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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,602 9 TOMMY VASQUEZ, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Gary L. Clingman, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Eleanor Brogan, Assistant Appellate Defender 18 Santa Fe, NM 19 Scott M. Davidson 20 Trace L. Rabern 21 Kevin P. Holmes, Practicing Law Student 22 Albuquerque, NM 23 for Appellant 242 MEMORANDUM OPINION 1 WECHSLER, Judge. 2 Defendant appeals his convic tion for third degree child abuse. [RP 83] In his 3 docketing statement he argued that the late disclosure of a witn ess denied him a fair 4 trial, that a directed verdict should have been granted, and thathis taped interview 5 with police was inadmi ssible. Our notice proposed to affirm. Defendant filed a 6 motion to amend the docketing statement and memorandum in opposition. We deny 7 the motion to amend, concluding that it does not raise a viable issue. State v. 8 Sommer , 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the 9 defendant’s motion to amend the docketing statement when the argument offered in 10 support was not viable). We have c onsidered the arguments in Defendant’s 11 memorandum, but are not persuaded by them. Accordingly, we affirm. 12 DISCUSSION 13 A. Directed Verdict 14 Defendant argues that a directed verdict should have been granted. [DS 9; MIO 15 7-12] “A motion for a directed verdict ch allenges the sufficienc y of the evidence.” 16 State v. Armijo , 1997-NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919. He also argues 17 that the evidence is insuffici ent to support his conviction. [MIO 8-9] When we review 183 the evidence to decide whether it is suffi cient, we “determine whether a rational 1 factfinder could have found that each element of the crime was established beyond a 2 reasonable doubt.” State v. Kent , 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. 3 We view the evidence in the light most favor able to the verdict, resolving all conflicts 4 and indulging all reasonable inferen ces in favor of the verdict. State v. Apodaca , 118 5 N.M. 762, 766, 887 P.2d 756, 760 (1994). 6 The elements of child abus e in this case are that De fendant caused Victim to be 7 cruelly punished and that Defendant acted intentionally and without justification. [RP 8 61] The evidence in the docketing statement contains evidence from which the jury 9 could infer that Defendant, while attemp ting to impose discipline, cruelly punished 10 Victim. We are not told Victim’s age, but he does not appear to be old enough to 11 attend school. [RP 12 (Victim wears a diaper .)] There is evidence of many bruises, 12 some of which appeared to have been in flicted by a belt. [RP 10-11] Photographs of 13 the injuries were available for the jury to see. [RP 76] The bruises were on Victim’s 14 head, face, lip, arms, feet, ankles, left le g, and lower back. These injuries were 15 widespread over Victim’s entire body, and a jury could reasonably decide that there 16 was no justification for inflicting them. De fendant admitted that he caused at least 17 some of the injuries [RP 10, 12-14] and there is evidence that Defendant was the 184 child’s caretaker when th e injuries were inflicted. [DS 6, RP 11, 13] 1 In his memorandum, Defendant makes arguments that he stands in loco parentis 2 to Victim and had a constitutional right todiscipline him. [MIO 7-12] Although it is 3 questionable whether Defendant, who is not Vi ctim’s father or stepfather, is legally 4 in loco parentis , we assume that he occupies that status. However, we do not agree 5 that the evidence is so clear that he wa s engaging in justifiable discipline that a 6 directed verdict was required or that th e evidence was insufficient to support his 7 conviction. 