This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. No. 28,467 9 RUSSELL GONZALES, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 12 Eugenio S. Mathis, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Max Shepherd, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Eleanor Brogan, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 242 Defendant Russell Gonzales appeals hi s convictions for aggravated battery 1 against a household member (deadly weapon) , contrary to NMSA 1978, Section 30-3- 2 16(C) (2008); aggravated assault agains t a household member (deadly weapon), 3 contrary to NMSA 1978, Section 30-3-13( A)(1) (1995); tampering with evidence, 4 contrary to NMSA 1978, Section 30-22-5(A) (2003); and aggravated battery against 5 a household member, contrary to Section 30-3-16(A). We are not persuaded by any 6 of Defendant’s assertions of e rror, and we therefore affirm. 7 Factual and Procedural Background 8 Defendant was charged in February 2007 with multiple felonies arising out of 9 several violent incidents involving his domes tic partner, Paula Hern. On September 10 28, 2007, Defendant filed a motion to dismiss, alleging that he had not been able to 11 take Ms. Hern’s statement. In the motion, Defendant stated that he filed a notice to 12 take Ms. Hern’s statement on September 24, 2007. The notice specified that the 13 statement would be taken on September 28, 2007, at 9:00 a.m. in the prosecutor’s 14 office. However, Ms. Hern did not showup. Additionally, the motion stated that 15 Defendant had sought Ms. Hern’s psychiatric and psychological records, and the 16 records had not been provided by the State. Defendant argued that the failure to 17 provide the records and afford him an opportunity to take Ms. Hern’s statement denied 18 him his right to confront the witness. On October 1, 2007, Defendant filed a 193 supplement to his motion to dismiss in which he stated that after filing the motion, the 1 State informed him that Ms. Hern would be available for an interview at the 2 prosecutor’s office on October 1. When de fense counsel arrived to interview Ms. 3 Hern, the prosecutor informed him that she had missed her scheduled flight, had taken 4 a subsequent flight, she was in Albuquerque , but was unable to get transportation to 5 the prosecutor’s office in Las Vegas, New Mexico. 6 The district court denied the motion to dismiss. At the hearing on the motion 7 on October 3, the court note d that Defendant had not served a notice to take Ms. 8 Hern’s statement sooner even though Ms. Hernwas on the State’s witness list, and the 9 defense was aware that she was a witness. The court also noted that Ms. Hern had 10 testified at the preliminary hearing, so De fendant had some idea of what her testimony 11 would be. The district court further noted that Defendant had not formally sought 12 disclosure of the medical records, and th e State could not be expected to guess that 13 Defendant wanted them. Th e State made Ms. Hern available for a statement that 14 afternoon. Prior to the start of trial, Defe ndant filed a motion in limine to prohibit the 15 State from calling Ms. Hern as a witness af ter she refused to allow Defendant access 16 to her medical records. Defense counselargued that refusing the release of her 17 medical information violated Defendant’s ri ght to confront the witness. The court 18 noted its concerns that Defendant’s c ounsel had not filed a motion to compel 194 disclosure of the records. The court gr anted the motion in limine and ordered Ms. 1 Hern to produce the medical records Defendant sought before she would be allowed 2 to testify. 3 At trial, Ms. Hern testified that on January 5, 2007, she and Defendant were 4 having dinner at the home of their friends when they began to argue. The argument 5 escalated to Defendant physically assaulting Ms. Hern. Ms. Hern went home after the 6 friends stopped the fight. Defendant later returned to their home and became violent 7 when she asked him to leave. Ms. Hern testified that Defendant retrieved a gun from 8 the bedroom and hit her twice on the h ead with it, which caused her to bleed 9 extensively from her scalp. De fendant then forced her into the shower to try to and 10 stop the bleeding. The bleeding did not st op, and Defendant pu lled Ms. Hern out of 11 the shower by her hair and forced her to look in the bathroom mirror. Ms. Hern 12 testified that Defendant then told her that she would die that evening and fired the gun 13 at her reflection in the mirror. Ms. Hern testified that Defendant then forced her to 14 clean up her blood in the area where the kitchen meets the living room. Ms. Hern 15 testified that blood found in her home was her blood and that her two dogs were not 16 the source of the blood. 17 Ms. Hern testified that there was no further physical violence until January 17, 18 when Defendant grabbed her and shoved her face into dish water and threw an ashtray 195 at her hitting her in the back. Later that day when Defendant was in a back room, Ms. 1 Hern left and went to her sister’s home. The following day, she sought medical 2 attention. Janea Chavez, a nurse at Alta Vista Hospital, testified that she examined 3 Ms. Hern in the emergency room on January 18, 2007. Nurse Chavez testified that 4 Ms. Hern had new and old bruises on her body and lacerations on her head. Dr. Mel 5 Olivares testified that he examined Ms. Hern at Alta Vista Hospital on January 18. 