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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,689 4 FELIPE AVALOS 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY 7 Kevin R. Sweazea, District Judge 8 Hector H. Balderas, Attorney General 9 Paula E. Ganz, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Kimberly Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Judge. 182 {1} Defendant appeals his convictions fo r battery on a household member and 1 aggravated battery with a deadly weapon . He raises five arguments on appeal. We 2 affirm. Because this is a memorandum opini on and because the parties are familiar 3 with the case, we reserve discussion of th e facts for our analysis of the issues on 4 appeal. 5 DISCUSSION 6 1. Voluntary intoxication instruction 7 {2} Defendant argues that the district court should have given a jury instruction to 8 the effect that his voluntary intoxication may have negated the specific intent required 9 for the crime of aggravated battery. He c oncedes that he did not request such an 10 instruction. Consequently he argues that (1) it was fundamental error not to instruct 11 the jury on voluntary intoxication or, alternativ ely, (2) his attorney ’s failure to request 12 the instruction constituted ineffective assistance of counsel. 13 a. Fundamental error 14 {3} “The doctrine of fundamental error applies only under exceptional 15 circumstances and only to preven t a miscarriage of justice.” State v. Nevarez , 2010- 16 NMCA-049, ¶ 24, 148 N.M. 820, 242 P.3d 387 (internal quotation marks and citation 17 omitted). Our courts recognize fundamental error in two types of cases: (1) where a 18 defendant is convicted despite indisputableinnocence and (2) where “a mistake in the 193 process makes a conviction fundamentally unfair notwithstanding the apparent guilt 1 of the accused.” Id. (internal quotation marks and c itation omitted). Defendant appears 2 to maintain that this is the second type of case. 3 {4} Defendant contends that the district court should have gi ven the jury UJI 14- 4 5111 NMRA, which, if modified to fit th e circumstances, would read as follows: 5 Evidence has been pres ented that the defendant was [intoxicated 6 from the use of alcohol]. You mustdetermine whether or not the 7 defendant was [intoxicated from the use of alcohol] and, if so, what 8 effect this had on the defendant’s abilityto form the intent to [injure the 9 victim Joshua Gomez]. 10 The burden is on the [S]tate to prove beyond a reasonable doubt 11 that the defendant was capable of fo rming an intention to [injure the 12 victim]. If you have a reasonable doubt as to whether the defendant was 13 capable of forming such an intention, you must find the defendant not 14 guilty of [aggravated battery with a deadly weapon]. 15 {5} We conclude that the district court’s failure to give this instruction did not 16 constitute fundamental error because the ev idence did not support the instruction. Our 17 case law establishes that “[a] finding of voluntary intoxication provides a defense to 18 specific intent crimes where the intoxication is to such a degree as would negate the 19 possibility of the necessary intent.” State v. Garcia , 2011-NMSC-003, ¶ 35, 149 N.M. 20 185, 246 P.3d 1057 (internal quotation marks and citation omitted). Thus, “[i]n order 21 to receive a voluntary intoxication instruc tion, there must be evidence supporting the 22 conclusion that the defendant was actually intoxicated.” Id. 234 {6} Here, the only testimony about Defendant’s alleged intoxication came from 1 Marshal Larry Cearley. Defense counsel asked Marshal Cearley, “[Defendant] was 2 intoxicated, correct?” and Marshal Cearley replied, “Correct.” Marshal Cearley further 3 testified that Defendant told him that heremembered stabbing Mr. Gomez but could 4 not remember where on his body he stabbed hi m and that he did not remember hitting 5 Monica. This evidence was insufficient to warrant an instruction on voluntary 6 intoxication because it did not “reasonably te nd[] to show that [D]efendant’s claimed 7 intoxication rendered him incapable of acting in a purposeful way.” State v. Luna , 8 1980-NMSC-009, ¶ 26, 93 N.M. 773, 606 P.2d 183, abrogated on other grounds by 9 Horton v. California, 496 U.S. 128 (1990); see also State v. Hernandez , 2003-NMCA10 131, ¶ 21, 134 N.M. 510, 79 P. 3d 1118 (concluding that evidence was insufficient to 11 support instruction on voluntary intoxication where “[the d]efendant presented no 12 evidence . . . that he was intoxicated to any degree, let alone to the point that it 13 affected his ability to form the necessary mental state for a specific-intent crime”). 