State v. Stevenson

                                                              Office of Director         New Mexico
                                                            10:57:57 2020.01.14          Compilation
                                                                         '00'07-         Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 22, 2019

No. A-1-CA-35962

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

THOMAS STEVENSON,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Certiorari Denied, December 26, 2019, No. S-1-SC-38015. Released for Publication
January 21, 2020.

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Law Offices of Adrianne R. Turner
Adrianne R. Turner
Albuquerque, NM

for Appellant

                                       OPINION

VARGAS, Judge.

{1}    Defendant appeals his convictions for shooting at a motor vehicle (great bodily
harm), in violation of NMSA 1978, Section 30-3-8(B) (1993), and aggravated assault
with a deadly weapon, in violation of NMSA 1978, Section 30-3-2(A) (1963). He raises
four main arguments on appeal, as discussed below. After careful consideration of
Defendant’s issues, we affirm.
I.     BACKGROUND

{2}    This case arises out of a violent confrontation between Defendant Thomas
Stevenson (Defendant), Codefendant Oshay Toney (Codefendant), and Marvin Ellis
(Victim). During the confrontation more than twenty shots were fired into the vehicle
(SUV) Victim was driving, with both Defendant and Codefendant firing multiple shots.
Defendant claimed he fired in defense of himself or others, and raised both of those
doctrines as defenses at trial. He provided evidence that the SUV was driving forward
when he fired at it, that he thought it had run over someone, and that it was headed
toward a house that was sheltering several children. The State introduced contrary
evidence indicating that the SUV was backing out of the driveway when the shooting
started and was therefore not threatening Defendant or anyone else. The jury rejected
Defendant’s version of the events and convicted him of felony murder, voluntary
manslaughter, shooting at a motor vehicle resulting in great bodily harm, and
aggravated assault with a deadly weapon. The latter conviction was based on the fact
that the owner of the SUV was in the passenger seat at the time the shooting began.
Subsequently, the district court vacated the felony murder and voluntary manslaughter
convictions on legal grounds not relevant to this opinion. Further facts will be provided
as they are relevant to each issue discussed below.

II.    DISCUSSION

A.     Best-Evidence Rule

{3}    The State presented testimony from Victim’s nephew (Nephew) about certain text
messages he had seen on Victim’s phone on the day of the incident. Nephew was able
to identify the sender of the text messages as Defendant, and the messages (at least
one of them) were threatening in tone. Defendant objected to admission of Nephew’s
testimony, arguing that the best evidence rule required the State to introduce the
messages themselves, not second-hand testimony from a person who had merely read
the messages.

{4}     Text messages are “writings” for purposes of the best-evidence rule and, absent
an applicable exception, the original text messages or authorized duplicates of the
same must be produced at trial. See State v. Hanson, 

, 

. In Hanson we also recognized that an exception to the rule, for lost or
destroyed evidence, could be applicable if a proper foundation was laid. See id. ¶ 13. In
order to establish such a foundation, we held, the state must establish that it engaged in
a diligent effort to obtain the originals of the writings at issue. Id. The State attempted to
make that showing in this case by offering the testimony of Detective Leah Acata, the
case agent working this homicide case.

{5}    Detective Acata testified on voir dire that (1) she obtained Victim’s cell phone
from the owner of the SUV, Victim’s girlfriend (Girlfriend), who was present in the SUV
when the shooting began; (2) she obtained a warrant authorizing her to access the
contents of the phone and took the phone to the New Mexico Regional Computer
Forensic Laboratory (RCFL), which is affiliated with the Federal Bureau of Investigation
(FBI); (3) at the RCFL Detective Acata used the “Cellebrite” system at a kiosk to attempt
to access the phone’s contents, but was unable to get past the phone’s “swipe
passcode”; (4) she had previously used the same program and RCFL’s kiosks hundreds
of times to access phones, but as to Victim’s phone the system was unable to get past
the swipe passcode; (5) she contacted different members of Victim’s family to see if any
of them knew the swipe passcode that would grant her access to the phone, or, in the
alternative, Victim’s email address and PIN for the phone, to no avail; (6) she then left
the phone with RCFL and submitted a service request asking RCFL personnel to
access the phone, but was notified that RCFL was also unable to unlock the phone; (7)
Detective Jeremy Guilmette from RCFL informed her that a program had not yet been
written that could unlock the particular model of phone owned by Victim, given Victim’s
use of a swipe passcode instead of a numeric passcode; and (8) the phone was
returned to Detective Acata by RCFL. Detective Acata reiterated several times that
without a passcode, access to the phone’s contents, including the text messages in
question, could not be achieved.

