This memorandum opinion was not selected for pub lication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 filed 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. 33,626 4 ERESMO BACA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 7 Mary L. Marlowe, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 David Henderson, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 FRY, Judge. 17
{1} Defendant appeals his conviction for aggravated battery (great bodily harm). 18 Our notice proposed to affirm, and Defe ndant filed a memorandum in opposition and 192 motion to amend the docketing statement. We deny Defendant’s motion to amend and 1 remain unpersuaded by Defendant’s arguments. We therefore affirm. 2
{2} As an initial matter, we note that the memorandum in opposition’s designation 3 of the issues does not correlate with the de signation of the issues as provided in the 4 docketing statement and notice. For consistency, we conti nue to designate the issues 5 as provided in the docketing statement and notice, and request that counsel maintain 6 consistency in any future pleadings he may file in this Court. 7
{3} In issue (1), Defendant c ontinues to argue that the district court erred in 8 admitting evidence that Victim died from hi s injuries. [DS 19; MIO 15] As set forth 9 in our notice, to prove the element of great bodily harm as required for Defendant’s 10 aggravated battery conviction, seeNMSA 1978, § 30-3-5(C) (1969), the State relied 11 on the doctors’ testimony describing Vic tim’s injuries, which included testimony 12 relating Victim’s death as a consequence of his injuries. [CN 3] In his memorandum 13 in opposition, Defendant disputes the no tice’s view that Victim’s death was 14 inseparable from the doctors ’ thorough description of th e extent and severity of 15 Victim’s injuries as they related to great bodily harm. [MIO 18] In doing so, 16 Defendant asserts that Victim’s great bodily harm could have been proved without 17 specifically referencing Victim’s death, for example, by relying on evidence that 18 Victim suffered “severe skull fractures and numerous intra-cranial hematomas” [MIO 193 16] and that Victim was hospitalized and placed on life support for nine days. [MIO 1 17] Given this evidence, rather than admit evidence of Victim’s actual death, 2 Defendant argues that the State could have instead asked the docto rs whether Victim’s 3 injuries were the kinds of injuries that are normally life-threatening and/or typically 4 result in permanent or prolonged impairment. [MIO 17] 5
{4} However, the circumstances of this case do not call for any elicitation of 6 opinion testimony from the doctors as to whether Victim’s injuries were life7 threatening or could result in permanent impairment, because Vic tim’s death in fact 8 amply demonstrated that he suffered great bodily harm. See, e.g. , State v. Dominguez , 9 2005-NMSC-001, ¶ 11, 137 N.M . 1, 106 P.3d 563 (recognizing that “[f]actually, 10 evidence that an injury has actually cause d death may be used to demonstrate the 11 element of great bodily harm”), overruled on other grounds by State v. Montoya , 12 2013-NMSC-020, ¶ 54, 306 P.3d 426. And given that Victim’s death was integrally 13 related to his head injury, Defendant’s continued comparison to the circumstances in 14 State v. Aragon , 1993-NMCA-076, 116 N.M . 291, 861 P.2d 972, overruled on other 15 grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37, 275 P.3d 110, is misguided. [DS 16 20; MIO 18-19] In Aragon , consideration of whether references to the victim’s death 17 merited a mistrial was a more sensitive matter for a number of reasons, including that 18 “medical evidence indicated th at the cause of the victim’s death may have related to 194 subsequent medical treatment” rather than to the serious head injuries inflicted upon 1 him by the defendant. 1993-NMCA-076, ¶ 1. Incontrast, in this case, the fact of 2 Victim’s death was directly related to the extent and severity of the injuries inflicted 3 by Defendant, and therefore was properly admitted to prove great bodily harm. 4
{5} And lastly, the fact that Victim’s death was highly probative and competent 5 evidence for purposes of proving great bodilyharm is not a reason by itself to deem 6 it too prejudicial. [DS 17; MIO 16, 17] See, e.g. , State v. Otto , 2007-NMSC-012, ¶ 16, 7 141 N.M. 443, 157 P.3d 8 (providing that evidence is not unfairly prejudicial simply 8 because it may tend to inculp ate a defendant). Similarly, Defendant’s speculation that 9 Victim’s death inflamed th e jury’s passions [MIO 18] does not compel exclusion of 10 the fact of Victim’s death. See State v. Flores , 2010-NMSC-002, ¶ 34, 147 N.M. 542, 11 226 P.3d 641 (recognizing that the fact that some jurors might find probative evidence 12 offensive or inflammatory does not nece ssarily require its exclusion). Instead, 13 because Victim’s death was inte grally related to the extent and severity of his injuries, 14 we conclude that the district court did not abuse its discretion in admitting evidence 15 of Victim’s death to prove great bodily harm. See State v. Kent , 2006-NMCA-134, ¶ 16 18, 140 N.M. 606, 145 P.3d 86 (providing that we examine the admission of evidence 17 for abuse of discretion, and the district court’s determination will not be disturbed 18 absent a clear abuse of such discretion). 