IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 27,008 4 STEPHANIE OSBORNE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Stephen Bridgforth, District Judge 8 Gary K. King, Attorney General 9 Ann M. Harvey, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Hugh W. Dangler, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Chief Judge. 18 Defendant was convicted of negligen tly permitting child abuse stemming from 19 an incident in which her live-in boyfriend applied duct tape to her son, R.O., and left 20 him tied up for nearly an hour. At trial, Defendant sought to introduce evidence that 21 R.O. had gotten into trouble on numerous o ccasions and that he therefore had a 22 motivation to lie so that hewould be removed from his mother’s home and sent to live 232 with his aunt and uncle. The district c ourt excluded this evidence. On appeal, 1 Defendant argues that the district court erred by excluding this evidence and by 2 refusing to grant a mistrial when the prosecutor commented on Defendant’s inability 3 to show that R.O. had any motive to lie during closing arguments. For the following 4 reasons, we affirm the district court. 5 BACKGROUND 6 This case arose from an in cident of child abuse perpetrated against R.O. by 7 Defendant’s boyfriend. In September 2005, Defendant’s boyfrie nd applied duct tape 8 to R.O. at their home in Doña Ana County. According to R.O., he had been grounded 9 for some trouble he had at school and he wa s not supposed to leave his room. After 10 disregarding his punishment and leaving hi s room on four separate occasions, R.O. 11 testified that his mother’s boyfriend came into R.O.’s room and applied duct tape to 12 R.O.’s hands, ankles, wrists, eyes and mouth. According to R.O., he was unable to 13 free himself for approximately fifty minutes and lay on the floor trying to free himself 14 and get up. After the thirty to fifty-mi nute period had passed, the boyfriend returned 15 to the room and rem oved the duct tape from R.O.’s eyes . R.O. was then able to hop 16 out to the kitchen, where he saw his mo ther making coffee. According to R.O., he 17 was crying at the time and tried to communicate with his mother to help him get free 183 but she simply looked at him and walked away. R.O. was eventually able to free 1 himself and then proceeded to clean tape residue from his body. 2 According to Defendant’s testimony and that of her boyfriend, R.O. was not 3 being punished. Instead, there was testimony that R.O. frequently liked to play a 4 game in which he would ask to be tied up in order to s ee how long it took him to get 5 free. According to Defendant, on the day in question, R.O. was bound only at his 6 wrists and he was not distressed or upset by the incident. Defendant’s story is 7 consistent with a version of the events thatR.O. told to his biological father on the day 8 of the incident. However, after R.O. spoketo his father and the deputy, R.O. spoke 9 to Officer Chavez, whom he informed that he had been tied up as punishment and in 10 the manner he described at trial. 11 Prior to the trial, the State filed a motion in limine to exclude evidence of 12 specific incidents of R.O.’s misconduct that led to his being grounded. According to 13 Defendant, the evidence was admissible becau se it tended to show that R.O. had a 14 motivation to lie because he frequently got into trouble, he did not like the punishment 15 he received at home, and he wanted to be removed from his home so he could live at 16 his aunt’s house where he woul d not be punished as harshly. The court granted the 17 State’s motion, ruling that evidence of specific instances of misconduct were 18 inadmissible, but it allowed Defendant to introduce evidence that R.O. was a difficult 194 child who was routinely disciplined. The court also ruled thatthe defense could 1 question R.O. about any motivation he had tolie. The court informed Defendant that 2 it would reconsider its ruling during trial if Defendant so requested. Defendant never 3 asked the court to reconsider its motion, nor did Defendant directly ask R.O. about any 4 motivation he may have had to lie. Follo wing her conviction, Defendant filed this 5 appeal. 