July 2, 2020- State of New Mexico v. Fabian Elias Gonzales, No. A-1-CA-37701

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	NO. A-1-CA-37701	4
FABIAN ELIAS GONZALES,	5
Defendant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Charles W. Brown, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
M. Victoria Wilson, Assistant Attorney General	11
Albuquerque, NM	12
for Appellant	13
Aarons Law PC	14
Stephen D. Aarons	15
Hugh W. Dangler	16
Santa Fe, NM	17
for Appellee	18
MEMORANDUM OPINION	19
HANISEE, Chief Judge.	20
{1} 	The State appeals from the district court’s order excluding evidence. In this	21
Court’s notice of proposed disposition, we proposed to summarily affirm. The State	22
Court of Appeals of New Mexico
Filed 7/2/2020 9:34 AM

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filed a memorandum in opposition, which we have duly considered. Remaining	1
unpersuaded, we affirm.	2
{2} 	The State argues in its memorandum in opposition that the district court erred	3
in excluding evidence of Defendant Fabian Gonzales’s drug use, particularly his	4
drug use while in the company of Ms. Jessica Kelly, during the week preceding	5
Child’s death. [MIO 8] As this Court pointed out in its notice of proposed	6
disposition, we review the exclusion of evidence for an abuse of discretion. See State	7
v. Bailey, 2017-NMSC-001, ¶ 12, 386 P.3d 1007. We cannot say that a district court	8
abuses its discretion unless its ruling is “clearly against the logic and effect of the	9
facts and circumstances of the case” and “clearly untenable or not justified by	10
reason.” State v. Otto, 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8 (internal	11
quotation marks and citation omitted).	12
{3} 	The State argues that evidence of Defendant’s drug use should be admitted	13
either as relevant to Defendant’s knowledge of “the [alleged] risk of harm he created	14
by inviting Ms. Kelley to live in the home and care for the child[,]” pursuant to Rule	15
11-404(B) NMRA, or as direct evidence of “the actus reus of child abuse by reckless	16
endangerment.” [MIO 12, 13] In either case, we note that the district court properly	17
subjected the evidence to the balancing test contained in Rule 11-403 NMRA. See	18
Otto, 2007-NMSC-012, ¶ 10 (“Before admitting evidence of other crimes, wrongs	19
or acts, the [district] court must find that the evidence is relevant to a material issue	20

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other than the defendant’s character or propensity to commit a crime, and must	1
determine that the probative value of the evidence outweighs the risk of unfair	2
prejudice, 	pursuant 	to 	Rule 	11-403.” 	(internal 	quotation 	marks 	and 	citation	3
omitted)); Ohlson v. Kent Nowlin Constr. Co., 1983-NMCA-008, ¶ 25, 99 N.M. 539,	4
660 P.2d 1021 (concluding that all evidence is subject to the balancing test contained	5
in the predecessor to Rule 11-403).	6
{4} 	Rule 11-403 provides, “The court may exclude relevant evidence if its	7
probative value is substantially outweighed by a danger of . . . unfair prejudice[.]”	8
Evidence is unfairly prejudicial if it “is best characterized as sensational or shocking,	9
provoking anger, inflaming passions, or arousing overwhelmingly sympathetic	10
reactions, or provoking hostility or revulsion or punitive impulses, or appealing	11
entirely to emotion against reason.” State v. Stanley, 2001-NMSC-037, ¶ 17, 131	12
N.M. 368, 37 P.3d 85 (internal quotation marks and citation omitted). However,	13
“[d]etermining whether the prejudicial impact of evidence outweighs its probative	14
value is left to the discretion of the trial court.” State v. Sena, 2008-NMSC-053, ¶ 16,	15
144 N.M. 821, 192 P.3d 1198. This is because determination of unfair prejudice is	16
“fact sensitive,” and, accordingly, “much leeway is given [to district court] judges	17
who must fairly weigh probative value against probable dangers.” Otto, 2007-	18
NMSC-012, ¶ 14 (internal quotation marks and citation omitted).	19

