IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Opinion Number: 2
F iling Date: March 6, 2023 3
NO. S-1- SC

- 39129 4 STATE OF NEW MEXICO, 5 Plaintiff

- Respondent, 6

v. 7 ALBERT FERNANDEZ, 8 Defendant

- Petitioner. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 Michael H. Stone , District Judge 11
Bennett J. Baur, Chief Public Defender 12 Charles D. Agoos, Assistant Appellate Defender 13 Santa Fe, NM 14 f or Petitioner 15

Hector H. Balderas, Attorney General 16 John Kloss , Assistant Attorney General 17 Santa Fe, NM 18 f or Respondent 19 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.OPINION 1
VARGAS , Justice. 2
I. INTRODUCTION 3

{1} Defendant Albert Fernandez appeals his conviction for battery upon a peace 4 officer contrary to NMSA 1978, Section 30

- 22

- 24 (1971). We granted Defendant’s 5

pe tition for writ of certiorari to determine wheth er (1) the district court incorrectly 6 admitted Defendant’s prior conviction for battery upon a peace officer, (2) 7 cumulative error deprived Defendant of a fair trial, and (3) the Court of Appeals 8 improperly decided Defendant’s appeal without considering hi s reconstructed 9 testimony

. We hold that the district court abused its discretion in admitting 10 Defendant’s prior conviction for battery upon a peace officer . We therefore reverse 11 the Court of Appeals and remand for a new trial. In light of our reversal, we conclude 12 that it is unnecessary to address the merits of Defendant’s claim of cumulative error. 13 Finally, we conclude that Defendant’s request to supplement the record with his 14 reconstructed testimony was resolved by the Court of Appeals and is therefore mo ot. 15
II. BACKGROUND 16
A. Factual Background 17

{2} Officer Jorge Soriano stopped Defendant aft er observing him driving 18 erratically

. Officer Soriano was then joined at the scene by Officer Seth Ford. The 192 lapel camera footage of the arrest shows that the officers approach ed Defendant’s 1
car and ask ed that he submit to a field sobriety test to which Defendant initially 2

agree d . After getting out of his car, Defendant fail ed to follow the instructions of 3 Officer Ford, the officer administering the field sobriety test, be came argu mentative, 4
used profanities , and slurred his speech. He was then handcuffed and arrested for 5 driving under the influence of alcohol. 6

{3} As Officer Ford wal ked Defendant over to the police car, a muffled sound is 7 heard coming from the lapel camera ’s microphone

. Officer Ford then t old 8
Defendant , “Stop, you’re gonna get more charges, sir , ” and Defendant respond ed 9
with an expletive. Before getting into the police car, more muffled sound s are heard , 10 Defendant’s arm is seen moving, and Officer Ford then said , “Alright you just got 11 yourself another charge.” Defendant ask ed , “For?” and Officer Ford respond ed , 12 “Battery on a peace officer, you just hit me with your head.” Defendant then yell ed , 13 “Are you fucking serious?” to which Officer For d respond ed , “Are you done?” 14
Defendant continue d to yell profanities. During this interaction, Defendant’s head is 15
not visible in relevant portions of the lapel footage. 16

{4} Following this exchange, several officers struggle d to place Defendant in the 17 police c ar. This portion of the lapel camera footage is dark and blurry. Officer Ford 18
asked another officer, “Do you want me to twist him?” and then, between muffled 193 sounds, Officer Ford told Defendant, “Stop kicking me.” Defendant yell ed back, “I 1 didn’t kick you, fucking bitch.” During this struggle, Defendant’s legs and feet are 2 not visible in the lapel camera footage. Once Defendant was in the police car, Officer 3 Ford pull ed out his taser and spark ed it, and then told Defendant that he would be 4
tased if he d id not sit up. Defendant s at up, the officers shut the police car door, and 5
Defendant was transported to the local jail

. Defendant was charged with one count 6 of battery upon a peace officer, among other charges not relevant to Defendant’s 7 appeal. 8
B. Procedural Background 9
1. Proceedings in the District Court 10

