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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-34276

5 JOSE VARGAS,

6 Defendant-Appellant. 

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 Jerry H. Ritter, Jr., District Judge

9 Hector H. Balderas, Attorney General

10 Maris Veidemanis, Assistant Attorney General

11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender

14 C. David Henderson, Appellate Defender

15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge.
2

1 {1} Defendant Jose Vargas seeks to reverse his convictions following a jury trial

2 for one count of aggravated assault against a household member, pursuant to NMSA

3 1978, Section 30-3-13(A) (1995), one count of false imprisonment, pursuant to

4 NMSA 1978, Section 30-4-3 (1963), and one count of battery against a household

5 member, pursuant to NMSA 1978, Section 30-3-15 (2008). Unpersuaded by

6 Defendant’s arguments, we affirm. Because this is a memorandum opinion and the

7 parties are familiar with the facts and procedural posture of the case, we set forth only

8 such facts and law as are necessary to decide the merits.

9 BACKGROUND

10 {2} Defendant’s convictions stem from a domestic dispute that occurred between

11 Defendant and Olga Saucedo (Victim) on Thanksgiving Day, November 22, 2012.

12 Witnesses at Defendant’s trial were Victim’s neighbors, Joe Ochoa (Mr. Ochoa) and

13 his wife, Cheryl Polizzi (Ms. Polizzi), as well as Alamogordo, New Mexico Police

14 Officers, Troy Thompson (Officer Thompson) and Mark Esquero (Officer Esquero).

15 {3} The following evidence was presented to the jury. Victim and Defendant had

16 been in a relationship for two years before their Thanksgiving Day 2012 dispute. On

17 the morning of Thanksgiving Day 2012, Defendant and Victim were drinking and

18 arguing in Victim’s trailer. Around 9:00 a.m., Victim went to Mr. Ochoa and Ms.

19 Polizzi’s trailer in her bathrobe “confused” and “not herself,” but only told Mr. Ochoa
3

1 and Ms. Polizzi “Happy Thanksgiving.” Victim left soon after, but later that day

2 returned to Mr. Ochoa and Ms. Polizzi’s home and banged on the trailer, saying

3 “Help me! Help me!” and “He wants to kill me!” Mr. Ochoa called the police. 

4 {4} Officer Thompson responded to the call, but did not detect any signs of criminal

5 conduct. Officer Thompson therefore concluded his investigation after Victim

6 informed him that Defendant would be leaving and that everything would be okay.

7 {5} Later that same day, Mr. Ochoa testified to observing Victim’s hand trying to

8 open her trailer door and then seeing the door slamming shut. Victim was screaming

9 “help me,” “leave me alone,” and “stop hitting me,” and Defendant could be heard

10 yelling back at her. Victim and Defendant then came out of Victim’s trailer and both

11 were holding knives. Mr. Ochoa described this situation as a “fight[]” between Victim

12 and Defendant “with knives[.]” Ms. Polizzi described seeing Victim backing away

13 from her trailer and from Defendant with a knife in her hand as he pursued her with

14 a knife in his hand.

15 {6} Ms. Polizzi called the police a second time and stated that “the same people that

16 I called about before, now they’re outside and they’ve got weapons.” While Ms.

17 Polizzi called the police, Mr. Ochoa went to Victim’s trailer to offer help. While at

18 Victim’s trailer, Mr. Ochoa managed to grab Victim and tell her to give him her knife.

19 Mr. Ochoa then convinced Defendant to put his knife down. Ms. Polizzi then called
4

1 Victim to come into her yard where she observed injuries suffered by Victim

2 including blood coming from her nose, bruises and red marks on her wrists, blood

3 smears on both of her shoulders, a wet face from crying and her hair in disarray.

4 Defendant left the scene before the police arrived.

5 {7} Officer Thompson responded to the second call with the information that there

6 were two people armed with knives swinging them at each other. After investigating

7 the scene of the altercation and being unable to locate Defendant, Officer Thompson

8 left the trailer park and obtained a warrant for Defendant’s arrest. Defendant was

9 subsequently arrested on the warrant. 

10 DISCUSSION

11 {8} Defendant raises five arguments on appeal: (1) that the district court erred in

12 refusing to instruct the jury on self-defense by non-deadly force, see UJI 14-5181

13 NMRA; (2) that the jury instructions on the New Mexico “no-retreat” law, see UJI 14-

14 5190 NMRA, and the definition of “household member,” see UJI 14-332 NMRA, as

15 well as statements made by the prosecutor during closing argument constituted

16 fundamental errors that collectively amounted to cumulative error; (3) that Officer

17 Thompson’s testimony repeating Victim’s out-of-court statements concerning who

18 had hit her and where that individual was violated the Confrontation Clause; (4) that

19 admission of Officer Esquero’s testimony describing the arrest of Defendant
5

1 constituted plain error; and (5) that sufficient evidence does not support Defendant’s

2 convictions. We address these issues in turn.