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{5} 	As this Court explained in its calendar notice, the connection between the	1
State’s proffered evidence and the elements of reckless child abuse could have been	2
properly viewed by the district court as tenuous. See Kilgore v. Fuji Heavy Indus.	3
Ltd., 2009-NMCA-078, ¶ 46, 146 N.M. 698, 213 P.3d 1127 (concluding that the	4
district court did not abuse its discretion in excluding evidence pursuant to Rule 11-	5
403 where the probative value “had tenuous or limited relevance”); Ohlson, 1983-	6
NMCA-008, ¶ 25 (concluding that evidence was inadmissible under the predecessor	7
to Rule 11-403 where its probative value was tenuous).	8
{6} 	Additionally, New Mexico Courts have recognized the danger of unfair	9
prejudice inherent in the type of evidence the State attempts to introduce. See State	10
v. Rael, 1994-NMCA-043, ¶ 16, 117 N.M. 539, 873 P.2d 285 (concluding that	11
references to the defendant’s previous involvement in “illegal drug trafficking	12
[were] so inflammatory” that they were properly excluded as unfairly prejudicial	13
pursuant to Rule 11-403); State v. Wrighter, 1996-NMCA-077, ¶ 11, 122 N.M. 200,	14
922 P.2d 582 (concluding that references to a defendant’s prior drug transactions	15
should have been excluded as unfairly prejudicial pursuant to the predecessor to Rule	16
11-403 because “the perception of propensity and actual prejudice is unavoidable”).	17
Considering the foregoing, we cannot say that the district court’s balancing pursuant	18
to Rule 11-403 was clearly contrary to logic or reason, and thus we cannot conclude	19
that the district court abused its discretion. See Otto, 2007-NMSC-012, ¶ 9.	20

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{7} 	The State argues that the relevance of the evidence of Defendant’s drug use	1
in the days prior to Child’s death is increased by Defendant’s alleged theory of the	2
case. [MIO 9] Even accepting this assertion as true, that increased relevance still has	3
to be weighed against the prejudice to Defendant that would result from portraying	4
him as a repeated drug user. See Rule 11-403 (stating that evidence that would	5
otherwise be relevant and admissible may nonetheless be excluded if it fails the	6
balancing test outlined in Rule 11-403). The district court weighed the value of that	7
evidence, allowed limited evidence of drug use, and determined that evidence of	8
repeated drug use would be unduly prejudicial. Given cases that indicate prior drug	9
transactions or usage can be extremely prejudicial, see Rael, 1994-NMCA-043, ¶ 16,	10
and the fact that the district court ruled that limited evidence of Defendant’s drug	11
use with Ms. Kelley would be allowed, we conclude that the State has failed to	12
establish that the district court’s balancing of the probative and prejudicial value of	13
the evidence at hand was contrary to what logic or reason requires. SeeOtto, 2007-	14
NMSC-012, ¶ 9.	15
{8} 	Finally, we note that the State’s docketing statement contended that the	16
evidence at issue should be admissible as relevant to the alleged conspiracy to tamper	17
with 	evidence 	between 	Defendant 	and 	Ms. 	Kelley. 	[DS 	10] 	The 	State’s	18
memorandum in opposition, however, fails to address this contention, and we thus	19
deem it abandoned. See State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 208, 814	20

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P.2d 136 (stating that where a party has not responded to the Court’s proposed	1
disposition of an issue, that issue is deemed abandoned).	2
{9} 	For the foregoing reasons, we affirm.	3
{10} 	IT IS SO ORDERED.	4
_________________________________	5
J. MILES HANISEE, Chief Judge	6
WE CONCUR:	7
_________________________________	8
KRISTINA BOGARDUS, Judge	9
_________________________________	10
MEGAN P. DUFFY, Judge	11