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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper ve rsion 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. 30,978 4 VICTOR HERNANDEZ, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Kenneth H. Martinez, District Judge 8 Gary K. King, Attorney General 9 Sante Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 172 MEMORANDUM OPINION 1 KENNEDY, Chief Judge. 2

{1} Victor Hernandez (Defendant) appeal s his two convictions for aggravated 3 battery, asserting that the district court e rred in denying him a self-defense instruction, 4 which he argues compelled him to testify in violation of his Fifth Amendment rights, 5 as well as committing various discovery and evidentiary errors. The case arises from 6 a fight outside a bar between Defendant and two victims, Robert Apodaca and Jordan 7 Arellin. Because both parties ar e familiar with the events in dispute, we will review 8 the relevant facts as they become necessary in discussing the four issues raised on 9 appeal. For the reasons described below, we find no error and affirm the district court. 10

I. DISCUSSION 11 A. The District Court Did Not Errone ously Deny Defendant’s Requested Jury 12 Instructions Nor Compel Defendant to Testify in Violation of His Fifth 13 Amendment Rights 14

{2} Defendant’s first assignment of error is dual in nature. He argues that the 15 district court erroneously deni ed his request for self-defenseinstructions at the end of 16 the State’s case and, as a result, he was comp elled to testify in vi olation of his Fifth 17 Amendment rights, according to him, to esta blish sufficient facts to justify giving the 18 instruction later. The motion and ruling th at Defendant challenge s occurred at the end 19 of the State’s evidence, so we address each element in turn based on the evidence 203 before the court at the time of its ruling. Later, after Defendant testified that he had 1 been “jumped” by multiple assailants and had been in fear of his life, he successfully 2 renewed his request. Prior to deliberating, jurors were instructed as to self-defense. 3 We note that Defendant had not testified to his subjective vi ew of the situation at the 4 time his initial motion was made to give the instruction. 5

{3} The first half of the question—whether to give the instruction—“is a mixed 6 question of law and fact th at we review de novo.” State v. Boyett , 2008-NMSC-030, 7 ¶ 12, 144 N.M. 184, 185 P.3d 355 (internal quot ation marks and citation omitted). An 8 instruction on self-defense requires evidence that “(1) the defendant was put in fear 9 by an apparent danger of immediate death or great bodily harm, (2) the [defendant’s 10 actions] resulted from that fear, and (3) the defendant acted reasonably when he or she 11 [acted].” State v. Rudolfo , 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170 12 (internal quotation marks and citation omitted). “A defendant is notentitled to a self13 defense instruction unless it is justified by sufficient evidence on every element of 14 self-defense.” Id. 15 The first two requirements, the appearance of immediate danger and 16 actual fear, are subjective in that they focus on the perception of the 17 defendant at the time of the incident . By contrast, the third requirement 18 is objective in that it focuses on the hypothetical behavior of a reasonable 19 person acting under the same circumstances as the defendant. 20 State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477. 214 {4} For a self-defense instruction to be gi ven, the evidence must be sufficient so 1 that reasonable minds could differ on all elements of the offense. See State v. 2 Gonzales , 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. We note that the test 3 for the facts is a “view [of] the circumstances at the time the deadly force was used by 4 the defendant and not at some earlier point.” Rudolfo , 2008-NMSC-036, ¶ 18. 5

{5} Looking at the State’s evidence of the fight, we are unpersuaded by Defendant’s 6 argument that he deserved a self-defense instruction. The testimony in the State’s 7 case indicated that, as the gr oup came out of the bar, Defendant and his girlfriend were 8 some distance away. Defendant yelled at the group. Thereafter, Defendant and his 9 girlfriend got in her car and drove toward the group, causing them to move out of the 10 way to avoid being hit. Defendant’s girlfriend exited th e car and began a fight with 11 a female member of the group. Apodaca approached Defendant, who was still in the 12

car. Defendant threatened to kill Apodaca and then exited the car to confront him. 13 Prior to fighting with Apodaca, Defendant asked another member of the group if he 14 was planning to join in. After receiving a negative answer, the fight with Apodaca 15 began. At some point, Apodaca took Defendant to the ground. Soon after, Apodaca 16 became aware he had been cu t deeply in the abdomen and yelled for help. Arellin 17 answered Apodaca’s call for help. Arellin also wound up on the ground, kicking at 18 Defendant, who struck Arellin’s legs. About this time, the bar’s bouncer broke up the 19 fight. Arellin soon discovered that his legs had received a number of deep cuts. 205 Apodaca’s abdomen had been cu t badly enough to result in partial evisceration of his 1 intestines. Two witnesses testified that they sa w an object in Defendant’s bloody right 2 hand as he backed away from the fight. 3

