State v. Lymon

                                                              Office of the Director             New Mexico
                                                               09:31:03 2021.06.24               Compilation
                                                                             '00'06-             Commission


            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: May 27, 2021

No. S-1-SC-37729

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DAVON LYMON,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Released for Publication June 29, 2021.

Harrison & Hart, LLC
Nicholas Thomas Hart
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
John J. Woykovsky, Assistant Attorney General
Santa Fe, NM

for Appellee

                                          OPINION

BACON, Justice.

{1}    Defendant Davon Lymon shot Albuquerque Police Department (APD) Officer
Daniel Webster six times during a traffic stop in 2015. Defendant was charged with and
convicted of first-degree murder, two counts of tampering with evidence related to first-degree murder, forgery, shooting from a vehicle resulting in great bodily harm, receiving
or transferring a stolen vehicle, and resisting, evading, or obstructing an officer. The trial
court later vacated his convictions for shooting from a vehicle and for one of the two
tampering counts.
{2}    On direct appeal, Defendant raises challenges to the district court’s final verdict,
claiming jury coercion, improper denial of a self-defense instruction, improper admission
and improper exclusion of evidence, and juror misconduct. Defendant also argues that
these issues resulted in a cumulative error. Defendant’s arguments are not persuasive,
and we affirm Defendant’s convictions.

I.     BACKGROUND

{3}    Officer Webster pulled over Defendant and passenger Savannah Garcia in a
Walgreens parking lot because Defendant appeared to be driving a stolen Honda
motorcycle. After the motorcycle came to a stop, Officer Webster exited his vehicle with
his weapon raised and pointed toward Defendant and Garcia. Officer Webster ordered
Defendant and Garcia to raise their hands over their heads and approached the
motorcycle. Defendant lowered his hands, although Garcia left hers above her head.
During the encounter, Officer Webster stepped on Defendant’s foot. Defendant asked
why Officer Webster was stepping on his foot, and Officer Webster responded, “This is
how I control you.” Officer Webster holstered his weapon and attempted to handcuff
Defendant. Officer Webster handcuffed Defendant’s left hand, and then as Officer
Webster tried to handcuff Defendant’s right hand, Defendant appeared to experience
pain in his shoulder.

{4}     Approximately forty-eight seconds after Officer Webster holstered his weapon,
Defendant leaned away from Officer Webster, drew his own pistol with his right hand,
and shot Officer Webster. Defendant fired the first four shots in rapid succession. The
fifth and sixth shots were separated by more time and were fired as Officer Webster
was running away and attempting to take cover. Defendant and Garcia then fled the
scene separately.

{5}    After a thirteen-day trial, the jury deliberated and returned with its preliminary
verdict. For Count 1, the jury found Defendant “not guilty” of first-degree murder but
neither filled out a verdict form for a lesser-included offense of Count 1, second-degree
murder or voluntary manslaughter, nor reported any disagreement to the trial court as
the jury instructions directed. But the jury’s findings for the special verdicts and other
counts suggested that the jury found that Defendant was guilty of first-degree murder.

{6}     After the jury returned its preliminary verdict forms, the trial court told the parties,
“[The jurors] turned the verdict forms over, but there’s an inconsistency [with Count 1]
and the court does not know what their verdict is based on what they have answered.”
The trial court noted, “It appears on all counts, [the jurors] found [Defendant] guilty, but
what I’m concerned about is the special interrogatories indicate that he committed first-degree murder, but at the same time, they wrote on [the verdict form for Count 1] not
guilty of first-degree murder. . . . And then [the jurors] did not fill out any of the other
lesser-included offenses.”

{7}    After discussing the inconsistency with the parties, the trial court decided to send
a note asking the jury to clarify its verdict instead of polling the jury. The State had
suggested polling the jury, but Defendant opposed it. The trial court decided not to poll
the jury “just yet.” Instead, the trial court stated, “I need to send in a question, I believe,
and I need to frame it in such a way that it doesn’t influence them one way or another,
but I need to find out [the verdict for Count 1].” Eventually, the trial court decided to send
all of the verdict forms back to the jury with a question that stated, “What is your verdict
as to Count 1?” Defendant objected to the phrasing, suggesting that the trial court
phrase the question in a more neutral way and direct the jury to consider the lesser-included offenses.

{8}     The jury subsequently returned the verdict forms for Count 1 with both the “not
guilty” and “guilty” verdict forms for first-degree murder signed. The jury told the bailiff
that the verdict form on top—the guilty verdict form—was the proper verdict form for
Count 1. Defendant moved for a mistrial, which the trial court denied. The trial court
then sent back to the jury new verdict forms, the jury instructions, and a second note
stating, “You have signed both verdict forms as to Count 1. The Court has provided new
verdict forms as to Count 1. Please indicate your verdict on these new forms as to
Count 1.”