{6}     In response to Detective Acata’s voir dire testimony, Defendant did not present
any evidence contradicting the information she provided concerning swipe passcodes
and the ability to unlock Victim’s phone. Counsel for Codefendant did point out that
Detective Acata did not send the phone to “Quantico” (a reference to the FBI’s central
forensics laboratory) for processing. However, Detective Acata testified on redirect that
it was her understanding that Quantico would not be able to access the phone unless a
program had been written to do so, and no evidence was presented indicating that
Quantico would have had any more success accessing the phone than did RCFL.
Similarly, Codefendant raised the possibility that the necessary information to access
the phone could have been obtained from Victim’s phone carrier. But Detective Acata
testified that such an effort would not have been successful, and no evidence
contradicting this assertion was provided to the district court.

{7}    Having considered the foregoing evidence, the district court found that the State
had met its burden under Hanson to show that it made a diligent effort to obtain the
original text messages. See 

, ¶ 13. The court also found that the
inaccessibility of the messages was the equivalent of having the messages be
physically lost or destroyed, for purposes of the best-evidence rule. Therefore, the court
allowed Nephew to testify about the text messages he had seen on Victim’s phone.

{8}     In reviewing this issue, we note first that Defendant does not challenge the
district court’s determination that the inaccessibility of the text messages was the
functional equivalent of the loss or destruction of those messages. We therefore need
not decide that legal question in this opinion. With respect to the merits of the “diligent
efforts” question, the applicable standard for our review is abuse of discretion. See id. ¶
5. Given the evidence of the efforts made by Detective Acata to unlock Victim’s phone,
as well as the lack of any evidence indicating that additional efforts may have been
successful, the district court’s decision that the State had made diligent efforts to obtain
the original text messages was not “clearly against the logic and effect of the facts and
circumstances of the case.” See id. (stating abuse of discretion standard). We affirm the
district court’s decision as to this issue.

B.    Possible Extraneous Information Reaching the Jury

{9}    Almost three months after the trial was concluded, the district court received an
email from the jury foreman, stating in pertinent part as follows:

      I was the foreman for the jury in the Thomas Stevenson and Oshay Toney
      case. I have been wondering about something since we sat on the case
      and the latest gun violence makes me ask the question. Why were the
      individuals not charged with possession of a firearm as a felon and
      conceal carry as a felon? Is that included in the charge of committing the
      crime with a gun? Also it was mentioned that the weapons were
      “enhanced” so why was the use of a silencer not part of the charges?

{10} The district court notified the parties about the email, and Defendant
subsequently filed a motion requesting an evidentiary hearing, claiming that the email
indicated extraneous information may have reached the jury during the trial. Defendant
asked that the district court issue a subpoena to the jury foreman, directing the foreman
to appear for a hearing at which he could be questioned about any extraneous
information. The district court denied the motion.

