{1} Justo Ruiz (Defendant) appeals multiple convictions for criminal sexual penetration of a minor (CSPM) and criminal sexual contact with a minor (CSCM). He raises eight issues challenging (1) the denial of a motion to recuse; (2) the procedure utilized by the district court in order to assess the admissibility of the victim’s testimony; (3) the admission of evidence of prior bad acts; (4) the admission of hearsay statements by the victim; (5) the exclusion of a demonstrative aid; (6) the exclusion of a character witness for the defense; (7) the admission of the testimony of a “surprise” rebuttal witness; and (8) the refusal of a proposed jury instruction concerning a viewing of the scene. We reject Defendant’s assertions of error and, therefore, affirm.
I. BACKGROUND
{2} Defendant’s convictions stem from a series of incidents that occurred between November 1, 1995 and January 31, 1998. Throughout that time frame, the victim (S.G.) was a friend of one of Defendant’s daughters and she frequently visited the Ruiz household.
{3} In July of 1998, Officer Stan Mascarenas contacted S.G.’s mother. He indicated that Defendant’s eldest daughter, Lupita, claimed to have witnessed an incident in which Defendant looked between S.G.’s legs. A safehouse interview was scheduled several days later. In the interim, S.G.’s mother repeatedly questioned S.G. in an effort to
{4} In light of S.G.’s allegations, Defendant was charged with numerous counts of CSPM and CSCM. These charges were combined with a number of additional counts arising out of Defendant’s alleged misconduct with two other child victims and tried to a jury in December of 1999. Although the jury returned a number of guilty verdicts, Defendant’s convictions were reversed on grounds that the counts associated with different victims were improperly tried in a single proceeding, rather than severed.
{5} On remand, Defendant was charged with two counts of CSCM and three counts of CSPM based exclusively on S.G.’s allegations. Prior to trial, Defendant filed two related motions. In the first motion, Defendant urged the district judge to recuse himself based on certain expressions of personal opinion that had been articulated at the sentencing heаring in the course of the first trial. In the second motion, Defendant sought a ruling on the admissibility of S.G.’s testimony, arguing that suggestive and/or coercive interview techniques had so severely compromised her credibility that she should be barred from appearing as a witness. Both motions were denied.
{6} The prosecution’s key witness was S.G., who testified that Defendant had begun touching her when she was in the third grade. The touching later progressed to penetration. S.G. also testified that Defendant would cause her to touch him and to perform fellatio. S.G. indicated that this course of conduct continued throughout the fourth and fifth grades until she ceased visiting the Ruiz household.
{7} Defendant’s eldest daughter, Lupita, testified at trial as well. She described an incident in July 1997, where she witnessed Defendant touсhing S.G.’s vagina. Lupita explained that she told her mother about this incident a year later. Her mother then notified the authorities, triggering the official inquiry. Lupita further testified that she wrote about the incident in her diary, which her mother later turned over to investigating officers.
{8} Among other witnesses, the State also called S.G.’s mother. She described her efforts to learn what, if anything, had happened to S.G. at the Ruiz household. She also testified to warning signs that she had missed over the years, including questions and/or comments that S.G. had made, suggesting that she had been the victim of sexual assaults.
{9} Finally, the State called Dr. Cheryl Whitman, a physician who had conducted a sexual assault examination in this case. She testified that the exam revealed two partial transections of the hymen and the hymenal opening was abnormally large for a girl of S.G.’s age. Dr. Whitman opined that these conditions were consistent with sexual abuse, although she acknowledged that her findings could not be characterized as conclusive.
{10} The theory of the defense focused on credibility. Although Defendant’s character witness was not permitted to describe his reputation for truthfulness, Defendant was permitted to call a forensic psychologist, Dr. Ned Siegel, who opined that Defendant did not fit the standard profile for pedophilia. Defendant also called two expert witnesses to attack S.G.’s credibility. One of the witnesses, Dr. Charles Glass, testified that, in light of S.G.’s personality type, she would be highly susceptible to suggestion. The other witness, Dr. Phillip Esplín, identified suggestive interview techniques and described the negative impact of such techniques on the reliability of sexual abuse reporting. In response to a series of hypothetical questions, Dr. Esplín opined that the repetitive questioning to which S.G. was subjected, as well as the relative lack of specificity and the increasing gravity of her allegations, over time gave rise to concerns about false memories, which could then result in false accusations. Over Defendant’s objection, the State was permitted to call an expert witness in rebuttal, Dr. Michael Jepsen, who testified that it was unlikely that the sort of questioning
{11} Upon Defendant’s motion, the jury was also transported to the Ruiz home to view the scene. After the viewing, Defendant requested an instruction, clarifying that the jurors should not assume that the furnishings that they saw had been in the same locations as they had been at the time of the alleged sexual assaults. The requested instruction was denied.
