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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 fr om 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. 33,640 4 KURT KUENSTLER, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8
Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Law Works L.L.C. 12 John McCall 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 WECHSLER, Judge. 172 {1} Kurt Kuenstler (Defendant) appeals from the judgment and sentence. This 1 Court’s calendar notice proposed to affirm. Defendant filed a memorandum in 2 opposition to the proposed disposition. We are not persuaded by Defendant’s 3 arguments and affirm the judgment and sentence. 4
{2} Defendant continues to argue that it wa s error to exclude a witness’s testimony 5 that Jesse V. (Stepson) thr eatened to put Defendant in a “pine box.” [DS 3, MIO 4] 6 This Court proposed to conclude that th ere was no abuse of discretion in excluding 7 the additional evidence and that it was cumu lative of evidence thatStepson threatened 8 Defendant with a knife, which was admitted. [DS 2] Defendant now argues that the 9 witness’s testimony was relevant as an “effect on the h earer” hearsay exception and 10 was corroborative, not cumulative, evidence. [MIO 5] Defendant asserts that the effect 11 of the statement on him was that he was alarmed by Stepson’s expression of such 12 antipathy toward him as a young adult and that the fear was much more imminent than 13 the fear resulting from the prior knife incide nt. [MIO 5] However, this basis was not 14 asserted in the docketing statement. 15
{3} We therefore construe Defendant’s argument as a motion to amend the 16 docketing statement, and we deny the moti on. “We deemed two requirements to be 17 essential to a showing of good cause for our allowance of a docketing statement 18 amendment: (1) the motion to amend must be timely, and (2) the motion must show 193 the new issue sought to be raised was e ither (a) properly preserved below or (b) 1 allowed to be raised for the first time on appeal.” State v. Moore , 1989-NMCA-073, 2 ¶ 109 N.M. 119, 782 P.2d 91, overruled on other grounds State v. Salgado , 1991- 3 NMCA-044, 112 N.M. 537, 817 P.2d 730. It a ppears the district court ruled on the 4 basis that the testimony was cumulative. [M IO 5] Defendant does not indicate that he 5 preserved the argument that the statement met a specific hearsay exception. Therefore, 6 we deny the motion to amend. 7
{4} Insofar as Defendant contends that the evidence was corroborative and not 8 cumulative, we are not persuaded. As wenoted in our calendar notice, there was 9 evidence of another incident in which Step son threatened Defendant with a knife. [DS 10 2] The district court could have reasonably considered this evidence as simply 11 establishing a basis for Defendant to fear for his safety around Stepson. Defendant 12 was not prejudiced by this exclusion of evidence. See State v. Fernandez , 1994- 13 NMCA-056, ¶ 16, 117 N.M. 673, 875 P.2d 1104 (“In the absence of prejudice, there 14 is no reversible error.”). 15
{5} Next, Defendant continues to argue th at there was insufficient evidence to 16 support his conviction for negligent child abuse with a firearm, because Child was not 17 in a zone of danger or in the direct line of physical danger. [MIO 11] In our calendar 18 notice, this Court noted th at the evidence included LoriMcLain-Kuenstler’s (Child’s 194 Mother) testimony that Defendant pointeda gun in her face as Child exited through 1 the gate, [DS 4] and Stepson’s testimony th at Defendant pointed the gun at him as he 2 was sitting in the car and Child was enteri ng or in the car when the gun was pointed 3 at them. We proposed to conclude that the evidence was sufficient to prove that 4 Defendant negligently caused Child to be placed in a s ituation endangering his life or 5 health, and that Defendant acted with reckless disregard and should have known his 6 conduct created a substantial and foreseeablerisk, but disregarded and was indifferent 7 to that risk. [CN 4-5, RP 133] Defendant does not point out error in the facts relied 8 upon, but continues to assert his version of the evidence. [MIO 13] Defendant argues 9 that there was no other evid ence in the record other th an the refuted testimony of 10 Child’s Mother and Stepson. [MIO 13] Howe ver, the testimony of Child’s Mother and 11 Stepson was sufficient to support Defendant ’s conviction, and the jury was free to 12 reject Defendant’s version of what occurred. See State v. Foxen , 2001-NMCA-061, 13 ¶ 17, 130 N.M. 670, 29 P.3d 1071 (providing thatconflicts in the evidence, including 14 conflicts in the testimony of witnesses, are to be resolved by the factfinder; stating that 15 the factfinder is free to reject the defendant’s version of events). To the extent 16 Defendant maintains the testimony of Child ’s Mother and Stepson was refuted, it 17 constitutes disputed evidence, whic h the jury is free to weigh. See State v. Salas , 18 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the 195 factfinder to resolve any conf lict in the testim ony of the witnesses and to determine 1 where the weight and credibility lie). 2
