October 9, 2025- State of New Mexico v. Johnny D. Fulton, No. A-1-CA-41026

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: October 9, 2025	3
No. A-1-CA-41026	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JOHNNY D. FULTON,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	10
Richard M. Jacquez, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Charles J. Gutierrez, Assistant Solicitor General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Tania Shahani, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
10/9/2025 8:41 AM

OPINION	1
IVES, Judge.	2
{1} A jury found Defendant Johnny D. Fulton guilty of child abuse by	3
endangerment in violation of NMSA 1978, Section 30-6-1(D) and (E) (2009).	4
Defendant’s primary argument on appeal is that the district court deprived him of	5
his Sixth Amendment right to an impartial jury when it denied his motions to	6
disqualify three potential jurors for cause and then denied his motion for a mistrial.	7
We conclude that Defendant has not established error with respect to either type of	8
actual bias: express bias or inferable bias. None of the jurors’ statements amounted	9
to express bias—a type of bias that requires disqualification as a matter of law—and	10
their statements, considered in context, did not compel the district court to exercise	11
its discretion to infer bias. As to Defendant’s other arguments on appeal, we are not	12
persuaded that the district court erred by denying Defendant’s motion for a mistrial	13
based on the admission of testimony that Defendant contends was inadmissible	14
evidence of prior bad acts under Rule 11-404(B) NMRA. Nor are we persuaded that	15
the district court erred by denying Defendant’s motion for a new trial based on his	16
claim that the jury pool was composed in a manner that violated NMSA 1978,	17
Section 38-5-3 (2011). We therefore affirm.	18

2
BACKGROUND	1
{2} We begin with a brief background to provide general context, reserving	2
detailed descriptions of the distinct facts relevant to each claim of error. During a	3
jury trial, the State presented evidence that Defendant and his family were together	4
on November 25, 2020, preparing for Thanksgiving. At one point, while Defendant	5
and his minor child, U.F., were playing a game, U.F. jokingly choked Defendant.	6
This angered Defendant. He told U.F. not to do that and then he began to choke U.F.	7
After letting go, Defendant asked U.F. if he understood, but U.F. did not respond.	8
Defendant began to choke U.F. a second time. After letting go the second time,	9
Defendant asked again if U.F. understood, and U.F. responded affirmatively. Based	10
on these two incidents of choking, the jury found Defendant guilty of one count of	11
child abuse.	12
DISCUSSION	13
I. Defendant Was Not Deprived of His Sixth Amendment Right to a Fair	14
and Impartial Jury	15
{3} Defendant argues that the district court erred by denying his motions to strike	16
three members of the jury pool—Jurors 12, 24, and 51—for cause and his motion	17
for a mistrial because the jurors’ responses to questions during jury selection	18
established actual bias that disqualified them from serving on the jury. According to	19
Defendant, these errors deprived him of his Sixth Amendment right to a fair and	20
impartial jury. We disagree. As we will explain, Defendant did not establish express	21

3
bias, which would have barred the potential jurors from serving as a matter of law.	1
The jurors’ statements instead required the district court to decide, based on the	2
evidence developed during jury selection, whether to infer that each juror was	3
biased. We conclude that the district court did not abuse its discretion by declining	4
to infer that any of these three jurors was biased.	5
{4} We begin our analysis by describing the pertinent features of New Mexico’s	6
legal framework for analyzing claims of juror bias. We then apply that framework	7
to Defendant’s case, first analyzing Defendant’s claims that Jurors 24 and 51 made	8
statements amounting to express bias that required disqualification as a matter of	9
law and then analyzing whether the district court abused its discretion by declining	10
to infer bias as to Jurors 12, 24, and 51.	11
A. New Mexico’s Legal Framework for Juror Bias	12
{5} Although questions regarding juror bias are far from new to New Mexico’s	13
appellate courts, see Territory v. Emilio, 1907-NMSC-020, ¶¶ 13-25, 14 N.M. 147,	14
89 P. 239, our state’s current legal framework for analyzing such questions is just	15
two years old. That framework was articulated by our Supreme Court in State v.	16
Romero, 2023-NMSC-014, 533 P.3d 735, which divides juror bias into two	17
categories. The first category, implied bias, mandates disqualification based on the	18
nature of a juror’s relationship to a person who plays an important role in the case,	19
such as a party, lawyer, or witness. See id. ¶¶ 12-14, 20-21. Implied bias is not at	20