6 DISCUSSION 7 Evidence of Victim’s Prior Bad Acts is Inadmissible 8 The specific bad acts that Defendant s ought to introduce consisted of testimony 9 that R.O. had brought a knife to school, ha d tried to burn his house down, had broken 10 a neighbor’s windows, had verbally abused his teachers, had gotten into fights at 11 school, and was generally a troubled child. Defendant argues that the district court 12 abused its discretion in ruling that this ev idence was inadmissible and that this error 13 prevented Defendant from pres enting her defense to the ju ry and denied her the right 14 to a fair trial. 15 As a general rule, the “[a]dmission of ev idence is entrusted to the discretion of 16 the [district] court, and rulings of the [district] judge will not be disturbed absent a 17 clear abuse of discretion.” State v. Worley , 100 N.M. 720, 723, 676 P.2d 247, 250 18 (1984). With respect to the admission of ev idence of prior bad acts of the victim of 195 a crime, “an abuse of discretion may be found only if the exclus ion of the evidence 1 precluded the criminal defendant from proving an element of his defense.” State v. 2 Baca , 114 N.M. 668, 672, 845 P.2d 762, 766 (1992). 3 Defendant argues that evidence of R.O.’s prior bad acts was admissible under 4 Rule 11-404(B) NMRA, which provides thatwhile “[e]vidence of other crimes, 5 wrongs or acts is not admissible to prove th e character of a person in order to show 6 action in conformity therewith,” such evidence may “be admissible for other purposes, 7 such as proof of motive, opportunity, inte nt, preparation, plan, knowledge, identity or 8 absence of mistake or accident.” Defendant argues that R.O.’s prior bad acts fall 9 within the motive exception to Rule 11-404( B) because the bad acts show that R.O. 10 had a motive to lie about wh at had happened so that hecould be removed from his 11 home. Defendant’s reliance on this rule is misplaced. 12 The motive exception in Rule 11-404(B) is intended to allow evidence of a 13 defendant’sprior bad acts to be admitted to show that the defendant had a motive to 14 commit a crime, not, as Defendant argues, to show that a witness has a motive to lie. 15 See State v. Allen , 2000-NMSC-002, ¶ 41, 128 N.M . 482, 994 P.2d 728 (filed 1999) 16 (holding that evidence of a defendants prior bad acts was admissible because it 17 showed that he had a motive to murder hi s victim so that she could not report the 18 crime). Where, as here, the motive to beshown is a motive to lie, not a motive to 196 commit a crime, Rule 11-404(B) is inapplicab le. The evidence is being used to attack 1 the credibility of the witness and is therefore governed by Rule 11-608 NMRA. State 2 v. Lovato , 91 N.M. 712, 715, 580 P.2d 138, 141 (Ct. App. 1978) (noting that 3 “evidence of character and conduct attacking the credibility of [a] witness” is 4 governed by Rule 11-608, not Rule 11-404). 5 Rule 11-608 specifically precludes the ad mission of extrinsic evidence for the 6 purpose of attacking or supporting a witness’ s character for untruthfulness. Rule 11- 7 608(B). Specific instances of conduct may be inquired into on cross examination if 8 the conduct concerns the witness’s characterfor truthfulness, but extrinsic evidence 9 cannot be brought in to prove the conduct. Id. Thus, under Rule 11-608, Defendant 10 could have inquired about R .O.’s prior bad acts during R.O.’s cross examination, but 11 only if the bad acts reflected on R.O.’s char acter for truthfulness or untruthfulness. 12 Id. 13 The evidence that R.O. had attempted to burn his house down, had taken a knife 14 to school, had broken windows, and had fought with classmates and teachers did not 15 have any direct bearing on his character for truthfulness. None of the bad acts 16 Defendant sought to introduce involved dis honesty, and thus they do not fall within 17 the scope of Rule 11-608(B). See State v. Miller , 92 N.M. 520, 522, 590 P.2d 1175, 18 1177 (1979) (holding that evidence that the defendant had hired a person to kill 197 someone did not concern the defendant’s ch aracter for truthfulness and did not fall 1 within the scope of Rule 11-608, but that questions concerning buying stolen property, 2 selling illegal drugs, and failing to account fo r the proceeds of a sale did have a 3 bearing on credibility since they were crimes of dishonesty). Thus, Defendant could 4 not properly inquire about R .O.’s bad acts during cross examination because they had 5 no bearing on his character for truthfulness. 