3 I. The District Court Did Not Err in Refusing to Instruct the Jury on Self4 Defense by Non-Deadly Force

5 {9} Defendant tendered a non-deadly force self-defense instruction modeled after

6 UJI 14-5181. The State objected, arguing that based on Victim and Defendant’s use

7 of knives in the confrontation, any self-defense instruction submitted to the jury

8 should include the use of deadly force. The district court ruled that a self-defense

9 instruction was warranted because both Victim and Defendant had knives and used

10 them in a way that the jury could infer that Defendant could have perceived Victim

11 as a threat and used his knife for self-defense. The district court also determined that

12 self-defense by deadly force, pursuant to UJI 14-5183 NMRA, was the proper self13 defense instruction because the use of the knives as described by the witness

14 constituted the use of deadly force. The instruction given to the jury stated:

15 Evidence has been presented that [D]efendant acted in self-defense.

16 [D]efendant . . . acted in self-defense if: 1. There was an appearance of

17 immediate danger of death or great bodily harm to [D]efendant as a

18 result of [Victim] arming herself and swinging a knife at [D]efendant; 2.

19 [D]efendant was in fact put in fear of immediate death or great bodily

20 harm and was swinging a knife because of that fear, and 3. The apparent

21 danger would have caused a reasonable person in the same

22 circumstances to act as [D]efendant did. The burden is on the State to

23 prove beyond a reasonable doubt that [D]efendant did not act in self24 defense. If you have a reasonable doubt as to whether [D]efendant acted

25 in self-defense, you must find [D]efendant not guilty. 
6

1 {10} We review a trial court’s rejection of proposed jury instructions de novo. See

2 State v. Percival, 2017-NMCA-042, ¶ 8, 394 P.3d 979. “A defendant is only entitled

3 to jury instructions on a self-defense theory if there is evidence presented to support

4 every element of that theory.” State v. Baroz, 2017-NMSC-030, ¶ 14, 404 P.3d 769.

5 “Where there is enough evidence to raise a reasonable doubt in the mind of a juror

6 about whether the defendant lawfully acted in self-defense such that reasonable minds

7 could differ, the instruction should be given.” Id. ¶ 15 (alterations, omission, internal

8 quotation marks, and citation omitted).

9 {11} Defendant argues that the district court erred in refusing to instruct the jury on

10 self-defense by non-deadly force. Defendant submits that while “[i]t was undisputed

11 that [he] and [Victim] both had knives during their confrontation, . . . there was no

12 evidence that [he] attempted to use his knife” on Victim. As a result, Defendant

13 contends that his threatening conduct involving the display of a knife, without more,

14 constituted only the use of non-deadly force. In support of this contention, Defendant

15 cites State v. Clisham, 614 A.2d 1297 (Me. 1992) and People v. Pace, 302 N.W.2d

16 216 (Mich. Ct. App. 1980). In Clisham, upon receiving information that the defendant

17 had killed his wife, police officers attempted to search the home of the defendant

18 without obtaining a warrant. 614 A.2d at 1297. When the defendant refused to allow
7

1 the officers to enter his home, the officers told the suspect that if he did not permit

2 them to enter that they would break his door down. Id. at 1298. As a result, the

3 defendant armed himself with two knives, opened the door, and explained to the

4 officers that he would use the knives to prevent them from coming into his home. Id.

5 The defendant eventually relented and permitted the officers to enter his home—at

6 which time he was arrested and charged with “criminal threatening.” Id. The Supreme

7 Judicial Court of Maine determined that the facts indicated that by brandishing knives

8 to repel the police from entering his home, the defendant had only “threatened the use

9 of deadly force. [And t]he mere threat of the use of deadly force is tantamount to the

10 actual use of non-deadly force. It is not on a par with the actual use of deadly force.”

11 Id. Accordingly, the court held that it was an error for the trial court to equate “the

12 mere threat of deadly force with the actual use of deadly force.” Id. at 1299. 

13 {12} Similarly in Pace, there was a confrontation between the defendant and victim

14 over a transaction involving a set of speakers that the defendant’s wife had purchased

15 from the victim. 302 N.W.2d at 217. During the confrontation, it was alleged that the

16 victim jumped in the face of the defendant. Id. at 217-18. The defendant responded

17 by pulling out a knife that he claimed to have used to defend himself when the victim

18 came toward him with what appeared to be a small baseball bat. Id. At his trial for

19 assault using a dangerous weapon, the trial court gave the jury a self-defense using
8

1 deadly force instruction over defense counsel’s objection. Id. at 221. Reasoning that

2 the evidence did not show that the defendant stabbed, lunged, or swung at anybody

3 with the blade of his knife, but rather merely drew the knife and held it at his side, the

4 Michigan Court of Appeals determined that the defendant did not use deadly force

5 during the confrontation. Id. Accordingly, the court held that it was error for the trial

6 court to have instructed the jury on self-defense using deadly force. Id.

7 {13} Clisham and Pace are unpersuasive here. In Clisham and Pace, the defendants

8 used their knives in defensive postures—to repel an unlawful home entry by the police

9 in the first instance and to self-protect against an attack with a baseball bat by the

10 victim in the other—with no indication that the defendants stabbed, lunged, or swung

11 at anybody with the blade of their knives. In contrast, here the testimony of Mr. Ochoa

12 and Ms. Polizzi established that Victim and Defendant used their knives offensively

13 and in a manner consistent with the use of deadly force. Mr. Ochoa testified that he

14 witnessed Victim and Defendant “fighting” and “swinging” knives at each other in

15 front of Victim’s trailer. Additionally, Ms. Polizzi described seeing Victim backing

16 away from her trailer and from Defendant with a knife in her hand as he pursued her

17 with a knife in his hand. Based on these facts, we conclude that there were facts to

18 support each element of self-defense by using deadly force. As the district court

19 observed, Victim and Defendant had knives and used them in a way that one could
9

1 infer that Defendant could have reasonably perceived Victim as a threat and used his

2 knife for self-defense. Accordingly, we conclude that the district court properly

3 instructed the jury on a theory of self-defense by using deadly force and did not err

4 in rejecting Defendant’s tendered theory of self-defense by using non-deadly force.

