State v. Nichols ( 2013 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: _______________
    Filing Date: December 20, 2013
    Docket No. 30,783
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    JEREMY NICHOLS,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Carl J. Butkus, District Judge
    Gary K. King, Attorney General
    Santa Fe, NM
    M. Victoria Wilson, Assistant Attorney General
    Albuquerque, NM
    for Appellee
    Jorge A. Alvarado, Chief Public Defender
    B. Douglas Wood III, Assistant Appellate Defender
    Santa Fe, NM
    for Appellant
    OPINION
    VIGIL, Judge.
    {1}     Defendant’s twin, six-month-old babies, whom we refer to as Baby Kaden and Baby
    Bryce, were rushed to the hospital on the afternoon of March 16, 2006, after Mother returned
    home from a hair appointment and shopping. Baby Kaden died, and Baby Bryce survived.
    After a trial based on multiple charges of child abuse of Baby Kaden and Baby Bryce,
    Defendant was convicted of a single count of child abuse due to medical neglect resulting
    in death or great bodily harm to Baby Kaden.
    1
    {2}    Defendant appeals, arguing: (1) the conviction is not supported by sufficient
    evidence; (2) reversible error resulted when the district court denied his motion for a
    severance; (3) results of medical tests were admitted into evidence in violation of
    Defendant’s constitutional right to confront and cross examine the witnesses against him;
    and (4) reversible error resulted when Defendant was not allowed to ask a witness that
    Mother asked the witness to withdraw funds from Defendant’s retirement account. We reject
    Defendant’s arguments and affirm.
    ANALYSIS
    1.     Sufficiency of the Evidence
    {3}     Defendant argues on appeal that the evidence is insufficient to support the verdict of
    the jury that he is guilty of child abuse due to medical negligence resulting in the death of
    or great bodily harm to Baby Kaden. We have examined the evidence in detail and conclude
    that the evidence is sufficient to support the verdict.
    A.     Facts
    {4}     The following evidence pertinent to Defendant’s conviction was introduced at trial.
    Mother testified that Baby Kaden was acting normal the night before he died. The next
    morning, on March 16, 2006, she got up at 6:45 a.m. and fed the babies a bottle, then gave
    them a bath. When she gave Baby Kaden his bath, she did not notice any bruises or marks
    on him. The babies were “awake, alert, happy,” and Mother did not remember Baby Kaden
    being sick or pale or anything like that. “I remember him just being himself.” When she left
    the house around 9:30 a.m. to go to her parents’ house and run an errand, the babies were
    asleep. Mother then returned home and went for a run, and the babies woke up at 12 noon
    after she got back home from her run. Mother took a shower, got dressed, and left home
    again at about 12:30 p.m. for a 12:45 p.m. hair appointment at the mall. When she left,
    Defendant was holding Baby Kaden, and he was “fine.”
    {5}    The hair appointment lasted about two hours, and after stopping at a store within the
    mall, Mother started home at about 2:53 p.m. On the way home, Mother called Defendant
    on her cell phone to see if he needed anything, and she testified that “[h]e wanted me to
    come home because the babies were acting fussy,” and she could hear the babies crying over
    the phone.
    {6}     Mother got home at “about 3:15” p.m. Defendant was sitting on the couch rocking
    Baby Kaden, and Baby Bryce was in his crib. Baby Kaden was “whimpering,” and Mother
    saw that his legs “were kind of ashy color” and that he was “splotchy” like he had no
    circulation. “It looked like [Defendant] might have been holding him too tight.” However,
    she checked, and he was not. Mother went to Baby Bryce’s crib and upon picking him up
    noticed he was very pale, with bruising on his lips, and on one of his fingers, the whole nail
    was purple. Baby Bryce was not crying or whining, but “whimpering” like Baby Kaden.
    2
    Mother immediately called her aunt, who was a pediatric nurse, as well as the nurse at the
    babies’ pediatrician’s office. Both told her to call 911.
    {7}     While she was on the telephone with her aunt, Mother took Baby Kaden’s
    temperature, and it was 95. Mother remembered from a book she had on the care of a
    newborn that this could mean the internal organs of the baby are “shutting down.” While
    Mother was calling 911, she noticed that Baby Kaden “was just blue, kind of just pale, pale
    blue ashy color.” The 911 operator advised Mother to start CPR on Baby Kaden. Defendant
    started performing CPR on Baby Kaden, and while Mother was still on the 911 call,
    Defendant yelled at her that Baby Kaden had stopped breathing. The paramedics arrived
    while Mother was still on the 911 call.
