This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,408 9 JOSEPH APODACA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Teddy L. Hartley, District Judge 13 Gary K. King, Attorney General 14 Farhan Khan, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Law Office of Craig C. Kling 18 Craig C. Kling 19 San Diego, CA 20 for Appellant 21

MEMORANDUM OPINION 22 GARCIA, Judge. 23 Defendant appeals his conviction for aggravated battery against a household 242 member contrary to NMSA 1978, Section 30-3-16(C) (2008). On appeal, Defendant 1 claims: (1) the prosecutor engaged in mi sconduct during closing argument; (2) he was 2 denied effective assistance of counsel; (3) the district court erred by not removing the 3 prosecutor from the case; and (4) the trial court erred by admitting hearsay testimony 4 from Victim’s mother. As discussed inthis opinion, we affirm Defendant’s 5 conviction. 6 FACTUAL BACKGROUND 7 Defendant was charged with aggravated battery against his girlfriend (Victim). 8 On August 23, 2007, Victim’s mother (Juan ita) was at work whenshe received a call 9 from Victim. According to Juanita, Victim was upset and had been crying. Victim 10 told her mother that she and Defendant had a fight, Defendant had choked her until 11 she passed out, and when she awoke she fledher home. When Ju anita went to meet 12 Victim, she saw that Victim was upset and crying, was nervous and scared, and had 13 red marks on her neck. Juanita called poli ce, and Officer Crow responded to the call. 14 Officer Crow testified that Victim had vi sible signs of injury on her neck, including 15 reddish-blue marks that were linear in natureand consistent with strangulation. Victim 16 told Officer Crow about the events that led to her injuries. The State issued three 17 subpoenas commanding Victim’s presence at trial, but she did not appear on the day 18 of trial. Consequently, the district court allowed Victim’s mother to testify about 193 statements Victim made to her based on th e excited utterance ex ception to the hearsay 1 rule. See Rule 11-803(B) NMRA. Defendant wa s found guilty following a jury trial 2 and now appeals. 3 DISCUSSION 4 Prosecutorial Misconduct 5 During closing argument, the State told th e jury, “the victim has decided not to 6 show up, I don’t have a victim to give you, I don’t have her, she did not want to come 7 to court, that’s fine.” Defense counsel, inhis closing argument, told the jury the “one 8 thing that you do not have is anyone that was present at the time, there was no one 9 there at the time.” Counsel also reminded th e jury that Victim’s mother testified about 10 something she heard over a year before trial. The State, in its rebuttal argument, 11 commented,“[D]efendant himself, through [his attorney], has subpoena power, he has 12 the ability to issue a subpoena.” Defens e counsel objected on the grounds that the 13 district court had already told the jurythat Defendant has “no obligation to do 14 anything.” In response, the State claimed that it was permissible to make a comment 15 that Defendant did not call someone as a witness. Following this exchange, the 16 district court directed the parties to pr oceed with closing argument. After the jury 17 submitted its verdict, defense c ounsel requested that the district court revisit the claim 18 that the State made an improper remark during closing. Defense counsel presented 194 argument and requested a mistrial. The di strict court did not grant the motion for 1 mistrial, but allowed the parties ten days to brief the issue. The State filed a brief with 2 the district court, but defense counsel did not file a brief. 3 We note that the district court did not make a ruling on this issue after 4 requesting supplemental briefing. However, the State does not raise preservation, so 5 we will address the merits of Defend ant’s argument We review claims of 6 prosecutorial misconduct for abuse of discretion. State v. Duffy , 1998-NMSC-014, 7 ¶ 46, 126 N.M. 132, 967 P.2d 807. Our ultimate determination is whether the 8 prosecutor’s conduct “had such a persuasi ve and prejudicial effect on the jury’s 9 verdict that the defendant was deprived of a fair trial.” Id. 10 The State told the jury that Victim did not come to court to testify. Defense 11 counsel then told the jury that it had not heard from anyone present at the incident, and 12 the State later informed the jury that defense counsel had the ability to issue a 13 subpoena. At most, the State’s comment was that Defendant failed to produce a 14 witness or witnesses although his counsel had the power to issu e a subpoena. The 15 State is permitted to make such comments. See State v. Estrada , 2001-NMCA-034, 16 ¶ 34, 130 N.M. 358, 24 P.3d 793 (holding that a prosecutor may comment on the 17 defendant’s failure to produ ce witnesses so long as the comment is not one on the 18 defendant’s failure to testif y). In addition, Defendant opened the door to the State’s 195 comment regarding the ability to subpoena w itnesses when his counsel argued that the 1 State did not have anyone present at trial that was present during the incident. Id. 2 (stating that where the defe ndant opened the door to comments by the prosecutor, such 3 comments do not constitute reversible error). As a result, the State’s comment about 4 Defendant’s ability to subpoena witnesses was not reversible error. We hold that the 5 district court did not abuse its discretion when it refused to grant a mistrial on the 6 basis that the prosecutor allegedly engaged in misconduct during closing arguments. 