4
issue in Defendant’s appeal. His appeal presents questions involving the second	1
category, actual bias, of which there are two types in New Mexico: express bias and	2
inferable bias.1 See id. ¶¶ 9-11, 16-19. Romero requires courts to analyze each type	3
of actual bias in a different way. Id.	4
{6} Express bias analysis involves clear, simple rules. Express bias exists only if	5
a potential juror makes “an unequivocal statement” that they “cannot be fair and	6
impartial.” Id. ¶ 10. Whether a particular statement satisfies this test may sometimes	7
be debated. See State v. Holtsoi, 2024-NMCA-042, ¶¶ 7-10, 547 P.3d 770. But if	8
express bias is established, a bright-line rule applies: The Sixth Amendment of the	9
United States Constitution requires disqualification of the prospective juror.	10
Romero, 2023-NMSC-014, ¶ 10; accord State v. Medema, 2025-NMCA-011, ¶ 13,	11
1 Although Romero adopts certain principles from out-of-jurisdiction
precedents, including precedents from federal circuit courts, our Supreme Court
chose not to adopt the entire legal framework described in any of the cited
precedents. As relevant here, Romero categorizes inferable bias as a type of actual
bias, 2023-NMSC-014, ¶¶ 11, 19, while the Second Circuit case on which Romero
relies for inferable bias principles, United States v. Torres, 128 F.3d 38 (2d Cir.
1997), treats inferable bias as a third broad category of bias—separate and distinct
from actual bias and implied bias. Id. at 43 (describing actual bias as bias in fact and
identifying two types of actual bias—bias expressly admitted by a juror and bias
found by the judge based on a juror’s answers during jury selection); id. at 45-46
(describing implied bias); id. at 46-47 (explaining that inferable bias is a third
category of bias that exists in a few circumstances that “involve no showing of actual
bias” and “that fall outside of the implied bias category”). In this opinion, we adhere
to the framework described by our Supreme Court in Romero, under which inferable
bias may be found only if the “facts developed at voir dire” reveal actual bias. 2023-
NMSC-014, ¶ 19.

5
___ P.3d ___ (A-1-CA-39883 & A-1-CA-40163, Mar. 3, 2025) (recognizing that,	1
under Romero, a prospective juror who “unequivocally expresses actual bias, stating	2
that they cannot be impartial, must be excused for cause”); Holtsoi, 2024-NMCA-	3
042, ¶¶ 7-12 (holding that the district court erred by denying a motion to strike for	4
cause a juror who said, “I can’t be a fair juror” and who “repeatedly and	5
unequivocally indicated that he could not separate his bias regarding drug use from	6
the facts of the case” (internal quotation marks omitted)).	7
{7} In contrast, the law of inferable bias governs the grey areas courts find	8
themselves in when a prospective juror does not unequivocally declare that they	9
cannot be fair and impartial—and perhaps even declares that they can be—but they	10
nevertheless disclose a fact that presents a question of whether actual bias should be	11
inferred. See Romero, 2023-NMSC-014, ¶¶ 11, 19 (describing inferable bias); State	12
v. Dobbs, 1983-NMCA-033, ¶ 56, 100 N.M. 60, 665 P.2d 1151 (“[A] juror’s	13
affirmance of impartiality is not conclusive.”), overruled on other grounds by State	14
v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. Answering these questions	15
requires trial courts to make discretionary judgment calls, as our Supreme Court	16
recognized in Romero. A trial court “‘is allowed to dismiss a juror on the ground of	17
inferable bias only after having received responses from the juror that permit an	18
inference that [they] would not be able to decide the matter objectively.’” Romero,	19
2023-NMSC-014, ¶ 11 (emphasis added) (quoting United States v. Torres, 128 F.3d	20

6
38, 47 (2d Cir. 1997)). Actual bias “‘may be inferred when a juror discloses a fact	1
that bespeaks a risk of partiality sufficiently significant to warrant granting the trial	2
judge discretion to excuse the juror for cause.’”2 Id. (emphasis added) (quoting	3
Torres, 128 F.3d at 47).	4
{8} Trial courts are entrusted with discretion in this context because impartiality	5
“is a state of mind,” United States v. Wood, 299 U.S. 123, 145 (1936), which is best	6
discerned from the trial judge’s bench; only from that vantage is it possible to	7
observe jurors’ demeanor and assess their credibility. See State v. Johnson, 2010-	8
NMSC-016, ¶¶ 31, 34, 148 N.M. 50, 229 P.3d 523; see also State v. Baca, 1990-	9
NMCA-123, ¶ 18, 111 N.M. 270, 804 P.2d 1089 (recognizing that decisions about	10
for cause challenges are “rife with judgments of demeanor, credibility, and other	11
intangible matters”). As a consequence, the discretion of trial courts is broad, and so	12
is our deference. See State v. Wiberg, 1988-NMCA-022, ¶ 21, 107 N.M. 152, 754	13
P.2d 529 (explaining that trial courts have “a great deal of discretion in dismissing a	14
2In Romero, our Supreme Court explicitly adopted the distinction drawn in
Torres between facts that pose a risk of bias that is significant enough to permit the
trial judge to infer bias from facts that pose a risk of bias that is so great that it
“‘make[s] mandatory a presumption of bias.’” Romero, 2023-NMSC-014, ¶ 11
(emphasis added) (quoting Torres, 128 F.3d at 47). This distinction between
inferable bias and implied bias is noteworthy here because Defendant argues inferred
bias, but he does not argue implied bias—that is, he does not argue that any of the
jurors disclosed relationships with any of the principals in the case that required the
district court to presume bias. See id. ¶¶ 12-14, 20-21.

