State v. Jaure

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,219 5 GEORGE JAURE, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Thomas A. Rutledge, District Judge

9 Gary K. King, Attorney General 10 Ann M. Harvey, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.

1 {1} Defendant George Jaure appeals the jury’s verdict finding him guilty of 2 aggravated battery (deadly weapon). We affirm.

3 BACKGROUND 4 {2} Because the parties are familiar with the events in dispute, we review just the 5 basic facts before proceeding to our discussion. Defendant was charged with 6 aggravated battery (deadly weapon) and aggravated assault (deadly weapon) relating 7 to an altercation that occurred on August 16, 2009. In the early morning hours of that 8 day, Defendant, his brother Patrick Jaure, and a woman named Nina were at the home 9 of Janelle Villareal. Marissa Lopez, who lived across the street with her brother, 10 Hector Lopez (Lopez), and her mother, Elizabeth Lopez, was also there. While the 11 group was sitting outside on Villareal’s front steps, Lopez and his friends, Jose Rocha 12 and Oliver Santana, pulled into the driveway of the Lopez home. 13 {3} As Santana was pulling his truck out of the driveway, Defendant approached 14 the vehicle and asked if they had any cigarettes. Lopez, Rocha, and Santana said, 15 “no,” that they did not smoke. Words were exchanged. Defendant then reached into 16 the truck and punched Lopez. As Defendant was pulling his arm away, Lopez saw a 17 knife in Defendant’s hand. Lopez noticed that his lip was split and bleeding.

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1 {4} Elizabeth Lopez heard the commotion and came out of her house. She saw 2 Defendant holding a beer in one hand while waving a knife with the other. She said 3 she was calling the police. Defendant and his brother then returned to Villareal’s 4 house where they stayed until the police arrived. 5 {5} Carlsbad Police Officer Jeremy Bolduc responded to the scene and questioned 6 Lopez, Santana, Rocha, and a younger female. Lopez, Santana, and Rocha then left 7 for the hospital where Santana and Rocha each prepared sworn written statements on 8 a Carlsbad police form. At trial, both Santana and Rocha testified that they did not 9 remember the events of August 16, 2009. Further, they both stated that, for the most 10 part, they did not remember the information contained in their voluntary written 11 statements or the substance of the testimony they gave at the preliminary hearing. 12 {6} At the close of the State’s case, the defense moved for a directed verdict, which 13 the district court denied. The defense rested and did not call any witnesses. Following 14 deliberations, the jury returned a verdict of guilty of aggravated battery with a deadly 15 weapon. Defendant was sentenced to a term of three years for the aggravated battery, 16 and his sentence was enhanced by four years pursuant to the habitual offender statute, 17 NMSA 1978, § 31-18-17(B) (2003). This appeal followed. 18 DISCUSSION 19 {7} Defendant raises a myriad of issues and essentially makes eight arguments on 20 appeal. The first five can be summarized as matters involving the testimony of Oliver

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1 Santana and Jose Rocha. Defendant argues that: (1) the district court abused its 2 discretion by allowing the prosecutor to ask Santana and Rocha argumentative and 3 leading questions; (2) the district court committed plain error by allowing improper 4 questioning of Santana and Rocha; (3) the district court abused its discretion by 5 allowing Officer Bolduc to testify about statements made by Santana and Rocha 6 identifying Defendant as involved in the incident; (4) the district court committed 7 plain error when it admonished Rocha and determined that he would be treated as a 8 hostile witness; and (5) the combined effect of the improper rulings in 1-4, above, 9 deprived Defendant of a fair trial and of his right to confront his accusers. In addition, 10 Defendant contends that his confrontation rights were violated, there was insufficient 11 evidence to sustain his conviction, and the district court abused its discretion in 12 refusing to grant him a mistrial. We begin with the evidentiary issues and then turn 13 to Defendant’s remaining arguments. 14 The Evidentiary Issues 15 {8} As we have noted, Defendant raises several issues concerning the State’s 16 questioning of Santana and Rocha, the district court’s questioning and 17 “admonishment” of Rocha, and Officer Bolduc’s testimony regarding statements made 18 by Santana and Rocha identifying Defendant as being involved in the incident. To the 19 extent that the district court overruled defense counsel’s timely objections to the 20 State’s questions, we review those evidentiary rulings under an abuse of discretion