7 Ineffective Assistance of Counsel 8 On October 30, 2008, the district court allowed ten days for the parties to brief 9 two issues that were presented to the court after the verdict wa s rendered. At some 10 point after the trial and befo re sentencing, Defendant retained new counsel (Lindsey). 11 Neither Defendant’s trial counsel nor Lindsey filed the briefing allowed by the district 12 court. The State filed its brief on Oct ober 31, 2008. Defendant now claims that 13 Lindsey provided ineffective assistance of c ounsel by failing to file a brief on the issue 14 of prosecutorial misconduct and that such failure resulted in the issue “not being 15 considered by the trial court.” Defendant also contends that Lindsey did “nothing in 16 this case” but file a motion for new trial. He argues that the resu lt at trial would have 17 been different if Lindsey had filed a brief on the prosecutorial misconduct issue. 18 “When an ineffective assistance claim is first raised on direct appeal, we 196 evaluate the facts that are part of the record. If facts n ecessary to a full determination 1 are not part of the record, an ineffectiv e assistance claim is more properly brought 2 through a habeas corpus petition, although anappellate court may remand a case for 3 an evidentiary hearing if the defendant makes a prima facie case of ineffective 4 assistance.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M . 657, 54 P.3d 61. “To 5 establish a prima facie case of ineffective assistance of counsel, [the d]efendant must 6 show that (1) counsel’s performance was deficient in th at it fell below an objective 7 standard of reasonableness; and (2) that [the d]efendant suffered prejudice in that there 8 is a reasonable probability that, but for c ounsel’s unprofessional errors, the result of 9 the proceeding would have been different.” State v. Aker , 2005-NMCA-063, ¶ 34, 10 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation omitted). 11 Ineffective assistance of counsel will not be found where prejudice is not established. 12 Duncan v. Kerby , 115 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993). 13 In this case, there is nothing in the r ecord to tell us why Lindsey made the 14 choices he did. In fact, there is nothing inthe record to establish that Lindsey was 15 even aware of the supplemental briefing sche dule allowed by the district court. The 16 record before us is insufficient to estab lish the reasonable infere nce that Lindsey knew 17 about the request for a supplem ental brief. Also, if Lindsey was made aware of the 18 opportunity to file a supplemental brief, there is nothing to tell us his reasons for 197 declining to do so and alternatively filing a motion for a new trial. Finally, based 1 upon our holding that no prosecutorial mi sconduct occurred in this case, we do not 2 agree with Defendant’s assessment that the result at trial would have been different 3 if Lindsey had filed a brief on the issue. We hold that Defendant has failed to present 4 a prima facie case for ineff ective assistance of counsel. 5 Disqualification of the Prosecutor 6 Defendant claims that he argued to the district court that the prosecutor should 7 be disqualified because he made himself a witn ess in the case. On the day before trial, 8 the prosecutor had a conversation with Vi ctim. Victim told the prosecutor that 9 Defendant did place his hands on her but did not choke her and th at the marks on her 10 neck were due to hickies. Defense counselclaimed that this wa s exculpatory evidence 11 that was not disclosed, while the State ar gued that defense counsel and another public 12 defender were told about th e conversation on the same day of the encounter. The 13 matter was discussed a number of times on the day of trial. Howe ver, there is nothing 14 in the record to support Defendant’s claim thathe asked the district court to disqualify 15 the prosecutor. See State v. Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 16 1280 (explaining that to preserve an issue for appeal, a timely objection must be made 17 that specifically apprizes the district court of the nature of the claimed error and 18 invokes an intelligent ruling). Defendant does not provide any citation to the record 198 to support his claim. See State v. Rojo , 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 1 P.2d 829 (filed 1998) (holding that the appellatecourt will not search the record for 2 evidence of preservation when the defendant did not provide adequate transcript 3 references). We will not consider an issue that was not raised in the district court 4 unless the issue involves a matter of jurisdic tional or fundamental error. Rule 12-216 5 NMRA; In re Aaron L ., 2000-NMCA-024, ¶ 10, 128 N.M . 