STATE v. FOOTE (2026)

OPINION

{1} This case requires us to weigh the competing policies between our rape shield law, which protects the privacy of a victim of sexual assault concerning prior sexual conduct or reputation, NMSA 1978, § 30-9-16(A) (1993), and the accused's Sixth Amendment right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. Defendant Derek Laurice Foote was convicted following a bench trial on one count of kidnapping with intent to commit a sexual offense, contrary to NMSA 1978, Section 30-4-1(A) (2003); one count of criminal sexual penetration (CSP) (great bodily harm or great mental anguish), contrary to NMSA 1978, Section 30-9-11(D)(2) (2009); and one count of aggravated battery (great bodily harm), contrary to NMSA 1978, Section 30-3-5(A), (C) (1969). Defendant filed a motion under Rule 11-412(C) NMRA, our rule of evidence adopting the rape shield law, seeking to admit evidence of a sexual encounter between Victim and Defendant's neighbor (Neighbor), which occurred after Victim encountered Neighbor as she left Defendant's house the night of the charged crimes. Victim did not remember the sexual encounter with Neighbor at the time of trial. Victim, however, told an emergency room nurse only hours after the sexual encounter with Neighbor that she had been vaginally raped, a crime not charged against Defendant, and told law enforcement she would not have consented to intercourse with Neighbor. The defense wanted to introduce this evidence and to cross-examine Victim about Victim's memory of the events of that night to raise doubt about Victim's account of Defendant's conduct and about the cause of Victim's physical injuries.

{2} We agree with Defendant that exclusion of this evidence and the limitation on the scope of cross-examination of Victim about her failure to remember another potential sexual assault that was part of the course of events the same night as the crimes charged against Defendant violated Defendant's Sixth Amendment right to confront his accuser. By failing to ensure the fact-finder was fully informed about the events of that night, the court improperly prevented Defendant from adequately challenging the credibility of Victim and the source of her injuries, and usurped the fact-finder's role in determining whether the State proved Defendant guilty “beyond a reasonable doubt.” We reverse and remand for retrial.

BACKGROUND

{3} Defendant was convicted after a bench trial in the district court. The charges were based on Victim's account of events that occurred on the evening of November 1, 2015, and in the early morning hours of November 2, 2015, when, according to Victim's testimony, Defendant sexually assaulted her as she prepared to leave his house.

{4} The night began with Victim running into Defendant and another friend at a bar. Victim knew the two men as friends of her then-boyfriend. After drinking at the bar, Victim went with Defendant and the other man to Defendant's aunt's house to have more drinks. Around 2:00 a.m., Victim noticed Defendant's friend had left and Victim decided she should leave. Victim went to Defendant's bedroom to gather her things in preparation for leaving.

{5} According to Victim's trial testimony, Defendant followed her to the bedroom, blocked the bedroom door, and told her to undress. When Victim complied, he hit her several times across the face, hard enough to injure her right ear, and to render Victim unconscious. Victim testified that she woke up on her back with Defendant's hand on her neck. Victim described being forced to perform oral sex on Defendant. Defendant then pushed her out of the house—according to Victim without pants or shoes, wearing only underwear. Victim fell into a bush, then hit her head on the concrete. Victim testified that her only memory after being pushed out of the house was crying and screaming for help and Neighbor, whom she had never met before, helping her into her car. She woke up in the morning to find herself in her car, wearing an unidentified man's sweatpants and her underwear. She noticed a large dent on the hood of the car that had not been there the night before.

{6} Victim drove herself to the hospital. Victim reported to a nurse at the hospital that she had been “raped by a vaginal penetration” and complained of hearing loss and pain in her right ear and jaw. The hospital diagnosed a right eardrum rupture and referred her to a nearby rape crisis center for further examination.

{7} At the rape crisis center, Victim reported to law enforcement that Defendant had forced her to perform oral sex two times. At trial she testified to one act; a second count was dismissed by the court. Victim did not mention again having been vaginally penetrated against her will. The SANE nurse collected a number of swabs from Victim's body including oral and cervical canal swabs.