{12} At the conclusion of the four-day trial, the jury deliberated briefly before returning guilty verdicts on all counts. Defendant was sentenced to sixty years. This appeal followed.
II. DISCUSSION
A. Recusal
{13} Defendant contends that the district court erred in denying his motion to recuse. We review the district court’s decision for abuse of discretion. See State v. Cherryhomes,
{14} Defendant asserts that the district judge should not have presided over the second trial because he expressed a bias in the course of his remarks at the sentencing hearing, which followed the first trial. Specifically, the judge described his historical experiences dealing with allegations of sexual abuse and his efforts over the years to develop a sense about the veracity of such allegations. He then stated that, in light of this backdrop of experience, he thought that S.G. and the other victims involved in the first trial were being truthful and he believed that Defendant had sexually abused the victims.
{15} “In order to require recusal, bias must be of a personal nature against the party seeking recusal.” State v. Hernandez,
{16} In satisfaction of thе extrajudicial source requirement, Defendant relies upon the district judge’s comments concerning his training and experiences in dealing with cases involving allegations of sexual abuse. However, these are not extrajudicial sources. As we have previously observed, “members of ... all courts ... are human beings. They cannot avoid having histories or opinions; indeed, they may well have been selected for their offices in part on that basis. Recognition of this reality counsels us against requiring that every decisionmaker start with a clean slate.” Las Cruces Prof'l Fire Fighters v. City of Las Cruces,
{17} Nor does the judge’s comments “stem from ... some basis other than what [he] learned from his participation in the case.” United Nuclear Corp.,
{18} Our reported decisions indicate that, in cases such as this where a new trial is conducted on remand, “whether the original judge would reasonably be expected ... to have substantial difficulty in putting out of his or her mind previоusly-expressed views or findings,” is to be taken into consideration. State v. Ricky G.,
B. Assessment of Admissibility of Testimony of S.G.
{20} Defendant contends that the district court applied the wrong legal standard when assessing the admissibility of S.G.’s testimony. We apply de novo review. See State v. Torres,
{21} Prior to trial, Defendant filed a motion seeking to exclude S.G.’s testimony on the theory that suggestive and/or coercive interview techniques had so severely undermined the reliability of her memories that she should be prohibited from testifying. Defendant, therefore, sought a “taint” hearing pursuant to a novel procedure employed in New Jersey as set forth in the case of State v. Michaels,
{22} On appeal, Defendant contends that the district court erred in failing to strictly adhere to the approach outlined in Michaels. We disagree. Although New Mexico’s courts have recognized the dangers associated with suggestive interviewing techniques in cases of this nature, see In re Troy P.,
{23} In New Mexico, we apply a general presumption that all pеrsons are competent to appear as witnesses. See Rule 11-601 NMRA. When an individual’s competency to testify is challenged, the district courts are merely required to conduct an inquiry in order to ensure that he or she meets a minimum standard, such that a reasonable person could “put any credence in their testimony.” State v. Hueglin,
{24} Our analysis of the record, transcript, and briefs indicates that the district judge proceeded in an appropriate manner. As previously stated, a hearing was conducted at which Defendant was permitted to present extensive expert testimony identifying potential weaknesses in S.G.’s capacity to credibly testify. Dr. Esplín concluded that there was a substantial likelihood that some of the information obtained from S.G. was not reliable, and Dr. Glass opined that S.G.’s memories were not necessarily valid. In light of this testimony, the district judge acknowledged a “possibility that taint occurred.” However, the district court did not find the experts’ testimonies, or the underlying facts and circumstances, to so severely undermine S.G.’s credibility as to warrant the exclusion of her testimony. Although Defendant does not challenge the propriety of this determination as such, we note no abuse of discretion.