641, 996 P.2d 431. There 6 is nothing to suggest that the issue raised by Defendant on appeal involves 7 jurisdictional or fundamental error. Becau se the issue of disqualification was not 8 raised or properly preserved, we will not address it. 9 Admission of Evidence 10 Defendant claims that the district court violated his right to confrontation under 11 the New Mexico Constitution by admitting hearsay testimony from Juanita, Victim’s 12 mother. More specifically, Defendant relies on State v. Lopez , 1996-NMCA-101, 13 ¶¶ 14-25, 122 N.M. 459, 926 P.2d 784, to contend that the State failed to prove Victim 14 was unavailable and that the State had made reasonable attempts to locate her. 15 Defendant does not argue that the testim ony should not have been admitted under the 16 excited utterance hearsay exception. Defendant has not directed us to a location in the 17 record where he objected on the basis that th e State failed to establish that Victim was 18 unavailable and consequently, that the admission of the evidence violated his 199 confrontation rights under the New Mexico Constitution. The issue of whether the 1 State had an obligation to establish the unavailability of Victim before utilizing her 2 statements as an excited utterance must be preserved by Defendant. Therefore, 3 Defendant failed to preserve his Confrontation Clause arguments in the district court. 4 See Rule 12-216; Rojo , 1999-NMSC-001, ¶ 44; State v. Gomez , 1997-NMSC-006, 5 ¶ 22, 122 N.M. 777, 932 P.2d 1 (explaining th at in order to preserve a state 6 constitutional issue for appeal, a litigant mustassert the constitutional principle that 7 is the basis for the objection and develop th e facts at issue). Defendant’s argument 8 that he did not have to preserve his objections to Juanita’s testimony because the 9 prosecutor misstated the law during the discussi on of the issues with the district court 10 is meritless. See Rule 12-216; State v. Garvin , 2005-NMCA-107, ¶¶ 12-21, 138 N.M. 11 164, 117 P.3d 970 (noting that the doctrines of fundamental error and cumulative error 12 apply to issues of prosecutorial misconduct arising from misstatements of the law that 13 are not objected to or preserved at trial). 14 Defendant also argues that we shoul d review his Confrontation Clause 15 arguments for plain or fundamental error. This Court will analyze Confrontation 16 Clause arguments that have not been preserved at trial under the doctrine of 17 fundamental error. See State v. Dietrich , 2009-NMCA-031, ¶ 51, 145 N.M. 733, 204 18 P.3d 748, cert. denied , 2009-NMCERT-002, 145 N.M 704, 204 P.3d 29. “A 1910 fundamental error occurs where there has beena miscarriage of justice, the conviction 1 shocks the conscience, or substantial justi ce has been denied [or when the district] 2 court’s error was of such magnitude th at it affected the trial outcome.” Id. ¶ 52 3 (internal quotation marks and citations omitted). 4 The Confrontation Clause prohibits the admission of testimonial hearsay 5 statements unless the declarant is unavailable and the defendant had a prior 6 opportunity to cross-examine the declarant. State v. Ortega , 2008-NMCA-001, ¶ 14, 7 143 N.M. 261, 175 P.3d 929 (filed 2007). If hear say statements are non-testimonial, 8 the Confrontation Clau se does not apply. See State v. Henderson , 2006-NMCA-059, 9 ¶ 13, 139 N.M. 595, 136 P.3d 1005. Thus, the que stion to be addressed in this case 10 is whether Victim’s statements to her mother were testimonial or non-testimonial. 11 In a similar case, we addressed a claime d Confrontation Clau se violation based 12 on the admission of hearsay statements from a victim of domestic violence. See State 13 v. Romero , 2006-NMCA-045, ¶¶ 62-68, 139 N.M. 386, 133 P.3d 842, aff’d by , 14 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694. In Romero , the victim ran up to an 15 officer, she was crying and asking for help, she had watery eyes and red marks on her 16 neck, and she told the officer that the defe ndant had choked her, held a knife to her 17 throat, and threatened to kill her. 2006-NMCA-045, ¶ 62. The statement was 18 admitted as an excited utterance or a present sense impression. Id. We looked at the 1911 officer’s primary goal in receiving the in formation from the vi ctim and determined 1 that there were no “articulable indications th at either the officer or the declarant was 2 trying to procure or provide testimony.” Id. ¶¶ 63, 66-67. Instead, the primary goal 3 was to provide aid to the victim. Id. ¶¶ 66-67. Therefore, weheld that the victim’s 4 statements were non-testimonial, and were properly admitted at trial. Id. ¶ 68. 5 Similarly, in this case, Victim made st atements to her mother shortly after the 6 incident and while she was still upset and crying. Victim stated that Defendant 7 choked her until she passed out. Juanita al so observed Victim’s demeanor and the 8 injuries on her neck when they met shortly thereafter. There are no “articulable 9 indications” in this case that either Victim made the statements or Victim’s mother 10 heard the statements for purposes of procuring or providing testimony for trial. 11 Victim’s statements were made under circ umstances where she was seeking aid and 12 assistance from her mother. Therefore, th e statements were non-testimonial. The 13 Confrontation Clause does not apply to the non-testimonial statements made to 14 Victim’s mother. There was no fundamental error in this case. 15 CONCLUSION 16 Based upon the holdings set forth herein , we affirm Defendant’s conviction. 17 IT IS SO ORDERED. 18

______________________________ 1912 TIMOTHY L. GARCIA, Judge 1

WE CONCUR: 2

_________________________________ 3 CYNTHIA A. FRY, Chief Judge 4

_________________________________ 5 LINDA M. VANZI, Judge 6