5 II. Neither Fundamental nor Cumulative Error Occurred at Defendant’s

6 Trial as a Result of Either the Jury Instructions or the Prosecutor’s

7 Closing Argument

8 {14} Defendant argues that “the jury instructions on no duty to retreat, the definition

9 of a household member, and the prosecutor’s closing argument gave rise to

10 fundamental error[s]” at his trial. Moreover, Defendant contends, these errors taken

11 together also constituted a cumulative error.

12 A. The Instructions Given to the Jury on the New Mexico No-Retreat Law

13 and the Definition of a “Household Member” Did Not Give Rise to

14 Fundamental Errors

15 {15} The State tendered and received a “no-retreat” instruction, which was a

16 modified version of UJI 14-5190. The tendered instruction provided that “[a] person

17 who is threatened with an attack need not retreat. In the exercise of her right of self

18 defense, she may stand her ground and defend herself.” The State explained that it

19 requested this instruction to inform the jury that upon being attacked, Victim had the

20 right to defend herself at her own home. Defendant neither objected to the State’s
10

1 tendered version of UJI 14-5190 nor requested that a no-retreat instruction be given

2 to apply to him.

3 {16} The State also tendered and received an instruction defining the term

4 “household member” pursuant to UJI 14-332. The instruction provided that “a

5 ‘household member’ means a spouse, former spouse, family member, including a

6 relative, parent, present or former step-parent, present or former in-law, child or co7 parent of a child, or a person with whom the threatened [Victim] has had a continuing

8 personal relationship. Cohabitation is not necessary for [Victim] to be considered a

9 household member.” Defendant did not object to the instruction.

10 {17} Because Defendant failed to object to the State’s no-retreat instruction and

11 instruction defining “household member,” we review his challenges only for

12 fundamental error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34

13 P.3d 1134 (“The standard of review [appellate courts] apply to jury instructions

14 depends on whether the issue has been preserved. If the error has been preserved

15 [appellate courts] review the instructions for reversible error. If not, we review for

16 fundamental error.” (citation omitted)). “The doctrine of fundamental error applies

17 only under exceptional circumstances and only to prevent a miscarriage of justice.”

18 State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. “An error is

19 fundamental when it goes to the foundation or basis of a defendant’s rights.” State v.
11

1 Anderson, 2016-NMCA-007, ¶ 8, 364 P.3d 306 (internal quotation marks and citation

2 omitted). This Court “will not uphold a conviction if an error implicated a

3 fundamental unfairness within the system that would undermine judicial integrity if

4 left unchecked.” Id. (internal quotation marks and citation omittted).

5 {18} In cases involving instructional errors, the appellate courts seek to determine

6 “whether a reasonable juror would have been confused or misdirected by the jury

7 instruction.” Benally, 2001-NMSC-033, ¶ 12 (internal quotation marks and citation

8 omitted). “For fundamental error to exist, the instruction given must differ materially

9 from the uniform jury instruction, omit essential elements, or be so confusing and

10 incomprehensible that a court cannot be certain that the jury found the essential

11 elements under the facts of the case.” State v. Caldwell, 2008-NMCA-049, ¶ 24, 143

12 N.M. 792, 182 P.3d 775 (internal quotation marks and citations omitted). Whether a

13 particular jury instruction was properly given “is a mixed question of law and fact”

14 that the appellate courts review de novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147

15 N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted).

16 1. The Jury Instruction on the New Mexico No-Retreat Law Was Not a

17 Fundamental Error

18 {19} Relying on Anderson, Defendant argues that the district court erred in giving

19 the jury the State’s tendered no-retreat instruction, which included only female

20 pronouns. This modified instruction, Defendant submits, “likely misdirected the jury”
12

1 especially in light of the fact that female pronouns are “marked” terms in the English

2 language such that “a reasonable juror likely would have concluded that because only

3 feminine pronouns were used” that Defendant “did have a duty to retreat” under the

4 circumstances. Defendant therefore posits that the State’s no-retreat instruction

5 “would have permitted the jury to reject self-defense out of hand without even

6 considering whether [Defendant] acted reasonably.”

7 {20} In Anderson, the defendant and victim got into a fight at a house party. 2016-

8 NMCA-007, ¶ 3. After a squabble and believing that the victim had armed himself

9 with a firearm, the defendant drew a handgun and shot the victim multiple times,

10 killing him. Id. At his homicide trial, the defendant requested a self-defense and no11 retreat instruction pursuant to UJI 14-5190, which the district court agreed was

12 warranted by the facts. Anderson, 2016-NMCA-007, ¶ 5. However, as a result of an

13 “oversight,” the no-retreat instruction was not given to the jury. Id. ¶ 6. The defendant

14 did not object to the omission of UJI 14-5190. Anderson, 2016-NMCA-007, ¶ 8.

15 During deliberations, the jury submitted a question to the district court asking if there

16 was a “stand-your-ground” law in New Mexico, but ultimately withdrew the question

17 because it had “found what it was looking for.” Id. ¶ 6 (alteration, internal quotation

18 marks, and citation omitted). The defendant was thereafter convicted of second-degree

19 murder. Id. On appeal, we determined that: 
13

1 [T]he term “reasonable” in the third prong of [a] self-defense instruction

2 carries a different meaning when read in conjunction with the no-retreat

3 instruction than it does alone. Read alone, a person exercising the degree

4 of attention, knowledge, intelligence, and judgment that society requires

5 of its members is acting reasonably. When read together with the no6 retreat instruction, however, a person who, when threatened with an

7 attack, does not retreat and stands his ground when exercising his right

8 of self-defense is acting reasonably.