{11} Following a jury trial, jurors are forbidden from testifying about any part of the
deliberation process or from providing a statement to the court about that process,
subject to three exceptions: a juror may testify about whether (a) extraneous prejudicial
information was improperly brought to the jury’s attention; (b) an outside influence was
improperly brought to bear on any juror; or (c) a mistake was made in entering the
verdict on the verdict form. Rule 11-606(B) NMRA. Where a party files a motion for new
trial based on the possibility that extraneous information reached the jury, the party
“must make a preliminary showing that he or she has competent evidence that material
extraneous to the trial actually reached the jury.” State v. Mann, 

,

, 

 (alteration, internal quotation marks, and citation omitted).
Although Defendant did not file a motion for a new trial, but instead filed a motion to
force the juror to testify concerning the extraneous-information question, we see no
reason to depart from the requirement of a preliminary showing of competent evidence
before forcing a juror to testify under oath.

{12} Defendant points to the jury foreman’s email and suggests that it indicates a
possibility that extraneous information reached the jury. The district court rejected this
interpretation of the email, and we do as well. The fact that both Defendant and
Codefendant had prior felony convictions was revealed by each while each was
testifying. There is no suggestion that either weapon used in the shooting had a silencer
attached, and this portion of the email is more probably a result of confusion caused by
the phrase “firearm enhancement” that was part of the charges read to the jury at the
beginning of trial. To the extent Defendant argues that the email exhibits some
knowledge of the judicial system and felon-in-possession issues, jurors are allowed to
use knowledge they already possess in deciding a case, and this is not an indication
that impermissible extraneous information reached the jury during trial. See 

 ¶¶ 27-
28. The district court did not abuse its discretion in holding that the juror’s email did not
provide a basis to force the juror to attend a hearing and testify under oath concerning
the source of his knowledge about criminal law and procedure.

C.     Purported Brady Violation

{13} At trial, Girlfriend testified favorably for the State, including testimony that she did
not hear Victim threaten Defendant, that Victim did not have a gun in his hand when he
was shot, and that the SUV was backing out of the driveway and had exited it when the
shooting began. After Girlfriend testified, but before the trial ended, Girlfriend was
arrested and charged with a number of counts of fraud arising out of her employment.
Defendant learned of the arrest after trial and filed a motion for new trial raising the
State’s failure to disclose the arrest as one of the grounds for the motion.

{14} On appeal Defendant contends the prosecutor committed a Brady violation by
failing to disclose the investigation and arrest of one of the State’s most important
witnesses. See Brady v. Maryland, 

 (1963) (requiring prosecution to
disclose evidence in its possession that could be favorable to a defendant); Case v.
Hatch, 

, 

, 

 (discussing standards
applicable to a Brady claim in New Mexico). Defendant maintains the information about
the investigation and arrest would have been valuable impeachment material. Material
bearing on a witness’s credibility, and thus useful for purposes of impeachment, is
governed by the disclosure requirements of Brady and its progeny. See Case, 2008-
NMSC-024, ¶¶ 50, 53; see also United States v. Bagley, 

 (1985).

{15} We decline to address Defendant’s Brady argument because it was not
preserved below. Defendant argues that he preserved the issue in his motion for new
trial. That motion, however, fails to mention Brady or any other case discussing the
requirements of the Brady doctrine. More importantly, the motion did not discuss or
even mention any of the doctrinal bases for the Brady requirements, such as due
process or prosecutorial misconduct. See, e.g., Case, 

;
State v. Balenquah, 

, 

, 

. Furthermore,
neither the State nor the district court understood Defendant to be raising a Brady issue.
Instead, the State’s response addressed Defendant’s claim as a matter of newlydiscovered evidence and Defendant did not file a reply brief clarifying that he was
raising a Brady issue. Ultimately, the district court decided the motion relying on newly
discovered evidence principles.

{16} We acknowledge that the nomenclature used in a motion is not controlling and
that legal citations contained in a motion are not determinative of the issue being raised.
See, e.g., State v. Paiz, 

, 

, 

. Instead,
we look to the substance of the motion to determine the actual issue raised. 

