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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 31,425 4 ARTHUR TREY MCCLINTOCK III, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Thomas A. Rutledge, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 The Law Offices of the Public Defender 14 Jorge A. Alvarado, Chief Public Defender 15 Mary Barket, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 182 MEMORANDUM OPINION 1 HANISEE, Judge. 2 {1} Defendant Arthur Trey McClintock III appeals from his conviction of child 3 abuse resulting in death or great bodily harm. The victim is Defendant’s infant 4 daughter (baby). He contends the district c ourt erred in not allowing testimony of prior 5 instances of abuse by baby’s maternal gr andmother on her daughter, baby’s mother, 6 when she was younger. We perceive no error. Defendant al so contends that reversal 7 is required because one or more of the juro rs were asleep during the testimony of the 8 State’s expert. We do not consider this cl aim because it was not raised or preserved 9 in the district court, and there is no support for this contention in the record on appeal. 10 We thus affirm. 11 BACKGROUND 12 {2} Because both parties are familiar with the ev ents in dispute, we review just the 13 basic facts here before proceeding to our discussion. Defendant was charged with, 14 among other things, one count of child abus e resulting in great bodily harm related to 15 an incident that occurred on March 6, 2010. On that day, baby’s mother, Sharon 16 Lactaoen, went to work inthe morning and dropped baby off at her mother’s house 17 so that Defendant could sleep . Baby was about three months old at the time. Sharon’s 183 mother, Robin Lopez, picked baby up at one point, and baby screamed as though she 1 was hurt. Robin was concerned because sh e had never seen baby scream like that 2 before, but then baby fell asleep. At about 3:30 p.m. baby was returned to Sharon. 3 Sharon then left baby with Defendantwhile she went to clean a house. 4 {3} Defendant was alone with baby for about forty-five minutes when baby started 5 crying and became rigid and fe verish. Defendant tried to call Sharon, Robin, and his 6 sister, but the calls were not going through. He also tried to call 911, but his phone 7 was not working, so he ran outside to ge t a neighbor to call fo r help. Baby was rushed 8 to Carlsbad Medical Center (CMC), where emergency personnel evaluated her and 9 found that she had rapid decelerations of her heart beat. CMC personnel decided to 10 transfer baby to University Medical Center of Lubbock, Texas (UMC) for continued 11 treatment in their Pediatric Intensive Care Unit (PICU). Diagnostic testing revealed 12 that baby suffered from one fresh subdural hematoma and one or possibly two older 13 hematomas, as well as extensive retinal hemorrhaging. 14 {4} Personnel at UMC or CMC contacted the Carlsbad Police Department to report 15 their suspicions of abuse, and thereafter, Detective Kohler began an investigation that 16 included speaking to members of baby’s family. Detective Kohler spoke with 17 Defendant who indicated that he did not know what could have caused baby’s injuries 18 and said that he had only ch anged and fed her. After Detective Kohler told Defendant 194 that baby’s injuries could only have been caused by being severely shaken or slammed 1 against something, Defendant admitted that baby had slipped out of his hands when 2 he was holding her and that he had dropped child into her crib and must have done it 3 too hard. 4 {5} Defendant then explained that the underside of his arms would get caught on 5 the side of the crib when he lowered baby into it, which frustrated him, so he 6 sometimes just dropped her in there. Defendant told Detective Kohler that he was 7 playing rocket ship with baby where he would pick her up and bring her down really 8 fast. Baby ultimately got fussy, so Defendant ch anged her, fed her, and tried to put her 9 in the crib. When baby fell out of her blanket, Defendant pickedher up and tossed her 10 into the crib. She started seizing ten minutes later. Defendant described his tossing 11 baby into the crib as an “unintentional sl amming” and admitted that his actions must 12 have caused her injuries, although he never intended to hurt her. 13 {6} A criminal complaint charged Defendant with one count of child abuse 14 resulting in great bodily harm for the Marc h 6, 2010 incident and two counts of child 15 abuse not resulting in great bodily harm fo r two prior hospitalizations involving baby. 16 On May 27, 2010, Defendant was bound over to the distri ct court and similarly 17 charged by criminal information. At trial, the district court directed a verdict of not 18 guilty on one of the child abus e charges. The jury then re turned a guilty verdict as to 195 count one, negligent child abuse resulting in great bodily harm, and acquitted him of 1 count two, negligent child abuse not resu lting in great bodily harm. Defendant was 2 sentenced to the mandatory eighteen-year statutory penalty. This appeal followed. 3 DISCUSSION 4 {7} Defendant raises two issues on appeal. First, Defendant argues that the district 5 court abused its discretion by excluding or limiting testimony re garding allegations 6 against baby’s maternal grandmother, Robi n Lopez. In addition, Defendant contends 7 that reversal is required because one or mo re jurors slept through the testimony of the 8 State’s expert. We begin with the eviden tiary issue and then turn to Defendant’s 9 argument regarding the sleeping juror or jurors. 