{6} After the State presented this eviden ce, Defendant requested a self-defense 4 instruction. Based on what was presented at th e time of the request, the evidence 5 showed that Defendant used deadly force and a deadly weapon in his fight against 6 both Apodaca and Arellin. The first part of the fight was one that, to all appearances, 7 was mutually joined by Defendant and Apodaca. Defendant traded threats with 8 Apodaca, got out of the car, ascertained th at another man in Apodaca’s party would 9 not be joining in the fight and then engaged Apodaca in a fist fight. No evidence 10 compelled an inference that, at the time Defendant joined in combat with Apodaca, 11 he did so out of fear he was in danger of death or great bodily harm. To all 12 appearances, Defendant’s response to Apodaca’ s approach to the car was to threaten 13 to kill Apodaca and get out to fight him. These were not actions that were a 14 reasonable product of a fear of an immedi ate danger of death or great bodily harm. 15 State v. Lopez , 2000-NMSC-003, ¶ 26, 128 N.M. 410, 993 P.2d 727. When Apodaca 16 took Defendant to the ground in a fist fi ght, Defendant cut him badly enough with a 17 sharp instrument to expose his intestines through about a ten-inch wound. Apodaca 18 possessed no weapon and usednone save his fists. We can see no real evidence 19 known to the district court at the time of the request to support the possibility that 206 Defendant was in reasonable fear of death or great bodily harm at the time he joined 1 or during the fight as required for a self-defense instruction. From the timing and 2 extent of Apodaca’s injuries, it is reasonabl e to assume that Defendant entered the 3 fight armed. 4

{7} In State v. Guerra , our Supreme Court held that a defendant who came to the 5 scene of a fight armed and stabbed the unarmed victim repeatedly after their fight 6 began was rightly denied a self-defense instruction because the defendant’s actions 7 were not reasonable. 2012-NMSC-014, ¶ 15, 278 P.3d 1031. Our Supreme Court 8 noted that “there was no appearance in [the ] case that [the d]ef endant was threatened 9 with death or great bodily harm at the time of the killing. Necessarily, if the first 10 element is not present, [the d]efendant coul d not have killed as a result of that threat.” 11 Id. Defendant’s assertion that he faced mu ltiple assailants also fails because Arellin 12 did not appear until Apodaca had seen the extent of his own injuries and yelled for 13 help. Since Apodaca was out of the fight because of his injuries, Defendant did not 14 fight both at the same time. See State v. Cooper , 1999-NMCA-159, ¶ 11, 128 N.M. 15 428, 993 P.2d 745 (holding that a defendant could receive a self-defense instruction 16 for defending against harm from multiple assailants). 17

{8} Here, the district court denied the self -defense instruction when it was first 18 requested after the State’s case, pointing out that (1) Defendant was in the car that 19 menaced Apodaca, Arellin, and their group; (2 ) Defendant was the fi rst aggressor; and 207 (3) there was evidence that Defendant had retrieved something from the back seat of 1 the car that could be inferred to be a weapon. The district court found that, even if 2 Defendant was taking on more th an one person, he did so willingly and, as the first 3 aggressor, the requested in struction was not warranted. We conclude that the district 4 court’s actions at that time we re correct. Even in a situation where a victim is armed, 5 a self-defense instruction is not warrantedin light of a defendant’s overwhelmingly 6 vicious reaction to the threat that would indicate conduct fueled by “hatred or by rage 7 or other strong emotion, but not by fear.” Lopez , 2000-NMSC-003, ¶ 26. Defendant’s 8 reaction to the situation presented must beshown to be a reasonable response, which 9 here it was not. Not every element of self-defense was established, and an 10 unreasonable response to a threat precludes a self-defense instruction. See State v. 11 Swick , 2012-NMSC-018, ¶ 65, 279 P.3d 747. Due to the fact that Defendant exited 12 the car to fight, the severity of the wounds inflicted by him, the evidence of his use of 13 a weapon against unarmed combatants, and th e lack of evidence as to a subjectively 14 fearful state of mind, the district court was reasonable in refraining from giving a self15 defense instruction at that point. The ev idence at that point in the trial was not 16 sufficient to allow reasonable minds to diffe r as to the elements of the defense. 17