{9}    The jury returned the verdict forms a third time, finding Defendant guilty of first-degree murder. The trial court polled the jury, whereupon the jurors unanimously
confirmed that the verdicts reflected their intent.

II.    DISCUSSION

{10} The primary issue in this case is whether the trial court’s conduct coerced the
jury. After considering a trial court’s authority to clarify an inconsistent and ambiguous
preliminary verdict, we conclude that the trial court’s conduct was not coercive. We also
conclude that the trial court did not err when it denied a self-defense instruction,
included and excluded certain evidence, and denied an evidentiary hearing based on
Defendant’s allegation of juror misconduct.

A.     The District Court’s Communication Clarified the Verdict and Was Not
       Coercive

{11} Defendant contends that the trial court committed a reversible error when it did
not accept the preliminary verdicts, including the “not guilty” verdict for first-degree
murder. He suggests that the trial court coerced the jury by inquiring into the
inconsistent preliminary verdict for Count 1. As we explain below, the trial court did not
coerce the jury or abuse its discretion when it sought to clarify the jury’s inconsistent
verdict and denied Defendant’s motion for a mistrial.

1.     Standard of review

{12} The trial court denied Defendant’s motion for a mistrial after the jury returned
both guilty and not guilty verdict forms for Count 1. “A denial of a motion for mistrial is
reviewed under an abuse of discretion standard.” State v. Swick, 

, 

 (internal quotation marks omitted) (quoting State v. Johnson, 2010-
NMSC-016, ¶ 49, 

, 

). “An abuse of discretion occurs when the
ruling is clearly against the logic and effect of the facts and circumstances of the case.”
Id. ¶ 68 (internal quotation marks omitted) (quoting State v. Rojo, 

, 

, 

). An abuse of discretion occurs when the trial court
misapprehends or misapplies the law. State v. Worley, 

, 

; Murken v. Solv-Ex Corp., 

, 

, 

.

2.     A trial court may clarify a jury’s preliminary verdict before entering the final
       verdict

{13} A trial court has the authority to clarify a jury’s preliminary verdict before entering
a final verdict. See State v. Aguilar, 

, ¶¶ 52, 54, 

. A
preliminary verdict expressed by the jury’s preliminary verdict forms is not, in fact, a final
verdict. See id. ¶¶ 52, 54. This Court has described preliminary verdict forms and other
indications of a jury’s deliberations as “no more than an initial vote,” id. ¶ 52, and “a
snapshot of the jury’s thinking partway through deliberations,” State v. Phillips, 2017-
NMSC-019, ¶ 18, 

 (referring to a note sent from the jury to the trial court
indicating a possible deadlock). “[A] verdict is not final until it is ‘rendered by the jury in
open court and accepted by the court.’” Aguilar, 

, ¶ 52 (quoting Phillips,

).

{14} A trial court is not compelled to accept a preliminary verdict. See id. ¶¶ 52, 54;
State v. Apodaca, 

, 

, 

. Neither is a
trial court “empowered to refuse arbitrarily to accept a jury verdict.” Apodaca, 1997-
NMCA-051, ¶ 25. If the actual intent of the jury, as reflected in a preliminary verdict,
appears ambiguous or inconsistent, it is within the trial court’s authority to refuse to
accept the preliminary verdict and seek to clarify the jury’s intent. See 

 ¶ 21 (citing
State v. Searles, 

 (1931). “[T]he trial court is under a nondiscretionary
duty to clarify any ambiguity in the jurors’ responses and obtain a clear and
unambiguous response from the jury . . . .” Phillips, 

 (referring to
a trial court’s duties related to jury polls). Indeed, “[i]n any case upon the appearance of
any uncertainty or contingency in a jury’s verdict, it is the duty of the trial judge to
resolve that doubt, for there is no verdict as long as there is any uncertainty or
contingency to the finality of the jury’s determination.” State v. Holloway, 1987-NMCA-
090, ¶ 18, 

, 

 (brackets omitted) (internal quotation marks
omitted) (quoting United States v. Morris, 

 (10th Cir. 1979).

{15} Polling the jury under Rule 5-611(E) NMRA is one way to clarify a jury’s intent
when it presents the trial court with an ambiguous preliminary verdict. See Apodaca,

. While Rule 5-611(E) focuses on a jury’s unanimity, New Mexico
courts have also recognized the “‘equally important needs for clarity and certainty as to
the meaning of the verdict being reported.’” Apodaca, 

 (quoting
United States v. Rastelli, 

 (2d Cir. 1989) (relating a trial court’s
authority under Rule 31(d) of the Federal Rules of Criminal Procedure—which states
the entirety of Rule 5-611(E)—when a jury’s verdict is uncertain or ambiguous)). A trial
court must poll the jury if any party requests it, or on its own motion, after the jury
returns a preliminary verdict. Rule 5-611(E). If the poll lacks unanimity, then the trial
court may direct the jury to continue deliberations. 