8 The line between justifiable discipline is for the jury to draw. The jury was not 9 required to accept Defendant’s version of ev ents, that Victim was being punished for 10 biting an infant child in the house or for attempting to leave the corner where he had 11 been ordered to stay by Defendant. [MIO 11, RP 13] Nor was the jury required to 12 accept Defendant’s defense that he did not inflict cruel punishment. As we have 13 mentioned, there was significant evidence of widespread bruising on a small boy’s 14 head, face, lip, arms, feet, ankles, left leg, and lower back, some of which appear to 15 have been inflicted by a belt. These injuries were significant enough that they 16 prompted Victim’s daytime babysitter to discuss them with a police officer. [RP 9] 17 Because these injuries were, by Defendant ’s own admission, more significant than 185 those in State v. Lefevre , 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980, [MIO 12] 1 we are not persuaded by Defendant’s argument [MIO 9-12] that Lefevrerequires us 2 to hold that the evidence is insufficient. The child in Lefevrehad only a single “dime3 sized bruise” on her hand. Id. ¶ 21. That is very different from the evidence in this 4

case. 5 It was for the jury to weigh and determine whether Defendant inflicted the 6 injuries, whether they were part of justifiable discipline, or whether they crossed the 7 line into cruel punishment. We cannot say the evidence was so cl ear that a directed 8 verdict was required or that the evidence is insufficient. Defendant was not entitled 9 to a directed verdict, and a rational ju ry could have found guilt beyond a reasonable 10 doubt. 11 B. Motion to Amend 12 Defendant has moved to amend the doc keting statement contending that the 13 instructions did not sufficiently define wh at constitutes “cruelly punishing” a child. 14 [MIO 1, 13-16] We review jury instructions to determine whether a reasonable juror 15 would have been confused or misdirected by the jury instructions. State v. Parish , 16 118 N.M. 39, 42, 878 P.2d 988, 991 ( 1994). We consider jury instructions as a whole. 17 Id. at 41, 878 P.2d at 990. Since there was no objection to the instructions below, we 186 review for fundamental error. See State v. Munoz , 2006-NMSC-005, ¶ 12, 139 N.M. 1 106, 129 P.3d 142. “Fundamental error onl y applies in exceptional circumstances 2 when guilt is so doubtful that it would shock the judicial conscience to allow the 3 conviction to stand.” State v. Baca , 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 4 1066, overruled on other grounds by State v. Belanger , 2009-NMSC-025, ¶ 36, 146 5 N.M. 357, 210 P.3d 783. 6 Defendant likens his case to the situation in State v. Mascareñas , 2000-NMSC7 017, 129 N.M. 230, 4 P.3d 1221. There, our Supreme Court found fundamental error 8 where there was a “distinct possibility” that the defendant was convicted under the 9 wrong standard, civil negligence rath er than criminal negligence. Id. ¶ 21. In 10 Mascareñas, the failure to instruct on the mens rearequired was akin to a missing 11 elements instruction. Id. ¶ 20. The instruction error in Mascareñaswas so serious 12 that there was “no way to determine that the jury delivered its verdict on a legally 13 adequate basis.” Id. ¶ 21. 14 We disagree that this case is like Mascareñas . The jury was instructed that the 15 elements of the crime were that Defe ndant cruelly punished Victim and acted 16 intentionally and without lawful justificati on. [RP 61] An instru ction further defining 17 “cruelly punished” would be a definitional instruction. Failure to give a definitional 187 instruction is not the equivalent of failureto instruct on an essential element, and 1 therefore does not constitu te reversible error. See id. ¶ 19. Moreover, the phrase 2 “cruelly punished” is readily understandable and a jury is fully capable of determining 3 what it means; there was no n eed for further definition. See Munoz , 2006-NMSC-005, 4 ¶ 24 (stating that when the word or phrase is understandable and has a common 5 meaning, there is no need for further defin ition). The instructions also include the 6 phrase, “without lawful justification,” whic h fully allowed Defendant to argue, as he 7 did, that what he did was jus tified as parental discipline. [DS 7] Thus, the instructions 8 in this case draw the line between justif ied behavior and crue l punishment and were 9 sufficient to allow the jury to perform its constitutional task. Unlike the situation in 10 Macareñas , we see no realistic possibility that Defendant was convi cted based on any 11 confusion about the correct standard. See State v. Barber , 2004-NMSC-019, ¶¶ 25-26, 12 135 N.M. 621, 92 P.3d 633 (finding no reversible error when there was no showing 13 that the defendant was convicted based on a deficient understanding of the law). 