{25} Defendant has challenged the State’s reliance upon our competency jurisprudence as a basis for affirmance on grounds that this legal theory was not specifically advanced at the district court level. However, we note that the applicability of the Michaels approach was the subject of debate below and, as such, the broader procedural issue was clearly presented for the district court’s consideration. Insofar as questions of procedure are quintessentially legal in nature, we reject Defendant’s suggestion that reliance upon our competency jurisprudence implicates a fact-dependent inquiry, which cannot properly be considered in the first instance on appeal. See State v. Franks,
C. Evidence of Prior Bad Acts
{26} Defendant contends that highly prejudicial evidence of uncharged misconduct was improperly presented to the jury. We review the admission or exclusion of evidence of this nature for abuse of discretion. State v. Otto,
1. Lupita Ruiz’s Testimony
{27} Defendant’s eldest daughter, Lupita, described an incident in July 1997, wherein she witnessed Defendant touching S.G.’s genital area. Defendant contends that this testimony constitutes evidence of prior bad acts and, as such, it should have been excluded pursuant to Rule 11-404(B) NMRA. We disagree.
{28} Rule 11-404(B) provides in relevant part: “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The inclusion of the word “other” connotes crimes, wrongs, or acts that are not the subject of the proceedings — viz—uncharged misconduct.
{30} In his briefs to this Court, Defendant urges this Court to reject the foregoing analysis on grounds that the arguments were not framed in this manner below. Although the parties focused on Rule 11-404(B) and the historical “lewd and lascivious disposition” exception below, our review of the record reveals that the State also argued that the challenged evidence provided support for the single count of CSCM charged for the 1997 calendar year. As a result, we do not hesitate to rely on this position as grounds for affirmance.
2. Cindy Ruiz’s Testimony
{31} At trial, the State was permitted to read the prior testimony of Defendant’s ex-wife, Cindy Ruiz, into evidence. In pertinent part, this testimony described a specific incident that occurred when S.G. was spending the night as a guest. Believing that Defendant was taking an unusually long time to wish the children good night, she looked into their room and observed Defendant crouching beside S.G.’s bed, stroking her forehead and speaking softly to her.
{32} Defendant objected to the admission of this testimony on grounds that it was irrelevant and it served only to prejudice Defendant by demonstrating that his ex-wife was willing to testify against him. He renews these arguments on appeal, adding that the incident could be classified as a prior bad act subject to exclusion under Rule 11-404(B). We are unpersuaded.
{33} As the State argued below, the occurrence described by Cindy tended to establish that Defendant behaved in an unusual man-
ner, displaying a pеculiar form and degree of attention toward S.G. The challenged testimony, therefore, tended to rebut two arguments advanced by the defense that (1) Defendant could not have committed the alleged assaults because they occurred in a very small house and the other occupants did not witness anything suspicious; and (2) Defendant could not have committed the alleged assaults because he did not pay special attention to S.G., or otherwise endeavor to “groom” her for sexual abuse in the typical manner of pedophiles. As a result, we conclude that Cindy’s testimony was both relevant and admissible for purposes apart from the prohibited realm of prior bad acts evidence. To the extent that Cindy’s willingness to testify against Dеfendant prejudiced him, the district court acted well within its discretion in determining that the probative value of her testimony outweighed its prejudicial effect. See Rule 11-403 NMRA; State v. Chamberlain,
D. Hearsay
{34} Defendant also argues that the district court erred by admitting two out-of-court statements that S.G. made to her mother, contending that this evidence constituted impermissible hearsay. Generally speaking, we review evidentiary rulings, including the admission of hearsay, for abuse of discretion. See State v. Lopez,
{35} The challenged statements were made by S.G. to her mother sometime in the winter of 1997 or 1998, and evinced concern about pregnancy and/or rape. The State first attempted to introduce evidence of these statements through the testimony of S.G.’s mother on direct examination. Defendant raised a hearsay objection, which the State disputed. After a bench conference, the district court ruled that the statements might be introduced if S.G. was recalled to testify about them. The State complied. On redirect examination, S.G. was only able to
{36} As an initial matter, we must determine whеther the statements constitute hearsay. Hearsay is generally defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 11 — 801(C) NMRA. A statement which is not offered to prove the truth of the matter asserted does not fall within the scope of the general prohibition. Accordingly, a statement offered merely to prove that it was made, and not to prove truth, is characterized as a “verbal act” that is admissible irrespective of any limitations on hearsay testimony. See State v. Glen Slaughter & Assocs.,
{37} As previously noted, the primary theory of the defense was that S.G.’s allegations were the product of suggestive and/or coercive interview techniques. Defendant argued that S.G.’s memories of assaultive episodes were false, having been contrived in the course of the investigatory process. As partial support for this theory, Defendant focused the jury’s attention on S.G.’s failure to report the abuse at any time prior to the police investigation. In light of the defense strategy, the challenged statements could properly have been admitted as disclosures. Insofar as Defendant made an issue of S.G.’s failure to report, the fact that the statements were mаde had probative value independent of truth. This brings them within the verbal acts exception. Insofar as Defendant developed the theory of recent fabrication and/or improper influence, the fact that the statements were made prior to the criminal investigation also tended to rebut this theory. This brings the statements within the exception articulated in Rule ll-801(D)(l)(b). Accordingly, we conclude that the statements could properly have been admitted as non-hearsay.
