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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 31,219 4 GEORGE JAURE, 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 Ann M. Harvey, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Mary Barket, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant George Jaure appeals the jury’s verdict finding him guilty of 1 aggravated battery (deadly weapon). We affirm. 2

BACKGROUND 3 {2} Because the parties are familiar with the ev ents in dispute, we review just the 4 basic facts before proceeding to our discussion. Defendant was charged with 5 aggravated battery (deadly weapon) and aggravated assault (deadly weapon) relating 6 to an altercation that occurred on August 16, 2009. In the early morning hours of that 7 day, Defendant, his brother Patrick Jaure, and a woman named Nina were at the home 8 of Janelle Villareal. Marissa Lopez, who lived acro ss the street with her brother, 9 Hector Lopez (Lopez), and her mother, Elizab eth Lopez, was also there. While the 10 group was sitting outside on Villareal’s front steps, Lopez and his friends, Jose Rocha 11 and Oliver Santana, pulled into the driveway of the Lopez home. 12 {3} As Santana was pulling his truck out of the driveway, Defendant approached 13 the vehicle and asked if they had any ciga rettes. Lopez, Roch a, and Santana said, 14 “no,” that they did not smoke . Words were exchanged. Defendant then reached into 15 the truck and punched Lopez. As Defendant was pulling his arm away, Lopez saw a 16 knife in Defendant’s hand. Lopez noticedthat his lip was split and bleeding. 173 {4} Elizabeth Lopez heard the commotion and came out of her house. She saw 1 Defendant holding a beer in one hand while waving a knife with the other. She said 2 she was calling the police. Defendant and his brother then returned to Villareal’s 3 house where they stayed until the police arrived. 4 {5} Carlsbad Police Officer Jeremy Bolduc responded to the scene and questioned 5 Lopez, Santana, Rocha, and a younger female. Lopez, Santana, and Rocha then left 6 for the hospital where Santan a and Rocha each prepared sworn written statements on 7 a Carlsbad police form. At trial, both Sant ana and Rocha testified that they did not 8 remember the events of August 16, 2009. Further, they both stated that, for the most 9 part, they did not remember the inform ation contained in their voluntary written 10 statements or the substance of the testim ony they gave at the preliminary hearing. 11 {6} At the close of the State’s case, the defe nse moved for a directed verdict, which 12 the district court denied. The defense rested and did not call any witnesses. Following 13 deliberations, the jury returned a verdict of guilty of aggravated battery with a deadly 14 weapon. Defendant was senten ced to a term of three year s for the aggravated battery, 15 and his sentence was enhanced by four years pursuant to the habitual offender statute, 16 NMSA 1978, § 31-18-17(B) (2003). This appeal followed. 17 DISCUSSION 18 {7} Defendant raises a myriad of issues and essentially makes eight arguments on 19 appeal. The first five can be summarized as matters involving the testimony of Oliver 204 Santana and Jose Rocha. Defendant argues that: (1) the district court abused its 1 discretion by allowing the prosecutor to ask Santana and Rocha argumentative and 2 leading questions; (2) the district court committed plain error by allowing improper 3 questioning of Santana and Rocha; (3) the district court abused its discretion by 4 allowing Officer Bolduc to testify about statements made by Santana and Rocha 5 identifying Defendant as involved in the incident; (4) the district court committed 6 plain error when it admonished Rocha and determined that he would be treated as a 7 hostile witness; and (5) the combined effectof the improper rulings in 1-4, above, 8 deprived Defendant of a fair trial and of hi s right to confront his accusers. In addition, 9 Defendant contends that his confrontation rights were violated, there was insufficient 10 evidence to sustain his conviction, and th e district court abused its discretion in 11 refusing to grant him a mistrial. We begin with the evidentiary issues and then turn 12 to Defendant’s remaining arguments. 13 The Evidentiary Issues 14 {8} As we have noted, Defendant raises several issues concerning the State’s 15 questioning of Santana and Rocha, the district court’s questioning and 16 “admonishment” of Rocha, and Officer Bol duc’s testimony regarding statements made 17 by Santana and Rocha identifying Defendant as being involved in the incident. To the 18 extent that the district court overruled defense counsel’s timely objections to the 19 State’s questions, we review those eviden tiary rulings under an abuse of discretion 205 standard. See State v. Armendariz , 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 1 526, overruled on other groundsby State v. Swick , 2012-NMSC-018, 279 P.3d 747. 