{8} Law enforcement collected DNA from Defendant and compared the DNA swabs to Victim's rape kit. No DNA matching Defendant was found anywhere on Victim's body or in her mouth. The State's expert explained that DNA breaks down in the mouth and that it is common not to be able to identify male DNA from the mouth.

{9} The State also obtained and tested DNA from Neighbor and compared it to Victim's rape kit. Neighbor's DNA conclusively matched sperm found inside Victim's cervical canal. When informed that testing showed she had sexual intercourse with Neighbor, Victim told law enforcement that she did not remember having sex with Neighbor and would not have consented to it. When law enforcement asked Neighbor about the DNA evidence, Neighbor claimed he had consensual sex with Victim that night.

{10} Neighbor's testimony at trial about what happened that night conflicted with Victim's testimony. Neighbor testified that Victim was fully clothed when she left Defendant's house, she appeared uninjured, she walked to her car alone, without his help, and he did not approach her until she drove to the end of the street and stopped.

{11} Prior to trial, Defendant filed a pretrial motion to admit the sexual conduct of the complaining witness, as required by Rule 11-412(B) when a defendant wants to admit evidence of other sexual conduct by a victim. Defendant asked the district court to allow the defense to admit “evidence that ․ [V]ictim had a sexual encounter after the alleg[ed encounter] with ․ Defendant and before she went to the SANE exam ․ because it goes to the possible source of the documented injuries [to Victim] and the male DNA found on the oral swabs. It is also important for impeaching the witness's memory.”

{12} Defendant argued that personal injury was an element of the CSP charge, and the evidence could create a reasonable doubt about whether the source of Victim's injuries was Defendant's conduct or Neighbor's. Defendant also stated that given the evidence of another sexual encounter the same night, “whether it was consensual or not consensual, ․ [Victim] reports having no memory of it at all. This calls into question her ability to recall the events [earlier] that night.” At the hearing on Defendant's motion, the attorneys acknowledged that Victim admitted to having major gaps in her memory of the events before her encounter with Neighbor. Victim admitted to drinking alcohol, being knocked unconscious, and to hitting her head on the cement outside Defendant's home. Defendant argued that the evidence that Victim had a sexual encounter with Neighbor, which she did not remember at all, is highly important to evaluate her memory of events earlier that night and is necessary to show whether Victim is a witness the fact-finder could rely on.

{13} The district court denied Defendant's motion, applying the rape shield law. The district court clarified that the State was not seeking to prevent the admission of the DNA evidence, and indicated that the defense could use the DNA evidence to establish that the DNA profile did not match Defendant, but could not identify Neighbor as the source of the DNA. As for the defense request to impeach Victim's memory, the district court indicated that the defense could examine Victim about the fact that she does not have any recollection about what happened after leaving Defendant's house. The district court concluded that Defendant's constitutional right to confront and cross-examine Victim was not violated because the defense theory that Neighbor caused Victim's injuries was “speculative” and the evidence as a whole was “overly prejudicial,” so that the balance weighed in favor of exclusion.

{14} In a written order after a subsequent request from Defendant to question Neighbor about these same issues, the court stated that testimony about Victim's vaginal intercourse with someone other than Defendant on the same evening was not material or relevant because there was no allegation that Defendant had vaginal intercourse with Victim. On these bases, the district court concluded that the evidence was inadmissible under our rape shield law and Rule 11-412(A).

{15} Following a bench trial, the court concluded that the State had proved Defendant's guilt of first-degree CSP with great bodily harm, third-degree kidnapping with the intent to commit CSP, and first-degree aggravated battery beyond a reasonable doubt.

