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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,589 9 RAYMOND SEMINO, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Kenneth H. Martinez, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Chief Public Defender 17 Will O’Connell, Assistan t Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 CASTILLO, Chief Judge. 222 Defendant appeals a number of convicti ons in connection with the rape and 1 kidnapping of the victim in this case. We issued a calendar notice proposing to affirm. 2 We have received a memorandum in oppositi on and a motion to amend the docketing 3 statement from Defendant. After due cons ideration of Defendant’s arguments, we 4 affirm Defendant’s convictions. We deny Defendant’s motion to amend the docketing 5

statement. 6 Initially, we point out that, based on the citations in the memorandum in 7 opposition, it appears that appellate defense counsel reviewed the transcript of the 8 proceedings below. Nevertheless, appellate defense counsel provides additional 9 information for some issues, but not for others. Defendant, as the party opposing our 10 summary disposition, is required to “come forward and specifically point out” any 11 error in fact or in law inour proposed disposition. State v. Sisneros , 98 N.M. 201, 12 202-03, 647 P.2d 403, 404-05 (1982); State v. Ibarra , 116 N.M. 486, 489, 864 P.2d 13 302, 305 (Ct. App. 1993). We will affirm on issues for which Defendant has not met 14 that requirement. 15 Motion to Amend Docketing Statement 16 Defendant claims that it was error for the district court to refuse to provide the 17 jury with a transcript of the victim’s tes timony, instead, instructing the jurors to rely 18 on their own memories and notes. Defendant also claims that it was error for the 193 district court to insist that an absent juror come to the court for deliberations. No 1 objection or argument was made to the distri ct court on these claims. As conceded by 2 Defendant, these issues would be reviewedfor fundamental error, which only occurs 3 in cases where a defendant is “indisputablyinnocent, and cases in which a mistake in 4 the process makes a conviction fundament ally unfair notwithst anding the apparent 5 guilt of the accused.” State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 6 633. 7 It is within the district court’s discretion to provide a jury with “additional 8 instructions or to have any testimony read ” to the jury. Rule 5-610(A) NMRA. For 9 example, if jurors have doubt about what a witness said during the proceedings and 10 that doubt could be removed by rehearing the testimony of thatwitness, the trial court 11 has the discretion to have the pertinent testimony read to the jury. State v. Montoya , 12 86 N.M. 316, 317, 523 P.2d 814, 815 (Ct. App. 1974). In this case, the jury requested 13 the transcript of the victim’s testimony because there was disagreement on some 14 counts which “center[ed] on the credibility of [the Victim’s] testimony.” [MIO 6] 15 There is nothing to indicate that the jurors could not remember or had doubt about 16 what the Victim said during her testimony. The request from the jury concerned only 17 a disagreement about some of the charged counts in connection with the credibility 18 of the witness. Given the jury’s specific request, the district court did not abuse its 194 discretion in denying the request for transc ripts, and the decision to deny the request 1 does not meet the requirements for fundamental error. 2 Defendant argues that the district c ourt erred in forcing an “unwilling and 3 possibly incapacitated juror” to continue deliberations with the rest of the jury. The 4 district court called the juror after recei ving information that the juror had been 5 involved in a serious motor vehicle accident. [MIO 8] The juror claimed that she had 6 no vehicle, and then claimed that she was planning to obtain a rental vehicle. [MIO 7 8-9] The district court e xplained that the juror would be compensated for her time, 8 and that the other jurors were waiting on her. The juror was then transported to the 9 court and the jury resumed its deliberations . The transcript citation included in the 10 memorandum in opposition only indicates that the juror was without transportation. 11 The information given to the district court indicates only that the juror was bruised, 12 was going to need to seek “additional medi cal attention,” and may have problems with 13 child care. [MIO 8] There is nothing to support Defendant’s claims that the juror was 14 “possibly incapacitated” or was “unwilling” to continue deliberations. The district 15 court did not abuse its discretion by having th e juror transported to the court in order 16 to continue deliberations with the rest of the jury. In addition, the actions of the 17 district court do not rise to the level of fundamental error. We deny Defendant’s 18 motion to amend the docketing statement. See State v. Moore , 109 N.M. 119, 128-29, 195 782 P.2d 91, 100-101 (Ct. App. 1989) (holding that issues included in motion to 1 amend docketing statement must be viable), overruled on other grounds State v. 2 Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). 