IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 27,715 4 ARMANDO J. ANDRADE , 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Joe Parker, District Judge 8 Gary K. King, Attorney General 9 Andrea Sassa, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Albright Law and Counseling 13 Jennifer R. Albright 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 This appeal arises out of Defendant’s conviction for one count of criminal 19 damage to property in violation of NMSA 1978, Section 30-15-1 (1963) and one 20 count of shoplifting in violation of NM SA 1978, Section 30-16-20 (2006). Defendant 21 raises several issues on app eal: (1) whether the distri ct court erred in failing to 22 provide a remedy in response to the State’s failure to file a witness list, (2) whether 232 the district court erred in allowing eviden ce of Defendant’s prior larceny conviction, 1 (3) whether the district court erred in de nying Defendant’s motion for directed verdict, 2 and (4) whether fundamental error occurred wh en the district court allowed the State 3 to discuss the theory of transferred intent. We affirm the distri ct court on all issues. 4 FACTS AND PROCEDURES 5 On June 19, 2006, Defendant and his girlfriend entered Stansell’s Thriftway in 6 Clovis, New Mexico. Mr. Stansell, the store owner, and a store employee saw 7 Defendant put two peanut brittle patties into his clothing. Mr. Stansell then 8 approached Defendant and asked Defendant for the patties. After refusing once, 9 Defendant gave Mr. Stansell the patties, and Defendant began to move toward the 10 doorway in an attempt leave the store. Mr . Stansell told Defendant that he had to 11 remain in the store because the police had been notified. As Defendant continued 12 trying to leave the st ore, store employees blocked the exit doorway. At that point, 13 Defendant kicked his foot behind him in the direction of one of the store employees. 14 He missed the employee and kicked the frontdoor of the store, cracking the glass in 15 the door. Mr. Stansell and the store empl oyees grabbed Defendant and held him 16 outside the store until police arrived. 17 Defendant was convicted in magistrate court of criminal damage to property 18 and shoplifting. Defendant appealed his c onvictions to the district court pursuant to 193 Rule 6-703 NMRA. The district court pr oceeded with a trial de novo where a jury 1 found Defendant guilty on both counts. Defendant appeals his convictions in the 2 district court. We review each of Defendant’s arguments. 3 DISCUSSION 4 The District Court Did Not Abuse Its Discretion in Refusing to Provide a 5 Remedy for the State’s Failure to File a Witness List 6 At the outset of his trial in district c ourt, Defendant orally objected because the 7 State failed to present a witness list prior to trial. The district c ourt denied Defendant’s 8 objection and proceeded with trial. Defendant now argues that the State violated Rule 9 5-501(A)(5) NMRA. Defendant claims thathe was prejudiced by not having the list 10 of material witnesses before trial and that he was unable to properly prepare for trial. 11 Specifically, Defendant argues that the outcome may have changed if he had known 12 the names of witnesses at an earlier date. Defendant asserts thathe would have been 13 able to discover the relati onships between the officers and the store owner, which 14 could have caused the witnesses’ testimony to be compromised. Defendant argues in 15 his brief that he allegedly discovered one of the officers was related to Mr. Stansell, 16 but only made this discovery after the trial was completed. The State counters that its 17 failure to provide Defendant with a new list of witnesses was inadvertent and that 18 Defendant was not prejudiced because he had notice from the magistrate court of the 19 witnesses’ names prior to trial and was prepared for cross-examination prior to trial. 204 We review the district court’s deci sion for any abuse of discretion. State v. 1 McDaniel , 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P. 3d 701. “In order to find abuse 2 of discretion, we must conclude that the decision below was against logic and not 3 justified by reason.” Id. In determining whether the district court’s actions require 4 reversal, we consider the following four factors: 5 (1) whether the [s]tate breached some duty or inte ntionally deprived the 6 defendant of the evidence[,] (2) whether the improperly non-disclosed 7 evidence was material[,] (3) whether the non-disclosure of the evidence 8 prejudiced the defendant[,] and (4) whether the [district] court cured the 9 failure to timely disclose the evidence. 10 Id. ¶ 8 (internal quotation marks and citation omitted). Defendant focuses primarily 11 on factors one and three, and therefore we confine our analysis to those two factors. 12 We consider whether the State intentionallyfailed to notify Defendant of its intended 13 witnesses and whether Defendant was prejudiced when the State inadvertently failed 14 to provide another list of w itnesses to Defendant pursuan t to Rule 5-501(A)(5). We 15 conclude that, although the State inadverten tly failed to provide another witness list, 16 Defendant had notice of the names of the witnesses prio r to trial and he was not 17 prejudiced. 