{5} The day of the trial, before opening statements, defense counsel orally moved 11
to suppress any evidence that Defendant was on probation at the time of his arrest , 12 along with evidence of the underlying crime for which Defendant was on probation. 1 13 At the time of the arrest, Defendant was on probation for a conviction for battery 14 upon a peace officer

. Criminal Information , State v. Fernandez , D

- 506

- CR

- 2016

- 15
00628 (5 th Jud. Dist. Ct. Aug. 16, 2016) ; see also Orde r of Probation , id. ( Sept. 19, 16
2017 )

. Though no mention was made of the nature of the crime for which Defendant 17

1 Defendant did not invoke a rule of evidence in his motion to suppress.4 was serving probation, the district court judge granted Defendant’s motion to 1 suppress any evidence that Defendant was on probation at the time of the arrest and 2 evidence of the underlying crime because the State did not give Defendant proper 3 notice of its plan to use this evidence and the evidence’s “prejudice .

. . greatly 4 outweighs any probative value.” 5

{6} At trial, Officers Soriano and Ford testi fied , and the State introduced the lapel 6

camera footage. Both officers testified that Defendant head

- butted and kicked 7 Officer Ford as he was being placed in the police car. In his case

- in

- chief, Defendant 8
testified that he did not hit Officer Ford. On cross

- examination, Defendant again 9
denied head

- butting or kicking Officer Ford. Following Defendant’s denials , the 10 State asked to approach the bench. Because the recording of the bench conference is 11 inaudible, the Court of Appeals later r emanded the case for the limited purpose of 12 reconstructing the record of the bench conference. State v. Fernandez , A

- 1

- CA

13 38110, mem. op. ¶ 5 (N.M. Ct. App. Nov. 15, 2021) (nonprecedential). The district 14
court’s reconstruction of the bench conference, in p ertinent part, reads: 15 The State requested .

. . permission to approach the bench during its 16 cross - examination of Defendant. At the bench the State said[,] “State 17 intends to impeach the witness at this point with prior felony 18 convictions [ .” ] Defense counsel starts to respond [,] saying “at this 19 time” and as defense counsel spoke, the court stated[,] “[H]e can ask, 20 he can ask [ .” ] Defense counsel objected that it would be more 21 prejudicial than probative, and the court informed defense counsel that 22 the defense h ad opened the door, without expanding on how. The State 235 informed the court that it had disclosed [ the ] judg e ment and sentence 1 to the Defense. 2 Following the bench conference , the State impeached Defendant with his prior 3 felony conviction for battery upon a peace officer: 4 State: Mr. Fernandez, I’m going to ask you, do you have a felony 5 conviction? 6 Defendant: I do. 7

. . . . 8 Defense Counsel: Objection, once again for the record, he did not open 9 the door to this. 10 Judge: For the record, I note your objection. I ’ l l overrule it. You may 11 proceed, Mr. Moore. 12 State: You have a conviction in CR 2016 628? 13 Defendant: I don’t know what that refers to. 14 State: It was a 2016 case. Do you remember what you were charged 15 with? 16 Defendant: I have a couple. 17 State: Alright. Do you r emember what your charges were? 18 Defendant: Criminal damage to property

. 19 State: Do you remember that you were charged with battery on a peace 20 officer in that case? 21

. . . . 22 Defendant: Yes. 23 Defense Counsel: Your honor, I will make

. . . an ongoing objection. 24 Judge: Noted. Overruled. 25 State: Thank you, nothing further. 266 In its rebuttal to defense counsel’s closing argument, the State argued that 1 Defendant’s prior conviction for battery up on a peace officer showed absence of 2 mistake and impeached Defendant’s credibility. The jury found Defendant guilty of 3 battery upon a peace officer. Defendant appealed. 4
2. Proceedings in the Court of Appeals 5

{7} The Court of Appeals concluded that notwithstanding the fact that the district 6
court did not explain how it arrived at its decision to admit evidence of Defendant’s 7 prior conviction, including whether it balanced the probative value against the 8 prejudicial effect, it must indulge every pres umption “in favor of the correctness and 9 regularity of the [district] court’s judgment.” Fernandez , A