{16} A trial court may also communicate with the jury to clarify its intent and can utilize
various methods to do so. Phillips, 

 (describing different methods
of “clarifying the jurors’ ambiguous responses” that are available to the district court);
State v. Rickerson, 

, ¶ 7, 

, 

 (regarding a trial
court’s inquiry into the numerical division of the jurors’ votes). “[A] judge not only can,
but should, communicate with the jury and can do so if the communication leaves with
the jury the discretion whether or not it should deliberate further.” State v. McCarter,

, ¶ 6, 

, 

. The trial court has “significant
discretion to undertake ‘proper remedial measures’ to clarify the jurors’ ambiguous
responses.” Phillips, 

 (quoting Holloway, 

, ¶ 17)
(referring to the trial court’s authority when polling the jury).

{17} In this case, the jury’s preliminary verdict under Count 1 was inconsistent and
ambiguous, and the trial court had both the authority and the duty to clarify the jury’s
intent before entering a final verdict. To resolve Count 1, the jury could enter a verdict
that found Defendant guilty of first-degree murder, second-degree murder, or voluntary
manslaughter or a verdict of not guilty of as many as all three charges. The jury was
instructed to initially consider first-degree murder. If the jury unanimously found
Defendant guilty of first-degree murder, it was to sign the “guilty” verdict form for first-degree murder and leave all of the other forms for Count 1 unsigned. If the jury
unanimously found Defendant not guilty of first-degree murder, it was to sign the “not
guilty” verdict form for first-degree murder and consider second-degree murder. In
considering second-degree murder and then voluntary manslaughter, the jury was
instructed to follow the same procedure. If the jury could not unanimously agree on the
verdict, then the jury was to report the disagreement to the trial court and not sign any
verdict forms.

{18} The jury’s first preliminary verdict for Count 1 was inconsistent and ambiguous
because it was incomplete. The jury signed the “not guilty” verdict form for first-degree
murder but left all of the other verdict forms for Count 1 unsigned, contrary to the
instructions. In addition, the jury did not report to the trial court that it was deadlocked or
that it was unable to reach a determination on any of the charges presented. Thus, the
trial court was left with a preliminary verdict that needed to be reconciled because the
returned special verdict forms suggested that the jury found Defendant guilty of first-degree murder, a finding that conflicted with the “not guilty” verdict form the jury
returned.

{19} The jury’s second preliminary verdict was also inconsistent and ambiguous
because the jury returned both “guilty” and “not guilty” verdict forms signed for Count 1.
In contrast, the jury in Aguilar wrote the word “void” on the verdict forms that it had
previously signed to indicate that it intended to retract those forms after the trial court
inappropriately notified the jury of its ambiguous preliminary verdict. 

,
¶¶ 10-11. The jury here did not indicate on the verdict forms themselves its intent to
abandon its signed “not guilty” verdict form for first-degree murder. Instead, the jury told
the bailiff that the top verdict sheet—the “guilty” verdict—was correct. This left the trial
court with two completely opposite verdict forms for Count 1 that it could not reconcile.
{20} The trial court was not compelled to accept either the first or the second
preliminary verdict and refusing to do so was not arbitrary. See Apodaca, 1997-NMCA-
051, ¶ 25. Rather, in this instance, the trial court had a duty to resolve the doubt and
ambiguity presented by the jury’s preliminary verdicts for Count 1. Holloway, 1987-
NMCA-090, ¶ 18. It was reasonable and within the trial court’s authority to send the note
that it did, seeking to clarify the jury’s intent before entering a final verdict, and to
provide new verdict forms to the jury.

3.     The method used by the district court to clarify the preliminary verdicts
       was not coercive

{21} Having established that the trial court had the authority and duty to clarify the
jury’s intent before entering a final verdict, we turn now to the trial court’s method of
clarification and consider whether the trial court coerced or influenced the jury. The
most appropriate course of action would have been to poll the jury after the jury
returned its first preliminary verdict. In fact, the State requested that the jury be polled,
per Rule 5-611(E). Despite this request, the trial court determined that it would not poll
the jury “just yet” and decided to send the note to the jurors to clarify their verdict.