6 Dr. Olivares testified that he observed tw o lacerations on her scalp, bruises on her 7 nose and jaw, tenderness on her ribs and abdomen, and greatly restricted range of 8 motion in her back and neck. 9 Officer Frank Casaus of the New Mexico State Police testified that he 10 interviewed Ms. Hern at the hospital and observed injuries on her head and back and 11 scratches on her neck. After interviewing Ms. Hern, he prepared an arrest warrant for 12 Defendant, as well as a search warrant fo r the property where Defendant lived with 13 Ms. Hern, and was present during the search. Sergeant Carlos Mendoza of the New 14 Mexico State Police testified that he assi sted in executing a search warrant for the 15 residence where Defendant and Ms. Hern lived. Sergeant Mendoza testified that he 16 observed two areas during the search that appeared to him to beblood. These areas 17 coincided with Ms. Hern’s statement as to where the blood would be found. Sergeant 18 Mendoza testified that a presumptive test proved that the stain was blood, but the 196 presumptive test could not determine wh ether the blood was human or animal. No 1 further testing on the blood samples was requested, therefore no further testing was 2 done. Sergeant Mendoza also testified thatthree guns, a brown ashtray, and a piece 3 of a broken mirror from under the bed in the master bedroom wererecovered from the 4 residence. Sergeant Mendoza further testifie d that officers found what appeared to be 5 a bullet hole that wentthrough the bathroom mirror and into the back of the wall of 6 the living room, causing a protrusion. 7 The jury acquitted Defendant of kidnapping and convicted him of aggravated 8 assault on a household member (deadly w eapon), aggravated battery on a household 9 member (deadly weapon), aggravated battery on a household member, and tampering 10 with evidence. Defendant appeals. Additi onal facts are set forth later in this opinion. 11 Analysis 12 Defendant raises four issues on appeal. Defendant argues that (1) he received 13 ineffective assistance of counsel, (2) he wa s denied his right to a fair trial due to 14 cumulative error by the district court, (3 ) the prosecutor impermissibly vouched for 15 Ms. Hern’s credibility in rebuttal closing ar gument, and (4) his right to be free from 16 double jeopardy was violated. We address each argument in turn. 17 A. Ineffective Assistance of Counsel 187 “The test for ineffective assistance of counsel is whether defense counsel 1 exercised the skill of a reasonably competent attorney.” State v. Aker , 2 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384. “To establish a prima facie 3 case of ineffective assistance of counsel, [thed]efendant must show that (1) counsel’s 4 performance was deficient in that it fell below an objective standard of 5 reasonableness; and (2) that [the d]efendant suffered prejudice in that there is a 6 reasonable probability that, but for counsel’s unprofessional errors, the result of the 7 proceeding would have been different.” Id. (internal quotation marks and citation 8 omitted). “When an ineffective assistance cl aim is first raised on direct appeal, we 9 evaluate the facts that are part of the record. If facts n ecessary to a full determination 10 are not part of the record, an ineffec tive assistance claim is more properly brought 11 through a habeas corpus petition, although anappellate court may remand a case for 12 an evidentiary hearing if the defendant makes a prima facie case of ineffective 13 assistance.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. 14 Defendant asserts that his trial counsel ’s performance was deficient in a number 15 of ways. Defendant first argues that couns el failed to follow up on his pro se motion 16 to waive the jury trial. Th e record indicates that Defendant had legal counsel at the 17 time charges were filed against him inFebruary 2007 and continuing thereafter. 18 During that time, Defendant filed a number of pro se handwritten documents. The 198 record indicates that Defendant filed a pro se handwritten request for a bench trial on 1 August 8, 2007. Neither the request nor th e record indicates that defense counsel 2 received or should have known about this particular request. Nor is there any 3 indication in the record that the district c ourt ever ruled on that motion or that defense 4 counsel ever followed up on that motion. Based on the record before us, we cannot 5 surmise why the request was not pursued. However, the decision whether to waive 6 a jury trial is a matter of trial strategy. See State v. Ciarlotta , 110 N.M. 197, 201, 793 7 P.2d 1350, 1354 (Ct. App. 1990) (stating that “[t]he decision of whether to proceed 8 with a jury is a tactical one”). “On appeal, we will not second guess the trial strategy 9 and tactics of the defense counsel.” Lytle v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M. 10 198, 22 P.3d 666 (internal quotation marks and citation omitted). Defendant cites to 11 Rule 16-102(A) NMRA of the Rules of Professional Conduct, which provides that 12 “[i]n a criminal case, the lawyer shall abid e by the client’s decision, after consultation 13 with the lawyer, as to . . . whether to waive [a] jury trial.” Defendant asserts that trial 14 counsel failed to act on his multiple requests to waive a jury trial. However, the 15 record before us on appeal is insufficient to support this contention, and we are in no 16 position to determine what Defe ndant and his attorney may or may not have discussed 17 with respect to waiving a jury trial. Wetherefore cannot consider this claim. See 18 State v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (filed 1998) 199 (stating that “[w]ithout a record, we cannot consider [a d]efendant’s claim of 1 ineffective assistance of counsel on direct appeal”). 