7
juror for cause,” and that their “decision[s] will not be disturbed absent a manifest	1
error or clear abuse of that discretion”).	2
B. Express Bias: Jurors 24 and 51	3
{9} Defendant contends that certain statements made by Jurors 24 and 51 amount	4
to express bias. We disagree.	5
{10} Defendant claims that Juror 24 made an “unequivocal” disclosure of bias	6
when she “flat out admitted that she would find [Defendant] guilty if he failed to	7
testify.” We cannot accept this characterization. The statement in question was made	8
during the following exchange with Defendant’s trial counsel:	9
Counsel: Do you think he should explain what happened?	10
Juror 24: Yeah, but if the kid’s in that much distress and giving that	11
much detail, I guess he should explain what happened.	12
Counsel: The child or the adult? The adult?	13
Juror 24: The adult should explain.	14
Counsel: And then you would expect that?	15
Juror 24: Yeah.	16
Counsel: Okay. And if that didn’t—if you didn’t get that, you know,	17
that’d give you a little pause, right? It’d give you like a	18
pause in the back of your mind. You know, why is he not	19
saying something? You know, maybe this guy did it.	20
Juror 24: Yeah, but . . . yeah, I guess.	21

8
This is not an unequivocal statement that Juror 24 was unable to or unwilling to be	1
fair and impartial if Defendant did not testify, and we therefore conclude that the	2
record does not establish express bias with respect to Juror 24. See Romero, 2023-	3
NMSC-014, ¶ 10.	4
{11} Nor does the record establish express bias with respect to Juror 51. Defendant	5
asserts that, during questioning by Defendant’s trial counsel, Juror 51 “confirmed	6
that in a child abuse case, she would” be biased in favor of statements made by law	7
enforcement and the Children, Youth & Families Department (CYFD). But, like	8
Juror 24, Juror 51 did not make any definite statements:	9
Counsel: Do you believe CYFD and law enforcement would do a	10
thorough job?	11
Juror 51: Honestly, I don’t know. You know, I’ve made dozens of	12
reports [to CYFD as a therapist] and the truth of the matter	13
is, I don’t get the updates on those. You know, but	14
regardless whether I make the report or not, whether they	15
follow through, that’s up to their determination, right? So,	16
it is on the suspicion of abuse. And then if they determine	17
that there is enough evidence to investigate, then I would	18
imagine that they would do their job.	19
Counsel: Now are you inclined to believe that, if they had not only	20
investigated a crime but actually filed charges, that you	21
know, their thoughts, beliefs, and statements are true?	22
Juror 51: My natural inclination is yes.	23

9
Counsel: And so, it’d be fair to say that maybe you have a bias in	1
favor of—in a trial like this—law enforcement statements	2
and CYFD statements?	3
Juror 51: Yes.	4
Because these remarks are not unequivocal statements that Juror 51 was unable or	5
unwilling to be fair or impartial, we conclude that Defendant has not established	6
express bias as to Juror 51. See id.	7
{12} For these reasons, we hold that the bright-line rule requiring disqualification	8
in instances of express bias does not apply to either Juror 24 or Juror 51. See id. The	9
absence of express bias left the district court in the grey area of inferable bias as to	10
Jurors 24 and 51, as well as Juror 12.	11
C. Inferable Bias: Jurors 12, 24, and 51	12
{13} The district court’s task was to make discretionary judgment calls about	13
whether to infer that Jurors 12, 24, and 51 were actually biased. The law required	14
the district court to begin with the presumption that all three potential jurors could	15
be fair and impartial, see Medema, 2025-NMCA-011, ¶ 14; to place the burden of	16
proving bias through facts developed during jury selection on Defendant as the	17
challenging party, see Romero, 2023-NMSC-014, ¶ 19; Johnson, 2010-NMSC-016,	18
¶ 31; and to consider all relevant evidence revealed throughout the jury selection	19
process. See State v. Sanchez, 1995-NMSC-053, ¶¶ 9-12, 120 N.M. 247, 901 P.2d	20
178 (reviewing jury selection in its entirety to determine whether the defendant	21

10
established actual bias); State v. Rackley, 2000-NMCA-027, ¶¶ 10-11, 128 N.M.	1
761, 998 P.2d 1212 (reviewing a juror’s comments for actual bias in the context they	2
were made); cf. Darden v. Wainwright, 477 U.S. 168, 175-78 (1986) (examining	3
“the context surrounding” the exclusion of a juror for bias under the legal standard	4
for disqualification in capital punishment cases and upholding the exclusion after it	5
“[v]iew[ed] the record of voir dire in its entirety”). Considering the statements relied	6
on by Defendant in the context of jury selection as a whole, we hold that the district	7
court’s determinations that Defendant failed to carry his burden were not “obviously	8
erroneous, arbitrary, or unwarranted” and therefore neither its refusal to strike the	9
jurors for cause nor its denial of Defendant’s mistrial motion was an abuse of	10
discretion. See Johnson, 2010-NMSC-016, ¶ 31 (internal quotation marks and	11
citation omitted); State v. Hernandez, 2017-NMCA-020, ¶ 14, 388 P.3d 1016	12
(recognizing that the standard of review for a motion for mistrial is abuse of	13
discretion).	14
{14} Because Defendant’s arguments about Jurors 12 and 24 are based on remarks	15
they made about similar subject matter, we discuss these jurors together. We then	16
discuss Juror 51.	17