18 Prior to the district court trial, De fendant knew the names of the State’s 19 witnesses because all of the witnesses who testified in th e magistrate court trial also 20 testified a second time in district court. All four witnesses werefully and adequately 215 disclosed to Defendant before jurisdiction ever transferred to the district court. 1 Defendant does not argue that he did not have proper notice of the witness information 2 prior to the commencement of the magistrate trial. Finally, the witnesses were issued 3 subpoenas prior to trial, and copies of the subpoenas were in the district court file. 4 Defendant fails to establish that he suffered any prejudice at trial based upon 5 the lack of notice of any witnesses. De fendant was not deprived of the opportunity 6 to prepare for and to cross-ex amine the State’s witnesses. See State v. Quintana , 86 7 N.M. 666, 668-69, 526 P.2d 808, 810-11 (Ct. App. 1974) (stating that one of the 8 purposes of requiring the state to disclose th e names of witnesses prior to trial is to 9 allow the defendants the opportunity to prep are for cross-examination). The district 10 court trial was Defendant’s second chance tocross-examine the witnesses because he 11 had the earlier opportunity to confront the same witnesses during his trial in 12 magistrate court. In additi on, between the first and sec ond trial, Defendant had ample 13 additional time to investigate any relationships between th e witnesses that could have 14 biased their testimony. Defendant cannot nowblame the State for any deficiencies in 15 his pre-trial investigation and preparations. 16 Defendant has failed to provide any authority to support his argument that strict 17 compliance with Rule 5-501(A)(5) is requi red by the district court when the same 18 witnesses testified a second time at the de novo appeal from a magistrate court 196 conviction. Any technical violation of Rule 501(A)(5) produced no prejudice where 1 these same witnesses appeared and testified the second time at the district court trial. 2 We conclude the district court did not abuse its discretion by allowing the witnesses 3 to testify. McDaniel , 2004-NMCA-022, ¶¶ 14-15 (stating that this Court will not 4 reverse the district court’s decision unless a defendant can demonstrate that he was 5 prejudiced by the decision and that his assertion of prejudice is more than 6 speculative); State v. Griffin , 108 N.M. 55, 58, 766 P.2d 315, 318 (Ct. App. 1988). 7 The District Court Did Not Err in A llowing Evidence of Defendant’s Prior 8 Larceny Conviction 9 At trial, Defendant argued his motion in limine to prevent the State from 10 discussing Defendant’s prior conviction for larceny. The State’s response asserted, 11 among other things, that it could introduce a prior felony conviction for dishonesty 12 under Rule 11-609(A)(2) NMRAbecause Defendant was charged with a crime of 13 dishonesty. Defendant countered that the district court must analyze whether the 14 evidence would be more prejudicial than probative under Rule 11-403 NMRA and 15 that in this case, the evidence was more prejudicial than probative and should not be 16 allowed. After a lengthy discussion, th e district court found the evidence was 17 admissible under Rule 11-609(A)(2) and the State asked Defendant about his prior 18 conviction for larceny during cross-examination. 19 On appeal, Defendant argues that the district court improperly allowed the 207 evidence to be admitted after failing to properly analyze the issue and failing to 1 perform the proper balancing test under Ru le 11-403. Defendant does not argue that 2 the district court abused its discretion, but rather that the court improperly applied the 3 law by failing to conduct the balancing test. The law is unambiguous that any 4 evidence admitted in a criminal trial is subject to Rule 11-403. Lenz v. Chalamidas , 5 109 N.M. 113, 117, 782 P.2d 85, 89 (1989) (“It is clear from Daythat the balancing 6 provision of Rule [11-]403 continues to apply to Rule [11-]609(A)(2).”); State v. Day , 7 91 N.M. 570, 575-76, 577 P.2d 878, 883-84 (Ct. App. 1978) (analyzing the language 8 of former Rule 11-609(A)(2) and Rule 11-403, concluding that the “[district] court’s 9 discretionary authority in admitting or excluding evidence under Evidence Rule [11-] 10 403 continues to apply to any evidence,” including evidence admitted pursuant to Rule 11 11-609(A)(2)). The State concedes this point. 12 The State, however, argues that the ev idence was properly admitted after the 13 district court conducted the re quisite balancing test. Wereview de novo whether the 14 district court properly applied the law to the facts in this case. State v. Martinez , 15 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232 (“A misapprehension of the law 16 upon which a court bases an otherwise discre tionary evidentiary ruling is subject to 17 de novo review.”). 