DISCUSSION

{16} Defendant appeals the district court's order excluding the evidence of Neighbor's sexual encounter with Victim, and limiting Defendant's cross-examination of Victim and Neighbor, arguing that the court's ruling prevented him from mounting a full and fair defense, thereby violating his constitutional right to confront the witnesses against him. Defendant relies on longstanding New Mexico precedent acknowledging that when our rape shield law and rule “preclude the defendant from presenting a full and fair defense, the statute and rule must yield.” State v. Johnson, 1997-NMSC-036, ¶ 24, 123 N.M. 640, 944 P.2d 869. “[E]vidence of prior sexual conduct must be admitted if a defendant shows that evidence implicates [their] constitutional right of confrontation.” Id. ¶ 22.

{17} Specifically, Defendant argues that he made an adequate showing that the evidence excluded by the district court was essential to his defense theory that Victim was unable to accurately recall the events of that night and that Victim may have confused “which man had raped her due to her memory issues that night.” Defendant argues this evidence was probative given Victim's conflicting accounts of what happened, in particular that she described a vaginal rape in the morning to medical personnel but only told the SANE nurse later the same morning that she was forced to perform oral sex. Defendant argues that the evidence tending to show that Victim had been raped by Neighbor was probative of the truth about what happened and relevant to the credibility of the two key witnesses against Defendant, and that there was little to no counterbalancing prejudice to Victim.

{18} We first address how our courts have balanced the competing interests between the protections of the Sixth Amendment of the United States Constitution and New Mexico's rape shield law and rule of evidence, and then apply these principles to the facts and circumstances of this case.

I. The Confrontation Clause and Our Rape Shield Statute

{19} “The Confrontation Clause of the Sixth Amendment guarantees all criminal defendants, state and federal, the right ‘to be confronted with the witnesses against’ them.” State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 6, 136 N.M. 309, 98 P.3d 699 (quoting U.S. Const. amend. VI). “The Fourteenth Amendment applies the Sixth Amendment to the states.” State v. Montoya, 2014-NMSC-032, ¶ 21, 333 P.3d 935. “[T]he [district] court's discretion to exclude evidence a defendant wishes to admit” is “critical[ly] limit[ed]” by the Sixth Amendment's protections guaranteeing every criminal defendant the right “to cross-examine, test credibility, detect bias, and otherwise challenge an opposing version of facts.” Id. ¶ 22 (internal quotation marks and citation omitted). “[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Id. ¶ 28 (internal quotation marks and citation omitted).

{20} Unlike the Confrontation Clause, our rape shield statute is “not constitutional in nature.” Id. ¶ 28. “[R]ape shield protections arise in the context of evidentiary rules regarding relevance.” Id. Together with Rule 11-412, which adopts the protections of the rape shield law as a rule of evidence, the rape shield law imposes restrictions on the admission of evidence of past sexual conduct when that evidence is not relevant to a defense to the charges. Rule 11-401 NMRA provides that “[e]vidence is relevant if ․ it has any tendency to make a fact more or less probable than it would be without the evidence, and ․ the fact is of consequence in determining the action.” If evidence of a victim's sexual conduct does not make a “fact ․ of consequence in determining the action” (a material fact) any “more or less probable,” it can be excluded at trial without implicating the defendant's right to confrontation. Id. Importantly, the Confrontation Clause does not afford a defendant a right to cross-examine a witness, or present affirmative evidence if the evidence the defendant seeks to introduce is not relevant to a defense that might determine the outcome.

{21} The rape shield law provides as follows:

As a matter of substantive right, in prosecutions pursuant to the provisions of [NMSA 1978,] Sections 30-9-11 through 30-9-15 [(1975, as amended through 2009)], evidence of the victim's past sexual conduct,1 opinion evidence of the victim's past sexual conduct or of reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds that, the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Section 30-9-16(A). Rule 11-412 provides, in Subsection A:

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior, or

(2) evidence offered to prove a victim's sexual predisposition.

Subsection B of Rule 11-412 adopts limited exceptions that protect a defendant's right to present a complete defense under the Confrontation Clause. Subsection B allows the court to admit evidence of a victim's sexual behavior when that behavior “is material and relevant to the case [and] when the inflammatory or prejudicial nature does not outweigh its probative value.”