2 Defendant next asserts that trial couns el was ineffective because he failed to 3 move for a change of venue on the grounds th at Ms. Hern’s father was a former judge 4 in the city where the crimes occurred. However, we be lieve that a consideration of the 5 various advantages and disadvantages of trial in a particular venue and whether a 6 defendant will have his best chance with a local jury is a classic strategy decision. 7 Consequently, here, it does not establis h ineffective assistance of counsel. See State 8 v. Jordan , 116 N.M. 76, 81, 860 P.2d 206, 211 (Ct. App. 1993) (stating that “this 9 Court will not second-guess matters of trial strategy or tac tics” and that the defendant 10 “must prove both his counsel’s incompetence and prejudice”). Additionally, 11 Defendant has not established that a fair and impartial jury could not be empaneled 12 or that the jury venire was prejudiced ag ainst him. Accordingly, we believe that 13 Defendant has failed to establish ineffec tive assistance of counsel and prejudice. See 14 Duncan v. Kerby , 115 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (stating that 15 prejudice must be shown before a defendantis entitled to relief based on ineffective 16 assistance of counsel); State v. Chavez , 2007-NMCA-162, ¶ 24, 143 N.M. 126, 173 17 P.3d 48 (stating that in order to establish ineffective assistance of counsel a defendant 1810 must demonstrate that but for counsel’s unprofessional errors, the outcome of the 1 proceeding would have been different). We therefore reject this claim. 2 Defendant argues that his trial counsel failed to submit a notice of alibi or a 3 witness list and failed to properly investigate the case. “The decision whether to call 4 a witness is a matter of trial tactics and strategy within the control of trial counsel.” 5 State v. Orosco , 113 N.M. 789, 797, 833 P.2d 1155, 1163 (Ct. App. 1991), aff’d , 113 6 N.M. 780, 788, 833 P.2d 1146, 1154 (1992). Again, we will not second guess the 7 tactics or strategy of defense counsel. See State v. Sanchez , 120 N.M. 247, 254, 901 8 P.2d 178, 185 (1995). Additionally, Defendanthas failed to demonstrate that any 9 potential witnesses were willi ng to appear and would havegiven favorable testimony. 10 See, e.g. , State v. Hernandez , 115 N.M. 6, 18, 846 P.2d 312, 324 (1993) (rejecting a 11 similar claim of ineffective assistance of counsel due to the defendant’s failure to 12 demonstrate that the putative witnesses woul d have been willing to testify and would 13 have presented favorable evidence). Add itionally, we find nothing in the record to 14 indicate a failure to investigat e or that a viable alibi defe nse existed for the charges for 15 which Defendant was convicted. See Telles , 1999-NMCA-013, ¶ 25 (stating that this 16 Court will not review an allegation of ine ffective assistance of counsel that depends 17 on matters outside of the record). 1811 Defendant next argues that his trial c ounsel failed to subpoe na Ms. Hern, failed 1 to timely file notice to take her statemen t, and failed to timel y request her medical 2 records. Defendant argues th at, had defense counsel timel y made these requests, the 3 district court would have dismissed the case for the State’s failure to make the witness 4 available. However, we cannot say that the State would have failed to make Ms. Hern 5 available for a statement had counsel timely filed a motion to take her statement 6 pursuant to Rule 5-503(A) NMRA, which stat es that a party may obtain the statement 7 of any person with information subject to discovery by filing a “notice of statement” 8 not less than five days before the scheduleddate of the statement. Additionally, we 9 will not engage in speculation as to wh at the district c ourt would have done. 10 Defendant also asserts that his trial counsel’s failure to make these requests timely 11 resulted in a denial of his right to confr ont Ms. Hern. However, Defendant makes no 12 specific showing how counsel’s cross-examination of Ms. Hern would have been 13 improved had counsel timely filed a motion to take her statement and timely filed a 14 request for her medical records. Defendant has therefore failed to demonstrate 15 prejudice. See In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 16 318 (“An assertion of prejudice is not a showing of prejudice.”); see also Chavez , 17 2007-NMCA-162, ¶ 24 (stating that, in order to establish ineffective assistance of 1812 counsel, a defendant must demonstrate thatbut for counsel’s unprofessional errors, 1 the outcome of the proceeding would have been different). 