This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 31,414 4 ROBERT RIVERA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Reed S. Sheppard, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Robert Rivera (Defendant) appeal s from the judgment, sentence and 1 commitment, convicting him, after a jury trial, of aggravated battery (great bodily 2 harm) (firearm enhancement) and resisting, evading, or obstructing an officer. [RP 3 233] Defendant raises four issues on appeal. [DS 7-11] The calendar notice 4 proposed summary affirmance. [Ct. App. File, CN1] Defendant has filed a 5 memorandum in opposition, pursuant to State v. Franklin , 78 N.M. 127, 129, 428 P.2d 6 982, 984 (1967) and State v. Boyer , 103 N.M. 655, 658-60, 712 P. 2d 1, 4-6 (Ct. App. 7 1985), that we have duly consid ered. [Ct. App. File, MI O] Unpersuaded, however, 8 we affirm Defendant’s convictions. 9 Issue 1 - Hearsay Testimony regarding Identification of Defendant as the 10 Shooter. 11 We review the admission of evidence pursu ant to an exception or an exclusion 12 to the hearsay rule under an a buse of discretion standard. State v. McClaugherty , 13 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486. 14 In the memorandum, Defendant continues to argue that the district court erred 15 by permitting Ms. Bribiesca to, in essen ce, vouch for Mr. Puentes’ identification, 16 because Ms. Bribiesca testified that Mr. Pu entes told her Defendant shot him but in 17 reality, Mr. Puentes identified Defendant later, through a line- up. [MIO 5] We 18 continue to disagree. 193 The State asked Ms. Bribiesca, the vic tim’s girlfriend, who Mr. Puentes, the 1 victim, told her had shot him. [DS 7] Defense counsel objected on hearsay grounds, 2 and the parties approached for a bench conf erence. [Id.] The State argued that under 3 Rule 11-801(D)(1)(c) NMRA, the statement was not hearsay because it was one of 4 identification made after perceiving the person. [Id.] 5 Rule 11-801(D)(1)(c) NMRA, provides that 6
D. Statements which are not hearsay . A statement is not hearsay if: 7 (1) Prior statement by witness . The declarant testifies at the trial or 8 hearing and is subject to cross-ex amination concerning the statement, 9 and the statement is 10 . . . (c) one of identification of a person made after perceiving the 11 person; . . . 12 At trial, both Ms. Bribiesca and the i nvestigating officer on the scene, Officer 13 Enyart, testified that, at the scene, the vi ctim said he saw and recognized his shooter 14 but did not know the shooter’s name. [DS 6, 8] There was also testimony at trial 15 that, pursuant to a line-up, Mr. Puentes later identified Defendant as the person who 16 shot him, and Mr. Schuetz, the security guard of the bar where the events took place, 17 identified Defendant as the person he saw r unning with a firearm. [DS 6] The alleged 18 hearsay statement was made by the victim, Mr. Puentes, who is the declarant, and he 19 testified at trial and was subject to cro ss-examination. The statement is one of 20 identification of a person made by Puentes, immediately after perceiving the person. 214 Rule 11-801(D)(1)(c) provides that such a stat ement is not hearsay. We hold that the 1 district court did not abuse its discretion in allowing Ms. Bribiesca’s testimony. 2 To the extent Defendant argues that b ecause the declarant, Mr. Puentes, was 3 available, Ms. Bribiesca should not havethe opportunity to relay identification 4 testimony, or that the prior statement s hould have been under oath [DS 7], Defendant 5 does not cite any authority to support these a ssertions, and we know of none. In fact, 6 Rule 11-801(D)(1)(c) appears to directly apply to the very situation that arose at trial 7 in this case, as recognized by the United States Supreme Court case law cited by 8 Defendant in the docketing statement. [DS 12] If only the declarant, Mr. Puentes, 9 could testify as to what he said at trial, there would not even be a hearsay/nonhearsay 10 issue. See, e.g., State v. Haynes , 2000-NMCA-060, ¶ 14, 129 N.M. 304, 6 P.3d 1026 11 (“Defendant acknowledges that a witness may testify about a prior out-of-court 12 identification of a defendant and that suchtestimony is not hearsay if the declarant 13 testifies at trial and is subject to cross-examination on the out-of-court 14 identification.”). SeeRule 11-801(D)(1)(c). We affirm the district court on this 15 issue. 16 Issue 2 - The Jurors’ Diagram. 17 In the memorandum, Defendant argues th at even if defense counsel did not 18 bring the error to the attention of the distri ct court, the jury’s reliance on the diagram 195 during deliberations rendered Defendant’s trial fundamenta lly unfair. [MIO 7] We 1 disagree. 