14 Marshal Cearley did not indicate why he said that Defendant was intoxicated—i.e., 15 whether his statement was based on his own observations of Defendant or on 16 Defendant’s statements to him. In any event, Marshal Cearley’s minimal statement, 17 plus Defendant’s statement that he could not remember exactly where he had stabbed 18 Mr. Gomez, did not provide any meaningful information upon which a jury could 195 determine whether Defendant’s ability to form an intent to injurewas affected. As we 1 observed in State v. Romero , “Typically, evidence of intoxication will come from 2 witnesses who observed the de fendant’s behavior and demeanor at or near the time 3 of the crime.” 1998-NMCA-057, ¶ 26, 125 N.M. 161, 958 P.2d 119. 4 {7} Moreover, because the evidence as a whole supported the inference that 5 Defendant was in fact capable of forming th e specific intent to injure Mr. Gomez, we 6 cannot say that the district court’s failure to give UJI 14-5111 misled or confused the 7 jury. See Nevarez , 2010-NMCA-049, ¶ 25 (explaining th at in determining whether an 8 alleged error in jury instructions cons tituted fundamental erro r, appellate court 9 considers “whether a reasonable juror would have been confused or misdirected by 10 the jury instruction”). Monica Avalos tes tified that when Defe ndant was hitting her, 11 he told her that when Mr. Gomez arrived, Defendant was going to stab him. 12 {8} In sum, without evidence that Defe ndant’s alleged intoxication somehow 13 impacted his ability to form the specific in tent to injure Mr. Gomez, we cannot say 14 that the district court’s failure to gi ve UJI 14-5111 constituted fundamental error. 15 b. Ineffective assistance 16 {9} Defendant next contends that if the failure to give UJI 14-5111 does not 17 constitute fundamental error, his attorney’s failure to request the instruction amounted 18 to ineffective assistance of counsel . We review this question de novo. Garcia , 2011- 196 NMSC-003, ¶ 33. In order to establish in effective assistance, Defendant must show 1 that “(1) counsel’s performance was defici ent, and (2) such deficiency resulted in 2 prejudice against [him].” Id. 3 {10} We conclude that counsel’s performan ce was not deficient. First, we have 4 already determined that there was insuffi cient evidence to support the giving of UJI 5 14-5111, and counsel was surely aware of th is. Thus, failure to request a voluntary 6 intoxication instruction demonstrated a pr actical recognition of the state of the 7 evidence. See State v. Hunter , 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 8 (explaining that a defendant must overcome the presumption that counsel’s conduct 9 might be considered sound trial strategy). Second, wh ile Defendant suggests that 10 effective counsel would have introducedmore evidence or developed further 11 arguments related to Defendant ’s intoxication and its impact on his mental state, the 12 record does not reveal whether such eviden ce actually existed. Therefore, Defendant’s 13 argument would more properl y be the subject of a habeas corpus proceeding. See State 14 v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“If facts necessary to 15 a full determination are not part of the reco rd, an ineffective a ssistance claim is more 16 properly brought through a habeas corpus petition.”). 17 2. Potential bias of jurors 187 {11} Defendant argues that the district court erred in failing to inquire further when 1 two jurors told the bailiff about circumstan ces that were suggestive of potential bias. 2 “[W]e review the trial court’s rulings regard ing the selection of jurors for an abuse of 3 discretion[.]” State v. Johnson , 2010-NMSC-016, ¶ 31, 148 N.M. 50, 229 P.3d 523 4 (first alteration in original) (internal quot ation marks and citation omitted). The party 5 raising the jury selection issue “bears the burden of proving juror bias.” Id. 6 {12} After the prosecutor’s opening statement, the district court recessed for the 7 lunch break. After lunch, before bringing inthe jury, the court advised counsel that 8 two jurors had approached the bailiff with concerns. 9 {13} Juror Nora M. told the bailiff that she had been Defendant’s mother-in-law. The 10 district court’s notes indicated that she raised her hand during voir dire when the court 11 asked whether any potential jurors knew Defendant, but that she did not raise her hand 12 when the court asked whether anyone w ho knew Defendant would have a problem 13 serving. The court’s notes further indicated that counsel did not ask Nora M. any other 14 questions. When the district court asked counsel if there were any concerns about 15 Nora M. sitting as a juror, the prosecutor said he would like the district court to 16 inquire further, while defense counsel said th at he had talked to Defendant at the time 17 and that Defendant felt that Nora M. would “be okay.” The district court noted that 188 any concerns about Nora M.’s acquaintance with Defendant could have been explored 1 and were not; therefore, she would remain as a juror. 