This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,863 9 JEFF GUTHRIE, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 12 Drew D. Tatum, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Liane E. Kerr 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 GARCIA, Judge. 23 Defendant Jeff Guthrie pleaded no cont est to one count of fourth-degree 242 criminal sexual penetration (child thirteento sixteen) (CSP IV), contrary to NMSA 1 1978, Section 30-9-11(G)(1) (2007) (amended 2009). In the plea agreement, Guthrie 2 reserved the right to appeal the district court’s order granting the State’s motion in 3 limine to exclude evidence of the past sexual conduct of S.M. (Vic tim). On appeal, 4 Guthrie argues the district court abusedits discretion in excluding evidence that 5 Victim had a ten-month-old child pursuant to New Mexico’s rape shield statute. We 6 affirm the district court. 7 BACKGROUND 8 Guthrie was charged with three counts of CSP IV, contrary to Section 30-9- 9 11(G)(1). At the time the charged acts a llegedly occurred, Guthrie was thirty-five 10 years old, and Victim was fifteen years old. 11 The State filed a motion in limine to exclude evidence or testimony regarding 12 Victim’s past sexual conduct pursuant to NMSA 1978, Section 30-9-16(A) (1993), 13 and Rule 11-413(A) NMRA. During an in cam era hearing, the St ate argued that the 14 district court should exclude any evidence or testimony that Victim had a ten-month15 old child at the time the alleged acts occurre d. The State argued that the fact that 16 Victim had a child was indicative of past sexual conduct and that it was required to 17 be excluded under Rule 11-413(A) absent a written motion by Guthrie demonstrating 18 that (1) the testimony is relevant and material, and (2) its probative value outweighs 193 its prejudicial impact. 1 Guthrie responded that the f act that Victim had a ten-month-old child at the 2 time the alleged acts occurred supported his mi stake of fact defense. Specifically, 3 Guthrie argued that he belie ved Victim was seventeen y ears old because Victim told 4 Guthrie and other persons that she was seve nteen years old, Victim had a ten-month5 old child, and Victim behaved as if she was seventeen years old. Guthrie asserted that 6 the purpose of the evidence wa s not to inflame the jury by showing that Victim was 7 promiscuous but to support Guthrie’s mistake of fact defense. 8 The State countered that Guthrie could still argue his mistake of fact defense 9 even without evidence that Victim had a child. The State further asserted that 10 evidence of Victim’s first child was not rele vant and that it would inflame the jury by 11 showing that because Victim had a child wh en she was fifteen y ears old, Victim was 12 sexually promiscuous and ha d bad morals and conduct. The State clarified that 13 Victim had two children, one child who was ten months old at the time of the alleged 14 incident and a second child as a result of the alleged acts. The State argued that 15 evidence of Victim’s second child was rele vant and admissible because the child was 16 allegedly the result of the charged acts, but evidence of Victim’s first child was 17 irrelevant and inadmissible. 18 The district court ordered that evid ence of Victim’s first child would be 194 excluded because the prejudicial effect of the evidence outweighed any probative 1 value. The court further reasoned that evid ence of Victim’s first child was not clearly 2 presented as relevant to the case. However, the court ruled thatevidence of Victim’s 3 second child, who was allegedly fathered by Guthrie, was admissible. The district 4 court further clarified that Guthrie would have certainly been allowed to present his 5 mistake of fact defense had the case proceeded to trial and that its ruling only affected 6 a portion of that defense. 7 Guthrie subsequently entered a plea agr eement and reserved his right to appeal 8 the district court’s ruling on the State’s motion in limine. The district court entered 9 a written order granting the State’s motion to exclude evidence of Victim’s past sexual 10 conduct, and Guthrie appealed. 