- 1

- CA

- 38110, mem. op. 10 ¶ 13 (internal quotation marks and citation omitted) . Then, applying the six factors 11
established in State v. Lucero , 1982

- NMCA

- 102, ¶ 12, 98 N.M. 311, 648 P.2d 350, 12 the Court of Appeals held that the district court did not abuse its discretion when it 13 admitted evidence of Defendant’s prior conviction for battery upon a peace officer , 14
Fernandez , A

- 1

- CA

- 38110, mem. op. ¶ ¶ 14

- 20 , and affir med Defendant’s 15
conviction

. Id. ¶ 43. Defendant filed a petition for writ of certiorari in this C ourt, 16 which we granted on all questions presented. 177 III. DISCUSSION 1
A. Admission of Defendant’s Prior Conviction 2
1. Standard of Review 3

{8} “We review the district court ’ s decision to admit or exclude evidence for an 4
abuse of discretion.” State v. Guerra , 2012

- NMSC

- 014, ¶ 36, 278 P.3d 1031. “An 5 abuse of discretion occurs when the ruling is clearly against the logic and effect of 6
the facts and circumstances of the case.” Stat e v. Smith , 2016

- NMSC

- 007, ¶ 27, 367 7
P.3d 420 ( internal quotation marks and citation omitted). “A court abuses its 8 discretion if it applies an incorrect standard, incorrect substantive law, or its 9 discretionary decision is premised on a misapprehension of the law.” State v. Adams , 10
2022

- NMSC

- 008, ¶ 35, 503 P.3d 1130 ( brackets, internal quotation marks, and 11 citation omitted). Further, “[a] misapprehension of the law upon which a court bases 12 an otherwise discretionary evidentiary ruling is subject to de novo r eview.” State v. 13 Lymon , 2021

- NMSC

- 021, ¶ 36, 488 P.3d 610 (internal quotation marks omitted) 14 ( quoti ng State v. Martinez , 2008

- NMSC

- 060, ¶ 10, 145 N.M. 220, 195 P.3d 1232). 15

{9} Defendant argues that this Court should apply a de novo standard of review 16 because the district court misapprehended the law when it “stated that it lacked 17 discretion to limit impeachment with prior convictions because [Defendant] opened 18 the door by testif ying.” The State, on the other hand, contends that this Court should 198 review the district court’s decision for an abuse of discretion because the record does 1
not indicate that the district court stated it lacked discretion to limit impeachment 2 with prior co nvictions. We agree with the State. 3

{10} Although the law does not require the district court to explain its exercise of 4 discretion on the record, “ the better practice for a judge relying upon discretionary 5 authority is to place on the record the circumstances and factors critical to the 6
decision , ” State v. Trejo , 1991

- NMCA

- 143, ¶ 7, 113 N.M. 342, 825 P.2d 1252 , to 7 facilitate appellate review. In this case, not only is it unclear whether the district 8 court believed it lacked discretion to limit impeachment, as D efendant contends, it 9
is also unclear whether the district court judge knew and considered the nature of 10 Defendant’s prior conviction before admitting it for p urposes of impeachment. The 11
record in this case is silent on the “circumstances and factors criti cal to the [district 12 court’s] decision” to admit Defendant’s prior conviction. See id

. Nonetheless , 13

“ [w] here there is a doubtful or deficient record, every presumption must be indulged 14 by the reviewing court in favor of the correctness and regularity of th e [ district ] 15 court’s judgment.” State v. Rojo , 1999

- NMSC

- 001, ¶ 53, 126 N.M. 438, 971 P.2d 16
829 (internal quotation marks and citation omitted) . W e therefore presume that the 17 district court judge did know the nature of Defendant’s prior conviction and 18 considered it in the context of the proper legal standard before making its ruling. 199 Thus, we review the district court’s decision to admit Defendant’s prior conviction 1
for an abuse of discretion. 2
2. Rule 11

- 609 (A)(1)(b) NMRA 3

{11} Under Rule 11

- 609(A)(1)(b), p roffered evidence of a prior felony conviction 4 that is less than ten years old must be admitted for the purpose of impeaching a 5
defendant’s “ character for truthfulness