9 Id. ¶ 15 (internal quotation marks and citation omitted). As a result, “[g]iven the

10 difference between the reasonableness standard of a self-defense instruction alone and

11 a self-defense instruction read in conjunction with the no-retreat instruction,” we

12 concluded that there was no way to determine which standard the defendant was held

13 to by the jury. Id. ¶ 16. These circumstances, we held, established that the defendant’s

14 “conviction was tainted by fundamental error[.]” Id. ¶ 19.

15 {21} We are unpersuaded by Defendant’s reliance on Anderson as authority for the

16 argument that it was fundamental error for the district court to give the jury the State’s

17 modified no-retreat instruction. In Anderson, the district court agreed with the

18 defendant that a no-retreat instruction was warranted by the facts of the case, but

19 because of an oversight failed to give the jury the tendered instruction. In contrast,

20 here the jury received a no-retreat instruction. In Anderson, there was also a strong

21 indication of jury confusion concerning whether the defendant acted in self-defense

22 based on the omission of the no-retreat instruction. This confusion was evident by the

23 jury’s question to the district court concerning whether there was a “stand-your-
14

1 ground” law in New Mexico, which was later withdrawn on grounds that the jury had

2 “found what it was looking for.” Id. ¶ 6 (alteration, internal quotation marks, and

3 citation omitted). In contrast, here although the second sentence of the State’s

4 modified no-retreat instruction only contained female gender pronouns, the jury was

5 fully instructed on New Mexico’s self-defense and no-retreat law, which did not

6 materially differ from the applicable uniform jury instructions. And there is no

7 indication in the record of jury confusion as to whom the given no-retreat instruction

8 applied. As a result, because Defendant’s argument relies on speculation that the jury

9 may have believed that Defendant had a duty to retreat from the altercation between

10 him and Victim, we perceive no fundamental error.

11 2. The Jury’s Instruction on the Definition of a “Household Member” Was

12 Not Fundamental Error

13 {22} Relying on State v. Bonham, 1998-NMCA-178, 126 N.M. 382, 970 P.2d 154,

14 abrogated by State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518,

15 Defendant argues that the district court erred in permitting inclusion in its instruction

16 on the definition of “household member,” modeled after UJI 14-332, the language that

17 Victim was “threatened.” The word “threatened” in the definition of “household

18 member,” Defendant argues “infringed upon [his] right to a jury verdict on the

19 element that was the gravamen of the aggravated assault charge.” In other words,
15

1 Defendant states, the instruction constituted “a clear, direct, and gratuitous statement

2 defining the alleged victim of the assault as having been ‘threatened.’ ”

3 {23} In Bonham, this Court reversed the conviction of a defendant for aggravated

4 battery on grounds of an erroneous jury instruction, applying a reversible error

5 standard. 1998-NMCA-178, ¶ 28. There, we held that given the grammatical structure

6 of the aggravated battery elements instruction given to the jury, that the instruction

7 was facially erroneous and permitted the jury to convict the defendant without proof

8 of all of the essential elements of the crime. Id. ¶¶ 26-28 (reasoning that an instruction

9 providing “[t]he defendant did touch or apply force to [the victim], a household

10 member, with a hot plate or trivet frame, an instrument or object which, when used as

11 a weapon, could cause death or very serious injury” instructed the jury that these items

12 met the definition of a “deadly weapon” without requiring the State to prove that fact

13 (alteration and emphasis omitted)). Bonham was abrogated, however, by Traeger,

14 2001-NMSC-022, ¶¶ 19-20. In Traeger, our Supreme Court held that an aggravated

15 battery elements instruction involving the use of a baseball bat did not warrant

16 reversal of the defendant’s conviction under a fundamental error analysis. Id. ¶¶ 19,

17 22 (stating that the instruction provided in pertinent part that the defendant “hit the

18 victim with a baseball bat, an instrument or object which, when used as a weapon,

19 could cause death or very serious injury” (alteration and internal quotation marks
16

1 omitted)). The Court stated that “[c]onsidering the heightened scrutiny of a

2 fundamental error analysis, . . . jury instructions should be considered as a whole” and

3 convictions should not be reversed where an alleged error is a “strictly legal and a

4 highly technical objection.” Id. ¶¶ 19-20 (alteration, internal quotation marks, and

5 citation omitted). In concluding that reversal of the defendant’s conviction was not

6 warranted, the Court reasoned that as a whole, the instruction at issue contained an

7 introductory phrase stating that “the state must prove to your satisfaction beyond a

8 reasonable doubt each of the following elements.” Id. ¶ 21 (internal quotation marks

9 and citation omitted). This language, the Court concluded, instructed the jury that the

10 question of whether a baseball bat was a “deadly weapon” was an element that the

11 State was required to prove beyond a reasonable doubt. Id.

12 {24} Even assuming it was an error to include the language that Victim was

13 “threatened” in the jury instruction defining “household member,” the error was not

14 fundamental. The second element of the aggravated assault against a household

15 member instruction given to the jury provided that “[D]efendant’s conduct caused

16 [Victim] to believe [D]efendant was about to intrude on [Victim]’s bodily integrity or