3 Memorandum in Opposition 4 Defendant provides no additi onal authority or facts on the issue of whether the 5 jury should have received an earlier inst ruction on the prohibition against conducting 6 internet research. See Sisneros , 98 N.M. at 202-03, 647 P.2d at 404-05; Ibarra , 116 7 N.M. at 489, 864 P.2d at 305. We affirm for the reasons discussed in our calendar 8 notice. 9 Defendant continues to claim that it was error for the district court to allow the 10 nurse to be identified as a SANE nurse b ecause the title alone gave credibility to the 11 witness. Defendant claims that he was prejudiced by th e implication that the SANE 12 nurse had specialized knowledge and by the fact that a SANE nurse examined the 13 victim, giving rise to the assumption that a sexual assault had occurred. [MIO 12] 14 Defendant refers to no evidence tosupport his claim of prejudice. See In re Ernesto 15 M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of 16 prejudice is not a showing of prejudice.”). As discussed in our calendar notice, the 17 witness testified about her qualifications as a SANE nurse, and it was within the 18 district court’s discretion to admit the testimony of the witness. See State v. Alberico , 196 116 N.M. 156, 169, 861 P.2d 192, 205 (1993); see also Rule 11-702 NMRA 1 (explaining that qualified experts may testify in form of opinion or otherwise). We 2 hold that the district court did not abus e its discretion by allowing the witness to 3 testify as a SANE expert. 4 Defendant now claims that the SANE nur se gave testimony in violation of the 5 district court’s ruling that she could not tes tify as to an ultimate conclusion. [MIO 12] 6 Defendant provides us with no information about how this argument was preserved. 7 See State v. Rojo , 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829 (pointing out 8 that appellate court will not search the reco rd to find whether an issue was preserved); 9 see also State v. Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 10 (holding that, to preserve issue for appeal , defendant must makea timely objection 11 that specifically apprises the trial court of the nature of the claimed error and invokes 12 an intelligent ruling thereon). Therefore, we will not address the issue. To the extent 13 that this issue is raised as part of the motion to amend the docketing statement, the 14 motion is denied. 15 The victim asked a county worker to call 911. After the worker spoke to the 16 dispatcher, the victim got on the telephone and related her situation to the dispatcher. 17 Defendant claims that the contents of th e call were inadmissible as hearsay. When 18 Defendant objected to the portion of th e 911 call that included statements by the 197 worker, the district court offered to admit only the portion that included the victim’s 1 statements. [MIO 13] Defendant did not accept the offer, but objected to a 2 “piecemeal admission of th e statement.” [Id.] 3 Defendant continues to claim that the contents of the 911 call were not 4 admissible under the “excited utterance” or “present sense impression” exceptions to 5 the hearsay rule. Defendant contends that the victim’s statements were “too remote” 6 because she was “relating events that had allegedly occurred the night before.” [MIO 7 17] As noted by Defendant, when the victim ran up to the worker, she was crying, 8 upset, and reported that she had just been raped. [MIO 14] In addition, the victim had 9 just escaped from Defendant’s home. As discussed in our calendar notice, the 10 statements fell under the exceptions for excited utterances or present sense 11 impressions. The district court did not err in admitting the contents of the call. 12 Defendant continues to arguethat he should have been allowed to question a 13 detective about his interview with the vic tim, particularly his question about whether 14 the victim had been a paid escort. Defe ndant informs us that the detective was 15 extensively cross-examined about his failure s in investigation. [MIO 18] Defendant 16 then argued that he needed to question the detective about the contents of his report 17 in order to point out “shortcomings” in th e State’s position. [Id.] Defendant also 18 requested that the detective’s report beadmitted into evidence under Rule 11-803(H) 198 NMRA. The report allegedly contained a st atement from Defendant’s mother that she 1 believed the victim was a call girl. [MIO 20] The districtcourt ruled that the report 2 did not fall under Rule 11-803(H), the statement by Defendant’s mother was 3 inadmissible hearsay, and the information was not trustworthy. 