{9} Defendant next contends that the districtcourt’s refusal to give the instruction 18 after the close of the State’s case unfairly compelled him to testify, thus violating his 19 Fifth Amendment right against self-incriminati on. It is clear from the record that, at 208 the time the district court ru led on Defendant’s first request to receive a self-defense 1 instruction, it was unaware that Defendant would be tes tifying, or that the defense 2 would present evidence. Afterwards, the defense counsel made a proffer indicating 3 that, if Defendant were to testify, she believed such testimony would establish that 4 Defendant did not get out of the car to fight Apodaca, but to defend his girlfriend 5 elsewhere. Defense counsel then asserted th at, because the court had denied 6 Defendant the self-defense in struction, it forced Defendant to compromise his right 7 to remain silent to “make sure that the ju ry hears evidence of self-defense; that there 8 were truly two on one[.]” 9

{10} Following a brief conference with Defendant, his counsel returned and stated 10 that, based on the denial of the instruc tion, she believed Defe ndant felt he had no 11 choice but to testify and sought to limit the scope of any cross-examination to no more 12 of the event than Defendant addressed. The district court declined to do anything but 13 rule on objections as they arose. Defendant took the stand and stated that, in response 14 to a query from his counsel, he understood his right not to testify, but “I wanted to let 15 the jury know something.” Defendant’s te stimony on direct was that he was “jumped” 16 by Apodaca and Arrellin, and he“[f]ought for [his] life.” The State then proceeded 17 to cross-examine Defendant concerning fact s developed in its case-in-chief, after 18 which the defense rested. Subsequent discussions with the district court ultimately 19 resulted in the jury receiving a self-defense instruction. 209 {11} It is clear that Defendant was aware of his right not to testify, and he chose 1 instead to do so. His argument is th at his choice was the product of an erroneous 2 denial of the instruction. We have already held that the district court’s original denial 3 of the instruction was proper. Defendant has no right to a jury instruction that is 4 insufficiently grounded in the evidence of a case. Lopez , 2000-NMSC-003, ¶ 25 5 (holding that the defendant is not entitled to a self-defense instruction that is not 6 grounded in sufficient evidence to allow reas onable minds to differ as to the elements 7 of the defense). As noted in Coffin , subjective aspects of the defense were important 8 enough to be necessary for the instruction. 1999-NMSC-038, ¶ 16. The district court 9 did not erroneously deny the original reque st for a self-defense instruction, and 10 Defendant clearly understood his decision to te stify to attempt to establish the basis 11 for his defense. We find that his testimony was not compelled in violation of his Fifth 12 Amendment rights. 13

{12} Defendant’s reliance on Simmons v. United States , 390 U.S. 377 (1968), and 14 State v. Aragon , 1999-NMCA-060, 127 N.M. 393, 981 P.2d 1211, is misplaced. 15 Simmons established the Fifth Amendment privilege to testify to establish standing for 16 Fourth Amendment suppression purposes w ithout the testimony being later used by 17 the State as evidence against the defendant unless the defe ndant chose to testify once 18 again at trial. 390 U.S. at 390-91. Aragon dealt with a defendant who was forced to 19 choose between two constitutional rights, in the context of whether the defendant was 2010 properly denied a continuance due to his attorney’s illness and the waiver of his 1 fundamental right to a jury trial in orde r to move his trial to a later date. 1999- 2 NMCA-060, ¶¶ 1, 3-4. Defendant faced no such choice in this case. 3

