(dissenting).
I respectfully dissent.
The award of a new trial was predicated upon two comments made by the prosecutor during closing arguments to the jury. Neither comment rose to the level of prejudicial error.
The first comment referred to defendant’s testimony during trial, where he admitted having sexual intercourse with the prosecutrix, but denied that he had committed forcible rape because such act would have reflected adversely upon his wife and family, “the position that I hold” and because the use of force was contrary to his beliefs. [Emphasis added.] Referring to this testimony, the prosecutor stated in closing argument:
Let’s put something else out of the way. Senator Gonzales says, “I have too much to lose to do this.” That is true of every politician up to the president of the United States when they do a bad act, an illegal act, they have too much to lose. They would have you believe that because they have a lot to lose that they wouldn’t do'it. Well, we know to the contrary. Our experience is contrary. There’s all sorts of people in high places.
Defendant objected to this comment and the trial court promptly sustained the objection.
The prosecutor, as well as the defense, is allowed wide latitude in commenting on the evidence during closing argument. State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981); State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980); State v. Anaya, 79 N.M. 43, 439 P.2d 561 (Ct.App.1968). The prosecutor is allowed to refer during closing arguments, to statements and facts in the evidence, together with reasonable inferences deductible therefrom. State v. Molina, 101 N.M. 146, 679 P.2d 814 (1984); State v. Herrera, 84 N.M. 46, 499 P.2d 364 (Ct.App.1972). When defendant’s own testimony directly alluded to his official position, and placed before the jury the suggestion that he did not commit the charged offense because of the “position” held by him, the prosecutor’s reference to defendant’s remark did not constitute prejudicial error. Defendant initially raised this issue and placed it before the jury. Under these facts defendant opened the door to the state’s comment. See State v. Cordova, 100 N.M. 643, 674 P.2d 533 (Ct.App.1983); State v. Jaramillo, 88 N.M. 60, 537 P.2d 55 (Ct.App.1975). The prosecution comment did not exceed the scope of permissible closing argument.
Moreover, under the facts herein, any alleged prejudice to defendant resulting from the statement was neutralized by the ruling of the trial court. In the instant case, the trial court sustained defendant’s objection to the prosecutor’s comment. Defendant did not request the trial court to admonish the jury to disregard the statement. The prompt sustaining of the objection cured any claim of prejudice. See State v. Duran, 83 N.M. 700, 496 P.2d 1096 (Ct.App.1972); see also State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983); State v. Vialpando, 93 N.M. 289, 599 P.2d 1086 (Ct.App.1979).
During the state’s rebuttal argument, the prosecutor also stated that in committing the offense, defendant did not use “a knife or a gun * * * that’s a higher offense * * * * that’s not why we are here. We’re here because he held her.” Defense counsel objected on the grounds that the statement was an incorrect statement of the law, and that committing sexual penetration while armed with a weapon was not a higher offense. The trial court in response to the objection, observed that it had instructed the jury as to the law and “they will follow my instructions.” Following the jury verdict, defendant argued that this second remark also warranted the award of a new trial. The trial court agreed.
This argument of the prosecutor was ambiguous. Defendant was charged with second degree criminal sexual penetration. The trial court also instructed the jury as to the lesser included offense of third degree criminal sexual penetration. See NMSA 1978, § 30-9-ll(C) (Repl.Pamp. 1984). During rebuttal argument, the prosecutor discussed elements of both the charged offense and the lesser included offense. This remark of the prosecutor was not an erroneous statement insofar as it referred to the lesser included offense of third degree criminal sexual penetration. The prosecution argument discussed both jury instructions. Moreover, not every inaccurate statement by a prosecutor, or inadvertent misstatement of the law made during closing argument, mandates a new trial. United States v. Chapman, 615 F.2d 1294 (10th Cir.1980). Misstatements in closing arguments do not require an award of new trial unless the remark prejudiced defendant to the extent that he was denied a fair trial. State v. Jefferson, 11 Wash.App. 566, 524 P.2d 248 (1974). The comment was not prejudicial. The prosecutor’s remark expressly disclaimed the use of any weapon and emphasized the state’s contention that force had been used.
A new trial is not required where viewed the totality of the circumstances, together with the reasonable inferences to be drawn from the evidence, the statements, even if erroneous, were not prejudicial. See Commonwealth v. Mandeville, 386 Mass. 393, 436 N.E.2d 912 (1982); Commonwealth v. Dennis, 313 Pa.Super. 415, 460 A.2d 255 (1983).
In determining whether a motion for a new trial, based upon comments of the prosecutor, should be granted, the test is whether defendant was prejudiced by the remark, and the prejudice deprived the defendant of a fair trial. State v. White, 101 N.M. 310, 681 P.2d 736 (Ct.App.1984); State v. Buffino. To be reversible, error must be prejudicial. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972); State v. Orzen, 83 N.M. 458, 493 P.2d 768 (Ct. App.1972). A party asserting prejudice has the burden of demonstrating that he was prejudiced by the claimed error. See State v. Garcia, 93 N.M. 51, 596 P.2d 264 (1979); State v. Evans, 48 N.M. 58, 145 P.2d 872 (1944).
The trial court gave NMSA 1978, UJI Crim. 50.06 (Repl.Pamp.1982), instructing the jury that it was not to consider the consequences of its verdict. Similarly, the trial court gave NMSA 1978, UJI Crim. 1.04 (Repl.Pamp.1982), advising the jury that what is said in the arguments did not constitute evidence. The trial court also properly instructed the jury both as to the elements of the charged offense, and the lesser included offense. See NMSA 1978, UJI Crim. 9.46 (Repl.Pamp.1982); see also NMSA 1978, UJI Crim. 9.40 (Repl.Pamp. 1982). Under these circumstances, the prosecutor’s second remark did not reach the level of prejudicial error. The trial court gave instructions which neutralized any deleterious effect from this comment. See State v. Moore, 94 N.M. 503, 612 P.2d 1314 (1980).
Misstatements in arguments do not require the award of a new trial unless the statements are of such dimension as to prejudice defendant’s right to a fair trial, and the effect of the statements have not been neutralized by the trial judge. United States v. Rich, 580 F.2d 929 (9th Cir. 1978). Motions for a new trial are not favored. State v. Stephens, 99 N.M. 32, 653 P.2d 863 (1982). An award of a new trial where the basis relied upon did not deprive the accused of a fair trial, constitutes an abuse of the trial court’s discretion. See State v. Chavez, 101 N.M. 136, 679 P.2d 804 (1984). A jury verdict should be set aside only upon a showing of prejudicial error. The arguments of the prosecutor did not warrant the granting of a new trial.
The order granting the new trial should be reversed.