 The
motion for new trial filed in this case did not in any way alert the district court to the
potential Brady issue or provide it with a fair opportunity to rule on a Brady issue. See
Rule 12-321(A) NMRA (“To preserve an issue for review, it must appear that a ruling or
decision by the [district] court was fairly invoked.”). The motion did not claim that the
prosecutor herself knew of the investigation or of Girlfriend’s arrest. Nor did it even
allege that the prosecution team was aware of the investigation or Girlfriend’s arrest.
See Case, 

 (explaining that “the ‘prosecution’ for Brady purposes
encompasses not only the individual prosecutor handling the case, but extends to the
prosecutor’s entire office, as well as law enforcement personnel and other arms of the
state involved in investigative aspects of the case” (alteration, internal quotation marks,
and citation omitted)); see also Smith v. Sec’y of N.M. Dep’t of Corr., 

 (10th Cir. 1995) (discussing a prosecution team theory and imputation of
knowledge to the prosecutor). The factual allegations of Defendant’s motion were
limited to assertions that Albuquerque Police Department (APD) officers prepared the
complaint and the arrest warrant issued against Girlfriend, and subsequently arrested
Girlfriend and that Detective Acata, an employee of APD, sat at counsel table with the
prosecutors at Defendant’s trial.

{17} Defendant’s assertion that one APD officer, who was not “involved in
investigative aspects of the case,” investigated and arrested Girlfriend for alleged
offenses completely distinct from the case in which she testified, is simply insufficient to
alert anyone to a potential Brady issue. See, e.g., Case, 

(alteration, internal quotation marks, and citation omitted); see also Smith, 

 (stating that for Brady purposes, knowledge of arms of the state “involved in
investigative aspects of a particular criminal venture” is imputed to the prosecutor).
Defendant’s motion seemingly seeks to impose some sort of strict liability upon the
State for a discovery violation—Defendant asserted that APD possessed the
information about Girlfriend’s arrest, that Detective Acata sat at the counsel table with
the prosecutors, and that the State failed to disclose the arrest, thus violating LR2-
400(D)(l), (3) NMRA (2016), as well as Rule 5-501(A)(3) NMRA. This, though, is not the
same as a Brady violation and nothing in the motion was sufficient to raise an allegation
of a Brady violation. In sum, merely alleging that possible impeachment information,
entirely unconnected to the case at hand, was possessed by a law enforcement officer
who also had no connection to the case at hand, does not implicate Brady to a sufficient
extent to preserve such an argument for appeal. We therefore will not address the
Brady argument brought for the first time on appeal. See Paiz, 

(“On appeal we only consider issues raised in the [district] court unless the issues
involve matters of jurisdictional or fundamental error.”).

{18} Although Defendant has argued the merits of the Brady issue and has not asked
us to address it as a matter of fundamental error, our Supreme Court has indicated
(albeit in an unpublished decision) that an improperly preserved Brady issue should be
analyzed for fundamental error. See State v. Gardner, No. S-1-SC-35981, dec. ¶ 30
(N.M. Sup. Ct. Mar. 8, 2018) (non-precedential); see also State v. Trujillo, 2002-NMSC-
005, ¶ 52, 

, 

 (stating that when an issue of prosecutorial
misconduct has not been properly preserved by a timely objection at trial, we have
discretion to review the claim on appeal for fundamental error). We find no fundamental
error occurred. To establish a Brady violation a defendant must show three things: “(1)
the prosecution suppressed evidence; (2) the evidence was favorable to the accused;
and (3) the evidence was material to the defense.” Case, 

(internal quotation marks and citation omitted). As we have alluded to above,
Defendant’s submission to the district court did not raise a viable question as to the first
prong of the test—whether the prosecution suppressed the evidence. Absent
information indicating a member of the prosecution team, as opposed to an unidentified
APD officer, possessed the information, knowledge of that information cannot be
imputed to the prosecutor and, therefore, no prosecutorial suppression occurred.