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1 standard. See State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 2 526, overruled on other grounds by State v. Swick, 2012-NMSC-018, 279 P.3d 747. 3 For those questions where defense counsel did not object, the issues are reviewed for 4 plain or fundamental error. State v. Abril, 2003-NMCA-111, ¶ 12, 134 N.M. 326, 76 5 P.3d 644, overruled on other grounds by State v. Torres, 2012-NMCA-026, 272 P.3d 6 689. The plain error doctrine applies only to evidentiary matters. See Rule 11-103(D) 7 NMRA; State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993). 8 Under a plain error analysis, we must have “grave doubts about the validity of the 9 verdict, due to an error that infects the fairness or integrity of the judicial proceeding.” 10 State v. Gutierrez, 2003-NMCA-077, ¶ 19, 133 N.M. 797, 70 P.3d 787. Further, we 11 will conclude that fundamental error has occurred “only if there has been a 12 miscarriage of justice, if the question of guilt is so doubtful that it would shock the 13 conscience to permit the conviction to stand, or if substantial justice has not been 14 done.” State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992). Finally, we 15 review the cumulative impact of the preserved and unpreserved errors for fundamental 16 error. State v. Wilson, 109 N.M. 541, 547, 787 P.2d 821, 827 (1990). 17 1. Oliver Santana 18 {9} There is no dispute that neither Santana nor Rocha were able to remember much 19 about the events of August 16, 2009. Santana remembered being with Lopez and 20 Rocha in his truck, being hit in the face by someone, and retaliating. However, he

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1 could not remember what precipitated the fight, who struck him, or what he had done 2 in retaliation. Santana testified that he did not remember seeing Defendant on the 3 night of the incident, and he was unable to identify Defendant at trial. 4 {10} On direct examination, Santana admitted to writing and signing a statement that 5 he gave to the police about what happened on August 16, 2009. Although Santana 6 acknowledged his signature and identified the writing as his, he said he could not 7 really remember anything about the events in the statement. The prosecutor 8 questioned Santana about his memory and asked if he had written down what had 9 happened accurately in the statement he gave to police. Santana responded that he 10 could not tell if what he wrote was accurate because it was too long ago. Throughout 11 his testimony, Santana continued to insist that he did not remember anything that he 12 wrote in the statement. 13 {11} Defendant argues that the questions the prosecutor asked of Santana were 14 impermissibly leading and argumentative. We are not persuaded. As an initial matter, 15 we note that Defendant cites to only one leading question to Santana, and he provides 16 no analysis as to why the district court abused its discretion. Specifically, after 17 Santana said that reading the statement did not help him remember the events of 18 August 16, the prosecutor asked Santana if he had a learning disability. Santana 19 answered that he might have dyslexia, and the following exchange then took place,

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1 which ended with defense counsel objecting on the basis that the questions were 2 leading:

3 Prosecutor: When you read that statement, does it make sense to you? Does 4 it flow logically? Are you, like, telling a story?

5 Santana: Um, no, not really.

6 Prosecutor: Not really. You don’t start out with you saying what happened on 7 a specific date, at a specific time?

8 {12} A discussion of abuse of discretion for allowing the prosecutor’s questions 9 above to Santana is needless. Defendant does not point to how either of these 10 questions suggested answers to Santana, much less how the district court’s ruling was 11 erroneous. We therefore do not consider it further. 12 {13} Defendant also does not explain how the district court’s failure to sustain 13 objections to some arguably argumentative questions was an abuse of discretion. 14 Defendant points to the four instances in which defense counsel objected to the 15 prosecutor’s questions or statements as argumentative. The first three were objections 16 to: (1) the prosecutor’s questions regarding Santana’s memory, (2) the prosecutor’s 17 question asking Santana if he had written down why Lopez had a bloody lip, and (3) 18 the prosecutor’s question regarding how long after the incident Santana had written 19 the report and how long after the incident he had gone to the hospital. We fail to 20 see—and Defendant provides no explanation—how the district court acted beyond the 21 bounds of reason by allowing the questions and statements.