{13} Similarly, we are unpersuaded by Defendant’s argument that had the instruction 4 been granted initially, he could have avoided cross-examination. As we stated above, 5 we reject Defendant’s claim that self-def ense could have been based on inferences 6 contained within the State’s evidence. As well, the last question and answer on 7 redirect of Defendant were: 8 [DEFENSE COUNSEL]: Why did I caution you about testifying? 9 [DEFENDANT]: Because you told me the State would 10 try to turn my words around. 11 We conclude that Defendant knowingly and voluntarily took the witness stand to 12 testify in his own defense, was not comp elled to do so, and was well aware that, by 13 doing so, his testimony bore the capacity to garn er the self-defense instruction that had 14 until then been properly denied. 15 B. The State’s Discovery Failu res Do Not Warrant Reversal 16

{14} Defendant demonstrates that, during th e month preceding the trial, both the 17 State and the defense counsel learned of the existence of previously undisclosed 181 The fact that plea negotiations broke dow n three months prior to the trial date 17 does not change our view of the partie s’ obligations to both provide and seek 18 discovery at all stages of a criminal prosecution. See Rule 5-501(A) NMRA (stating 19 generally that prosecution must make available the documents, photographs, and 20 recordings in the case “within ten . . . days after arraignment”). The defense submitted 21 no motions to compel discovery prior to the plea negotiations. 22 11 evidence, precipitating a scramble for its production. 1 We review a district court’s 1 decision with regard to discove ry for abuse of discretion. See State v. McDaniel , 2 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701. In determining whether late 3 disclosure of evidence requires reversal, we consider the following factors: “(1) 4 whether the [s]tate breached some duty or intentionally deprived the defendant of 5 evidence; (2) whether the improperly non-disclosed evidence was material; (3) 6 whether non-disclosure of the evidence prej udiced the defendant; and (4) whether the 7 [district] court cured the failure to timely disclose the evidence.” Id . ¶ 8 (internal 8 quotation marks and citation omitted). On the morning of the trial, Defendant’s 9 motion to exclude all of the State’s evid ence as a result of discovery problems was 10 denied. Much of that argument is muddledon both sides, ye t Defendant did not 11 request a continuance of the trial to deal with the evidence that was produced late, and 12 instead chose to proceed to trial. See State v. Smith , 1975-NMCA-139, ¶¶ 17-18, 88 13 N.M. 541, 543 P.2d 834 (declining to address the defendant’s argument regarding the 14 district court’s error in admitting the stat e’s late-disclosed evidence because, although 15 the defendant objected that the letter had only been provided to the defense the day 1612 before, the defendant did not claim surprise at trial, did not ask for a continuance at 1 trial, and did not ask the court to conduct an inquiry into the state’s late disclosure). 2 We address each contested item. 3 1. Arellin’s Interview 4

{15} In addition to the CD recording of an in terview with Arellin not being disclosed 5 until the morning of the trial, the disc suffered a technical malfunction and was not 6 used by either side during the trial. There were some indications prior to trial that the 7 taped interviews with Apodaca and Arellinhad taken place around the time of the 8 incident in May 2009, as reflected in Defe ndant’s specific motion the day of the trial 9 seeking belt tape interviews. On the morning of the tria l, the State disclosed the 10 existence of two CD interviews with Apodaca and Arellin taken by one of the 11 detectives, and defense counsel promptly f iled a motion regarding the late discovery. 12 Due to the aforementioned technical fl aw, Arellin’s interview was truncated. The 13 surviving portion only dealt with a photograph array. Despite Defendant’s arguments 14 to the contrary, the interviewing officer’s testimony indicated that no further statement 15 was successfully recorded. “We review a district court’s remedy for lost or destroyed 16 evidence for an abuse of discretion.” State v. Redd , 2013-NMCA-089, ¶ 18, 308 P.3d 17 1000, cert. denied , 2013-NMCERT-008, 309 P.3d 100. “T he good faith of the [s]tate 18 is irrelevant when the evidence lost is ma terial and prejudicial to the accused. But, 19 where the [s]tate shows it did not act in ba d faith, the defendant must show materiality 2013 and prejudice.” State v. Chouinard , 1981-NMSC-096, ¶ 24, 96 N.M. 658, 634 P.2d 1 680. 2