17 personal safety by touching or applying force to [Victim] in a rude, insolent or angry

18 manner[.]” Following Traeger, we conclude that whether characterization of the

19 Victim as “threatened” in the instruction defining a household member permits the
17

1 jury to assume without proof beyond a reasonable doubt the second element of the

2 aggravated assault instruction is at most “strictly legal and a highly technical

3 objection” that does not implicate fundamental fairness or judicial integrity. Id. ¶ 19

4 (internal quotation marks omitted). Also, as in the case of the aggravated battery using

5 a deadly weapon instruction in Traeger, because the aggravated assault against a

6 household member instruction here directed that “the state must prove to your

7 satisfaction beyond a reasonable doubt each of the following elements of the crime,”

8 a reasonable juror would have understood that the State was required to establish with

9 sufficient evidence all of the elements of the crime. Id. ¶ 21 (internal quotation marks).

10 Finally, the State’s tendered instruction defining a “household member” contained no

11 substantive or material modification from the applicable uniform instruction. See UJI

12 14-332 (providing that “[a] ‘household member’ means a spouse, former spouse,

13 family member, including a relative, parent, present or former step-parent, present or

14 former in-law, child or co-parent of a child, or a person with whom the threatened

15 __________ (name of victim) has had a continuing personal relationship. Cohabitation

16 is not necessary for __________ (name of victim) to be considered a household

17 member”). Accordingly, the instruction defining a “household member” did not give

18 rise to fundamental error.
18

1 B. Fundamental Error Due to Prosecutorial Misconduct Did Not Result From

2 the State’s Closing Argument

3 {25} At the conclusion of the State’s closing argument, counsel commented that:

4 The law is here. You just have to read it and apply it. Self-defense is

5 objectionable to even hear about in this case, yet you have been

6 instructed about it. Take those instructions on self-defense and tear them

7 up—figuratively. They don’t apply. There’s no facts to sustain them.

8 This law and that testimony and those photos is what will do justice in

9 this case. Find the defendant exactly what he did in this case—guilty of

10 all three counts.

11 Defendant did not object.

12 {26} Defendant argues on appeal that “[t]he prosecutor committed misconduct when

13 he told the jury ‘figuratively’ to rip up the court’s self-defense instructions, and to rely

14 instead on the other instructions in its deliberations.” Defendant contends that this

15 statement was a violation of law under settled New Mexico case law standing for the

16 proposition that “[a] prosecutor may not urge the jury to disregard the defenses

17 contained in the court’s instructions.” To support his argument, Defendant cites State

18 v. Garvin, 2005-NMCA-107, 138 N.M. 164, 117 P.3d 970 and State v. Diaz, 1983-

19 NMCA-091, 100 N.M. 210, 668 P.2d 326, as well as the out-of-state cases of People

20 v. Rosales, 134 P.3d 429 (Colo. App. 2005) and State v. Cardus, 949 P.2d 1047

21 (Haw. Ct. App. 1997).

22 {27} Because Defendant failed to object to the State’s comment during closing

23 argument, our review is limited to a fundamental error analysis. See State v. Trujillo,
19

1 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814 (“When an issue [of alleged

2 prosecutorial misconduct] has not been properly preserved by a timely objection at

3 trial, [appellate courts] have discretion to review the claim on appeal for fundamental

4 error.”). “Prosecutorial misconduct rises to the level of fundamental error when it is

5 so egregious and had such a persuasive and prejudicial effect on the jury’s verdict that

6 the defendant was deprived of a fair trial. An isolated, minor impropriety ordinarily

7 is not sufficient to warrant reversal, because a fair trial is not necessarily a perfect

8 one.” Id. (internal quotation marks and citation omitted); see State v. Sosa, 2009-

9 NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348 (“Fundamental error occurs when

10 prosecutorial misconduct in closing statements compromises a defendant’s right to a

11 fair trial[.]”). To determine whether a defendant was deprived of a fair trial, the

12 appellate courts “review the [challenged] comment in context with the closing

13 argument as a whole” in order to “gain a full understanding of the comments and their

14 potential effect on the jury.” State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126

15 P.3d 516 (internal quotation marks and citation omitted).

16 {28} The cases relied upon by Defendant share a commonality fatal to their

17 application to this case—the prosecutor in each case made a misstatement of the law

18 in its closing argument. See Garvin, 2005-NMCA-107, ¶¶ 19-20 (holding that “the

19 prosecutor’s comments were incorrect statements of the law” because they
20

1 communicated a lowered burden of proof “as to the essential element of the mens rea”

2 for the crime of forgery with which the defendant was charged); Diaz, 1983-NMCA3 091, ¶ 17 (holding that “[t]he prosecutor’s comment that in order to establish the

4 intoxication defense [to charges of burglary and larceny] the defendant would have

5 to produce expert testimony does not correctly state the law”); See also Rosales, 134

6 P.3d at 436 (stating that “it was improper for the prosecution to argue that a verdict

7 acquitting defendant of first degree murder would reward defendant for drinking and

8 indicate that it is permissible for every intoxicated person to commit murder and not

9 be held accountable,” yet still holding the comment “does not constitute plain error

10 affecting defendant’s substantial rights” where there was ample evidence of

11 defendant’s guilt); Cardus, 946 P.2d at 1054, 1060 (holding that although the

12 prosecutor misstated the law in closing argument, a curative instruction assured that

13 the defendant was afforded a fair trial). Here, because the comment challenged by