18 Although the record is inconsistent and does not detail exactly how the district 198 court weighed the competing factors under Rule 11-403, sufficient statements were 1 made on the record to establish that the district court performed the balancing test 2 before ruling on the issue. Defendant repeatedly argued that the evidence was more 3 prejudicial than probative because admitti ng the evidence would have a chilling effect 4 on Defendant’s ability to testify and because the jury would see that he had committed 5 a similar crime in the past and assume he had done the crime in question as well. 6 After listening to Defendant’s arguments, the district court acknowledged several 7 times that it understood the necessity of balancing the competing interests. The court 8 stated: 9 I’ve given credit or note to your . . . able argument, and I recognize that 10 there is a competing factor betweenprejudice and probative value. I 11 recognize also that there will be some prejudice that will be imposed 12 upon the Defendant by . . . this ruling. I understand also, however, it has 13 probative value that the State is entitled to. 14 In addition, the district court limited the prejudicial impact by allowing only one 15 question to be asked by the State and no further inquiry regarding the prior conviction. 16 Reviewing the district court’s comments and recognition of the Rule 11-403 balancing 17 test, along with its ruling to limit the inqui ry about the Defendant’s prior conviction, 18 the record is sufficiently clear that the district court considered both the probative 19 value and prejudicial effects of allo wing the admission of Defendant’s prior 20 conviction. See State v. Trejo , 113 N.M. 342, 344-45, 825 P.2d 1252, 1254-55 (Ct. 219 App. 1991) (affirming the district court’s ruling to allow evidence of a prior 1 conviction when the court did not discuss on the record its thought process regarding 2 the balancing test but when its decisi on followed the defense’s arguments that 3 evidence of the prior conviction was more prejudicial than probative). 4 Finally, Defendant does not argue on appealthat the district court abused its 5 discretion when it allowed Defendant’s prio r conviction for larceny to be admitted 6 under Rule 11-609(A)(2) and Rule 11-403. This Court will not address issues that 7 were not raised on appeal. We affirm th e district court after concluding that the 8 district court did not err in admitti ng Defendant’s prior felony conviction. 9 The District Court Properly DeniedDefendant’s Motion for a Directed 10 Verdict 11 After the State presented its evidence, Defendant moved for a directed verdict 12 on the charge for criminal damage to property. Section 30-15-1 reads as follows: 13 “Criminal damage to property consists of intentionally damaging any real or personal 14 property of another without the consent of the owner of the property.” Defendant 15 argued that the State failed to present evidence that Defe ndant intentionally acted to 16 break the door. The district court denied the directed verdict motion. 17 Defendant argues on appeal that the di strict court erred by denying his motion 18 for a directed verdict, insisting that the St ate failed to prove thathe intended to cause 1910 damage to the door, in other words, that th e State failed to establish specific intent. 1 The State counters that because criminal damage to property is a general intent crime, 2 the State had to prove only that Defendant acted intentionally by kicking with his foot. 3 Consequently, the State was notrequired to prove that Defe ndant had a specific intent, 4 such as an intent to cause the specific resu lt, being the damage to the door. We agree 5 with the State’s assessment. 6 We review a ruling on a directed verdic t to determine if there was sufficient 7 evidence to support the underlying charge. State v. Sena , 2008-NMSC-053, ¶ 10, 144 8 N.M. 821, 192 P.3d 1198. “The test for sufficiency of the evidence is whether 9 substantial evidence of either a direct or circumstantial nature exists to support a 10 verdict of guilt beyond a reasonable doubt withrespect to every element essential to 11 a conviction.” Id. (internal quotation marks and citation omitted). This Court 12 “view[s] the evidence as a whole and indulge [s] all reasonable inferences in favor of 13 the jury’s verdict, while at the same time asking whether any rational trier of fact 14 could have found the essential elements of the crime beyond a reasonable doubt.” Id. 15 ¶ 10 (alteration in original) (internal quot ation marks and citations omitted). We 16 review de novo the district’s court’s application of the law to the facts. State v. 17 Barreras , 2007-NMCA-067, ¶ 3, 141 N.M. 653, 159 P.3d 1138, cert. denied , 2007- 18 NMCERT-005, 141 N.M. 763, 161 P.3d 260. 1911 General intent requires “only the intention to make the bodily movement which 1 constitutes the act which the crime requires.” State v. Contreras , 2007-NMCA-119, 2 ¶ 16, 142 N.M. 518, 167 P.3d 966 (internal quotation marks and citation omitted); 3 State v. Haar , 110 N.M. 517, 521, 797 P.2d 306, 310 (Ct. App. 1990) (“Section 30- 4 15-1 requires general in tent to do the act causing the damage and no more.”). As a 5 general intent crime, Section 30-15-1 does not require more thanthe intentional act 6 of kicking one’s foot. An accused does not need to intend the result of his actions in 7 order to be held criminally liable. UJI 14-141 NMRA (“A person acts intentionally 8 when he purposely does an act which the law declares to be a crime, even though he 9 may not know that his act is unlawful.”); see Haar , 110 N.M. at 521, 797 P.2d at 310. 10 The object that ultimately received the blowfrom Defendant’s foot is irrelevant to 11 establish general intent. Whether Defe ndant was accurate with his aim does not 12 negate the general intent to ki ck. It is only crimes of sp ecific intent that require proof 13 that Defendant intended a specific conseque nce from his intentional act of kicking. 