State v. Salazar

                                                                          Office of the
                                                                              Director         New Mexico
                                                                                               Compilation
                                                                           2023.04.13          Commission
                                                                      '00'06- 08:59:16
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 28, 2022

No. A-1-CA-39340

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PHILLIP B. SALAZAR,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred Van Soelen, District Judge

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

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

ATTREP, Judge.

{1}    Defendant Phillip Salazar appeals his conviction for kidnapping in the first degree
(NMSA 1978, § 30-4-1 (2003)), claiming the district court made several evidentiary
errors at trial. We conclude that the district court committed reversible error by
preventing Defendant from impeaching the complaining witness with a prior omission
inconsistent with her testimony at trial about her failure to disclose, during the
investigation of the allegations against Defendant, the full extent of her relationship with
Defendant. Because we remand for a new trial on this ground, we do not address
Defendant’s other claims of error.
BACKGROUND

{2}     Defendant was tried for kidnapping in the first degree, two counts of criminal
sexual penetration in the second degree, and aggravated burglary. The complaining
witness, Tammie Chavez, accused Defendant of sneaking into her apartment, tackling
her to the ground, repeatedly hitting her, sexually assaulting her, and preventing her for
nearly four hours from getting help or leaving her apartment. Defendant and Chavez
had dated for about one year before the alleged attack. Although Defendant and
Chavez disputed whether they were still dating when the incident occurred, they both
testified that they had consensual sex the day before.

{3}     When reporting the alleged attack to law enforcement and when discussing the
alleged attack with emergency room personnel on the day of the incident, Chavez did
not disclose that Defendant had sexually assaulted her. The day after the incident,
Chavez went to the police department because she believed that the charges initially
filed against Defendant were not serious enough and that a stalking charge was more
appropriate. During that visit, Chavez alleged for the first time that Defendant had
sexually assaulted her. According to a proffer by Defendant’s counsel at trial, Chavez
did not disclose at the time that she had been in an ongoing, consensual sexual
relationship with Defendant ending the day before the alleged attack. Chavez was
examined by a sexual assault nurse examiner (SANE), who recorded that Chavez
described Defendant as an “ex-intimate partner.” According to the trial proffer, Chavez
did not disclose to the SANE that she recently had been in a sexual relationship with
Defendant or that, the day before the incident, she had engaged in consensual sex with
Defendant. Also according to the trial proffer, it was not until some months after the
incident, when DNA results were returned, that Chavez first disclosed that she and
Defendant had been in a consensual sexual relationship around the time of the incident.

{4}    On cross-examination, defense counsel questioned Chavez about her delay in
reporting the alleged sexual assault. Defense counsel also attempted to impeach
Chavez’s credibility by asking about her failure to disclose to law enforcement and
medical personnel her ongoing, consensual sexual relationship with Defendant. The
State objected on relevancy grounds. Defense counsel argued that Chavez’s omission
amounted to a prior inconsistent statement and therefore was relevant to impeach her
credibility. The district court judge stated that he was “not sure [Chavez’s] credibility is
material to the case” and then sustained the State’s objection, deciding, sua sponte,
that the line of questioning violated New Mexico’s rape shield statute.

{5}    At the close of the State’s case, the State dismissed the aggravated burglary
charge. Defendant testified in his own defense. He admitted hitting Chavez, but denied
sneaking into her apartment, restraining her, and sexually assaulting her. The jury found
Defendant guilty of kidnapping in the first degree, but acquitted him of both counts of
criminal sexual penetration.

DISCUSSION
{6}    We first address whether it was error for the district court to limit the cross-examination of Chavez under New Mexico’s rape shield statute. Concluding that it was,
we next consider whether affirmance is nonetheless appropriate on other grounds.
Because it is not, we finally examine whether the district court’s error was harmful, such
that reversal is required.