14 Defendant was not a statement of law, but rather a conclusion that the State argued

15 that the jury should reach based on the evidence admitted at trial, Garvin, Diaz,

16 Rosales, and Cardus do not apply.

17 {29} Considered in the context of the closing argument as a whole, the State’s

18 comment—that the jury should view the evidence in support of the State’s position

19 and figuratively tear up the instruction on Defendant’s self-defense theory of the
21

1 case—did not deprive Defendant of a fair trial. This erroneous suggestion was raised

2 as an isolated comment by the State at the conclusion of its summarization of the

3 evidence admitted at trial. Although such an improper comment is not appropriate and

4 might rise to a level of reversible error if preserved below, nothing exists in the record

5 to show that the jury failed to carry out its sworn duty to apply all the jury instructions

6 given by the district court. See State v. Clark, 1989-NMSC-010, ¶ 78, 108 N.M. 288,

7 772 P.2d 322 (recognizing that “[t]here is a presumption that jurors will adhere to

8 their instructions . . . and not pick out one instruction or parts of an instruction or

9 instructions and disregard others” (internal quotation marks and citation omitted)). It

10 is possible to infer that the State was only attempting to ask the jury to accept the

11 State’s view of the evidence, reject Defendant’s self-defense theory, and then refuse

12 to apply the self-defense instruction as support for a not guilty verdict. See State v.

13 Vigil, 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226 P.3d 636 (stating that our appellate

14 courts “indulge all reasonable inferences in support of the verdict” (internal quotation

15 marks and citation omitted)). In a fundamental error context, this Court would only

16 be speculating to conclude that the State’s comment about the self-defense instruction

17 had an absolute effect on the jury that was so persuasively prejudicial that it deprived

18 Defendant of a fair trial. See In re Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562,

19 915 P.2d 318 (stating that an “assertion of prejudice is not a showing of prejudice”).
22

1 As a result, we conclude that Defendant failed to establish fundamental error in this

2 case.

3 C. No Cumulative Error Occurred

4 {30} Considered together, Defendant argues, the foregoing alleged errors resulted 

5 in cumulative error because they “deprive[d Defendant] of a fair trial.”

6 {31} “The doctrine of cumulative error applies when multiple errors, which by

7 themselves do not constitute reversible error, are so serious in the aggregate that they

8 cumulatively deprive the defendant of a fair trial.” State v. Carrillo, 2017-NMSC-023,

9 ¶ 53, 399 P.3d 367 (internal quotation marks and citation omitted). Cumulative error

10 doctrine is “strictly applied, and cannot be invoked if the record as a whole

11 demonstrates that the defendant received a fair trial.” State v. Maxwell, 2016-NMCA12 082, ¶ 32, 384 P.3d 116 (alterations, internal quotation marks, and citation omitted).

13 Our examination of the record as a whole fails to demonstrate that Defendant did not

14 receive a fair trial. We therefore reject Defendant’s claim of cumulative error. 

15 III. Officer Thompson’s Testimony Did Not Violate Defendant’s Rights Under

16 the Confrontation Clause

17 {32} On direct examination, the State asked Officer Thompson if there was any on18 the-scene questioning of Victim about Defendant’s location when he responded to the

19 second 911 call. Officer Thompson answered in the affirmative, testifying that he

20 “asked who was the person that hit her [Victim]. She said [Defendant]. And then I
23

1 asked where he was. She [Victim] said she thinks he’s possibly inside [her trailer].”

2 Defense counsel objected on grounds of hearsay initially. At the ensuing bench

3 conference, the State argued that Victim’s statements were admissible as excited

4 utterances and under the public safety exception to the Confrontation Clause. The

5 district court overruled the objection, ruling that “the eliciting of information to find

6 out where another potential combatant” was falls within the public safety exception

7 to the Confrontation Clause, “so her answer to that and his [Officer Thompson’s]

8 response in reaction to that information is admissible.” Officer Thompson later

9 testified that his on-the-scene questions were asked based on his concern for public

10 safety because the community surrounding Victim’s trailer was home to multiple

11 families and children who frequently played outside. 

12 {33} On cross-examination, defense counsel asked Officer Thompson where the

13 knives found on the kitchen table in Victim’s trailer had come from and how he knew

14 those knives were actually the knives used by Victim and Defendant during their

15 altercation. Officer Thompson responded that Victim had stated that she and

16 Defendant had two knives and those were the knives found on the kitchen table in her

17 trailer. No objection, motion to strike, or curative instruction for this testimony was

18 requested by defense counsel.
24

1 {34} Defendant argues on appeal that the “[t]estimony by Officer Thompson

2 regarding [Victim’s] answer[s] to his question about who had hit her [and the location

3 of that person] violated [Defendant’s] right to confrontation.” Additionally, Defendant

4 argues, Officer Thompson’s testimony repeating Victim’s statements tying Defendant

5 to the knives found in Victim’s kitchen that were allegedly involved in the

6 confrontation between Defendant and Victim also violated Defendant’s right to

7 confrontation. As a result, Defendant concludes, it was an error for the district court

8 to admit these statements at his trial where no showing was made as to Victim’s

9 unavailability and Defendant had no opportunity to cross-examine Victim.

10 {35} “We apply a de novo standard of review as to the constitutional issues related

11 to the defendant’s rights under the Confrontation Clause.” State v. Gutierrez, 2011-

12 NMCA-088, ¶ 12, 150 N.M. 505, 263 P.3d 282 (alteration, internal quotation marks,

13 and citation omitted). The Sixth Amendment’s Confrontation Clause provides that

14 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

15 with the witnesses against him[.]” U.S. Const. amend VI. This procedural safeguard

16 applies in both state and federal prosecutions. See Crawford v. Washington, 541 U.S.