11
1. Jurors 12 and 24	1
{15} Jurors 12 and 24 disclosed their personal opinions about hearing an accused	2
person’s version of events. Defendant highlights the following exchange between	3
Juror 12 and the prosecutor:	4
Counsel: You indicated that you think . . . [D]efendant should speak	5
up for himself, please say a little bit more.	6
Juror 12: The way I see it, I see when it comes to an allegation where	7
someone is being charged, it goes both ways. Now, of	8
course we all follow the evidence and see where it leads,	9
but sometimes evidence can be flawed. I’m not saying that	10
it is, but that is my personal opinion. Now I believe that it	11
has two sides of the story. We can convict and say he’s	12
guilty, he’s not guilty. That’s my personal opinion and	13
that’s the way I see it. I see there’s two ways to one story.	14
Counsel: With that in mind, [Juror 12], I want to jump in. Knowing	15
that our law does not require the defendant to tell his side,	16
if we call it that, that the State really only needs to present	17
one side, are you able to be fair and impartial towards . . .	18
[D]efendant if you never hear . . . [D]efendant’s side, or	19
never hear anything from his attorneys?	20
21
Juror 12: I would still be fair in deciding a decision. But I’m a very,	22
very emotional person when it comes to children. And I	23
could make a decision but at the same time I think my	24
emotions might get ahead of me. And I don’t want to make	25
the wrong decision and send someone, of course he	26
deserves to spend his life in jail, or spend time in jail. But	27
at the same time too, I don’t want to make a rash decision	28
and knowing that I put the wrong man in jail.	29
Counsel: Understood. You said that you could be fair. Can you be	30
impartial?	31
Juror 12: I can be impartial.	32

12
Like Juror 12, Juror 24 described an expectation to hear from the accused, and she	1
then agreed with Defendant’s counsel that if she did not hear from an accused person,	2
she might ask herself whether that person might be guilty. Defendant argues that	3
these disclosures established that both jurors could not be fair and impartial if	4
Defendant chose not to testify.3 Considering all of the relevant information available	5
to us about each juror, we hold that the district court did not abuse its discretion.	6
{16} Defendant’s arguments are similar to arguments rejected by this Court in	7
Rackley. There, the defendant argued that the district court erred by declining to	8
disqualify two jurors. Rackley, 2000-NMCA-027, ¶ 11. The first juror said he	9
resented the defendant for relying on his lawyer to speak for him, but later the juror	10
said that although the defendant had a constitutional right to speak, the juror did not	11
think the defendant was required to speak. Id. ¶ 10. The second juror said that she	12
wanted to know where the defendant was when the crime occurred, but later the juror	13
said that if the prosecution failed to prove beyond a reasonable doubt that the	14
defendant was guilty, she would vote against convicting him, and that it would not	15
3Defendant also argues, for the first time on appeal, that Juror 12 should have
been disqualified in part based on statements he made regarding his strong emotions
about children and the possibility that those emotions might lead him to make a rash
judgment. Defendant did not preserve this issue by presenting it to the district court
when he moved to strike Juror 12, and on appeal Defendant does not ask us to review
the unpreserved issue under any exception to the preservation rule. See Rule 12-321
NMRA. We therefore do not address the issue further.

13
bother her if the defendant chose not to testify. Id. This Court held that the district	1
court did not abuse its discretion by refusing to excuse the two jurors for cause. Id.	2
¶ 11. Critically, this Court recognized that the jurors’ statements must be “taken in	3
context.” See id. Considering the context, this Court concluded that both jurors’	4
statements “merely reflected a layperson’s natural desire to hear [the d]efendant’s	5
version of events in [their] own words; these statements did not indicate that [the	6
jurors] were unable or unwilling to decide [the d]efendant’s case on the facts	7
established at trial and the trial court’s instructions on the law.” Id. This Court	8
observed that the defendant appeared to have relied on “the erroneous assumption	9
that a juror is biased simply because the juror has [such] a natural expectation.” Id.	10
{17} We think Defendant relies on a similar erroneous assumption about Jurors 12	11
and 24. Both jurors’ statements about their personal views must be examined	12
together with all other pertinent evidence developed during jury selection. See	13
Sanchez, 1995-NMSC-053, ¶¶ 9-12; Rackley, 2000-NMCA-027, ¶ 11; cf. Darden,	14
477 U.S. at 175-78. As we will explain, our holistic review of the relevant evidence	15
does not reveal any basis for concluding that the district court abused its discretion	16
by declining to infer that the jurors’ personal opinions amounted to actual bias.	17
{18} The question for the district court was whether Defendant had established that	18
the personal opinions disclosed by each juror would “prevent or substantially impair	19
the performance of [their] duties as a juror in accordance with [their] instructions	20

14
and [their] oath.” State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d	1
47 (internal quotation marks and citation omitted). A juror does not necessarily have	2
a disqualifying bias if they have a personal opinion about whether a defendant should	3
provide their version of events, or about whether a defendant who does not provide	4
their version is more likely to be guilty than a defendant who does provide their	5
version. The law does not require jurors to purge such personal opinions from their	6
minds. State v. Fransua, 1973-NMCA-071, ¶ 7, 85 N.M. 173, 510 P.2d 106; accord	7
Medema, 2025-NMCA-011, ¶ 14. Instead of holding jurors to this impossibly high	8
standard, the law requires that each juror be willing and able to “put aside their	9
opinions” so they can serve fairly and impartially. Fransua, 1973-NMCA-071, ¶ 7;	10
accord Medema, 2025-NMCA-011, ¶ 14. In other words, a district court’s task is to	11
discern whether a juror’s opinions would impact their ability “to function” free from	12
bias and partiality. Rackley, 2000-NMCA-027, ¶ 11. To complete this critical and	13
sometimes challenging task, district courts must “focus on the presence or absence	14
of evidence demonstrating that [each juror was] unwilling or unable to decide the	15
case based on the evidence adduced at trial and the [jury] instructions.” Id. (emphasis	16
added).	17
{19} Applying these principles, we hold that the district court did not abuse its	18
discretion by concluding, based on the evidence available to it, that Jurors 12 and 24	19

