January 12, 2009 – State of New Mexico v. Darrell Casillas, No. 27,194

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: JANUARY 12, 2009

NO. 27,194

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

DARRELL CASILLAS,
Defendant: A ppellant.

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

Gary K. King, Attomey General

Andrew S. Montgomery, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Navin H. Jayaram, Assistant Appellate Defender
Santa Fe, NM

for Appellant

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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 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

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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-

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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 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

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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

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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 does not protect a defendant’s right to an impartial jury. See N.M.

7
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-

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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

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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 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

10
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

11
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 motion to strike the jury pool.

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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

13
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 will not reverse in the absence of a clear abuse.” See State v.

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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

15
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 Victim and the parents of her classmate, and Defendant made no showing that the

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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-

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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

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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
{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

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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

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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
{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

21
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

22
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 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

23
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

24
. . . 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

25
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 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

26
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

27
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 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

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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

29
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.
CYNTHIA A. FRY, Judge
WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

RODERICK T. KENNEDY, J udge

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