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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 32,010

5 LAZARO MOLINA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

8 Fernando R. Macias, District Judge

9 Gary K. King, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Russell Dean Clark, LLC

13 Russell Dean Clark

14 Las Cruces, NM

15 for Appellant

16 MEMORANDUM OPINION

17 SUTIN, Judge.
2

1 Defendant Lazaro Molina appeals from his convictions for fraud (over $20,000)

2 and Medicaid fraud (false/excessive claims). [RP 373] We issued a calendar notice

3 proposing to summarily affirm. Defendant filed a motion to amend the docketing

4 statement and memorandum in opposition to proposed summary affirmance. We deny

5 Defendant’s motion to amend and affirm Defendant’s convictions.

6 A. Memorandum in Opposition

7 In his docketing statement, Defendant argued his convictions should be

8 reversed because: (1) the district court erred in admitting into evidence two exhibits

9 pursuant to the business records exception to the hearsay rule, (2) there was

10 insufficient evidence to support his convictions, and (3) the count alleging Medicaid

11 fraud (false/excessive claims) should have been dismissed on double jeopardy

12 grounds. Our calendar notice proposed to affirm on all three issues. 

13 In his memorandum in opposition, Defendant does not contest our proposed

14 affirmance on sufficiency of the evidence or double jeopardy grounds. By not

15 contesting our proposed disposition, Defendant has abandoned these issues. See

16 Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927

17 P.2d 41 (recognizing that issues raised in a docketing statement, but not contested in

18 a memorandum in opposition, are abandoned).
3

1 In his memorandum in opposition, Defendant continues to argue that the district

2 court erred in admitting into evidence two exhibits pursuant to the business records

3 exception to the hearsay rule. [MIO 8] As described by Defendant, these exhibits

4 were collections of purported ledgers and checks that the State claimed showed how

5 Defendant and Arcilia Holguin divided funds received as a result of alleged improper

6 billing. [MIO 5] In our calendar notice, we proposed to conclude that the district

7 court did not abuse its discretion in admitting the challenged exhibits, noting we have

8 broadly interpreted the “other qualified witness” language contained in Rule 11-

9 803(F) NMRA (2007) (amended 2012). Even if the district court abused its discretion

10 in admitting the exhibits, we proposed to affirm on the grounds that any error was

11 harmless under State v. Tollardo, 2012-NMSC-008, ¶¶ 25-44, 275 P.3d 110. We

12 explained that on the record before us we did not perceive a reasonable probability

13 that the admission of the challenged exhibits affected the verdict.

14 In his memorandum in opposition, Defendant maintains the district court erred

15 in admitting the exhibits because the testifying witness, Santiago Baca, was not an

16 “other qualified witness” within the meaning of Rule 11-803(F). [MIO 12-13]

17 Defendant does not, however, address our proposed affirmance on harmless error

18 grounds. We have carefully reviewed the record and continue to believe that even if

19 the district court abused its discretion in admitting the exhibits, the error was harmless.
4

1 There is no indication that Defendant disputed that he received funds from the alleged

2 improper billing; instead, he disputed his role and argued he should not be held

3 responsible for any improper billing. [MIO 4-5] In addition, as discussed in the

4 calendar notice, Defendant was able to question Baca in such a way as to challenge

5 the weight the jury should afford to the exhibits. On cross-examination, Baca testified

6 that he did not know who prepared the exhibits and did not know whether the exhibits

7 were accurate. [DS 10] In considering whether an error with respect to the admission

8 of evidence was harmless, “the central inquiry [is] whether [the] error was likely to

9 have affected the jury’s verdict.” Tollardo, 2012-NMSC-008, ¶ 42. Here, for the

10 reasons discussed earlier and as explained in detail in our calendar notice, we

11 conclude that any error was harmless and thus affirm Defendant’s convictions.

12 B. Motion to Amend the Docketing Statement

13 Defendant seeks to amend the docketing statement to argue the district court

14 erred in admitting two exhibits into evidence because they were not related to the

15 State’s case and therefore were misleading and confusing in violation of Rule 11-403

16 NMRA. [MIO 7] This issue involves the same two exhibits already discussed, a

17 collection of purported ledgers and checks that arguably showed that Defendant

18 shared in certain payments received as a result of alleged improper billing. [MIO 13]
5

1 We will grant a motion to amend the docketing statement to include an

2 additional issue if the motion (1) is timely, (2) states all facts material to a

3 consideration of the new issue sought to be raised, (3) explains how the issue was

4 properly preserved or why it may be raised for the first time on appeal, (4)

5 demonstrates just cause by explaining why the issue was not originally raised in the

6 docketing statement, and (5) complies in other respects with the appellate rules. State

7 v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). We will deny a

8 motion to amend that raises an issue that is not viable. State v. Moore, 109 N.M. 119,

9 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State v.

10 Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

11 As an initial matter, there is no indication that the issue Defendant seeks to add

12 was preserved for our review. In both the docketing statement and the memorandum

13 in opposition, Defendant states that he objected to the introduction of the challenged

14 exhibits for “lack of foundation.” [DS 9; MIO 5] Defendant now seeks to argue that

15 the exhibits should have been excluded as misleading and confusing. “Generally, a

16 party may not claim error predicated upon the admission of evidence unless the record

17 shows a timely and specific objection.” Ennis v. Kmart Corp., 2001-NMCA-068, ¶

18 24, 131 N.M. 32, 33 P.3d 32. An exception exists where an error is plain and affects
6

1 substantial rights, but Defendant does not contend that the admission of the exhibits

2 constituted plain error. See id.

3 Turning to the merits, Defendant does not contend there was a reasonable

4 probability that the admission of the challenged exhibits affected the verdict. Thus,

5 as discussed earlier, any error was harmless. See State v. Barr, 2009-NMSC-024,

6 ¶ 53, 146 N.M. 301, 210 P.3d 198 (“[A] non-constitutional error is harmless when

7 there is no reasonable probability the error affected the verdict.”), overruled on other

8 grounds by Tollardo, 2012-NMSC-008. This proposition is true regardless of whether

9 the exhibits were wrongfully admitted for lack of foundation or wrongfully admitted

10 as misleading and confusing. 

11 Because Defendant does not adequately explain how the issue he seeks to add

12 was preserved in the district court and because, putting preservation aside, the issue

13 is not viable, we deny Defendant’s motion to amend the docketing statement. For the

14 reasons discussed in this Opinion and in our calendar notice, we affirm Defendant’s

15 convictions.

16 IT IS SO ORDERED.

17 __________________________________

18 JONATHAN B. SUTIN, Judge

19 WE CONCUR:
7

1 _______________________________

2 LINDA M. VANZI, Judge

3 _______________________________

4 J. MILES HANISEE, Judge