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Jim v. Budd6/9/1987
supra.
We find that Mr. Jim's utterances were not offered to prove the truth of his words, or his state of mind or feelings. The words, "let the gates down against the chain," is a direction and not an assertion that would either be true or false. They were explanatory words which accompanied the events as they transpired, and they were significant to show Mr. Jim's
control of the belly-dump for purposes of repair. See State v. Ballinger, 99 N.M. 707, 663 P.2d 366 (Ct.App.1983), rev'd on other grounds, 100 N.M. 583, 673 P.2d 1316 (1984) (evidence offered under verbal acts doctrine to show that certain acts were done or to show defendant's then-existing mental state or as statements of recent perception, were not offered for the truth of the matters asserted); State v. Aragon, 85 N.M. 401, 512 P.2d 974 (Ct.App.1973) (out of court statement was not hearsay when merely admitted to prove that it was made and not to prove it was true).
We also disagree with plaintiff that defendant's testimony regarding Mr. Jim's statements was untrustworthy because Mr. Jim was unavailable and defendant was an interested party. The fact of whether the statements were made went to the weight and credibility of the witness rather than whether or not the utterances were true. Cf. Silva v. City of Albuquerque, 94 N.M. 332, 610 P.2d 219 (Ct.App.1980); Strickland v. Roosevelt County Rural Elec. Coop., 94 N.M. 459, 612 P.2d 689 (Ct.App.1980).
Plaintiff claims that even if the statements were not hearsay, or if they fell within the residual exceptions to Rules 803 and 804, they should nevertheless have been excluded under Rule 403 because the prejudice to plaintiff outweighed their probative value. It was within the trial court's discretion to weigh the prejudice against the probative value. See In re Will of Ferrill, 97 N.M. 383, 640 P.2d 489 (Ct.App.1981). Moreover, it was not a sufficient reason to exclude competent evidence merely because its admission may tend to prejudice its opponent. State v. Martinez, 94 N.M. 50, 607 P.2d 137 (Ct.App.1980). The evidence here was admitted to show the circumstances surrounding the statements. Since there is no indication that the circumstances could be shown by other means, the probative value was heightened. Cf. id.
Plaintiff's final argument under the hearsay issue is that a limiting instruction should have been given both at the time the statements were given and during final jury instructions. Plaintiff's suggestion that she relied on the trial court's letter that a limiting instruction might be given is without merit.
First, the trial court ruled that the evidence was not hearsay. We can reasonably assume that based on that ruling, a limiting instruction was unnecessary. Second, plaintiff's special requested instructions regarding credibility, bias or interest of the witness were adequately covered in content by N.M.S.A. 1978, UJI Civ. 20.3 (Repl.Pamp.1980) tendered to the jury at the end of trial. See Landers v. Atchison, T. & S.F. Ry., 73 N.M. 131, 386 P.2d 46 (1963). We fail to see how plaintiff was prejudiced by the trial court's refusal to give a limiting instruction.
b. Plaintiff's Direct Examination of Defendant
Although a party has a right to use leading questions when interroga
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