2 For those questions where defense counsel di d not object, the issues are reviewed for 3 plain or fundamental error. State v. Abril , 2003-NMCA-111, ¶ 12, 134 N.M. 326, 76 4 P.3d 644, overruled on other grounds by State v. Torres , 2012-NMCA-026, 272 P.3d 5 689. The plain error doctrine app lies only to evidentiary matters. SeeRule 11-103(D) 6 NMRA; State v. Lucero , 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993). 7 Under a plain error analysis, we must have “grave doubts about the validity of the 8 verdict, due to an error that infects the fairness or integrity of the judicial proceeding.” 9 State v. Gutierrez , 2003-NMCA-077, ¶ 19, 133 N.M. 797, 70 P.3d 787. Further, we 10 will conclude that fundamental error ha s occurred “only if there has been a 11 miscarriage of justice, if the question of guilt is so doubtful that it would shock the 12 conscience to permit the conviction to stand, or if substantial justice has not been 13 done.” State v. Orosco , 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992). Finally, we 14 review the cumulative impact of the pres erved and unpreserved errors for fundamental 15

error. State v. Wilson , 109 N.M. 541, 547, 787 P.2d 821, 827 (1990). 16 1. Oliver Santana 17 {9} There is no dispute that neither Santana nor Rocha were ableto remember much 18 about the events of August 16, 2009. Santana remembered being with Lopez and 19 Rocha in his truck, being hit in the f ace by someone, and retaliating. However, he 206 could not remember what precipitated the fi ght, who struck him, or what he had done 1 in retaliation. Santana tes tified that he did not remember seeing Defendant on the 2 night of the incident, and he was unable to identify Defendant at trial. 3 {10} On direct examination, Santana admitte d to writing and signing a statement that 4 he gave to the police about what happened on August 16, 2009. Although Santana 5 acknowledged his signature and identified the writing as his, he said he could not 6 really remember anything about the even ts in the statement. The prosecutor 7 questioned Santana about his memory and asked if he had written down what had 8 happened accurately in the statement he gave to police. Santana responded that he 9 could not tell if what he wrote was accurate because it was too long ago. Throughout 10 his testimony, Santana continued to insist that he did not remember anything that he 11 wrote in the statement. 12 {11} Defendant argues that the questions th e prosecutor asked of Santana were 13 impermissibly leading and argumentative. Weare not persuaded. As an initial matter, 14 we note that Defendant cites to only one leading question toSantana, and he provides 15 no analysis as to why the district court abused its discretion. Specifically, after 16 Santana said that reading the statement did not help him remember the events of 17 August 16, the prosecutor asked Santana if he had a learning disability. Santana 18 answered that he might have dyslexia, and the following exchange then took place, 197 which ended with defense counsel objecti ng on the basis that the questions were 1 leading: 2 Prosecutor: When you read that statement, does it make sense to you? Does 3 it flow logically? Are you, like, telling a story? 4 Santana: Um, no, not really. 5 Prosecutor: Not really. You don’t start out with you saying what happened on 6 a specific date, at a specific time? 7 {12} A discussion of abuse of discretion for allowing the prosecutor’s questions 8 above to Santana is needless. Defendant does not point to how either of these 9 questions suggested answers to Santana, mu ch less how the district court’s ruling was 10 erroneous. We therefore do not consider it further. 11 {13} Defendant also does not explain how the district court’s failure to sustain 12 objections to some arguably argumentative questions was an abuse of discretion. 13 Defendant points to the four instances in which defense counsel objected to the 14 prosecutor’s questions or statements as argumentative. The first three were objections 15 to: (1) the prosecutor’s questions regarding Santana’s memory, (2) the prosecutor’s 16 question asking Santana if he had writte n down why Lopez had a bloody lip, and (3) 17 the prosecutor’s question regarding how long after the incident Santana had written 18 the report and how long after the incident he had gone to the hospital. We fail to 19 see—and Defendant provides no explanation—how the district court acted beyond the 20 bounds of reason by allowing the questions and statements. 