10 The Evidentiary Issue 11 {8} Defendant first contends that the ex clusion of testimony that Robin had a 12 history of abusing children was error. Speci fically, he argues thatthe prior instances 13 of abuse by Robin were relevant and permissible under Rule 11-404(B) NMRA. 14 “Relevant evidence” means ev idence having “any tendency to make a fact more or 15 less probable than it would be without the evid ence, and . . . the fact is of consequence 16 in determining the action.” Rule 11-401 NM RA. Further, in New Mexico, a defendant 17 may introduce evidence of another person’s crimes, wrongs, or acts to prove identity 18 under a “reverse [11-]404(B)” theory. State v. Saavedra , 1985-NMSC-077, ¶ 5, 103 196 N.M. 282, 705 P.2d 1133, abrogated on other grounds by State v. Belanger , 2009- 1 NMSC-025, 146 N.M. 357, 210 P.3d 783. We review the district court’s decision to 2 admit or exclude evidence for abuse of discretion. State v. Martinez , 2008-NMSC3 060, ¶ 8, 145 N.M. 220, 195 P.3d 1232. A districtcourt abuses its discretion when it 4 exercises discretion based on a misunderstanding of the law. State v. Elinski , 1997- 5 NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State 6 v. Tollardo , 2012-NMSC-008, 275 P.3d 110. 7 {9} On appeal, Defendant argues that he shoul d have been able to question Sharon’s 8 mother and step-father, Robin and Robert Lopez about Robin’ s alleged history of 9 child abuse. We start our analysis by setting forth the testimony that Defendant 10 attempted to elicit at trial regarding prior instances of abuse by Robin and the 11 subsequent rulings by the district court. We then explain why the evidence was 12 properly excluded. 13 {10} During cross-examination of Robert, defe nse counsel asked him if he had ever 14 seen Robin hit or mistreat any of her children. The State objected and argued that such 15 allegations were not relevant because they related to ol der children and not babies, 16 that such evidence was more prejudicial than probative, and that there was no 17 foundation to admit this prior bad act under Rule 11-404(B). Although nearly 18 inaudible, defense counsel responded that the information was reliable because Robin 197 had an extensive history with the State, that it was relevant because a jury could infer 1 that a person who was willing to hit children was willing to abuse baby, and that this 2 evidence was not really harmful to Robin since she was not the one facing criminal 3 charges. He did not proffer any particul ar evidence concerning the alleged abuse or 4 “extensive history” with the State, nor did he offer to lay a proper foundation with 5 Robert. The district court sustained the objec tion in part. It agreedwith the State that 6 getting angry with a baby and getting angry with a teenager are two “radically 7 different” behaviors and, for that reason, limited Robert’s testimony to times when 8 Robin became frustrated while caring for babi es. Defense counsel said that he could 9 limit his questions to incidents involving infants. 10 {11} Defense counsel then asked Robert if Robin ever got rough with her babies. 11 Robert testified that he never saw Robin yell or act rough with children when they 12 were babies, and he thought Robin was a good and loving moth er. He further testified 13 that babies cared for by Robin never had to go to the emergenc y room because they 14 were injured. 15 {12} Later, when questioning Robin, defense counsel asked if she had difficulties 16 with her children when they were babies , and she responded, “just with Sharon.” 17 Defense counsel then asked Robin about an incident w ith Sharon and a baby crib, but 18 the State objected, and the court held a benc h conference. The parties agree that the 198 bench conference is inaudible. Afterward, defense counsel did not pursue the line of 1 questioning regarding the baby crib with Robin any further. Nor did he attempt to 2 question Robin about any other alleged instances of child abuse. 3 {13} As a preliminary matter, we note that , with regard to Robert’s testimony, 4 defense counsel agreed to limit his questions to Robert to those times when Robin 5 became frustrated while caring for babies, and Robert subsequentlyanswered all the 6 questions posed to him without limitation or further objection from the State. To the 7 extent that Defendant sought to introduce evidence of other prior instances of child 8 abuse by Robin through Robert’s testimony, we cannot determine on appeal either the 9 content of the evidence or whether Robert even knew about these alleged instances 10 of abuse. Despite stati ng several grounds for the admission of the testimony, 11 Defendant failed to adequate ly describe it or lay a proper foundation for its admission. 12 See State v. Ellison , 1914-NMSC-076, ¶ 33, 19 N.M . 428, 144 P. 10 (excluding 13 evidence of a reputation for bad moral character to attack a witness’s credibility where 14 no proper foundation had been laid by the defendant). And because the appellate 15 record is unclear on the point, we cannothold that the district court abused its 16 discretion. 17 {14} Defendant also has not properly preserve d his claim of error for review with 18 respect to the State’s objection to Robin’ s testimony either generally as to prior 199 instances of child abuse, or specifically about what she told Sharon about the baby 1 crib. As we have noted, the parties agree that after the State objected to the question 2 concerning the crib, the taped transcript of the ensuing discus sion at the bench is 3 inaudible. Rule 12-211(H) NMRA states thatthe appellant shall provide a statement 4 of the evidence or pr oceedings where a taped transcri pt is inaudible, including from 5 the appellant’s recollection. No such statement was filed in this case and, therefore, 6 there is no adequate or discernible record for us to review. 