This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 31,220 9 ABEL RAMIREZ, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 12 Thomas A. Rutledge, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Acti ng Chief Public Defender 17 B. Douglas Wood III, Assi stant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 22 Ramirez appeals his conviction for aggravated battery. In this Court’s notice 232 of proposed summary disposition, we proposed to affirm. Ramirez has filed a 1 memorandum in opposition, which we have duly considered. As we are not persuaded 2 by Ramirez’s arguments, we affirm. 3 Prosecutorial Misconduct in Closing Argument 4 Ramirez contends that the prosecu tor committed misconduct in closing 5 argument by misstating the burden of proof. [DS 11, 13; MIO 5-8] In our notice of 6 proposed summary disposition, we proposed to conclude that the prosecutor’s single 7 comment did not warrant reversal. See State v. Allen , 2000-NMSC-002, ¶ 95, 128 8 N.M. 482, 994 P.2d 728 (stating that a single, isolated incident of prosecutorial 9 misconduct is not reversible error). We al so proposed to hold that reversal was not 10 warranted because the jury instructions st ated the proper burden of proof [RP 72-73], 11 and because Ramirez’s closi ng argument also explained the appropriate burden. See 12 State v. Armendarez , 113 N.M. 335, 338, 825 P.2d 1245, 1248 (1992) (holding that 13 a prosecutor’s misstatement of the law in closing argument did not warrant reversal 14 where the jury instructions contained a correct statement of the law). Ramirez’s 15 memorandum in opposition urges us to concludeotherwise [MIO 5-8], but he provides 16 no persuasive argument that the single comment, which was not objected to at trial, 17 constituted fundamental error where the jury instructions were correct. See Allen , 18 2000-NMSC-002, ¶ 95 (stating that “[p]rosecu torial misconduct rises to the level of 193 fundamental error when it is so egregious and had such a persua sive and prejudicial 1 effect on the jury’s verdict th at the defendant was deprived of a fair trial” (internal 2 quotation marks and citation omitted)). 3 Evidence of Ramirez’s Statement to a Detective 4 Ramirez contends that the district court erred in admitting evidence of a 5 statement he made to a de tective. [DS 11; MIO 8-9] In our notice of proposed 6 summary disposition, we proposed to hold th at he had failed to demonstrate error on 7 this basis. In Ramirez’s memorandum in opposition, he asserts that the admission of 8 this evidence violated Rule 11-408 NM RA, which prohibits the admission into 9 evidence of statements made in settlement negotiations. [MIO 8] However, Ramirez 10 provides no authority to suggest that Ramirez’s statement that he would be willing to 11 work for the drug task force if the detective would arrange for his charge to be 12 dismissed is the sort of offer to “compromise” intended under the rule, or that a 13 criminal charge is a “claim” as that term is used in Rule 11-408. Since Ramirez cites 14 no authority to support this argument, we presume that there is none. See In re 15 Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Furthermore, in 16 State v. Anderson , 116 N.M. 599, 601, 866 P.2d 327, 329 (1993), our Supreme Court 17 stated that a defendant’s statements to officers during an investigation should not be 18 excluded under Rule 11-410 NMRA regarding the inadmissibility of plea 194 negotiations, and that the admissibility of such statements should be subject only to 1 standards of voluntariness and re levance. We conclude that the same rationale applies 2 here, and that Rule 11-408 did not bar the admission of Ramirez’s statements. 3 Fundamental Error in the Admission of Evidence of a Prior Bad Act 4 Ramirez asserts that fundamental error occu rred at trial when the district court 5 permitted the victim to testify that the fi ght with Ramirez began when the victim told 6 Ramirez that he disapproved of Ramirez’s recent act of domestic violence. [DS 11, 7 13; MIO 10] In our notice of proposed su mmary disposition, we proposed to hold that 8 Ramirez had failed to demonstrate error on this basis. Evidence of prior bad acts is 9 admissible if relevant to prove some other issue legitimately in dispute, State v. Jones , 10 120 N.M. 185, 187, 899 P.2d 1139, 1141 (Ct. App. 1995), and here, there was a 11 dispute about whether Ramirez’s act of battery was self-defense. Ramirez responds 12 that, although he did not object at trial tothe evidence, fundamental error occurred 13 because the evidence was inadmissible pursuant to Rule 11-404(B) NMRA and its 14 admission deprived him of a fair trial. [MIO 10-11] 15 The admission of this evidence was not fundamental error. The evidence that 16 the fight began after the victim made this statement to Ramirez was relevant to show 17 that Ramirez was the aggressor in the physical confrontation, and that his attack was 18 motivated by his anger at th e victim’s statement. See State v. Niewiadowski , 120 N.M. 195 361, 364, 901 P.2d 779, 782 (Ct. App. 1995) (stating thatevidence of a prior 1 altercation between the defendant and the victims was relevant to the defendant’s 2 claim of self-defense becausethe self-defense claim pres ented the jury with the duty 3 to determine whether the defe ndant shot at the victims b ecause they were aggressors 4 or because of his own private motive base d on his animosity to ward the victims due 5 to the prior incident). 