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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35076 4 ALFREDO VILLALOBOS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 William G. Shoobridge, District Judge 8 Hector H. Balderas, Attorney General 9 Anita Carlson, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 William O’Connell, Assist ant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ATTREP, Judge. 182 {1} Defendant Alfredo Villalobos appeals his conviction for second-degree murder. 1 On appeal, Defendant argues that his convic tion must be reversed because the State’s 2 prosecutor improperly impeached his testimony with his post-arrest silence when he 3 was asked to admit to the jury that he never told police that heand Victim had been 4 in a fight. We find that De fendant did not preserve the issue for appeal and review 5 only for fundamental error. Although we hold that the prosecutor improperly 6 commented on Defendant’s post-arrest silence, Defendant did not show that the 7 improper comments constituted fundamental error. We, therefore, affirm his 8 conviction. 9 BACKGROUND 10
{2} On June 26, 2012, Defendant stabbe d and killed Kenny Parks (Victim) at 11 Defendant’s home in Hobbs, New Mexico. Th at day, Defendant had been drinking at 12 his home with his sister (Daniella), his sister’s fiancé (Joshua), and two other friends. 13 Eventually the group decided to seek out drugs and contacted Victim. The group went 14 to Victim’s home, smoked methamphetamine, and then returned to Defendant’s home 15 with Victim. At Defendant’s home, Defendant, Victim, and the rest of the group 16 continued to smoke methamphetamine and drink alcohol. The group gathered in 17 Defendant’s bedroom when, according toDefendant’s testimony, a physical 18 confrontation for an unknown reason be gan between Defendant and Victim. 193 {3} Although Defendant was unable to recall much detail about the night of June 1 26, 2012, Defendant testified at trial that Victim was mad and pinned him against a 2 wall. Defendant testified that they wrestle d and fought. Defendant then testified that 3 he grabbed a knife that was located in the room, and that he swung the knife at Victim. 4 Victim backed away and Defendant fled the scene. 5
{4} The State cross-examined Defendant re garding his failure to tell the police 6 about the alleged altercation with Victim in the following exchange: 7 Q. [The prosecutor] And when you were picked up by the police, you 8 were taken to the police station, correct? 9 A. [Defendant] Yes. 10 Q. And, of course, you told the police what happened, didn’t you? 11 A. No. 12 Q. No. You never told the police that this had been a fight? 13 A. I felt I didn’t have no reason to say anything because I didn’t think 14 anything happened. 15 Q. You didn’t think anything had happened. 16 In response to this line of questioning, defense counsel did not immediately object. 17 Approximately three minutes later, a bench conference was held. During this 18 conference, Defendant’s attorney objected tothe State’s previous questions regarding 19 Defendant’s post-arrest silence. Although the recording of the bench conference is 204 inaudible, the trial court, on limited remand, reconstructed the record with the 1 assistance of the parties, and found the following: 2 At 2:21:56 p.m. on January 27, 2015 , Defendant’s counsel asked to 3 approach the bench and objected to the questions asked about three 4 minutes earlier by the Assistant District Attorney. The objection was 5 based upon an improper comment by the prosecution on . . . Defendant’s 6 right to remain silent. The [c]ourt agreed with the objection. 7 . . . Defense counsel does not recall whether or not he specifically 8 requested a mistrial. The [c]ourt and the prosecutor have specific 9 memory that no mistrial was reque sted. The [c]ourt remembers that 10 inquiry was made as to what relie f defense counsel was requesting and 11 defense counsel only asked for ce ssation of any inquiry regarding 12 Defendant’s silence. All parties ag ree that there was no request for a 13 curative instruction[] and that the jury was not excused to hear a motion 14 for mistrial. 15 Defendant’s silence was not mentioned again at trial. 16
{5} At trial, Daniella, Joshua, and Defe ndant’s mother, who had returned home 17 sometime before the alleged altercation, testified that they did not see the fight start, 18 but walked in on the fight. After the fight broke up, and it was clear that Victim was 19 bleeding, Joshua called the police and dragged Victim to the front door of the home. 20 When the police arrived, Joshua told the police that Victim had shown up at the house 21 bleeding. Victim was transported to the hos pital and was declared dead shortly after 22 arriving at the hospital. 23
