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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,612 4 ISIDRO P. ALDAZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Steven L. Bell, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Elizabeth Ashton, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Judge. 192 {1} Defendant appeals his conviction for aggravated battery against a household 1 member (deadly weapon). Defendant admitted attrial that he attacked the victim but 2 contended that he did not use a baseball bat during the attack. On appeal, Defendant 3 argues that the State impermissibly used a prior conviction for aggravated assault with 4 a deadly weapon to impeach his testimony at trial, that the district court erred in 5 denying his request for a mistrial due to prosecutorial misconduct, and that there was 6 insufficient evidence to support his conviction. Finding none of Defendant’s 7 contentions meritorious, we affirm. 8 {2} Because this is a memorandum opinion and the parties are familiar with the 9 facts and procedural history of this case, we reserve discussion of the pertinent facts 10 for our analysis. 11 DISCUSSION 12 Impeachment of Defendant by a Prior Conviction 13 {3} Defendant argues that he was improperly impeached by the introduction of a 14 prior conviction after the State elicited an admission from Defendant to the prior 15 conviction during cross-examination. Defe ndant admits that this argument was not 16 preserved below. Because this is an unpreserved evidentiary matter, we limit our 17 review to plain error. State v. Dylan J. , 2009-NMCA-027, ¶ 15, 145 N.M. 719, 204 18 P.3d 44. 193 {4} “Plain error is an exception to the general rule that parties must raise timely 1 objection[s] to improprieties at trial[.]” Id. (internal quotation marks and citation 2 omitted). In reviewing for pl ain error, we “look at whether the testimony affected a 3 substantial right of [the d]efendant[;]” however, we apply the doctrine “only if we 4 have grave doubts about the validity of the verdict, due to an error that infects the 5 fairness or integrity of th e judicial proceeding.” Id. (internal quotation marks and 6 citation omitted); see also State v. Baca , 1997-NMSC-045, ¶ 17, 124 N.M. 55, 946 7 P.2d 1066 (stating that plain error requires “an injustice that creates grave doubts 8 concerning the validity of the verdict”), overruled on other grounds by State v. 9 Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Accordingly, “the plain 10 error rule is to be used sparingly.” State v. Paiz , 1999-NMCA-104, ¶ 28, 127 N.M. 11 776, 987 P.2d 1163. “In determini ng whether there has been pl ain . . . error, we must 12 examine the alleged errors in the c ontext of the testimony as a whole.” Dylan J. , 2009- 13 NMCA-027, ¶ 15 (omission in original ) (internal quotation marks and citation 14 omitted). 15 {5} In this case, we are unpersuaded that the impeachment of Defendant with a 16 prior conviction raises “grave doubts about the validity of the verdict.” Id. (internal 17 quotation marks and citation omitted). First, it is not immediately apparent that the 18 impeachment was improper under Rule 11-609(A)(1)(b) NMRA (stating that a 194 witness may be impeached with a prior convi ction if the prior conviction is less than 1 ten years old and the “probative value of the evidence outweighs its prejudicial 2 effect”). The prior conviction was less than ten years old. Therefore, had an objection 3 been made, it would have beenleft to the district court to weigh the probative value 4 against its prejudicial effect. Defendant correctly notes that the district court could 5 have concluded that the prior convic tion had little probative value due to the 6 remoteness of the conviction and the fact th at Defendant pleaded guilty to the previous 7 offense. See State v. Conn , 1992-NMCA-052, ¶¶ 17-18, 115 N.M. 101, 847 P.2d 746. 8 On the other hand, the district court coul d have also determined that the prior 9 conviction was highly probative because of the importance of witness credibility to 10 this case and Defendant’s testimony that hewould not use a bat to hit the victim 11 although he had previously b een convicted of aggravated assault with a deadly 12 weapon. See State v. Trejo , 1991-NMCA-143, ¶ 15, 113 N.M. 342, 825 P.2d 1252 13 (stating that when a trial boils down to a “s wearing match between [the d]efendant and 14 the victim . . . it [becomes] more, not less, compelling to explore all avenues which 15 would shed light on which of the two w itnesses was to be believed” (internal 16 quotation marks and citation omitted)). Based on the record before us, we cannot say 17 that a decision either way by the district c ourt would have clearlyconstituted an abuse 18 of discretion. 