11 DISCUSSION 12 On appeal, Guthrie argues the districtcourt erred in excluding evidence that 13 Victim had a ten-month-old child at the time the allege d acts occurred because the 14 evidence was relevant to Guthrie’s mistake of fact defense, and the probative value 15 of the evidence outweighed its prejudicial impact. Additionally, Guthrie argues that 16 the district court’s order excluding evidence of Victim’s first child denied Guthrie his 17 right to present a defense. 18 Standard of Review 195 “A district court’s decision to excludeevidence of a victim’s prior sexual 1 conduct is reviewed for abuse of discretion.” State v. Stephen F. , 2008-NMSC-037, 2 ¶ 8, 144 N.M. 360, 188 P.3d 84. “We cannot say the [dis trict] court abused its 3 discretion by its ruling unless we can characterize it as clearly untenable or not 4 justified by reason.” State v. Casillas , 2009-NMCA-034, ¶ 24, 145 N.M. 783, 205 5 P.3d 830 (internal quotation marks and citation omitted). We will not reverse a 6 district court’s determination regarding the admissibility of evidence absent a clear 7 abuse of discretion. State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 8 P.2d 72. 9 Exclusion of Past Sexual Conduct 10 Rule 11-413(A) provides that “evidence of the victim’s past sexual conduct, 11 opinion evidence thereof or of reputation fo r past sexual conduct sh all not be admitted 12 unless, and only to the extent,” that the district court makes the following findings: 13 (1) “evidence of the victim’s past sexual conduct is materialand relevant to the case,” 14 and (2) “its inflammatory or prejudicial nature does not outweigh its probative value.” 15 Rule 11-413(A); see § 30-9-16(A). Our Supreme Court has suggested the following 16 five factors to assist the district court in determining the admissibility of a victim’s 17 past sexual conduct: 18 (1) whether there is a clear show ing that the complainant committed 19 the prior acts; 206 (2) whether the circumstances of th e prior acts closely resemble those 1 of the present case; 2 (3) whether the prior acts are clearly relevant to a material issue, such 3 as identity, intent, or bias; 4 (4) whether the evidence is necessary to the defendant’s case; and 5 (5) whether the probative value of the evidence outweighs its 6 prejudicial effect. 7 Stephen F. , 2008-NMSC-037, ¶ 8 (internal quotation marks and citation omitted). 8 However, our Supreme Court clarified that in adopting the five factors, it “did not 9 intend to limit the [district] courts in the exercise of discretion under the rule and 10 statute, but rather to suggest a possible framework for exercising that discretion.” Id. 11 (internal quotation marks and citation omitted). Furthermore, the district court must 12 determine the admissibility of past se xual conduct under Rule 11-413 on a case-by13 case basis. State v. Payton , 2007-NMCA-110, ¶ 7, 142 N.M. 385, 165 P.3d 1161. 14 Initially, we note that Guthrie does not provide argument and authority on 15 appeal that the existence of a child doe s not constitute “se xual conduct” under Rule 16 11-413(A) and Section 30-9-16(A) or that our rape shield law is in applicable. Instead, 17 Guthrie analyzes whether evidence of Vic tim’s child is admissible pursuant to Rule 18 11-413(A) and Section 30-9-16(A). This Court will not address issues unsupported 19 by argument and authority. State v. Torres , 2005-NMCA-070, ¶ 34, 137 N.M. 607, 20 113 P.3d 877. Accordingly, we do not addr ess whether the district court erred in 217 concluding that the existence of a childconstitutes evidence of sexual conduct under 1 Rule 11-413(A) and Section 30-9-16(A). 2 Guthrie argues that he satisfied each of the five factors for weighing the 3 admissibility of sexual conduct. See Stephen F. , 2008-NMSC-037, ¶ 8. In analyzing 4 the first two factors, Guthrie argues thatthe existence of Victim’s first child 5 establishes both that Victim committed the prior act and that the circumstances of the 6 prior act closely resemble those of the present case. The State does not dispute that 7 the first factor was satisfied, and we ag ree that the existence of Victim’s child 8 established that Victim committed the prio r act. However, Guthrie’s only argument 9 as to whether the circumstances resulting in the existence of Victim’s first child 10 closely resemble those of the present case was that a child resulted from both the prior 11 and presently charged acts. Furthermore, the parties havenot presented any additional 12 argument or evidence regarding the similarity of the two acts. Consequently, we 13 conclude that the circumstances resulting inVictim’s first child are not relevant to 14 Guthrie’s defense that he believed that Vi ctim was seventeen years old based in part 15 on the fact that she had a child. As a result, the second factor does not apply in this 16

