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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36095 4 JAMEY HEAD, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 MJ Edge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17 {1} Defendant appeals his conviction for aggravated battery. Our notice proposed 18 to affirm, and Defendant filed a memorandum in opposition and motion to amend the 192 docketing statement. We deny Defendant’s motion to amend and remain unpersuaded 1 by Defendant’s arguments. We therefore affirm. 2 {2} As an initial matter, we note that the memorandum in opposition’s designation 3 of the issues does not correlate with the de signation of the issues as provided in the 4 docketing statement and notice. For consistenc y, we continue to designate the issues 5 as provided in the docketing statement and notice, and request that counsel maintain 6 consistency in any future pleadings he may file in this Court. 7 {3} Issues 1 and 2: Defendant withdraws his challe nge to the sufficiency of the 8 evidence and the denial of his motion for a directed verdict. [MIO 1] 9 {4} Issue 3: In his docketing statement, Defendant asserted that the district court 10 erred in denying his mo tion for a mistrial. [DS 4] He claimed that, after the defense 11 rested and while the prosecutor was making his rebuttal closing argument, one of the 12 defense witnesses made an obscene gesture to the prosecutor in the presence of the 13 jury. [DS 4] Two weeks later, during the sentencing hearing, defense counsel made 14 an oral motion for a mistrialdue to the obscene gesture. [Id.] The judge denied the 15 motion for mistrial. [Id.] 16 {5} We proposed to conclude that Defendant had not provided this Court with 17 sufficient facts or otherwise developed his argument for this Court to meaningfully 18 analyze this issue. [CN 7-8] See Corona v. Corona , 2014-NMCA-071, ¶ 28, 329 P.3d 193 701 (“This Court has no duty to review an argument that is not adequately 1 developed.”); see also Elane Photography, LLC v. Willock , 2013-NMSC-040, ¶ 70, 2 309 P.3d 53 (“We will not review unclear arguments, or guess at what a party’s 3 arguments might be.” (alteration, internal quotation marks, and citation omitted)). 4 Because Defendant had not demonstrated error on appeal, we also presumed the 5 district court correctly denied the motion for a mistrial. [CN 8] See State v. Aragon , 6 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a 7 presumption of correctness in the rulings or decisions of the trial court, and the party 8 claiming error bears the burden of showing such error); see also Farmers, Inc. v. Dal 9 Mach. & Fabricating, Inc. , 1990-NMSC-100, ¶ 8, 111 N.M . 6, 800 P.2d 1063 (stating 10 that the appellate courts presume that the di strict court is correct and the burden is on 11 the appellant to clearly demonstrate that the lower court erred). 12 {6} In response, Defendant contends that trial counsel essentially moved for a new 13 trial under Rule 5-614 NMRA, because th e jury was exposed to extraneous 14 information. [MIO 8-9] In State v. Doe , 1984-NMCA-045, ¶ 9, 101 N.M. 363, 683 15 P.2d 45, we stated: 16 The party seeking a new trial on th e basis that extraneous evidence 17 reached the jury must make a pre liminary showing that movant has 18 competent evidence th at material extraneous tothe trial actually reached 19 the jury. If the party makes such a s howing, and if there is a reasonable 20 possibility the material prejudiced th e defendant, the trial court should 21 grant a new trial. The trial court ha s a duty to inquire into the possibility 224 of prejudice. In an appropriate case, the trial court should conduct an 1 evidentiary hearing. 2 (citations omitted). 3 {7} While Defendant claims that the bailiff witnessed the gesture, Defendant fails 4 to describe the gesture or s how that he had competent ev idence that the jury observed 5 the gesture. [MIO 6, 9] We note that, on the one hand, Defendant asserts that “[t]he 6 jury witnessed the obscene gesture” [MIO 9]; however, on the other hand, Defendant 7 claims that he received ineffective assistan ce of counsel because trial counsel “fail[ed] 8 to investigate whether any jurors saw the gesture, and what impact it had on their 9 deliberations if they did” [MIO 7]. Basedon the information before this Court, we 10 cannot say that the district court erred inrefusing to inquire whether the alleged 11 obscene gesture tainted the jury. See id. Accordingly, we conclude that the district 12 court did not abuse its discretion in de nying Defendant’s motion for a new trial. See 13 State v. Huber , 2006-NMCA-087, ¶ 27, 140 N.M. 147, 140 P.3d 1096 (“We will not 14 disturb the trial court’s denial of a motion for a new trial unless the ruling is arbitrary, 15 capricious or beyond reason.” (internal quotation marks and citation omitted)). 16 {8} Issue 4: In his docketing statement, Defendant asserted that his trial counsel 17 provided ineffective assistance of counsel because trial counsel failed to ascertain 18 from the district court and/or the court st aff what obscene gesture a defense witness 19 made to the prosecutor, in view of the jury, while the trial was still being held. [DS 4- 205 5] We proposed to conclude that Defendant failed to establish ineffective assistance 1 of counsel. [CN 8-10] See Aragon , 1999-NMCA-060, ¶ 10; see also Farmers, Inc. , 2 1990-NMSC-100, ¶ 8. 3 {9} In response, Defendant consolidates Issu es 3 and 4; notes this Court’s proposal 4 to affirm Issue 3 based on trial counsel’s failure to provide sufficient facts to analyze 5 whether the district court erred; notes this Court’s proposal to affirm Issue 4 based on 6 trial counsel’s failure to make a prima facie showing of ineffective assistance of 7 counsel; and argues that “the district court had a duty to inquire into whether [the 8 witness’s] gesture tainted the jury.” [M IO 7-8] However, Defendant provides no 9 argument to support a successful claim of ineffective assistance of counsel. [ See 10 generallyMIO 7-9] See State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 11 P.3d 289 (“For a successful ineffective assist ance of counsel claim, a defendant must 12 first demonstrate error on the part of counsel , and then show that the error resulted in 13 prejudice.”); see id. (“Trial counsel is generally presumed to have provided adequate 14 assistance.”). We therefore conclude Defendant has not demonstrated error. 15 {10} Motion to Amend: Defendant seeks to amend hi s docketing statement to argue 16 jury instruction issues that he acknow ledges were not preserved. [MIO 10] See Rule 17 5-608(D) NMRA (stating that to preserve an error for “failure to instruct on any issue, 18 a correct written instruction must be tendered before the jury is instructed”); State v. 196 Jernigan , 2006-NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537 (“Generally, to preserve 1 error on a trial court’s refusal to give a tendered instruction, the [a]ppellant must 2 tender a legally correct statement of the law.”); State v. Lara , 1990-NMCA-075, 3 ¶¶ 28-30, 110 N.M. 507, 797 P.2d 296 (stating that in order to premise error on a 4 refused instruction, the defendant must have tendered a legally correct statement of 5 the law). Nevertheless, he a sserts that this Court should review the jury instruction 6 issues for fundamental error. See State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 7 258, 34 P.3d 1134 (providing that if a jury in struction issue has not been preserved, 8 this Court reviews for fundamental error); see also State v. Sandoval , 9 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016 (providing that when this Court 10 reviews jury instructions for fundamental error, we will only reverse the jury verdict 11 if doing so is “necessary to prevent a mis carriage of justice” (internal quotation marks 12 and citation omitted)). 13 {11} Defendant claims that the district c ourt committed fundamental error by failing 14 to instruct the jury on self-defense and unlawfulness. [MIO 1-3, 9-12] See State v. 15 Sosa , 1997-NMSC-032, ¶ 26, 123 N.M. 564, 943 P.2d 101 (holding that “where a 16 defendant raises the defense of self-d efense, unlawfulness becomes a necessary 17 element of the crime charge d”). According to Defendant , “[e]ven when trial counsel 18 doesn’t ask for self-defense instructions, th e district court has an affirmative duty to 197 give them, even when the evidence to support such a claim is slight.” [MIO 11] In 1 support of this assertion, Defendant relies on State v. Anderson , 2016-NMCA-007, 2 ¶ 10, 364 P.3d 306, which provide s: “[w]here there is any evidence to establish a 3 self-defense theory, it is the duty of the court to fully and clearly instruct the jury on 4 all relevant aspects of self-defense.” [ See MIO 11] Also, as noted by Defendant, 5 Anderson , 2016-NMCA-007, ¶ 10, cites to State v. Heisler , 1954-NMSC-032, ¶ 23, 6 58 N.M. 446, 272 P.2d 660, whic h provides: “where self-defense is involved in a 7 criminal case and there is any evidence, although slight, to establish [self-defense], it 8 is not only proper for the court, but its duty as well, to instruct the jury fully and 9 clearly on all phases of the law on the issu e that are warranted by the evidence[.]” [ See 10 MIO 11] 11 {12} Notably, Defendant neglects to address the very next sentence in Anderson , 12 stating “[t]he district c ourt’s conclusion that there was evidence to support the 13 issuance of both the general self-defense instruction and the no-retreat instruction 14 triggered the district court’s duty to fully and clearly instruct the jury on both 15 self-defense and no-retreat.” 2016-NMCA-007, ¶ 10. Unlike the facts in the present 16 case, the defendant in Andersonrequested the omitted jury instruction at issue. See id. 17 ¶ 5 (“During trial, [the d]ef endant requested a self-def ense instruction (UJI 14-5171 18 NMRA) and a stand-your-ground (or no-retreat) instruction (UJI 14-5190 NMRA).”). 198 Although the district court agreed to give both a self-defense instruction and a stand1 your-ground instruction, the district court did not give the latter instruction. See id. ¶¶ 2 5-6. Because counsel did not object tothe absence of the stand-your-ground 3 instruction, we reviewed whether the omission of the jury instruction was fundamental 4