14 Additionally, because this issue was notpreserved, we review for fundamental 15 error. As we have discussed, we see no error in the instructions. We also disagree 16 that it would shock the conscience to allow Defendant’s c onviction to stand. 17 Defendant suggests this is a close case involving a legitimate exercise of parental 188 discipline, but, as we havediscussed, there is ample evidence to support Defendant’s 1 guilt. Victim was a young boy who had signi ficant, documented injuries, and a jury 2 could easily conclude that such injuries on a young child wereexcessive no matter 3 what Victim had allegedly done. We fi nd no error, much less fundamental error. 4 For these reasons, we deny the motion to amend the docketing statement. See 5 Sommer , 118 N.M. at 60, 878 P.2d at 1009 (stating that a motion to amend is properly 6 denied if it does not raise a viable issue). 7 C. Late Disclosure of a Witness 8 Defendant argues that his c onviction should be reversed because of the State’s 9 late disclosure of its witne ss Dianna Proctor, Victim’s aunt and caretaker. [RP 9] It 10 made the disclosure on February 23, 2009, [RP 49] and the trial began on February 11 25. [RP 57] Defendant’s objec tion to allowing her to testif y was rejected. [DS 5] We 12 review the district court’s ruling on this issue for an abuse of discretion. See State v. 13 Duarte , 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027 (filed 2006). 14 When a witness is disclosed late, we consider whether the state breached some 15 duty or intentionally deprived the defendant of evidence, whether the non-disclosed 16 evidence was material, whether the defendant was prejudiced, and whether the trial 17 court cured the failure to timely disclose the evidence. See State v. McDaniel , 2004- 189 NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701. Failure to disclose a witness’s identity 1 before trial is not a reason for reversal unless the defendant can show prejudice. See 2 Duarte , 2007-NMCA-012, ¶ 15. 3 We are provided with no information about why the witness was not disclosed 4 earlier. Defendant’s memo randum in opposition provides us with some information, 5 obtained from trial counsel, that appears to contain the arguments counsel made 6 below, but it does not inform us of the ba sis for the court’s ruling. Because Ms. 7 Proctor was Victim’s caretaker, and becauseher pretrial statements appear to be 8 damaging to Defendant, [RP 11, 13] Defendant asserts thather testimony was 9 material. [MIO 19-20] 10 However, Defendant has the burden of showing how, if Ms. Proctor had been 11 disclosed earlier, his case would have beenimproved or how th e defense would have 12 prepared differently for trial. See Duarte , 2007-NMCA-012, ¶ 15. In his 13 memorandum, Defendant argues that he wa s prejudiced by Ms. Proctor’s non-verbal 14 conduct on the stand and by the fact that she ev en testified at all. [MIO 20] This may 15 demonstrate that her testimony was damaging, but that is not the appropriate test in 16 this context. The test is whether the late disclosure prejudiced him; i.e ., that the 17 outcome of the trial would have been different if the witness had been disclosed 1810 earlier, McDaniel , 2004-NMCA-022, ¶ 11, 13, not whether her appearance as a 1 witness prejudiced him. 2 Addressing prejudice, Defendant argued be low that because of her relationship 3 with Defendant she “potentially” may have had “inside information” regarding the 4 “tone and strategy” of the defense. [M IO 4] This claim is speculative. The 5 memorandum in opposition is careful to note that she was present before and after 6 Defendant’s meetings with defense counsel , not that she attended those meetings. 7 [MIO 4] Also, Defendant ha s not explained what that “inside” information would be 8 or how it would have adversely affected his ability to cross-examin e her. The abstract 9 claim of “inside” information, without more , does not persuade us that reversal is 10 warranted. 11 Defendant also argues that he needed to be able to cross-examine her about the 12 fact that she conceivably could have been charged with child abuse. [MIO 20] If this 13 claim is that she had receive d favorable treatment, or had an interest in placing blame 14 on Defendant to protect herself, then we observe that these ar guments form a common 15 and straightforward avenue of cross-examination. Defense counsel had a day to 16 prepare that avenue, and we are not persuaded that Defendant did not have sufficient 17 time to prepare such standard cross-examination. 