6 While it is clear that the evidence of R.O.’s prior bad acts was inadmissible 7 under Rules 11-404 and 11-608, Defendant argues that the evidence was admissible 8 because it showed that he had a motivation to lie, which is a form of bias. To reach 9 this conclusion, Defendant argues that evidence of R.O.’s specific bad acts would 10 have allowed Defendant to show that R.O. disliked the punishment he received from 11 his mother for the bad acts and was not punished by his aunt for the same conduct. 12 According to Defendant, this would have shown that R.O. lied about the duct tape 13 incident so that he coul d be removed from his mother’s home and placed with his 14 aunt. Thus, Defendant argues, the evid ence of R.O.’s bad acts would have showed 15 that R.O. had a motivation to fabricate hi s story and would have impeached R.O.’s 16 testimony by showing that he was a biased w itness. Defendant argues that the district 17 court’s exclusion that the evidence precl uded her from presenting this defense and 18 “prevented the jury from doing its job.” We disagree. 198 Generally, a witness can be impeached by extrinsic evidence showing that a 1 witness may have a bias, and evidence of prior bad acts could conceivably 2 demonstrate that a witness has a bias or a motivation to lie. See State v. White , 58 3 N.M. 324, 333, 270 P.2d 727, 733 (1954) (no ting that evidence showing bias or 4 interest is never excluded on the ground of be ing collateral). Evidence of R.O.’s prior 5 bad conduct, however, did not in and of itself demonstrate bias. 6 Furthermore, the district court’s ruli ng did not preclude Defendant from putting 7 forth the defense that R.O. had a motive to lie because he preferred to live with his 8 aunt and uncle. In fact, when the districtcourt ruled that evid ence of R.O.’s specific 9 conduct was inadmissible, the district court advised Defendant’s counsel that “[y]our 10 client may present evidence that the child was a difficult child. . . that they routinely 11 disciplined him by placing him in his room,” and that “he didn’t like it and didn’t react 12 to it well.” With respect to the issue of R.O.’s having fabricated his story, the court 13 advised counsel that “you certainly may ask the child if he fabricated it, and if he did 14 so to live with the” aunt and uncle and th at “you could ask if [R.O.] is in any way 15 continuing a false story because he likes it athis aunt and uncle’s.” Finally, the court, 16 referring to the alleged fabrication of the story, advised that “[ w]hen we get to that 17 point in time, if you want to approach the bench and ask me to reconsider in light of 18 what we’ve heard from the witness st and, I’ll certainly reconsider it.” 199 Thus, while the court ruled that R.O.’s prior bad acts were inadmissible, the 1 court did not preclude Defendant from asserting that R.O. had fabricated the duct tape 2 story because he preferred to live with hi s aunt and uncle. In fact, the court left 3 Defendant with wide latitude to elicit testimony from R.O. that he had fabricated the 4 story so that he could live with his aunt and uncle because he disliked the way his 5 mother punished him. While the court precluded Defendant from eliciting the specific 6 bad acts that had resulted in R.O.’s punishme nts, the court did not prevent Defendant 7 from asking R.O. if he had been punish ed frequently, how he felt about the 8 punishments, and if he wanted to live with his aunt and uncle to avoid being punished. 9 That Defendant’s counsel did not take the opportunity to question R.O. about his 10 motivation to lie is not an error of the court and is not grounds for reversal. B ecause 11 evidence of prior bad acts is inadmissible under Rules 11-404 and 11-608, and 12 because the district court’s ruling did not preclude Defendant from presenting her 13 defense to the jury, we cannot conclude thatthe district court abused its discretion in 14 excluding the evidence of R.O.’s misconduct. 15 Prosecutorial Misconduct 16 Defendant next argues that the districtcourt abused its discretion by refusing 17 to declare a mistrial whenthe prosecutor commented on Defendant’s failure to show 18 that R.O. had any motive to fabricate hi s story. During closing arguments, the 1910 prosecutor argued on three occasions that th ere was no motive for R.O. to lie. First, 1 the prosecutor noted that “[f]or some cr azy unknown reason, this 11-year-old boy . . 