{22} While the trial court has the authority to attempt to clarify the jury’s preliminary
verdict, it exceeds its authority if its actions influence or coerce the jury. McCarter, 1980-
NMSC-003, ¶¶ 7-8; see Holloway, 

, ¶ 21 (“[T]he court’s polling or
questioning must also be carried out so as to avoid influencing or coercing a juror’s
verdict.”). A trial court coerces a jury if it causes any jurors to “abandon their honest
convictions.” See State v. Romero, 

, 

. If a trial
court coerces the jury, then it violates the defendant’s “right to a fair and impartial trial.”
McCarter, 

, ¶ 7. If a court does have a coercive effect on a jury, then it
is a reversible error that requires a new trial. State v. Juan, 

, 

, 

.

{23} A trial court may have a coercive effect on a jury through the cumulative effect of
its actions that depend on the circumstances from which they arise. See State v. Laney,

, 

, 

; Juan, 

(considering the day, time of day, and length of deliberations to conclude that the trial
court’s decision not to respond to the jury’s question was coercive). A trial court coerces
a jury when it tells or suggests to a jury that it must continue to deliberate because the
trial court’s input may pressure jurors to change their convictions. McCarter, 1980-
NMSC-003, ¶ 6. The classic “shotgun” instruction often raises concerns regarding
coercion. 

{24} Defendant contends that the trial court’s questions were akin to shotgun
instructions rather “than a neutral inquiry into the status of the deliberations.” Defendant,
quoting McCarter, 

, ¶ 7, argues that the trial court’s inquiry was
coercive and violated his “right to a fair and impartial trial.” Defendant suggests that the
trial court should have provided clarifications similar to those considered by the Tenth
Circuit in United States v. Shippley, 

 (10th Cir. 2012).
{25} In Shippley, the jury returned an inconsistent verdict that effectively “convicted
and acquitted [the defendant] of the charged conspiracy.” 

 (describing the
inconsistency between returning a general verdict convicting the defendant of
conspiracy to distribute but also returning responses to special interrogatories that
“indicated [the defendant] had not conspired to distribute any of the drugs listed in the
indictment”). The trial court asked the jury to deliberate again and read the jury a
supplemental instruction. 

 The trial court brought the inconsistency in the verdict to
the jury’s attention stating, “[y]our ostensible verdict of guilty as to the crime of
conspiracy as charged in Count One of the Indictment is inherently inconsistent with
your answers to the Special Questions.” 

 (alteration in original). The trial court then
explained “that, if the jury wished to render a verdict of not guilty it should reconsider its
answer in the general verdict form. . . . [I]f the jury wanted to render a guilty verdict it
should reconsider its answers to the special interrogatories.” 

. After
describing the inconsistency in the verdict, the trial court provided guardrails for the
jury’s continued deliberations. 

 The trial court emphasized that the jury could maintain
its initial preliminary verdict and “that any changes must be unanimous.” 

.
The trial court cautioned “that nothing [it] said was meant to ‘intimate or indicate what I
think your verdicts or answers should be. Those decisions are entirely up to you.’” 

Soon after, the jury returned a consistent guilty verdict. 

{26} The defendant in Shippley contended that the trial court’s instruction was
coercive. 

. The Tenth Circuit, in an opinion written by now-Justice
Gorsuch, disagreed. 

. The Tenth Circuit recognized that some of the trial
court’s language could have been construed as coercive when viewed in isolation. 

(“While it’s true the [trial] court told the jury that its ‘ostensible verdict’ of guilty was
‘inherently inconsistent’ with the special verdict findings, and while one can argue
whether the jury might have taken this language in isolation as a criticism and perhaps
even coercive, the court didn’t stop there.”) However, the Tenth Circuit concluded that
the trial court was not coercive because, after bringing the jury’s attention to the
inconsistency in its verdict, the trial court provided sufficient precautionary instructions
to avoid any coercive influence on the jury. 

 In particular, the trial court assured the
jury that the jury alone was the ultimate fact-finder and emphasized an intent not to
affect the jury’s verdict. 

{27} Unlike Shippley, the trial court in this case did not bring attention to the jury’s
inconsistent verdict in a way that may have been considered criticism or coercion.
Instead, aware that it could not influence or coerce the jury, the trial court here asked
the jury a plain, clarifying question: “What is your verdict as to Count 1?” This question
is the same question the trial court would have asked when polling the jury even if there
had been no inconsistency. In light of the jury instructions, this question had the same
effect as asking the jury to consider the lesser-included offenses under Count 1 as
Defendant’s counsel had suggested. Had the trial court brought the issue with the
verdict’s apparent inconsistency to the jury’s attention, it would have needed to provide
cautioning instructions as the Shippley Court did to ensure that the jury did not abandon
its honest convictions due to the trial court’s attempt to clarify the jury’s intent. However,
the trial court’s first question to the jury did not suggest that the jury was required to
continue its deliberation or pressure possible holdout jurors to conform, in part because
there was no indication that the jury was deadlocked. See Rickerson, 

,
¶ 4. The trial court’s second question was similarly neutral, especially in light of the
jury’s communication with the bailiff indicating that the guilty verdict form for Count 1
was the correct verdict form.