error. See id. ¶ 8. 5 {13} The facts in the present case are distinguishable from those in Anderson , and 6 despite Defendant’s arguments to the contrary, the district court did not have an 7 affirmative duty to instruct the jury on self-d efense in this case wh en the issue of self8 defense had not been considered by the distri ct court. Because we conclude this issue 9 is not viable, we deny Defendant’s mo tion to amend his docketing statement. See State 10 v. Moore , 1989-NMCA-073, ¶¶ 44-45, 109 N.M. 119, 782 P.2d 91 (providing that this 11 Court will deny motions to amend that raise issues that are not viable, even if they 12 allege fundamental or jurisdictional error), superseded by rule on other grounds as 13 recognized in State v. Salgado , 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; 14 see Moore , 1989-NMCA-073, ¶ 42 (“By viable, wemeant to describe an argument 15 that was colorable, or arguable, and to di stinguish arguments that are devoid of any 16 merit.”). 179 {14} Accordingly, for the reasons stated in this opinion, as well as those provided in 1 our notice of proposed disposition, we affi rm Defendant’s conviction for aggravated 2 battery, and we deny Defendant’s moti on to amend his docketing statement. 3 {15} IT IS SO ORDERED. 4

5 M. MONICA ZAMORA, Judge 6 WE CONCUR: 7

8 TIMOTHY L. GARCIA, Judge 9

10 STEPHEN G. FRENCH, Judge 11