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1 {14} Defendant also contends that the district court abused its discretion when it 2 allowed the prosecutor to ask Santana whether he made it a habit to lie to police. The 3 district court overruled defense counsel’s objection that the question was 4 argumentative. Defendant’s reliance on United States v. Micklus, 581 F.2d 612, 617 5 n.3 (7th Cir. 1978), is both curious and unavailing. In that case, the defendant claimed 6 that he was denied due process by prejudicial comments made by the prosecutor. Id. 7 at 617. The Seventh Circuit listed several comments and questions by the prosecutor 8 that essentially accused the witnesses of lying; however, the court found no 9 misconduct warranting reversal of the defendant’s conviction. Id. We, too, find no 10 misconduct here. In any event, it is entirely possible that the prosecutor in this case 11 was not accusing Santana of lying, but was merely asking him if he ever lied to police 12 to determine whether the statements he made on the police form were likely truthful. 13 The district court did not abuse its discretion, and there was no plain or fundamental 14 error with regard to the prosecutor’s questioning of Santana. 15 2. Jose Rocha 16 {15} Jose Rocha also testified that he had no memory of the events of August 16, 17 2009, and that he could not recall writing the statement or what he wrote. In fact, 18 Rocha testified that he did not even recognize Defendant. When asked why he would 19 put the name of someone he did not know on his statement, Rocha replied, “I don’t 20 know.” Rocha persisted in testifying that he did not remember anything and that he

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1 did not know who Patrick Jaure was, that he did not remember talking to the police 2 on August 16, and that he did not remember who gave him the police department 3 form, although he did say that there were male and female officers involved. When 4 he said he did not know who gave him the form, the prosecutor asked the district court 5 to direct Rocha to answer. The court reminded Rocha that he was under oath to tell 6 the truth and directed him to answer the questions. Rocha then stated that he spoke 7 to male and female officers at the hospital and that Lopez and Santana were at the 8 hospital. But he then immediately had a lapse of memory again. When asked, Rocha 9 could not remember why he was at the hospital, who had driven to the hospital, or 10 whether Santana had a truck. At that point, the district court declared Rocha a hostile 11 witness, and the prosecutor was permitted to ask leading questions. 12 {16} The prosecutor proceeded to ask Rocha a series of leading questions, including 13 whether Rocha, Lopez, and Santana were backing out of Lopez’s driveway when 14 Defendant approached and asked for a cigarette; whether he wrote down that he told 15 Defendant he did not smoke; whether he wrote that Nina accused Lopez of stealing 16 her cigarettes; whether he wrote that Defendant got mad and struck Lopez in the 17 mouth with a knife; whether he wrote that Patrick Jaure punched Lopez also; and 18 whether he wrote that Patrick Jaure then hit Santana. To each question, Rocha 19 testified that he did not remember.

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1 {17} As a preliminary matter, although Defendant contends that Rocha “was asked 2 some leading questions prior to the court’s declaration [that he was a hostile witness],” 3 he does not point to what those questions were nor does he discuss how allowing them 4 constituted an abuse of discretion or amounted to plain or fundamental error. To the 5 extent that Defendant argues that the district court erroneously allowed the prosecutor 6 to ask Rocha leading questions after Rocha was declared a hostile witness, we 7 disagree. First, we observe that defense counsel did not object to the questions 8 because they were leading, but rather on the ground that no adequate foundation had 9 been laid for them. Defendant makes no argument as to that objection on appeal. 10 Further, we are not persuaded by Defendant’s argument that the prosecutor improperly 11 used leading questions because Rocha “was not acting as a ‘hostile’ or ‘adverse’ 12 witness.” We note that the credibility of a witness may be attacked by any party, 13 including the party calling the witness. Rule 11-607 NMRA. Prior inconsistent 14 statements may be used to impeach the credibility of a witness. Rule 11-613 NMRA. 15 Additionally, Rule 11-611(C) NMRA of the Rules of Evidence reads:

16 Leading questions should not be used on direct examination except as 17 necessary to develop the witness’s testimony. Ordinarily, the court 18 should allow leading questions

19 (1) on cross-examination, and 20 (2) when a party calls a hostile witness, an adverse party, or a 21 witness identified with an adverse party.