{28} Under the circumstances, the trial court had a duty to clarify the jury’s intent,
given the inconsistency of Count 1, and it endeavored to ask a question that would not
have an effect on the jury’s honest convictions. We would have preferred that the trial
court had polled the jury following the return of the first preliminary verdict forms per
Rule 5-611(E). However, we conclude that the trial court did not abuse its discretion and
did not coerce the jury when it issued the two notes to the jury.

B.    Self-Defense Instruction

1.    Standard of review

{29} Defendant argues that the trial court erred in refusing to give a self-defense
instruction. We review de novo whether a trial court properly refused a defendant’s
tendered jury instruction because the question “is closer to a determination of law than a
determination of fact.” State v. Ellis, 

, 

, 

 (quoting State v. Lucero, 

, 

, 

). “We
view the evidence in the light most favorable to the giving of the requested instruction.”
State v. Hill, 

, 

, 

. “[W]hen there is
contradictory testimony, we rely on [the d]efendant’s version of the events.” Ellis, 2008-
NMSC-032, ¶ 2. When the evidence supports giving an instruction, then failure to
provide the instruction is a reversible error. State v. Jones, 

, 

 (citing State v. Brown, 

, 

, 

).

2.    A self-defense instruction here requires excessive force

{30} “In New Mexico, a person has a limited right of self-defense against a police
officer using excessive force.” 

 ¶ 7 (citing State v. Kraul, 

, ¶ 29, 

, 

). This right to assert self-defense against a police officer is
qualified “because police officers have a duty to make arrests and a right to use
reasonable force when necessary.” Ellis, 

. A person “does not
have the right to self-defense when the officer is using necessary force to effect an
arrest.” Kraul, 

, ¶ 29. A person is entitled “to assert self-defense only
when the officer is using excessive force.” Ellis, 

.

{31} Defendants are entitled to a self-defense instruction “‘whenever [they present]
evidence sufficient to allow reasonable minds to differ as to all elements of the
defense.’” 

 ¶ 15 (quoting State v. Lopez, 

, 

, 

). For a self-defense instruction, a defendant must present evidence of “‘fear by
an apparent danger of immediate death or great bodily harm, that the killing resulted
from that fear, and that the defendant acted as a reasonable person would act under
those circumstances.’” Lopez, 

 (quoting State v. Branchal, 1984-
NMCA-063, ¶ 5, 

, 

). A jury instruction for self-defense
against a police officer additionally requires the defendant to provide some evidence
that the police officer used excessive force. Ellis, 

. “If a defendant
presents any evidence, even slight, to support a jury instruction, he is entitled to the
giving of the requested instruction.” Jones, 

; see Ellis, 2008-
NMSC-032, ¶¶ 15-16. If “the court concludes that reasonable minds could not find that
the officer used excessive force, the matter ends there, and the court should not instruct
the jury on the elements of self-defense.” Ellis, 

.

{32} Police officers act with excessive force when they use more force than is
necessary to effect an arrest, as “viewed objectively from a reasonable officer’s
perspective.” Id. ¶ 31. The force must be “unreasonable and unnecessary.” Jones,

. The reasonableness of a police officer’s actions depends on the
facts and circumstances of the encounter, “‘including the severity of the crime at issue,
whether the suspect pose[d] an immediate threat to the safety of the officers or others,
and whether [the suspect was] actively resisting arrest or attempting to evade arrest by
flight.’” Ellis, 

 (first alteration in original) (quoting Graham v.
Connor, 

 (1989). “The objective standard . . . takes into consideration
the ‘fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.’” Jones, 

 (quoting
Ellis, 

).

{33} Defendant argues that he was entitled to a self-defense instruction because he
presented some evidence that Officer Webster acted with excessive force. Specifically,
Defendant argues that he presented evidence that (1) he was driving appropriately such
that exiting the vehicle with a weapon drawn constituted excessive force and (2) APD
considers drawing a weapon to be a use of force at the top of APD’s spectrum of force
(just below using the weapon). Defendant also contends, without presenting any
evidence, that Officer Webster acted with excessive force when he placed his foot on
Defendant’s foot as a method of control.