6 Motion for a Mistrial Based on the Late Disclosure of Evidence 7 Pursuant to State v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), andState v. 8 Boyer , 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Ramirez contends that the district 9 court should have granted a mistrial whenthe State disclosed evidence twenty-three 10 days before trial, because this gave hi s counsel insufficient time to prepare, thus 11 rendering his counsel ineffec tive. [DS 11, 12; MIO 12-13] In our notice of proposed 12 summary disposition, we proposed to hold that the district court did not abuse its 13 discretion in refusing to grant a mistrial, as we proposed to hold that Ramirez had not 14 demonstrated reversible error under the four-part framework set out in State v. Mora , 15 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as 16 recognized by Kersey v. Hatch , 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. 17 Ramirez responds that there is some possibility that he was prejudiced by the 18 late disclosure, but that he is uncertain. [MIO 13] This assertion of the possibility of 196 prejudice is not the kind of showing of prejudice that warrants reversal on appeal. See 1 State v. Rojo , 1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold 2 that the prosecution’s failure to disclose evidence required reversal in the absence of 3 a showing of prejudice from the late disclosure); State v. McDaniel , 2004-NMCA4 022, ¶ 14, 135 N.M. 84, 84 P.3d 701 (holding that the defendant failed to show 5 prejudice when he did not demonstrate “how his cross-examination would have been 6 improved by an earlier disclosure or how hewould have prepared differently for 7 trial”). 8 Sufficiency of the Evidence 9 Ramirez contends that there was insuffi cient evidence to support his conviction 10 of aggravated battery with a deadly weapon. [DS 12; MIO 14-15] We proposed to 11 hold that, viewing the evidence in the light most favorable to the verdict, there was 12 sufficient evidence from which a reasonable juror could have found the essential 13 elements of the crime beyond a reasonable doubt. See State v. Cunningham , 2000- 14 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (s etting out the appropriate standard 15 of appellate review). In Ramirez’s me morandum in opposition, he asserts that no 16 reasonable jury could have determined that hedid not act in self-defense, and that this 17 jury’s finding that he did not act in self-d efense must therefore necessarily have been 18 based on an improper statement by the prosecu tor. We have already reviewed the 197 issue of the prosecutor’s statement and de termined that it did not deprive Ramirez of 1 a fair trial. As for the evidence itself, as we stated in our noti ce, there was sufficient 2 evidence from which a reasonable juror coul d have determined that Ramirez did not 3 act in self-defense, and this Court w ill not reweigh the evidence or assess the 4 credibility of the witnesses on appeal. State v. Salas , 1999-NMCA-099, ¶ 13, 127 5 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any 6 conflict in the testimony of the witnesses). 7 Habitual Offender Enhancement 8 Pursuant to Franklinand Boyer , Ramirez asserts that his sentence was 9 improperly enhanced under NMSA 1978, S ection 31-18-17 (2003) for a prior felony 10 conviction that was more th an ten years old. Howe ver, Section 31-18-17(D)(1) 11 defines a “prior felony convic tion” for the purpose of the habitual offender statute as 12 “a conviction, when less than ten years have passed prior to the instant felony 13 conviction since the person completed serv ing his sentence or period of probation or 14 parole for the prior felony, wh ichever is later[.]” Theref ore, the relevant time period 15 is the date of the end of the sentence, probation, or parole for th e prior conviction, not 16 the date of the prior conviction itsel f. As Ramirez’s memorandum in opposition 17 concedes that he finished serving his period of parole within ten years of the 18 conviction in this case [MIO 17], we find no error in the imposition of the habitual 198 offender enhancement. 1

Cumulative Error 2 Ramirez contends that the cu mulative error at trial requires reversal in this case. 3 [MIO 18] As we have determined that Ramirez has failed to demonstrate error, there 4 is no cumulative error. See State v. Aragon , 1999-NMCA-060, ¶ 19, 127 N.M. 393, 5 981 P.2d 1211 (stating that where there is no showing of error, there can be no 6 cumulative error). 7 Therefore, for the reasons stated in this opinion and in our notice of proposed 8 summary disposition, we affirm. 9 IT IS SO ORDERED. 10

_________________________________ 11 JAMES J. WECHSLER, Judge 12 WE CONCUR: 13

__________________________________ 14 CELIA FOY CASTILLO, Chief Judge 15

__________________________________ 16 TIMOTHY L. GARCIA, Judge 17 189