2 {14} Juror Nadine M. also approached the bailiff and told him that she had previous 3 experience with domestic violence and thatshe was kind of “shooken [sic] up” after 4 the prosecutor’s opening statement. The distri ct court noted that it had informed the 5 jurors during voir dire as to the charges against Defendant and that the prosecutor 6 covered this information as well. Therefore, the district court stated, unless Nadine M. 7 were to reach the point where she was unabl e to serve, she too would remain as a 8 juror. Defense counsel agreed. The districtcourt concluded thatNadine M. would 9 remain as a juror unless she were to express some difficulty to the court. 10 {15} While it may have been preferable for the district court to question Nora M. and 11 Nadine M. to determine conclusively th at they could properly sit as jurors, we 12 nonetheless conclude that the court did not abuse its discretion in failing to conduct 13 such an inquiry. Our Supreme Court’s decision in State v. Sanchez , 1995-NMSC-053, 14 120 N.M. 247, 901 P.2d 178, supports our conclusion. 15 {16} In Sanchez , after the jury began its deliberations, defense counsel learned that 16 the sister of one of the jurors was employed by the district attorney’s office as a victim 17 advocate and that the sister had sat withthe victims’ family during the trial. Id. ¶ 8. 18 The defendants then moved to have the ju ror replaced with an alternate or for a 199 mistrial, and the district court denied the motions. Id. The Supreme Court affirmed on 1 the ground that the defendants had waived th eir objection to the juror’s participation. 2 Id. ¶ 11. The juror’s questionnaire stated that her sister was employed by the district 3 attorney’s office, and the juror stated during voir dire that she knew one of the 4 prosecutors because her sister worked in his office. Id. ¶ 3. Defense counsel’s failure 5 to inquire further after these revelations constituted waiver. Id. ¶ 11. While the Court 6 acknowledged that juror bias may sometimes be implied in “extreme situations,” id. 7 ¶ 13 (internal quotation marks and citation omitted), it concluded that the facts in the 8 case “[did] not justify that implication.” Id. ¶ 14. “[O]ther than their assertion that the 9 juror’s relationship to her sister constitute d bias, [the defendants] presented no other 10 evidence that the juror was unable to perform her duties and that [the defendants] were 11 prejudiced as a result.” Id. ¶ 16. 12 {17} The circumstances in the present case are similar. Juror Nora M. indicated 13 during voir dire that she knew Defendant, but defense counsel did not follow up with 14 further inquiry. In fact, defense counsel affirmatively told the district court that 15 Defendant had no concern about Nora M. serving as a juror. This clearly amounted 16 to waiver of any objection Defendant may have had with No ra M.’s service. “A 17 defendant cannot be permitted to escape th e consequences of his earlier knowledge 18 [of possible juror bias] or to reverse his previous position simply because he gambled 1910 and lost.” Id . ¶ 12 (alteration in original) (internal quotation marks and citation 1 omitted). 2 {18} With respect to juror Nadine M., defense counsel agreed with the district court’s 3 statement that she should serve as a juror unless she reached the point where she felt 4 unable to serve. Defense counsel went on to state that his only concern was that 5 Nadine M. did not say she had an issue during voir dire. While we agree that the best 6 practice would be for the district court to follow up with an inquiry of the individual 7 juror under such circumstances, it was not an abuse of discretion to decline to conduct 8 an inquiry. Nadine M. did not tell the bailiff that she was biased or that she felt unable 9 to be fair, and there is no authority requi ring excusal or replacement of a juror under 10 these circumstances. See State v. Baca , 1990-NMCA-123, ¶¶ 8, 21, 111 N.M. 270, 11 804 P.2d 1089 (stating that “there is no New Mexico authority to the effect that a juror 12 [who had been the victim of a crime similar to the one charged] must be excused, in 13 spite of her initial expression of bias and experience with crime”). Moreover, we 14 assume that Nadine M. obeyed the distri ct court’s instruction that sympathy and 15 prejudice should not influence her deliberations or the verdict. See State v. Gardner , 16 2003-NMCA-107, ¶ 12, 134 N.M. 294, 76 P.3d 47 (stating that in order to conclude 17 that a prospective juror’s purportedly biasedcomment tainted the jurors who served, 18 the appellate court would haveto speculate that the juro rs disregarded the court’s 1911 instructions, despite the presumption that the jury obeys its instructions). And 1 Defendant did not present any evidence sugge sting that Nadine M. was in any way 2 biased by her prior experience with domestic violence. Id. (noting that “[the] inquiry 3 into potential jury bias focuses on [the] presence or ab sence of evidence 4 demonstrating that [the juror was] unwilling or unable to decide the case based on the 5 evidence” (internal quotation marks and citation omitted)). 