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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,977 9 TONY GONZALES , 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 12 Charles C. Currier, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Acti ng Chief Public Defender 17 B. Douglas Wood III, Assistant Public Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 22 Defendant appeals from the district court amended judgment and sentence, 23 which adjudicates him guilty of conspiracy to bring contraband into jail, not guilty of 242 criminal solicitation to bring contraband into jail and possession of heroin, and finding 1 him to be habitual offender with two prior felony convictions, imposes a sentence 2 totaling five and a half years impris onment followed by one year of parole. 3 Unpersuaded by Defendant’s attacks to his conviction and sentence, we issued a 4 notice of proposed summary disposition, propos ing to affirm. De fendant has filed a 5 memorandum in opposition to our notice. We have considered Defendant’s 6 arguments and remain unpersuaded that Defendant has established error. Therefore, 7 we affirm. 8 On appeal, Defendant argu es that (1) insufficient evidence was presented to 9 support his conspiracy conviction, (2) he was denied a fair and publictrial, and (3) his 10 sentence was improperly enhanced. 11 Sufficiency of the Evidence 12 In response to our notice, Defendant argues that insufficient evidence of a 13 conspiracy was presented because the alleged co-conspirator, Mr. Ramirez, did not 14 intend that the same goal be accomplishe d—smuggling contraband into jail. [MIO 15 4-8] Rather, Defendant c ontends that Mr. Ramirez actedunder duress, out of a fear 16 of Defendant, and intended only to avoid a threat of harm from Defendant, an inmate. 17 [Id.] Defendant’s argument asks us to assu me the role of the fact finder and make a 18 credibility determination and re-weigh the evidence. See State v. Salas , 1999-NMCA- 193 099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact finder to 1 resolve any conflict in the testimony of th e witnesses and to determine where the 2 weight and credibility lay). The jury is fre e to reject the theorythat Mr. Ramirez, a 3 prison guard, was so overwhelmed by his fear of an inmate that he did not form any 4 intent to smuggle contraband into jail. See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 5 N.M. 438, 971 P.2d 829 (stating that the jury is free to reject a witness’s version of 6 events). 7 We are not persuaded by De fendant’s reference to State v. Davis , 92 N.M. 341, 8 587 P.2d 1352 (Ct. App. 1978). In Davis , we held that there was insufficient evidence 9 to support the conspiracy because the goal of the conspiracy was not possible because 10 the public official from who the alleged co-conspirators woul d have attempted to 11 solicit a bribe had already indicated his w illingness to accept a loan before the alleged 12 conspiracy had occurred. See id. at 345-46, 587 P.2d at 1356-57. In contrast, in the 13 current case, it was not impossible for Defendant and Mr. Ramirez to have agreed to 14 smuggle contraband into jail although Mr. Ramirez may have harbored some fears 15 about refusing to do so. 16 For the reasons in our notice and in this opinion, we hold that sufficient 17 evidence was presented to support Defendant’s conviction. 18 Right to a Fair and Public Trial 194 Defendant argues that he was denied the ri ght to a fair and public trial when his 1 brother was removed from the courtroom during jury selection and one juror 2 expressed fear about Defendant’s family. [MIO 2-3, 9-11] That juror was replaced 3 at Defendant’s request. [MIO 2-3] Defendant argues that it is likely that other jurors 4 may have shared the same fears as the replaced juror and, therefore, declaring a 5 mistrial was the only way to cure the disruption. [MIO 10] 6 Our notice explained why any prejudice that his brother’s removal may have 7 caused Defendant is purely sp eculative and is not therefore sufficient to warrant a 8 mistrial. See State v. Apodaca , 105 N.M. 650, 654-55, 735 P.2d 1156, 1160-61 (Ct. 9 App. 1987) (rejecting the defendant’s clai m of prejudice as sp eculative where the 10 district court excluded everyone from the c ourtroom except the victim’s family and 11 the defendant argued that it showed that th e court believed the vi ctim and favored the 12 prosecution), overruled on other groundsby State v. Garcia , 110 N.M. 419, 422, 796 13 P.2d 1115, 1118 (Ct. App. 1990). Defendant’s response to our notice does not make 14 any more specific showing of prejudice. 