{ "id": 723210, "name": "STATE of New Mexico, Plaintiff-Appellee, v. William SCOTT, Defendant-Appellant", "name_abbreviation": "State v. Scott", "decision_date": "1991-06-27", "docket_number": "No. 12097", "first_page": "525", "last_page": "533", "citations": [ { "type": "official", "cite": "113 N.M. 525" }, { "type": "parallel", "cite": "828 P.2d 958" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "421 U.S. 1012", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541153, 541161, 541769, 541772, 541584, 541201, 541682, 541015, 541368, 541275, 541724, 541567 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/421/1012-07", "/us/421/1012-11", "/us/421/1012-02", "/us/421/1012-05", "/us/421/1012-04", "/us/421/1012-06", "/us/421/1012-09", "/us/421/1012-01", "/us/421/1012-08", "/us/421/1012-03", "/us/421/1012-10", "/us/421/1012-12" ] }, { "cite": "401 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11718049, 11717828, 11718185, 11718283, 11717870, 11717967, 11717903, 11718094, 11718003, 11718329, 11718143 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/401/0911-06", "/us/401/0911-01", "/us/401/0911-09", "/us/401/0911-10", "/us/401/0911-02", "/us/401/0911-04", "/us/401/0911-03", "/us/401/0911-07", "/us/401/0911-05", "/us/401/0911-11", "/us/401/0911-08" ] }, { "cite": "479 U.S. 1092", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6556002, 6556036, 6555717, 6555686, 6555657, 6555882, 6555753, 6555596, 6555632, 6555921, 6555830, 6555802, 6555963 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/479/1092-12", "/us/479/1092-13", "/us/479/1092-05", "/us/479/1092-04", "/us/479/1092-03", "/us/479/1092-09", "/us/479/1092-06", "/us/479/1092-01", "/us/479/1092-02", "/us/479/1092-10", "/us/479/1092-08", "/us/479/1092-07", "/us/479/1092-11" ] }, { "cite": "111 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715204 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0654-01" ] }, { "cite": "110 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716944 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nm/110/0076-01" ] }, { "cite": "413 U.S. 601", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11342234 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/413/0601-01" ] }, { "cite": "111 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715091 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0010-01" ] }, { "cite": "80 N.M. 799", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356663 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0799-01" ] }, { "cite": "50 L.Ed.2d 102", "category": "reporters:federal", "reporter": "L. 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Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5824, 7938, 5699, 6948, 7973, 5708, 7373, 7788, 5775, 6001, 7255, 6265, 7423 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0836-05", "/us/429/0836-03", "/us/429/0836-04", "/us/429/0836-06", "/us/429/0836-09", "/us/429/0836-02", "/us/429/0836-12", "/us/429/0836-08", "/us/429/0836-11", "/us/429/0836-01", "/us/429/0836-10", "/us/429/0836-13", "/us/429/0836-07" ] }, { "cite": "88 N.M. 650", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841591 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0650-01" ] }, { "cite": "105 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598941 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0005-01" ] }, { "cite": "91 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571197 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0353-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "92 N.M. 94", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557042 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0094-01" ] }, { "cite": "103 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711314 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0033-01" ] }, { "cite": "97 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555133 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/97/0232-01" ] }, { "cite": "108 N.M. 722", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592783 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/nm/108/0722-01" ] }, { "cite": "107 N.M. 66", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597025 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nm/107/0066-01" ] }, { "cite": "107 N.M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597070 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0085-01" ] }, { "cite": "81 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5366684 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0145-01" ] }, { "cite": "72 N.M. 23", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2854771 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0023-01" ] }, { "cite": "83 N.M. 603", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5337587 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0603-01" ] }, { "cite": "88 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840581 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0001-01" ] }, { "cite": "103 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711361 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0583-01" ] }, { "cite": "102 