6 3. Sufficiency of the evidence establishi ng the existence a of deadly weapon 7 {19} Defendant maintains that there was in sufficient evidence that Defendant used 8 a deadly weapon in his attack on Mr. Gomez. He claims that th e evidence established 9 that the only weapon Defendant could have wielded was a knife handle rather than an 10 intact knife, and the jury was never instru cted to determine whether a knife handle 11 could be deemed a deadly weapon. He poi nts to Marshal Cearley’s testimony that he 12 found the knife blade eleven feet from th e location where he found the knife handle, 13 and that the altercation between Defendant and Mr. Gomez occu rred where the handle 14 was found. Defendant further contends that becausethere was no photograph or 15 description of Mr. Gomez’s wound, the ev idence does not support the inference that 16 the injury was caused by the knife blade. 17 {20} “In reviewing the sufficiency of the evidence, we must view the evidence in 18 the light most favorable to the guilty verd ict, indulging all reasonable inferences and 1912 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 1 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We consid er “whether direct or 2 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 3 reasonable doubt with respect to every element essential for conviction.” State v. Kent , 4 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. 5 {21} The district court instructed the jury that the elements of aggravated battery 6 with a deadly weapon were: 7 1. [D]efendant touched or applie d force to Joshua Gomez with a 8 deadly weapon. [D]efendant used a kitchen knife. A kitchen knife is a 9 deadly weapon only if you find that a kitchen knife, when used as a 10 weapon, could cause death or great bodily harm. 11 2. [D]efendant intended to injure Joshua Gomez. 12 3. A reasonable person in the same circumstances as Joshua 13 Gomez would have had the same belief; 14 4. This happened in Socorro C ounty, State of New Mexico on or 15 about the 24th day of June, 2011. 16 {22} Viewing the evidence in the light mostfavorable to the guilty verdict, we 17 conclude that sufficient evidence supported the jury’s determination that Defendant 18 wielded a kitchen knife, and not just a kni fe handle, in his attack on Mr. Gomez. 19 Monica Avalos testified that when Moniquecame into the house to get her, Defendant 20 was on top of Monica hitting the top of her headwith the back side of the blade of a 2113 butcher’s knife. When Defe ndant saw Monique, he got off of Monica and went 1 outside. 2 {23} Mr. Gomez testified that he was sitting inthe driver’s seat of his van in front 3 of the Avalos residence with the van wi ndow open when Defendant ran toward him 4 and lunged at him. Mr. Gomez put his arm up, and Defendant stabbed him in the arm. 5 Mr. Gomez’s daughter yelled that Mr. Gomez was bleeding. Defendant then punched 6 Mr. Gomez and broke his glasses. Mr. Gomez got out of the van, and the two men 7 wrestled around until Mr. Gomez pinned De fendant to the ground. After Marshal 8 Cearley arrived, Mr. Gomez saw the blade of the knife without the handle. Mr. Gomez 9 went to the hospital, where he received stitches. 10 {24} Clarissa Gomez, the daughter of Ms. Aval os and Mr. Gomez, testified that she 11 was with her father when they went to pi ck up Ms. Avalos. Defendant approached the 12 van and stabbed her father in the arm. She saw th e knife after the police officer 13 arrived, and the blade was broken off. Sh e saw just the knifehandle outside the 14 driver’s door of the van. 15 {25} Marshal Cearley testified that when he arrived at the scene of the altercation, 16 he saw that Mr. Gomez was bleeding a c onsiderable amount from his left arm. 17 Marshal Cearley found a knife handle in the ar ea where Defendant had been lying, and 18 he found the knife blade about eleven f eet from the handle. The blade was about 1914 sixteen feet from the van. Wh en he identified the handle and blade at trial, Marshal 1 Cearley testified that the blade still had blood on it. He further tes tified that when he 2 questioned him, Defendant said that hetook the knife from the kitchen table. 3 {26} This evidence and its reasonable inferences support the jury’s finding that 4 Defendant used a kitchen knife when he attacked Mr. Gomez. Defendant used an 5 intact knife—handle and blade together—w hen he was attacking Ms. Avalos. Given 6 the fact that Mr. Gomez was bleeding and re quired stitches, it is reasonable to infer 7 that, Defendant stabbed Mr. Gomez with eith er the intact knife or the blade of the 8 knife. It is also reasonable to infer that the knife blade and handle separated sometime 9 during Defendant’s attack on Mr. Gomez at the van window because (1) after 10 Defendant’s initial stabbing attack on Mr. Go mez, Defendant continued attacking Mr. 11 Gomez with his fists rather than with the knife, thus s uggesting that the knife became 12 unuseable at some point; and (2) Ms. Aval os saw the blade inside the van. While 13 Marshal Cearley ultimately found the blade some sixteen feet from the van, it is 14 plausible that the blade was somehow move d to that location during the activity that 15 occurred during or after the affray between Defendant and Mr. Gomez, or after Mr. 16 Gomez and his daughter left the van. We th erefore affirm Defendant’s conviction for 17 aggravated battery with a deadly weapon. 