case. See id. ¶ 12 (concluding that the second factor did not apply where the 17 circumstances underlying the prior act were irrelevant to the defendant’s theory). 18 Regarding the third factor, Guthrie contends that the existence of Victim’s first 198 child is relevant and material to the elem ent of intent. Specifically, Guthrie argues 1 that the existence of Victim’s first child supported Guthrie’s defense that he 2 reasonably believed that Vic tim was seventeen years old and of legal age to engage 3 in sexual relations. Guthrie further contends that the existence of Victim’s child made 4 it more probable that Victim’s claim thatshe was seventeen years old was true. See 5 Rule 11-401 NMRA (defining relevant ev idence as “evidence having any tendency 6 to make the existence of any fact that is of consequence to the determination of the 7 action more probable or less probable thanit would be without the evidence”). The 8 State asserts, however, that even under the common law rule, our Supreme Court 9 viewed a minor victim’s prior sexual ac tivity as immaterial in statutory rape 10 proceedings. See State v. Armijo , 64 N.M. 431, 432, 329 P.2d 785, 785 (1958) 11 (stating that the previous chastity of the alleged victim is ordinarily immaterial in 12 statutory rape proceedings). The State further contends that th e only requirement for 13 having a child is sexual maturity and thata person may be under the age of sixteen 14 years old and still have a child. 15 “It is within the discretion of the [district] court to evaluate the relevance of 16 evidence.” State v. Duffy , 1998-NMSC-014, ¶ 31, 126 N.M. 132, 967 P.2d 807, 17 modified on other grounds by State v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 18 185, 152 P.3d 828. Furthermore, the de fendant bears the burden under Rule 11- 199 413(A) of “establish[ing] a valid theory of relevance and . . . support[ing] that theory 1 with adequate facts showing a nexus betw een his proffered evidence and his theory.” 2 Stephen F. , 2008-NMSC-037, ¶ 36. The district court specifically requested that 3 Guthrie explain the nexus between the existe nce of Victim’s child and his mistake of 4 fact defense. In response, Guthrie assertedthat he believed Victim’s claim that she 5 was seventeen years old based in part upon the existence of her ten-month-old child, 6 but he did not provide additi onal facts or argument to explain the nexus between the 7 evidence and his theory. As a result, we conclude that the district court did not abuse 8 its discretion in concluding that Guthrie failed to clearly demonstrate the relevance of 9 the existence of Victim’s first child to his defense that he reasonably believed that 10 Victim was seventeen years old, rather than sixteen years old or younger. 11 Regarding the fourth factor, Guthrie argues that the existence of Victim’s first 12 child was necessary to his mistake of fact defense. We disagree. Guthrie argued 13 below that based upon his pretrial interviews, Victim would have testified at trial that 14 she told Guthrie and several other people that she was seventeen years old. Guthrie 15 further asserted that he woul d have testified that he belie ved that Victim was of legal 16 age to engage in sexual intercourse ba sed upon Victim’s attitude, demeanor, and 17 actions; Victim’s statement to Guthrie thatshe was seventeen; Vi ctim’s statements to 18 other specifically identified persons that sh e was seventeen; and the existence of her 1910 ten-month-old child. Furthermore, the district court reasoned that its ruling only 1 affected a portion of Guthrie’s mistake of fact defense and that Guthrie would have 2 still been permitted to present other eviden ce supporting his mistake of fact defense 3 had the case proceeded to trial. Based upon the availab ility of additional evidence in 4 support of Guthrie’s mistake of fact defense, we conclude that the district court did 5 not abuse its discretion in determining that the existence of Victim’s first child was 6 not necessary to Guthrie’s defense. 