. . . if the probative value of the evidence 6 outweighs its prejudicial effect to that de fendant.” This standard is higher than the 7
Rule 11

- 403 NMRA standard, which allows the district court to exclude evidence 8 only “ if its probative value is substantially outweighed by a danger of

. . . unfair 9 prejudice. ” (emphasis added )

. Rule 11

- 609(A)(1)(b ) protects defendants against any 10 “prejudicial effect” from evidence of prior convictions, while Rule 11

- 403 protects 11 witnesses other than criminal defendants “only against the danger of ‘unfair 12 prejudice’ from evidence of their prior convictions.” 4 Jack B. Weinstein & Margaret 13 A. Berger, Weinstein’s Federal Evidence § 609.05[3][a] ( Mark S. Brodin, ed., 14
Matthew Bender 2d ed. 2022). “These distinctions acknowledge that a jury is more 15 likely to use a prior conviction against the defendant as propensity evide nce than it 16 would when faced with a government witness’s prior conviction.” Id

. 1710 3. The Lucero Factors 1

{12} To determine whether the probative value of a prior felony conviction not 2 involving dishonesty outweighs its prejudicial effect under Rule 11

- 609(A)(1)(b), 3
N ew Mexico courts weigh: 4 (1 ) the nature of the crime in relation to its impeachment value as well 5 as its inflammatory impact; (2) the date of the prior conviction and 6 witness ’ subsequent history; (3) similarities, and the effect thereof, 7 between the past cr ime and the crime charged; (4) a correlation of 8 standards expressed in Rule [11

- ] 609(a) with the policies reflected in 9 [Rule 11

- 404 NMRA] ; (5) the importance of the defendant ’ s 10 testimony [;] and (6) the centrality of the credibility issue. 11
Lucero , 1982

- NMCA

- 102, ¶ 12 (citing United States v. Mahone , 537 F.2d 922 (7th 12 Cir. 1976); Luck v. United States , 348 F.2d 763 (D.C. Cir. 1965)). These factors “are 13 not to be considered mechanically or in i solation.” Trejo, 1991

- NMCA

- 143, ¶ 9. 14

a. Nature of the c rime 15

{13} At common law, any individual who had been convicted of a felony or a crime 16 involving dishonesty “was incompetent as a witness.” 4 Weinstein , supra , § 17 609App.100 . Rather than brand a witness as inco mpetent, we now allow the jury to 18 learn of the witness’s felony convictions and convictions for crimes involving 19 dishonesty, with a view toward evaluating the witness’s character for truthfulness

. 20
See Rule 11

- 609 ( “I mpeachment by evidence of criminal convi ction .” ). However, 21 we recognize that the value of such an assessment is questionable because “[m] any 2211 crimes

. . . do not

. . . support the inference that the person who committed them has 1 a specific proclivity for lying on the witness stand. ” 4 Weinstein , supra , § 2 609App.100 . This is p articularly true for impeachment with a conviction for a 3
violent crime. “ The relationship between crimes of violence and truth

- telling is 4 particularly tenuous, resting not only on the assumption that persons convict ed of 5 violent crimes are bad, but also that bad (i.e., violent) persons are liars. ” Id. This 6 dubious relationship causes us to look with suspicion on the impeachment of a 7
witness with a conviction for a violent crime. 8

{14} Nevertheless, while a conviction for a violent crime “ has less bearing on an 9
individual ’ s honesty than a conviction for a crime involving dishonesty or deceit , 10 [we have] determined that such convictions are probative of credibility , ” as 11 demonstrated by our adoption of Rule 11

- 609(A)(1)

. State v. Conn , 1992

- NMCA

12 052, ¶ 16 , 115 N.M. 101, 847 P.2d 746 ( citation omitted). So, while Rule 11

- 13 609(A)(1) allows for the admission of prior felony convictions for purposes of 14 impeachment (including those for crimes of violence), our rules also require that the 15 district court judge weigh the probative value of the conviction against its prejudicial 16
effect