15 Also, our notice emphasized the district court has the inherent power and duty 16 to control the c onduct of the proceedings before it and that it may in its discretion 17 remove a disruptive member of the public. See Rule 21-300(B)(3) NMRA; State v. 18 Ngo , 2001-NMCA-041, ¶ 25, 130 N.M. 515, 27 P.3d 1002; State v. Stout , 100 N.M. 195 472, 475, 672 P.2d 645, 648 (1983). We also obs erved that while there is a right to 1 a public trial, Defendant re ferred us to no authority indicating that such a right 2 includes the right to demand that the defe ndant’s choice of specific members of the 3 public attend trial, particularly where th eir conduct in the courtroom was found to be 4 disruptive. See Apodaca , 105 N.M. at 654, 735 P.2d at 1160 (stating that “[w]hether 5 the general public may be excluded from a trial is a matter resting within the 6 discretion of the trial court”). Defendant has not responded to our observations. 7 Lastly, we note that Defendant has not explained what his brother did to get 8 removed from the courtroom or what specifi c concerns were expressed by the juror 9 who was replaced. See Rule 12-208(D)(3) NMRA (requiring that the docketing 10 statement provide a summary of all the facts relevant to the issues raised on appeal). 11 Also, Defendant does not state what arguments were made by the State in opposition 12 to the motion, or the grounds for the districtcourt ruling. These omissions alone are 13 sufficient for affirmance. See Thornton v. Gamble , 101 N.M. 764, 769, 688 P.2d 14 1268, 1273 (Ct. App. 1984) (reminding the appellant to set forth all relevant facts in 15 the docketing statement, including the facts supporting the district court’s ruling, and 16 warning that because of our standard of review the failure to do so could result in 17 affirmance or other sanctions); see also State v. Chamberlain , 109 N.M. 173, 176, 783 18 P.2d 483, 486 (Ct. App. 1989) (refusing to grant relief wh ere the defendant failed to 196 provide us with a summary of all the facts material to our consideration of the issue 1 raised in the docketing statement). 2 For the reasons stated in our notice and in this opinion, we hold that Defendant 3 has not established that the district c ourt abused its discretion by denying Defendant 4 a mistrial. 5 Sentence Enhancement 6 Lastly, Defendant argues that the distri ct court denied him due process and an 7 expectation of finality in sentence by enhancing his sentence based on prior felony 8 convictions that the State did not timely pur sue. [MIO 12-13] Defendant pursues this 9 issue under the demands of State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 10 (1967); and State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). 11 [MIO 12] Defendant argues that the enhancement was not timely because the original 12 sentence had been entered and he had begun serving it. [MIO 13] 13 Our case law holds that a defendant’s sentence may be enhanced for habitual 14 offender purposes until the defendant has completed hi s sentence, probation, and 15 parole. [DS 10] See State v. Villalobos , 1998-NMSC-036, ¶¶ 4-14, 126 N.M. 255, 16 968 P.2d 766; State v. Roybal , 120 N.M. 507, 510-11, 903 P. 2d 249, 252-53 (Ct. App. 17 1995); see also NMSA 1978, § 31-18-19 (1977) (“If at any time, either after sentence 18 or conviction, it appears that a person convicted of a noncapital felony is or may be 197 a habitual offender, it is the duty of the district attorney of the district in which the 1 present conviction was obtained to file aninformation charging that person as a 2 habitual offender.”). 3 To the extent that Defendant asks us to modify the case law, we cannot and 4 would not modify our case law under these circumstances. “It is well-established that 5 this Court is without authority to revers e or revise court rules that have been 6 previously interpreted by our Supreme Court.” State v. Cordova , 1999-NMCA-144, 7 ¶ 30, 128 N.M. 390, 993 P.2d 104. 8 For the reasons set forth aboveand in our notice, we affirm the district court’s 9 judgment and sentence. 10 IT IS SO ORDERED. 11

_______________________________ 12 MICHAEL E. VIGIL, Judge 13 WE CONCUR: 14

_________________________________ 15 JAMES J. WECHSLER, Judge 16

_________________________________ 17 MICHAEL D. BUSTAMANTE, Judge 18