15
were willing and able to fairly and impartially decide the case based on the evidence	1
and the jury instructions. We discuss each juror in turn.	2
{20} Considered collectively, Juror 12’s statements, like the jurors’ statements in	3
Rackley, appear to reflect nothing more than a layperson’s natural desire to hear the	4
accused’s version of events. See id. Although Juror 12 expressed a personal opinion	5
that it would be preferable to hear from the accused, Juror 12 also affirmed clearly	6
and definitely that he could be fair and impartial even if Defendant did not testify.	7
Although Defendant is correct that Juror 12’s affirmations of neutrality are not	8
dispositive magic words that prohibited the district court from finding actual bias,	9
see Dobbs, 1983-NMCA-033, ¶ 56, it is also true that the district court was not	10
required to reject the affirmations. See, e.g., State v. Hernandez, 1993-NMSC-007,	11
¶¶ 51-52, 115 N.M. 6, 846 P.2d 312 (affirming a district court’s decision not to	12
excuse various jurors because each juror in question stated they “could render a fair	13
and impartial verdict”). Whether to accept the affirmations was a factual question	14
for the district court to answer based on its assessment of Juror 12’s credibility, see	15
Patton v. Yount, 467 U.S. 1025, 1036-38 (1984), and we will not revisit that	16
assessment. See Hernandez, 1993-NMSC-007, ¶ 52 (“[T]he trial judge is in the best	17
position to assess the demeanor and credibility of prospective jurors.”).	18
{21} In support of his argument that the district court should not have accepted	19
Juror 12’s affirmations, Defendant relies on State v. Sims, 1947-NMSC-071, 51	20

16
N.M. 467, 188 P.2d 177, but we see significant differences between the facts of Sims	1
and the facts here. In Sims, our Supreme Court concluded that the district court	2
abused its discretion by refusing to strike for cause a juror who “had plainly	3
disclosed that he was disqualified to sit in the case” due to the nature of the	4
allegation, but who eventually said—under “skillful questioning” by the district	5
court—“that he would return a verdict in accordance with the law and the evidence.”	6
Id. ¶¶ 2, 4. In contrast, as we have already explained, Juror 12 did not plainly disclose	7
that he was disqualified, and, in any event, Juror 12’s affirmations of neutrality were	8
elicited through two simple questions—whether he could be fair if he never heard	9
from Defendant or defense counsel and whether he could be impartial—not through	10
the sort of “skillful questioning” that occurred in Sims. Sims therefore does not	11
support the conclusion that the district court abused its discretion by declining to	12
infer that Juror 12 was actually biased, and we are not aware of any other legal or	13
factual support for that conclusion.	14
{22} We are also unaware of any support for the conclusion that the district court	15
abused its discretion as to Juror 24. Like Juror 12, Juror 24 stated a personal opinion	16
about whether an accused person should provide their version of events.	17
Specifically, Juror 24 said that the accused “should explain what happened” and that	18
she “would expect that” they testify. We acknowledge that Juror 24 went a step	19
beyond expressing a natural desire to hear from the accused when she disclosed that	20

17
if an accused person did not testify, she might ask herself whether that person was	1
guilty. In other words, Juror 24 acknowledged that there was a possibility that if	2
Defendant did not testify, she might be inclined to doubt Defendant’s innocence.	3
This was potential bias, and it gave Defendant the right to ask follow-up questions.	4
See Romero, 2023-NMSC-014, ¶ 15. Further questioning could have revealed more	5
information about what Juror 24’s beliefs were and whether they might prevent her	6
from deciding the case fairly and impartially if Defendant chose not to testify. Cf.	7
Fuson v. State, 1987-NMSC-034, ¶¶ 3-5, 105 N.M. 632, 735 P.2d 1138 (concluding	8
that a juror who disclosed that he knew about half of the witnesses should have been	9
disqualified because the juror stated in response to follow-up questions that he could	10
not be certain that he could be impartial and that there was a possibility that his	11
knowledge of the witnesses would affect the way he decided the case). The defense	12
could have explored whether Juror 24 understood and accepted the law she would	13
be required to apply—which places the burden of proof on the prosecution,	14
recognizes a defendant’s right not to testify, and prohibits any inference of guilt	15
when that right is exercised. See UJI 14-5031 NMRA; UJI 14-5060 NMRA. The	16
defense did not ask any more questions.	17
{23} But the district court did, and Juror 24’s responses are relevant to the holistic	18
inferable bias analysis. After the State and Defendant finished their voir dire, the	19
district court asked all of the potential jurors collectively whether they understood	20