7 {15} In addition to trial counsel’s failure to provide a statement of the proceedings 8 from the inaudible tape, ther e is nothing in the recordconcerning the details of 9 Robin’s alleged history of child abuse fo r us to consider. There are no documents 10 establishing that Robin had a history of child abuse. There is no indication whether 11 she was charged or convicted of child abuse, either criminally orcivilly, or whether 12 her children were removed from her care. There are no details of the type of abuse that 13 allegedly took place, the ages of the childor children when they were allegedly 14 abused, or the time frame involved. Withno record except for Defendant’s vague 15 allegation of “prior instances of abuse, including at least one involving a baby,” we 16 cannot conclude that the district court’s ru ling was an abuse of discretion. As a final 17 matter, assuming without deciding that Robi n would testify that she abused Sharon 18 as a baby and that the tes timony was relevant, the distri ct court nevertheless did not 1910 err in excluding evidence of the incident that had taken place about twenty years 1 earlier. Such testimony, if true, was too remote and speculative to aid the jury. See 2 Rule 11-403 NMRA (stating that relevant evidence may be excluded “if its probative 3 value is substantially outwe ighed by a danger of . . . unf air prejudice, confusing the 4 issues, [or] misleading the ju ry”). Accordingly, we deny De fendant relief on this claim 5 on direct appeal. And, for the reasons set forth above, we need not address the issue 6 of whether the exclusion of the evidence was harmless error. 7 Juror Misconduct 8 {16} Next, we address Defendant’s contention that reversal is required because a 9 juror or jurors were sleeping during testimony. Criminal defendants have a 10 constitutional right to a fair trial and an impartial jury, see Irvin v. Dowd , 366 U.S. 11 717, 721 (1961), that is competent and unimpaired, see Tanner v. United States , 483 12 U.S. 107, 126-27 (1987). A defendant could be deprived of a Fifth Amendment right 13 to due process or the Sixth Amendment right to an impartial jury if jurors fall asleep 14 and are unable to fairly cons ider the defendant’s case. See State v. Sena , 1987-NMSC15 038, ¶¶ 8-9, 105 N.M. 686, 736 P.2d 491 (no ting that juror misconduct includes 16 activity by jurors that is inconsistent withthe instructions by the court and rejecting 17 the defendant’s argument that the defendant ’s sister saw a juror sleeping during the 18 trial as vague and uncorroborated). 1911 {17} In this case, Defendant concedes that there was no mention during or 1 immediately after the trial of a juror or jurors sleeping and that no evidence of 2 sleeping jurors was submitted to or reviewed by the district court. In fact, the only 3 mention of jurors sleeping is in Defendant’s post-conviction motion for an appeal 4 bond and in his docketing statement. The moti on for appeal bond is limited to defense 5 counsel’s statement of “reports of juro rs sleeping during critical testimony,” and it 6 offers no other information or evidence. The docketing statement contends that, while 7 the medical expert was testifying, “an audience member noted jurors/alternate jurors 8 sleeping” and that “[t]rial counsel was not notified of this until approximately two 9 days after trial was completed.” Again, there is no record to support this assertion. 10 For example, the motion and docketing statement fail to identify the person who had 11 purportedly observed the juror or jurors sleeping. Nor did the motion or docketing 12 statement specify what observations had caused the unidentified person to conclude 13 that the juror or jurors were actually asleep. Moreover, the motion and docketing 14 statement did not specify the time period this had allegedly occurred, and neither 15 document included an explanation as to why the unidentified person did not 16 contemporaneously inform the district court of the problem. Defe ndant failed to assert 17 this claim in the district court and, withno record, is precluded from doing so in this 18 appeal. 1912 {18} To the extent Defendant relies on fundame ntal error for his argument, we are 1 not persuaded. “The rule of fundamental error applies only if there has been a 2 miscarriage of justice, if the question of guilt is so doubtful that it would shock the 3 conscience to permit the conviction to stand, or if substantial justice has not been 4 done.” State v. Sutphin , 2007-NMSC-045, ¶ 16, 142 N.M . 191, 164 P.3d 72 (internal 5 quotation marks and citation omitted). Suchis not the case here where Defendant 6 concedes that no evidence was submitted to or reviewed by the district court. 7 Moreover, even if we consider Defendant ’s sleeping juror claim as presented on 8 appeal, the claim is no more than a ge neralized allegation. Without a record 9 establishing that any juror slept during De fendant’s trial, we conclude that his 10 assertion of juror misconduct as grounds for a new trial is without merit. We note, 11 however, that Defendant can pursue his claim of juror misconduct through a petition 12 for habeas corpus relief, pursuant to Rule 5-802 NMRA. 13 CONCLUSION 14 {19} For the reasons set forth above, De fendant’s conviction is affirmed. 15 {20} IT IS SO ORDERED. 16

_________________________________ 17 J. MILES HANISEE, Judge 1813 WE CONCUR: 1

_________________________________ 2 CYNTHIA A. FRY, Judge 3

_________________________________ 4 TIMOTHY L. GARCIA, Judge 5