    {8}     Defendant said he woke up on March 16, 2006, at about 9:15 a.m., and Mother asked
    him to feed the boys because she was leaving. Baby Bryce ate his cereal, but Baby Kaden
    would not eat at all. “He wasn’t receptive to eating and just wasn’t happy.” Both babies
    were fussy, but Baby Kaden was fussier. Defendant put Baby Bryce into his crib for a nap,
    but he kept holding Baby Kaden because “[h]e was still fussy, not happy.” When Mother
    returned home, Defendant made breakfast. However, Baby Kaden still had not eaten. “It’s
    like he wanted to, I could tell that he was hungry, but for some reason, he couldn’t swallow.
    He couldn’t stomach it.”
    {9}     After breakfast, Mother got ready and left for her appointment. Defendant said Baby
    Kaden still wasn’t happy, so Defendant put him in his chair and put on a movie for him.
    After a little while, Baby Kaden started crying, and Defendant tried to feed him a bottle, but
    he only drank “about two, two CCs, which was very unlike him.” Normally, Baby Kaden
    drank a nine-ounce bottle “in minutes” so for him to drink such a small amount—“it wasn’t
    like him.” Baby Kaden’s change in eating behavior and fussiness was not at all normal for
    him. When he was asked if Baby Kaden got any better while Mother was at her hair
    appointment, Defendant said, “It appeared like he was getting better, but he just became
    more and more fussy. Again, it was in and out. I felt like he was, but he just kept crying at
    that point.” Defendant said that as he watched the movie with Baby Kaden, he “became
    extremely agitated, really starting to cry like pretty bad.” Baby Kaden seemed like he was
    getting more fussy, “[b]ut at the same time[,] he was becoming lethargic” and he “got very,
    very lethargic, very kind of yellowish.” Defendant added that nothing he tried to do to
    soothe Baby Kaden worked. Normally, holding Baby Kaden would soothe him, but on this
    day, “[i]t would not soothe him at all and he just kept crying.”
    {10} Defendant tried feeding Baby Kaden again between 1:00 p.m. and 2:00 p.m. because
    he still had not eaten. When Mother called at about 2:15 p.m., he told her that Baby Kaden
    was “fussy” and he asked her to come home. When Mother got home, Defendant was on the
    couch rocking Baby Kaden. Defendant observed that Baby Kaden was “lethargic and his
    arms were just at his side and kind of floppy.” Mother also noticed that Baby Kaden’s face
    was pale, and pointed out to Defendant that Baby Kaden’s legs were “splotchy” which
    Defendant described as “tiny pinpoint dots on his leg throughout both legs.” While waiting
    3
    for the paramedics to arrive, Defendant gave CPR to Baby Kaden, and he continued to do
    so until they arrived.
    {11} One of the responding paramedics was Michael Levin. The 911 call was received
    at 3:43 p.m., and he arrived four minutes later, at 3:47 p.m. Mr. Levin testified that when
    he arrived at the Nichols’ apartment, Baby Kaden was “not breathing on his own. He was
    nonresponsive. He did not have a pulse.” Mr. Levin also noted that Baby Kaden had “a
    discoloration, a purple discoloration, on the right mandible, which is the jaw” and that
    “[t]here were several purple color marks on the abdomen, and there was a purple color mark
    on the right lower arm.” He attempted to resuscitate Baby Kaden at the scene and in the
    ambulance to the hospital. At the hospital Baby Kaden was pronounced dead at 4:47p.m.
    {12} Dr. Nine, the forensic pathologist who supervised Baby Kaden’s autopsy, testified
    that the cause of Baby Kaden’s death was a completely lacerated liver resulting from blunt
    force trauma. External examination of Baby Kaden’s body immediately revealed several
    bruises on the abdomen area, on the face, the right arm, and on the lower left leg, around the
    knee. Dr. Nine said that “the abdomen had a lot of bruises, a number of bruises all across
    the front of the abdomen” and that the largest bruises on the abdomen were up to one inch
    over a total area of “5 to 4½ inches.” All of the bruises occurred before Baby Kaden died.