4 We previously noted that Rule 11-803( H) excludes matters observed by police 5 officers and other law enforcement personne l, and excludes sources of information 6 that lack trustworthiness. We also notedthat there was no showing that the source of 7 the information was reliable or that the source was trustworthy. As conceded by 8 Defendant, it was within the district court’s discretion to determine admissibility of 9 the evidence. [MIO 24] Here, there is nothing to show that the information qualified 10 as “factual findings” under Rule 11-803(H), and there is nothing to show that the 11 information was trustworthy. SeeRule 11-803(H)(3) (providing that “in civil actions 12 and proceedings and against the state in criminal cases, factual findings resulting from 13 an investigation made pursuant to auth ority granted by law, unless the sources of 14 information or other circumstances indicate l ack of trustworthine ss”). Defendant has 15 not demonstrated that the district court abused its discretion. 16 In the docketing statement, under an i ssue concerning merger of sexual conduct 17 counts, Defendant noted thathe had moved for a directed verdict on the kidnapping 18 charge based on lack of sufficient eviden ce. [unnumbered DS 10] Defendant stated 199 that there was insufficient evidence to s upport the kidnapping conviction, but provided 1 no other information or argument on the claim. Nevertheless, we addressed the claim, 2 and proposed to hold that the evidence wa s sufficient in this case. In the 3 memorandum in opposition, Defendant does not point to any specific defect in the 4 evidence, but argues that the evidence supporting the kidnapping conviction should 5 be viewed in light of the victim’s “lack of credibility.” [MIO 25] Defendant claims, 6 for example, that the victim testified that Defendant locked the front door, but there 7 was no independent evidence to show the house could be secured to prevent the 8 victim’s escape. [Id.] In addition, Defendant claims that the front door had “no 9 unusual locking mechanism.” [Id.] Defendant argues that we must look at the 10 evidence to determine if it “can logically and fairly exclude all reasonable doubt of 11 innocence of the crime charged under that set of facts.” [MIO 26] 12 To the extent that Defendant asks us to reevaluate the evidence while 13 considering the credibility of the victim, we point out that the factfinder resolves any 14 conflict in the testimony of th e witnesses, determines the credibility of the witnesses, 15 and assigns weight to be given to the evidence. State v. Salas , 1999-NMCA-099, 16 ¶ 13, 127 N.M. 686, 986 P.2d 482. As outlined in our calendar notice there was 17 sufficient evidence to support the kidnapping conviction. 18 Defendant again claims that he was deprived of a fair trial when the State 1910 presented testimony from a witness that he found blood on the victim’s clothing, and 1 when the State made references to DNA evidence, but did not actually present any 2 expert testimony on DNA evidence. Defendant asked that the jury be instructed to 3 disregard references to blood or DNA. The district court stated that there was not 4 enough reference to DNA by the State and th ere was no DNA evidence, so there was 5 no need for a limiting instruction. [MIO 28] The district court ruled, however, that 6 the witness could not draw any conclusions about the bl ood on the victim’s clothing. 7 In our calendar notice, we proposed tohold the testimony did not fit under Rule 8 11-105 NMRA, and we noted that the testimony regarding blood stains did not 9 constitute a suggestion that the blood belonged to any particular person. We also 10 suggested that the testimony fit within Ru le 11-701 NMRA, which refers to evidence 11 based on perceptions and observations by a w itness. In response, Defendant claims 12 that the State made “extensive refere nce to blood evidence” which created the 13 impression that the evidence incriminated Defendant. [MIO 28] Defendant does not 14 provide us with specific information about the alleged extensive references made by 15 the State, and does not otherwise provide evidence to support his claim. See Sisneros , 16 98 N.M. at 202-03, 647 P.2d at 404-05; Ibarra , 116 N.M. at 489, 864 P.2d at 305. We 17 affirm on this issue. 18 Defendant continues to argue that th e convictions for CSP and CSC violated 1911 double jeopardy. In our calendar notice, we stated thatDefendant had not provided 1 us with information to support his claim that his conduct occurred during a continuous 2 course of conduct. In res ponse, Defendant, without citati on to the record and without 3 specific details, alleges thatthe actions “occurred over a very short period of time,” 4 occurred in the same house, involved only onevictim, and Defendant’s intent never 5 changed. [MIO 31] Therefore, Defend ant claims, the crimes occurred during a 6 unitary course of conduct. Again, Defendant does not provide sufficient facts to 7 support his claim. See Sisneros , 98 N.M. at 202-03, 647 P.2d at 404-05; Ibarra , 116 8 N.M. at 489, 864 P.2d at 305. We affirm on this issue. 9 For the reasons discussed in this opini on and in our calendar notice, we affirm 10 Defendant’s convictions. 11 IT IS SO ORDERED. 12

__________________________________ 13 CELIA FOY CASTILLO, Chief Judge 14 WE CONCUR: 15

__________________________________ 16 JAMES J. WECHSLER, Judge 17

__________________________________ 1812 RODERICK T. KENNEDY, Judge 1