{6} Defendant further argues that his neg ligent child abuse conviction should be 3 vacated because the verdicts were inconsistent, as Child would only have been 4 endangered if Defendant had committed aggravated assault on Child’s Mother or 5 Stepson, and the jury acquitted him of thos e charges. [MIO 4] Defendant asserts that 6 the only theory on which the State relied, and the only one supported by the evidence, 7 was that Defendant pointed the gun at Child’s Mother and Stepson and in the direction 8 of Child. [MIO 13, 24] However, becausethe jury acquitted Defendant of the 9 aggravated assault charges, he asserts the jury rejected that theory. Defendant 10 contends that it is not logical to posit thatthe jury could have believed that Defendant 11 pointed the gun at Child’s Mother and Steps on but that neither was afraid, particularly 12 given their testimony that they were. [MIO 12, 21] He therefore contends that the jury 13 could not have convicted him of negligent child abuse on the basis of that testimony, 14 but not convicted him of the two aggravat ed assault charges against Child’s Mother 15 and Stepson on the basis of the same testimony. Defendant argues that he would have 16 to be guilty of aggravated a ssault with a firearm to be guilty of negligent child abuse 17 with a firearm. We disagree. 186 {7} Although the jury acquitted Defendant of the two aggravated assault charges 1 against Child’s Mother and Stepson, “[th e jury] may have done so for any number of 2 reasons. [It] may have decided that one punishment would meet the ends of justice. 3 Defendant’s guilt of [aggravated] assault may have been plain and the jury may have 4 refused to convict in defiance of reason. For its acquittal on the [aggravated] assault 5 charge[s], the jury is answerable only to conscience. The verdict of acquittal is beyond 6 our control. Our business is to re view the verdict of conviction.” State v. Leyba , 1969- 7 NMCA-030, ¶ 36, 80 N.M. 190, 453 P.2d 211. We would only be speculating as to 8 why the jury reached the result that it did. See State v. Padilla , 1974-NMCA-029, ¶ 9 17, 86 N.M. 282, 523 P.2d 17 (“Assuming the verdicts are inconsistent, we can only 10 speculate as to why the juryreached that result. We cannot, on the basis of speculation 11 only, hold the verdicts are irrational. Thatthe verdicts may notbe in harmony does not 12 mean they are irrational, that is, without reason.”) (internal citation omitted). 13
{8} This Court further proposed to concludethat Defendant was not prejudiced by 14 the failure to submit the case with a non-dead ly force self-defense instruction because 15 such an instruction was inapplicable to th e charge for negligent child abuse with a 16 firearm, the only charge for which Defendant was convicted. See State v. Gillette , 17 1985-NMCA-037, ¶ 54, 102 N.M. 695, 699 P.2d 626 (“Defendant does not argue 18 prejudice. Without such a showing, there is no reversible error. ”). Defendant did not 197 oppose the proposed disposition, so we affirm. See State v. Johnson , 1 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P. 2d 306 (stating that when a case is 2 decided on the summary calendar, an issu e is deemed abandoned where a party fails 3 to respond to the proposed disposition of the issue). 4
{9} Lastly, to the extent Defendant con tinues to argue that the doctrine of 5 cumulative error applies, because we hold th at there was no error, we further conclude 6 that there was no cumulative error. See State v. Bent , 2013-NMCA-108, ¶ 37, 328 7 P.3d 677 (stating that when there is no error, there is no cumulative error). 8
{10} For all of these reasons, and those stat ed in the notice of proposed disposition, 9 affirm the judgment and sentence. 10
{11} IT IS SO ORDERED. 11

___________ _____________________ 12 JAMES J. WECHSLER, Judge 13

WE CONCUR: 14

________________________________ 15 CYNTHIA A. FRY, Judge 16

________________________________ 17 J. MILES HANISEE, Judge 18