OPINION
{1} The Opinion previously filed in this matter on August 15, 2013 is hereby withdrawn, and the following Opinion is being issued in its place.
{2} Wayne Bent (Defendant) appeals his conviction for criminal sexual contact with a minor and two convictions of contributing to the delinquency of a minor. Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings. In a previous opinion, we reversed his convictions based on problems with the grand jury indictment. The New Mexico Supreme Court reversed and instructed this Court to consider the rest of Defendant’s arguments on remand.
{3} Defendant’s remaining issues on appeal are numerous. Defendant argues that (1) the district court excluded certain witnesses, photographs, and his closing presentation soundtrack; (2) the prosecution wrongly exceeded the scope of direct examination on its cross-examination; (3) his proposed jury instructions regarding lawfulness were erroneously denied; (4) there was insufficient evidence to convict him of the crimes charged; (5) his counsel was ineffective by failing to raise a defense under New Mexico ’s Religious Freedom Restoration Act (RFRA); and (6) he was deprived of a fair trial by cumulative error. We see no error and affirm.
I. BACKGROUND
{4} Defendant was the spiritual leader of a religious group that lived together on an area of land in northern New Mexico. Two teenage sisters, L.S. and A.S., each paid a visit alone to Defendant and lay in his bed naked with him. Whether he touched L.S. and A.S. illegally during their visits, and whether the events were religiously motivated or the result of coercion was disputed below and on appeal. Defendant was indicted by a grand jury on two counts of criminal sexual contact with a minor (CSCM) and two coiints of contributing to the delinquency of a minor (CDM). He was acquitted of one count of CSCM and convicted on the remaining charges.
II. DISCUSSION
A. Limitation of Defendant’s Witnesses and Evidence Was Not Error
{5} Defendant argues that he was not allowed to present his desired evidence due to time constraints imposed by the district court and, specifically, he was not permitted to present his full list of witnesses. He claims on appeal that this prevented him from presenting any female members of the community he led, including L.S.’s and A.S.’s aunt and grandmother with whom the sisters lived. Defendant also disputes the district court’s exclusion of some of the photographs offered into evidence. The State argues that the district court properly granted its motion to exclude what it deemed to be cumulative witnesses. “The admission or exclusion of evidence is within the discretion of the [district] court. On appeal, the [district] court’s decision is reviewed for abuse of discretion.” State v. Downey,
{6} Rule 11-403 NMRA permits a court to exclude relevant evidence if its probative value is outweighed by the danger of, among several things, “needless presentation of cumulative evidence.” City of Albuquerque v. Westland Dev. Co.,
{7} Defendant attempted to present several members of the community as witnesses to testify to the general nature of the touching they observed in the healing rituals of their religion, none of whom were teenage girls or others who had been touched in a similar manner as L.S. and A.S. The district court permitted “one, maybe two,” because it did not want “eight omine people saying the same thing.” The district court ruled that L.S.’s and A.S’s grandmother and aunt also could not testify because they were only offered for “unrelated experiences” that did not deal with the issues being tried. Defendant did not argue before or after this ruling that the grandmother and aunt had relevant testimony that was non-cumulative. He raised that argument for the first time on appeal. As well, Defendant did not argue at trial that the éight or nine witnesses had individualized experiences about healing rituals. By failing to argue or make an offer of proof below that the witnesses had distinct, non-cumulative testimony, Defendant failed to preserve this argument. In order to preserve an issue for appeal, a defendant must make a timely objection or motion that specifically apprises the district court of the nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela,
{8} Defendant makes a similar argument with respect to numerous photographs he attempted to admit into evidence. Again, he fails to show, with any particularity, how the photographs would have been non-cumulative. A nearly identical situation arose in Westland Development when “[t]he court examined a box of pictures offered by Westland and required Westland to pick the five best representatives of what it wanted to show[.]”
{9} Defendant’s final argument in this vein is that he was prevented from playing, and the jury was prevented from hearing, a song during his closing presentation. He intended the song to be the soundtrack to a video slideshow of photographs that had been admitted into evidence. The district court sustained the State’s objection to the song, asking that the sound be turned off, although permitting the slideshow to play. Defendant argues on appeal that this prejudiced him in front of the jury and disrupted his closing. He does 'not explain further how this refusal to allow the audio track prejudiced him and, at the time, his only argument was “[ijt’s just commentaryf.]” “Because district judges are in the best position to assess the impact of any questionable comment, we afford them broad discretion in managing closing argument.” State v. Ramos-Arenas, 2012-NMCA- 117, ¶ 16,
B. The Prosecution Did Not Exceed the Scope of Direct Examination on Cross-Examination
{10} We next consider whether the State exceeded the scope of direct examination when it cross-examined Defendant. “The general rule upon the scope of cross-examination ... is that the examination can only relate to the facts and circumstances connected with the matters stated in the direct examination of the witness.” State v. Carter,
[f]or the purpose of testing the credibility of a witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description.