{22} For evidence of other sexual behavior by a victim to be admissible, a defendant must present to the district court “sufficient facts to support a particular theory of relevance to enable the trial court to competently assess the constitutional significance of that theory.” Montoya, 2014-NMSC-032, ¶ 29, 333 P.3d 935 (internal quotation marks and citation omitted); see Rule 11-412(C)(1)-(2) (requiring a written motion pretrial and an in camera hearing to allow the district court to determine whether the evidence is admissible).

II. The District Court Erred in Excluding Evidence of Victim's Sexual Encounter With Neighbor Pursuant to the Rape Shield Statute and Rule 11-412

A. Standard of Review

{23} “Our statute, rule, and cases rely on the trial court judge to identify theories of relevance as well as to exercise discretion, balance prejudicial effect against probative value, and thus determine admissibility on a case by case basis.” Montoya, 2014-NMSC-032, ¶ 25, 333 P.3d 935 (alteration, internal quotation marks, and citation omitted). Generally, we review evidentiary rulings by the district court for an abuse of discretion. See id. ¶ 15. “This standard of review, however, is different when a defendant's evidentiary challenge is based on constitutional rights to confrontation,” as Defendant's challenge is here. See id. Accordingly, we review de novo whether exclusion of the evidence of Victim's sexual encounter with Neighbor, pursuant to our rape shield statute and Rule 11-412, violates Defendant's Sixth Amendment right to mount a defense and to confront and cross-examine the witnesses against him. See id. ¶ 16.

B. Defendant Presented a Theory of Relevance of Victim's Sexual Encounter Implicating His Constitutional Right to Confrontation

{24} We must first determine whether Defendant made an adequate showing that the evidence Defendant sought to admit concerning Victim's sexual encounter with Neighbor was “material and relevant to the case.” See Rule 11-412(B). “Evidence is relevant if ․ it has any tendency to make a fact [in issue] more or less probable than it would be without the evidence.” Rule 11-401(A). Evidence is material if the evidence is relevant to “[a] fact ․ of consequence in determining the action.” Rule 11-401(B). In other words, the evidence of a victim's sexual behavior must be relevant to a defense that, if believed by the jury, creates a reasonable doubt about the defendant's guilt of the crime. Our Supreme Court in Johnson found that evidence that serves to “test [the victim's] credibility, detect bias, and otherwise challenge an opposing version of facts,” satisfies the requirement that the evidence of a victim's sexual behavior must be relevant to a material defense. 1997-NMSC-036, ¶ 23, 123 N.M. 640, 944 P.2d 869. If, on the other hand, the evidence of the victim's sexual behavior is relevant only to a collateral issue that is not central to determining the defendant's guilt or innocence, its admission is not required by the Confrontation Clause. Cf. id. ¶ 29.

{25} Defendant here explained to the district court the two related defense theories he wanted to rely on at trial, each of which he claimed was relevant and material to his guilt or innocence, and each of which depended on evidence of Victim's sexual encounter with Neighbor. Defendant claimed that he did not commit a sexual offense against Victim that night. Defendant argued that the fact that Victim was subject to a sexual assault by Neighbor that same night, immediately after leaving Defendant's house, and the fact that Victim could not remember that assault, (1) created a reasonable doubt about whether Victim had confused what happened later in the night with Neighbor with what had happened earlier with Defendant, putting in doubt the credibility of Victim's account of a sexual assault by Defendant; and (2) suggested a reasonable alternative explanation for her injuries. Defendant contends it was necessary to explore the events that occurred only minutes after Victim left sometime after 2:00 a.m., and which Victim did not remember, to put in doubt the accuracy of her memory about what happened before she left Defendant's house. We note, the evidence showed that with the exception of hitting her head on the concrete, the major events that impaired Victim's memory—drinking what Victim described as a lot of alcohol and being hit so hard she was rendered unconscious—had happened before Victim left Defendant's house, yet she claimed to remember the events just prior to leaving Defendant's house clearly, with only a few gaps. Defendant intended to use evidence suggesting a sexual assault by Neighbor (including evidence of a large new dent on the hood of Victim's car the next morning) to raise questions concerning whether Victim had confused in her mind a sexual assault, altercation, and injury after leaving Defendant's house with events that happened just before leaving Defendant's house. Defendant would have bolstered this defense with the evidence of Victim's confusion a few hours later, first telling medical personnel that she had been raped by vaginal penetration, then later that same morning telling a SANE nurse that she had been forced to perform oral sex on Defendant. Defendant also intended to highlight contradictions between Victim's trial testimony and prior versions of her story and between Victim's description of being injured and forced out in her underwear with Neighbor's testimony that Victim was fully dressed and that he did not approach her until she stopped her car at the end of the street, as well as arguing that the large, unexplained dent Victim discovered on the hood of her car the next morning suggested an altercation with Neighbor Defendant intended with these contradictions to create doubt about the accuracy of Victim's memory of Defendant sexually assaulting her. As the sole witness actually present at the sexual assault, impeaching Victim's ability to accurately remember what transpired that night would alone be sufficient to put in question whether the State proved Defendant's guilt beyond a reasonable doubt.

