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State v. Maestas3/28/2005
for running a brothel.
{35} We note at the outset that Defendant cites no case law on the substance of these issues and presents only a cursory argument in support of his contentions. We therefore address Defendant's arguments in similar, summary fashion.
{36} In determining whether the trial court unduly restricted Defendant's right to cross-examine Victim, we undertake de novo review. State v. Martinez, 1996-NMCA-109, 14, 122 N.M. 476, 927 P.2d 31. " rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Gonzales, 1999-NMSC-033, 22, 128 N.M. 44, 989 P.2d 419 (internal quotation marks and citations omitted). Here, as best we can tell from the record, the trial court excluded any mention of Victim's alleged prostitution because Defendant failed to meet his burden under the so-called rape shield law. See NMSA 1978, § 30-9-16(A) (1993) (precluding admission of evidence of a victim's past sexual conduct unless the trial court determines that "the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value"). Because defense counsel laid the foundation for admission of this evidence during an in camera hearing that does not appear in the record, we are unable to assess the propriety of the trial court's determination that Defendant failed to meet his burden. We therefore indulge every presumption "in favor of the correctness and regularity of the lower court's judgment." In re Ernesto M., Jr., 1996-NMCA-039, 19, 121 N.M. 562, 915 P.2d 318.
{37} Similarly, with respect to Defendant's intention to ask witness Salazar on direct about Victim's alleged prostitution, we review the trial court's exclusion of this evidence for abuse of discretion. Woodward, 121 N.M. at 4, 908 P.2d at 234. It appears the trial court relied on the same ground for excluding this testimony -- Defendant's failure to meet his burden under the rape shield law. In order to present evidence of Victim's alleged prostitution, Defendant had to establish that the evidence was material and that its prejudicial effect did not outweigh its probative value. § 30-9-16(A). While this evidence was certainly relevant to Defendant's theory of the case, which portrayed Victim as the instigator of the sex acts in question, without the benefit of a complete record of the relevant hearing, we cannot say the trial court abused its discretion if it concluded that the evidence's inflammatory nature outweighed its probative value. See State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct. App. 1988) ("It is the defendant's burden to bring up a record sufficient for review of the issues he raises on appeal.").
CONCLUSION
{38} For the foregoing reasons, we affirm Defendant's convictions.
{39} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
LYNN PICKARD, Judge
CELIA FOY CASTILLO, Judge
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