    Microscopic examination of tissue samples from the bruises confirmed that they were
    bruises and that neutrophils were absent, meaning that the body had not had an opportunity
    to mount any kind of healing response to the bruises. Upon opening the abdominal area, a
    large amount of blood was found to have pooled inside the abdominal cavity and the tissue
    behind the abdomen from a large laceration to the liver. No other internal organs were
    damaged.
    {13} Based on the findings, Dr. Nine concluded that a blunt object of some sort had struck
    Baby Kaden’s abdomen with such severe pressure that it essentially broke the liver in half,
    which caused all the blood and bile in the liver to freely flow out into the abdominal cavity.
    “And once it gets into this peritoneum, the peritoneal cavity, the peritoneum is very sensitive
    to any kind of blood or bile that gets into it, and it becomes very painful.” According to Dr.
    Nine, “someone with this type of injury that goes completely through the liver is not going
    to have a delay in his symptoms.”
    {14} Based on information he received that Baby Kaden was acting normal at 12 noon on
    March 16, 2006, Dr. Nine was of the opinion that he was injured between 12 noon that day
    and the time he died, about 3½ to 4 hours later. In addition, the amount of blood in the
    abdominal cavity and the lack of a healing response to the liver injury also supported his
    opinion about when the injury occurred. When asked if someone could have survived this
    injury, Dr. Nine answered:
    I don’t think someone could have survived this injury without pretty
    extensive medical intervention because that’s a laceration that goes all the
    way through the liver. You basically cut the liver in half, and you will need
    4
    some medical therapy, because there is going to be bleeding associated with
    that, then you will have peritonitis that comes in after that. Then you still
    have some medical therapy. But I think it’s possible to survive with the right
    kind of treatment.
    B.     Standard of Review
    {15} Our standard of review on a claim that the evidence is insufficient to support the
    verdict is well settled:
    The test for sufficiency of the evidence is whether substantial
    evidence of either a direct or circumstantial nature exists to support a verdict
    of guilty beyond a reasonable doubt with respect to every element essential
    to a conviction. This Court views the evidence in the light most favorable to
    the guilty verdict, indulging all reasonable inferences and resolving all
    conflicts in the evidence in favor of the verdict.
    State v. Cabezuela, 
    2011-NMSC-041
    , ¶ 42, 
    150 N.M. 654
    , 
    265 P.3d 705
     (internal quotation
    marks and citations omitted). Moreover, the jury is free to reject Defendant’s version of the
    events, see State v. Garcia, 
    2009-NMCA-107
    , ¶ 21, 
    147 N.M. 150
    , 
    217 P.3d 1048
    , and we
    defer to the jury when weighing the credibility of witnesses and resolving conflicting
    testimony. See State v. Salas, 
    1999-NMCA-099
    , ¶ 13, 
    127 N.M. 686
    , 
    986 P.2d 482
    . Finally,
    we do not entertain a challenge to a conviction based on an acquittal of other charges. See
    State v. Roper, 
    2001-NMCA-093
    , ¶ 24, 
    131 N.M. 189
    , 
    34 P.3d 133
     (stating that we review
    verdicts of conviction and will not entertain a contention that an acquittal is irreconcilable
    with a guilty verdict); State v. Fernandez, 
    1994-NMCA-056
    , ¶ 39, 
    117 N.M. 673
    , 
    875 P.2d 1104
     (“[W]e review the verdict of conviction, not the verdict of acquittal.”).
    C.     Discussion
    {16} Defendant contends that the State was required to prove that Defendant knew that
    a blunt force injury was inflicted on Baby Kaden and that he neglected to obtain medical
    treatment for the injury. Asserting that there was no evidence to prove he knew that a blunt
    force injury was inflicted upon Baby Kaden, Defendant asks us to conclude that the evidence
    was insufficient to support the jury’s verdict. In support of his argument, Defendant relies
    on State v. Leal, 
    1986-NMCA-075
    ,
    104 N.M. 506
    , 
    723 P.2d 977
    , and Cabezuela, 2011-
    NMSC-041. Defendant’s reliance on these cases is misplaced.
    {17} In Leal, the defendant was charged with and convicted of “permitting” her
    thirteen-month-old daughter to be “cruelly punished.” 
    1986-NMCA-075
    , ¶ 14. However,
    “[t]here was no evidence that [the] defendant was present when the child was injured, that
    she knew of a pattern of abuse, or had reason to suspect the child would be abused, and
    failed to act to prevent it.” Id. ¶ 20. There being “no proof of any act or omission by [the]
    defendant” we held that the evidence was insufficient to support the conviction. Id. ¶¶ 20-
    5
    21. In Cabezuela the defendant was charged with and convicted of intentional child abuse.
    
    2011-NMSC-041
    , ¶¶ 1, 27. After examining precedent, our Supreme Court concluded that
    intentional child abuse is committed when a defendant “causes” the child abuse to take place.