{34} Even if we accept the premise that Defendant was not driving erratically and was
not aware that the motorcycle was stolen, see Ellis, 

, the evidence
that Defendant points to does not allow reasonable minds to differ as to whether Officer
Webster used excessive force. Officer Webster exited his vehicle with his gun drawn,
but police officers are permitted to unholster their weapons in certain circumstances.
Testimony showed that police officers are aware that suspects on motorcycles pose a
more immediate threat than those in vehicles because motorcycles do not afford the
approaching officer the same protection in a stop. Accordingly, it was reasonable and
necessary for Officer Webster to exit his vehicle with his weapon raised because
stopping and approaching the motorcycle posed an immediate threat to his safety as a
police officer. See Jones, 

. Furthermore, the fact that APD
considers drawing a weapon a use of force does not render such an action excessive
force. Most importantly, Officer Webster deescalated the amount of force he used after
the encounter began because he holstered his weapon. “[R]easonable minds could not
find that [O]fficer [W]ebster used excessive force,” as viewed from a reasonable officer’s
perspective, and the matter of whether Defendant was entitled to a jury instruction for
self-defense ends here. Ellis, 

. The trial court properly refused the
self-defense instruction.

C.    Evidentiary Issues

{35} Defendant argues that the trial court erred when it (1) admitted impeachment
evidence of Defendant’s fraud conviction that was over ten years old, (2) admitted
evidence of Defendant’s previous encounter with a different police officer, and (3)
prohibited Defendant from inquiring into a witness’s past act on cross-examination. We
conclude that the trial court did not err when it admitted this evidence and limited
Defendant’s cross-examination.

1.    Standard of review

{36} “We review the [trial] court’s decision to admit or exclude evidence for an abuse
of discretion.” State v. Guerra, 

, 

. “Abuse of
discretion is . . . a ruling clearly against the logic and effect of the facts and
circumstances before the court.” State v. Lucero, 

, ¶ 14, 

,

 (citation omitted). “A misapprehension of the law upon which a court
bases an otherwise discretionary evidentiary ruling is subject to de novo review.” State
v. Martinez, 

, 

,

.

2.    The trial court did not abuse its discretion in admitting evidence of
      Defendant’s fraud conviction

{37} Defendant argues that the trial court abused its discretion by allowing the State to
introduce evidence of Defendant’s eighteen-year-old felony fraud conviction due to its
prejudicial nature in light of his forgery charge. Evidence of a conviction where more
than ten years have passed since conviction or release is admissible if “its probative
value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect” and the proponent gives proper notice of the intent to use the
evidence. Rule 11-609(B) NMRA. Defendant argues that “the State failed to make ‘an
exceptional showing of probative value’” to support admission of the fraud conviction.

{38} Rule 11-609(B) does not require the trial court to find that evidence has
exceptional probative value, only that the probative value “substantially outweighs its
prejudicial effect.” The trial court here balanced the “probative value, supported by
specific facts and circumstances,” against the prejudicial effect of the evidence of the
fraud conviction before allowing that evidence to be admitted. See Rule 11-609(B). The
State originally sought to admit evidence of Defendant’s 2001 felony convictions for
both fraud and forgery for impeachment purposes. The State argued that should
Defendant testify, his testimony would “be to contradict some or all of the State’s
witnesses” such that Defendant’s credibility and truthfulness as a witness would
become crucial. See State v. Conn, 

, ¶ 19, 

, 

.

{39} The trial court found Defendant’s 2001 fraud and forgery convictions “highly
probative of Defendant’s truthfulness” because even though they were more than ten
years old, fraud and forgery are crimes “involving dishonest acts or false statements.”
See NMSA 1978, § 30-16-6 (2006) (fraud); NMSA 1978, § 30-16-10 (2006) (forgery).
The trial court noted that Defendant’s credibility could “be a central issue at trial if he
testifies.” However, because one of the counts Defendant faced at trial was forgery, the
trial court decided to exclude evidence of the 2001 forgery conviction. See State v.
Trejo, 

, ¶ 12, 

, 

 (“[C]onvictions for the same
crime should be admitted sparingly.”) The trial court found that the “[p]rejudice to
Defendant from evidence of his 2001 conviction for forgery outweighs the probative
value of the evidence in his trial on murder and forgery so as to render the evidence
inadmissible for impeachment purposes.” However, the trial court allowed the State to
introduce evidence of the eighteen-year-old fraud conviction to impeach Defendant’s
testimony, finding that the probative value of Defendant’s fraud conviction “substantially
outweighs the prejudicial effect” because Defendant’s “credibility may be a central issue
at trial if he testifies.” The trial court also included a limiting instruction for the fraud
conviction that directed the jury to consider evidence of the conviction only as to the
truthfulness of Defendant’s testimony.

{40} The trial court did not abuse its discretion by admitting evidence of Defendant’s
fraud conviction.

3.     The trial court did not abuse its discretion in admitting evidence of
       Defendant’s previous encounter with a police officer

{41} Defendant argues that the trial court should not have admitted evidence of a past
encounter with a different APD officer. He contends that the evidence is inadmissible
propensity evidence that is prohibited by Rule 11-404(B) NMRA. The State argues that
the trial court properly admitted the evidence under Rule 11-404(B) “to show motive,
intent and knowledge.”