2 Finally, Defendant asserts that counselwas ineffective because he failed to 3 question Officer Casaus about his testimony at the preliminary hearing in which he 4 stated that some of the blood recovere d from Defendant’s house was not human blood. 5 Defendant asserts that this would have furthered his theo ry of the defense which was 6 that the blood in the home came from an animal and thatMs. Hern was lying about 7 the source of the blood. However, we ar e in no position to determine whether cross8 examining Officer Casaus about his statemen t at the preliminary hearing would have 9 been effective. See State v. Hester , 1999-NMSC-020, ¶ 11, 127 N.M. 218, 979 P.2d 10 729 (“It is not the role of [an appellate court] on appeal tosecond guess trial tactics.”). 11 Counsel’s failure to mention the inves tigating officer’s prior testimony may have 12 reflected a rational determination that any inconsistency with the State’s blood 13 evidence at trial was of such minimal value that it was not worth bringing to the 14 attention of the jury. See generally State v. Jacobs , 2000-NMSC-026, ¶ 49, 129 N.M. 15 448, 10 P.3d 127 (“A prima facie case for ineff ective assistance of counsel is not made 16 if there is a plausible, rational strategy ortactic to explain the counsel’s conduct.”). 17 1813 For these reasons, we hold that Defendant has not established a prima facie case 1 of ineffective assistance of counsel. Defendantmust pursue the issue, if at all, in a 2 collateral proceeding. See State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 3 927 P.2d 31 (stating that “[t]his Court has e xpressed its preference for habeas corpus 4 proceedings over remand when the record on appeal does not establish a prima facie 5 case of ineffective a ssistance of counsel”); see also State v. Baca , 1997-NMSC-059, 6 ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that provides a basis for 7 remanding to the trial court for an eviden tiary hearing on ineffective assistance of 8 counsel is rare. Ordinarily, such clai ms are heard on petiti on for writ of habeas 9 corpus[.]”). 10 B. Cumulative Error 11 Defendant argues that he was denied his right to a fair trial due to cumulative 12 error by the district court. “The doctrin e of cumulative error requires reversal when 13 a series of lesser improprieties throughout a trial are found, in aggregate, to be so 14 prejudicial that the defendant was deprived of the constitutional right to a fair trial.” 15 State v. Duffy , 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other 16 grounds by State v. Gallegos , 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. 17 Specifically, Defendant argues that the districtcourt failed to inform the jury of the 18 charges against him at the outset of trial, denied him his right to confrontation by 1914 allowing the late disclosure of discovery, improperly instructed the jury that only 1 charges for which there was sufficient evid ence were being submitted, and improperly 2 limited the parties to thirty minutes for cl osing argument. For the following reasons, 3 we do not believe that Defendant was denied his right to a fair trial due to cumulative 4

error. 5 Defendant first argues that the district court failed to inform the jury of the 6 charges Defendant faced at the outset of th e trial. Defendant did not object, and this 7 issue was not preserved. See State v. Varela , 1999-NMSC-045, ¶¶ 25-26, 128 N.M. 8 454, 993 P.2d 1280 (holding that to preserve an issue for appeal it is essential that a 9 party make a timely objection that specifically apprises the district court of the 10 claimed error and invokes an intelligent ruli ng thereon). “On appeal, the reviewing 11 court will not consider issues not raised in the trial court unless the issues involve 12 matters of jurisdictional or fundamental error.” State v. Wyman , 2008-NMCA-113, ¶ 13 10, 144 N.M. 701, 191 P.3d 559. “A fundamental error occu rs where there has been 14 a miscarriage of justice, the conviction shoc ks the conscience, or substantial justice 15 has been denied.” State v. Dietrich , 2009-NMCA-031, ¶ 52, 145 N.M. 733, 204 P.3d 16 748. “We may also conclude that a f undamental error has been committed upon a 17 determination that a trial court’s error was of such magnitude that it affected the trial 18 outcome.” Id . (internal quotation marks and citation omitted). 1915 Rule 5-607(B) NMRA provides that, after the jury is selected and sworn in, 1 “initial instructions as provided in UJI Criminal shall be given by the court[.]” UJI 2 14-101 NMRA in part requires the district court to inform the jury of the common 3 name of the crimes for which the defendant is charged. Defendant asserts that the 4 district court instructed the jury that “Def endant has been charge d with several crimes 5 and I will identify those for you at a later time.” The State explains that the court’s 6 introductory instructions to the jury began with “Defendant ha[s] been charged with 7 several offenses from kidnapping to aggravated battery on a household member.” 8 However, the district court did not later identify the common names of each crime 9 charged. 