{16} Nothing in the record indicates bad faithon the part of the State regarding the 3 faulty recording. Defendant asserts that the unrecorded portion of the statement was 4 material, and he suffered prejudice due to th e late disclosure of Arellin’s recorded 5 statement due to the loss of relevant factual information and the opportunity to 6 impeach Arellin. 7 Determination of materiality and prejudice must be made on a 8 case-by-case basis. The importance of the lost eviden ce may be affected 9 by the weight of other evidence pres ented, by the opportunity to cross10 examine, by the defendant’s use of th e loss in presenting the defense, and 11 other considerations. The trial court is in the best position to evaluate 12 these factors. 13

Id. ¶ 25. At trial, the court accepted Defe ndant’s statement that only a short portion 14 of Arellin’s statement was viewable. When Defendant later move d for a mistrial after 15 confusion regarding whether the officer reviewed a functioning copy of the taped 16 statement, the court denied the motion, butpermitted Defendant to cross-examine the 17 officer, who corrected his testimony to stat e that the recording malfunctioned and only 18 contained the discussion relating to the photograph array. At no time did the State 19 rely on evidence from the malfunctioning tape . Therefore, there was no prejudice to 20 Defendant, and the court did not err in how it addressed the faulty recording. 21 2. The Videotape 2214 {17} One of the investigating detectives disclo sed the existence of a video of the bar 1 parking lot from May 19, 2009, the night of the fight. The tape was requested by the 2 defense investigator on July 15, 2010. Defendant asserts that earlier discovery of the 3 videotape may have given credence to hi s claim of self-defense by impeaching 4 Apodaca’s and Arellin’s account of when they left the bar. On the morning of the 5 trial, the defense counsel had not been able to view the video due to technical 6 problems with getting it to play on her laptop. She later cross-examined Officer 7 Robert Swessel regarding th e video, who established th at it was impossible to tell 8 from the video how soon after Defendant le ft the bar that Apodaca and Arellin left 9 with their friends. Because Defendant claims he was prejudiced because the video 10 could have shown when the groups left th e bar, Swessel’s testimony to the contrary 11 undermines his claim of particularized pr ejudice resulting from any late disclosure. 12 See State v. Rojo , 1999-NMSC-001, ¶ 61, 126 N.M . 438, 971 P.2d 829 (refusing to 13 hold that the prosecution’s delay in disc losing evidence required reversal in the 14 absence of a showing of prejudice from the non-disclosure); see also McDaniel , 2004- 15 NMCA-022, ¶ 6 (“The prejudice must be mo re than speculative.”). Defendant also 16 fails to direct us to any place in the reco rd that shows he was denied being able to 17 view a workable copy of the video, or thathe asked for a continuance to procure and 18 evaluate a copy. See Smith , 1975-NMCA-139, ¶ 17. 19 3. Medical Records and Photographs of Apodaca’s and Arellin’s Injuries 2015 {18} On June 29, 2010, the defense counsel was informed by the prosecutor of the 1 existence of photographs of Apodaca’s and Arellin’s injuries. The Albuquerque 2 Police Department (APD) requested a $30 fee before releasing the photographs, 3 among other evidence, to defense counsel. Because the defense counsel represented 4 Defendant based on a contractwith the Public Defender’s Department, she requested 5 that the fee be waived. The material was turned over to the defense counsel five days 6 prior to trial. Arellin’s medical records were neve r turned over to Defendant, although 7 the State maintains that it never received them. The State argues that because 8 Defendant obtained Apodaca’s medical r ecords in October 2009, and conducted 9 pretrial interviews starting in April 2010, Defendant had adequatetime to investigate 10 the severity of the injuries and obtain a medical expert on the subject. 11