195 {6} In issue (2), Defendant continues to argue that the district court erred in 1 admitting photographs of Victim’s injuries because they were cumulative of the 2 doctors’ testimony. [DS 19; MIO 15, 19] As set forth in our notice, the photographs 3 were used by the doctors to aid them in de scribing the extent and severity of Victim’s 4 injuries [DS 15-16] Given this, we concludethat the district court did not abuse its 5 discretion in admitting the photographs. See State v. Pettigrew , 1993-NMCA-095, 6 ¶ 10, 116 N.M. 135, 860 P.2d 777 (recognizing th at the reviewing court gives trial 7 courts great discretion in balancing the prejudicial impact of a photograph against its 8 probative value); State v. Ho’o , 1982-NMCA-158, ¶¶ 19-20, 99 N.M. 140, 654 P.2d 9 1040 (holding that photographs are properly admitted within the discretion of the trial 10 court when they are corroborative of other relevant evidence adduced at the trial and 11 reasonably relevant to material issues at trial). 12
{7} In issue (3), Defendant continues to ch allenge the sufficien cy of the evidence 13 to support his conviction [DS 19], specifically arguing that the State failed to prove 14 that Defendant unlawfully caused great bodily harm to Victim. [MIO 9] See generally 15 State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (setting forth 16 our standard of review). 17
{8} When reviewing Defendant’s sufficiencychallenge, we consider the evidence 18 that when the fight was over and Victim was in a kneeling positi on, Defendant ran up 196 to Victim from several feet away, jumped intothe air and hit Victim in the back of his 1 head with his fist, and caused Victim tofall to the ground. [DS 11, 12; MIO 12] We 2 consider also that a witness heard a “big sound like somebody hitting the ground very 3 hard” [DS 15; MIO 5, 9, 13], and that Victim suffered severe head injuries [DS 4, 16] 4 that led to his coma and death. [DS 15] Based on the foregoing evidence, we conclude 5 that a jury could reasonably determine that Defendant unlawfully caused Victim’s 6 head injury by jumping and hitting Victim on the head with such force that it caused 7 Victim, in turn, to fall from his kneeli ng position and hit his head on the ground with 8 a corresponding force that caused him great bodily harm. See generally State v. 9 Sparks , 1985-NMCA-004, ¶¶ 6-7, 102 N.M. 317, 694 P.2d 1382 (defining substantial 10 evidence as evidence th at a reasonable person would c onsider adequate to support a 11 defendant’s conviction). 12
{9} Despite this evidence, Defendant emphasizes several arguments in his 13 continued sufficiency challenge. First, De fendant points out that there were two 14 incidents during the altercation where Victim fell to the ground [MIO 12]: the first 15 incident where Victim “landed the first punc h” [MIO 4] and was the first aggressor 16 [MIO 13], causing both Victim and Defendant to fall to the ground from standing 17 positions [MIO 3, 4]; and the second incident, as described above, where 18 Defendant—after the fight was over—ran and jumped into the air and hit kneeling 197 Victim in the back of his head with his fist, causing Victim to fall to the ground and 1 hit his head. [DS 11, 12; MIO 12] In Defendant’s view, Victim’s actions in the first 2 incident—against which Defendant conte nds he lawfully defended himself—caused 3 Victim to fall to the ground and suffer his consequent head injuries. [MIO 12-14] 4
{10} While Defendant believes the first inci dent for which he asserts he bore no 5 responsibility was the cause of Victim’s head injuries, it was the fact finder’s 6 prerogative to weigh the evidence and rejectDefendant’s version of which incident 7 caused Victim’s head injuries. See generally State v. Salas , 1999-NMCA-099, ¶ 13, 8 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact finder to resolve any 9 conflict in the testimony of the witnesses and to determine where the weight and 10 credibility lay); State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 11 (recognizing that the jury is free to reject the defendant’s version of the facts). Thus, 12 Defendant’s assertion that the evidence wa s “equally consistent” with his hypothesis 13 of innocence that the first incident cause d Victim’s great bodily harm [MIO 10-11] 14 is unavailing because, by convi cting Defendant, the fact finder necessarily found the 15 hypothesis of guilt more reasonable than the hypothesis of innocence. See State v. 16 Montoya , 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393 (“When a defendant 17 argues that the evidence and inferences present two equally reasonable hypotheses, 18 one consistent with guilt and another consistent with innocence, our answer is that by 198 its verdict, the [fact finder] has n ecessarily found the hypothesis of guilt more 1 reasonable than the hypothesis of innocence.”). 2