{42} Evidence of a crime, wrong, or other act may be admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of
accident.” Rule 11-404(B)(2). Whether evidence may be admitted does not depend on
the similarity between the two acts but rather “whether there is a probative use of the
evidence that is not based on the proposition that a bad person is more likely to commit
a crime.” State v. Jones, 

, ¶ 8, 

, 

. After
finding that “‘the evidence is relevant to a disputed issue other than the defendant’s
character, . . . [the trial court] must determine that the prejudicial effect of the evidence
does not outweigh its probative value.” State v. Hamilton, 

, ¶ 14, 

, 

 (quoting State v. Beachum, 

, ¶ 6, 

,

); State v. Lovett, 

, 

 (“If the evidence
is probative of something other than propensity, then we balance the prejudicial effect of
the evidence against its probative value.” (internal quotation marks and citation
omitted)).

{43} The evidence in question was lapel footage and testimony from Officer Byron
“Trey” Economidy, who pulled Defendant over in a traffic stop after suspecting that
Defendant was driving a stolen scooter about a month before Defendant’s encounter
with Officer Webster. After stopping Defendant, Officer Economidy had Defendant place
his hands behind his head and then later behind his back. Defendant told Officer
Economidy that he had asthma and could not breathe, and he asked for his inhaler.
Defendant started coughing and knelt on the ground, but he was able to get to his feet,
run away, and evade capture. The State argued that Defendant feigned the asthma
attack in order to run away. Officer Economidy also testified that Defendant had no
difficulty or apparent pain putting his hands behind his head.

{44} The trial court initially excluded this evidence but admitted it after Defendant
raised a self-defense claim at trial. Upon reconsideration, the trial court determined that
the evidence of the past encounter could demonstrate that Defendant had a plan and
was not necessarily acting in self-defense because in both encounters, when contacted
by police, he appeared to feign an injury and then attempted to resist or flee. The trial
court excluded the part of the lapel footage after Officer Economidy lost contact with
Defendant, finding that it was not relevant and was “more prejudicial than probative.”

{45} The trial court found that the evidence was relevant to Defendant’s self-defense
claim and then balanced the probative and prejudicial value of the evidence. We
conclude that the trial court did not abuse its discretion when it admitted evidence of
Defendant’s encounter with Officer Economidy.

4.     The trial court did not abuse its discretion when it prohibited Defendant
       from cross-examining a witness about a false kidnapping claim

{46} Defendant argues that the trial court erred when it prevented him from
impeaching Garcia by cross-examining her under Rule 11-608(B) NMRA about an
incident when she was thirteen years old in which she falsely claimed she was
kidnapped. Defendant intended to use this inquiry to show that Garcia had a pattern of
lying to police officers. The trial court prohibited Defendant from inquiring into Garcia’s
false claim of kidnapping because the court concluded that the false claim was
propensity evidence under Rule 11-404(B) that was more prejudicial than probative
under Rule 11-403 NMRA.

{47} Under Rule 11-608(B), a trial court may allow on cross-examination inquiry into
specific instances of a witness’s prior conduct if the specific instances are probative of
the witness’s character for truthfulness. Whether a trial court abused its discretion under
Rule 11-608(B) depends on

       (1) whether the witness’s testimony is crucial or unimportant, (2) the
       relevancy of the act of misconduct to truthfulness, (3) the nearness or
       remoteness of the misconduct to the time of trial, (4) whether the matter
       inquired into is likely to lead to time-consuming, distracting explanations
       on cross-examination or re-examination, and (5) whether there will be
       unfair humiliation of the witness and undue prejudice to the party who
       called the witness.
State v. Patterson, 

, ¶ 11, 

 (quoting 1 Kenneth S. Brown
et al., McCormick on Evidence, § 41 (7th ed. 2016)). These factors are also relevant to
a Rule 11-403 analysis in which the trial court determines whether the evidence’s
“probative value is substantially exceeded by danger of unfair prejudice.” Patterson,

. The first three factors of the Rule 11-608(B) analysis “relate to
the probative value of the evidence” while the last two factors go to prejudicial value.
Patterson, 

.

{48} The trial court did not abuse its discretion under Rule 11-608(B) or Rule 11-403
when it excluded inquiry on cross-examination into Garcia’s kidnapping claim. The
probative value of the kidnapping claim was minimal. The incident had occurred eight
years prior to the trial, and it is unclear whether Garcia had lied to police about the
kidnapping or just to the friend to whom she made the claim. Garcia’s testimony and her
credibility were important, even though she was not the sole witness and even though
there was video evidence of the incident. Also, Defendant could impeach Garcia’s
credibility with other information such as evidence revealing that Garcia lied to police on
other occasions and had been arrested on a material witness warrant. Inquiring into the
kidnapping would not have been unfairly humiliating to Garcia, but it would have been
distracting because it would have led to Garcia explaining that the alleged kidnapping
incident was a joke.