{19} As with missing evidence: 12 In considering whether late di sclosure of evidence requires 13 reversal, a reviewing court will c onsider the following factors: (1) 14 whether the [s]tate breached some duty or intentionally deprived the 15 defendant of evidence; (2) whether the improperly non-disclosed 16 evidence was material; (3) whether the non-disclosure of the evidence 17 prejudiced the defendant; and (4) whether the trial court cured the failure 18 to timely disclose the evidence. 19 State v. Duarte , 2007-NMCA-012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 (internal 20 quotation marks and citation omitted). The State had a duty to disclose the medical 21 records and photographs. Rule 5-501(A)(4). Defendant argues that the records and 22 photographs were material because they were necessary to cross-examine Arellin 2316 regarding his injuries and acquire and pr epare an expert to discuss the gruesome 1 injuries. “[I]n the context of the late disclosu re of information, for evidence to be 2 material[,] there must be a reasonable probability that the outcome of the proceedings 3 would have been different had the information been disclosed earlier.” Duarte , 2007- 4 NMCA-012, ¶ 18. Defendant admits that Arellin was cross-examined about his 5 injuries and does not explain how an e xpert could rebut photographic evidence. 6

{20} Defendant maintains that these discove ry violations resulted in cumulative 7 prejudice when viewed in the aggregate. “Cumulative error requi res reversal of a 8 defendant’s conviction when the cumulative impact of errors which occurred at trial 9 was so prejudicial that the defendant was deprived of a fair trial.” State v. Martin , 10 1984-NMSC-077, ¶ 17, 101 N.M. 595, 686 P.2d 937. As Defe ndant cannot show the 11 materiality of each alleged error, we do not find them prejudicial in aggregate, nor 12 worthy of reversal. 13 C. Admission of the Knife Was Not Error 14

{21} We review a district court’s decision wh ether to admit or exclude evidence for 15 abuse of discretion. Ruiz v. Vigil-Giron , 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 16 P.3d 1286 (per curiam). We will find no abuse of discretion when the State shows 17 that, by a preponderance of the evidence, th e item of evidence is what it purports to 18 be. See State v. Peters , 1997-NMCA-084, ¶ 26, 123 N.M . 667, 944 P.2d 896. To be 19 admissible, the evidence must be relevant. See Rule 11-402 NMRA. Any doubts 2017 about admissibility should be resolvedin favor of admitting the evidence. State v. 1 Balderama , 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845. 2

{22} According to the testimony at trial, Defe ndant reached in the back seat of the 3 car prior to the fight. One witness testified that she saw a “little short knife” in 4 Defendant’s hand, and the bar bouncer, who broke up the fight, testified that 5 Defendant had an object in his bloody ri ght hand, although the bouncer could not be 6 sure that it was a knife. 7

{23} The district court admitted into eviden ce a knife that Defendant was wearing 8 on his belt when he was arrested by o fficers two days after the incident. The knife 9 was taken because we apons are seized as a matter of policy during an arrest. The 10 knife was neither tested to determine if it could be connected with the crime, nor 11 shown to treating physicians to compare to Apodaca’s and Arellin’s wounds. The 12 officer testified that there was nothing appare nt on the knife at the time of the trial that 13 looked like blood. Defendant’s brief appears to admit that a knife was indeed used to 14 cause the injuries, but argues that introduci ng this particular kni fe was only relevant 15 to Defendant’s propensity to carry a knife. He argues that admitting it into evidence 16 was therefore insufficiently supported and overly prejudicial. 17

{24} Assuming that the knife was erroneously admitted, we regard the error as 18 harmless. We see no reasonable probability that its admission affected the verdict. 19 State v. Barr , 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210 P.3d 198, overruled on other 2018 grounds by State v. Tollardo , 2012-NMSC-008, 275 P.3d 110. The jury could have 1 easily inferred that a sharp object capable of inflicting deep and long wounds was 2 wielded by Defendant during the fight base d on the testimony that a sharp object was 3 in his hand and the nature of th e victims’ injuries. It is the jury’s job to reconcile the 4 evidence of a knife at the scene with De fendant’s denial of possessing or using one 5 at the time. Gonzales v. Gen. Motors Corp. , 1976-NMCA-065, ¶ 10, 89 N.M. 474, 6 553 P.2d 1281 (“[W]here the evidence is inconsistent or contradictory, it is the 7 function of the jury to resolve the conflict a nd not the function of this Court to resolve 8 the conflict as a matter of law.”). The jury could have reached their conclusion 9 irrespective of the admission of the knife. 10