. Rule 11

- 6 0 9(A)(1)(b); se e also Lucero , 1982

- NMCA

- 102, ¶ 12

. 17

{15} Defendant was convicted of battery upon a peace officer after pleading guilty 18 to the charge in August 2017. Judgment and Sentence, Fernandez , D

- 506

- CR

- 2016

- 1912 00628 (5th Jud. Dist. Ct. Aug. 24, 2017). Th e Court of Appeals concluded that “the 1 prior conviction was probative of Defendant’s credibility.” Fernandez , A

- 1

- CA

2 38110, mem. op. ¶ 15. Though Defendant’s conviction is probative of credibility, 3
see Conn , 1992

- NMCA

- 052, ¶ 16, we conclude that the impeac hment value of his 4 conviction for battery upon a peace officer

— a violent crime shedding little light on 5
Defendant’s character for truthfulness

— is minimal compared to its inflammatory 6 impact. But cf. State v. Hall , 1987

- NMCA

- 145, ¶¶ 31

- 32, 107 N.M. 17, 751 P.2d 7 701 (holding that the district court did not abuse its discretion in admitting the 8 defendant’s prior conviction for assault with a deadly weapon upon a peace officer 9 for impeachment purposes in the defendant’s trial for second degree murder, despite 10

t he similarity of the crimes). In this instance, t he admission of the prior conviction 11 likely had a highly inflammatory impact because it is identical to the charged offense 12
in this case. Further, although “there is proven dishonesty when the defendant goes 13 to trial, denies the offense, and then is convicted,” Trejo , 1991

- NMCA

- 143, ¶ 10, 14 that is not the case here because Defendant plead guilty in his prior conviction. Thus, 15 this factor weig hs in favor of excludin g Defendant’s prior conviction. 16
b. Date of p rior c onviction 17

{16} “ The remoteness or nearness of the acts giving rise to the prior conviction is 18 an important factor to be considered by the court. An act occurring several years 1913 before the tria l and followed by years of lawful conduct is less probative because of 1
its remoteness .” Id. ¶ 11

. Defendant’s prior conviction was about a year before the 2
trial in this case. See Judgment and Sentence, Fernandez, D

- 506

- CR

- 2016

- 00628

. 3 The Court of Appeals c oncluded that it fell within the district court’s discretion to 4 afford this factor some probative value. Fernandez , A

- 1

- CA

- 38110, mem. op. ¶ 16

. 5
We also conclude that the district court could have properly weighed this factor in 6
favor of admission because Defendant’s prior conviction was very near in time to 7
his trial in this case

. 8

c. Similarity of the c rimes 9

{17} Defendant’s prior conviction and the charge at issue in this case are identical: 10 battery upon a peace officer. See Judgment and Sentence, Fernandez, D

- 506

- CR

11
2016

- 00628

. “ [C]onvictions for the same crime should be admitted sparingly

. 12 Nevertheless, we have held that evidence of a prior offense is not prohibited for 13 impeachment purposes solely on the basis of its similarity with the presently charged 14
cri me.” Trejo , 1991

- NMCA

- 143, ¶ 12 (citation omitted). Given that Defendant’s 15 prior conviction and the charge at issue in this case are identical, the prejudicial 16 effect of the prior conviction “may well outweigh its probative value” because it 17 suggests “a pr opensity to commit the crime.” 4 Weinstein , supra , § 609.05[3][d]. 18 The Court of Appeals concluded that even though “Defendant’s prior conviction is 1914 identical to the charges for which he was on trial and therefore had some prejudicial 1 impact against Defenda nt, the prejudice arising from this similarity is not alone 2 dispositive of the question of admissibility.” Fernandez , A

- 1

- CA

- 38110, mem. op. 3 ¶ 17. The Court of Appeals understates the prejudicial effect that the admission of a 4 prior conviction for an ident ical crime

— not merely a similar one

— may have against 5
Defendant. Admitting a prior conviction for an identical crime is particularly 6 prejudicial because it could lead jurors to believe that “if [a defendant] did it before 7 [the defendant] probably did so thi s time.” Gordon v. United States , 383 F.2d 936, 8 940 (D.C. Cir. 1967), cert denied, 390 U.S. 1029 (1968). This factor strongly weighs 9
in favor of excludin g Defendant’s prior conviction. 10
d. Correlation with Rule 11

