 directing Venie to stay focused on the contract issues, and to stay away from the



                                              10
 1 nature of the criminal charges and inferences of guilt, nonetheless the jury heard the

 2 inflammatory evidence repeatedly. Concerned about the prejudicial effect on the jury,

 3 the district court stated that the evidence had gone “beyond the pale on this whole

 4 issue of molestation[.]” Yet again, in closing argument the jury heard that Mr. Alford

 5 was a criminal, molested his granddaughter, and Mrs. Alford was ostensibly a co-

 6 conspirator. Venie’s repeated refusal to heed the district court’s admonitions and the

 7 court’s single instruction to the jury to disregard Mr. Alford’s admission of “crimes”

 8 necessarily resulted in unfair prejudice to Mr. Alford.

 9   {16}   Finally, we note that our Supreme Court permanently disbarred Venie for

10 revealing these client confidences and statements of his client’s guilt in the case before

11 us. See In re Venie, 2017-NMSC-018, ¶¶ 23-27, 41, 395 P.3d 516. Although we

12 decline the Alfords’ offer to give preclusive effect to the Supreme Court’s ruling, and

13 instead review for an abuse of discretion, our conclusion regarding unfair prejudice

14 is bolstered by our Supreme Court’s holdings.

15 CONCLUSION

16   {17}   We conclude that the district court abused its discretion in admitting the

17 testimony at issue and therefore reverse.

18   {18}   IT IS SO ORDERED.


19                                                  ______________________________

                                               11
1                                       STEPHEN G. FRENCH, Judge




2 WE CONCUR:


3 ___________________________________
4 LINDA M. VANZI, Chief Judge


5 ___________________________________
6 MICHAEL E. VIGIL, Judge




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