218 {14} Defendant also contends th at the district court abused its discretion when it 1 allowed the prosecutor to ask Santana whether he made it a habit to lie to police. The 2 district court overruled defense couns el’s objection that the question was 3 argumentative. Defendant’s reliance on United States v. Micklus , 581 F.2d 612, 617 4 n.3 (7th Cir. 1978), is both curious and unavaili ng. In that case, the defendant claimed 5 that he was denied due process by prejudi cial comments made by the prosecutor. Id. 6 at 617. The Seventh Circuit listed several comments and questions by the prosecutor 7 that essentially accused the witnesses of lying; however , the court found no 8 misconduct warranting reversal of the defendant’s conviction. Id. We, too, find no 9 misconduct here. In any event, it is entirely possible that the prosecutor in this case 10 was not accusing Santana of lying, but was merely asking him if he ever lied to police 11 to determine whether the statements he made on the police form were likely truthful. 12 The district court did not abuse its discre tion, and there was no plain or fundamental 13 error with regard to the prosecutor’s questioning of Santana. 14 2. Jose Rocha 15 {15} Jose Rocha also testified that he had no memory of the events of August 16, 16 2009, and that he could not recall writing the statement or what he wrote. In fact, 17 Rocha testified that he did not even rec ognize Defendant. When asked why he would 18 put the name of someone he did not know on his statement, Rocha replied, “I don’t 19 know.” Rocha persisted in testifying that he did not remember anything and that he 209 did not know who Patrick Jaure was, that he did not remember talking to the police 1 on August 16, and that he did not remember who gavehim the police department 2 form, although he did say that there were male and female officers involved. When 3 he said he did not know who gave him the form, the prosecu tor asked the district court 4 to direct Rocha to answer. The court re minded Rocha that he was under oath to tell 5 the truth and directed him to answer the que stions. Rocha then stated that he spoke 6 to male and female officers at the hospital and that Lopez and Santana were at the 7 hospital. But he then immediately had a lapse of memory again. When asked, Rocha 8 could not remember why he was at the hosp ital, who had driven to the hospital, or 9 whether Santana had a truck. At that point , the district court declared Rocha a hostile 10 witness, and the prosecutor was permitted to ask leading questions. 11 {16} The prosecutor proceeded to ask Rocha a series of leading questions, including 12 whether Rocha, Lopez, and Santana werebacking out of Lopez’s driveway when 13 Defendant approached and asked for a cigarette; whether he wrote down that he told 14 Defendant he did not smoke; whether he wrote that Nina accused Lopez of stealing 15 her cigarettes; whether he wrote that De fendant got mad and st ruck Lopez in the 16 mouth with a knife; whether he wrote th at Patrick Jaure punched Lopez also; and 17 whether he wrote that Patrick Jaure thenhit Santana. To each question, Rocha 18 testified that he did not remember. 1910 {17} As a preliminary matter, although Defendant contends that Rocha “was asked 1 some leading questions prior to the court’s declaration [that he was a hostile witness],” 2 he does not point to what those questions were nor does he disc uss how allowing them 3 constituted an abuse of discretion or amounted to plain or fundamental error. To the 4 extent that Defendant argues that the distri ct court erroneously allowed the prosecutor 5 to ask Rocha leading questions after Ro cha was declared a hostile witness, we 6 disagree. First, we observe that defe nse counsel did not object to the questions 7 because they were leading, but rather on the ground that no adequate foundation had 8 been laid for them. Defendant makes no argument as to that objection on appeal. 9 Further, we are not persuaded by Defendant ’s argument that the prosecutor improperly 10 used leading questions because Rocha “was not acting as a ‘hostile’ or ‘adverse’ 11 witness.” We note that the credibility of a witness may be attacked by any party, 12 including the party calling th e witness. Rule 11-607 NMRA. Prior inconsistent 13 statements may be used to impeach the credibility of a witness. Rule 11-613 NMRA. 14 Additionally, Rule 11-611(C) NMRA of the Rules of Evidence reads: 15 Leading questions should not be us ed on direct examination except as 16 necessary to develop the witness’ s testimony. Ordinarily, the court 17 should allow leading questions 18 (1) on cross-examination, and 19 (2) when a party calls a hostile witn ess, an adverse party, or a 20 witness identified with an adverse party. 