- 404 p olicies 11

{18} Rule 11

- 404 (A)(1) prohibits the use of character evidence “to prove that on a 12 particular occasion the person acted in accordance with the character or trait.” This 13
factor looks to the correlation of the standards in Rule 11

- 609(a) with the policies 14 underlying Rule 11

- 404; we do not evaluate whether the evidence would be 15
admissible under Rule 11

- 404. See Lucero , 1982

- NMCA

- 102, ¶ 12. Rule 11

- 404 16 excludes propensity evidence because “it injects a prejudicial effect into the 17 proceeding that substantially outweighs the benefits of whatever slight, probative 18 value it may have” and “creates the unnecessary risk that a jury will convict a 1915 defendant on the basis of former behavior and not the conduct charged.” State v. 1 Phillips , 2000

- NMCA

- 028, ¶ 21, 128 N.M. 777, 999 P.2d 421. The Co urt of Appeals 2 concluded that “the stated purpose for which the State sought admission of 3 Defendant’s prior conviction under Rule 11‐609 appears to correlate with the 4 policies reflected in Rule 11

- 404” because the State argued “t hat Defendant testified 5
tha t if he struck anyone it was inadvertent and therefore his prior conviction for 6 battery upon a peace officer was relevant to show an ‘absence of mistake or lack of 7
accident.’” Fernandez , A

- 1

- CA

- 38110, mem. op. ¶ 18. 8

{19} But, here, the chain of inferences that flows from the prior conviction is one 9 of propensity, not absence of mistake. When evidence is tendered to show absence 10 of mistake, the reasoning is that “( 1 ) looking at each event in isolation, it would be 11 difficult to say whether the defendant was respon sible; but ( 2 ) looking at the events 12 as a whole, either the defendant is remarkably unlucky or he is the cause of both 13

events. ” 1 Robert P. Mosteller et al., McCormick on Evidence § 190.4 (8th ed. 2020 ). 14 Looking at the two instances of alleged battery upon a peace officer together, there 15
is nothing that would allow the fact

- finder to reasonably conclude that Defendant 16 was responsible for both instances of alleged battery. That is, nothing about 17
Defend ant’s prior offense could help the fact

- finder conclude that Defendant did 18 indeed have the requisite intent to batter a peace officer in this instance

. Conversely, 1916 w hen evidence is presented for the impermissible purpose of showing that a 1 defendant has a propensity to commit certain crimes, “ the reasoning is that ( 1 ) a 2 defendant who committed a similar offense is predisposed to commit the offense 3 charged, and therefore ( 2 ) it is more probabl e that [the defendant] did so.” Id

. Here , 4
Defendant’s prior conviction would more likely lead the fact

- find er to conclude that 5 Defendant is predisposed to commit the offense charged and, therefore, it is more 6 probable that he did so in this instance. This is an impermissible use of a prior 7 conviction under the policies of Rule 11

- 404 , injecting prejudice while adding little 8 probative value

. 9

{20} In Trejo , 1991

- NMCA

- 143, ¶ 13, the Court of Appeals concluded that “we 10 give this factor little weight” because “[t]his factor does not appear in the authorities 11
relied on in Lucero [, 1982

- NMCA

- 102]

. ” We do not find this approach persuasive. 12
The policies underlying Rule 11

- 404 are useful because they allow the district court 13
to consider whether the s tate is introducing impermissible character evidence under 14 the guise of impeaching a defendant’s character for truthfulness

. See 4 Weinstein , 15

supra , § 609App.100 (“A defendant who takes the stand faces impeachment by proof 16 of prior convictions and the consequent danger that the jurors instead of considering 17 the convictions as relevant to credibility, will regard them as evidence of guilt, 18 despite instructions to the contrary. ”). Thus, we give this factor equal weight as the 1917 others and conclude that it also weighs in favor of excluding Defendant’s prior 1
conviction. 2

e. Importance of Defendant’s t estimony 3

{21} Defendant’s testimony was impo rtant to the defense’s theory because the lapel 4

camera footage of the arrest did not conclusively show whether Defendant kicked , 5
head

