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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 33,885 4 JESSE MIGUEL BUSCHALLA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Santa Fe, NM 13 Sergio J. Viscoli, Assi stant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant Jesse Miguel Busc halla filed a docketing st atement, appealing from 1 his convictions for receiving stolen property and conspiracy to receive stolen property. 2 [DS 2; RP 1, 170] In this Court’s noti ce of proposed disposition, we proposed to 3 affirm. [CN 1, 11] Defendant filed a memorandum in opposition. We have given due 4 consideration to the memorandum in opposition and remaining unpersuaded, we 5 affirm Defendant’s convictions. 6 Due Process 7 {2} Defendant continues to argue that he was denied due process when the State 8 violated the district court’s order in limine that no testimony be elicited and no 9 reference be made to uncharged misconduct. [MIO 13] In our notice of proposed 10 disposition, we suggested that Defendant had failed to preserve his argument. [CN 11 2-3] In response, Defendant states that the argument was preserved because “trial 12 counsel objected during the trial as was noted . . . in the recitation of facts.” [MIO 13] 13 Defendant contends that the question is, therefore, “whether the mention of the 14 uncharged conduct prejudiced [Defendant’s] right to a fair trial.” [MIO 13] In other 15 words, Defendant contends that he was de nied due process and did not receive a fair 16 trial because the State’s witnesses menti oned the uncharged c onduct, even though the 17 court sustained Defendant’s objection to such testimony. [MIO 13-16] 183 {3} Nowhere in Defendant’s recitation of facts, however, does Defendant show 1 where he preserved his argument that the witnesses’ raising the uncharged conduct 2 violated his due process or his right to a fair trial. Although Defendant did object to 3 the discussion of the uncharged conduct itself, he did not then argue that the State’s 4 failure to comply with the court’s order in limine deni ed Defendant due process or 5 impinged on his right to a fair trial. [ SeeMIO 2-12] 6 {4} Specifically, prior to trial, in respons e to Defendant’s motion in limine, the 7 district court stated that witnesses were permitted to specify certain tools if they were 8 able to do so, even if such items were not included in the criminal information, but 9 they were not permitted to simply state that “bags were brought over.” [MIO 1] The 10 court further stated that w itnesses were not permitted to “mention items that are not 11 charged unless the witness can tie specific items to . . . [D]efendant.” [MIO 1] 12 {5} At trial, one witness stated that “some of the tools and items” that had gone 13 missing “were recovered” and sp ecified “[t]he pellet gun, jacket, torch, and . . . drill 14 set[.]” [MIO 2] Defendant objected to this testimony based on the court’s order in 15 limine, arguing that “it was unduly prejudicialto mention these items” and that “none 16 of these items were listed in the State’s In formation.” [MIO 2-3] The court ordered 17 the State to “stick with items that werecharged in the Information.” [MIO 3] 184 Defendant’s recitation of fact s shows no further objections with regard to the second 1 witness’s testimony. [MIO 3] 2 {6} The next witness mentioned a dolly that had gone missing and was later 3 recovered in a nearby yard. [MIO 4] De fendant again objected based on the court’s 4 order in limine but the court allowed the State to discuss the dolly as it related to the 5 foundation the State was establishing. [MIO 4] Defendant’s rec itation of facts shows 6 no further objections with regard to th e second witness’s testimony. [MIO 4-5] 7 {7} According to Defendant’s recitation of facts, Defendant did not object to the 8 testimony of the remaining witnesses. [M IO 5-11] When Defendant moved for a 9 directed verdict, he argued simply that there was no proof that Defendant knew or 10 believed that the goods were stolen or thatthe goods were disposed of. [MIO 11-12] 11 Thus, although Defendant objected to speci fic testimony with regard to the two 12 witnesses, objections that werepartially sustained as appli cable to the order in limine 13 [MIO 2-5], nowhere in Defendant’s recitation of facts does he state that Defendant 14 moved the court for a new trial on the grounds that he was denieddue process or a 15 right to a fair trial. [MIO 2-12] Defendant has failed to show us where in the record 16 such argument was preserved, and we will not search the record to support 17 Defendant’s arguments. See State v. Clements , 2009-NMCA-085, ¶ 19, 146 N.M. 18 745, 215 P.3d 54 (“This Court will not search the record to find wh ether an issue was 195 preserved where [the d]efendant does not re fer this Court to appropriate transcript 1 references.”). As the issue was not preserved, we do not reach the merits. See 2 Woolwine v. Furr’s, Inc. , 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To 3 preserve an issue for review on appeal, it mu st appear that appellant fairly invoked a 4 ruling of the trial court on the same grounds argued in the appellate court.”); see also 5 Rule 12-216(A) NMRA (“To preserve a ques tion for review it must appear that a 6 ruling or decision by the district court was fairly invoked[.]”). 7 Renate Osterholt’s Testimony 8 {8} Defendant continues to argue that eventhough his arguments that the testimony 9 of Renate Osterholt denied him a fair trial and was unduly prejudicial were not 10 preserved, he was neverthele ss denied a fair trial becauseof the testimony. [MIO 16- 11 17] In our notice of proposed disposition, we proposed to conclude that the issues 12 were unpreserved. [CN 3-7] Defendant has not asserted any new arguments, issues, 13 or authorities to allow this Court to cons ider the merits of the unpreserved argument 14 [MIO 16-17], so we hold that Defendant ’s second and third arguments were not 15 preserved, and we do not reach the merits. See Woolwine , 1987-NMCA-133, ¶ 20 16 (“To preserve an issue for review on app eal, it must appear that appellant fairly 17 invoked a ruling of the trial court on the samegrounds argued in the appellate court.”); 186 see also Rule 12-216(A) (“To preserve a question for review it must appear that a 1 ruling or decision by the district court was fairly invoked[.]”). 