2111 We conclude that where, as here, a witness deliberately seeks to avoid testifying by 1 claiming loss of memory in response to specific questions, the district court’s 2 declaration of Rocha as a hostile witness, and the resulting use of leading questions, 3 was not clearly untenable or clearly ag ainst reason and our rules of evidence. 4 {18} Defendant’s reliance on State v. Orona , 92 N.M. 450, 454, 589 P.2d 1041, 1045 5 (1979), is misplaced. In Orona , our Supreme Court concluded that, under Rule 11- 6 611(C), “[d]eveloping testimony by the use of leading questions must be distinguished 7 from substituting the words of the prosecut or for the testimony of the witness.” 8 Orona , 92 N.M. at 454, 589 P.2d at 1045. The Court determined that, in that case, the 9 district court “abused its discretion in such a manner as to violate principles of 10 fundamental fairness” after it permitted every word describing th e alleged offense to 11 come from the prosecuting attorney, rather than from the witness. Id. There, the 12 witness was allowed to read her statement, and the prosecutor, without asking if her 13 memory had been refreshed, proceeded to leadthe witness as to the contents of the 14 statement. Id. Over defendant’s objection, the district court allowed the “direct 15 examination [to be] continued with the prosecutor graphically describing sexual acts 16 of [the] defendant by way of leading questi ons, to each of which the witness gave a 17 simple answer of ‘yes.’ ” Id. This case is factually distinguishable from Orona

. 18 {19} Unlike Orona , the prosecutor here showed Rocha his statement and asked 19 several times if it refreshedhis memory. Rocha rep eatedly claimed he did not 2012 remember anything, including that he wrote th e statement. In addition, he testified 1 that he did not recognize Defendant, even though he had written Defendant’s 2 nickname, “Chucky,” on the police form; thathe did not know Patrick Jaure, even 3 though he had written his name down as well; th at he did not remember talking to the 4 police on August 16; that he did not rememb er why he been at the hospital; and that 5 he did not remember if Santana had a truck. Our review of Rocha’s testimony 6 establishes that his selective loss of memo ry was inherently incredible and amounted 7 to an implied denial of the facts contained in his statement. On that basis, Rocha’s 8 prior statements were properly admitted through the use of leading questions, as prior 9 inconsistent statements. Accordingly, weconclude that the prosecutor’s leading 10 questions did not constitute fundamental error. 11 {20} As with the questions directed to Sant ana, Defendant also argues that “[b]eyond 12 being leading, however, the questions [t o Rocha] were unnece ssarily argumentative 13 and repetitive.” Defendant refers us to only one question—asking Rocha, “Is there 14 anything that you do know?” Again, Defendant does not explai n how the district 15 court’s failure to sustain the objection to this question was an abuse of discretion. 16 “We will not review unclear arguments, or guess at what [a party’s] arguments might 17 be.” Headley v. Morgan Mgmt. Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 18 P.3d 1076. We conclude that the district court did not abuse its discretion, and there 1913 was no plain or fundamental error with regard to the prosecutor’s questioning of 1 Rocha. 2 3. The District Court’s Questions, Admonishment, and Statement to Rocha 3 {21} As we have noted above, during the course of his testimony, Rocha repeatedly 4 said that he did not remember anything about the events of August 16, 2009, including 5 who Defendant was. Although Rocha finallysaid that he wa s given the Carlsbad 6 Police Department form by a male and a female, he did not remember who they were. 7 The prosecutor asked how Rocha knew “if they ’re male and female,” and Rocha again 8 said he did not know. The prosecutor asked the court to direct Rocha to answer, and 9 the district court said, “Mr. Rocha, you’re under oath to tell the truth so answer the 10 questions.” 11 {22} Rocha then continued to answer the prosecutor’s questions by saying that he 12 could not recall or remember anything. Af ter a bench conference, the district court 13 declared Rocha to be a hostile witness and said, “Counsel, the court is going to find 14 that Mr. Rocha is a hostile witness and you may proceed accordingly.” At the end of 15 his testimony and after the prosecutor and defense had asked their questions, the 16 district court asked Rocha if he knew Patric k Jaure. Rocha said he did not, and the 17 district court then asked, “Then how do you know that you’ve had no contact with 18 him?” 1914 {23} It is these three issues—the district c ourt’s admonishment to Rocha that he was 1 under oath to tell that truth, the determin ation that Rocha was a hostile witness, and 2 the two questions posed to Rocha by the court—that Defendant contends amount to 3 plain or fundamental error and deprived him of a fair trial. We are not persuaded, and 4 Defendant has failed to show how these isolated instances leave us with “grave doubts 5 about the validity of the verdic t, due to an error that inf ects the fairness or integrity of 6 the judicial proceeding.” Gutierrez , 2003-NMCA-077, ¶ 19. 