{38} We acknowledge that the district court appears to have admitted the statements on a different legal theory. As a general rule, however, we will uphold the decision of a district court if it is right for any reason. See State v. Beachum,
E. Demonstrative Evidence
{39} Defendant contends that the district court erred in prohibiting him from showing the jury photographic images from a medical treatise, which he sought to utilize in the course of cross-examining a witness for the prosecution. We review for abuse of discretion. See State v. Worley,
{40} The images in question related to the various procedures that may be utilized in order to examine juvenile sexual assault victims. As mentioned above, the State called Dr. Whitman to describe her findings. She testified that she had observed two partial transections of S.G.’s hymen, which are generally regarded as indicative of trauma consistent with sexual abuse. On cross-examination, Defendant sought to undermine the significance of these findings by highlighting shortcomings associated with the “frog leg”
{41} The Rules of Criminal Procedure provide that a defendant must disclose “books, papers, documents, [and] photographs,” which are in his possession and which he “intends to introduce in evidence at the trial[.]” Rule 5-502(A)(1) NMRA. Defendant contends that because he did not intend to introduce the images from the medical treatise as exhibits, they were not subject to the disclosure requirement. As authority for this position, Defendant relies upon his characterization of the imagеs as “demonstrative evidence.” Insofar as the term “demonstrative evidence” encompasses all material that is “addressed directly to the senses of the court or jury ... as where various things are exhibited in open court,” Defendant’s characterization is probably accurate. State v. Tollardo,
{42} Defendant may rely upon the distinction between the use of dеmonstrative material as an aid to cross-examination and the designation of such material as “evidence” that is fit for use as a formal exhibit. See State v. Gallegos,
{43} Our review of the transcript reveals that Defendant cross-examined Dr. Whitman very thoroughly on the various examination procedures and the danger of false findings of trauma where the subject is еxamined in the frog leg position alone. Although the images from the treatise might have bolstered Defendant’s argument, there can be no question that the weaknesses in Dr. Whitman’s approach and the inconclusive nature of her findings were conveyed to the jury through Dr. Whitman’s testimony. As a result, we cannot say that there is a reasonable possibility that the excluded images might have affected the jury’s verdict. See generally State v. Balderama,
F. Character Witness
{44} Dеfendant challenges the district court’s exclusion of character evidence that he sought to introduce through the testimony of a defense witness, Denise Kusel. We review the district court’s ruling for abuse of discretion. See State v. Ewing,
{45} Generally speaking, evidence of “a pertinent trait of character” of the accused in a criminal case may be introduced through reputation or opinion testimony. Rule 11-404(A)(1) NMRA; Rule 11-405(A) NMRA. Below, Defendant specifically stated that he sought to call Kusel to testify to Defendant’s “reputation for truth in the community.” The State objected on grounds that Defendant’s truthfulness was not a pertinent trait of charаcter and was not an issue, insofar as
{46} Below, Defendant argued that his character for truthfulness became a pertinent issue after one of his expert witnesses, Dr. Siegel, related the fact that Defendant had denied the charges. The district court rejected this argument on grounds that Dr. Siegel’s hearsay comment did not constitute substantive evidence. It merely described a portion of the basis for his opinions. We note that the comment was not offered for the truth of the matter asserted. Under such circumstances, the district court could reasonably have concluded that Dr. Siegel’s testimony did not render Defendant’s character for truthfulness a pertinent matter within the scope of Rule 11-404(A)(1).