N.M. 110", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580241 ], "weight": 6, "pin_cites": [ { "page": "117" }, { "page": "42" }, { "page": "119" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0110-01" ] }, { "cite": "108 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592750 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/nm/108/0471-01" ] }, { "cite": "88 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0541-01" ] }, { "cite": "260 P.2d 331", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1953, "pin_cites": [ { "parenthetical": "in the trial of cases involving intercourse between the sexes, it is permissible to show prior acts of a defendant's sexual misconduct against the complaining witness" } ], "opinion_index": 0 }, { "cite": "43 Wash.2d 47", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5007736 ], "year": 1953, "pin_cites": [ { "parenthetical": "in the trial of cases involving intercourse between the sexes, it is permissible to show prior acts of a defendant's sexual misconduct against the complaining witness" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/43/0047-01" ] }, { "cite": "44 L.Ed.2d 680", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "95 S.Ct. 2417", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "319 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "262 Ind. 529", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1795016 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ind/262/0529-01" ] }, { "cite": "248 Iowa 430", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4448271 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/iowa/248/0430-01" ] }, { "cite": "27 L.Ed.2d 810", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "91 S.Ct. 875", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "432 F.2d 1109", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2224261 ], "opinion_index": 0, "case_paths": [ "/f2d/432/1109-01" ] }, { "cite": "224 N.W.2d 248", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10732385 ], "year": 1974, "pin_cites": [ { "parenthetical": "victim's older sister permitted to testify regarding defendant's alleged prior sexual misconduct that took place ten years prior to incident at issue" } ], "opinion_index": 0, "case_paths": [ "/nw2d/224/0248-01" ] }, { "cite": "172 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "parenthetical": "testimony of victim's sister regarding defendant's past sexual misconduct twelve years previous to incident at issue relevant to show defendant's plan to use his daughters to satisfy his lust" } ], "opinion_index": 0 }, { "cite": "120 Ga.App. 875", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 720608 ], "year": 1969, "pin_cites": [ { "parenthetical": "testimony of victim's sister regarding defendant's past sexual misconduct twelve years previous to incident at issue relevant to show defendant's plan to use his daughters to satisfy his lust" } ], "opinion_index": 0, "case_paths": [ "/ga-app/120/0875-01" ] }, { "cite": "343 So.2d 1340", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9695027 ], "opinion_index": 0, "case_paths": [ "/so2d/343/1340-01" ] }, { "cite": "104 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594891 ], "weight": 2, "pin_cites": [ { "page": "724" }, { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0710-01" ] }, { "cite": "80 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363112 ], "weight": 3, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0269-01" ] }, { "cite": "94 L.Ed.2d 160", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "107 S.Ct. 1305", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "105 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598949 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0538-01" ] }, { "cite": "109 N.M. 632", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590284 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0632-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 26134, "ocr_confidence": 0.758, "pagerank": { "raw": 1.453801333199071e-07, "percentile": 0.6555652472402831 }, "sha256": "61748ccc21a4243468925b965ce391e1328a65744937f71704e28bc744382d7e", "simhash": "1:db7edda2786d55f1", "word_count": 4122 }, "last_updated": "2023-07-14T16:27:24.348281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID, C.J., and HARTZ, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. William SCOTT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nDefendant appeals his jury convictions under one count of criminal sexual contact of a minor (CSCM), in violation of NMSA 1978, Section 30-9-13(B) (Repl.Pamp.1984), and one count of criminal sexual penetration with great mental anguish, in violation of NMSA 1978, Section 30-9-ll(A)(2) (Repl.Repl.1984). The facts forming the basis for the criminal charges involving the sexual penetration of defendant\u2019s granddaughter are discussed within our respective analysis of each issue. Defendant raises five issues on appeal: (1) the trial court erred in admitting evidence of prior sexual misconduct by defendant against the victim; (2) the trial court erred in restricting admission of evidence to show the victim\u2019s previous and allegedly false allegations of rape and sexual misconduct; (3) the trial court committed cumulative error with respect to issues one and two; (4) trial counsel\u2019s failure to call certain witnesses constituted ineffective assistance of counsel; and (5) Section 30-9-13(B) is unconstitutional for overbreadth. Other issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Aragon, 109 N.M. 632, 788 P.2d 932 (Ct.App.1990). We are not persuaded by defendant\u2019s arguments with respect to all issues and thus affirm the convictions.