This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d by the Court of Appeals and does not include the filing date. CORRECTION PAGE: Cover pg, ln 13, changed “Elason” to “El eanor”; SCMO Filed 2/14/12; St v. Lyster, No. 31,493, FYWS IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 31,493 4 LARRY LYSTER, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appllee 11 Jacqueline L. Cooper, Chief Public Defender 12 Eleanor Brogan, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 FRY, Judge. 17 Defendant appeals his convictions for aggravated battery (felony, great bodily 18 harm) and battery (petty misdemeanor). [RP Vol.II/483, 499] The notice proposed 192 to affirm and Defendant filed a timely memorandum in opposition and motion to 1 amend the docketing statement. We deny Defendant’s motion to amend his docketing 2 statement. We further remain unpersuade d by Defendant’s arguments, and therefore 3 affirm. 4 Defendant seeks to amend his docketing st atement to argue that he was denied 5 effective assistance of counsel. [MIO 1, 12-14] Defendant ar gues his trial counsel 6 was ineffective because: counsel spent only an hour meeting with him before the first 7 trial and did not communicate with him before the second trial; counsel did not 8 prepare for trial and failed to conduct any pre-witness interviews; counsel did not 9 request the surveillance videotape showing th e altercation; counsel refused to find any 10 of the other witnesses that saw the altercation; and counsel failed to call a defense 11 expert witness at trial. [M IO 13] These asserted defici encies, however, either are not 12 of record or otherwise involve trial strategy. See State v. Stenz, 109 N.M. 536, 538, 13 787 P.2d 455, 457 (Ct. App. 1990) (holding that trial counselis not ineffective for 14 failure to make a motion that is not supported by the record); Lytle v. Jordan , 15 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (“On appeal, we will not second 16 guess the trial strategy and t actics of the defense counsel.” (internal quotation marks 17 and citation omitted)). Defendant also argues that his trial counsel was ineffective 18 because counsel did not file a motion for a new trial based on juror misconduct. [MIO 193 13] As discussed below, however, there was no juror misconduct upon which to 1 impeach the verdict. See Stenz, 109 N.M. at 538, 787 P.2d at 457 (holding that trial 2 counsel is not ineffective fo r failure to make a motion that is not supported by the 3 record). Defendant has faile d to meet his burden to showthat counsel’s performance 4 fell below that of a reasonably competent attorney. See State v. Hester , 1999-NMSC5 020, ¶ 9, 127 N.M. 218, 979 P.2d 729. For this reason, wedeny Defendant’s motion 6 to amend his docketing statement. See State v. Moore , 109 N.M. 119, 128-29, 782 7 P.2d 91, 100-01 (Ct. App. 1989) (providing that issues sought to be presented must 8 be viable), overruled on other grounds by State v. Salgado , 112 N.M. 537, 817 P.2d 9 730 (Ct. App. 1991). 10 In issue (1), Defendant cites State v. Franklin , 78 N.M. 127, 428 P.2d 982 11 (1967) and State v. Boyer , 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) [MIO 6-7], and 12 continues to argue that the district court erred in denyi ng his motion to dismiss “for 13 violating the court’s own six-month deadlin e to retry the case” as set forth in its 14 mistrial order. [MIO 5; DS 4; RP Vol.II/286] As discussed in our notice, in the 15 interim between the district court’s mistri al order and Defendant’s motion to dismiss, 16 our Supreme Court issued State v. Savedra , 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 17 P.3d 20, which eliminated portions of Rule 5-604 NMRA (“the six-month rule”) 18 effective for all cases pending in district court as of the date Savedra was filed. See 194 State v. Martinez , 2011-NMSC-010, ¶ 10, 149 N.M. 370, 249 P.3d 82 (clarifying that 1 “the six-month rule should be withdr awn across the board for all prosecutions 2 originating in district court, no matter at what stage of the criminal process—trial or 3 appellate—they may have been as of May 12, 2010”). Because the six-month time 4 frame in the mistrial order was premised on Rule 5-604 prior to Savedra , we hold that 5 the district court was not bound by its initial “six-month rule” date as provided in its 6 mistrial order. 