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1 We conclude that where, as here, a witness deliberately seeks to avoid testifying by 2 claiming loss of memory in response to specific questions, the district court’s 3 declaration of Rocha as a hostile witness, and the resulting use of leading questions, 4 was not clearly untenable or clearly against reason and our rules of evidence. 5 {18} Defendant’s reliance on State v. Orona, 92 N.M. 450, 454, 589 P.2d 1041, 1045 6 (1979), is misplaced. In Orona, our Supreme Court concluded that, under Rule 11- 7 611(C), “[d]eveloping testimony by the use of leading questions must be distinguished 8 from substituting the words of the prosecutor for the testimony of the witness.” 9 Orona, 92 N.M. at 454, 589 P.2d at 1045. The Court determined that, in that case, the 10 district court “abused its discretion in such a manner as to violate principles of 11 fundamental fairness” after it permitted every word describing the alleged offense to 12 come from the prosecuting attorney, rather than from the witness. Id. There, the 13 witness was allowed to read her statement, and the prosecutor, without asking if her 14 memory had been refreshed, proceeded to lead the witness as to the contents of the 15 statement. Id. Over defendant’s objection, the district court allowed the “direct 16 examination [to be] continued with the prosecutor graphically describing sexual acts 17 of [the] defendant by way of leading questions, to each of which the witness gave a 18 simple answer of ‘yes.’ ” Id. This case is factually distinguishable from Orona. 19 {19} Unlike Orona, the prosecutor here showed Rocha his statement and asked 20 several times if it refreshed his memory. Rocha repeatedly claimed he did not

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1 remember anything, including that he wrote the statement. In addition, he testified 2 that he did not recognize Defendant, even though he had written Defendant’s 3 nickname, “Chucky,” on the police form; that he did not know Patrick Jaure, even 4 though he had written his name down as well; that he did not remember talking to the 5 police on August 16; that he did not remember why he been at the hospital; and that 6 he did not remember if Santana had a truck. Our review of Rocha’s testimony 7 establishes that his selective loss of memory was inherently incredible and amounted 8 to an implied denial of the facts contained in his statement. On that basis, Rocha’s 9 prior statements were properly admitted through the use of leading questions, as prior 10 inconsistent statements. Accordingly, we conclude that the prosecutor’s leading 11 questions did not constitute fundamental error. 12 {20} As with the questions directed to Santana, Defendant also argues that “[b]eyond 13 being leading, however, the questions [to Rocha] were unnecessarily argumentative 14 and repetitive.” Defendant refers us to only one question—asking Rocha, “Is there 15 anything that you do know?” Again, Defendant does not explain how the district 16 court’s failure to sustain the objection to this question was an abuse of discretion. 17 “We will not review unclear arguments, or guess at what [a party’s] arguments might 18 be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 19 P.3d 1076. We conclude that the district court did not abuse its discretion, and there

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1 was no plain or fundamental error with regard to the prosecutor’s questioning of 2 Rocha. 3 3. The District Court’s Questions, Admonishment, and Statement to Rocha 4 {21} As we have noted above, during the course of his testimony, Rocha repeatedly 5 said that he did not remember anything about the events of August 16, 2009, including 6 who Defendant was. Although Rocha finally said that he was given the Carlsbad 7 Police Department form by a male and a female, he did not remember who they were. 8 The prosecutor asked how Rocha knew “if they’re male and female,” and Rocha again 9 said he did not know. The prosecutor asked the court to direct Rocha to answer, and 10 the district court said, “Mr. Rocha, you’re under oath to tell the truth so answer the 11 questions.” 12 {22} Rocha then continued to answer the prosecutor’s questions by saying that he 13 could not recall or remember anything. After a bench conference, the district court 14 declared Rocha to be a hostile witness and said, “Counsel, the court is going to find 15 that Mr. Rocha is a hostile witness and you may proceed accordingly.” At the end of 16 his testimony and after the prosecutor and defense had asked their questions, the 17 district court asked Rocha if he knew Patrick Jaure. Rocha said he did not, and the 18 district court then asked, “Then how do you know that you’ve had no contact with 19 him?”