\nEVIDENCE OF DEFENDANT\u2019S PRIOR SEXUAL MISCONDUCT AGAINST VICTIM\nDefendant claims that the trial court abused its discretion in admitting evidence of defendant\u2019s prior sexual misconduct against the victim. Generally, the determination of the relevance of evidence, and whether its probative value is substantially outweighed by its prejudicial effect, is within the trial court\u2019s discretion. See State v. Lopez, 105 N.M. 538, 734 P.2d 778 (Ct.App.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1305, 94 L.Ed.2d 160 (1987); State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969). Absent a clear abuse of discretion, we will not disturb the trial court\u2019s ruling.\nDefendant specifically argues that evidence of his past sexual misconduct against the victim was too remote for its probative value to outweigh its prejudicial impact. The state counters, however, that defendant did not argue \u201cremoteness\u201d at the pretrial hearing and otherwise failed to preserve it, thus precluding appellate review of this issue. At the pretrial hearing, the prosecutor argued for admission of the contested evidence and stated that \u201c[t]he real question * * * is where to draw the line in terms of what is and what isn\u2019t remote * * In response, defendant contended that the testimony was too vague because there were no particulars as to time, place, and location, and too prejudicial to have any probative value. We hold that defendant\u2019s objections adequately preserved the issue of remoteness, since they were made in response to the prosecutor\u2019s argument that the evidence was not too remote. See State v. Shade, 104 N.M. 710, 724, 726 P.2d 864, 878 (Ct.App.1986).\nThe trial court admitted the history of defendant\u2019s past sexual misconduct against the victim through her testimony. The victim testified that the molestation began in Arizona, where defendant began touching her breasts and vagina when she was six or seven years old. At age eight, the victim moved to Germany for three years with her mother and stepfather. There was no contact between the victim and defendant during that time. When the victim was eleven years old, the family moved to Hamilton, Texas, where defendant began to penetrate her for the first time. After a year, the victim and her family moved to Killeen, Texas. Defendant would visit and penetrate the victim whenever possible. Defendant and his wife then moved to Taos, New Mexico. When victim was thirteen years old, she moved to Taos to help care for her grandmother, defendant\u2019s wife. In Taos, the victim was penetrated by defendant again. In March of 1988, the victim and her mother moved to Taos to live with defendant and his wife. Defendant continued to penetrate her and touch her breasts. In July of 1988, the victim, her mother, defendant and his wife, moved to Questa, New Mexico, where the criminal sexual penetration incidents alleged in the indictment occurred.\nIn State v. Minns, we addressed the issue of whether evidence of a defendant\u2019s past sexual misconduct against a complaining witness was admissible. The defendant in Minns was convicted of having indecently fondled a girl under the age of sixteen. Evidence was presented that the defendant, more than three years before the incident in question, had committed similar acts of sexual misconduct against the complaining witness. The defendant argued that the testimony was inadmissible because the alleged past acts were so remote in time so as to be deprived of relevancy. This court, however, permitted admission of the evidence of the past similar acts, basing its holding on the general rule that \u201c[s]uch evidence, if not too remote, is admissible as showing a lewd and lascivious disposition of defendant toward the prosecuting witness and as corroborating evidence.\u201d Id. at 272, 454 P.2d at 358.\nIn this appeal, evidence of defendant\u2019s past sexual misconduct dated back ten years. Consequently, defendant argues that the facts of this appeal are distinguishable from Minns, in which the past acts dated back only three years. We are not persuaded, however, that a time span of ten years necessarily makes admission of the past acts too remote to be probative. Instead, we find ample case law to support the admission of such evidence. See Whiteman v. State, 343 So.2d 1340 (Fla.Dist.Ct.App.1977) (evidence introduced that defendant had intercourse with complaining witness eight years previous to charged crime); Staggers v. State, 120 Ga.App. 875, 172 S.E.2d 462 (1969) (testimony of victim\u2019s sister regarding defendant\u2019s past sexual misconduct twelve years previous to incident at issue relevant to show defendant\u2019s plan to use his daughters to satisfy his lust); State v. Maestas, 224 N.W.2d 248 (Iowa 1974) (victim\u2019s older sister permitted to testify regarding defendant\u2019s alleged prior sexual misconduct that took place ten years prior to incident at issue).