Id. ¶ 13. The district court has broad discretion to control the scope of cross-examination, see State v. Martin,
{11} The scope of Defendant’s direct examination was very limited. Defense counsel only asked Defendant questions regarding whether he touched L.S. and A.S. when they came to his house, and whether he would generally ever encourage delinquency in a minor. On appeal, Defendant specifically identifies a few places in cross-examination that he claims exceeded the scope of direct. Defendant states that the prosecution’s questions about his position of spiritual authority were improper, particularly those in relation to statements he made in a television special filmed about his community. Defense counsels objected generally to several of the State’s questions about a two-minute-long video segment containing an interview of Defendant. The district court expressed its concern with the State’s attempt to impeach Defendant by referring to prior interviews and instructed the State to first make Defendant state his current position on the question before impeaching him with a prior inconsistent statement. Ultimately, the district court took a recess and instructed the State to use the time to review the video interview. After the State reviewed the video, the prosecution proceeded without further objections as to the scope of cross-examination or improperly referring to the video interview. The district court later overruled new objections from defense counsel that Defendant was being questioned about a lack of prior statements consistent with his position, as Defendant could address the matter on redirect. The State’s clumsy questions related to D efendant’s conduct were corrected by the district court and did not amount to “improper argumentative questioning of . . . Defendant in front of the jury” as Defendant claims. The conferences between counsel and the district court were extensive enough that the jury was sometimes sent out of the room. However, the cross-examination did not exceed the scope of Defendant’s direct examination in a way that amounts to trial error.
{12} We focus on the scope of cross-examination because that is how Defendant frames his appeal. “Ordinarily[,j the scope of cross-examination should be limited to facts and circumstances connected with matters inquired of in direct examination. An exception to this limitation is where the cross-examination tends to discredit or impeach the witness or shows his bias or prejudice.” State v. Mireles,
{13} We reiterate that the district court has broad discretion over cross-examination. State v. Smith,
C. The District Court Did Not Err in Refusing Some of Defendant’s Proposed Jury Instructions
{14} Defendant next argues that the district court erred in denying four of his requested jury instructions. First, Defendant wanted to define the term “breast,” which he states is not defined in the context of the CSCM statute with which he was charged or any CSCM case'law. Second, Defendant argues that the jury should have been given a “[mjistake of [f]act” or “unlawfulness” instruction that he believed he was touching L.S. and A.S. for a religious purpose. Defendant also argues that this should have been the subject of an “unlawfulness” instruction, in which he wanted to instruct the jury that “CSC does not include a touching for purposes of religious beliefs.” Finally, he argues that it was error by the court to refuse and modify his proffered intent instruction. “The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar,
{15} Defendant argues that “breast” could mean “entire frontal section of the body,” or “the entire area where the female and male breasts are conjoined.” Defendant submitted an unnumbered jury instruction to the court that contained his definition of “breast.” The district court wrote on the page that the instruction was “[njever requested and never given.” Defendant fails to point us to any part of the record where he pursued the matter. The jury instruction for CSCM in the second degree defines several body parts. UJI 14-926 NMRA; UJI 14-981 NMRA. However, the committee commentary explains that “[djefinitions for ‘breast’ . . . were not included because these terms are in common usage and have a commonly understood meaning.” UJI 14-981 comm. cmt.
{16} We find no record of this definition being specifically requested in the remainder of the record. Defendant cites to a part of the record in which he opposed the inclusion of the word “breast” in another instruction. However, there was no discussion of the issue of the word’s definition at that point either. Therefore, we conclude that the issue of the definition of “breast” was not adequately preserved, and we do not consider Defendant’s arguments. Varela,
{17} We next address Defendant’s proposed mistake of fact instruction. We agree with the State that Defendant is actually arguing a “mistake of law” defense. The disputed instruction offered by Defendant at trial states that “[t]he burden is on the [S]tate to prove beyond a reasonable doubt that . . . [Defendant did not act under an honest and reasonable belief in the existence of those facts [that the touching ofL.S. and A.S. was a religious act].” This instruction does not claim a mistake of fact. Rather, it concedes the touchings while stating a legal justification. “A mistake of law is a mistake about the legal effect of a known fact or situation, whereas a mistake of fact is a mistake about a fact that is material to a transaction; any mistake other than a mistake of law.” State v. Hubble,
{18} Defendant’s unlawfulness and intent arguments stem from a single premise that because he believed that touching L.S. and A.S. was a religious act, he was not guilty of committing a crime. The CSCM statute limits the offense to instances where the touching is unlawful and, specifically, exempts touching for non-abusive medical treatment and parental care.