    Id. ¶¶ 28-33. A defendant “causes” the abuse either by actively and intentionally committing
    the child abuse herself, or by knowingly failing to prevent another from abusing the child.
    Id. The evidence demonstrated that the defendant intentionally abused her child either by
    her own actions toward the child or by failing to protect the child from her boyfriend’s
    abuse. Id. ¶ 47.
    {18} Defendant asserts that Leal and Cabezuela required the State to prove that Defendant
    knew that a blunt force injury was inflicted on Baby Kaden and that he failed to obtain
    medical treatment for the injury. This argument might have traction if Defendant was
    convicted of intentionally causing child abuse. However, he was not convicted of
    intentionally causing child abuse. Defendant was convicted of child abuse due to medical
    neglect resulting in death or great bodily harm to Baby Kaden.
    {19} The unchallenged jury instructions set forth the elements of negligent child abuse that
    the State was required to prove beyond a reasonable doubt. State v. Smith, 1986-NMCA-
    089, ¶ 7, 
    104 N.M. 729
    , 
    726 P.2d 883
     (“Jury instructions become the law of the case against
    which the sufficiency of the evidence is to be measured.”). The jury was instructed that
    “[f]or you to find [Defendant] guilty of child abuse resulting in death or great bodily harm
    . . . the state must prove to your satisfaction beyond a reasonable doubt each of the following
    elements”:
    1.    [Defendant] permitted [Baby Kaden] to be placed in a
    situation which endangered the life or health of [Baby Kaden], to wit:
    medical neglect;
    2.      [D]efendant acted with reckless disregard and without
    justification. To find that [Defendant] acted with reckless disregard, you
    must find that [Defendant] knew or should have known [D]efendant’s actions
    or failure to act created a substantial and foreseeable risk, [D]efendant
    disregarded that risk and [D]efendant was wholly indifferent to the
    consequences of the failure to act or conduct and to the welfare and safety of
    [Baby Kaden];
    3.    [Defendant] was a parent, guardian or custodian of [Baby
    Kaden], or [D]efendant had accepted responsibility for [Baby Kaden’s]
    welfare;
    4.     [Defendant’s] actions or failure to act resulted in the death of
    or great bodily harm to [Baby Kaden];
    5.      [Baby Kaden] was under the age of 18;
    6
    6.    This happened in New Mexico on or between the 15th day of
    March, 2006 and the 16th day of March, 2006.”
    {20} There is no dispute that Defendant was Baby Kaden’s parent, that the events
    took place on the date in question, and that Baby Kaden was under the age of eighteen. The
    evidence is also sufficient, under our standard of review, to prove the remaining elements.
    Specifically, the evidence is sufficient to prove beyond a reasonable doubt (1) that Defendant
    knew, or should have known, that Baby Kaden needed medical treatment and that failing to
    provide the medical treatment created a substantial and foreseeable risk to the life or health
    of Baby Kaden; (2) that he acted with reckless disregard in failing to obtain that medical
    treatment; and (3) that his failure to do so caused the death or great bodily harm of Baby
    Kaden. For all the foregoing reasons, we reject Defendant’s argument that the evidence fails
    to support the jury’s verdict.
    2.     Motion For Severance
    {21} Defendant contends that he is entitled to a new trial because the district court denied
    his motion for a severance of counts. We disagree.
    A.     Facts
    {22} The indictment charged Defendant with three counts of child abuse regarding Baby
    Kaden and one count of child abuse regarding Baby Bryce. Defendant filed a motion
    seeking a severance of and separate trial on the charge relating to Baby Bryce. The district
    court denied Defendant’s motion.
    B.     Standard of Review
    {23} Rule 5-203(C) NMRA provides, “If it appears that a defendant or the state is
    prejudiced by a joinder of offenses or of defendants by the filing of a statement of joinder
    for trial, the court may order separate trials of offenses, grant a severance of defendants, or
    provide whatever other relief justice requires.” Whether severance is warranted “is a matter
    within the sound discretion of the trial court and will not be reversed on appeal absent a
    showing of an abuse of discretion.” State v. Peters, 
    1997-NMCA-084
    , ¶ 10, 
    123 N.M. 667
    ,
    
    944 P.2d 896
    .