\nTime is but one factor to consider when determining the issue of whether evidence is too remote. For example, in Minns, we considered not only the proximity of the past incidents in relation to the occurrences at issue, but also the number of incidents that had taken place and the nature of such incidents. Thus, the question of remoteness is not dictated solely by the mere lapse of time. The question of remoteness necessarily depends on a number of considerations. See United States v. Smith, 432 F.2d 1109 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 875, 27 L.Ed.2d 810 (1971); State v. Huntington, 248 Iowa 430, 80 N.W.2d 744 (1957). The trial court's admission of the testimony at issue was buttressed by the similarity of the past incidents to that of the charged occurrences. See Whiteman v. State. Remoteness, however, in the context of this case, goes to the weight, not the admissibility, of the evidence. See Austin v. State, 262 Ind. 529, 319 N.E.2d 130, cert. denied, 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680 (1975).\nWe conclude that the trial court could have properly found that the probative value of evidence of defendant\u2019s past sexual misconduct was not substantially outweighed by the danger of unfair prejudice. See SCRA 1986, 11-403. Evidence of defendant\u2019s past sexual misconduct, similar in nature to the crime of which defendant was indicted, is illustrative of a lewd and lascivious disposition of defendant toward the victim. See State v. Minns. Based on Minns, we uphold the trial court\u2019s admission of this evidence and conclude that the trial court did not abuse its discretion.\nDefendant also contends that the pre-Germany evidence of sexual misconduct should not have been admitted for two reasons. Defendant first argues that the evidence of alleged prior sexual misconduct was not sufficiently similar to that which occurred after the victim returned from Germany. We disagree. Although the pre-Germany conduct did not involve penetration, it did involve impermissible sexual contact against a minor. Consequently, the pre-Germany offenses were not of such a different nature so as to eliminate any logical connection with the post-Germany contacts. See State v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953) (in the trial of cases involving intercourse between the sexes, it is permissible to show prior acts of a defendant\u2019s sexual misconduct against the complaining witness).\nDefendant next argues that the preGermany conduct was not properly admitted because the three-year stay in Germany constituted a substantial break between the first alleged contact and the later acts. The three-year period, however, was beyond defendant\u2019s control and he resumed his pattern of abuse when circumstances again allowed it. We are unconvinced that the three-year break did not comport with the continuing nature of defendant's sexual misconduct against the victim.\nLastly, defendant argues that the trial court\u2019s \u201cblanket ruling\u201d admitting all prior sexual contact between defendant and the victim was error because the trial court failed to consider the incidents separately and make independent rulings on each incident. The record reflects, however, that the trial court heard evidence on each alleged incident of past sexual misconduct at the pre-trial hearings. Additionally, defendant never requested that the trial court make an independent ruling for each alleged incident on an individual basis. Thus, defendant cannot properly raise this issue for the first time on appeal. See State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975).\nPRIOR ALLEGATIONS BY VICTIM OF RAPE AND SEXUAL MISCONDUCT\nDefendant argues that the trial court erred in denying defendant\u2019s request to call the victim\u2019s stepfather and defendant\u2019s wife to testify about the victim\u2019s prior allegations of sexual misconduct against the stepfather. Through the testimony of the stepfather and defendant\u2019s wife, defendant intended to introduce evidence that the victim had previously falsely accused the stepfather of sexual misconduct.\nThis issue was considered in two pre-trial hearings and one hearing during trial, where defendant presented evidence that the victim had previously made false allegations of sexual misconduct against other individuals. Defendant contended that such allegations were admissible for the purpose of impeaching the victim, by attacking her credibility. The trial court agreed, but permitted limited cross-examination regarding only information substantiated by available written reports. The trial court reasoned that permitting defendant\u2019s proposed witnesses to testify would essentially result in a dispute whether the other alleged incidents actually occurred. On this basis, defendant was only permitted to cross-examine and impeach the victim using the available reports concerning the prior allegations. Extrinsic evidence through other witnesses was not permitted by the trial court. The victim admitted on cross-examination that she had accused her grandmother and her boyfriend of rape. She denied having made an accusation against her stepfather. Defendant contends he should have been permitted to call defendant\u2019s wife and the victim\u2019s stepfather to testify about the victim\u2019s prior allegations, which he contends were false.