We begin our analysis by noting that the [criminal sexual penetration of a minor (CSPM)] and CSCM statutes specifically limit the application of such offenses to instances wherein [the] defendant’s conduct in touching or penetrating the child is “unlawful” or “unlawfully” committed. The terms “unlawful” or “unlawfully” limit the scope of prohibited conduct to those acts that are without legal justification or excuse.
State v. Pierce,
D. Sufficient Evidence Supported the Jury’s Verdict
{19} Substantial evidence claims can be raised for the first time on appeal. State v. Stein,
{20} Defendant argues that the State did not provide enough evidence on the elements of CSCM to support his conviction with regards to A.S. He was convicted of one count of CSCM, which is defined as:
A. Criminal sexual contact of a minor is the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one’s intimate parts. For the purposes of this section, “intimate parts” means the primary genital area, groin, buttocks, anus[,] or breast.
B. Criminal sexual contact of a minor in the second degree consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:
(2) on a child thirteen to eighteen years of age when:
(a) the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit}.]
NMSA 1978, § 30-9-13 (2003). Defendant was convicted of CSCM with respect to A.S., who testified that he kissed her “[o]n the breast}].” Defendant argues that because A.S. testified on cross-examination that he had not touched her anywhere that would be covered by a bikini, there was insufficient evidence that he had criminal sexual contact with the unclothed intimate parts of a minor. We note that CSCM also may be committed over clothes, although here, Defendant was charged with the offense of touching unclothed intimate parts. Section 30-9-13(A). A.S. did testify at trial that Defendant had not touched her anywhere that would be covered by a bikini. However, she also testified that he kissed her “[o]n the breast}].” “Contrary evidence supporting acquittal does notprovide a basis for reversal because the jury is free to reject [a witness’s] version of the facts.” State v. Rojo,
{21} Defendant next argues that the CSCM statute is vague and he was therefore inadequately notified that there was no religious exception to the statute. Defendant claims that he was “not informed that CSCM would find him to have criminal intent to commit sexual contact and be a sex offender when he did not have sexual intent, but rather a religious one.” Defendant cites only Pierce for this proposition, which in fact held the opposite. “After reviewing the statutory provisions of our CSPM and CSCM statutes, we do notbelieve the [Ljegislature intended to adopt a requirement of specific sexual intent as an element of either statute.”
{22} Defendant’s final argument based on sufficiency of the evidence is that it was inconsistent that the jury found him guilty of CDM, but not CSCM, with respect to L.S., because the jury instructions for both required that the jury find that he touched L.S.’s breast. He maintains that if he was found not guilty of CSCM, it is impossible for him to be found guilty of the other.
{23} The CDM statute requires that “committing any act or omitting the performance of any duty, which act or omission causes or tends to cause or encourage the delinquency of any person under the age of eighteen years.” NMSA 1978, § 30-6-3 (1990). The jury instruction defined the necessary elements of this particular instance of contributing to delinquency as permitting “L.S.[] to take her clothes off and lay naked with him and touched her unclothed intimate part, to wit: breast, with a part or parts of his body [.]” L.S. testified that Defendant did not touch her breast.
{24} We reiterate that “[cjontrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [a witness’s] version of the facts.” Rojo,
{25} L.S. testified that, while she was unclothed and in bed next to the unclothed Defendant, he put his chest on her chest below her breast, he embraced her by putting his arm on her back as they lay on their sides, and he laid his head and hand on her heart. She stated that there was distance between them at first, but then he held her closer. She could not remember if they had been “skin-to-skin.” We conclude that it is possible that a rational factfinder could find from the circumstances L.S. described- — close proximity, lack of clothing, and touching of various areas of her chest — that Defendant touched her unclothed breast.