{6} At trial, Defendant did not dispute that he had stabbed Victim , but asserted that 24 he had done so in self-defense. The State’s theory at trial was that the physical 255 evidence controverted Defendant’s self-def ense claim. The State elicited testimony 1 that, after the fight, Defendant had no bruises and had only superficial marks. A 2 forensic pathologist testified at trial that Victim had a wound on his hand 3 contemporaneous with his death, but that otherwise there were no injuries on Victim’s 4 hands that would suggest that an altercation had taken place. Victim died from two 5 stab wounds—one to the chest and one to the mid-back. 6
{7} The jury returned a verdict of guilty of second-degree murder, Defendant was 7 sentenced to fifteen years imprisonmen t, and Defendant filed this appeal. 8 DISCUSSION 9
{8} Defendant argues that the prosecutor improperly impeached his testimony that 10 Victim had attacked him by asking him to admit that he “never” told the police that 11 he and Victim had fought. De fendant asserts that this line of questioning improperly 12 commented on his post-arrest silence. Whether a prosecutor improperly commented 13 on a defendant’s post-arrest silence is a legal question that we review de novo. See 14 State v. Foster , 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852. Because we find 151 Defendant’s assertion that plain erro r review should apply in this case is 15 unavailing. Courts have c onsistently applied fundame ntal error review to a 16 defendant’s unpreserved claim that the state has improperly commented on 17 defendant’s silence. See State v. McDowell , 2018-NMSC-008, ¶¶ 7, 18, 411 P.3d 337; 18 State v. DeGraff , 2006-NMSC-011, ¶¶ 12, 16, 21-22, 139 N.M. 211, 131 P.3d 61. 19

2 In the reconstruction of the record, de fense counsel claims he does not recall 17 whether he requested a mistrial during th e bench conference; it is undisputed that 18 Defendant did not movefor a mistrial later in the proceedings. The bench conference 19 6 that Defendant did not timely object, wereview only for fundamental error. 1 See 1 DeGraff , 2006-NMSC-011, ¶¶ 12, 16, 21-22. 2 I. Defendant Failed to Preserve the Issue 3
{9} “To preserve an issue for review, it must appear that a ruling or decision by the 4 trial court was fairly invoked.” Rule 12- 321(A) NMRA. To fairly invoke a ruling or 5 decision, “it is the responsibility of counselat trial to elicit a definitive ruling on an 6 objection from the court.” State v. Lucero , 1993-NMSC-064, ¶ 11, 116 N.M. 450, 863 7 P.2d 1071. “It is [also] trial c ounsel’s duty to state the objecti ons so that the trial court 8 may rule intelligently on them and so that an appellate court doe s not have to guess 9 at what was and what was not an issue at trial.” Id. 10
{10} In this case, defense counsel objected to the prosecutor’s questions relating to 11 Defendant’s silence three minutes after the line of questioning was completed and 12 asked only that the inquiry into Defendant’s silence cease. Defendant did not ask for 13 a curative instruction or a mistrial. 2Defendant’s belated objec tion, especially in light 14lasted less than 50 seconds and matters other than Defendant ’s silence were discussed. 17 It seems implausible that Defendant moved for a mistrial during this brief conference. 18 7 of his failure to ask for a curative instruction or mistrial, is insufficient to preserve the 1 issue for appeal. See State v. La Madrid , 1997-NMCA-057, ¶ 5, 123 N.M. 463, 943 2 P.2d 110 (“[T]he general rule [is] that an untimely objection is an ineffective 3 objection.”); see also In re Crystal L. , 2002-NMCA-063, ¶ 19, 132 N.M. 349, 48 P.3d 4 87 (holding that there was no reversible error where defense counsel made an 5 objection but did not request a curative instru ction or other remedy). “[I]n the context 6 of a prosecutor’s comments on a defendant’s right to silence where no timely 7 objection is made, the Court considers only whether the defendant has shown 8 fundamental error.” State v. McDowell , 2018-NMSC-008, ¶ 18, 411 P.3d 337. 9 II. Fundamental Error Analysis 10