2 Sufficiency of the Evidence 3 {9} Defendant continues to argue that there was insufficient evidence to find that 4 Defendant knew or believed th e property was stolen or to find that Defendant helped 5 dispose of it. [MIO 18] We have already addressed Defendant’s argument that there 6 was insufficient evidence to support a findi ng that Defendant knew or believed that 7 the goods were stolen in our notice of proposed disposition. [CN 7-11] Defendant 8 does not present new facts, arguments, or au thority to convince us to reconsider our 9 proposed disposition. [MIO 18-19] As we have previously stated, there was 10 testimony from various witnesses that they suspected the items were stolen, which 11 may have led the jury to conc lude the same. [CN 9] De fendant’s recitation of facts 12 does not dissuade us that our prior position was incorrect. [ SeeMIO 6-10] 13 Accordingly, we refer Defendant to our responses in our notice of proposed 14 disposition. [CN 7-11] 15 {10} To the extent Defendant contends that everyone’s suspicions were assuaged by 16 Leo Carter’s assurances, despite the fact that no one seemed to know him very well, 17 and that no one, including Defendant w ho was with Carter the entire time Carter 18 attempted to dispose of the items, believed the items were stolen, the jury was free to 197 reject Defendant’s interpretation of the evidence. See State v. Rojo , 1999-NMSC-001, 1 ¶ 19, 126 N.M. 438, 971 P.2d 829 (stating that“the jury is free to reject [the 2 d]efendant’s version of the facts”); see also State v. Salas , 1999-NMCA-099, ¶ 13, 3 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any 4 conflict in the testimony of the witnesses and to determine wh ere the weight and 5 credibility lie). We do not reweigh the ev idence or substitute our judgment for that 6 of the fact-finder as long as there is su fficient evidence to support the verdict. State 7 v. Griffin , 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156. 8 {11} With regard to Defendant’s argument that there was insufficient evidence to 9 support a finding that he helped dispose of the items, we note that Defendant did not 10 raise this issue in his docketing statemen t. Accordingly, we treat Defendant’s 11 inclusion of this new argument as a moti on to amend the docketing statement, and we 12 deny the motion because the issue is not viable. See State v. Sommer , 1994-NMCA13 070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to amend the docketing 14 statement based upon a determination that the argument sought to be raised was not 15 viable). 16 {12} “In reviewing the sufficiency of the ev idence, [an appellate court] must view 17 the evidence in the light most favorable to the guilty verdict, indulging all reasonable 18 inferences[,] and resolving all conflicts in the evidence in favor of the verdict.” State 198 v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The relevant 1 question is whether, after viewing the evidence in the light most favorable to the 2 prosecution, any rational trier of fact coul d have found the essential elements of the 3 crime beyond a reasonable doubt.” Id. (alteration, emphasis, internal quotation marks, 4 and citation omitted). “Substantial eviden ce review requires analysis of whether 5 direct or circumstantial substantial evidence exists and supports a verdict of guilt 6 beyond a reasonable doubt with respect to ev ery element essential for conviction.” 7 State v. Kent , 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. 8 {13} As stated in Defendant’s recitation of the facts, Defendant was with Leo Carter 9 for a majority of the evening while Carter attempted to dispose of the items. [ See 10 MIO 6-10] In addition, various witnesses only came intocontact with Carter because 11 of their connection with Defendant. For example, Osterholt testified that she did not 12 know Carter, but that she had received a call from Defendant to come over that 13 evening. [MIO 6-7, 8] Osterholt additi onally testified that her friend Chris Scott 14 permitted Carter to store the items at the hous e when Defendant “asked if one of his 15 friends” could do so. [MIO 6-7] Harry Ho lt also testified that he knew Defendant as 16 a friend and that he agreed to give his fri end a ride early in the morning. [MIO 9] 17 When Holt arrived, Defendant was there with another person, Carter, who Holt stated 18 that he did not know. [MIO 9] Nevertheless, Holt agreed togive them a ride with the 199 bags of items—“enough bags that . . . Carter was sitting uncomfortably in the back 1 seat[.]” [MIO 9] When Holt was suspici ous about whether the items were stolen, it 2 was Defendant who told Holt “that there was nothing that was stolen.” [MIO 9] 3 {14} Viewing the evidence in the light mostfavorable to the guilty verdict, we 4 conclude that this evidence is sufficien t to support a finding that Defendant helped 5 Carter dispose of the items. See Cunningham , 2000-NMSC-009, ¶ 26; see also State 6 v. Dowling , 2011-NMSC-016, ¶¶ 22, 27, 150 N.M. 110, 257 P.3d 930 (recognizing 7 that, when proving intent or knowledge, “it is often the jury’s task to glean subjective 8 knowledge from the circumstances of the defendant’s act” and stating that 9 “circumstantial evidence alone can sust ain a finding of subjective knowledge”); Kent , 10 2006-NMCA-134, ¶ 10 (“Appellatecourts do not weigh the evidence or substitute any 11 judgment for that of the jury.”). Accordingly, Defendant’s argument is not viable. 12 We therefore reject the motion to ame nd his docketing statement to raise this 13 argument. 14 {15} For the reasons set forth here and in our notice of proposed disposition, we 15 affirm Defendant’s convictions. 16 {16} IT IS SO ORDERED. 17

__________________________________ 18 JONATHAN B. SUTIN, Judge 1910 WE CONCUR: 1

_______________________________ 2 MICHAEL E. VIGIL, Chief Judge 3

_______________________________ 4 M. MONICA ZAMORA, Judge 5