{19} While the failure to satisfy the first Brady requirement alone would justify a
refusal to find fundamental error here, we note also that the lack of information about
Girlfriend’s investigation and arrest did not prevent Defendant from vigorously
challenging her credibility at trial. Defendant was able to elicit evidence that Girlfriend
had given different versions of the incident at different times, including information as
critical as who fired the first shots, Defendant or Codefendant. There was also evidence
that Girlfriend told different versions of the events to her own daughter, and then denied
at trial that she had even spoken to her daughter about the shooting. Girlfriend’s
daughter also testified that she knows her mother lies. Significantly, Girlfriend was also
forced to admit that she found a gun on the floor of the SUV after the shooting, and
instead of giving it to the police, she attempted to hide it by tossing it into some bushes.
She also testified on cross-examination that during an interview with Detective Acata
she repeatedly denied removing the gun from the SUV until she was confronted with the
possibility that DNA testing would be done on the gun. The fact that the arrest
information was not the only source of impeachment material regarding Girlfriend, and
that Defendant was able to cast considerable doubt on her credibility without that
information, is a factor weighing against a finding of Brady materiality with respect to
that information. See, e.g., Case, 

 (discussing materiality of
suppressed information, noting that the witness’s credibility had already been
aggressively attacked, and concluding that cumulative evidence is not material for
purposes of Brady). Given the facts that Defendant did not show the prosecution
suppressed the information, and that the materiality of that information is at best
minimal, fundamental error was not present here. Cf. State v. Barber, 

, 

, 

 (providing that fundamental error occurs in “cases in
which a mistake in the process makes a conviction fundamentally unfair”).

{20} In addition to the Brady argument, Defendant references the Rules of Criminal
Procedure as part of his presentation on this issue. His argument consisted of five
sentences in his brief in chief, pointing out that Defendant had filed a demand for all
discovery required by Brady and Rules 5-501, 5-503, and 5-505 NMRA, including
potential impeachment evidence; that the State had a continuing duty to disclose newly
discovered evidence under Rule 5-505(A); and that the State was therefore required to
disclose the filing of the criminal complaint against Girlfriend, the issuance of the arrest
warrant, and the arrest. Defendant did not develop any type of argument about why the
State would be responsible under the rules for disclosing evidence of which the
prosecution team was unaware, nor cite any authority beyond the bare language of the
rules that would explain why the discovery rules were applicable and were violated
under the circumstances of this case. We will not address an undeveloped argument or
perform Defendant’s research for him. See State v. Guerra, 

, 

(explaining that appellate courts are under no obligation to review unclear or
undeveloped arguments); State v. Clifford, 

, ¶ 19, 

, 

 (reminding counsel that the appellate courts are not required to do their
research). We therefore do not address the question of whether a violation of the Rules
of Criminal Procedure occurred under the particular circumstances of this case.

D.     Evidence of Prior Violent Conduct

{21} As part of his self-defense and defense-of-others claims, Defendant proposed to
introduce evidence of specific violent conduct engaged in by Victim in the past. This
evidence included a twenty-five-year-old murder conviction; another alleged murder for
which Victim had not been charged; an alleged rape of a male inmate while Victim was
incarcerated; alleged rapes of several women occurring since 2015, when Victim was
released from prison; and the fact that Victim referred to himself, or was known as, “Hit
Man” or “the Don.” The State objected and argued that if Defendant was allowed to
introduce evidence of specific prior violent acts by Victim, the State would be allowed to
respond by presenting evidence of Defendant’s own prior violent acts. The State relied
on Rule 11-404(A)(2)(b)(ii) NMRA as the basis of its argument, and presented a litany of
prior violent acts by Defendant, including prior convictions, charged conduct that did not
lead to convictions, and uncharged conduct, that the State wanted to present to the jury
at trial.

{22} At a pretrial hearing the district court appeared to accept the State’s argument,
with the proviso that the “more prejudicial than probative” balancing provisions of Rule
11-403 NMRA would apply to any prior conduct evidence that either side attempted to
introduce. The district court specifically reserved ruling as to any particular piece of
evidence concerning prior violent conduct and required the parties to submit written
filings explaining the evidence each side proposed to present so the court could
properly apply the Rule 11-403 balancing test to each such piece of evidence. In sum,
at the hearing the district court made no definitive ruling about what prior violent conduct
evidence would be allowed at trial, from either side.