{11} As recognized in McDowell , “New Mexico courts have long held that a 11 prosecutor is prohibited from commenting on a defendant’s right to remain silent, 12 which is protected under Miranda v. Arizona , 384 U.S. 436 . . . (1966).” McDowell , 13 2018-NMSC-008, ¶ 4 (explaining the three rationales behind this prohibition); see 14 also State v. Garcia , 1994-NMCA-147, ¶ 12, 118 N.M. 773, 887 P.2d 767 (providing 15 that “‘it would be fundamentally unfair and a deprivation of due process to allow the 16 arrested person’s silence to be used to impeach an explanation subsequently offered 17 at trial’” (quoting Doyle v. Ohio , 426 U.S. 610, 618 (1976)). The first step in 188 determining whether a violation of this nature occurred requires this Court to 1 determine whether the prosecutor did in fact improperly comment on the Defendant’s 2 protected silence. See DeGraff , 2006-NMSC-011, ¶ 21. If th e Court determines that 3 the prosecutor did so, “we then determine whether th e error was fundamental. An 4 error is fundamental if there is a reasonabl e probability that the error was a significant 5 factor in the jury’s deliberations in relati on to the rest of the evidence before them.” 6 Id. (internal quotation marks and citation omitted). 7 A. The State Improperly Commented on Defendant’s Silence 8
{12} Defendant invoked his right to remain sile nt at the time of his arrest and until 9 testifying at trial. In determining whether the prosecutor improperly commented on 10 Defendant’s invocation of his right to remain silent, we “consider whether the 11 language used was manifestly intended to be or was of su ch a character that the jury 12 would naturally and necessarily take it to be a comment on the accused’s exercise of 13 his or her right to remain silent.” Id. ¶ 8 (internal quotation marks and citation 14 omitted). “We evaluate the statement in context to determine the manifest intention 15 that prompted the remarks, as well as th e natural and necessary impact upon the jury.” 16 Id. (internal quotation marks and citation omitted). “Where comments by the 17 prosecutor are ambiguous, we consider whatinference the jury was asked to draw 18 from the defendant’s silence and th e propriety of that inference.” Id. ¶ 9. 199 {13} In this case, the context and manner of the prosecutor’s comments indicate that 1 the prosecutor was asking the jury to infer th at Defendant’s silence was proof that his 2 claim of self-defense was fabricated. Courts of this State have consistently held that 3 using a defendant’s post-arrest silence to impeach an explanation offered at trial is 4 impermissible. See DeGraff , 2006-NMSC-011, ¶¶ 8-10 (holding that a prosecutor 5 improperly commented on a defe ndant’s right to remain silent when the prosecutor 6 stated during closing argument that the defendant’s explanation of self-defense was 7 not credible because “he did not volunteer it sooner”); State v. Pacheco , 2007-NMCA8 140, ¶¶ 14, 17, 142 N.M. 773, 170 P.3d 1011 (affirming that it is impermissible for 9 a prosecutor to use a defendant’s post-arrest silence to impeach a defendant); Garcia , 10 1994-NMCA-147, ¶ 16 (“Doyle [, 426 U.S. at 618,] forbids the use of post- Miranda 11 silence to impeach an explan ation offered at trial.”). 12
{14} The State argues that the prosecu tor did not improperly comment on 13 Defendant’s post-arrest silence because th e questions were designed to show that 14 Defendant’s trial testimony was inconsistent with earlier statements. We are not 15 persuaded. It is true that the State may impeach a defendant’s testimony with his or 16 her prior inconsistent and voluntary statements. See, e.g. , Foster , 1998-NMCA-163, 17 ¶¶ 17-18 (finding no reversible error when a prosecutor impeached a defendant by 18 comparing a prior statement w ith the statement the defendant was providing at trial); 1910 State v. Hennessy , 1992-NMCA-069, ¶ 18, 114 N.M. 283, 837 P.2d 1366 (providing 1 that “the constitutional bar against the use of silence does not apply to cross2 examination which inquires into prior inconsistent statements”), overruled on other 3 grounds by Lucero , 1993-NMSC-064, ¶ 13. The record, however, does not indicate 4 that Defendant gave a prior statement in this case. Where, as here, a defendant has 5 provided no prior statement, it is impermissible for the prosecution to comment on a 6 defendant’s silence. See DeGraff , 2006-NMSC-011, ¶¶ 8-10; Pacheco , 2007-NMCA7 140, ¶¶ 14, 17; Garcia , 1994-NMCA-147, ¶ 16. Additionally, insofar as the State 8 argues that the purpose of the cross-examination was to di scredit the other witnesses 9 who supported Defendant’s claim of self-defen se, this Court has already rejected this 10 justification for commenting on a de fendant’s post-arrest silence. See Garcia , 1994- 11 NMCA-147, ¶ 14 (rejecting the state’s argument that it could comment on a 12 defendant’s post-arrest silence to impeach his alibi witnesses). 13