17 36, 42 (2004). The Confrontation Clause bars admission of “testimonial statements

18 of a witness who did not appear at trial unless he was unavailable to testify, and the

19 defendant had had a prior opportunity for cross-examination.” Id. 53-54; see
25

1 Gutierrez, 2011-NMCA-088, ¶ 13. “Statements are non-testimonial when made in the

2 course of police interrogation under circumstances objectively indicating that the

3 primary purpose of the interrogation is to enable police assistance to meet an ongoing

4 emergency.” Id. ¶ 14 (alteration, emphasis, internal quotation marks, and citation

5 omitted). In contrast, “statements are testimonial when the circumstances objectively

6 indicate that there is no such ongoing emergency, and that the primary purpose of the

7 interrogation is to establish or prove past events potentially relevant to later criminal

8 prosecution.” Id. (emphasis, internal quotation marks, and citation omitted). The level

9 “of formality of the interrogation is a key factor in determining whether statements are

10 testimonial.” State v. Romero, 2007-NMSC-013, ¶ 21, 141 N.M. 403, 156 P.3d 694

11 (internal quotation marks and citation omitted).

12 {36} In Gutierrez, we held that statements given to a police officer by a stabbing

13 victim were not testimonial where the statements were given to the officer while the

14 officer was responding to a fight in progress and still trying to figure out if there were

15 other suspects or victims at the scene, rather than in response to a structured question16 and-answer interrogation. 2011-NMCA-088, ¶¶ 15-16. In contrast, in Romero, our

17 Supreme Court held that a tape recorded statement given by a victim to police at a

18 police station interrogation was testimonial since it was given in response to structured
26

1 questioning as part of an aggravated battery against a household member

2 investigation. 2007-NMSC-013, ¶¶ 19-23.

3 {37} The district court determined that the primary purpose of Officer Thompson’s

4 on-the-scene questioning of Victim concerning who had hit her and the location of

5 that individual was to assist the police officers in meeting the ongoing emergency

6 involving a potentially armed and dangerous person, Defendant, who was still at large.

7 Prior to arriving for the second time at Victim’s residence, Officer Thompson had

8 been informed by dispatch that two individuals were outside the residence swinging

9 knives at each other. Upon arriving at Victim’s residence, Officer Thompson testified

10 that he had a public safety concern that a dangerous individual may still be in the area

11 and a threat to the community surrounding Victim’s residence, which was home to

12 multiple families and to children who frequently played outside. As a result of this

13 concern for public safety, Officer Thompson asked Victim questions in order to

14 determine who had hit her and where that person was now. Victim answered by

15 identifying Defendant as the individual who had hit her and stated that she thought he

16 may still be inside her trailer.

17 {38} The circumstances here make this case more like Gutierrez than Romero. In

18 Gutierrez, the challenged out-of-court statements were made while the police were

19 responding to a potential fight in progress and still trying to figure out who the
27

1 suspects and victims were. Additionally, unlike the facts of Romero, where the battery

2 victim’s statement was taken and recorded in response to structured questioning at a

3 police station and as part of an aggravated battery investigation, here there is no

4 indication that Officer Thompson’s questions were part of a formal police station-style

5 interrogation structured to gather facts relevant to a future criminal prosecution.

6 Accordingly, we conclude that Victim’s statements were not testimonial and their

7 admission did not constitute a violation of the Confrontation Clause.

8 {39} We also conclude that Defendant waived his right to object to Officer

9 Thompson’s testimony connecting Defendant to the knives found by police on the

10 kitchen table in Victim’s trailer. During cross-examination, defense counsel asked

11 Officer Thompson questions concerning where the knives found on the kitchen table

12 in Victim’s trailer had come from and whether those knives were actually the knives

13 used by Victim and Defendant during their confrontation. Officer Thompson testified

14 that Victim had stated that she and Defendant had two knives and those were the

15 knives found on the kitchen table in her trailer. However, because no objection,

16 motion to strike, or curative instruction for this testimony was requested by defense

17 counsel, we decline to address Defendant’s contention on appeal. See Trujillo, 2002-

18 NMSC-005, ¶¶ 12-13 (holding that where testimony was not objected to at trial that
28

1 the issue of whether admission of the testimony violated the Confrontation Clause was

2 waived on appeal).

3 IV. Admission of Officer Esquero’s Account of Defendant’s Arrest Did Not

4 Constitute Plain Error

5 {40} On direct examination, the State asked Officer Esquero whether he was

6 involved with Defendant’s arrest in March 2013. Officer Esquero testified that he and

7 other officers responded to a late night disturbance at a trailer park sometime between

8 10:00 p.m. and 2:00 a.m., and upon arriving made contact with Victim, who along

9 with others, stated that a disturbance had occurred and that Defendant had fled the

10 scene. Officer Esquero and other officers searched the trailer park for Defendant and

11 ultimately found him hiding underneath a nearby culvert. Officer Esquero testified

12 that Defendant was then arrested and appeared intoxicated, belligerent, and was

13 verbally combative. There was no objection to this testimony.