    C.     Discussion
    {24} Defendant argues that the district court abused its discretion in denying his motion
    for severance because its ruling allowed the State to introduce evidence of Baby Bryce’s
    injuries in the joint trial, and such evidence was not independently admissible on the charges
    relating to Baby Kaden.
    {25}   It is not necessary for us to decide whether the district court abused its discretion in
    7
    denying Defendant’s motion for severance because, even in cases where it is determined that
    the district court abused its discretion in refusing to sever charges, “appellate courts will not
    reverse unless the error actually prejudiced the defendant.” State v. Gallegos, 2007-NMSC-
    007, ¶ 18, 
    141 N.M. 185
    , 152 P.3d. 828. Here, the jury found Defendant not guilty of the
    charge relating to Baby Bryce, and Defendant fails to demonstrate how the admission of the
    evidence relating to Baby Bryce caused prejudice to his defense on the single count relating
    to Baby Kaden on which he was convicted. Accordingly, we reject Defendant’s assertion
    that he is entitled to a new trial on this count.
    3.      Admission of Medical Test Results
    {26} Defendant contends he is entitled to a new trial because the results of medical tests
    performed on Baby Bryce were admitted into evidence through Dr. Ralston, and Dr. Ralston
    did not actually perform the tests. Defendant asserts the admission of this evidence violated
    his constitutional right under the Sixth Amendment to the United States Constitution to
    confront and cross examine the witnesses against him. See U.S. Const. Amend. VI (stating
    that every criminal defendant “shall enjoy the right . . . to be confronted with the witnesses
    against him”). We disagree with this argument as well.
    A.      Facts
    {27} Dr. Shawn Ralston treated Baby Bryce at the hospital. She testified that Baby Bryce
    had suffered a similar liver laceration as his brother, though his injury was far less severe.
    She also described how a liver laceration is treated. Defendant objected to her testimony
    about the results of lab tests that were performed on Baby Bryce at the hospital on the
    ground that such testimony would violate his right of confrontation under the Sixth
    Amendment to the United States Constitution because Dr. Ralston was not the individual
    who performed the tests. The district court ruled that Dr. Ralston referred to the test results
    during her treatment of Baby Bryce and that “any doctor has to use whatever’s available to
    him to evaluate what it is they’re going to do, and she can certainly testify about that . . . she
    did what she did during the course of her treatment, and she had to base her evaluation on
    something, and that’s frequently lab results, records from other facilities[.]” Dr. Ralston was
    then allowed to testify about how she used laboratory test results performed at the hospital
    to treat Baby Bryce.
    At the conclusion of the trial, the jury was instructed:
    You have heard testimony from certain doctors with medical
    expertise in certain areas that they considered and relied upon certain
    testing—for example laboratory test[s] that they did not personally perform.
    Such testing was presented for the limited purpose of showing what the
    doctors relied upon during their care of the particular patient.
    At the time this evidence was admitted, you were instructed that it
    8
    could not be considered for any other purpose other than this limited purpose.
    You are again instructed that you must not consider such testing for
    any purpose other than showing what the doctor relied upon during their care
    of the particular patient.
    B.     Standard of Review
    {28} Our review of a claimed Sixth Amendment confrontation clause violation is de novo.
    State v. Tollardo, 
    2012-NMSC-008
    , ¶ 15, 
    275 P.3d 110
    .
    C.     Discussion
    {29} It is not necessary for us to decide the constitutional question presented because, even
    if we were to agree with Defendant that the evidence was erroneously admitted, its
    admission into evidence was harmless beyond a reasonable doubt. A constitutional error is
    harmless “when there is no reasonable probability the error affected the verdict.” Id. ¶ 36
    (internal quotation marks and citation omitted). That is to say, “the central inquiry” is
    “whether an error was likely to have affected the jury’s verdict.” Id. ¶ 42.