{23} On appeal Defendant argues that the State’s and the district court’s interpretation
of Rule 11-404(A)(2)(b)(ii) is erroneous and application of that interpretation was
reversible error. It is well established that a defendant claiming self-defense or defense
of others, as did Defendant here, may present evidence of specific prior violent acts by
the victim, if the defendant was aware of those prior acts at the time of the incident in
question. See State v. Maples, 

, 

. The purpose
of allowing such evidence is to permit the defendant to establish his or her “subjective
apprehension of the victim[,]” which caused the defendant to act reasonably to prevent
the victim from causing harm. Id. ¶ 18. It is also well established that Rule 11-403’s
balancing test applies to prior violent acts evidence, such that a defendant may not be
permitted to submit to the jury evidence of each and every violent act allegedly
committed by the victim in the past. See, e.g., State v. Baca, 

, ¶ 5, 

, 

 (holding that the district court “retains the discretion to exclude
specific instances of the victim’s conduct if the evidence is substantially more confusing,
cumulative, or prejudicial than probative). Admission of prior violent conduct evidence is
within the district court’s discretion, and exclusion of some instances of the victim’s prior
conduct will constitute an abuse of discretion only if the defendant was prevented from
proving an element of his defense. See id. ¶ 9. In particular, where the evidence is
cumulative, no abuse of discretion is committed if the evidence is excluded. See id. ¶
11. Thus, Defendant is correct that he was entitled to introduce at least some evidence
of Victim’s prior violent acts, as long as Defendant was aware of those acts at the time
of the shooting.

{24} It also seems apparent that Defendant’s interpretation of Rule 11-404(A)(2)(b)(ii)
is correct, and the district court’s tentative acceptance of the State’s interpretation was
not. Neither the parties nor this Court has been able to locate published cases
discussing this provision of the rules. However, our Supreme Court, in an unpublished
decision, addressed the very issue raised by the parties in this case. State v. Ramirez,
No. S-1-SC-34576, dec., (N.M. Sup. Ct. Dec. 1, 2016) (non-precedential). Ramirez, like
this case, was a self-defense case. See id. ¶ 59. At trial the state was allowed to
present evidence of a prior violent incident during which the defendant had head-butted
a police officer. Id. ¶ 55. Our Supreme Court held that this was error, stating as follows:
“While it is correct that the defendant who offers evidence of a victim’s pertinent
character trait (e.g., violence) opens the door to allow the prosecution to offer evidence
of the defendant’s same character trait, under Rules 11-404(A)(2)(b) and 11-
404(A)(2)(b)(ii) . . . , the evidence that is admitted may only be reputation or character
evidence, unless the character trait is an essential element of the crime charged.”
Ramirez, No. S-1-SC-34576, dec. ¶ 59 (emphasis added). The Court went on to point
out that introducing evidence of a defendant’s past acts of violence does not prove an
essential element of the crime charged because violence is not a specific element of
murder or self-defense. Id. Finally, the Court noted that it appeared that the evidence of
the defendant’s prior violent act was offered only to show the defendant’s propensity for
violence, which is impermissible. See id. Therefore, Ramirez held in essence that only
reputation or opinion evidence should have been admitted under Rule 11-
404(A)(2)(b)(ii). See Ramirez, No. S-1-SC-34576, dec. ¶ 59.