10 We do not believe that this rises to the level of fundamental error. See State v. 11 Cunningham , 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (“Parties alleging 12 fundamental error must demonstrate the ex istence of circumstances that shock the 13 conscience or implicate a fundamental unf airness within the system that would 14 undermine judicial integrity if left unch ecked.” (internal quotation marks omitted)). 15 Defendant argues that the failure to instructthe jurors as to the common names of the 16 crimes charged prejudiced his defense b ecause the jurors did not have a proper 17 framework in which to evaluate the evid ence. However, the jury was given the 18 elements instructions for th e crimes charged prior to deliberations. Additionally, the 1916 jury acquitted Defendant of kidnapping. See State v. Lacey , 2002-NMCA-032, ¶ 21, 1 131 N.M. 684, 41 P.3d 952 (stating that the f act the jury acquitted the defendant of 2 three of five charges showed that it was ableto carefully apply the law to the facts). 3 For these reasons, we do not believe that th e jury did not have a proper framework in 4 which to deliberate, and we reject Defendant’s claim of error. 5 Defendant next argues that he was denied his Sixth Amendment right to 6 confrontation when the district court allowe d the late disclosureof discovery by the 7 State. Defendant argues that, due to the delay in obtaining Ms. Hern’s medical 8 records and her statement, his right to c onfrontation was effec tively limited, and he 9 was unable to test Ms. Hern’s credibility, detect bias, or otherwise challenge the 10 State’s version of the facts. 11 We disagree. “Violation of the right to confront witnesses must work some 12 prejudice to the defendant in order fo r there to be reversible error.” State v. Taylor , 13 103 N.M. 189, 195, 704 P.2d 443, 449 (Ct. App. 1985); see also State v. Griffin , 108 14 N.M. 55, 58, 766 P.2d 315, 318 (Ct. App. 1988) (holding that th e “[f]ailure to disclose 15 a witness’[s] identity prior to trial in itself is not grounds for reversal” and that “[t]he 16 objecting party must show that he was prejudiced by such non-disclosure”). We do 17 not believe that Defendant ha s established that he was prejudiced, either by the late 18 disclosure of Ms. Hern’s medical records or by the inability to take her statement 1917 before the start of trial. Defendant has not stated with any degree of specificity how 1 his cross-examination of Ms. Hern would have been improved or how he would have 2 prepared differently for trial had he been able to take her st atement earlier or had 3 earlier access to her medical records. State v. McDaniel , 2004-NMCA-022, ¶ 13, 135 4 N.M. 84, 84 P.3d 701 (determining that the defendant was not prejudiced by the late 5 disclosure of a witness where he did not show how his cross-examination would have 6 been improved with earlier disclosure or howhe would have prepared differently for 7 trial); State v. Vallejos , 2000-NMCA-075, ¶ 35, 129 N.M. 424, 9 P.3d 668 8 (determining that the defendant did not suffer prejudice from late disclosure of 9 witnesses where the defendant did not e xplain how his cross-examination of the 10 witnesses would have been improved without the late disclosure). In this case, 11 Defendant was aware of Ms. Hern’s prelimin ary hearing testimony prior to trial, he 12 was able to take her statement before she testified, and he cross-examined her at trial 13 regarding her version of the incidents. Under these circumstances, we do not believe 14 that Defendant was denied hi s right to confrontation. See State v. Setser , 15 1997-NMSC-004, ¶ 19, 122 N.M. 794, 932 P.2d 484 (filed 1996) (rejecting the 16 defendant’s argument that she was deniedher right to confrontation by the late 17 disclosure of a witness where she was able to review the witness’ statement at length 1818 prior to trial, interview the witness beforeshe testified, and conduct an extensive 1 cross-examination). 2 Defendant also argues that the district court abused its discretion in denying his 3 motion in limine to exclude Ms. Hern’s tes timony. We review the district court’s 4 decision allowing a witness to te stify for abuse of discretion . Vallejos , 5 2000-NMCA-075, ¶ 32. In considering whether late disclosure of evidence requires 6 reversal, a reviewing court will consider th e following factors: “(1) whether the State 7 breached some duty or intentionally deprivedthe defendant of evidence; (2) whether 8 the improperly non-disclosed evidence was material; (3) whether the non-disclosure 9 of the evidence prejudiced the defendant; and (4) whether the trial court cured the 10 failure to timely disclose the evidence.” State v. Mora , 1997-NMSC-060, ¶ 43, 124 11 N.M. 346, 950 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch , 12 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. 13 Considering these factors, we do not believe the district court abused its 14 discretion in allowing Ms. Hern to testify. Defendant does not argue that the State’s 15 late disclosure of the medical records was intentional or that it acted to prevent him 16 from taking Ms. Hern’s statement prior to trial. Additionally, for the reasons 17 discussed earlier, we do not be lieve that Defendant has established prejudice. Finally, 18 it appears that the district court cured any potential prejudice by ordering the State to 1919 turn over the medical records and to make Ms. Hern available fo r a statement before 1 she testified. Under these circumstan ces, we determine there was no abuse of 2 discretion in the trial court’s decision to allow Ms. Hern to testify. 