\nNMSA 1978, Section 30-9-16 (Repl.Pamp.1984) (the Rape Shield Law), provides:\n[E]vidence of the victim\u2019s past sexual conduct, opinion evidence thereof or reputation for past sexual conduct, shall not be admitted unless, and only to the extent that the court finds, that evidence of the victim\u2019s past sexual conduct is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.\nThe issue raised by defendant (whether evidence that a victim in the past had falsely accused others of rape is admissible in a prosecution for a sexual offense) was addressed in Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237 (1989), and State v. Johnson, 102 N.M. 110, 692 P.2d 35 (Ct.App.1984).\nIn Johnson, this court held that Section 30-9-16 was not limited to sex by consent. As such, we concluded that Section 30-9-16 applied to all sexual conduct and that a prior rape was sexual conduct within the meaning of Section 30-9-16. Johnson nevertheless observed that evidence of a prior allegation of rape was admissible if it was relevant and material, and if its prejudicial nature did not outweigh its probative value. Id. at 117, 692 P.2d at 42.\nIn Manlove, our supreme court overruled Johnson in part, holding that a victim\u2019s prior allegations of rape were not closely enough related to sexual conduct to merit protection by the Rape Shield Law. Manlove did not hold, however, that such evidence was automatically admissible. As did this court in Johnson, our supreme court in Manlove concluded that the trial court is afforded discretion on the question of whether to admit or exclude evidence of the victim\u2019s prior allegations of rape.\nEssentially, both Manlove and Johnson allow cross-examination of a complaining witness on prior false complaints for purposes of impeachment, but also represent that the trial court\u2019s discretion to exclude such evidence must be weighed against a defendant\u2019s right to cross-examine and impeach witnesses adequately. Johnson, 102 N.M. at 119, 692 P.2d at 44. Additionally, SCRA 1986, 11-413 allows admission of a victim\u2019s past sexual conduct to the extent that such evidence is material and relevant and its inflammatory or prejudicial nature does not outweigh its probative value.\nAlthough Manlove and Johnson permit admission of evidence of prior false allegations, subject to the trial court\u2019s discretion, the method of proof (the form the evidence must take to be admissible) nonetheless is not unlimited. Evidence of the victim\u2019s prior false allegations constitutes extrinsic evidence. Although the credibility of a witness may be attacked by any party, attempts to do so by evidence of specific instances of conduct are strictly limited by our evidentiary rules. See State v. Vigil, 103 N.M. 583, 711 P.2d 28 (Ct.App.1985).\nSCRA 1986, 11-608(B) provides that a defendant may, on cross-examination, inquire about specific instances of conduct (in this appeal, victim\u2019s prior allegations of sexual misconduct against persons other than defendant) if, in the trial court\u2019s discretion, such evidence is probative of untruthfulness. See State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975); State v. Madrid, 83 N.M. 603, 495 P.2d 383 (Ct.App.1972). Rule 11-608(B), however, prohibits the use of extrinsic evidence for the purpose of attacking a witness\u2019s credibility.\nIn State v. McKinzie, 72 N.M. 23, 380 P.2d 177 (1963), our supreme court held that a witness may not be impeached concerning specific acts of misconduct by the testimony of other witnesses, but only by cross-examination of that witness. The general rule is that, on collateral matters, a cross-examiner is bound and limited by whatever answer is elicited from the witness. See State v. Vigil; State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970) (a denial is binding on the cross-examiner and extraneous evidence is inadmissible to contradict such denial).\nThus, the trial court correctly followed our rules of evidence in prohibiting the stepfather to testify concerning the alleged false accusation by the victim. Additionally, defendant did not even establish that there was admissible evidence that the victim had made an accusation against the stepfather. Defendant made no proffer that the stepfather, or anyone else, had personal knowledge of such an accusation. We therefore reject defendant\u2019s claim of error in the trial court\u2019s ruling concerning the stepfather\u2019s testimony.