{25} Of course, as an unpublished opinion, Ramirez is not binding precedent, and we
discuss it only for its persuasive value. See Rule 12-405(A) NMRA. We note first that
Rule 11-404(A)(2)(b)(ii) is modeled after the federal version of that rule. Rule 11-404
comm. cmt. (discussing 2012 amendment). When the federal version of Rule 11-
404(A)(2)(b)(ii) was added to Fed. R. Evid. 404, the Federal Rules Advisory Committee
discussed the purpose of the amendment and then made the following statement: “By
its placement in Rule 404(a)(1), the amendment covers only proof of character by way
of reputation or opinion.” Fed. R. Evid. 404 advisory comm. notes. Since the federal rule
is similar to our own, the advisory committee’s discussion of the federal rule is
persuasive authority for interpreting our own version. See State v. Lopez, 1997-NMCA-
075, ¶ 10, 

, 

 (stating the same proposition with respect to
federal case law and legislative history). The federal version of the rule does not allow
proof of character by way of prior violent acts, but only by reputation or opinion
evidence, which is exactly what Ramirez held.

{26} In addition, the discussion in Ramirez comports with the purposes of our
evidentiary rules concerning prior conduct by parties. As Ramirez implies, admission of
evidence of prior conduct is severely limited because in many cases the only purpose
for offering such evidence is to establish a propensity by a party to act in a certain way.
See Ramirez, No. S-1-SC-34576, dec. ¶ 59 (“It seems that the information of [the
d]efendant head-butting an officer is being used only to show [the d]efendant’s
propensity for violence.”). The case before us clearly illustrates the issue. Defendant
sought to introduce evidence of Victim’s prior violent acts for a permissible purpose, to
show he was afraid of Victim. See Maples, 

. In response, the
State offered no permissible purpose for allowing evidence of Defendant’s prior violent
conduct, relying solely on the language of the rule. And as Defendant argued below and
argues on appeal, Defendant’s violent history has no relevance to the issues in this
case, other than as impermissible propensity evidence tending to show Defendant did
not act in self-defense or in defense of others. Adopting the State’s interpretation of the
provision would, in self-defense cases, essentially abrogate the evidentiary rules’
forceful limitation of prior conduct evidence to a few permissible purposes, and would
allow the State to introduce such highly prejudicial evidence against a defendant simply
because the defendant attempted to prove his defense by showing he was aware of the
victim’s history of violent acts. We reject such an interpretation and instead adopt the
one set out in Ramirez: under Rule 11-404(A)(2)(b)(ii), the evidence that the state may
responsively introduce is limited to reputation or opinion evidence in most instances,
unless the defendant’s character trait is an essential element of the crime charged.

{27} The fact that the State’s interpretation of Rule 11-404(A)(2)(b)(ii) and the district
court’s apparent acceptance of that interpretation was wrong, does not end our inquiry.
We must still decide whether Defendant established that he was prejudiced as a result.
See State v. Fernandez, 

, ¶ 13, 

, 

 (“In the
absence of prejudice, there is no reversible error.”). Defendant argues that the district
court’s action “gutted [Defendant’s] ability to support his self-defense and defense of
another claims.” We have difficulty with this assertion, however, because Defendant
was allowed to introduce some evidence of Victim’s prior violent conduct, and the State
was allowed to introduce almost no evidence of Defendant’s own violent conduct except
that which had resulted in convictions. Defendant testified that he knew of Victim’s prior
murder conviction and felt threatened as a result. He was also allowed to call Victim
“Hit” or “Hit Man” on the stand several times, mentioning that the nickname also made
him feel threatened. Through cross-examination of Girlfriend, Defendant was allowed to
present evidence that Victim had four other felony convictions since 2008, in addition to
the murder conviction about which Defendant testified.

{28} In response to this “prior violent conduct” evidence concerning Victim, the State
was not allowed to delve into any of the many instances of Defendant’s prior charged or
uncharged conduct that the State had originally proposed to explore. Instead, the district
court limited the State to eliciting evidence of Defendant’s prior felony convictions.