195 {6} Second, even if admission of the eviden ce would have been error, the error 1 “does not create any doubt about the firmness of the verdict.” State v. Contreras , 2 1995-NMSC-056, ¶ 24, 120 N.M. 486, 903 P.2d 228. Defendant admitted on the stand 3 to punching and kicking the victim. The mainissue was whether he used a bat during 4 the attack. The victim testified that Defendant used two bats, and the victim’s treating 5 physician testified that her injuries were consistent with her account. Accordingly, 6 sufficient evidence apart from the admission of Defendant’s prior conviction 7 supported the verdict. 8 The District Court Did Not Err in Deny ing Defendant’s Request for a Mistrial 9 {7} Defendant argues that the district c ourt erred in denying his motion for a 10 mistrial due to the improper conduct of the State during closing argument. The 11 conduct highlighted by Defendant includes references to his prior conviction in order 12 to question his credibility and the State’s characterization of points in Defendant’s 13 closing argument as “just blatantly not the truth” and “not based on facts.” 14 {8} Defendant did not object to these statements during the State’s closing 15 argument. However, after the jury began deliberations, Defendant asserted that the 16 State’s closing argument was improper and re quested a mistrial. The district court 17 denied the motion due to the untimeliness of the request. Defe ndant argues on appeal 18 that the district court erred in denyi ng the motion because, although the jury had 196 retired, the court could have issued a limiti ng instruction or granted a mistrial since 1 no verdict had been rendered. 2 {9} Our review of this issue involves two step s. First, we review whether the district 3 court abused its discretion in denying the motion. Second, because Defendant did not 4 timely object to the State’s closing argument, we review whether the State’s remarks 5 rose to the level of fundamental error. 6 {10} First, the district court did not abuse its discretion in denying Defendant’s 7 request for a mistrial. “[T]he power to decl are a mistrial should be exercised with the 8 greatest caution.” State v. Sutphin , 1988-NMSC-031, ¶ 18, 107 N.M. 126, 753 P.2d 9 1314. “The trial judge is in a much better position to know whether a miscarriage of 10 justice has taken place and his [or her] opinion is entitled to great weight in the 11 absence of a clearly erroneous decision.” Id. (internal quotation marks and citation 12 omitted). 13 {11} Defense counsel did not make an objec tion until the jury retired to begin 14 deliberations. Defense counsel’s tardiness prevented the district court from pursuing 15 a less drastic remedy, such as a curative in struction. We have recognized before that 16 a “well-constructed instruction can dissipate the prejudice” fro m improper evidence 17 or argument. State v. Gibson , 1992-NMCA-017, ¶ 37, 113 N.M. 547, 828 P.2d 980; 18 see also State v. Sosa , 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348 (noting 197 that curative instructions are an appropriate means of remedying improper remarks 1 during closing argument); cf. Gibson , 1992-NMCA-017, ¶ 37 (“Failure [by defense 2 counsel] to accept the court’s offer of a cauti onary instruction may in itself justify a 3 refusal to grant a mistrial[.]”) Here, de fense counsel purposely waited until after the 4 jury retired to deliberate to seek a reme dy for the State’s remarks. Due to defense 5 counsel’s decision, we cannot conclude that the district court abused its discretion in 6 determining that Defendant ’s request was untimely. Cf. Callaway v. State , 1990- 7 NMSC-010, ¶ 8, 109 N.M. 416, 785 P.2d 1035 (c oncluding that the district court 8 abused its discretion in not pursuing other avenues before granting a mistrial, 9 especially where a curative instruction would have likely cured the prejudice). 10 {12} Second, we are unpersuaded that the St ate’s remarks rose to the level of 11 fundamental error. Under the doctrine of fundamental error, an appellate court has the 12 discretion to review an error that was not preserved if a defendant’s conviction 13 “shock[s] the conscience” of the Court because either (1) the defendant is 14 “indisputably innocent” or (2) “a mist ake in the process makes a conviction 15 fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. 16 Barber , 2004-NMSC-019, ¶¶ 8, 17, 135 N.M. 621, 92 P.3d 633 (internal quotation 17 marks and citation omitted). When review ing for fundamental error, we “first 18 determine if error occurred; if so, we next determine whether that error was 191 It is disappointing to see as often as we do prosecuting attorneys stepping over 16 the line in questioning witnesses or in closing argument without consequences. 