I.     The District Court’s Reliance on the Rape Shield Statute Was Erroneous

{7}    Defendant argues, and the State concedes, the district court erroneously ruled
that Defendant’s cross-examination of Chavez about her failure to disclose to law
enforcement and medical personnel her ongoing, consensual sexual relationship with
Defendant was prohibited by New Mexico’s rape shield statute, NMSA 1978, § 30-9-
16(A) (1993). See also Rule 11-412 NMRA (corresponding rule of evidence). While we
are not required to accept the State’s concession, see State v. Tapia, 

, 

, we agree with the parties.

{8}     Generally, we review a district court’s evidentiary decision, such as this one, for
an abuse of discretion. State v. Patterson, 

, 

. A
district court abuses its discretion if its ruling is “based on a misapprehension of the
law,” State v. Jaramillo, 

, 

, or is “clearly untenable or
not justified by reason,” State v. Layne, 

, 

, 

 (internal quotation marks and citation omitted). We “review de novo whether the
district court applied the correct evidentiary rule.” State v. Astorga, 

, 

.

{9}      “Rape-shield laws, as they are popularly known, reversed the long-standing
common-law doctrine that permitted a defendant accused of rape to inquire into the
complainant’s ‘character for unchastity,’ that is, [the complainant’s] propensity to engage
in consensual sexual relations outside of marriage.” State v. Johnson, 

, 

, 

 (internal quotation marks and citation omitted). “To
encourage victims to report incidents of sexual assault, states enacted rape shield laws
to protect victims from unnecessary intrusions into their past sexual history, because
states recognized that such evidence is usually only marginally relevant.” State v.
Montoya, 

, 

. New Mexico’s rape shield statute
thereby prevents the admission of evidence of a victim’s past sexual conduct “unless
. . . the evidence is material to the case and . . . its inflammatory or prejudicial nature
does not outweigh its probative value.” Section 30-9-16(A); see also Rule 11-412(B)
(same). The statute “serves to emphasize the general irrelevance of a victim’s sexual
history, not to remove relevant evidence from the jury’s consideration.” Johnson, 1997-
NMSC-036, ¶ 21 (internal quotation marks and citation omitted). “If a defendant makes
. . . a [sufficient] showing [of relevance], the [district] court must then weigh the
probative value of that evidence against the danger of unfair prejudice to the victim.”
Montoya, 

.

{10} We agree with the parties that the rape shield statute was not implicated by the
evidence Defendant attempted to elicit from Chavez. As Defendant observes, “defense
counsel’s questions were not about [Chavez’s] sexual conduct or reputation for past
sexual conduct; they were about her initial lack of candor to the authorities about the
nature of her relationship with [Defendant].” That is, Defendant’s cross-examination was
designed to impeach Chavez’s credibility for truthfulness, not to establish her propensity
to have consensual sex with him or for some other purpose generally prohibited by the
rape shield statute. See id. ¶¶ 41-45 (noting that the “underlying concerns targeted by
rape shield laws . . . do not appear to be prominent in this case,” in part because the
evidence of the defendant’s prior sexual relationship with the complainant was offered
to “present a complete defense” and not to establish propensity); see also Johnson,

 (explaining that rape shield statutes generally were adopted
to “address the problem of underreporting and reluctance to testify” in rape cases by
prohibiting the use of a complainant’s past sexual history to establish their “propensity to
engage in consensual sexual relations” (internal quotation marks and citation omitted)).

{11} But even if this line of questioning somehow implicated the rape shield statute, it
was confined to Chavez’s sexual relationship with Defendant—a relationship she
already had testified to at trial during her direct examination. In other words, Defendant
“did not seek to delve unduly into the details of their sexual encounters, embarrass or
harass [Chavez], elicit testimony regarding [her] sexual conduct with others, or discredit
her character,” based on “evidence of unchastity.” See Montoya, 

 (internal quotation marks and citation omitted). We agree with the State, then,
that “another question” mentioning Defendant and Chavez’s sexual relationship “could
not be inadmissible under [the rape shield] statute.” Cf. id. ¶¶ 45, 48 (explaining that the
complainant’s willingness to testify about her sexual relationship with the defendant
showed that the “proffered evidence would have had little prejudicial impact on [her]”). It
thus was an abuse of discretion for the district court to limit the cross-examination of
Chavez under the rape shield statute.