7 {24} Further, Defendant’s reliance on State v. Paiz , 1999-NMCA-104, 127 N.M. 8 776, 987 P.2d 1163, is unavailing. In Paiz , this Court noted that under Rule 11- 9 611(A), a trial judge may question witnesses to clarify testimony or bring out all of 10 the facts. Paiz , 1999-NMCA-104, ¶ 17. However, a district court’s comments and 11 questions implicate a defendant’s right to fairtrial and, thus, may rise to the level of 12 plain or fundamental error. Id. We concluded that the trial judge in that case abused 13 her discretion because she had extensively questioned a witness, made remarks that 14 were improper, improperly limited defense counsel’s cross-examination, and made 15 impermissible comment s on the evidence. Id. ¶¶ 19-20. Defendant here concedes that 16 a single question or comment is unlikely to rise to a level that exceeds a judge’s 17 discretion under Rule 11-611(A). He nevertheless challenges the district court’s 18 declaration of Rocha as a hostile witness and the court’s two questions asking whether 19 Rocha knew who Patrick Jaure wa s. We disagree. The district court’s two questions 2015 here were clearly not extensive or persiste nt, nor were they calculated to give the 1 impression that the judge favored one si de over the other, as was the case in Paiz . We 2 further conclude that even coupling the tw o questions with the judge’s declaration at 3 another point in the testimony that Rocha was a hostile witness does not run afoul of 4 Rule 11-614 NMRA. 5 {25} Likewise, Defendant’s citation to State v. Sanchez , 112 N.M. 59, 811 P.2d 92 6 (Ct. App. 1991), is similarly misplaced. In Sanchez , we held that the trial judge’s 7 statement in front of the jury that th e witness was “unavailable” and “because of 8 purported lack of memory, [his testimony wa s] worthless,” was a prejudicial comment 9 on the evidence. Id . at 61, 811 P.2d at 94. In contrast, under the facts before us, we 10 cannot say that the district court’s questions or statements in th is case amounted to a 11 comment concerning the weight of the evidence or the credibility of the witness. 12 Accordingly, the court’s comments do not ri se to the level of plain or fundamental 13

error. 14 4. Officer Bolduc’s Testimony 15 {26} Defendant contends that the district court abused its discretion by permitting 16 Officer Bolduc to testify as to statements made by Santana and Rocha on the night of 17 the incident. Officer Bolduc was the St ate’s final witness. He identified the 18 statements that he had taken from Santana and Rocha and testifie d that he had spoken 1916 with them at the hospital. The following exchange, which is th e basis of Defendant’s 1 argument here, then took place: 2 Prosecutor: Did either of them, while you were out at the scene, 3 did either of them identify any other person that 4 might have been involved in this incident to you? 5 Officer Bolduc: Yes. 6 At this point, defense counsel’s objected and said that he was “concerned . . . that this 7 is just a way of putting into sworn te stimony form, through the officer who did not 8 make the statement, something that was st ated by these individuals.” As an initial 9 matter, we note that Officer Bolduc only tes tified as to statements of identification. 10 In particular, he testified that Santana, Rocha, and Lopez all identified both Patrick 11 Jaure and Defendant as being involved. It is well established that out-of-court 12 statements of identification are non- hearsay under Rule 11-801(D)(1)(c) NMRA. 13 Furthermore, the jury had direct testimony from two eyewitnesses, Hector Lopez and 14 Elizabeth Lopez, that support its finding th at Defendant was involved in the incident 15 on August 16, 2009. Accordingly, we conclude that the di strict court did not commit 16 reversible error or abuse its discretion. 17 5. The Combined Effects of the Rulings 18 {27} Because we have concluded th at the district court’s rulings as to the testimony 19 of Santana, Rocha, and Officer Bolduc were not in error, we necessarily conclude that, 20 regardless of whether they are considered individually or cumulatively, there was no 2117 abuse of discretion or plain or fundamental error with respect to the court’s actions. 