2 . started telling a lie. . . . Why he ended up turning on them in the first place, nobody 3 knows.” Next, the prosecutor started to ar gue that “[a]s for motive for [R.O.]—again, 4 what’s [R.O.’s] motive to turn on his—” before being cut off by an objection and 5 motion for mistrial from the defense. Fi nally, after the court overruled Defendant’s 6 objection, the prosecutor argued that “ nobody is offering a motive for why [R.O.], in 7 the first place, changed his story and started saying, Hey, this is what really 8 happened.” Defendant argues that th ese comments amount to prosecutorial 9 misconduct and warrant a new trial. We disagree. 10 We review the denial of a motion for mistrial based on prosecutorial 11 misconduct for an abuse of discretion. State v. Gonzales , 2000-NMSC-028, ¶ 35, 129 12 N.M. 556, 11 P.3d 131. The district court abuses its discretion in denying a motion 13 for mistrial “when the ruling is clearly agai nst the logic and effect of the facts and 14 circumstances of the case.” State v. Simonson , 100 N.M. 297, 301, 669 P.2d 1092, 15 1096 (1983), abrogated by State v. Ruiz , 2007-NMCA-014, 141 N.M. 53, 150 P.3d 16 1003. 17 Generally, a prosecutor has wide latitude during closing arguments , State v. 18 Smith , 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254, and may comment on the 1911 evidence and discuss inferences thatcan be drawn from the evidence. State v. 1 Hernandez , 104 N.M. 268, 275, 720 P.2d 303, 310 (Ct. App. 1986). Despite this wide 2 latitude, the prosecution engages in mi sconduct when it makes improper comments 3 that have “such a persuasive and prejudici al effect on the jury’s verdict that the 4 defendant [is] deprived of a fair trial.” State v. Duffy , 1998-NMSC-014, ¶ 46, 126 5 N.M. 132, 967 P.2d 807. In or der to be deemed proper, the prosecution’s comments 6 “must be based upon the evidence or be inresponse to the defendant’s argument.” 7 Smith , 2001-NMSC-004, ¶ 38. 8 In order for us to determine whether prosecutorial misconduct requires a new 9 trial, there must first actuallybe prosecutorial misconduct. See Duffy , 1998-NMSC10 014, ¶ 46 (noting that determination of the issue “rests on whether the prosecutor’s 11 improprieties had such a persuasi ve and prejudicial effect on the jury’s verdict that the 12 defendant was deprived of a fair trial”). Defendant argues that the prosecution was 13 prohibited from first preventing Defendant’s presentation of her defense to the jury 14 and then commenting on Defendant’s lack of a defense. As discussed above, 15 however, Defendant was not prevented from presenting her defense to the jury; she 16 was prevented only from presenting certaininadmissible evidence to the jury 17 regarding R.O.’s bad conduct. Defendant was free to atte mpt to show that R.O. had 18 a motivation to fabricate his story. Defe ndant chose not to attempt to elicit such 1912 testimony from R.O. and instead chose to ar gue, during closing argument, that R.O. 1 had fabricated his story. Had the pros ecution commented on De fendant’s failure to 2 show what R.O. had been punished for, thenwe would be presented with an entirely 3 different question. However, where, as here, the prosecution did not refer to any of 4 the excluded evidence, the prosecution di d not make any improper statements. In 5 addition, throughout the trial, Defendant had attacked th e credibility of R.O. and had 6 suggested to the jury that R.O. had fabricated his story. By commenting during 7 closing on the dearth of evidence suggesting a motive to fabricate, the prosecutor was 8 properly commenting on arguments Defendant had made and commenting on the 9 evidence introduced at trial. Because th e prosecution did not make any improper 10 remarks during closing, we cannot c onclude that the prosecution engaged in 11 prosecutorial misconduct. 12 Because there was no prosecutorial misconduc t in this case, the district court 13 did not err in denying Defendant’s request for a mistrial. 14 CONCLUSION 15 For the foregoing reasons, we affirm Defendant’s conviction. 16 IT IS SO ORDERED. 17

18 CYNTHIA A. FRY, Chief Judge 1913 WE CONCUR: 1

2 MICHAEL D. BUSTAMANTE, Judge 3

4 TIMOTHY L. GARCIA, Judge 5