This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 35,410 4 DUSTIN L. GARRISON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 WECHSLER, Judge. 172 {1} Defendant appeals his convictions for four counts of first degree Criminal 1 Sexual Penetration (Child under 13). We issued a calendar notice proposing to affirm. 2 Defendant has responded with a me morandum in opposition. We affirm. 3 Admission of Exhibits 4 {2} Defendant continues to challenge the di strict court’s admission of the State’s 5 Exhibits No. 2 and No. 3. [MIO 5] “With respect to the admission or exclusion of 6 evidence, we generally apply an abuse of discretion standard wh ere the application of 7 an evidentiary rule involves an exercise of discretion or judgment, but we apply a de 8 novo standard to review any interpretations of law underlying the evidentiary ruling.” 9 Dewitt v. Rent-A-Center, Inc. , 2009-NMSC-032, ¶ 13, 146 N.M. 453, 212 P.3d 341. 10 {3} Defendant argues that the challenged exhibits were not authenticated, were not 11 relevant, and were prejudicial. [MIO] Exhibit No. 2 was Defendant’s Facebook 12 account profile, which Child identified as part of her testimony relating to 13 communications with Defendant. [DS 2] Defendant argues that the Facebook page 14 could have been fabricated and claims that this type of social media is susceptible to 15 manipulation by third parties. [MIO 6-8] Ho wever, for purposes of authentication, the 16 exhibit was authenticated under Rule 11-901(B)(2) NMRA, because Child was a 17 witness with knowledge. Defendant’s argument of fabrication poses a question of the 18 weight of the evidence, not one of admi ssibility. Because the authentication in this 193 case satisfied Rule 11-901(B)(2), we do not need to address Defendant’s reliance on 1 out-of-state authority. [MIO 6-8] We note, however, that the test cited by Defendant 2 would require him to verify authenticity, which, as applied here , would be contrary 3 to the right against incrimination. [MIO 8] 4 {4} The exhibit was highly relevant, becauseit was part of the State’s case that 5 Defendant and Child used Facebook for co mmunications relating to activities that 6 formed the basis of the charges against Defendant. [MIO 4] We alsoconclude that the 7 district court acted within its discretion indetermining that the highly probative nature 8 of the exhibit outweighed any prejudice. [MIO 4] 9 {5} Exhibit No. 3 was an exhibit of a transcript of communications on the 10 aforementioned Facebook account between Defendant and Child’s stepmother, who 11 had posed as Child after sh e became suspicious of the account activities. [MIO 3] As 12 with Exhibit No. 2, we conclude that th e stepmother’s in-court testimony provided the 13 requisite authentication under Rule 11-901(B)(2 ). The transcript was relevant because 14 it contained incriminating statements by Defendant, and the probative value 15 outweighed any prejudice. [MIO 3; DS 5] 16 Jury Instruction 17 {6} Defendant continues to claim that th e district court erred in only orally 18 instructing the jury on UJI 14-105 NMRA, relating to the exhibits, instead of giving 194 the jury a written instruction. [MIO 9] However, the Use Note for UJI 14-105 1 specifically states that the instruction does not go to the jury room. Because the district 2 court read [RP 231] the instruction after bei ng requested to do so, the district court did 3 not err with respect to this issue. 4 Witness Testimony 5 {7} Defendant continues to clai m [MIO 10] that the distri ct court erred in allowing 6 his ex-wife to testify concerning his si gnature. This testimony was admissible under 7 Rule 11-901(B)(2) NMRA, which allows non-expert opinion from a witness who is 8 familiar with the handwriting at issue. To th e extent that Defendant believed that his 9 ex-wife was biased against him, her credibility was a matter for the fact finder to 10 resolve. See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 11 (recognizing that it is for the fact finder to resolve any conflict in the testimony of the 12 witnesses and to determine where the weight and credibility lie). 13 {8} For the reasons discussed above, we affirm. 14 {9} IT IS SO ORDERED. 15

________________ ________________ 16 JAMES J. WECHSLER, Judge 17 WE CONCUR: 18

________________________________ 19 M. MONICA ZAMORA, Judge 205 ________________________________ 1 TIMOTHY L. GARCIA, Judge

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