{26} The district court found the defense argument “speculative,” and excluded the evidence on this basis. But the defense does not need to establish the alternative inferences it argues with even a preponderance of the evidence; the evidence and the reasonable inferences from that evidence need only be sufficient to raise a reasonable doubt in the mind of the fact-finder—a doubt that the fact-finder can explain with a reason. A defendant has a right to confront the witnesses against them with cross-examination that undermines the credibility and accuracy of the witness's account of the relevant events and thereby creates doubt about whether what that witness describes actually happened the way the witness testifies. It is not necessary to show that the witness is biased or has a motive to lie. It is well established that a witness's credibility can be impeached by questioning the witness's “powers of discernment, memory, and description.” State v. Bent, 2013-NMCA-108, ¶ 10, 328 P.3d 677 (internal quotation marks and citation omitted). Cross-examination that tests the credibility of the central witness's testimony and the accuracy and completeness of that testimony is recognized as “one of the safeguards essential to a fair trial.” Montoya, 2014-NMSC-032, ¶ 39, 333 P.3d 935 (internal quotation marks and citation omitted).

{27} We, therefore, conclude that the evidence of Victim's sexual encounter with Neighbor meets the first part of the two-prong test found in Rule 11-412(A): the evidence was both relevant and material.

C. The Inflammatory or Prejudicial Nature of Defendant's Proffered Evidence Does Not Outweigh Its Probative Value

{28} Having concluded that Defendant presented an adequate theory of relevance and materiality to support admission of his proffered evidence, we must now examine whether the district court accorded the proper weight to Defendant's confrontation rights. The prejudice that must be weighed against the probative value of the evidence to the defense is specifically the prejudice the rape shield law was enacted to prevent: the harm caused to victims and the judicial process itself by intrusion into sexual history of the victim that is not relevant or material to the guilt or innocence of the accused. See Montoya, 2014-NMSC-032, ¶ 42, 333 P.3d 935.

{29} The rape shield law recognizes that evidence of the victim's sexual conduct is often likely to mislead the jury into improperly relying on the character of the victim for promiscuity, rather than on the facts and circumstances presented by the evidence. See id. Such evidence thus both invades the victim's privacy and can improperly prejudice the fact-finder, tilting the decision away from the relevant facts.