2 As we discussed in the calendar notice, even if Defendant did not preserve the 3 error below, Defendant was not denied a fairand just trial due to a juror improperly 4 introducing extraneous prejudicial information. See, e.g., State v. Mann , 5 2002-NMSC-001, ¶ 27, 131 N.M. 459, 39 P.3d 124 (emphasizing that “the underlying 6 issue in cases involving extraneous information is a defendant’s right to a fair and 7 impartial jury”). During closing argument, counsel used a demonstrative hand-drawn 8 sketch of the location of the incident and spoke about the pers pectives and vantage 9 points of the witnesses. [DS 8] When c ounsel went into the jury room to talk with 10 the jurors about how they reached their verdict, they talked about how a juror, who is 11 a physicist, had drawn his own version of the scene and the location on a large 12 hanging pad so that the group could use it duri ng their deliberations. [Id.] The jurors 13 admitted that ideas about the case that th ey came up with using the sketch, allowed 14 them to make their decision. [Id.] 15 Rule 11-606(B) NMRA provides that: 16 a juror may not testify as to any matter or statement occurring during the 17 course of the jury’s deliberations or to the effect of anything upon that 18 or any other juror’s mind or emotions as influencing the juror to assent 19 to or dissent from the verdict or indictment or concerning the juror’s 20 mental processes in connection ther ewith. But a juror may testify about 21 (1) whether extraneous prejudicialinformation was improperly brought 226 to the jury’s attention, (2) whethe r any outside influence was improperly 1 brought to bear upon any juror, or (3) whether there was a mistake in 2 entering the verdict onto the verdict form. 3 “Thus, a juror may testify on the very lim ited circumstance of whether extraneous 4 prejudicial information was improperly beforethe jury. Otherwise, the rule prohibits 5 a juror from testifying as to any matter or statement made during the course of 6 deliberations or to the juror’s mental processes.” Mann , 2002-NMSC-001, ¶ 18. In 7
Mann , because a juror’s calculations and articulations were based on the evidence 8 presented in court and on th e defendant’s expert’s te stimony, our Supreme Court 9 rejected the defendant’s contentions thatnew evidentiary facts which contradicted 10 defense testimony had been improperly pres ented by a juror, who had attempted to 11 calculate the finite probability of impaling oneself on a screwdriver. Id. ¶¶ 28, 33. 12 In addition, our Supreme Court discussed the “difficulties inherent in attempting to 13 distinguish extraneous information fro m permissible deliberation based on life 14 experience[,]” the “importance of allowing our jury system to function without 15 improper interference,” and the “critical need for this Court to protect open, full, and 16 complete deliberations among members of the jury.” Id. ¶ 33. 17 In this case, the juror did no more than what counsel had done in trial at closing 18 argument. In addition, although the juror who drew the sketch is a physicist, he did 19 not introduce any new evidence for the jury to consider. The sketch simply showed 207 how the jurors organized, summarized, and interpreted the trial evidence with regard 1 to the parties’ locations and vantage points at the time of the shooting. If our Supreme 2 Court did not consider the jurors’ calculations in Mann , which included a specialized 3 knowledge of mathematics and probability (but no more specialized or different from 4 the defendant’s expert’s trial testimony) to be “extraneous prejudicial information,” 5 then certainly a sketch of the type used here cannot be so considered. 6 Nor can we say that fundamental error occurred due to the jurors’ use of the 7 diagram. “A fundamental error occurs wher e there has been a mi scarriage of justice, 8 the conviction shocks the conscience, or s ubstantial justice has been denied.” State 9 v. Cabezuela , 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (internal quotation 10 marks and citation omitted). Mo reover, “‘[t]he first step in reviewing for fundamental 11 error is to determine whether an error occurred. If that question is answered 12 affirmatively , we then consider whether the error was fundamental.’” Id. (quoting 13 State v. Silva , 2008-NMSC-051, ¶ 11, 144 N.M . 815, 192 P.3d 1192 (emphasis 14 added)). As discussed in this opinion, substantial evidence supports Defendant’s 15 convictions, and Defendant’s other issues do not demonstrate error. We cannot say 16 that fundamental error has occurred in this case or that Defendant was denied a fair 17 trial. 18 We affirm the district court on this issue. 198 Issue 3 - Instructing the Jury to Delibera te Further after a ll the other Verdict 1 Forms had been Read Aloud and Defendant had been Handcuffed. 2 In the memorandum, Defendant continues to argue that the district court judge 3 gave the jury an impermissible shotgun instruction on the alternat e count. [MIO 7-8] 4 We remain unpersuaded. 