{49} Upon application of the test set forth in Patterson, we conclude that the trial court
did not abuse its discretion with regard to any of the three evidentiary issues that
Defendant argues.

D.     Juror Misconduct

{50} Defendant argues that the trial court should have granted an additional
evidentiary hearing due to alleged juror misconduct under Kilgore v. Fuji Heavy Indus.
Ltd., 

, 

, 

, and that the trial court
erred in denying Defendant’s motion for a new trial.

{51} We review “the trial court’s factual findings and its ruling on the movant’s motion
for a new trial . . . for an abuse of discretion.” Id. ¶ 20.

{52} The question surrounding juror misconduct and its resulting extraneous
information “is whether there is a ‘reasonable probability’ or a likelihood that the
extrinsic communications or conduct would have an effect upon the verdict or upon a
typical juror.” Prudencio v. Gonzales, 

, 

, 

 (citation omitted). An appropriate remedy for possible extraneous material affecting
the verdict is usually “an evidentiary hearing, rather than a new trial,” to give the moving
party “an opportunity to prove a reasonable probability of prejudice.” Kilgore, 2010-
NMSC-040, ¶ 29. The moving party has the burden “throughout the proceedings to
establish that (1) material extraneous to the trial actually reached the jury, (2) the
extraneous material relates to the case being tried, and (3) it is reasonably probable that
the extraneous material affected the jury’s verdict or a typical juror.” Id. ¶ 21. This
burden requires an affirmative showing, not a mere allegation. State v. Mann, 2002-
NMSC-001, ¶ 19, 

, 

. In Kilgore, the trial court held that the
plaintiffs were entitled to an evidentiary hearing “to prove that there [was] a reasonable
probability that the extraneous material affected the verdict or a typical juror” because
the plaintiffs established that the extraneous information reached one of the jurors and
that the information “was relevant to the case being tried.” 

.

{53} In this case, after the jury returned the verdict, the trial court was informed that
one alternate juror received extraneous information during the trial. The trial court held a
hearing in which it, Defendant, and the State interviewed the alternate juror and the
person who reported the juror misconduct. The alternate juror testified that on one
afternoon during the course of the trial, she was home with her husband. Her husband
told her that he had watched a livestream of the trial and heard the attorneys discussing
what clothes Garcia would wear when she testified, specifically whether she would wear
her jail-issued clothing that would show that she was in custody. At the time her
husband shared this extraneous information, the alternate juror had already learned that
Garcia was in jail based on Garcia’s earlier testimony.

{54} The alternate juror testified that she did not share the information her husband
shared with her, or any other information, with any other jurors. When asked about the
possibility that other jurors may have also had access to extraneous information, the
alternate juror testified that while one juror may have used her phone to make a
personal call, no jurors used their phones during the trial. Additionally, the jurors did not
make any mention of the livestream of the trial. The alternate juror did not participate in
the jury deliberations.

{55} Based on the testimony at the hearing, the trial court concluded that no other
extraneous information reached the jury and denied Defendant’s motion for a new trial
and an additional evidentiary hearing. The trial court concluded that the extraneous
material in this case did not pose a “‘reasonable probability’ of prejudice” to Defendant
because the information was duplicative of what the alternate juror learned through
Garcia’s testimony, Garcia’s attire was not a material fact in the case, and “[t]he
extraneous information did not reach any of the jurors who deliberated.” The trial court
noted that it was “convinced that there was no other extraneous—or any extraneous
information that made its way to the deliberating jury in this case.” Thus, the trial court
declined to call other jurors in for questioning.

{56} Defendant argues that another evidentiary hearing is necessary under Kilgore
because the alternate juror provided evidence that other jurors were on their phones
during the trial. Defendant alleges that because the trial was livestreamed, the jury had
general access to information about the trial through their phones. However, Defendant
does not establish how that testimony shows that extraneous material related “to the
trial actually reached the jury” as would be necessary to warrant an evidentiary hearing.
Kilgore, 

 (emphasis added); Prudencio, 

.
Instead, his argument in favor of an evidentiary hearing rests on a mere allegation that
extraneous evidence may have reached the jury. Thus, we conclude that the trial court
did not abuse its discretion when it denied an evidentiary hearing.
III.   CONCLUSION

{57} Because we conclude that the trial court did not err with regard to its
communications with the jury, the self-defense instruction, admission and exclusion of
evidence, and juror misconduct, we conclude also that there is no issue of cumulative
error.

{58}   We affirm Defendant’s convictions.

{59}   IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice