State v. Quarles

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-38270

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MORGAN EUGENE QUARLES,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BACA, Judge.

{1} Following a jury trial, Morgan Eugene Quarles (Defendant) was found guilty of
armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973), conspiracy to commit
armed robbery, contrary to NMSA 1978, Section 30-28-2 (1979), and resisting, evading,
or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(B) (1981). Defendant
appeals these convictions. On appeal, Defendant argues (1) the district court abused its
discretion by dismissing his motion to suppress as untimely filed pursuant to a local rule,
(2) the Victim’s identification of Defendant during trial violated his due process rights
under the New Mexico Constitution, (3) alternatively, the identification of Defendant
should have been excluded under Rule 11-403 NMRA, and (4) the district court should
have declared a mistrial. Unpersuaded, we affirm Defendant’s convictions.

BACKGROUND

{2} On February 3, 2016, Victim1 was walking on Colombia Drive near the University
of New Mexico (UNM) when someone pulled on his shoulder and robbed him at
gunpoint. The robber took Victim’s cell phone and blue Nike backpack. After robbing
Victim, the robber got into the passenger seat of a nearby Chevrolet truck, and the truck
drove away. After the truck drove away, Victim used a bystander’s cell phone to call the
police. During the call, Victim provided the police with the truck’s license plate number.
Victim, using the Find My iPhone application, located his phone, and he gave its
location to the police. Initially, Victim described the robber as a six-foot-tall African
American male with dreadlocks. Twelve days after he was robbed, Victim called police
to tell them that, after viewing a news report on a local television station that described
Defendant as a person of interest in several robberies, including Victim’s own robbery,
he recognized Defendant as the man who robbed him. After viewing this news report,
Victim changed his description of the robber’s ethnicity and hairstyle. Victim testified at
trial that based on the news report, Victim believed Defendant was the person who
robbed him and notified the police of this fact. He believed this because Defendant
“looked really familiar” and the way that a different victim was robbed was similar to the
way Victim was robbed.

{3} At the time Victim was robbed, Albuquerque Police Department Detective Koury
Church was investigating several robberies near the UNM and Central New Mexico
Community College (CNM) campuses that were similar to the robbery of Victim. Based
on the investigation, Detective Church and other police officers arrested an accomplice
of Defendant at Defendant’s apartment complex. At that time, police also attempted to
arrest Defendant at this apartment, but Defendant jumped out of a second-story window
of the apartment building and fled. Defendant was arrested shortly afterward on the roof
of a nearby building.

{4} On the day of Defendant’s arrest, police obtained a search warrant for
Defendant’s apartment. During the search of the apartment, police recovered Victim’s
blue Nike backpack. On February 15, 2016, Victim called Detective Church to tell him
that he had seen Defendant and the other men police arrested in connection with this
string of robberies on the news. To avoid tainting the identification of Defendant
because of what Victim had viewed during the news report, Detective Church did not
ask Victim to view a photo array to identify his assailant.

1In this opinion, Victim is the eyewitness who identified Defendant during trial as the individual who
robbed him, based on circumstances Defendant contends on appeal were suggestive. Although we do
not refer to Victim as the “witness” or “eyewitness,” we want to be clear that Victim is the eyewitness
whose identification of Defendant as the perpetrator is at issue here, given that Defendant was tried on
charges related to two other alleged victims during the same proceedings.
{5} As a result of its investigation, the State charged Defendant with three counts of
armed robbery, conspiracy to commit armed robbery, and several other offenses.
Before trial, Defendant moved to suppress Victim’s identification. However, the district
court dismissed the motion without reaching its merits because the district court found
that the motion was untimely filed contrary to the scheduling order issued pursuant to
LR 2-308 NMRA (the local rule). At trial, Defendant was convicted of armed robbery,
conspiracy to commit armed robbery, and resisting, evading, or obstructing an officer.
This appeal followed.

DISCUSSION

{6} Defendant argues (1) it was an abuse of discretion for the district court to deny
his motion to suppress Victim’s out-of-court identification of him after watching the news
on grounds that it was not timely filed; (2) the “tainted” in-court identification of
Defendant by Victim violated Article II, Section 18 of the New Mexico Constitution; (3)
the prejudicial effect of Victim’s identification of Defendant substantially outweighed its
probative value, violating Rule 11-403; and (4) that the district court should have
granted a mistrial when the prosecution showed the jury a cell phone unrelated to this
case. We address each of these arguments in turn.

I. The District Court Appropriately Denied Defendant’s Motion to Suppress on
Timeliness Grounds

{7} First, Defendant argues that it was an abuse of discretion for the district court to
deny his motion to suppress on timeliness grounds. Defendant filed a motion seeking to
suppress Victim’s out-of-court identification of him as the perpetrator of Victim’s robbery
after Victim viewed a news story in which Defendant was implicated in the robbery of
Victim. We are unpersuaded. Denial of a motion on timeliness grounds is reviewed for
abuse of discretion. See State v. Smallwood, 2007-NMSC-005, ¶ 12, 141 N.M. 178, 152
P.3d 821. Here, the district court denied Defendant’s motion to suppress because it was
untimely filed pursuant to both the scheduling order and the local rule. Under applicable
precedent, the district court’s decision to deny the motion on this ground was
appropriate. See State v. Vialpando, 1979-NMCA-083, ¶ 6, 93 N.M. 289, 599 P.2d 1086
(stating that a motion to suppress could have properly been denied on untimeliness
grounds); State v. Helker, 1975-NMCA-141, ¶ 7, 88 N.M. 650, 545 P.2d 1028 (“[W]e
hold that rules of criminal procedure can put a time limitation on the exercise of a
constitutionally protected right.”); see also City of Santa Fe v. Marquez, 2012-NMSC-
031, ¶ 28, 285 P.3d 637 (noting that Rule 5-212(C) NMRA requires that motions to
suppress be filed sixty days before trial).

{8} Thus, because Defendant failed to file his motion to suppress within the deadline
set by the district court’s scheduling order and the local rule, it was not an abuse of
discretion for the district court to deny this motion on those grounds. See Helker, 1975-
NMCA-141, ¶ 7.

II. The Eyewitness Identification Did Not Violate the New Mexico Constitution
{9} Defendant argues that Victim’s out-of-court identification was tainted by the
suggestive news report he viewed. Therefore, the in-court identification of Defendant by
Victim was also tainted and its admission violated Defendant’s right to due process. To
remedy this due process violation, Defendant asks that we extend our Supreme Court’s
recent holding in State v. Martinez to instances where there is no state action. 2021-
NMSC-002, ¶¶ 70, 79, 478 P.3d 880 (holding that “if a witness makes an identification
of a defendant as a result of a police identification procedure that is unnecessarily
suggestive and conducive to irreparable misidentification, the identification and any
subsequent identification by the same witness must be suppressed”). We decline to do
so for the reasons that follow.

A. Standard of Review

{10} The admission of an identification of the defendant implicates his right to due
process. See State v. Ramirez, 2018-NMSC-003, ¶ 29, 409 P.3d 902. Because
Defendant argues that the out-of-court identification made by Victim violated his right to
due process, our review is de novo. See State v. Belanger, 2009-NMSC-025, ¶ 8, 146
N.M. 357, 210 P.3d 783 (“This appeal implicates . . . the Fourteenth Amendment right to
due process of law, including the right to a fair trial, and therefore our review is de
novo.”).

{11} The federal standard for pretrial identification evidence obtained by police
procedure was established in Manson v. Brathwaite, 432 U.S. 98 (1977) (requiring
courts to determine whether the procedure used for an out-of-court identification was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification and whether, under the totality of the circumstances, the identification
is still reliable). However, our Supreme Court recently joined many other states in
rejecting the Manson standard where out-of-court “police-arranged identification
procedures” are concerned. Martinez, 2021-NMSC-002, ¶¶ 70, 79.

{12} The identifications at issue in this case “were not the result of impermissible,
suggestive, pretrial, law-enforcement-orchestrated procedures”—a fact that is
dispositive to our analysis. Ramirez, 2018-NMSC-003, ¶ 32. The case before us today
does not involve police procedure, suggestive or otherwise, but the actions of private
actors—namely, a local news media outlet. For this reason, we decline to extend the
holding of Martinez and to adopt a per se rule of exclusion in this case, as Defendant
requests.

B. We Will Not Extend Our Supreme Court’s Holding From Martinez to This
Case or Cases Where There Is No State Action

{13} Defendant argues that the identification made by Victim violates his due process
rights under New Mexico’s stronger protections afforded under Article II, Section 18 of
the New Mexico constitution. Defendant asks this Court to not only apply the stronger
due process protections set out by our Supreme Court in Martinez to his case, but to
extend these protections to any “unreliable” eyewitness identification, whether or not it
involved governmental action. We decline to do so.

{14} First, Martinez was decided two years after Defendant filed his suppression
motion. Changes in the law generally apply “to cases pending on direct appeal, as long
as the issue was raised and preserved below or the failure to apply the new rule
constitutes fundamental error.” Kersey v. Hatch, 2010-NMSC-020, ¶ 19, 148 N.M. 381,
237 P.3d 683. Here, Defendant did not preserve this issue. Although our Supreme
Court had not previously determined that “Article II, Section 18 generally provides
greater due process protection than its federal counterpart[,]” Martinez, 2021-NMSC-
002, ¶¶ 34-36, Defendant could have but did not properly preserve this issue for appeal.
Under State v. Leyva, 2011-NMSC-009, ¶ 40, 149 N.M. 435, 25 P.3d 861, to preserve
this issue, Defendant must “assert in the trial court that the state constitutional provision
at issue should be interpreted more expansively than the federal counterpart and
provide reasons for interpreting the state provision differently from the federal
provision.” (Emphasis added.) (Internal quotation marks and citation omitted.)
Defendant, therefore, failed to preserve his state constitutional argument for appeal.
See State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1.

{15} Second, our Supreme Court addressed a substantially similar argument in
Ramirez, and, applying the factors set out in Perry v. New Hampshire, 565 U.S. 228,
242 (2012), held that “[i]t is only when law enforcement [is] the source of the taint that
due process concerns arise.” Ramirez, 2018-NMSC-003, ¶ 33. Under the current
framework for eyewitness identification, there is no due process concern if there is no
state action. See generally id.

{16} Third, this Court recently declined to extend our Supreme Court’s newly adopted
per se exclusionary rule for unnecessarily suggestive out-of-court identifications
articulated in Martinez to unnecessarily suggestive in-court identification procedures.
See State v. Antonio M., 2022-NMCA-___, ¶ 47, ___ P.3d ___ (A-1-CA-39709, Mar. 17,
2022). We did so in part because Martinez is silent regarding in-court identification
procedures. Id. ¶ 48. Rather, we applied the standards set out in Manson and Ramirez
regarding eyewitness identification. Id. ¶ 43. Similarly here, we apply Antonio M. and
reject any extension of Martinez to cases involving suggestive in-court identification
procedures.

C. There Is No Due Process Violation Under Our Supreme Court’s Ramirez
Standard

{17} “Ramirez and Manson set forth an approach to take in deciding if due process
requires suppression of eyewitness identifications.” Antonio M., ____NMCA___, ¶ 43
(quoting Ramirez, 2018-NMSC-003, ¶ 31). Because Manson applies only to pretrial
identification evidence obtained by a police procedure that was both suggestive and
unnecessary, we rely solely on Ramirez. See Perry, 565 U.S. at 245 (holding that “[t]he
fallibility of eyewitness evidence does not, without the taint of improper state conduct,
warrant a due process rule requiring a trial court to screen such evidence for reliability
before allowing the jury to assess its creditworthiness”).

{18} Under Ramirez, a defendant cannot invoke the due process clause to suppress
an eyewitness identification if there is no state action. See 2018-NMSC-003, ¶¶ 33-36.
In Ramirez, our Supreme Court rejected the defendant’s due process argument relating
to an eyewitness identification because law enforcement did not taint the procedure and
because other due process protections ameliorated any suggestive procedures that
occurred in the courtroom. Id. The defendant in Ramirez argued that media reports
tainted his in-court identifications and that his placement at the defense table, ethnicity,
and gender were overly suggestive. Id. ¶ 28. The Ramirez Court observed that its
“treatment of the issue presented by [the defendant] is guided by Perry.” Ramirez, 2018-
NMSC-003 ¶ 30. After considering the circumstances of Perry, the Ramirez Court
observed that Perry applied Manson “to determine whether due process requires
suppression of eyewitness identification.” Ramirez, 2018-NMSC-003, ¶¶ 30-31. Under
this analysis, our Supreme Court in Ramirez, rejected the defendant’s arguments
because (1) only law enforcement procedures—and not media or the common
arrangement of a courtroom—could be the source of unconstitutionally tainted
identifications; and (2) other constitutional safeguards protected the defendant from
“any fundamental unfairness resulting from eyewitness identifications.” See id. ¶¶ 33-36.

{19} Here, like Ramirez, Defendant had ample procedural safeguards at his disposal
at trial to address the fallibility of eyewitness testimony, among which was “the right to
the effective assistance of an attorney who can expose the flaws of eyewitness
testimony on cross-examination and focus the jury’s attention on such flaws during
opening and closing arguments.” Id. ¶ 35. Defense counsel did just that. During cross-
examination and closing argument, the defense highlighted to the jury the inconsistent
descriptions of the robber Victim gave to the police during the investigation of this case.
It is the responsibility of the jury, not the court, to weigh a Victim’s credibility and
determine the accuracy of an in-court identification. See State v. Romero, 2019-NMSC-
007, ¶ 49, 435 P.3d 1231.

{20} We recognize how the news report that Victim viewed could have tainted his
memory of the robbery. However, under our case law, the due process clause does not
require suppression of the identification because there was no state action. Twelve days
after he was robbed, Victim called law enforcement to tell them that he recognized
Defendant as the man who robbed him. In this case, the news report Victim viewed
identified Defendant as the man who robbed Victim. Nevertheless, this “taint” was not
the result of any procedure employed by law enforcement and cannot implicate the due
process clause. Ramirez, 2018-NMSC-003, ¶¶ 33-36. Thus, neither the pre-trial nor in-
court identification of Defendant by Victim violated Defendant’s due process rights.

III. It Was Not Plain Error for the District Court to Admit Victim’s Testimony
Identifying Defendant
{21} Alternatively, Defendant argues that both Victim’s in-court and out-of-court
identifications of him by Victim should have been excluded under Rule 11-403.
Defendant advocates for New Mexico to adopt a “heightened” Rule 11-403 analysis
similar to that adopted by New Jersey and Massachusetts. The analysis used by those
states focuses on the independent source of the eyewitness identification where an
eyewitness identification was tainted by a private actor rather than by police procedure.
We decline to adopt such an analysis and review the district court’s application of Rule
11-403 to the facts of this case.

{22} We review a district court’s decision regarding Rule 11-403 for abuse of
discretion. State v. Bailey, 2015-NMCA-102, ¶ 20, 357 P.3d 423 (stating that “we review
a trial court’s weighing of probative value against unfair prejudice for an abuse of
discretion”). Only when a ruling of the trial court is clearly untenable, not justified by
reason, or clearly against the logic and effect of the facts and circumstances of the
case, will we hold that the trial court abused its discretion in admitting or excluding
evidence. See id. ¶ 11.

{23} Rule 11-403 provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” “The purpose of Rule 11-403 is not to
guard against any prejudice whatsoever, but only against the danger of unfair
prejudice.” State v. Otto, 2007-NMSC-012, ¶ 16, 141 N.M. 443, 448, 157 P.3d 8
(alteration, emphasis, internal quotation marks, and citation omitted). At issue, in this
case, is the balance between probative value and unfair prejudice. Unfair prejudice, in
the context of Rule 11-403, “means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” State v. Stanley,
2001-NMSC-037, ¶ 17, 131 N.M. 368, 37 P.3d 85 (internal quotation marks and citation
omitted). Evidence is unfairly prejudicial “if it is best characterized as sensational or
shocking, provoking anger, inflaming passions, or arousing overwhelmingly sympathetic
reactions, or provoking hostility or revulsion or punitive impulses, or appealing entirely to
emotion against reason.” Id. (internal quotation marks and citation omitted).

{24} Here, the admission of Victim’s out-of-court identification and the in-court
identification of Defendant do not rise to the level of “sensational” or “shocking,”
therefore, we cannot say that the district court abused its discretion by allowing this
testimony. Id. The probative value of Victim’s testimony is not substantially outweighed
by the danger of unfair prejudice or misleading the jury. See Rule 11-403.