3 Defendant next argues that the districtcourt committed fundamental error when 4 it informed the jurors at the close of the evidentiary part of the case and before closing 5 arguments that it was only submitting charges for their consideration which the 6 evidence supported. Following th e close of evidence, the district court stated to the 7 jury: 8 Ladies and Gentlemen of the jury I will now instruct you on the law that 9 you will follow in this case. Ladies and Gentlemen I am going to advise 10 you that the Defendant was charged w ith several counts. The State has 11 elected not to proceed with certaincounts and I have dismissed certain 12 counts. You’re not to concern yourse lves why the State did that or why 13 the Court decided the way that it did. It is my job to submit those crimes 14 to you for your consideration which the evidence supports. So, there 15 may be a break in the sequence of th e crimes and you’ll notice that as I 16 read the instructions. But you are only to consider the crimes that you are 17 specifically instructed on. 18 We do not believe that this c onstitutes fundamental error. See Cunningham , 19 2000-NMSC-009, ¶ 21 (“Parties alleging fundamental error must demonstrate the 20 existence of circumstances that shock the conscience or implicate a fundamental 21 unfairness within the system that would undermine judicial integrity if left 22 unchecked.” (internal quotation marks omitted )). Defendant argues that the court’s 23 statement impinged on the fairness of the trial by conveying its opinion regarding the 2420 merits of the case. See State v. Sanchez , 112 N.M. 59, 66, 811 P. 2d 92, 99 (Ct. App. 1 1991) (“A trial judge should studiously avoid making any remark or statement in the 2 presence of the jury concerning factual issues or which may be construed as 3 conveying his opinion concerning the merits of the case.”). However, we do not view 4 this as a statement that conveys the district court’s view of the ev idence. Further, the 5 court’s statement was not contained in the written instructions that were given to the 6 jury. Additionally, the jury was given UJI 14-6006 NMRA, which states in part: 7 “You are the sole judges of the facts in this case. It is your duty to determine the facts 8 from the evidence produced here in court. . . . You are to apply the law as stated in 9 these instructions to the facts as you find th em, and in this way decide the case.” The 10 jury was also given UJI 14-5020 NMRA whic h states in part: “You alone are the 11 judges of the credibility of the witnesses and the weight to be given to the testimony 12 of each of them.” We presume th e jury followed the instructions. See State v. 13 Benally , 2001-NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134 (“We presume that the 14 jury followed the instructions given by the trial court, not the arguments presented by 15 counsel.”); State v. Sellers , 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App. 1994) 16 (“There is a presumption that the jury follows the instructions they are given.”). Also, 17 as discussed earlier, the jury ac quitted Defendant of kidnapping. See Lacey , 18 2002-NMCA-032, ¶ 21 (stating that the fact th e jury acquitted the defendant of three 1921 of five charges showed that it was able to carefully apply the law to the facts). We 1 therefore do not believe thatthe district court’s statement, even if improper, 2 influenced the jury, and we rej ect this assertion of error. See Sanchez , 112 N.M. at 66, 3 811 P.2d at 99 (stating that a district court’s statement reflecting upon the weight of 4 evidence or credibility of a witness that it is likely to influence the jury is generally 5 determined to be prejudicial). 6 Finally, Defendant argues that the distri ct court erred by limiting the parties to 7 thirty minutes for closing argument. Defendant asserts that the proper standard of 8 review is abuse of discreti on. However, Defendant did not make any objection to the 9 limitation on closing arguments at trial, and we therefore review only for fundamental 10

error. See Wyman , 2008-NMCA-113, ¶ 10 (stating that“[o]n appeal, the reviewing 11 court will not consider issues not raised in the trial court unless the issues involve 12 matters of jurisdictional or fundamental error” ). Defendant claims that, because of the 13 time limits imposed by the district court, hewas unable to addre ss all of the charges 14 and evidence, and this resulted in juror c onfusion. However, we see no indication in 15 the record that the thirty-minute limitation on closing argument resulted in any 16 prejudice to Defendant. Additi onally, we believe Defendant’s bare assertion that the 17 limitation resulted in juror confusion is too speculative to constitute prejudice rising 18 to the level of fundamental error. See State v. Singleton , 2001-NMCA-054, ¶ 19, 130 1922 N.M. 583, 28 P.3d 1124 (finding no fundamentalerror where the defendant did not 1 show prejudice); see also Cunningham , 2000-NMSC-009, ¶ 21 (“Parties alleging 2 fundamental error must demonstrate the ex istence of circumstances that shock the 3 conscience or implicate a fundamental unfairness within the system that would 4 undermine judicial integrity if left unch ecked.” (internal quotation marks omitted)); 5 Sanchez , 120 N.M. at 253, 901 P.2d at 184 (stating that the district court has wide 6 discretion in controlling closing arguments). 7 Because we reject all of Defendant’s assertions of error, there is no cumulative 8