1811 Turning to the last factor, our notice observed that the docketing statement did 1 not contain a discussion of what, if anything, the court did to ameliorate any prejudice. 2 [CN 3] We expressed our interest in knowing, for example, whether Defendant was 3 given an opportunity to interview Ms. Proct or. [CN 3] According to Defendant, Ms. 4 Proctor and Defendant lived together and had two children together. [MIO 20] That 5 being true, Ms. Proctor would seem to havebeen available for an interview the day 6 before the trial. 7 The memorandum in opposition addresses our concern, stating that “[t]he trial 8 court failed to provide any reasonable reme dy . . . because it did not [prescribe] any 9 remedy whatsoever.” [MIO 21] However, we are nottold whether Defendant 10 requested any remedy other than exclusi on. If Defendant di d not request the 11 opportunity to interview her, then we fail to see why the court should be faulted for 12 failing to prescribe “any remedy whatsoever .” And, as we have noted, Ms. Proctor 13 may well have been easily available to interview, without any order by the court. 14 Consequently, Defendant has not demonstrated that he was denied the opportunity to 15 talk with Ms. Proctor before the trial began. 16 More significantly, Defendant has not explained why one day would not be 17 sufficient for him to prepare his cross-examination. Ms. Proctor had given pretrial 1812 statements to the police thatwould have been availabl e to Defendant, so it does not 1 seem that Defendant would have been surprised by the gistof her testimony. If her 2 trial testimony was going to be different from her pretrial statements, an interview by 3 Defendant would have provided that in formation. Accordingly, we hold that 4 Defendant had sufficient time to interview Ms. Proctor and would have been generally 5 aware of her version of ev ents, and, therefore, he was not prejudiced by the late 6 disclosure. See State v. Dominguez , 2007-NMSC-060, ¶¶ 23-28, 142 N.M. 811, 171 7 P.3d 750 (noting that when a witness has not been disclosed in a timely fashion before 8 trial, the opportunity to interview the witne ss is considered in the prejudice analysis). 9 We hold that Defendant has not shown that , if she had been disclosed earlier, the 10 outcome of the trial woul d have been different. See McDaniel , 2004-NMCA-022, ¶ 11 13. 12 D. Evidence 13 Defendant argues that an audiotape of his interview with police should not have 14 been played for the jury. [DS 6] Defendant specifically argues that doing so violated 15 Rule 11-403 NMRA because the evidence was more prejudicial than probative. He 16 also suggests that it was cumulative. [DS 9] 17 We review the admission of evidence for an abuse of discretion. See State v. 1813 Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. We find no abuse of 1 discretion. The statement Defendant made to the police could be extremely probative. 2 We are not told how these statements were prejudicial. Even if Defendant’s 3 statements were damaging, that fact doe s not establish that they were unfairly 4 prejudicial. “The fact th at competent eviden ce may tend to prejudice a defendant is 5 not grounds for exclusion of that evidence. . . . The question is whether the probative 6 value of the evidence was outweighe d by its prejudicial effect.” State v. Hogervorst , 7 90 N.M. 580, 588, 566 P.2d 828, 836 (Ct. App. 1977). An exact rendition of 8 Defendant’s own statement would be highly probative. 9 We also reject Defendant’s argument th at the taped statement should have been 10 excluded as cumulative. Defendant’s own words are more valuable and accurate than 11 a second-hand rendition provided by the testimony of the police officer who 12 interviewed him. Accordingly, we disagree that the audiotape of Defendant’s exact 13 statement was cumulative. For these reasons, we hold that Defendant has not 14 demonstrated any abuse of discretion in admitting it. 15 Defendant’s conviction is affirmed. 16 IT IS SO ORDERED. 1714 ________________ ________________ 1 JAMES J. WECHSLER, Judge 2 WE CONCUR: 3

__________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5

__________________________________ 6 LINDA M. VANZI, Judge 7