1 Moreover, to the extent that some tes timony was erroneously admitted, our Supreme 2 Court has previously said that “not all erroneously admitted evidence necessitates 3 reversal.” State v. Woodward, 121 N.M. 1, 9, 908 P.2d 231, 239 (1995), abrogated 4 on other grounds as recognized by State v. Granillo-Macias , 2008-NMCA-021, 143 5 N.M. 455, 176 P.3d 1187. The error must be prejudicial. See id. at 9-10, 908 P.2d at 6 239-40. “In the absence of prejudice, there is no reversible error.” State v. Hoxsie , 7 101 N.M. 7, 10, 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos 8 v. Citizens Ins. Agency , 108 N.M. 722, 779 P.2d 99 (1989). In this case, Defendant 9 has not established any prejudice requiring reversal. 10 {28} Finally, to the extent that Defendant argues that Santana and Rocha’s “written 11 statements to police on the night of the incident unquestionably constitute hearsay,” 12 we do not disagree. However, Defendant does not point to anywhere in the 13 record—and we are unable to locate—where the written st atements themselves were 14 admitted into evidence. “Matters not of record present no issue for review.” State v. 15 Hunter , 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296. We therefore do not 16 address this argument. 17 Confrontation Clause 18 {29} In addition to the evidentiary issues, De fendant asserts that his confrontation 19 rights were violated based on the State’s di scussion of the contents of Santana and 2018 Rocha’s written statements during the ques tioning of those two witnesses and Officer 1 Bolduc. Specifically, Defendant contends that because Santana and Rocha could not 2 remember anything, they were “unavailable” for purposes of the confrontation clause, 3 and the substance of their statements should therefore not have been placed before the 4 jury. We disagree that Santana and Roch a were “unavailable” and that Defendant’s 5 confrontation rights were violated. 6 {30} Defendant concedes that defense counsel did not object to the State’s 7 questioning of Santana and Rocha on confr ontation grounds and that, therefore, his 8 conviction will be reversed only if the error is fundamental. See State v. Martinez , 9 2007-NMSC-025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (reviewing an unpreserved 10 Confrontation Clause argument for fundamental error). Accordingly, Defendant must 11 demonstrate that he is either indisputablyinnocent or that the error in permitting the 12 questioning of Santana, Rocha, and Bolducmakes his conviction fundamentally unfair 13 and a miscarriage of justice. See State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 14 621, 92 P.3d 633 (providing that fundament al error only occurs in “cases with 15 defendants who are indisputably innocent, and cases in which a mi stake in the process 16 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the 17 accused”). 18 {31} The Confrontation Clause prohibits the admission of testimonial hearsay 19 statements unless the declarant is unavailable and the defendant had a prior 2019 opportunity to cross-examine the declarant. State v. Ortega , 2008-NMCA-001, ¶ 14, 1 143 N.M. 261, 175 P.3d 929, overruled on other groundsby State v. Mendez , 2010- 2 NMSC-044, 148 N.M. 761, 242 P.3d 328. As discussed earlier in this opinion, 3 Santana and Rocha were called as the State’s witnesses and were subjected to direct 4 examination. Although Rocha was ultimately declared a hostile witness, that simply 5 allowed the prosecutor to ask leading ques tions. Thus, Defendant had the opportunity 6 to cross-examine both witnesses. OfficerBolduc’s in-court identification testimony 7 was also subject to Defendant’s fundamentalright to cross-examination. Defendant 8 does not argue that he was indisputably innocent and does not demonstrate that any 9 alleged defects in the proceedings made his conviction fundamentally unfair. 10 Accordingly, we conclude that there was no fundamental error in this case. 11 Sufficiency of the Evidence 12 {32} Defendant next argues that the State did not present sufficient evidence to 13 establish that Defendant actually used a kni fe to cut Lopez. A sufficiency of the 14 evidence review involves a two-step process. Initially, the eviden ce is viewed in the 15 light most favorable to the verdict. Th en the appellate court must make a legal 16 determination of “whether the evidence view ed in this manner could justify a finding 17 by any rational trier of fact that each element of the crime charged has been 18 established beyond a reasonable doubt.” State v. Apodaca , 118 N.M. 762, 766, 887 19 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). Under this 2020 deferential standard of review, we conclude there wa s sufficient credible evidence to 1 sustain Defendant’s conviction for aggr avated battery with a deadly weapon. 