14 The State needed to prove that Defendant had the intent to kick his foot, not the 15 intent to damage the property. See Haar , 110 N.M. at 523, 797 P.2d at 310 (holding 16 that the defendant needed to intend only to shoot the gun, not to damage the car and 17 the contents inside the car). Defendant violated Section 30-15-1 as long as 18 Defendant’s intentional act of kicking cause d the resulting damage to the door. Three 1912 witnesses testified that they saw Defendantkick the door. Defendant in his brief-in1 chief admitted the kick. He offered two defenses to his actions: (1) that he slipped 2 when being grabbed by several other men, breaking the door, or (2) that he kicked at 3 one of the men in defense of himself, misse d, and broke the door. By its verdict, the 4 jury rejected Defendant’s claimed defenses that he slipped or was defending himself. 5 Defendant’s admission on appeal that the evidence supported the conclusion that he 6 kicked the door, together with the reasonable inferences from the surrounding 7 circumstances, were sufficient for a jury to find that Defendant had the general intent 8 for criminal damage to property. UJI 14- 141 (“[I]ntent[] may beinferred from all of 9 the surrounding circumstances, such as the manner in which he acts, the means used, 10 . . . and any statements made by him.”). “Viewing the evidence in the light most 11 favorable to the [district court’s ruling] , as we must, and allowing all reasonable 12 inferences in support of the [ruling],” we hold that a jury could reasonably infer that 13 Defendant intentionally kicked his f oot and caused damage to the door. Haar , 110 14 N.M. at 522, 797 P.2d at 311. We determin e that there was sufficient evidence to 15 deny Defendant’s motion for a directed verdict. 16 No Fundamental Error Resulted fromthe State’s Transferred Intent 17 Argument 18 During the trial, the State argued that De fendant’s intent s hould be transferred 19 from kicking at the store employee to ki cking the door. The State asserted that 2013 Defendant’s “intent transfers, goes along with the kick. The kick is the intentional act, 1 not the result.” The State first presented th is theory outside the presence of the jury 2 while arguing that the district court shoul d not grant Defendant’s directed verdict 3 motion. The State also madethis argument to the jury during its closing. Defendant 4 concedes that he failed to object to the State’s argument in either instance, so we 5 review the issue on appeal for fundamental error. State v. Allen , 2000-NMSC-002, 6 ¶ 95, 128 N.M. 482, 994 P.2d 728 (“When the [district] court had no opportunity to 7 rule on [a claimed error] b ecause the defendant did not object in a timely manner, we 8 review the claim on appeal for fundamental error.”). Fundamental error “arises when 9 the prosecutor engages in misconduct that co mpromises the defendant’s right to a fair 10 trial.” State v. Rojo , 1999-NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829. We must 11 now decide whether the State’s transferred intent argument deprived Defendant of a 12 fair trial. 13 The State incorrectly argued the theory of transferred intent. The legal theory 14 of transferred intent is normally used wh en the crime is one of specific intent. State 15 v. Fekete , 120 N.M. 290, 296, 901 P.2d 708, 714 (1995). “When a criminal statute 16 matches specific intent with a specific vi ctim, the doctrine of transferred intent 17 protects an unintended victim.” Id. (providing as an example the specific intent crime 18 of murder where “a defendant, while inte nding to kill one person, accidentally kills 1914 an innocent bystander or another uninte nded victim”) (internal quotation marks 1 omitted). The theory does not normally appl y to general intent crimes because the 2 intent is to commit the action and not the intended result. Id. (“The purpose of the 3 doctrine is to impose a criminal liability upon an actor when he or she intends to 4 commit a criminal act, and the actual re sult differs from the result designed or 5 contemplated only in that a different person or property was injured or affected.” 6 (internal quotation marks and citation omitted)). 7 Nevertheless, the State’s misplaced references to transferred intent did not 8 undermine the jury’s verdict because, as we have discussed, the charged crime 9 required only a showing of general intent. By arguing transferred intent, the State 10 imposed on itself a greater burden, to pr ove specific intent. We have already 11 determined that the evidence was sufficient to establish the requisite general intent. 12 Therefore, no fundamental error resulted fro m the State’s actions because the State 13 proved more than was required. See State v. Baca , 1997-NMSC-045, ¶ 41, 124 N.M. 14 55, 946 P.2d 1066 (“Fundamental error only applies in exceptional circumstances 15 when guilt is so doubtful that it would shock the judicial conscience to allow the 16 conviction to stand.”). 17 CONCLUSION 18 We affirm the district court on all issues. 1915 IT IS SO ORDERED 1

______________________________ 2 TIMOTHY L. GARCIA, Judge 3 WE CONCUR: 4

_____________________________ 5 CYNTHIA A. FRY, Chief Judge 6

_____________________________ 7 CELIA FOY CASTILLO, Judge 8