7 Finally, Guthrie argues that the inflammatory or prejudicial nature of the 8 evidence of Victim’s first child does not outweigh its probative value. “Determining 9 whether the prejudicial impactof evidence outweighs its probative value is left to the 10 discretion of the [district] court.” State v. Rojo , 1999-NMSC-001, ¶ 48, 126 N.M. 11 438, 971 P.2d 829 (alteration omitte d) (internal quotation marks and citation omitted). 12 The district court has discretion to limit or exclude testimony regarding a victim’s past 13 sexual conduct “if the cross-examination is cumulative or only marginally relevant, 14 or to protect against certain legitimate c oncerns, such as undue harassment, prejudice, 15 or confusion of the issues[.]” Stephen F. , 2008-NMSC-037, ¶ 27 (internal quotation 16 marks and citation omitted). However, th e court’s restriction on the testimony must 17 not be arbitrary or a disproportionate balancing between a defe ndant’s constitutional 18 right of confrontation and the purposes of Rule 11-403(A) and Section 30-9-16(A) in 1911 protecting victims from unwarrant ed intrusions on privacy. See Stephen F. , 2008- 1 NMSC-037, ¶¶ 1, 27. 2 Given Guthrie’s failure to clearly demonstrate the relevance of the evidence of 3 Victim’s first child, the availability of additional evidence supporting Guthrie’s 4 mistake of fact defense, and the State’s concern that the evid ence would inflame the 5 jury against Victim by showing a pr opensity toward ba d conduct and sexual 6 promiscuity, we conclude that the distri ct court did not abuse its discretion in 7 determining that the evidence of Victim’s first child was more prejudicial than 8 probative. Under these circumstances, we cannot say that the district court’s decision 9 was arbitrary or a disproportionate balancing of the competing interests between 10 Guthrie’s constitutional right to confront the witnesses against him and the State’s 11 interest in protecting Victim from unwarranted intrusions on her privacy pursuant to 12 Rule 11-413(A) and Section 30-9-16(A). See Stephen F. , 2008-NMSC-037, ¶¶ 1, 27. 13 As a result, we affirm the district court’s motion in limine to exclude evidence of 14 Victim’s first child pursuant to Rule 11-413(A) and Section 30-9-16(A). 15 Right to Present a Defense 16 Guthrie asserts that the district court’s exclusion of evidence regarding Victim’s 17 first child denied him the right to present a mistake of fact defense. Guthrie relies 18
upon State v. Lucero to argue that “a defendant is en titled to have his or her theory of 1912 the case submitted to the jury under proper instructions where the evidence supports 1 it.” 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143 (alteration omitted) (internal 2 quotation marks and citation omitted). Specifically, Guthrie contends that the 3 question of whether his mistake of fact was reasonable should have been a question 4 for the jury. 5 We conclude that Guthrie’s argument is not supported by the record. The 6 district court clarified that Guthrie would have been allowed to present his mistake of 7 fact defense had the case proceeded to trial and further clarified that its ruling only 8 affected a portion of that defense. Howe ver, because Guthrie entered into a plea 9 agreement, the district court did not issu e a jury instruction regarding Guthrie’s 10 mistake of fact defense. As a result, we conclude that the district court did not deny 11 Guthrie the right to present a mistake of fact defense. 12 CONCLUSION 13 For the foregoing reasons, we affirm the district court’s order granting the 14 State’s motion in limine to exclude evidence of Victim’s past sexual conduct. 15 IT IS SO ORDERED. 16

______________________________ 17 TIMOTHY L. GARCIA, Judge 1813 WE CONCUR: 1

_________________________________ 2 CYNTHIA A. FRY, Judge 3

_________________________________ 4 RODERICK T. KENNEDY, Judge 5