- butted, or otherwise battered the arresting officer in this case. The prosecution 6 of battery up on a peace officer turned o n the testimony of Defendant and the 7 arresting officer s . The Court of Appeals erroneously stated that “Defendant failed to 8 specifically object or request that the district court preclude the State from revealing 9 the identity of his prior convictions.” Fern andez , A

- 1

- CA

- 38110, mem. op. ¶ 19. In 10 fact, Defendant chose to testify knowing that the district court judge had made an 11
oral ruling prior to trial excluding any evidence about Defendant’s prior convictions 12 for which he was on probation at the time of the arrest. Even though it is within the 13
district court judge’s discretion to revisit a ruling during the trial, State v. Morris , 14
1961

- NMSC

- 120, ¶ 5, 69 N.M. 89, 364 P.2d 348 , “ [a] defendant’s decision about 15 whether to testify may be based in part on whether prior convictions will be admitted 16 for impeachment. Thus, the fact that a defendant’s testimony is important to 17 demonstrate the validity of his or her defense constitutes a fact or weighing against 18 the admission of a prior conviction

. ” 4 Weinstein, supra , § 609.05[3][e] (footnote 1918 omitted) . Here, Defendant made the strategic decision to test ify knowing that the 1 judge had excluded his prior conviction. Thus, viewed in the context of the factors 2 discussed above, this factor also weighs in favor of excludin g Defendant’s prior 3
conviction. 4
f. Centrality of the credibility i ssue 5

{22} In this instance, the centrality of the credibility issue is directly tied to the 6 impo rtance of Defendant’s testim ony. Specifically, t he issue of Defendant’s 7 credibility was a central issue because the jury’s decision about whether Defendant 8 battered a peace officer hinged on whether it found Defendant or the State’s 9 witnesses (the arresting officers) more credible. T he Court of Appeals weighed this 10
factor in favor of admission , reasoning that when “ the trial ‘ boil[s] down to a 11 swearing match .

. . it bec[omes] more, not less, compelling to explore all avenues 12 which would shed light on which of the two witnesses was to be believed

. ’ ” 13
Fernandez , A

- 1

- CA

- 38110, mem. op. ¶ 19 (alterations in original) (quoting Trejo , 14
1991

- NMCA

- 143, ¶ 15 ). But, the Court of Appeals took this proposition too far 15
when it considered this factor in isolation of the r emaining factors that 16
overwhe lmingly favor exclusion of the evidence. See Trejo , 1991

- NMCA

- 143, ¶ 9 17 (“[The Lucero factors] are not to be considered mechanically or in isolation.”). In a 18 situation like this one, where the jury’s decision comes down to a credibility 1919 determination, this highly prejudicial piece of evidence that has little bearing on 1 Defendant’s character for truthfulness could improperly tip the scale in favor of the 2
S tate. See , e.g. , United States v. Sanders , 964 F.2d 295, 299 (4th Cir. 1992) (“In such 3 a situation, evidence having no possible basis except to show a propensity for 4 violence on the part of the defendant obviously ha s the capacity to tip the balance in 5

suc h a swearing contest.”). This factor also weighs in favor of excluding Defendant’s 6 prior conviction. 7

g. Balancing the Lucero factors and harmless error 8

{23} Considering the Lucero factors together, we conclude that the probative value 9 of Defendant’s prior convicti on for battery upon a peace officer did not outweigh its 10 prejudicial effect to Defendant and the district court abused its discretion by 11 admitting the prior conviction as impeachment evidence. 12

{24} Next, we consider whether the admission of the evidence is har mless error. 13
“A non

- constitutional error is harmless when there is no reasonable probability the 14
error affected the verdict.” State v. Tollardo , 2012