error. State v. Fike , 2002-NMCA-027, ¶ 20, 131 N.M. 676, 41 P.3d 944; see State v. 9 Fry , 2006-NMSC-001, ¶ 57, 138 N.M. 700, 126 P.3d 516 (filed 2005) (observing that 10 where no error has been established, there is no basis for a claim of cumulative error). 11 C. Prosecutorial Misconduct 12 Defendant argues that the prosecut or improperly vouched for Ms. Hern’s 13 credibility during rebuttal closing argumen t. Defendant did not object, and we 14 therefore review for fundamental error. “Fundamental error occurs when 15 prosecutorial misconduct in closing statemen ts compromises a defendant’s right to a 16 fair trial, and we will reverse a conviction despite defens e counsel’s failure to object.” 17 State v. Sosa , 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348. “As with any 18 fundamental error inquiry, we will upset a jury verdict only (1) when guilt is so 1923 doubtful as to shock the conscience, or (2) wh en there has been an error in the process 1 implicating the fundamental integrity of the judicial process.” Id. ; see State v. Barber , 2 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633 (“[W]e . . . recognize that . . . the 3 fundamental error doctrine . . . focuse s less on guilt and innocence and more on 4 process and the underlying integrity of our judicial system.”). 5 Defendant takes issue with the followi ng statements by the prosecutor during 6 rebuttal argument: 7 The simple facts as I just covered here. . . they point to the case, to the 8 facts that this actually happened. It is not a fiction. She didn’t make it 9 up. Even if there was like five percent of what he’s saying is all made 10 up, it still, the actions happened. . . . 11 They have no shame. This is all made up? This is [a] Hollywood 12 movie? No, this is true . These things actually happened. She testified. 13 Does she wish they never happened? I’m sure. Does she wish she never 14 got into this relationship? Sure, but it happened. . . . 15 If you see everything that she had reported, it’s consistent to show that 16 this really did happen. It’s truthful, was honest, and really occurred in 17 history, in time during those days between [January] fifth and the 18 seventeenth. 19 Pointing in particular to the statements, “[s]he didn’t make it up,” “this is true,” 20 and “[i]t’s truthful, was honest, and really occurred,” Defendant argues that this 21 constituted impermissible vouching for the credibility of the victim. We disagree. 22 Generally speaking, vouching involves either “invoking . . . authority and prestige of 23 the prosecutor’s office or . . . suggesti ng the prosecutor’s special knowledge.” State 2424 v. Pennington , 115 N.M. 372, 381, 851 P.2d 494, 503 (Ct. App. 1993). We see 1 nothing in the prosecutor’s statements to suggest that he was invoking the authority 2 and prestige of his office. Nor do the comments suggest the prosecutor had special 3 knowledge. Rather, the prosecutor’s comments are sufficiently focused on the 4 arguments that the other evidence and tes timony in the case was consistent with Ms. 5 Hern’s testimony so as not to raise th e concerns associated with vouching. See id. 6 (observing that the prohibition against prosecutorial “vouching stems from concerns 7 that such comments may lead a jury to rest its decisi on on the prosecutor’s personal 8 integrity or authority”). When the pros ecutor’s rebuttal argument is viewed in its 9 entirety and in light of Defendant’s closing argument, which was focused on 10 suggesting that Ms. Hern’s account of the incidents was not credible in that it 11 constituted a “fantastic story,” “too bizarre to believe,” “stretch[ing] the truth to the 12 breaking point,” and untrue because it kept changing, the prosecuto r’s statements were 13 an appropriate argument that the evidence supported Ms. Hern ’s version of the events. 14 Cf. id. (determining that the prosecutor’s refere nce to her ethical obligations followed 15 by her assertion that the w itness was not lying was impermissible vouching for the 16 credibility of the witness). For these reasons, we hold thatthe prosecutor’s statements 17 did not rise to the level of misconduct. 1825 In addition, even had error occurred, we do not believe that the prosecutor’s 1 statements rise to the level of fundamentalerror. There is no indication that the 2 prosecutor’s remarks deprived Defendant of a fair trial, and we again note that the jury 3 acquitted Defendant of kidnapping, the most serious of the charges he faced. Cf. State 4 v. Wildgrube , 2003-NMCA-108, ¶ 33, 134 N.M. 262, 75 P.3d 862 (determining that 5 the defendant was not prejudiced by the pros ecutor’s isolated remark because the jury 6 acquitted the defendant of one of the char ges indicating that the prosecutor did not 7 undermine the jury’s ability to judge the evidence fairly). 