\nCUMULATIVE ERROR\nDefendant contends that the trial court\u2019s rulings concerning issues one and two served to deny defendant a fair trial and constituted cumulative error. The cumulative error doctrine has no application if no errors were committed and if defendant received a fair trial. See State v. Lopez. Since we have concluded there was no error, there is no basis for defendant\u2019s claim of cumulative error. See State v. Larson, 107 N.M. 85, 752 P.2d 1101 (Ct.App.1988).\nINEFFECTIVE ASSISTANCE OF COUNSEL\nDefendant argues that he was denied effective assistance of counsel because his trial counsel did not call witnesses to support the trial testimony of defendant\u2019s wife. Defendant contends that trial counsel was aware, or should have been aware, of witnesses who would have supported his wife\u2019s testimony. Defendant claims that the jury essentially had to weigh his wife\u2019s credibility ag\u00e1inst that of the victim and the victim\u2019s mother. He also argues that, had trial counsel called other witnesses, the jury would not have had to judge defendant\u2019s entire defense on the credibility of defendant\u2019s wife.\nThe standard for ineffective assistance of counsel is whether defense counsel exercised the skill of a reasonably competent attorney. State v. Taylor, 107 N.M. 66, 752 P.2d 781 (1988), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 779 P.2d 99 (1989); State v. Orona, 97 N.M. 232, 638 P.2d 1077 (1982). The burden of proof to establish ineffective assistance of counsel is on a defendant, who must establish that counsel was incompetent and that defendant was prejudiced as a result. State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct.App.1985).\nIn considering a claim of ineffective assistance of counsel, the entire proceeding must be considered as a whole. Id.; State v. French, 92 N.M. 94, 582 P.2d 1307 (Ct.App.1978). \u201cThe benchmark for judging any claim of ineffectiveness must be whether counsel\u2019s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u201d Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A defendant must show essentially that, but for counsel\u2019s alleged unprofessional errors, the result of the proceeding would have been different. See, State v. Taylor.\nWe now examine the particular facts of this appeal to determine whether defendant was denied effective assistance of counsel. At trial, conflicting testimony was introduced regarding the victim\u2019s whereabouts on August 6 and 7, 1988, a Saturday and a Sunday, the days on which the alleged offenses occurred. Defendant and his wife had bought a new home. The victim and her mother testified that, on the weekend of August 6 and 7, the victim, her mother and siblings, and defendant and his wife were all present at the new home. The indictment charged that, on or about August 6 and 7, defendant engaged in sexual misconduct with the victim. The victim and her mother testified that on Saturday and Sunday, defendant and the victim had left the premises to gather rocks and pick up cans. It was during this time that the alleged incidents occurred.\nContrary to the testimony of the victim and her mother, defendant\u2019s wife testified that the family had not yet moved into the new home. She claimed instead that the family was only preparing to move during the weekend of August 6 and 7. Defendant\u2019s trial counsel introduced a rent check written by defendant\u2019s wife to corroborate her testimony that the family had not yet moved to the new home. Defendant\u2019s wife contended that, on Saturday, August 6, she and the victim together were packing at the old residence while the other family members moved their belongings to the new home. Defendant\u2019s wife stated that on Sunday, August 7, the entire family went to the new home to install a waterbed. According to defendant\u2019s wife, the victim was never alone with defendant during that weekend. Through the testimony of defendant\u2019s wife, defendant\u2019s trial counsel sought to prove that the victim was never alone with defendant on August 6 and 7, thus precluding the opportunity for any sexual misconduct. The jury\u2019s conviction apparently indicated that it did not believe the testimony of defendant\u2019s wife.\nTo support his argument that his trial counsel should have called other witnesses, defendant claims he informed counsel of such witnesses. Any off-the-record statement by defendant to his trial counsel, however, cannot be considered by this court. See State v. Lord, 91 N.M. 353, 573 P.2d 1208 (Ct.App.1977).\nIn support of his ineffective assistance of counsel claim, defendant also points to his trial counsel\u2019s direct examination of defendant\u2019s wife. Defendant\u2019s wife testified that from August 6 to 13, the family was only in the process of moving to the new home, because there was a repairman and a helper installing carpet during that time. She testified that the carpet was not completely installed until August 10 and that she was positive they did not move into the new home until after that date. Even if we were to assume the correctness of that statement, however, it does not necessarily follow that defendant and the victim were not at the new house on August 6 and 7. Thus, we conclude that defendant\u2019s trial counsel\u2019s failure to call the potential witnesses to corroborate defendant\u2019s wife did not constitute ineffective assistance of counsel.