{29} On appeal Defendant has not argued that any of the evidence concerning his
prior convictions was wrongly admitted. Instead, he argues that he was inhibited from
even attempting to introduce evidence about Victim’s prior violent acts, such as the
alleged rape of an inmate or the alleged rapes of women since 2015, due to the district
court’s apparent acceptance of the State’s position regarding Rule 11-404(A)(2)(b)(ii).
We point out that Defendant was not inhibited from presenting all of the prior violent
conduct evidence for which he sought admission, as we have discussed above.

{30} In addition, Defendant did not preserve this “inhibition” argument below. As we
noted above, at the pretrial hearing the district court made no definitive ruling as to what
evidence would be permitted and what would not. At trial, the district court reiterated
that it was reserving ruling on the evidence of prior violent conduct, as to both Victim
and Defendant. Defendant did subsequently state that he did not plan on “going into”
the alleged prison rapes or other alleged rapes, but he did not explain why. Defendant
never made a request to have the district court make a final determination about what
evidence would be permitted and what would not, or how the State might be permitted
to retaliate if he introduced other evidence of prior violent acts by Victim. He also did not
attempt to introduce additional evidence of prior violent conduct by Victim. By failing to
do so, he gave the district court no opportunity to apply Rule 11-403 to any other
evidence he might have wanted to offer, or to address his concerns about the alleged
inhibitory effect of the court’s interpretation of Rule 11-404(A)(2)(b)(ii). It is axiomatic
that the district court cannot be expected to rule on matters that are not presented to it
for decision, and we will not reverse the court on grounds not presented to that court.
See State v. Montoya, 

, 

 (“In order to preserve an
issue for appeal, a 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.” (internal quotation marks and citation omitted)).

{31} In the end, Defendant attempted to introduce only two instances of prior violent
conduct by Victim that he knew about at the time of the shooting: Victim’s murder
conviction, and Victim’s “Hit Man” nickname. The district court allowed him to testify
about both, and as we have discussed, did not allow the State to introduce its own
violent-conduct evidence in response. To the extent he now argues that he was sub
silentio inhibited from attempting to present evidence of additional prior violent acts, that
is not a question we can review without a record supporting it. See State v. Hunter,

, 

, 

 (“Matters not of record present no
issue for review.”). We therefore hold that any prejudice Defendant may have suffered
as a result of the district court’s erroneous interpretation of Rule 11-404(A)(2)(b)(ii) is
not of record and cannot be the basis for reversal.

{32} A review of the evidence introduced at trial, which is all we can consider at this
point, shows that the district court was appropriately cautious about admitting evidence
of prior violent conduct as to both Victim and Defendant, given the restrictions of Rule
11-403. The district court specifically stated that it wanted to avoid “mini[ ]trial[s]” on
extraneous matters. Although the district court appears to have misconstrued Rule 11-
404(A)(2)(b)(ii), when put to the test and presented with the actual evidence that
Defendant and the State wanted to introduce, the court rejected most of the evidence
proffered by the State and admitted only evidence that was admissible under other rules
or for other reasons. No error has been claimed as to the specific pieces of evidence
that were presented to the district court for a decision as to admissibility. As to other
rulings that the district court could have been, but was not, asked to make, we will not
speculate.

{33} As a final note, when a victim’s prior violent acts are excluded by the district
court, the main issue on appeal is whether a defendant was deprived of the opportunity
to present his defense. See State v. Armendariz, 

, 

, 

, overruled on other grounds by State v. Swick, 

, 

. That did not happen here. Defendant was allowed to present
evidence that he feared Victim, and to show that he had reason to do so given Victim’s
violent history. Defendant also testified about the specific facts surrounding the shooting
that caused him to fire at the SUV—that he thought the SUV may have run over a
person and that it was driving toward a house containing a number of children.
Defendant therefore had an adequate opportunity to present his claims of self-defense
and defense of others, and we will not reverse the district court on this issue.

III.   CONCLUSION

{34}   Based on the foregoing, we affirm Defendant’s convictions.

{35}   IT IS SO ORDERED.

JULIE J. VARGAS, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

KRISTINA BOGARDUS, Judge