II.     We Will Not Affirm on Right for Any Reason Grounds

{12} Acknowledging the district court’s error, the State invokes the right for any reason
doctrine, arguing that we may affirm on other grounds—namely, that the excluded
evidence was irrelevant or cumulative. See State v. Vargas, 

, 

, 

 (providing that, “[u]nder the right for any reason doctrine,” we
may affirm the district court “on grounds not relied upon by the district court if those
grounds do not require us to look beyond the factual allegations that were raised and
considered below” (internal quotation marks and citation omitted)). Principally, the State
asserts that the excluded evidence was not relevant and therefore was properly
excluded. Defendant argues, as he did at trial, that the proffered evidence—as a prior
inconsistent statement by omission—was relevant and admissible impeachment
evidence. 1 See Rule 11-613 NMRA. We agree with Defendant.


1Because we agree with Defendant on this ground, we find it unnecessary to consider his additional
theories of relevance—specifically, that the excluded evidence was proof of bias or motive to fabricate or
was a specific instance of conduct bearing on Chavez’s character for truthfulness under Rule 11-
608(B)(1) NMRA.
{13} “Evidence that reflects on a witness’s credibility is relevant” and therefore
admissible. Patterson, 

 (alteration, internal quotation marks, and
citation omitted). It is settled that a prior inconsistent statement may be used to impeach
a witness’s credibility. See Astorga, 

 (“[P]rior inconsistent
statements are inherently relevant for a ‘non-hearsay’ purpose: impeaching a witness’s
credibility.”); see also State v. Macias, 

, 

, 

 (providing that “a witness’s prior inconsistent statements may be used to cast doubt
on the witness’s credibility”), overruled on other grounds by State v. Tollardo, 2012-
NMSC-008, ¶ 37 n.6, 

.

{14} It also is settled that a prior inconsistent statement may take the form of an
omission. Nearly a century ago, our Supreme Court described the circumstances in
which a prior omission is considered an inconsistency probative of a witness’s
credibility:

       It is well understood that, if the witness when [they have] an opportunity to
       speak, and where it would be natural to speak, or where it was [the
       witness’s] duty to speak, fails to make an important disclosure, which [the
       witness] afterwards makes on the stand, it is a circumstance which,
       although susceptible of explanation, if unexplained, tends to impair the
       credibility of the witness.

State v. Archer, 

, ¶ 9, 

, 

; see also State v.
Foster, 

, 

, 

 (concluding that there was
“substantial probative value in [the d]efendant’s failure to mention an important aspect
of an incident when giving an ostensibly full account of the incident [to a detective]”);
State v. Calvillo, 

, ¶¶ 15, 17, 

, 

 (concluding
that the witnesses’ failures to report a suspect to police after the defendant’s arrest were
“probative of the witnesses’ credibility” because they were inconsistent with their
subsequent trial testimony portraying the suspect, not the defendant, as the
perpetrator). Although the substance of an omission is important to determining whether
it is the type of information that one would be expected to include when giving an
“ostensibly full account” of an incident to authorities, Foster, 

, it is
the inconsistency itself that calls a witness’s credibility into question. See Macias, 2009-
NMSC-028, ¶ 20 (“When impeaching with prior inconsistent statements not made under
oath, it is the fact of the inconsistency that is admissible, not the substantive truth or
falsity of the prior statement.”); see also Roger Park & Tom Lininger, The New
Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation § 5.1 (2023)
(explaining that a witness’s inconsistency demonstrates they are “capable of error about
the matter in question,” and that whether the error be “due to partisan bias, to defects of
perception, to bad memory, or to an outright lie,” it raises concern that the witness “has
made errors at other points in [their] testimony”).