\nAdditionally, even if the wife\u2019s testimony was accurate in its account of the activities on August 6 and 7, trial counsel\u2019s failure to call the carpet installer did not constitute ineffective assistance of counsel. Counsel cross-examined the victim on her vague recollection of the events, presented conflicting testimony of defendant\u2019s wife, and introduced a bank check that supported wife\u2019s testimony. Obviously, trial counsel could have concluded that this evidence was sufficient to discredit the victim\u2019s testimony. In this context, whether or not to call another witness then became a matter of strategy and trial tactics. Trial counsel is afforded wide latitude in the representation of his client. See State v. Dean, 105 N.M. 5, 727 P.2d 944 (Ct.App.1986); State v. Helker, 88 N.M. 650, 545 P.2d 1028 (Ct.App.1975), cert. denied, 429 U.S. 836, 97 S.Ct. 103, 50 L.Ed.2d 102 (1976).\nIn connection with an ineffective assistance of counsel claim, on review, we must affirm defendant\u2019s conviction unless the record reveals a very real possibility of a miscarriage of justice. See State v. Chacon, 80 N.M. 799, 461 P.2d 932 (Ct.App.1969). Our review of the entire record in this appeal does not persuade us that counsel\u2019s failure to call other witnesses to support wife\u2019s testimony prejudiced defendant\u2019s defense. Absent proof that trial counsel\u2019s representation fell below that of a reasonably competent attorney, or that, but for counsel\u2019s failure to call such witnesses, the result would have been different, we cannot conclude that defendant did not receive a fair trial. See State v. Taylor.\nBefore consideration of the merits of this appeal, we previously denied defendant's motion to remand for an evidentiary hearing with respect to the content and effect of other witnesses\u2019 testimony on this issue. However, defendant\u2019s brief has not presented a substantial claim of ineffectiveness. We thus decline to review or reconsider defendant\u2019s motion as requested. See State v. Powers, 111 N.M. 10, 800 P.2d 1067 (Ct.App.1990) (a remand for an evidentiary hearing would circumvent the express wording of SCRA 1986, 5-802).\nOVERBREADTH\nDefendant contends that Section 30-9-13(B) is unconstitutionally overbroad. The general rule governing standing in connection with this argument provides that a person to whom a statute may be constitutionally applied cannot challenge the statute on the basis that the statute may conceivably be applied unconstitutionally to others not before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But even if we addressed this issue, we are compelled to follow the holding of State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), where our supreme court held Section 39-9-13(B) was neither unconstitutionally vague nor overbroad.\nCONCLUSION\nThis court has sua sponte considered whether State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991) requires reversal. Osborne held that \u201cunlawfulness\u201d is an essential element of the offense of CSCM and the jury must be instructed on that element. The court noted, however, that, \u201c[a]s with other instructions addressing the statutory element of unlawfulness discussed above, the element of unlawfulness in the CSCM statute may be addressed by description of the manner in which the act was perpetrated.\u201d Id., 808 P.2d at 630. That was done in this case. The court instructed the jury, as elements of the CSCM charge, concerning the requirements that \u201cthe defendant threatened to hurt [the victim]\u201d and \u201c[the victim] believed that the defendant would carry out the threat.\u201d Since the jury apparently was satisfied that the state proved those elements, the jury necessarily found that defendant acted \u201cunlawfully.\u201d\nIn summary, having determined that the trial court did not abuse its discretion in admitting evidence of defendant\u2019s prior sexual misconduct against the victim or in restricting impeachment of the victim\u2019s testimony by disallowing extrinsic evidence in the form of witness testimony, we affirm the trial court on those two issues. We also hold that, because there was no error, there was no cumulative error. Lastly, we decide against defendant\u2019s arguments in connection with his ineffective assistance of counsel claim and the statutory over-breadth claim. We therefore affirm defendant\u2019s convictions.\nIT IS SO ORDERED.\nALARID, C.J., and HARTZ, J., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Jacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "828 P.2d 958\nSTATE of New Mexico, Plaintiff-Appellee, v. William SCOTT, Defendant-Appellant.\nNo. 12097.\nCourt of Appeals of New Mexico.\nJune 27, 1991.\nCertiorari Quashed as Improvidently Granted, Feb. 18, 1992.\nTom Udall, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0525-01", "first_page_order": 563, "last_page_order": 571 }