{26} The fact that the jury did not convict Defendant of CSCM does not matter. In a case where a defendant was similarly convicted on a CDM charge, but acquitted on an assault charge for the same behavior, this Court has stated that “[f]or its acquittal . . . , the jury is answerable only to conscience. The verdict of acquittal is beyond our control. Our business is to review the verdict of conviction.” State v. Leyba,
E. Prosecutorial Misconduct
{27} Although the brief-in-chief headings include one for a “prosecutorial misconduct” argument, no material follows the heading, and we disregard the issue as it is not raised on appeal.
F. It Was Not Ineffective Assistance that Defendant’s Counsel Did Not Raise RFRA at Trial
{28} Defendant next claims- that it constituted ineffective assistance by his counsel to fail to assert a defense based specifically on RFRA, NMSA 1978, § 28-22-3 (2000). Defendant claims that because religion was a key aspect of his entire defense, his counsel could have only omitted mention of RFRA in error. The State argues that Defendant fails to show how the merits of a RFRA argument would have been relevant at trial and that he had no religious defense available and therefore was not prejitdiced by the lack of mention of RFRA. At trial, Defendant’s counsel frequently raised his religion as a defense, particularly to the unlawfulness of his behavior. We note that this Court rejected Defendant’s previous arguments above that used religious purpose to justify unlawfulness with regard to jury instructions, statutory vagueness, and mistake of law.
{29} “The standard of review for claims of ineffective assistance of counsel is de novo.” State v. Boergadine,
{30} “[The defendant has the burden of showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different.” Harrison,
A government agency shall not restrict a person’s free exercise of religion unless:
A. the restriction is in the form of a rule of general applicability and does'not directly discriminate against religion or among religions; and
B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
Section 28-22-3. “ ‘[F]ree exercise of religion’ means an act or a refusal to act that is substantially motivated by religious belief}.]” NMSA 1978, § 28-22-2(A) (2000). On appeal, neither party relies on New Mexico cases interpreting RFRA. Both cite to federal cases interpreting the federal RFRA. Defendant specifically claims that “[i]t is presumed the [f]ederal RFRA is a guideline.” We note that the federal RFRA and the New Mexico statute differ and any guidance from the federal statute is misplaced.
{31} Defendant focuses on his claim that the least restrictive enforcement of the law would have allowed him to present a religious exception to the CSCM and CDM statutes to the jury in line with his claim that his religious purpose prevented him from forming the requisite intent, or otherwise excused his actions. This argument echoes his earlier claims that the law permits a religious exception to the general CSM statute, which we dealt with above.
{32} A law is generally applicable “when it does not impose burdens on select groups.” Elane Photography, LLC v. Willock,
{33} Further, protecting minors from criminal sexual contact and delinquency is a compelling state interest. See Oldfield v. Benavidez,
{34} In addition, the statutes are the least restrictive method of achieving the government’s goal of protecting children by punishing their abusers. The “least restrictive” factor does not permit a defendant to present instructions to the jury on an incorrect religious exception to intent. As we stated above, the Supreme Court has stated: “[W]e do not believe the [Ljegislature intended to adopt a requirement of specific sexual intent as an element of either statute.” Pierce, 1990-NMSC-49, ¶ 2. Therefore, to the extent that Defendant argues that there is a religious exception to intent, showing that he had a religious intent does not negate any element of the crimes, or contribute to an argument that the statutes are not the least restrictive means for achieving the government’s goal.
{35} The CSCM and CDM statutes are laws of general applicability that do not directly discriminate against or among religions, further the compelling governmental interest of protecting minors from sexual abuse and delinquency, and are the least restrictive means of doing so. We conclude that Defendant’s RFRA argument is without merit, and his counsel’s tactical decision to not raise RFRA as part of his other religious argument did ' not constitute ineffective assistance by his counsel.
G. ThereWasNoErrorandThereforeNo Cumulative Error
{36} Defendant finally claims that cumulative error deprived him of a fair trial. “The doctrine of cumulative error requires reversal when a series of lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial that the defendant was deprived of the constitutional right to a fair trial.” State v. Duffy,
{37} Here, we have found no error in any of the district court’s decisions thatDefendant challenges. When there is no error, “there is no cumulative error.” State v. Aragon,
III. CONCLUSION
{38} We hold there was no error in the remaining claims raised by Defendant on appeal. We affirm his convictions.
{39} IT IS SO ORDERED.
WE CONCUR:
Notes
The federal RFRA sought “to restore the compelling interest test as set forth in Sherbert v. Verner,