17 8 fundamental.” Campos v. Bravo , 2007-NMSC-021, ¶ 8, 141 N.M. 801, 161 P.3d 846. 1 In the context of prosecutorial misconduc t, we “must be convinced that the 2 prosecutor’s conduct created a reasonable probability that the error was a significant 3 factor in the jury’s deliberations in relati on to the rest of the evidence before them.” 4 Sosa , 2009-NMSC-056, ¶ 35 (internal quotation marks and citation omitted). 5 {13} The State’s remarks in this case regarding Defendant’s prior conviction, while 6 cloaked as questioning the credibility of Defendant, certainly toed the line of inviting 7 a propensity rationale. That is, the remarks can reasonably be construed to invite the 8 jury to make an impermissible link between Defendant’s prior conviction for 9 aggravated assault with a deadly weapon and the question whether Defendant used a 10 bat during the attack. 11 {14} That said, the record in this case does not compel th e conclusion that a mistake 12 in the process made Defendant’s conviction fundamentally unfair. Barber , 2004- 13 NMSC-019, ¶¶ 8, 17. The remarks, in the context of the closing argument as a whole, 14 were not so pervasive or prejudicial as to deprive Defendant of a fair trial. See Sosa , 15 2009-NMSC-056, ¶ 26 (stating that one factor in determining whether error exists due 16 to statements made in closing argument is “whether the statement is isolated and 17 brief, or repeated and pervasive”). 1 The thrust of the State’ s closing argument was that 18Sometimes, where there is a timely defense objection, in lieu of granting a mistrial 16 perhaps the district court should admonish the prosecuting attorney in the presence of 17 the jury as well as issue a curative instruction. 18
9 the testimony from both the victim and the treating physician, in addition to the photos 1 of the injuries, supported her account that Defendant used a baseball bat during the 2 attack. Furthermore, the State’s comment s regarding defense counsel’s closing 3 argument, while perhaps lacking in tact, di d not rise to the level that shocks the 4 conscience of this Court. Cf. id. ¶ 23 (analyzing statement by the prosecutor 5 questioning the defense counsel’s view of the evidence and concluding that it was an 6 “appropriate use of rebuttal”). Finally, as we noted above, we cannot conclude that the 7 State’s remarks, given the ev idence against Defendant, “materially altered the trial or 8 likely confused the jury by distorting the evidence[.]” Id. ¶ 34. Accordingly, we 9 decline to upset the jury’s verdict on the basis of fundamental error. Id. ¶ 35. 10 Cumulative Error 11 {15} Defendant argues that the combined erro rs at trial constitute cumulative error 12 and compel reversal. “The doctrine of cumu lative error requires re versal when a series 13 of lesser improprieties throughout a trial are found, in aggreg ate, to be so prejudicial 14 that the defendant was deprived of the constitutional right to a fair trial.” State v. 15 Guerra , 2012-NMSC-014, ¶ 47, 278 P.3d 1031 (internal quotation marks and citation 16 omitted). Because we have not found that any of Defendant’s previous points 1710 constituted error, we conclude that cumulative error is of no assistance to Defendant 1 in this case. 2 Sufficiency of the Evidence 3 {16} Defendant argues that there was insufficient evidence supporting his conviction 4 because the State did not prove beyond a reasonable doubt that he was the assailant. 5 Defendant contends that the vi ctim, who died before trial, never specifically identified 6 him as the perpetrator. “In reviewing the sufficiency of the evidence, [an appellate 7 court] must view the evidence in the li ght most favorable to the guilty verdict, 8 indulging all reasonable inferences and resolv ing all conflicts in the evidence in favor 9 of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 10 176. 11 {17} We are unpersuaded by Defendant’s argument. The victim’s statement 12 identifying “Isidro Aldaz” was introduced inevidence at trial. More importantly, 13 Defendant’s argument seems to ignore the factthat he admitted at trial and also in 14 briefing on appeal that he attacked the vic tim. Accordingly, suffi cient evidence existed 15 to conclude that Defendant was the assailant. 16 CONCLUSION 17 {18} For the foregoing reasons, we affirm the district court. 18 {19} IT IS SO ORDERED. 1911 _______________________________ 1 CYNTHIA A. FRY, Judge 2

WE CONCUR: 3

_________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5

_________________________________ 6 JONATHAN B. SUTIN, Judge 7