14 {41} Defendant argues on appeal that “[t]he trial court committed plain error in

15 permitting the State to admit uncharged misconduct evidence in violation of Rule 11-

16 404(B)(2)[] NMRA.” Rule 11-404(B)(1)-(2) provides that “[e]vidence of a crime,

17 wrong, or other act is not admissible to prove a person’s character in order to show

18 that on a particular occasion the person acted in accordance with the character[,]”

19 provided however that such “evidence may be admissible for another purpose, such

20 as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
29

1 of mistake, or lack of accident.” The alleged error, Defendant argues, stemmed from

2 Officer Esquero’s testimony in response to the State’s question concerning the

3 circumstances surrounding the arrest of Defendant in March 2013, which occurred

4 some months after the conduct for which Defendant was on trial. This testimony,

5 Defendant contends, “was irrelevant to the issues at trial except insofar as it

6 constituted evidence of his propensity to become drunk and violent[,]” and constituted

7 plain error since it was admitted without notice and without a Rule 11-403 NMRA

8 balancing of the prejudicial effect of the evidence against its probative value.

9 {42} “This Court reviews unpreserved evidentiary matters for plain error.” State v.

10 Lopez, No. A-1-CA-34615, 2017 WL 3225444, ___-NMCA-___, ¶ 34, ___ P.3d ___,

11 (July 28, 2017); see Rule 11-103(E) NMRA (“A court may take notice of plain error

12 affecting a substantial right, even if the claim of error was not properly preserved.”).

13 However, we only will apply plain error if “allegedly erroneous testimony affected the

14 substantial rights of the accused and constituted an injustice that created grave doubts

15 concerning the validity of the verdict.” State v. Sweat, 2017-NMCA-069, ¶ 20, 404

16 P.3d 20 (internal quotation marks and citation omitted).

17 {43} The admission of Officer Esquero’s unobjected-to testimony concerning the

18 circumstances surrounding the arrest of Defendant did not affect the substantial rights

19 of Defendant or create grave doubts as to the validity of the verdict. Officer Esquero,
30

1 as the State points out in its brief, “never identified the nature of the disturbance to

2 which he responded, and never said that Defendant caused the disturbance.”

3 Moreover, the State contends that Officer Esquero’s testimony was relevant since

4 Defendant had fled from the scene and “[i]t is well established that evidence of flight

5 ‘may prove consciousness of guilt.’ ” We agree. We also observe that ample evidence

6 was admitted at Defendant’s trial apart from Officer Esquero’s testimony concerning

7 his role in the arrest of Defendant to support Defendant’s convictions for aggravated

8 assault against a household member, false imprisonment, and battery against a

9 household member. Accordingly, we conclude that it was not plain error to admit

10 Officer Esquero’s testimony describing the arrest of Defendant.

11 V. Sufficient Evidence Supports Defendant’s Convictions

12 {44} Finally, Defendant challenges the sufficiency of the evidence to support his

13 convictions. Defendant contends that Mr. Ochoa and Ms. Polizzi were untruthful in

14 their testimony “about what happened and could not have seen what happened from

15 across the street and within the rock wall enclosing their trailer. [Defendant] also

16 believes Mr. Ochoa was not truthful about the knives given where they were found by

17 the police, and that the police should have collected and tested the knives.”

18 {45} “Sufficient evidence exists to support a conviction when substantial

19 evidence[,]” either direct or circumstantial, “exists to support a verdict of guilt beyond
31

1 a reasonable doubt with respect to every element essential to a conviction.” State v.

2 Vargas, 2016-NMCA-038, ¶ 27, 368 P.3d 1232 (internal quotation marks and citation

3 omitted). New Mexico appellate courts review challenges to the sufficiency of the

4 evidence to support a conviction “in the light most favorable to the guilty verdict,

5 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

6 of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d

7 176. “It is the exclusive province of the jury to resolve inconsistencies or ambiguities

8 in a witness’s testimony, and New Mexico appellate courts will not invade the jury’s

9 province as fact-finder by second-guessing the jury’s decision concerning the

10 credibility of witnesses, reweighing the evidence, or substituting [their] judgment for

11 that of the jury.” Vargas, 2016-NMCA-038, ¶ 27 (internal quotation marks and

12 citation omitted). Rather, the appellate courts will only determine whether “a rational

13 jury could have found beyond a reasonable doubt the essential facts required for a

14 conviction.” Id. (emphasis, internal quotation marks, and citation omitted). 

15 {46} The testimony of Mr. Ochoa and Ms. Polizzi, the police officers, and the

16 evidence admitted at trial constituted sufficient evidence to support Defendant’s

17 convictions. Defendant’s contentions that Mr. Ochoa and Ms. Polizzi were untruthful

18 in their testimony concerning what they were able to see of the altercations between

19 Victim and Defendant from their trailer and the origin of the knives found in Victim’s
32

1 trailer require this Court to reweigh the credibility of the testimony presented at trial.

2 Based on the principles described above, this Court will not take the place of the jury

3 and make a credibility determination. Accordingly, because Defendant does not

4 otherwise challenge the sufficiency of the evidence presented to establish the essential

5 elements of the charged crimes, we conclude that a rational jury could have found

6 beyond a reasonable doubt the facts required to sustain Defendant’s convictions.

7 CONCLUSION

8 {47} For the foregoing reasons, the judgment and sentence is affirmed.

9 {48} IT IS SO ORDERED.

10 _______________________________

11 MICHAEL E. VIGIL, Judge

12 WE CONCUR: 

13 ____________________________

14 EMIL J. KIEHNE, Judge

15 ____________________________

16 TIMOTHY L. GARCIA, Judge Pro Tempore