{11} We consider also Defendant’s argument that the “physical facts of the case” 3 [MIO 11] do not support a conclusion that Victim suffered great bodily harm as a 4 consequence of the fall in the second incide nt. [MIO 13] As support for this argument, 5 Defendant refers to testimony of Dr. Melisi, who testified that it was unlikely that 6 Victim’s head injuries were caused by a punch to the head and more likely that the 7 injuries were caused by a fall. [MIO 7, 13] In addition, Defendant refers to the 8 testimony of Dr. Proe, who opined that the fo rce necessary to cause Victim’s injuries 9 was greater than from a punch to the head[MIO 14] and could not have happened 10 from a fall from a kneeling position. [MIO 8] While Defendant views the doctors’ 11 testimony as precluding a finding that the fall in the second incident caused Victim’s 12 head injuries, we conclude that the jury could have reasonably determined otherwise. 13 In this regard, the jury could have vi ewed the doctors’ cumulative testimony that 14 Victim’s head injuries werecaused by a fall, and conclude d that Victim’s fall from his 15 kneeling position, compounded by the force of De fendant’s fist hit to Victim’s head, 16 caused the injuries. 17
{12} We lastly consider Defendant’s moti on to amend the docketing statement to 18 argue two un-preserved jury instruction issues. See State v. Benally , 2001-NMSC-033, 199 ¶ 12, 131 N.M. 258, 34 P.3d 1134 (providing that if a jury instruction issue has not 1 been preserved, this Court reviews for fundamental error); see also State v. Sandoval , 2 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016 (providing that when this Court 3 reviews jury instructions for fundamental error, we will only reverse the jury verdict 4 if doing so is “necessary to prevent a mis carriage of justice” (internal quotation marks 5 and citation omitted)). First, Defendant seeks to argue that“[f]undamental error arose 6 from the [district] court’s instruction to the jury on the first aggressor limitation to 7 self-defense when there was no evidence th at [Defendant] started the fight.” [RP 137; 8 MIO 20] This argument is unavailing. As disc ussed, evidence was presented that after 9 the [initial] fight was “over” [MIO 7, 9], Defendant instigated the second incident by 10 running up to the kneeling Victim and hitting hi s head with his fist with such force 11 that it caused Victim to fall down and hit his head on the ground. Because there was 12 evidence Defendant started another fightby instigating the second incident, 13 submission of the first aggressor jury instruction was appropriate. Because we 14 conclude this issue is not viable, we de ny Defendant’s motion to amend to add this 15 issue. See State v. Sommer , 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 16 (denying a motion to amend the docketing statement based upon a determination that 17 the argument sought to be raised was not viable). 1810 {13} Defendant additionally seeks to amend his docketing statement to argue that 1 fundamental error arose because the self-d efense jury instruction [RP 135] did not 2 instruct the jury on multiple assailant principles, but instead gave only a simple self3 defense instruction. [MIO 24; RP 135] See generally State v. Cooper , 1999-NMCA4 159, ¶ 11, 128 N.M. 428, 993 P.2d 745 (providing that “[i]f supported by the 5 evidence, the defendant is entitled to a se lf-defense instruction in which the jury 6 considers threatened harm from all assailants, not just the one against whom the 7 defendant may have retaliate d”). As support for his argument, Defendant provides that 8 the jury heard evidence that Defendant “told the police when he was confronted by 9 three aggressive panhandlers, and [Victim] began to threaten him, he became afraid 10 of all three men.” [MIO 24] While Defendant assertedly felt afraid of all three men, 11 there is no indication that anyone other than Victim overtly threatened him. Cf. id. 12 (“When two or more persons undertake overt action to harm another , the victim may 13 use an appropriate amount of force to defend himself against either aggressor, or both 14 of them.” (emphasis added)). Moreover, Defendant was nonetheless not prevented 15 from presenting his version of the events—n amely, that his actions in the second 16 incident were premised on his belief that “ one or both of the other two men might also 17 physically attack him now that their frie nd [Victim] had fallen,” and that his actions 18 in the second incident were thus necessary to make sure that Victim was no longer a 1911 threat for purposes of joining in an attack along with his friends. [MIO 26] See 1 generally Sandoval , 2011-NMSC-022, ¶ 29 (concluding that the omission of one of 2 the assailants in the self-defense jury instruction did not constitute fundamental error 3 because the defendant was not precluded fro m presenting his multiple assailant theory 4 to the jury). Because we conclude this issu e is not viable, we deny Defendant’s motion 5 to amend to add this issue. See Sommer , 1994-NMCA-070, ¶ 11 (denying a motion 6 to amend the docketing statement based upon a determination that the argument 7 sought to be raised was not viable). 8
{14} To conclude, based on the reasoning set forth in our notice and in the foregoing 9 discussion, we affirm. 10
{15} IT IS SO ORDERED. 11

12 CYNTHIA A. FRY, Judge 13 WE CONCUR: 14

15 JONATHAN B. SUTIN, Judge 16

17 TIMOTHY L. GARCIA, Judge 18