{15} Defendant contends that Chavez’s months-long failure to disclose to law
enforcement and medical personnel her ongoing, consensual sexual relationship with
Defendant was inconsistent with her ready admission at trial to this relationship,
including to having consensual sex with Defendant the day before the incident.
Defendant further contends that the information Chavez provided at trial was of the type
one would expect Chavez to disclose when pursuing stalking, rape, kidnapping, and
battery charges against Defendant. We find Defendant’s contentions persuasive,
particularly in the absence of an argument from the State on these points. See State v.
Serna, 

, ¶¶ 32-34, 

 (declining to decide an undeveloped,
right for any reason argument); State v. Randy J., 

, 

, 

 (same); State v. Fuentes, 

, 

, 

 (noting that we will “not review unclear or undeveloped arguments [that]
require us to guess at what [a] part[y’s] arguments might be”). We agree with Defendant
that information about Chavez and Defendant’s ongoing, consensual sexual relationship
is the type of information that would have been “natural” to tell authorities when “giving
an ostensibly full account” of the allegations against Defendant. See Archer, 1927-
NMSC-002, ¶ 9; Foster, 

. Chavez’s failure to disclose these
naturally pertinent facts was relevant to her credibility as a witness, which could have
affected how the jury weighed her testimony, including her testimony supporting the
kidnapping charge. See Patterson, 

; see also Commonwealth v.
Thayer, 

 (Mass. App. Ct. 1985) (holding that it was reversible error
for the trial court to exclude evidence that “the complainant was voluntarily keeping
friendly company with the two men she charged had raped her only forty-eight hours
earlier” because it contradicted the complainant’s trial testimony and thus “was a
circumstance that might have engendered skepticism in the minds of the jury about [the
complainant’s] version of the events”). Accordingly, we conclude that the excluded
evidence was a prior inconsistent statement by omission and plainly relevant to
Chavez’s credibility.

{16} To the extent the State advances the alternative argument that, if Chavez’s
omission is deemed relevant, it nonetheless was inadmissible because it was
cumulative of other evidence, we likewise are unpersuaded. See Rule 11-403 NMRA
(permitting a trial court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of,” among other things, “needlessly presenting
cumulative evidence”); see also State v. Stanley, 

, 

,

 (stating that a witness’s prior inconsistent statement must meet the
balancing test of Rule 11-403). According to the State, Chavez’s credibility already had
been impeached because defense counsel inquired about her initial delay in reporting
the alleged sexual assault. From this, the State surmises, Chavez’s omission “would not
have added anything to the jury’s . . . assessment of her credibility.” The State,
however, fails to expound on or cite authority supporting this idea; nor does the State
advance any other argument why Chavez’s omission would be inadmissible under Rule
11-403 or otherwise. See Serna, 

, ¶¶ 32-34; Randy J., 2011-NMCA-
105, ¶¶ 27-30; State v. Guerra, 

, 

 (providing that
appellate courts are under no obligation to review unclear or undeveloped arguments
and may assume, in the absence of cited authority, that no authority supporting the
argument exists).
{17} In contrast to the State’s bare assertions that the failure to disclose was
cumulative, we find compelling Defendant’s argument that Chavez’s omission regarding
the ongoing, sexual relationship was “more powerful impeachment evidence” than the
evidence of her delayed reporting of the alleged sexual assault. While the jury could
have attributed Chavez’s one-day delay in reporting the alleged sexual assault to recent
trauma, the jury may not have attributed, to use Defendant’s words, a “similarly innocent
explanation” to her months-long failure to disclose the full nature of her relationship with
Defendant, all the while pursuing stalking, rape, kidnapping, and battery charges
against him. Cf. State v. Zamarripa, 

, 

, 

 (concluding, in a harmless error analysis, that a witness’s self-inculpating statement
was corroborative and not cumulative because it “would be much more powerful in the
eyes of the jury” than other evidence establishing the same fact). Thus, we cannot say
the probative value of Chavez’s omission was so diminished by her other inconsistency
that the omission was cumulative. Cf. State v. Villanueva, 

, 

 (concluding that evidence was cumulative because the defendant could have
established “both the content and tone of the conversation by alternative means,
[thereby] greatly diminishing . . . the probative value of the [evidence]”), cert. denied (S-
1-SC-38679).