18
that Defendant had the right not to testify, and Juror 24 responded affirmatively. The	1
district court then instructed all of the potential jurors to raise their hands if they did	2
not understand that the State had the burden of proof. Juror 24 did not raise her hand.	3
Then the district court made two more pertinent inquiries. The court asked the	4
potential jurors to raise a hand if they “would want to hear both sides,” and to raise	5
a hand if they “would need to hear both sides.” Juror 24 did not raise her hand in	6
response to either question.	7
{24} These responses could reasonably be interpreted as assurances that Juror 24	8
understood and accepted the law on the burden of proof and the presumption of	9
innocence, as well as the law on an accused person’s right not to present their version	10
of events. How much weight to give these responses, how much weight to give the	11
tentative statement relied on by Defendant, and how to resolve the tension between	12
those responses were evaluations for the district court to make. See Johnson, 2010-	13
NMSC-016, ¶ 34 (“The trial court, who is listening first hand to counsel’s questions	14
and the panel members’ responses, is in the best position to determine whether voir	15
dire has sufficiently exposed any biases that may preclude jurors from acting fairly	16
and impartially.” (text only) (citation omitted)); Hernandez, 1993-NMSC-007, ¶ 52	17
(recognizing that district courts determine credibility); cf. State v. Romero, 1966-	18
NMSC-126, ¶ 9, 76 N.M. 449, 415 P.2d 837 (recognizing that the district court, as	19
the trier of fact, determines the weight to be given to the evidence). And, in addition	20

19
to evaluating everything that Juror 24 did say, the district court was required to	1
consider what she did not say. See Rackley, 2000-NMCA-027, ¶ 11. Juror 24 did not	2
say that she had any strongly-held views about accused people who choose not to	3
provide their version. Nor did she say anything else indicating that her views were	4
such that they might prevent her from neutrally applying the law, including the law	5
prohibiting jurors from drawing inferences of guilt based on an accused person’s	6
silence. See UJI 14-5060. In light of all of this, we conclude that the district court	7
could have reasonably concluded that the statements relied upon by Defendant did	8
not—without more—rebut the presumption that Juror 24 could be fair and impartial.	9
See Romero, 2023-NMSC-014, ¶ 19 (inferable bias “must be grounded in facts	10
developed at voir dire” that reveal that a juror is actually biased); Dobbs, 1983-	11
NMCA-033, ¶ 56 (“If there was a genuine concern about any of these jurors, then	12
an effort should have been made to elicit more information than appears in this	13
record.”).	14
{25} For these reasons, we hold that the district court acted within its discretion by	15
refusing to disqualify Jurors 12 and 24 based on inferred bias, and by denying	16
Defendant’s motion for mistrial.	17
2. Juror 51	18
{26} Defendant argues that Juror 51 should have been disqualified based on the	19
statements described above. Juror 51 revealed potential bias when she acknowledged	20

20
that “maybe” she would be biased in favor of statements from law enforcement and	1
CYFD. See Romero, 2023-NMSC-014, ¶ 15 (identifying a potential bias). Although	2
this gave Defendant a right to ask more questions to discover more about Juror 51’s	3
beliefs and their potential impact on her ability to function neutrally as a juror, see	4
id., the defense did not do so. The district court denied Defendant’s motion to excuse	5
Juror 51 for cause and denied the State’s request to ask Juror 51 more questions.	6
Implicit in the district court’s rulings are determinations that additional questioning	7
by the State was unnecessary because the information already available about Juror	8
51 did not warrant disqualification.	9
{27} Defendant has not persuaded us that the district court’s discretionary decision	10
not to infer bias was “obviously erroneous, arbitrary, or unwarranted.” See Johnson,	11
2010-NMSC-016, ¶ 31 (internal quotation marks and citation omitted). Again, the	12
law required the district court to presume that Juror 51 could be fair and impartial,	13
see Medema, 2025-NMCA-011, ¶ 14, and to place the burden to rebut that	14
presumption on Defendant as the challenging party, see Johnson, 2010-NMSC-016,	15
¶ 31. To determine whether Defendant carried that burden, the district court was	16
required to consider all of the relevant information available to it. See Sanchez, 1995-	17
NMSC-053, ¶¶ 9-12; Rackley, 2000-NMCA-027, ¶ 11; cf. Darden, 477 U.S. at 175-	18
78. That information included the suggestive and uncertain phrasing of the questions	19
that elicited Juror 51’s acknowledgement and her statements earlier in jury selection	20

21
that she could be a fair and impartial juror in a child abuse case and that she did not	1
believe Defendant was guilty merely because he had been charged with a crime. The	2
district court could have reasonably found that this evidence—and the absence of	3
any additional evidence that might have been elicited through further questioning—	4
weighed in favor of finding that Juror 51 was willing and able to be fair and	5
impartial. See Wood, 299 U.S. at 145; Johnson, 2010-NMSC-016, ¶¶ 31, 34. With	6
the benefit of all of this information, the district court declined to infer actual bias,	7
and we cannot say that it abused its discretion. We have no basis for concluding that	8
it was unreasonable for the district court to find that Juror 51 could set aside her	9
personal inclinations, see Medema, 2025-NMCA-011, ¶ 14, and neutrally apply the	10
law as described in the jury instructions to the evidence presented in court, see	11
Rackley, 2000-NMCA-027, ¶ 11.	12
{28} For these reasons, we hold that the district court did not abuse its discretion	13
by declining to infer that Jurors 12, 24, and 51 were actually biased. Because the	14
district court’s judgments that these jurors were willing and able to serve neutrally	15
were not obviously erroneous, arbitrary, or unwarranted, the district court did not	16
stray beyond the wide boundaries of its discretion. See Johnson, 2010-NMSC-016,	17
¶ 31. And we would stray beyond our narrow boundaries in this context if we were	18
to substitute our judgments for the district court’s. See State v. Lopez, 1978-NMSC-	19
060, ¶ 6, 91 N.M. 779, 581 P.2d 872.	20

22
II. The District Court Did Not Err in Denying Defendant’s Motion for	1
Mistrial Based on Evidence of Prior Bad Acts	2
{29} Defendant argues that the court erred by denying his motion for a mistrial	3
because evidence of prior bad acts—U.F.’s testimony that Defendant choked him	4
“many times”—was prejudicial and the district court’s instruction to the jury that	5
this testimony exclusively related to events on November 25, 2020, failed to cure	6
the prejudice from U.F.’s statements.4 We are not persuaded.	7
{30} Defendant moved for a mistrial during the direct examination of U.F. He	8
objected to a brief exchange that occurred after U.F. finished describing a single	9
choking incident:	10
State: What happened next?	11
U.F.: Then we just went back to cooking, I think.	12
State: So, you only remember him choking you one time?	13
U.F.: I remember many times. But I remember that he did choke	14
me other times, but I don’t remember like—	15
State: Let me jump in real quick.	16
4 Defendant also argues that the State improperly elicited testimony from
Officer Adam Medina about Defendant’s prior bad acts earlier in the trial and that
the officer’s testimony should have been considered in Defendant’s motion for a
mistrial. However, Defendant did not preserve his arguments that Officer Medina’s
testimony should be considered in his motion for mistrial, and Defendant does not
invoke any exception to the preservation rule. See Rule 12-321. We therefore decline
to further discuss this claim of error.

23
Judge: Hold on. [Defense counsel] speak up.	1
Defense: Objection. Can we approach?	2
In a short bench conference, Defendant orally moved for a mistrial, and in the	3
alternative offered to stipulate that “any of these choking incidents being referenced	4
only occurred on November 25, 2020.” The State agreed to the stipulation. After	5
denying the motion, the court gave the following instruction:	6
Ladies and gentlemen of the jury, as you’ve heard already, this	7
testimony regards an incident that occurred on or about November 25,	8
2020. So, I’m going—the parties are going to stipulate that any	9
statements that have been made by this witness relate[] specifically to	10
incidents only occurring on November 25, 2020.	11
{31} We review the court’s denial of Defendant’s motion for mistrial for an abuse	12
of discretion. See Hernandez, 2017-NMCA-020, ¶ 14. Generally, in situations in	13
which inadmissible evidence is inadvertently elicited, a court acts within its	14
discretion if it denies a motion for mistrial but offers to give “a prompt admonition	15
to the jury to disregard and not consider [the] inadmissible evidence” because doing	16
so “sufficiently cures any prejudicial effect which might otherwise result.” Id. ¶ 17	17
(omission, internal quotation marks, and citation omitted); accord State v. Fry, 2006-	18
NMSC-001, ¶¶ 52-53, 138 N.M. 700, 126 P.3d 516. However, if “inadmissible	19
testimony is intentionally elicited by the prosecution,” a court cannot cure the	20
prejudice of the testimony with an instruction. Hernandez, 2017-NMCA-020, ¶ 17	21
(text only) (citation omitted). In such an instance, a mistrial is required if “there is a	22

24
reasonable probability that the improperly admitted evidence could have induced the	1
jury’s verdict.” See id. (internal quotation marks and citation omitted).	2
{32} Assuming without deciding that the testimony at issue was inadmissible, we	3
conclude that it was elicited by the State inadvertently, not intentionally, and that the	4
district court therefore acted within its discretion by denying Defendant’s mistrial	5
motion and giving a curative instruction. In support of his argument that the	6
testimony at issue was elicited intentionally, Defendant relies on a pretrial ruling	7
prohibiting Rule 11-404(B) evidence, and the district court’s instruction to the State	8
to keep its witnesses “focused and on the right track.” Defendant contends that the	9
State intentionally disregarded this directive when it posed the “open-ended question	10
which invited” U.F.’s comment. Based on our review of the record, we disagree.	11
Importantly, the instruction given to the jury regarding the essential elements of the	12
offense required the State to prove that Defendant choked U.F. twice on November	13
25, 2020. And in the pretrial ruling on propensity evidence, the State informed the	14
district court that it asked its witnesses to limit their “testimony [to] what occurred	15
on November 25th, 2020.” Consistent with this representation, the testimony at issue	16
was elicited by the State while it was asking U.F. what happened on November 25,	17
2020. During that line of questioning, U.F. described a single choking incident. After	18
U.F. stated that Defendant stopped choking him, the State asked what happened next.	19
U.F. stated they went back to cooking, implying that the situation concluded. The	20

25
State followed up by asking if U.F. only remembered one choking incident, and U.F.	1
testified that he remembered Defendant choking him “many times.” As we	2
understand the record, the State was attempting to ask U.F. about a second choking	3
event on November 25, 2020, rather than intentionally seeking to elicit testimony	4
about choking incidents on other dates. We therefore conclude that it was within the	5
district court’s discretion to deny the motion for mistrial and instead give a prompt	6
instruction directing the jury not to consider the inadmissible evidence. See	7
Hernandez, 2017-NMCA-020, ¶ 17.	8
{33} This brings us to Defendant’s next argument: that the district court abused its	9
discretion because the curative instruction that it chose to give “was insufficient to	10
rectify the harm caused.” This argument has two parts. First, Defendant argues that	11
U.F.’s comment undermined Defendant’s credibility by painting him as an abusive	12
father. Second, Defendant argues that the instruction was factually inaccurate. We	13
are not persuaded that the district court erred. See State v. Aragon, 1999-NMCA-	14
060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (placing the burden on the appellant to rebut	15
the presumption that the district court was correct).	16
{34} The first part of Defendant’s argument is unpersuasive because he relies on	17
the conclusory assertion that his credibility was undermined without explaining how	18
the testimony at issue impacted Defendant’s credibility. Defendant cites Hernandez,	19
but he does not explain how his case is similar to Hernandez, and we perceive	20

26
meaningful differences between that case and Defendant’s case. There, a police	1
officer testified falsely that Defendant had confessed, see 2017-NMCA-020, ¶ 16,	2
and this Court emphasized that “a confession can be highly prejudicial,” id. ¶ 21.	3
But in Defendant’s case, the testimony at issue does not involve false testimony that	4
Defendant admitted to any element of the offense but instead involves the testimony	5
of the victim, whose credibility was being challenged by the defense. Based on the	6
argument presented by Defendant, we are unpersuaded that a prompt instruction	7
could not sufficiently cure any prejudice Defendant experienced. See id. ¶ 17.	8
{35} The second part of Defendant’s argument fails based on our comparison of	9
the curative instruction given in Defendant’s case and the one given in Hernandez.	10
Defendant cites Hernandez in support of his argument that the curative instruction	11
given in his case was inadequate because, like the instruction in Hernandez, it was	12
inaccurate. Specifically, Defendant argues that the curative instruction in his case	13
inaccurately limited the testimony to events on November 25, 2020, “even though it	14
was obvious . . . that [U.F.] was referring to other occasions.” We are unpersuaded.	15
Importantly, U.F. did not say when the “many times” and “other times” occurred.	16
Just as U.F.’s statement could be interpreted as describing events during a broad	17
timeframe, as suggested by Defendant, it could also be interpreted as describing	18
events on November 25. Indeed, the State alleged multiple choking events on	19
November 25; the jury instruction on the essential elements of the offense referred	20

27
to multiple alleged chokings on November 25; the testimony at issue was elicited	1
during the State’s questioning about what happened on November 25; and the jury	2
had already heard testimony from U.F.’s sister that Defendant choked U.F. multiple	3
times on November 25. The curative instruction required the jury to interpret the	4
testimony at issue in a way that was consistent with the charge against Defendant	5
and other evidence—that is, in a way that was plausible under the circumstances.	6
We therefore conclude that the curative instruction is not inaccurate, and that the	7
rationale of Hernandez does not apply. Because we presume that the jury followed	8
the curative instruction in interpreting the testimony as describing only events on	9
November 25, see State v. Sellers, 1994-NMCA-053, ¶ 28, 117 N.M. 644, 875 P.2d	10
400, we see no abuse of discretion in the district court’s decision to give the curative	11
instruction instead of granting Defendant’s motion for mistrial.	12
III. Defendant Failed to Establish a Right to a New Trial Based on Evidence	13
of the Jury Venire’s Composition	14
{36} After trial, Defendant submitted various requests under the Inspection of	15
Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended	16
through 2025), for information on “jury source lists.” Upon receiving information	17
that the jury database was compiled by a third-party vendor, rather than the	18
Department of Information Technology, Defendant moved for a new trial. He argued	19
that this outsourcing violated Section 38-5-3. The district court denied the motion,	20
reasoning in part that Defendant only established that he discovered the information	21

28
after trial and failed to establish the five other elements necessary to grant a new	1
trial. See State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659, 125 P.3d 638. On	2
appeal, Defendant argues that the district court erred because the statutory violation	3
was clear and even had he discovered the information earlier, the court would have	4
denied his motion. We are not persuaded.	5
{37} We review a court’s denial of a motion for a new trial for an abuse of	6
discretion. Id. ¶ 7. To obtain a new trial based on newly discovered information,	7
Defendant must show that the new evidence meets six requirements:	8
[(1)] it will probably change the result if a new trial is granted; [(2)] it	9
must have been discovered since the trial; [(3)] it could not have been	10
discovered before the trial by the exercise of due diligence; [(4)] it must	11
be material; [(5)] it must not be merely cumulative; and [(6)] it must	12
not be merely impeaching or contradictory.	13
Id. ¶ 8 (internal quotation marks and citation omitted). Because we do not believe	14
Defendant has shown that the new information “could not have been discovered	15
before the trial by the exercise of due diligence,” id., we reject Defendant’s claim of	16
error on this basis alone. Defendant’s motion was based exclusively on information	17
obtained through IRPA requests that he made in December 2022. At the motion	18
hearing, Defendant admitted he did not submit any requests before the trial in August	19
2022, and there is no evidence in the record to cast doubt on the commonsense	20
conclusion that Defendant could have discovered the very same information had he	21
submitted his IPRA requests before trial instead of months after it. See § 14-2-8(D)	22

29
(requiring a custodian to furnish records no “later than fifteen days after receiving a	1
written request”). We therefore conclude that the district court did not abuse its	2
discretion by denying Defendant’s motion.	3
CONCLUSION	4
{38} We affirm.	5
{39} IT IS SO ORDERED.	6
_________________________	7
ZACHARY A. IVES, Judge	8
WE CONCUR:	9
_____________________________________	10
JACQUELINE R. MEDINA, Chief Judge	11
_____________________________________	12
MEGAN P. DUFFY, Judge	13