    {30} Dr. Ralston testified she relied on the test results in order to treat Baby Bryce, not
    Baby Kaden, and the jury was instructed that it could consider the evidence only for this
    purpose. Moreover, Defendant was found not guilty on the charge of child abuse of Baby
    Bryce, and the record fails to show that the jury in any manner relied on Dr. Ralston’s
    testimony to find Defendant guilty of child abuse of Baby Kaden. In this regard, we note
    that there was no dispute at trial that blunt force trauma caused Baby Kaden’s liver to be
    lacerated in half, and that as a consequence, he died. Based on our review of the entire
    record in this case, we fail to see how the evidence objected to in any way contributed to the
    jury’s determination that Defendant committed child abuse of Baby Kaden because he was
    negligent in providing medical care for Baby Kaden. We therefore reject Defendant’s
    argument under this point.\
    4.     Retirement Account Testimony
    {31} Defendant argues that he is entitled to a new trial because the district court limited
    his ability to present evidence that Mother asked a friend of Defendant to pose as Defendant
    and withdraw funds from Defendant’s 401(k) retirement account with the result that he was
    deprived of his constitutional right to present a defense. We reject Defendant’s argument.
    A.     Facts
    {32} As part of his defense, Defendant sought to introduce evidence that, in the days
    immediately following the death of Baby Kaden, Mother asked Defendant’s best friend to
    pose as Defendant to withdraw the money from Defendant’s 401(k) retirement plan “because
    9
    she planned to leave to Mexico if she was charged.” During Mother’s cross examination,
    the State objected when defense counsel began to ask whether she had asked Defendant’s
    friend to withdraw money from Defendant’s 401(k) retirement account. Defendant argued
    that the evidence was admissible because “preparation for flight indicates a consciousness
    of guilt.” The State responded that “[Mother] was not charged at [that] time” and that “[the
    evidence was] irrelevant in this case.” After arguments, the district court allowed the
    inquiry, and also ruled that Defendant would be “bound by the witness’ answer.” Mother
    then denied having any such conversations.
    {33} When Defendant called his friend to testify, the State again objected to any questions
    about Mother asking the friend to withdraw money from Defendant’s 401(k) account. The
    district court ruled that the inquiry involved a collateral matter, “and, even if it does have
    some materiality in there, I think it’s somewhat cumulative and I think it tends to, tends to
    go towards confusion and misleading of issues[.]” The State’s objection was sustained.
    B.     Standard of Review
    {34} We review the admission or exclusion of evidence under an abuse of discretion
    standard. State v. Lopez, 
    2011-NMSC-035
    , ¶ 4, 
    150 N.M. 179
    , 
    258 P.3d 458
    . On the other
    hand, we review de novo whether an evidentiary ruling results in a constitutional violation.
    Id. ¶ 10.
    C.     Discussion
    {35} Defendant states it was his defense at trial “that he did not bring about harm to the
    boys and that it was possible that someone else did.” Defendant contends that exclusion of
    the evidence deprived him of his constitutional right to present this defense because evidence
    that Mother “sought to fraudulently take money from their accounts, [and] evidence of her
    statements that she might depart if she became a target of [the] investigation were relevant
    to the question of third party guilt.”
    {36} What Defendant’s argument overlooks is that he was convicted of child abuse by
    medical negligence, not intentional child abuse. Thus, we agree with the State that “the
    excluded testimony in no way supports a defense that Defendant did not negligently
    endanger [Baby] Kaden by failing to obtain medical treatment for [Baby] Kaden.” We
    therefore conclude that the cases Defendant relies upon are not applicable. See Holmes v.
    South Carolina, 
    547 U.S. 319
    , 328-31 (2006) (holding that the defendant was deprived of
    his constitutional right to present a defense when his proffered evidence that another person
    committed the crimes was excluded on grounds that disputed forensic evidence linked the
    defendant to the crimes); People v. Basuta, 
    114 Cal. Rptr. 2d 285
    , 295 (Ct. App. 2001)
    (stating that in an intentional child abuse conviction, the trial court erred in excluding
    evidence that the defendant’s mother was prone to anger and violence, when the defense was
    that the child abuse was possibly inflicted by the mother and therefore could have caused the
    child’s brain injury).
    10
    {37} Defendant does not otherwise argue that the district court abused its discretion in its
    ruling on this issue, and we conclude that the ruling did not infringe on Defendant’s
    constitutional right to present a defense to the crime on which he was convicted. We
    therefore reject Defendant’s argument under this point.
    CONCLUSION
    {38}   The district court is affirmed.
    {39}   IT IS SO ORDERED.
    _____________________________________
    MICHAEL E. VIGIL, Judge
    WE CONCUR:
    ___________________________________
    MICHAEL D. BUSTAMANTE, Judge
    _________________________________
    CYNTHIA A. FRY, Judge
    11