7 In issue (2), Defendant continues to argue that the jury improperly based its 8 verdict on sympathy for one of the Victims. [DS 5; MIO 7] Defendant asserts that 9 a juror told defense counsel after the verdic t that he used sympathy to determine that 10 Defendant was guilty. [MIO 8] This matter, however, is not of record. See State v. 11 Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (recognizing that matters 12 outside of the record cannot be reviewed on appeal). Moreover, the juror’s alleged 13 statement is nonetheless not an adequate basis upon which to impeach the verdict. See 14 Rule 11-606(B) NMRA (prohibiting a juro r from testifying “as to any matter or 15 statement occurring during the course of the jury's deliberations or to the effect of 16 anything upon that or any other juror's mind or emotions . . . or concerning the juror's 17 mental processes in connection therewith, [theverdict]”). We further presume that the 18 jury followed the law as provided in the juryinstructions that “[n]either sympathy nor 195 prejudice should influence your verdict.” [RP Vol.II/345] See State v. Gonzales , 113 1 N.M. 221, 230, 824 P.2d 1023, 1032 (1992) (“The jury is presumed to follow the 2 court’s instructions.”). We acco rdingly affirm this issue. 3 In issue (3), Defendant c ontinues to argue that the evidence was insufficient 4 to support his convictions. [DS 4; MI O 8-12] We addre ss first Defendant’s 5 conviction for aggravated battery (great bodily harm). See NMSA 1978, § 30-3-5(C) 6 (1969). The facts provide that Defendant sw ung at Victim and struck him in the jaw, 7 causing Victim to fall and hit his head direc tly on the asphalt. [DS 2] On the way to 8 the hospital, Victim went into seizures, wa s airlifted to a head trauma unit in Texas, 9 stayed at the head trauma unit for several weeks, and was eventually released with 10 brain injuries. [DS 2-3] We hold that the jury could have reasonably relied on the 11 foregoing evidence to convict Defendant for aggravated battery (great bodily harm). 12 See State v. Sparks , 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985) 13 (defining substantial evidence as that evidence which a reasonable person would 14 consider adequate to support a defe ndant’s conviction). Although Defendant 15 maintains that he acted in self-defense [DS 4; MIO 10], it was the jury’s prerogative, 16 as fact-finder, to weigh the evidence and re ject Defendant’s version of the events. See 17 generally State v. Nichols , 2006-NMCA-017, ¶ 10, 139 N.M. 72, 128 P.3d 500 18 (recognizing that the jury, as trier of fact , is entitled to weigh conflicting evidence). 196 We next address Defendant ’s conviction for battery (petty misdemeanor). See 1 NMSA 1978, § 30-3-4 (1963). The facts provide that Victim was employed at the 2 rehabilitation center [DS 2] and that an altercation ensued between Defendant and 3 others, which included Victim. [DS 2] Defendant shouted at Victim [RP Vol.I/171] 4 and struck Victim during the time Victim was attempting to assist Alyssa Pieper. [RP 5 Vol.I/172-73] Victim testified that she had a knot on her hand that was not there 6 before the altercation. [MIO 7] We hol d that a jury could reasonably rely on these 7 facts to convict Defendant. See Sparks , 102 N.M. at 320, 694 P.2d at 1385 (defining 8 substantial evidence as that evidence which a reasonable person would consider 9 adequate to support a defendant’s conviction). While De fendant contests that he 10 caused the knot on Victim’s hand, we hold th at the jury could rely on the foregoing 11 facts to conclude that he did. See, e.g. , State v. Cunningham , 2000-NMSC-009, ¶ 26, 12 128 N.M. 711, 998 P.2d 176 (providing that we “view the evidence in the light most 13 favorable to the guilty verdict, indulging all reasonable 147 inferences and resolving all conflicts inthe evidence in favor of the verdict”). 1 Based on our notice and the foregoing discussion, we affirm. 2 IT IS SO ORDERED. 3

4 CYNTHIA A. FRY, Judge 5 WE CONCUR: 6

7 JAMES J. WECHSLER, Judge 8

9 JONATHAN B. SUTIN, Judge 10