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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JARED THOMAS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, Jerry H.
Ritter Jr., District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge CYNTHIA A. FRY, Judge
{1} Defendant appeals
his convictions for fourth degree felony false imprisonment and misdemeanor
battery against a household member. [RP 12-13, 67, 70, 149] Our notice proposed
to affirm. In response, Defendant filed a motion to amend his docketing
statement as well as a memorandum in opposition. We deny Defendant’s motion to
amend and remain unpersuaded by Defendant’s arguments. We therefore affirm.
{2} We address first
Defendant’s motion to amend his docketing statement. Defendant seeks to add the
issue of whether the police officer was an incompetent witness and was
improperly allowed to read his police report as his testimony. [MIO 1, 7] As
support for this issue, Defendant refers to
State v. Franklin,
1967-NMSC-151,
78 N.M. 127,
428 P.2d 982, and
State v. Boyer,
1985-NMCA-029,
103 N.M. 655,
712 P.2d 1. [MIO 2] Our review of the record does
not support Defendant’s assertion that the officers read their police reports
into the record; rather, it indicates that the officers testified as to their
observations. [RP 132-37] Nonetheless, even assuming Defendant has accurately
represented what happened below, Defendant acknowledges this issue was not
preserved below, but urges this Court to hold that fundamental error occurred.
[MIO 7] To the extent officers read their police reports, we perceive no error
because the officers could rely on their reports to refresh their memories.
See
generally Rule
11-612 NMRA (writing used to refresh a witness’s memory);
see
also State v. Stanley,
2001-NMSC-037, ¶ 5,
131 N.M. 368,
37 P.3d 85
(providing that we review the district court’s admission or exclusion of
evidence for an abuse of discretion and we will not disturb its evidentiary
ruling absent a clear abuse of that discretion). Moreover, even if we agreed
that error occurred, which we do not, it did not rise to the level of
fundamental error because “there is no reasonable probability the error
affected the verdict.”
See State v. Tollardo,
2012-NMSC-008, ¶ 36,
275
P.3d 110 (stating the standard for non-constitutional harmless error (emphasis,
internal quotation marks, and citation omitted)). Because the issue Defendant
seeks to add is not viable, we deny his motion to amend.
See State v. Sommer,
1994-NMCA-070, ¶ 11,
118 N.M. 58,
878 P.2d 1007 (denying a motion to amend the
docketing statement based upon a determination that the argument sought to be
raised was not viable).
{3} Apart from his
motion to amend the docketing statement, Defendant continues to argue in Issue
I that the district court abused its discretion in allowing the State to
introduce the photograph of Victim’s injured ear. [RP 125; DS 2; MIO 5] As
support for his continued argument, Defendant refers to
Franklin and
Boyer. [MIO 6] For the same reasons provided in our notice, we hold that
the district court did not abuse its discretion in determining that the
probative value of the photograph was outweighed by any prejudicial effect.
See
State v. Pettigrew,
1993-NMCA-095, ¶ 10,
116 N.M. 135,
860 P.2d 777
(recognizing that the reviewing court gives trial courts great discretion in
balancing the prejudicial impact of a photograph against its probative value);
see
also State v. Boeglin,
1987-NMSC-002, ¶ 23,
105 N.M. 247,
731 P.2d 943
(concluding there was no abuse of discretion in admitting the photographs when
the record indicated that the close-up photographs were necessary to depict the
full extent of the victim’s wounds);
State v. Ho’o,
1982-NMCA-158, ¶¶
19-20,
99 N.M. 140,
654 P.2d 1040 (holding that photographs are properly
admitted within the discretion of the trial court when they are corroborative
of other relevant evidence adduced at the trial and reasonably relevant to
material issues at trial).
{4} Lastly, Defendant
continues to argue in Issues II and III that the evidence was insufficient to
support his convictions for fourth degree felony false imprisonment [RP 12, 67]
and misdemeanor battery against a household member. [RP 13, 70]
See NMSA
1978, §§
30-4-3 (1963) and
30-3-15 (2008);
see also State v. Sutphin,
1988-NMSC-031, ¶ 21,
107 N.M. 126,
753 P.2d 1314 (setting forth the standard of
review for substantial evidence). In support of his continued arguments,
Defendant refers to
Franklin and
Boyer. [MIO 7] For the reasons
extensively detailed in our notice, we hold that substantial evidence supports
Defendant’s convictions.
See State v. Sparks,
1985-NMCA-004, ¶¶ 6-7,
102
N.M. 317,
694 P.2d 1382 (defining substantial evidence as that evidence which a
reasonable person would consider adequate to support a defendant’s conviction).
In so holding, we acknowledge Defendant’s arguments that he wrapped his arms
around Victim not to restrain her against her will, but instead in an attempt
to calm her [DS 2; MIO 4, 6] and that Victim’s ear was injured accidentally.
[MIO 6; RP 127, 140] As we stated in our notice, however, the jury was free to
disbelieve Defendant’s view of the evidence.
See State v. Salazar,
1997-NMSC-044, ¶ 44,
123 N.M. 778,
945 P.2d 996 (holding that it is the fact
finder’s prerogative to reject the defendant’s version of the event);
see
also State v. Fuentes,
2010-NMCA-027, ¶ 17,
147 N.M. 761,
228 P.3d 1181
(noting that it is up to the jury to evaluate a witness’s credibility).
{5} To conclude, for
the reasons detailed in our notice and discussed above, we affirm.