{15} Because the context and content of the prosecutor’s questions demonstrate that 14 the true purpose of her questions was to impermissibly impeach Defendant’s 15 credibility with his post-arrest silence, weconclude that the prosecution improperly 16 commented on Defendant’s silence. 17 B. The Prosecutor’s Comments Did Not Rise to the Level of Fundamental 18 Error 1911 {16} The Court does not take lightly that it has been clear for many years that 1 “prosecutors who inject impermissible comments on silence into trials will risk 2 reversal by this [C]ourt of convictions secured through such t actics, regardless of 3 whether there is objection.” Hennessy , 1992-NMCA-069, ¶ 23. Nonetheless, because 4 Defendant failed to make a timely objec tion, we determine only whether the 5 prosecutor’s error was fundamental. “The ru le of fundamental error applies only if 6 there has been a miscarriage of justice, if the question of guilt is so doubtful that it 7 would shock the conscience to permit the convic tion to stand, or if substantial justice 8 has not been done.” Lucero , 1993-NMSC-064, ¶ 12 (internal quotation marks and 9 citation omitted). In assessing fundamental error, this Court “considers only whether 10 the defendant has shown that there is a reasonable probability that the error was a 11 significant factor in the jury’s deliberations relative to the other evidence before 12 them.” DeGraff , 2006-NMSC-011, ¶ 22. It is the C ourt’s responsibility to “evaluate 13 the prejudicial effect of the testimony and the quantum of evidence against [the 14 d]efendant.” McDowell , 2018-NMSC-008, ¶ 18. “If the prejudicial effect is minimal 15 and the evidence of the defendant’s guilt overw helming, the error does not rise to the 16 level of fundamental error.” Id. 17
{17} Defendant argues that the prosecutor’s comments on his silence constituted 18 fundamental error because there was ample ev idence provided at trial in support of his 1912 claim of self-defense and sufficient provocation, and because his credibility was 1 crucial to these claims. Although Defendant testified that he was defending himself 2 during an altercation with Victim, and a num ber of other witnesse s testified that a 3 fight occurred, we are unconvinced that th e prosecutor’s error was a significant factor 4 in the jury’s deliberations. The prosecu tion provided physical evidence, testimony, 5 and forensic evidence that undermined De fendant’s claims of self-defense and 6 sufficient provocation and supported a conviction of second-degree murder. This 7 evidence included: (1) undisputed testimony and physical evidence that Defendant 8 stabbed Victim and fled; (2) testimony that Victim had been stabbed twice; (3) 9 testimony and evidence that Victim died from the stab wounds; (4) testimony that 10 Defendant lacked significant bruising or markings to show that he was in a physical 11 struggle where his life was in danger; (5) fore nsic evidence that Victim lacked injuries 12 consistent with an altercation with Defendant; (6) testimony that eye witnesses were 13 not credible because of their prior inconsis tent statements and their actions following 14 the crime, including dragging Victim to the front porch of the home and telling 15 officers that Victim showed up to th e house bleeding; and (7) testimony from 16 Defendant that showed significant gaps inhis memory and inconsistencies between 17 his testimony and the physical evidence that undermined his claims of self-defense 18 and sufficient provocation. 1913 {18} The prosecutor’s comments were constrained to three questions during 1 Defendant’s cross-examination, and the issu e was never raised again. In comparison 2 to the overwhelming evidence supporting Defendant’s guilt, the prosecutor’s 3 comments on Defendant’s silence were limite d and non-essential to the State’s case. 4 Given this, we conclude that the prosecu tor’s comments were not a significant factor 5 in the jury’s deliberations and had minimal prejudicial effect. “In light of the minimal 6 prejudicial effect of the prosecutor’s comments, and the overwhelming evidence 7 presented by the prosecution, Defendant has not shown fundamental error.” DeGraff , 8 2006-NMSC-011, ¶ 23 (internal quotation marks and citation omitted). 9 CONCLUSION 10
{19} For the foregoing reasons, we affirm Defendant’s conviction. 11
{20} IT IS SO ORDERED. 12

13 JENNIFER L. ATTREP, Judge 14 WE CONCUR: 15

16 LINDA M. VANZI, Chief Judge 17

18 STEPHEN G. FRENCH, Judge 19