{25} Defendant alleges that the knife’s admi ssion was made more prejudicial due to 11 use of a jury instruction that stated a ggravated battery was committed against Apodaca 12 and Arellin using a “knife.” The argument is not that the instruction itself was 13 improper, but that it emphasized the intr oduction of evidence that should have been 14 excluded. 15

{26} Although Defendant alleged that the district court had committed to an 16 instruction reading “knife or other sharp object[,]” we note that the instructions were 17 unresolved at the time he discusses. Defendant calls attention to the instruction only 18 to bolster his challenge to the admission of the knife taken from him. We note the 19 testimony that Defendant posse ssed a bladed object at the time of the fight. Although 2019 the instruction is troubling, given the amount of evidence that supported the verdict 1 and thus renders admission of the knife harmless error, we cannot agree with 2 Defendant. 3 II. The State Did Not Overreach in its Rebuttal Argument 4

{27} Defendant finally argues that the distri ct court erred by re jecting his objection 5 to the State’s rebuttal argument, which he cl aims was merely a restatement of its first 6 closing. The State counters that the rebuttal argument was within the wide latitude 7 permitted in closings. Because Defendant objected, we review under an abuse of 8 discretion standard. State v. Sosa , 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 9 348 (“Where error is preserved at trial, anappellate court will review under an abuse 10 of discretion standard.”). 11

{28} The governing rule provides that “the state may make the opening argument[,] 12 . . . the defense may make its argument[, and] the state may make rebuttal argument 13 only.” Rule 5-607(M)-(O) NMR A. “The trial court has wi de discretion in controlling 14 counsel’s argument to the jury, and when there is no abuse of discretion or prejudice 15 to a defendant, there is no error.” State v. Sanchez , 1995-NMSC-053, ¶ 19, 120 N.M. 16 247, 901 P.2d 178. The rule “provides that th e [s]tate opens the closing argument, the 17 defense then argues[,] a nd the ‘state may make rebuttal argument only.’” State v. 18 King , 1977-NMCA-042, ¶ 27, 90 N.M. 377, 563 P.2d 1170, overruled on other 19 grounds by State v. Reynolds , 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. In King , 2020 the defendant claimed that “the [s]tate assert ed its theory of the case for the first time 1 during its rebuttal argument and that [the ] defendant was prejudiced because unable 2 to respond to the new theory.” 1977-NMCA-042, ¶ 27. The court in that case held 3 that the argument was “frivolous.” Id. “The rebuttal argumen t, even when taken out 4 of context as [the] defendant [did], [was ] fairly within the evidence and consistent 5 with the [s]tate’s theory of first[-]de gree murder presented throughout the trial, 6 including its opening argument.” Id. 7

{29} In the case at hand, early in its rebutta l, the State mentioned Defendant having 8 a conversation with one of the victims earlier in the evening inside the bar. Defendant 9 objected, claiming that talking about events inside the bar was outside the scope of 10 rebuttal. The district court concluded that counsel for the State may reply to 11 Defendant’s argument “in a way that he feels is best suited for him and the case.” 12 Defendant brought the matter up again after the jury began deliberating, moving for 13 a mistrial based on the argumen t that the State got two chan ces to do a closing, rather 14 than limiting itself to a closing and a rebuttal. The district court denied the motion, 15 finding that the rebuttal responded to matters raised by the defense. The defense, in 16 closing, discussed events inside the bar, such as how much the various participants 17 drank. Defendant specifically mentione d Arellin inside the bar. Because the rebuttal 18 argument was consistent with the State’s th eory of the case, we conclude that the 19 district court did not err in permitting th e State to proceed with its rebuttal. 202122 III. CONCLUSION 1

{30} Defendant’s assertions of error, re garding his request for a self-defense 2 instruction, his choice to te stify, various discovery matte rs, admittance of the knife he 3 had when arrested, and the State’s rebuttal, all fail. We affirm the district court. 4

{31} IT IS SO ORDERED. 5

____________________________________ 6 RODERICK T. KENNEDY, Chief Judge 7

WE CONCUR: 8

___________________________ 9 TIMOTHY L. GARCIA, Judge 10

___________________________ 11 J. MILES HANISEE, Judge 12