{30} These concerns do not appear to be prominent in this case. Defendant was not seeking to introduce the evidence of Victim's sexual encounter with Neighbor to show that Victim was promiscuous, or to suggest that she must have consented to sex with Defendant. The defense focused solely on Victim's inability to remember a significant part of events of that night that were related to her claims against Defendant. The questions Defendant wanted to ask Victim in his cross-examination focused on her inability to remember a major event, and her confusion about the events of that night, and not on details of her sexual behavior with Neighbor. With Neighbor, cross-examination on his sexual encounter with Victim would have put in doubt whether Victim correctly remembered a sexual assault by Defendant. Questioning Neighbor about Victim's condition when she left Defendant's house and about his not approaching Victim until she had entered her car and driven to the end of the street, would put in doubt Victim's testimony about being injured by Defendant and needing Neighbor's help to get to her car when she left his house. Defendant's intent to elicit Victim's statement that she would not have consented to sex with Neighbor undercut the implication of a propensity by Victim to engage in sex with strangers, an implication the rape shield law is designed to avoid. Defendant's proffered evidence and his proffered cross-examination of Victim and Neighbor based on that evidence neither exposed Victim's private sex life nor suggested a verdict based on Victim's character. There was, therefore, little prejudicial impact of the type the rape shield law and rule are designed to avoid.

{31} We conclude that the district court failed to give the proper weight to the probative value of evidence to a relevant and material defense when performing the required balancing. See, e.g., State v. Stephen F., 2008-NMSC-037, ¶ 37, 144 N.M. 360, 188 P.3d 84. By excluding evidence and cross-examination probative of the events of that night, the district court denied Defendant his right to present a full and fair defense by effectively cross-examining Victim and Neighbor, the two central witnesses.

III. The Error in Excluding Defendant's Proffered Evidence Was Not Harmless

{32} Confrontation Clause violations are subject to harmless error review. We will reverse only if we conclude the error was not harmless. It is the State's burden to prove that a “constitutional error was harmless beyond a reasonable doubt.” See State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110 (internal quotation marks and citation omitted). Constitutional errors are harmless “only if we conclude that there is no reasonable possibility the error contributed to the [fact-finder]’s decision to convict [the d]efendant.” Id. ¶ 45.

{33} We understand the State's argument to be that, regardless of error, we should affirm because substantial evidence supports Defendant's conviction. The State's argument misstates our standard of review. In Stephen F., our Supreme Court stated that when reviewing for harmless error, “a reviewing court should not be guided solely by the overwhelming evidence of the defendant's guilt.” 2008-NMSC-037, ¶ 39, 144 N.M. 360, 188 P.3d 84 (internal quotation marks and citation omitted). Instead, “the central focus of the inquiry ․ is whether there is a reasonable possibility the erroneous [exclusion of] evidence might have affected the jury's verdict.” Id. (internal quotation marks and citation omitted). We believe that Defendant's eliciting on cross-examination Victim's inability to remember Neighbor's sexual conduct that night is effective impeachment of Victim's testimony to the point where the trier of fact could have a reasonable doubt about what happened that night.

{34} The State also argues that because this was a bench trial, and not a jury trial, we must affirm because the judge was aware of the excluded evidence and still found Defendant guilty. We do not agree. Our case law is clear that we presume a district court judge, sitting as a fact-finder, disregards excluded evidence when determining guilt or innocence. See State v. Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156 (holding that during a bench trial “the judge often hears evidence or argument that [they] must subsequently disregard when functioning as fact-finder”); id. (“We presume that a judge is able to properly weigh the evidence, and thus the erroneous admission of evidence in a bench trial is harmless unless it appears that the judge must have relied upon the improper evidence in rendering a decision.”). We will not presume that the district court judge acted improperly in this case.

{35} The State has not met its burden of showing harmless error.

CONCLUSION

{36} We reverse Defendant's convictions and remand for a new trial consistent with this opinion. Because our decision under the rape shield law and Rule 11-412 is dispositive, we need not address Defendant's other points of error on appeal.

{37} IT IS SO ORDERED.

FOOTNOTES

1.   Unlike our rape shield statute, Rule 11-412(A) does not limit the exclusion of evidence of a victim's sexual conduct to “past sexual conduct.” The rule effectively extends the protections of the rape shield statute to other sexual conduct of a victim, regardless of whether it occurs prior to or after the charged offense. Compare Rule 11-412(A), with Rule 11-412(B) (using the term “past sexual conduct”).

YOHALEM, Judge.

WE CONCUR: JACQUELINE R. MEDINA, Chief Judge MEGAN P. DUFFY, Judge