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1 {23} It is these three issues—the district court’s admonishment to Rocha that he was 2 under oath to tell that truth, the determination that Rocha was a hostile witness, and 3 the two questions posed to Rocha by the court—that Defendant contends amount to 4 plain or fundamental error and deprived him of a fair trial. We are not persuaded, and 5 Defendant has failed to show how these isolated instances leave us with “grave doubts 6 about the validity of the verdict, due to an error that infects the fairness or integrity of 7 the judicial proceeding.” Gutierrez, 2003-NMCA-077, ¶ 19. 8 {24} Further, Defendant’s reliance on State v. Paiz, 1999-NMCA-104, 127 N.M. 9 776, 987 P.2d 1163, is unavailing. In Paiz, this Court noted that under Rule 11- 10 611(A), a trial judge may question witnesses to clarify testimony or bring out all of 11 the facts. Paiz, 1999-NMCA-104, ¶ 17. However, a district court’s comments and 12 questions implicate a defendant’s right to fair trial and, thus, may rise to the level of 13 plain or fundamental error. Id. We concluded that the trial judge in that case abused 14 her discretion because she had extensively questioned a witness, made remarks that 15 were improper, improperly limited defense counsel’s cross-examination, and made 16 impermissible comments on the evidence. Id. ¶¶ 19-20. Defendant here concedes that 17 a single question or comment is unlikely to rise to a level that exceeds a judge’s 18 discretion under Rule 11-611(A). He nevertheless challenges the district court’s 19 declaration of Rocha as a hostile witness and the court’s two questions asking whether 20 Rocha knew who Patrick Jaure was. We disagree. The district court’s two questions

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1 here were clearly not extensive or persistent, nor were they calculated to give the 2 impression that the judge favored one side over the other, as was the case in Paiz. We 3 further conclude that even coupling the two questions with the judge’s declaration at 4 another point in the testimony that Rocha was a hostile witness does not run afoul of 5 Rule 11-614 NMRA. 6 {25} Likewise, Defendant’s citation to State v. Sanchez, 112 N.M. 59, 811 P.2d 92 7 (Ct. App. 1991), is similarly misplaced. In Sanchez, we held that the trial judge’s 8 statement in front of the jury that the witness was “unavailable” and “because of 9 purported lack of memory, [his testimony was] worthless,” was a prejudicial comment 10 on the evidence. Id. at 61, 811 P.2d at 94. In contrast, under the facts before us, we 11 cannot say that the district court’s questions or statements in this case amounted to a 12 comment concerning the weight of the evidence or the credibility of the witness. 13 Accordingly, the court’s comments do not rise to the level of plain or fundamental 14 error. 15 4. Officer Bolduc’s Testimony 16 {26} Defendant contends that the district court abused its discretion by permitting 17 Officer Bolduc to testify as to statements made by Santana and Rocha on the night of 18 the incident. Officer Bolduc was the State’s final witness. He identified the 19 statements that he had taken from Santana and Rocha and testified that he had spoken

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1 with them at the hospital. The following exchange, which is the basis of Defendant’s 2 argument here, then took place:

3 Prosecutor: Did either of them, while you were out at the scene, 4 did either of them identify any other person that 5 might have been involved in this incident to you?

6 Officer Bolduc: Yes. 7 At this point, defense counsel’s objected and said that he was “concerned . . . that this 8 is just a way of putting into sworn testimony form, through the officer who did not 9 make the statement, something that was stated by these individuals.” As an initial 10 matter, we note that Officer Bolduc only testified as to statements of identification. 11 In particular, he testified that Santana, Rocha, and Lopez all identified both Patrick 12 Jaure and Defendant as being involved. It is well established that out-of-court 13 statements of identification are non-hearsay under Rule 11-801(D)(1)(c) NMRA. 14 Furthermore, the jury had direct testimony from two eyewitnesses, Hector Lopez and 15 Elizabeth Lopez, that support its finding that Defendant was involved in the incident 16 on August 16, 2009. Accordingly, we conclude that the district court did not commit 17 reversible error or abuse its discretion. 18 5. The Combined Effects of the Rulings 19 {27} Because we have concluded that the district court’s rulings as to the testimony 20 of Santana, Rocha, and Officer Bolduc were not in error, we necessarily conclude that, 21 regardless of whether they are considered individually or cumulatively, there was no