{18} Because we conclude that the excluded evidence was relevant and not
cumulative, we decline the State’s invitation to affirm the district court’s ruling on other
grounds. Accordingly, we hold that the district court erred by refusing to allow Defendant
to impeach Chavez with her prior omission. See Stanley, 

(concluding that the district court abused its discretion by preventing the defendant from
impeaching a witness with his prior inconsistent statement because the prior
inconsistent statement contradicted the witness’s trial testimony and “would have been
especially probative,” which outweighed its prejudicial effect under Rule 11-403).

III.   The District Court’s Error Was Not Harmless

{19} An erroneous evidentiary ruling is not grounds for a new trial unless “the error
was prejudicial rather than harmless.” State v. Smith, 

, 

 (internal quotation marks and citation omitted). Nonconstitutional errors, such as
the evidentiary error at issue, are deemed harmful if there is a reasonable probability
that the error affected the verdict. State v. Vargas, 

, 

. To determine the likely effect of the error, we must evaluate all of the
circumstances, including, as relevant here, the importance of the witness’s testimony to
the prosecution’s case, other evidence of the defendant’s guilt to understand the role of
the error within the context of the trial, and the cumulative nature of the error. See
Tollardo, 

 (citing State v. Johnson, 

, 

, 

); Johnson, 

.

{20} We conclude that Defendant has met the initial burden of establishing prejudice.
See Astorga, 

 (“[The d]efendant bears the initial burden of
demonstrating that he was prejudiced by the error.”); State v. Cabral, 

, 

 (same). Defendant persuasively argues that he was prejudiced by
the district court’s ruling, in that “[Chavez] was the State’s most crucial witness, making
impeachment of her critical to the defense.” He explains that Chavez’s credibility was
especially important to the kidnapping charge because Chavez “provided the State’s
only evidence of restraint, including evidence of restraint beyond that involved in the
battery to which [Defendant] admitted.” See Patterson, 

(explaining that the state’s primary witness’s “credibility and character for truthfulness”
was “axiomatically central” to the case because his testimony was “crucial to the case
against [the d]efendant”). Given the prosecution’s reliance on Chavez’s testimony,
especially that as to restraint, we agree with Defendant that Chavez’s credibility was
“the lens through which the jury evaluated the State’s case.” See id. ¶ 20.

{21} And there is reason to believe the jury doubted Chavez’s credibility. The jury
acquitted Defendant on the two criminal sexual penetration charges, the evidence of
which came primarily from Chavez’s testimony. See Tollardo, 

(noting that the jury must have had “at least some serious doubts about [the witness’s]
credibility” because it acquitted the defendant on two other charges that were
“supported almost exclusively” by that witness’s testimony). While the State surmises
that the excluded impeachment evidence would have done nothing to call Chavez’s
credibility into further doubt, we see it differently. As discussed, the excluded evidence
was not merely cumulative of other impeachment evidence, but instead offered
potentially more powerful impeachment evidence. See Johnson, 

(“[O]nly in very clear instances of accumulated evidence—where the evidence is so
redundant that its corroborative effect is negligible—should the improper admission or
exclusion of one accretion of such evidence be considered ‘cumulative’ for purposes of
our harmless-error analysis.”). There was substantial probative value in Chavez’s failure
to mention her ongoing, consensual sexual relationship with Defendant when giving her
account to law enforcement and medical personnel; the jury—if presented with this
evidence—properly could have found a telling inconsistency between Chavez’s prior
omission and her trial testimony, drawing her credibility into further doubt. See Foster,

.

{22} Given the importance of Chavez’s credibility to the State’s case, particularly as to
restraint, as well as the significant probative value of the excluded impeachment
evidence, we conclude Defendant was prejudiced by the district court’s ruling. Cf. State
v. Martinez, 

, ¶ 21, 

, 

 (concluding that the
district court’s decision to prevent the defendant from impeaching a witness was not
harmless error, where the witness was the only one who testified in support of the
charge against the defendant, and the state’s case was “intimately tied to [the witness’s]
credibility”); State v. Stephen F., 

, 

, 

(concluding that a district court’s refusal to allow cross-examination of the state’s
witness regarding her motive to lie was not harmless error because the case “boil[ed]
down to a question of credibility”).