- NMSC

- 008, ¶ 36, 275 P.3d 110 15 (internal quotation marks and citation omitted). This Court has said: 16
When as sessing the probab le effect of evidentiary error, courts should 17 evaluate all of the circum stances surrounding the error. This includes 18 the source of the error, the emphasis placed on the error, evidence of 19 the defendant ’ s guilt apart from the error, the im portance of the 20 erroneously admitted evidence to the prosecution ’ s case, and whether 21 the erroneously admitted evidence was merely cumulative. These 2220 considerations, however, are not exclusive, and they are merely a guide 1 to facilitate the ultimate determination

— whether there is a reasonable 2 probability that the er ror contributed to the verdict. 3
State v. Serna , 2013

- NMSC

- 033, ¶ 23, 305 P.3d 936 (internal quotation marks and 4
citation s omitted). In this instance, evidence of Defendant’s guilt turned on the jury’s 5 evaluation of the credibility of Defendant and the officers since the lapel camera 6 footage did not conclusively show whether Defendant battered Officer Ford. The 7 improper impeachment of Defendant with his prior felony conviction discredited his 8 testimony and there is a reasonable probability that it contributed to his conviction. 9
See Clark v. State , 1991

- NMSC

- 079, ¶ 10, 112 N.M. 485 , 816 P.2d 1107. (“ We note 10 that where the improper evidence has been used for impeachment purposes, not only 11
does t he error permit the jury to consider the substantive effect of the evidence itself; 12 it also discredits the testimony of the witness, including, of course, the defendant if 13 he or she has testified. Both effects must be considered in determining whether the 14
error was harmless. ”). 15

{25} Further, the erroneously admitted evidence was not merely cumulative 16 because it was not admitted prior to the State’s cross

- examination of Defendant. The 17 evidence likely had a significant impact on the jury because Defendant’s prior 18 conviction was the last piece of evidence admitted at trial and the State highlighted 19 it in its rebuttal, moments before the jury retired to deliberate. See Conn , 1992

- 2021 NMCA

- 052, ¶ 19 (concluding that evidence of the defendant’s prior conviction may 1
have ha d a significant impact on the jury when it was “literally the final piece of 2 evidence admitted in the case”)

. Thus, the admission of the evidence is not harmless 3 error because there is a reasonable probability that the district court’s failure to 4
exclude t he evidence contributed to Defendant’s conviction. Because the error is not 5 harmless, it requires reversal. See Tollardo , 2012

- NMSC

- 008, ¶ 25. 6
4. Rule 11

- 404 NMRA 7

{26} The State argues in the alternative that Defendant’s prior conviction was 8
admissible under Rule 11

- 404. We are not persuaded by this argument because 9 Defendant’s prior conviction for battery upon a peace officer more likely lead the 10 jury to conclude that Defendant had a propensity to commit the crime rather than 11 helping the jury conclude whether Defe ndant had the requisite intent in this case

. 12 Further, before admitting evidence of other crimes under Rule 11

- 404, “the [district] 13
court must find that the evidence is relevant to a material issue other than the 14
defendant ’ s character or propensity to commit a crime, and must determine that the 15 probative value of the evidence outweighs the risk of unfair prejudice, pursuant to 16
Rule 11

- 403.” State v. Otto , 2007

- NMSC

- 012, ¶ 10, 141 N.M. 443, 157 P.3d 8. We 17 conclude that, even if the district court did in fact admit the prior conviction under 18
Rule 11

- 404, such an admission would constitute an abuse of discretion because the 1922 probative value of the prior conviction did not outweigh the risk of unfair prejudice, 1
for the reason s descr ibed above under our analysis of the Lucero factors. 2
IV. CONCLUSION 3

{27} We reverse the Court of Appeals and remand for a new trial consistent with 4 this opinion. Because we reverse and remand for a new trial, it is unnecessary for us 5
to address Defenda nt’s rema ining claims of error. 6

{28} IT IS SO ORDERED. 7

8 JULIE J. VARGAS , Justice 9
WE CONCUR: 10

11 C. SHANNON BACON , Chief Justice 12

13 MICHAEL E. VIGIL , Justice 14

15 DAVID K. THOMSON , Justice 16

17 BRIANA H. ZAMORA , Justice 18