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1 abuse of discretion or plain or fundamental error with respect to the court’s actions. 2 Moreover, to the extent that some testimony was erroneously admitted, our Supreme 3 Court has previously said that “not all erroneously admitted evidence necessitates 4 reversal.” State v. Woodward, 121 N.M. 1, 9, 908 P.2d 231, 239 (1995), abrogated 5 on other grounds as recognized by State v. Granillo-Macias, 2008-NMCA-021, 143 6 N.M. 455, 176 P.3d 1187. The error must be prejudicial. See id. at 9-10, 908 P.2d at 7 239-40. “In the absence of prejudice, there is no reversible error.” State v. Hoxsie, 8 101 N.M. 7, 10, 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos 9 v. Citizens Ins. Agency, 108 N.M. 722, 779 P.2d 99 (1989). In this case, Defendant 10 has not established any prejudice requiring reversal. 11 {28} Finally, to the extent that Defendant argues that Santana and Rocha’s “written 12 statements to police on the night of the incident unquestionably constitute hearsay,” 13 we do not disagree. However, Defendant does not point to anywhere in the 14 record—and we are unable to locate—where the written statements themselves were 15 admitted into evidence. “Matters not of record present no issue for review.” State v. 16 Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296. We therefore do not 17 address this argument. 18 Confrontation Clause 19 {29} In addition to the evidentiary issues, Defendant asserts that his confrontation 20 rights were violated based on the State’s discussion of the contents of Santana and

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1 Rocha’s written statements during the questioning of those two witnesses and Officer 2 Bolduc. Specifically, Defendant contends that because Santana and Rocha could not 3 remember anything, they were “unavailable” for purposes of the confrontation clause, 4 and the substance of their statements should therefore not have been placed before the 5 jury. We disagree that Santana and Rocha were “unavailable” and that Defendant’s 6 confrontation rights were violated. 7 {30} Defendant concedes that defense counsel did not object to the State’s 8 questioning of Santana and Rocha on confrontation grounds and that, therefore, his 9 conviction will be reversed only if the error is fundamental. See State v. Martinez, 10 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (reviewing an unpreserved 11 Confrontation Clause argument for fundamental error). Accordingly, Defendant must 12 demonstrate that he is either indisputably innocent or that the error in permitting the 13 questioning of Santana, Rocha, and Bolduc makes his conviction fundamentally unfair 14 and a miscarriage of justice. See State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 15 621, 92 P.3d 633 (providing that fundamental error only occurs in “cases with 16 defendants who are indisputably innocent, and cases in which a mistake in the process 17 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the 18 accused”). 19 {31} The Confrontation Clause prohibits the admission of testimonial hearsay 20 statements unless the declarant is unavailable and the defendant had a prior

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1 opportunity to cross-examine the declarant. State v. Ortega, 2008-NMCA-001, ¶ 14, 2 143 N.M. 261, 175 P.3d 929, overruled on other grounds by State v. Mendez, 2010- 3 NMSC-044, 148 N.M. 761, 242 P.3d 328. As discussed earlier in this opinion, 4 Santana and Rocha were called as the State’s witnesses and were subjected to direct 5 examination. Although Rocha was ultimately declared a hostile witness, that simply 6 allowed the prosecutor to ask leading questions. Thus, Defendant had the opportunity 7 to cross-examine both witnesses. Officer Bolduc’s in-court identification testimony 8 was also subject to Defendant’s fundamental right to cross-examination. Defendant 9 does not argue that he was indisputably innocent and does not demonstrate that any 10 alleged defects in the proceedings made his conviction fundamentally unfair. 11 Accordingly, we conclude that there was no fundamental error in this case. 12 Sufficiency of the Evidence 13 {32} Defendant next argues that the State did not present sufficient evidence to 14 establish that Defendant actually used a knife to cut Lopez. A sufficiency of the 15 evidence review involves a two-step process. Initially, the evidence is viewed in the 16 light most favorable to the verdict. Then the appellate court must make a legal 17 determination of “whether the evidence viewed in this manner could justify a finding 18 by any rational trier of fact that each element of the crime charged has been 19 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 20 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). Under this