18 4. Admission of Mr. Gomez’s testimony 1915 {27} Defendant argues that the district court should have excluded Mr. Gomez’s 1 testimony that the knife probabl y would have hit him in the heart if he had not put his 2 arm up before Defendant stabbed him. He claims that this testimony was speculative 3 or an improper lay opinion, and that, in either case, the testimony communicated an 4 unproven level of danger and intent. At trial, the onl y basis on which Defendant 5 objected to this testimony was that it was speculative. Therefore, Defendant did not 6 preserve the other bases of error that he nowargues, and we decline to consider them. 7 State v. Varela , 1999-NMSC-045, ¶¶ 25-26, 128 N.M . 454, 993 P.2d 1280 (explaining 8 that in order to preserve an issue for appeal, a defendant must make a timely objection 9 that specifically apprises the trial court of the nature of the claimed error and invokes 10 an intelligent ruling on it). 11 {28} “We review the admission of evidence under an abuse of discretion standard 12 and will not reverse in the absence of a clear abuse.” State v. Sarracino , 1998-NMSC13 022, ¶ 20, 125 N.M. 511, 964 P. 2d 72. Considering only Defendant’s argument that 14 Mr. Gomez’s testimony was speculative, we c onclude that the district court did not 15 abuse its discretion in allowing the testimony. 16 {29} Defendant primarily argues that Mr. Gomez’s testimony about where the knife 17 likely would have struck had he not raised his arm called for speculation beyond his 18 personal knowledge. He claims that Mr. Gomez did not see a knife, did not know 1916 whether Defendant held only a knife handle, and did not describeDefendant’s conduct 1 sufficiently to permit the jury to infer the angle of the blow. We disagree. Mr. Gomez 2 obviously saw the direction Defendant’s arm or hand was traveli ng because he raised 3 his own arm to ward off the blow, and his arm was cut in the process. Thus, he could 4 deduce where Defendant’s blow likely woul d have landed if hi s own arm had not 5 interrupted it. As the State observes in its brief, “[t]he general location of the heart 6 within the body is a matter of common human awareness.” We conclude that the 7 district court did not abuse its discretion in allowing this testimony. 8 5. Failure to inquire regarding potential conflict of defense counsel 9 {30} Defendant argues that a potential conf lict existed between himself and his 10 attorney and that the district court shoul d have made further inquiries about this 11 alleged conflict. He claims that the court’s failure to inquire violated his constitutional 12 right to conflict-free counse l. Notably, he does not argue that his counsel was 13 ineffective due to incompeten ce. Instead, he maintains th at counsel had a conflict of 14 interest. See State v. Martinez , 2001-NMCA-059, ¶¶ 23-24, 130 N.M. 744, 31 P.3d 15 1018 (distinguishing between a defendant’s ri ght to counsel of reasonable competence 16 and the right to counsel’s undivided loyalty). We therefore limit our discussion to the 17 alleged conflict of interest. 1817 {31} “When the record demonstrates that an actual conflict rendered counsel’s 1 assistance ineffective, prejudice is presumed , and the claim can be addressed for the 2 first time on appeal.” State v. Vincent , 2005-NMCA-064, ¶ 4, 137 N.M. 462, 112 P.3d 3 1119. “We review de novo whether there is a conflict of interest and whether 4 Defendant is entitled to a presumption of prejudice.” Id. 5 {32} In the present case, the record does notdemonstrate that an actual conflict 6 existed. The record shows only that Defendant complained to the district court at two 7 pretrial hearings that he was dissatisfied with defense counsel’s representation. On one 8 occasion, he said that counsel had not disc ussed the defense withhim, and on another 9 occasion, he said that he and defense counsel had “a fe w disagreements.” These vague 10 objections do not support the view that th ere was “an actual, active conflict that 11 adversely affect[ed] couns el’s trial performance[.]” Martinez , 2001-NMCA-059, ¶ 24. 12 “[T]he mere possibility of a conflict is insufficient.” Id. 13 CONCLUSION 14 {33} For the foregoing reasons, we affirm Defendant’s convictions. 15 {34} IT IS SO ORDERED. 16

17 CYNTHIA A. FRY, Judge 1818 WE CONCUR: 1

2 LINDA M. VANZI, Judge 3

_____________________________ 4 TIMOTHY L. GARCIA, Judge 5