826 D. Double Jeopardy 1 Defendant argues that his right to be free from double jeopardy was violated 2 when his sentences for aggravated assau lt and aggravated battery with a deadly 3 weapon were enhanced by one year pursuant to NMSA 1978, Section 31-18-16(A) 4 (1993). Section 31-18-16(A) provides that the basic sentence of imprisonment for a 5 non-capital felony shall be enhanced by one year upon a finding that a firearm was 6 used in the commission of the crime. 7 “Among its protections, the double jeopardy clause protects a defendant against 8 multiple punishments for the same offense.” State v. Gonzales , 2007-NMSC-059, 9 ¶ 11, 143 N.M. 25, 172 P.3d 162. “In cases where the defendant is charged with 10 violation of multiple statutes for the same conduct (“double-description” cases), we 11 must determine whether the [L]egislature intended to authorize multiple punishments 12 for the same offense.” Id .; see State v. Caldwell , 2008-NMCA-049, ¶ 10, 143 N.M. 13 792, 182 P.3d 775 (“The sole limitation on multip le punishments is legislative intent.” 14 (internal quotation marks and citation omitte d)). “Absent a clear expression of 15 legislative intent, a court first must apply the Blockburger [ v. United States , 284 U.S. 16 299 (1932),] test to the elements of each statute.” Swafford v. State , 112 N.M. 3, 14, 17 810 P.2d 1223, 1234 (1991). “In applying the Blockburger test, this Court compares 18 the elements of each crime with the elements of the other to determine whether the 1927 Legislature intended separate punishments under each statute.” State v. Lee , 1 2009-NMCA-075, ¶ 9, 146 N.M. 605, 213 P.3d 509. “In applying the Blockburger 2 test, if we conclude that each statute requi res proof of an element that the other does 3 not, then a presumption arises that our [L ]egislature intended for the conduct to result 4 in separately punishable offenses.” Caldwell , 2008-NMCA-049, ¶ 11. 5 In State v. Charlton , 115 N.M. 35, 846 P.2d 341 (Ct. App. 1992), this Court 6 held that imposition of the firearm enhancement on a conviction for aggravated assault 7 with a deadly weapon does not violate double jeopardy because the Legislature 8 intended to impose multiple punishments. See id. at 40-41, 846 P.2d at 346-47 9 (determining that the aggravated assault w ith a deadly weapon st atute and the firearm 10 enhancement statute each contain an el ement that the other does not). In State v. 11 Gonzales , 95 N.M. 636, 638-39, 624 P.2d 1033, 1035-37 (Ct. App. 1981), overruled 12 on other grounds by Buzbee v. Donnelly , 96 N.M. 692, 634 P.2d 1244 (1981), this 13 Court determined that imposition of the firearm enhancement on a conviction for 14 aggravated battery with a deadly w eapon does not violate double jeopardy. See State 15 v. Gabaldon , 92 N.M. 230, 234-35, 585 P.2d 1352, 1356-57 (Ct. App. 1978) 16 (determining that imposition of a firearm enhancement on a c onviction for robbery 17 while armed with a deadly weapon did not violate double jeopardy). 1828 Defendant argues that our case law can be distinguished and asks us to compare 1 the elements of the offenses as stated in the jury instructions for aggravated battery 2 and aggravated assault with the firearm e nhancement jury instruction to determine 3 whether the offenses require proof of an element that the other does not. Defendant 4 argues that, because the jury was specifically instructed that it had to find that 5 Defendant used a firearm in order to convicthim of aggravated battery and aggravated 6 assault, the crimes do not each contain a di fferent element, and the offenses should 7 merge. However, in determining whether the conviction of multiple offenses for 8 unitary conduct violates double jeopardy, we examine the relevant statutes, not the 9 jury instructions. See State v. Franco , 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 10 P.3d 1104 (stating that “[u]nder the Blockburger test, [appellate courts] compare the 11 elements of the relevant statutes to de termine whether the Legislature intended to 12 authorize separate punishments under each statute”); State v. Carrasco , 13 1997-NMSC-047, ¶ 23, 124 N.M. 64, 946 P. 2d 1075 (“We answer the question of 14 whether the Legislature intended multiplepunishments for unitary conduct by asking 15 whether each statute proscribing the offense requires proof of a fact the other does 16 not.”). Defendant cite s to no authority for his argument that the relevant inquiry is the 17 jury instructions, and we therefore assume that none exists. See In re Adoption of 18 Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that an appellate court 1929 will not consider an issue if no authority is cited in support of the issue and will 1 assume no such authority exists). We therefore reject Defendant’s argument that his 2 right to be free from double jeopardy was violated by imposition of the firearm 3 enhancement in this case. 4 III. Conclusion 5 For these reasons, we affirm Defendant’s convictions and sentence. 6 IT IS SO ORDERED. 7

__________________________________ 8 JONATHAN B. SUTIN, Judge 9

WE CONCUR: 10

____________________________ 11 JAMES J. WECHSLER, Judge 12

____________________________ 13 LINDA M. VANZI, Judge 14