{25} There is certainly probative value in eyewitness identification. However, that
probative value is diminished if the identification results from suggestive circumstances.
In this case, Victim saw a news report identifying Defendant as a person of interest in
several robberies. Further, this news report identified Defendant as the person who
robbed Victim. Based on this news report, Victim believed Defendant to be the person
who robbed him because he “looked really familiar,” and another robbery mentioned in
the news report was committed in a similar fashion. But some degree of suggestive
nature within the circumstances surrounding an identification does not alone establish
substantial prejudicial effect. See Rule 11-403.

{26} Reviewing the alleged error in context, we conclude that the admission of
Victim’s testimony does not rise to the level of abuse of discretion. See Bailey, 2015-
NMCA-102, ¶ 20. First, Victim stated that he remembers the day of the robbery well
because it was the first time he had ever been robbed and that it was a very traumatic
experience. Next, during his direct examination, Victim was asked if he saw the person
who robbed him in the courtroom, and he positively identified Defendant. The
prosecutor asked Victim how confident he was about his identification of Defendant as
the person who robbed him. Victim responded, “[p]retty sure. One hundred percent.”
Admittedly, the circumstances culminating in Victim’s identification of Defendant are not
without some degree of prejudice, but all evidence is prejudicial to a certain degree. See
Otto, 2007-NMSC-012, ¶ 16 (“The purpose of [Rule] 11-403 is not to guard against any
prejudice whatsoever, but only against the danger of unfair prejudice.” (alteration,
emphasis, internal quotation marks, and citation omitted)). Furthermore, Victim’s
testimony identifying Defendant, at best, goes to the weight of the evidence and not its
admissibility. See State v. Gerald B., 2006-NMCA-022, ¶ 23, 139 N.M. 113, 129 P.3d
149 (noting that “the qualifications of [a] witness go to weight and not admissibility”
(internal quotation marks and citation omitted)).

{26} Because Defendant failed to establish that Victim’s identification of him unfairly
prejudiced him, we conclude that no error infected the fairness or integrity of the trial.
Therefore, the district court did not abuse its discretion and we affirm its admission of
this testimony.

IV. The District Court Did Not Err in Refusing to Grant a Mistrial

{27} Lastly, Defendant argues that the district court should have granted a mistrial
when the prosecution, during the trial, showed the jury a cell phone that was neither
admitted in evidence nor linked to this case. This argument is without merit.

{28} “We review a [district] court’s denial of a motion for mistrial under an abuse of
discretion standard.” State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516
(internal quotation marks and citation omitted). The district court abuses its discretion in
ruling on a motion for a mistrial if it acts in an “obviously erroneous, arbitrary, or
unwarranted manner,” id. ¶ 50 (internal quotation marks and citation omitted), or when
the decision is “clearly against the logic and effect of the facts and circumstances before
the court.” State v. Lucero, 1999-NMCA-102, ¶ 32, 127 N.M. 672, 986 P.2d 468
(internal quotation marks and citation omitted). Furthermore, our case law
acknowledges that “generally, a prompt admonition . . . to the jury to disregard and not
consider inadmissible evidence sufficiently cures any prejudicial effect which might
otherwise result.” State v. Armijo, 2014-NMCA-013, ¶ 9, 316 P.3d 902 (alterations,
emphasis, internal quotation marks, and citation omitted); see also State v. Shoemaker,
1981-NMCA-151, ¶¶ 7, 9, 11-13, 97 N.M. 253, 638 P.2d 1098 (recognizing that a
curative instruction was sufficient to cure any prejudice that occurred when the state
attempted to impeach the defendant with a prior indictment that did not result in a
conviction).