{47} On appeal, Defendant has taken the position that Defendant’s character for truthfulness automatically became a “pertinent trait of character” when the jury was informed of the charges. Because this argument was not advanced below, it is not properly before us on appeal. See generally State v. Lucero,
{48} Finally, Defendant has suggested that Kusel should have been permitted to testify to other pertinent character traits apart from truthfulness. However, she was not offered for alternative purposes below. We, therefore, have no idea what other pertinent traits, if any, Kusel was competent to testify about. Absent an offer of proof, we are incapable of engaging in a reasoned analysis. See generally Rule 11-103(A)(2) NMRA; State v. Garcia,
G. Surprise Rebuttal Witness
{49} Defendant asserts that a surprise rebuttal witness for the State, Dr. Jepsen, was improperly permitted to testify at trial. Both the admission of rebuttal testimony and the election of remedies for discovery violations are within the discretion of the court. See State v. Simonson,
{50} In order to evaluate Defendant’s assertion of error, we must consider the following factors: (1) whether the State breached some duty, or intentionally deprived Defendant of evidence; (2) whether the evidence was material; (3) whether the non-disclosure of the evidence prejudiced Defendant; and (4) whether the district court cured the failure to timely disclose the evidence. State v. McDaniel,
{52} The second factor- — materiality—is established upon a showing that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” McDaniel,
{53} The third factor — prejudice—similarly depends upon an affirmative demonstration of harm. See id. ¶ 6. Although Defendant claims that the failure to timely disclose impeded his cross-examination of the witness, he has not shown how his cross-examination would have been improved by earlier disclosure, or how he would have prepared differently for trial. Moreover, our review of the record reveals that defense counsel’s cross-examination was clear, focused, and efficacious. As a result, Defendant has not made a showing of prejudice. See id. ¶ 15.
{54} The fourth and final factor — curative action — concerns the form of remedy, or sanction imposed by the district court in response to the untimely disclosure. The transcript indicates that the district court granted defense counsel “ample opportunity” to interview the witness before he testified, recessing for approximately an hour to that end. This appears to have been an appropriate response under the circumstances. See, e.g., State v. Padilla,
{55} In summary, Defendant had failed to demonstrate materiality, prejudice, or that the district court’s curative action was inadequate. We, therefore, reject his challenge to the admission of the testimony of the State’s rebuttal witness.
H. Jury Instruction
{56} Finally, Defendant contends that the district court erred in refusing to instruct the jury about alterations to the arrangement of furnishings in the Ruiz household. We review the matter de novo. See State v. Salazar,
{57} Defendant’s proposed instruction was as follows: “This morning you were provided with a jury view of the house. You should not assume that any of the furniture in the house or garage is the same as it was five to eight years ago, during the time period at issue in this case.” Through this instruction, Defendant sought to minimize the impact that a bed, positioned in the garage at the time of the viewing, might have had on the jurors.
{58} Defendant’s proposed instruction appears to be unique. The only legal basis advanced in its support is the use note prefacing the uniform jury instructions, which provides that the courts may give brief, impartiаl instructions for matters not otherwise specifically covered. We believe this is so generalized as to be unhelpful.
{59} By and large, jury instructions describe principles of law, such as the elements of offenses, burdens of proof, and presumptions for the benefit of the jury. Guidance is also provided with respect to other matters relating to the jury’s performance of its duties, such as providing parameters for the deliberative process itself. These generalizations illustrate the novelty of Defendant’s proposed instruction. Unlike the more common forms of jury instructions, Defendant’s proposed instruction is addressed to the evaluation of specific evidence. Such argument concerning the weight or inferences to be drawn from the еvidence is to be presented at trial. Usually, this is most appropriately and effectively accomplished in the course of opening and/or closing statements.
III. CONCLUSION
{60} For the foregoing reasons, we reject Defendant’s assertions of error, both individually and cumulatively. See generally State v. Fry,
{61} IT IS SO ORDERED.