This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8 v. No. 30,338 9 BERNADETTE SANCHEZ, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 12 Matthew J. Sandoval, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Karl Erich Martell, Assi stant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 SUTIN, Judge. 22 At the close of trial in this case, Defe ndant moved for a new trial. The motion 23 was denied and Defendant appeals. We issued a calendar notice proposing to affirm 242 the district court’s denial of the motion fo r a new trial. We have received a response 1 to our calendar notice from Defendant. After due consideration of Defendant’s 2 arguments in opposition to our proposed dispos ition, we affirm the district court’s 3 decision. 4 Defendant continues to claim that she di d not receive a fair trial due to the 5 State’s failure to disclose prior to trial a photograph of Defendant that was used during 6 the State’s closing argument. [MIO 3] Defendant claims that she should have been 7 granted a new trial and that the district court should have instructed the jury to 8 disregard the photograph that was displayed by the State. In our calendar notice, we 9 discussed the details of the photograph, including the fact that the photograph 10 included no background information, only show ed a small sliver of the garment that 11 Defendant was wearing, and depicted Defendant with a broad smile on her face. 12 Unlike the situation in State v. Haynes , 2000-NMCA-060, 129 N.M. 304, 6 P.3d 1026, 13 the jury was not shown two photographs of Defendant’s front and profile, which 14 might have led to an inference by the jury that Defendanthad a criminal record. Id. 15 ¶ 13. In fact, the district court found thatthere was “very little” to indicate that the 16 photograph was a booking photograph and also found that showing the photograph 17 to the jury was not highly prejudicial. [RP 240] In our calendar notice, we 183 distinguished this case from those cases in which photographs, photographic arrays, 1 and references to mug shots were found to be improper. 2 As noted in our calendar notice, defense counsel was told that the State would 3 use the photograph during closing argument. Defense counsel was asked if he would 4 like to see the photograph, but he declinedsaying, “No so . . . long as the photo 5 doesn’t say guilty all over it.” [RP 236] Defense counsel did not look at the 6 photograph that was displayed during the State’s closing argument. [MIO 3] When 7 the photograph was brought to the district c ourt’s attention following the trial, the 8 court determined that enough of the photograph was cropped so that the jury would 9 not know it was a booking photograph. [DS 2] 10 The photograph used by the State during closing argument was not referred to 11 as a booking photograph and there is nothi ng in the photograph that would have 12 indicated to the jury that it was a booking photograph. As explained in Haynes , even 13 when evidence is erroneously admitted attrial, the admission of the evidence is 14 harmless and not prejudicial unless there is a reasonable possibility that the admitted 15 evidence may have contributed to the conviction. Id. ¶ 22. In this case, there was 16 nothing to indicate that the photograph was a booking photograph and the photograph 17 did not indicate that Defendant had, in th e past, committed a crime or other bad act. 18 There is no reasonable possibility that the photograph contributed to Defendant’s 194 conviction. As explained in our calendar notice, the district court did not abuse its 1 discretion in refusing to grant a new trial, and the district court did not err in failing 2 to instruct the jury to disregard the photograph. 3 For the reasons discussed in this opi nion and those discussed in our calendar 4 notice, we affirm the district court’s decision. 5 IT IS SO ORDERED. 6

__________________________________ 7 JONATHAN B. SUTIN, Judge 8 WE CONCUR: 9

_________________________________ 10 CELIA FOY CASTILLO, Judge 11

_________________________________ 12 TIMOTHY L. GARCIA, Judge 13