2 {33} In order to establish that Defendant wa s guilty of aggravated battery with a 3 deadly weapon, the State had to prove the following elements: 4 1. [D]efendant touched or applied force to . . . Lopez by cutting him 5 with a deadly weapon. [D]efendantused a knife. A knife is a 6 deadly weapon only if you find that a knife, when used as a 7 weapon, could cause death or great bodily harm; 8 2. [D]efendant intended to injure . . . Lopez; 9 3. [D]efendant’s act was unlawful; 10 4. This happened in New Mexico on or about the 16th day of 11 August, 2009. 12 The State presented the following evidence th at justified a finding that each element 13 of the crime charged had been established beyond a reasonable doubt. 14 {34} Lopez testified that Defendant reached into the truck and punched him. As 15 Defendant was pulling his arm away, Lopez saw a knife in Defendant’s hand. Lopez 16 noticed that his lip was split and bleeding. In addition, Elizabeth Lopez testified that 17 she heard the commotion and came out of her house. She opened the door and saw 18 Defendant holding a beer in one hand whilewaving a knife around with the other. 19 {35} Defendant’s argument is premised on th e fact that there was no evidence to 20 establish that Defendant actuallyused a knife to cut Lop ez and that Lopez could not 21 definitively say his injury was caused by a knife. Although no direct testimony was 22 presented that Defendant cut Lopez’s lip with the knife, we hold that the above- 2321 described testimony constitutes sufficient circumstantial evidence that Defendant cut 1 Lopez’s lip with the knife. See State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 94, 2 140 P.3d 515 (“The test for sufficiency of th e evidence is whether substantial evidence 3 of either a direct or circumstantialnature exists to support a verdict of guilt beyond 4 a reasonable doubt with respect to every element essential to a c onviction.” (emphasis 5 added) (internal quotation marks and citation omitted)). Accordingly, the evidence 6 presented by the State was substantial enough to convince a reasonable juror that 7 Defendant “touched or applied force to . . . Lopez by cutting him with a deadly 8 weapon.” 9 Motion for Mistrial 10 {36} Lastly, we address Defendant’s motion for a mistrial. A district court’s ruling 11 on a motion for a mistrial rests within th e sound discretion of the court and will not 12 be disturbed absent a showi ng of abuse of discretion. See State v. Fry , 13 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516; State v. McDonald , 1998- 14 NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752. An abuse of discretion occurs “when 15 the ruling is clearly against th e logic and effect of the f acts and circumstances of the 16 case.” State v. Sutphin , 107 N.M. 126, 130, 753 P.2d 1314, 1318 (1988). 17 {37} Pursuant to State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 983 (1967), and 18 State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1,4-6 (Ct. App. 1985), Defendant 19 argues that the district court erred in denying his motion for mistrial based on defense 2022 counsel’s inability to play a recording of Lopez’s preliminary hearing testimony. We 1 note that Defendant does not cite to the reco rd where this issue was preserved, and 2 we will not search the record to do so. See State v. Rojo , 1999-NMSC-001, ¶ 44, 126 3 N.M. 438, 971 P.2d 829 (stating that the court will not search the record to find 4 whether an issue was preserved where th e defendant did not refer the court to 5 appropriate transcript references). 6 {38} Further, although not raised by Defendant , we are not persuaded that there is 7 any basis for reversal base d on fundamental error. As we have noted, fundamental 8 error “only applies in exceptional circum stances when guilt is so doubtful that it 9 would shock the judicial conscience to allow the conviction to stand.” State v. Baca , 10 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by 11 State v. Belanger , 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Such is not the 12 case here. Defendant concedes—and our review of the record establishes—that 13 defense counsel was able to impeach Lop ez through cross-examination. Although the 14 impeachment may not have been as effective as the tape recording, we cannot say that 15 it would “shock the judicial conscience to allow the conviction to stand” in this case. 16 CONCLUSION 17 {39} For the reasons set forth above, De fendant’s conviction is affirmed. 18 {40} IT IS SO ORDERED. 19

__________________________________ 2023 LINDA M. VANZI, Judge 1 WE CONCUR: 2

_________________________________ 3 JAMES J. WECHSLER, Judge 4

_________________________________ 5 J. MILES HANISEE, Judge 6