{29} Defendant argues that this case shares several characteristics with State v.
Hernandez, such as reckless prosecutorial action and vague curative instructions from
the district court judge. Therefore, according to Defendant, we must conclude that the
district court abused its discretion when it denied Defendant’s request for a mistrial. See
2017-NMCA-020, ¶ 17, 388 P.3d 1016. Hernandez is distinguishable, however. In
Hernandez, an officer falsely claimed that the defendant had confessed to driving the
vehicle involved in a vehicular homicide. See id. ¶¶ 1, 10-11. The officer’s testimony
went to “the most critical issue in the case,” and one that was “highly disputed by the
parties.” Id. ¶ 16. Notwithstanding that this false statement was not intentionally elicited,
see id. ¶¶ 18-19, this Court examined the prejudicial effect of the error and the
sufficiency of the curative instruction, see id. ¶¶ 20-26, because of the “uniquely
prejudicial” nature of the comment under the particular circumstances of that case. Id. ¶
16; see also id. ¶ 21 (“[A] confession can be highly prejudicial and warrants a close
examination of the circumstances. Here, the confession . . . struck at the crux of the
defense offered at trial.”). The case before us today does not involve uniquely
prejudicial circumstances like those in Hernandez. Simply stated, Hernandez does not
justify departing from the general rule that a curative instruction cures any prejudicial
effect from inadmissible evidence which might otherwise result. See Armijo, 2014-
NMCA-013, ¶ 9.

{30} Before the State opened Exhibit 9, which contained three bags with three
different cell phones, Defendant made a foundational objection because Victim was
testifying, not the officer who prepared the exhibits. The district court allowed the State
to proceed subject to conditional relevance and based on a forthcoming foundation. See
Rule 11-104(B) (“When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist. The
court may admit the proposed evidence on the condition that the proof be introduced
later.”). Significantly, Defendant did not object to the district court’s use of conditional
relevance to admit this evidence and did not object when the State pulled three
separate sealed bags out of the larger Exhibit 9. Defendant did object once an LG cell
phone was pulled out and the prosecutor stated, in front of the jury, that it was an LG
phone. The district court promptly gave the jury a limiting instruction, stating,

You may not consider these items at all in your deliberations or in your
private consideration of the evidence here at trial unless and until those
items are re-presented through a witness, admitted into the body of
evidence, and published for your consideration. So you may not consider
[Exhibits] 9, 9.1, 9.2, or 9.3 at all unless given contrary direction later on in
the trial.

{31} The following day, Defendant moved, under Hernandez, for a mistrial. The district
court stated that it thought that there was a difference between a false confession,
which was the case in Hernandez, and an unexplained cell phone being shown to the
jury. After hearing arguments from the parties, the district court found that the facts in
this case were “highly” distinguishable from Hernandez, denied Defendant’s motion for
mistrial, and offered him a curative instruction. Defendant chose to wait on whether he
wanted a curative instruction. The court ultimately gave the jury a curative instruction in
the jury instructions, stating that

[n]o physical evidence regarding [Victim’s] phone has been submitted to
you for consideration while you deliberate. You must not make any
conclusions that the Exhibits 9, 9.1, 9.2 or 9.3 contained that phone. Nor
must you make any conclusions regarding what those Exhibits contained.

{32} Given these circumstances, we conclude that the district court “took appropriate
measures to cure any error and potential prejudice” and “[t]here was no need for a
mistrial.” State v. Caudillo, 2003-NMCA-042, ¶ 14, 133 N.M. 468, 64 P.3d 495. First, the
district court promptly issued a limiting instruction to the jury to disregard and not
consider the inadmissible evidence of the phone; therefore, we assume this instruction
cured any prejudicial effect. See Armijo, 2014-NMCA-013, ¶ 9. Next, we also “assume
the jury followed the court's [curative] instruction.” State v. Ancira, ___-NMCA- ___, ¶
40, ___ P.3d ___ (No. A-1-CA-38173, Mar. 23, 2022) (internal quotation marks and
citation omitted). Thus, we cannot say that the trial court acted in an obviously
erroneous, arbitrary, or unwarranted manner. See Fry, 2006-NMSC-001, ¶ 50.

{33} Accordingly, we conclude that the curative instruction was sufficient to cure any
potential prejudice from the brief showing of an unexplained LG phone to the jury. We,
therefore, hold that the district court did not abuse its discretion in denying Defendant’s
motion for a mistrial.

CONCLUSION

{34} For the reasons stated above, we affirm Defendant’s convictions for armed
robbery, conspiracy to commit armed robbery, and resisting, evading, or obstructing an
Officer.

{35} IT IS SO ORDERED.

GERALD E. BACA, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

MEGAN P. DUFFY, Judge