{23} In response to Defendant’s showing of prejudice, the State asserts only that, as
to the kidnapping charge, the district court’s ruling “could not have prejudiced Defendant
. . . because whether he and [Chavez] still had some sexual relationship ha[d] nothing to
do with the elements of that charge.” The State misses the point. The value of the
excluded evidence was not to establish that Defendant and Chavez had a sexual
relationship. Instead, as discussed at length, the value of the excluded evidence was to
impeach Chavez’s credibility. Cf. Macias, 

 (providing that “it is the
fact of the inconsistency that is admissible, not the substantive truth or falsity of the prior
statement”). The State has not otherwise addressed the harmfulness of the district
court’s error. Thus, in light of Defendant’s showing of prejudice, and the State’s
undeveloped corresponding argument, we conclude the error was not harmless. See
Patterson, 

 (observing that the state bears the burden to
prove that an evidentiary error is harmless, and that, in the absence of an argument as
to why the error was harmless, this Court will not guess at what that argument might be;
concluding that the exclusion of impeachment evidence relating to the state’s primary
witness was not harmless error); State v. Duran, 

, 

 (providing, in the nonconstitutional error context, that “the [s]tate bears the burden
to prove that the error was harmless”); see also State v. Serna, 

,

 (concluding that a nonconstitutional error was harmless because “the
[s]tate satisfie[d the Court] that ‘there is no reasonable probability’ that evidence of [the
d]efendant’s prior convictions affected [the] verdict and contributed to [the d]efendant’s
convictions”). 2

CONCLUSION

{24} For the foregoing reasons, we reverse Defendant’s conviction for kidnapping.
Because Defendant has not challenged the sufficiency of the evidence supporting his
conviction, and we are otherwise satisfied that substantial evidence supported his
conviction, we remand for a new trial consistent with this opinion. See State v. Catt,

, 

 (providing that retrial is not barred on double
jeopardy grounds if the conviction was supported by sufficient evidence).




2Our case law has not been entirely consistent when describing the respective burdens of the defendant
and the state in the nonconstitutional harmless error context. For example, prior to deciding Tollardo, our
Supreme Court indicated that it was the defendant’s burden alone to show that a nonconstitutional error
warranted reversal. See State v. Gonzales, 

, ¶ 27, 

, 

(providing that the “defendant must show a reasonable probability that the [district] court’s failure to allow
the testimony contributed to his conviction”). This is in contrast to later statements by our Supreme Court,
as well as this Court, that the defendant has the initial burden of showing a nonconstitutional error was
prejudicial, see, e.g., Astorga, 

 (providing that, for nonconstitutional errors, “[the
d]efendant bears the initial burden of demonstrating that he was prejudiced by the error” in the harmless
error analysis); Cabral, 

 (same), while the state appears to have the ultimate
burden of showing the error was harmless, see, e.g., Serna, 

 (observing, for a
nonconstitutional error, that the state satisfied its burden of showing harmlessness); Duran, 2015-NMCA-
015, ¶ 20 (providing that, for nonconstitutional errors, “[t]he [s]tate bears the burden to prove that the error
was harmless”); Patterson, 

 (observing that the state bears the burden to
prove that an evidentiary error is harmless). But even if the ultimate burden were on Defendant to show
the error was harmful, as in Gonzales, the result in this case is not altered because Defendant has shown
there is “a reasonable probability that the [district] court’s [error] contributed to his conviction.” See 1991-
NMSC-075, ¶ 27.
{25}   IT IS SO ORDERED.

JENNIFER L. ATTREP, Judge

WE CONCUR:

GERALD E. BACA, Judge

KATHERINE A. WRAY, Judge