5 When the jurors came out of deliberati ons, they handed the packet of verdict 6 forms to the district court judge. [DS 9] The judge looked through the forms, setting 7 some to the side. [Id.] Defense counsel and Defendant stood and the judge read the 8 verdict. [DS 10] The judge stated thatDefendant was found guiltyof the alternative 9 to Count 1, aggravated battery (great bod ily harm) (firearm enhancement), at which 10 point the correctional officers, in acco rdance with Bernalillo County Detention 11 policies, handcuffed Defendant. [Id.] The judge also stated that Defendant was found 12 guilty of resisting, evading, or obstructing an officer. [Id.] When the judge was about 13 to thank the jurors and dismiss them, defens e counsel apparently stated that the jury 14 had not come to a decision on the other alternative first count – aggravated battery 15 (deadly weapon) (firearm enhancement). [Id.] The district court then gathered the 16 verdict forms and sent the jury back to de liberate further. [I d.] When the jury 17 indicated that they had determined that aggravated battery (great bodily harm) 18 (firearm enhancement) was the most appropriate charge, the judge indicated that they 19 needed to come to some sort of decision on aggravated battery (deadly weapon). [Id.] 209 Defendant still sat handcuffed. [Id.] The jury found Defendant guilty of aggravated 1 battery (great bodily harm) (firearm enhancement). [RP 227-28, 234] Defendant 2 moved for a mistrial, which the district court denied. [DS 9] 3 We will not overturn a trial court’s denial of a motion for a new trial unless the 4 trial court abused its discretion. See State v. Volpato , 102 N.M. 383, 385, 696 P.2d 5 471, 473 (1985). Here, even after the jury was sent back to deliberate, they clearly 6 indicated that they had all agreed that aggravated battery(great bodily harm) (firearm 7 enhancement) was the most appropriate verd ict. Thus, there is no breaking of jury 8 deadlock at stake or shotgun instruction at issue. See e.g., State v. Laney , 2003- 9 NMCA-144, ¶¶ 49, 51, 134 N.M. 648, 81 P. 3d 591 (discussing and rejecting the 10 defendant’s arguments that sending the jury back to deliberate, despite ten jurors’ 11 belief that they were hope lessly deadlocked, amounted to a “shotgun” instruction, 12 where the district court asked if the jurors could further deliberat e and they expressed 13 their willingness to do so). 14 The misunderstanding or confusion in this case appears to have been that the 15 jury did not realize that in convicting Defendant of one alternative of Count 1 16 (aggravated battery (great bodily harm) (firearm enhancement)), th ey needed to reject 17 the other alternative (aggravat ed battery) (deadly weapon)). The final verdict forms 18 correctly and clearly set forth the jury’s unani mous intentions with regard to the jury’s 1910 convictions. [RP 227-29] Thus, there we re no inappropriate communications by the 1 district court judge to the jurors that woul d warrant a new trial. Therefore, we cannot 2 say that the district court abused its discretion in denying a mistrial. 3 We affirm the district court on this issue. 4 Issue 4 - Sufficiency of the Evidence. 5 In the memorandum, Defendant continues to argue that there was insufficient 6 evidence to support his convictions due to numerous factual inadequacies and 7 inconsistencies. [MIO 8] We are not persuaded, however, that Defendant’s 8 convictions should be vacated on this basis. 9 “In reviewing the sufficiency of the evidence, we must view the evidence in 10 the light most favorable to the guilty verd ict, indulging all reasonable inferences and 11 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 12 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176; see also State v. Salas , 1999- 13 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact14 finder [in this case, the judge] to resolve any conflict in the tes timony of the witnesses 15 and to determine where the weight and credibility lay). 16 As we discussed in the calendar notice, the jury was properly instructed on the 17 elements of the crimes [RP 203, 206], and the State presented s ubstantial evidence to 18 support Defendant’s convictions. [CN1 9-11] The fact that the jury resolved the 1911 factual inadequacies and inconsistencies agai nst Defendant, is not a basis to vacate his 1 convictions. See State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 2 (“The reviewing court does not weigh the ev idence or substitute its judgment for that 3 of the fact finder as long as there is su fficient evidence to support the verdict.”); see 4 also State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary 5 evidence supporting acquittal does not provide a basis for reversal because the jury 6 is free to reject Defendant’s version of the facts.”). We hold thatthe State presented 7 substantial evidence to support Defendant’s convictions for aggravated battery (great 8 bodily harm) (firearm enhancement), and resis ting, evading, or obstructing an officer. 9 [RP 227-29] 10 For the reasons set forth in the cale ndar notice and this opinion, we affirm 11 Defendant’s convictions. [RP 233] 12 IT IS SO ORDERED. 13

14 MICHAEL D. BUSTAMANTE, Judge 15 WE CONCUR: 16

17 CELIA FOY CASTILLO, Chief Judge 1812 1 JONATHAN B. SUTIN, Judge 2