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1 deferential standard of review, we conclude there was sufficient credible evidence to 2 sustain Defendant’s conviction for aggravated battery with a deadly weapon. 3 {33} In order to establish that Defendant was guilty of aggravated battery with a 4 deadly weapon, the State had to prove the following elements:

5 1. [D]efendant touched or applied force to . . . Lopez by cutting him 6 with a deadly weapon. [D]efendant used a knife. A knife is a 7 deadly weapon only if you find that a knife, when used as a 8 weapon, could cause death or great bodily harm; 9 2. [D]efendant intended to injure . . . Lopez; 10 3. [D]efendant’s act was unlawful; 11 4. This happened in New Mexico on or about the 16th day of 12 August, 2009.

13 The State presented the following evidence that justified a finding that each element 14 of the crime charged had been established beyond a reasonable doubt. 15 {34} Lopez testified that Defendant reached into the truck and punched him. As 16 Defendant was pulling his arm away, Lopez saw a knife in Defendant’s hand. Lopez 17 noticed that his lip was split and bleeding. In addition, Elizabeth Lopez testified that 18 she heard the commotion and came out of her house. She opened the door and saw 19 Defendant holding a beer in one hand while waving a knife around with the other. 20 {35} Defendant’s argument is premised on the fact that there was no evidence to 21 establish that Defendant actually used a knife to cut Lopez and that Lopez could not 22 definitively say his injury was caused by a knife. Although no direct testimony was 23 presented that Defendant cut Lopez’s lip with the knife, we hold that the above-

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1 described testimony constitutes sufficient circumstantial evidence that Defendant cut 2 Lopez’s lip with the knife. See State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 3 140 P.3d 515 (“The test for sufficiency of the evidence is whether substantial evidence 4 of either a direct or circumstantial nature exists to support a verdict of guilt beyond 5 a reasonable doubt with respect to every element essential to a conviction.” (emphasis 6 added) (internal quotation marks and citation omitted)). Accordingly, the evidence 7 presented by the State was substantial enough to convince a reasonable juror that 8 Defendant “touched or applied force to . . . Lopez by cutting him with a deadly 9 weapon.” 10 Motion for Mistrial 11 {36} Lastly, we address Defendant’s motion for a mistrial. A district court’s ruling 12 on a motion for a mistrial rests within the sound discretion of the court and will not 13 be disturbed absent a showing of abuse of discretion. See State v. Fry, 14 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516; State v. McDonald, 1998- 15 NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752. An abuse of discretion occurs “when 16 the ruling is clearly against the logic and effect of the facts and circumstances of the 17 case.” State v. Sutphin, 107 N.M. 126, 130, 753 P.2d 1314, 1318 (1988). 18 {37} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 983 (1967), and 19 State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1,4-6 (Ct. App. 1985), Defendant 20 argues that the district court erred in denying his motion for mistrial based on defense

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1 counsel’s inability to play a recording of Lopez’s preliminary hearing testimony. We 2 note that Defendant does not cite to the record where this issue was preserved, and 3 we will not search the record to do so. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 4 N.M. 438, 971 P.2d 829 (stating that the court will not search the record to find 5 whether an issue was preserved where the defendant did not refer the court to 6 appropriate transcript references). 7 {38} Further, although not raised by Defendant, we are not persuaded that there is 8 any basis for reversal based on fundamental error. As we have noted, fundamental 9 error “only applies in exceptional circumstances when guilt is so doubtful that it 10 would shock the judicial conscience to allow the conviction to stand.” State v. Baca, 11 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by 12 State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Such is not the 13 case here. Defendant concedes—and our review of the record establishes—that 14 defense counsel was able to impeach Lopez through cross-examination. Although the 15 impeachment may not have been as effective as the tape recording, we cannot say that 16 it would “shock the judicial conscience to allow the conviction to stand” in this case. 17 CONCLUSION 18 {39} For the reasons set forth above, Defendant’s conviction is affirmed. 19 {40} IT IS SO ORDERED. 20 __________________________________

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1 LINDA M. VANZI, Judge 2 WE CONCUR:

3 _________________________________ 4 JAMES J. WECHSLER, Judge

5 _________________________________ 6 J. MILES HANISEE, Judge