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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-35916 4 NATHAN ROWLAND, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 7 J.C. Robinson, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Defendant appeals his convictions for aggravated assault with a deadly weapon 18 and aggravated fleeing from law enforcement. We issued a notice of proposed 192 summary disposition proposing to affirm on February 28, 2017. Defendant responded 1 with a timely memorandum in opposition, whic h we have duly considered. We remain 2 unpersuaded, and we therefore affirm. 3 {2} Defendant first continues toargue that he was denied a fair trial when the 4 district court judge improperly commented on his absence from the final stage of the 5 trial. [MIO 3-5] The facts as stated in the docketing st atement set out that Defendant 6 was present at trial in the morning, at which time all witnesses testified, the district 7 court heard the motion for directed verdict, and jury instructions were discussed. [DS 8 3] However, Defendant did not return tocourt after the lunch break. [DS 3] The 9 district court ruled that Defendant had voluntarily absented himself from the 10 proceedings, and the case should proceed in his absence. [DS 3] Prior to closing 11 argument, the district court called a sidebar and asked the parties whether they wanted 12 the court to make a statement to the jury regarding Defendant’s absence. [DS 3] 13 Defense counsel asked the district court to instruct the jury not to take Defendant’s 14 absence into account. [DS 3; MIO 3] The distri ct court instead instructed the jury that 15 Defendant had not returned after the lunc h break even though he had been instructed 16 to do so, and his lawyer could not locate him. [DS 3] The district court also instructed 17 the jury that it could not take Defendant’s absence into account. [DS 3] Defendant 18 argues that the district court should have instructed the jury only that it could not 193 consider Defendant’s absence, and he was denied a fair trial when the district court 1 informed the jury that Defendant had viol ated a court order that it otherwise knew 2 nothing about. [MIO 3] 3 {3} In our notice of proposed summary disposition, we proposed to hold that this 4 issue was not preserved. Defendant also statedthat this issue was not preserved in his 5 docketing statement. [DS 3] See Rule 12-216(A) NMRA (“To preserve a question for 6 review it must appear that a ruling or deci sion by the trial court was fairly invoked.”); 7 see also State v. Montoya , 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (“In order to 8 preserve an issue for appeal, a defendant must make a timely objection that 9 specifically apprises the trial court of th e nature of the clai med error and invokes an 10 intelligent ruling thereon.” (internal quotation marks and citati on omitted)). In his 11 memorandum in opposition, Defendant argues that his request to the district court that 12 it instruct the jury not to take his absen ce into account was sufficient to preserve the 13 issue. [MIO 3-4] We disagree. The districtcourt did instruct the jury as Defendant 14 requested. Defendant’s objection now is to the extra, potentially prejudicial, 15 information the district court relayed to the jury. Defendant made no specific objection 16 to the district court’s instruction or argue that he was being denied a fair trial by the 17 district court’s instructions. See State v. Ortiz , 2009-NMCA-092, ¶ 32, 146 N.M. 873, 18 215 P.3d 811 (“To preserve an issue for review on appeal, it must appear that 194 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 1 appellate court.” (internal quotation marks and citation omitted)). 2 {4} We therefore review this issue for plain or fundamental error. See State v. Leon , 3 2013-NMCA-011, ¶ 33, 292 P.3d 493 (“We generally do not c onsider issues on appeal 4 that are not preserved below.” (internal quotation marks and citations omitted)); State 5 v. Southworth , 2002-NMCA-091, ¶ 31, 132 N.M. 615, 52 P.3d 987 (stating that where 6 an issue is not preserved it will only be cons idered as a basis for reversal if it amounts 7 to fundamental or plain error). We hold that Defendant has not es tablished that either 8 fundamental or plain error occurred in this case. “Fundamental error only applies in 9 exceptional circumstances when guilt is so doubtful that it would shock the judicial 10 conscience to allow the conviction.” State v. Watchman , 2005-NMCA-125, ¶ 11, 138 11 N.M. 488, 122 P.3d 855 (internal quotation mark s and citation omitte d). As discussed 12 below, Defendant has provided a brief recitation of the f acts and evidence at trial. See 13 Rule 12-208(D)(3) NMRA (stating that th e docketing statement shall contain a 14 statement of all facts relevant to consider ation of the issues raised). As discussed 15 below, the evidence appears sufficient to support Defendant’s convictions for 16 aggravated assault and aggravated fl eeing a law enforcement officer. We do not 17 believe that Defendant has met his burden to show fundamental error when his 18 absence from trial was e xplained to the jury. See State v. Astorga , 2016-NMCA-015, 195 ¶ 5, 365 P.3d 53 (stating that the burden of establishing fundamental error is on the 1 party alleging it). 2 {5} Additionally, Defendant has not demonstrated plain error. See State v. Aragon , 3 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P. 2d 1211 (stating that we presume 4 correctness in the trial court’s rulings and the burden is on the appellant to 5 demonstrate trial court error). In order to appl y the plain error rule “there must be (1) 6 error, that is (2) plain, and (3 ) that affects substantial rights.” State v. Paiz , 7 1999-NMCA-104, ¶ 26, 127 N.M. 776, 987 P.2d 1163; see Rule 11-103(D) NMRA. 8 We do not believe that the district court’s factual explanation of Defendant’s absence 9 to the jury constituted plain error. See Paiz , 1999-NMCA-104, ¶¶ 19-20, 25 (finding 10 plain error only where the district court judge excessively questioned witnesses, 11 interrupted the defense counsel’s questi oning with a sarcastic question, which 12 exhibited bias against the defendant and mischaracteri zed the evidence). 13 {6} Additionally, as Defendant requested, the district court instructed the jury to not 14 take Defendant’s absence into account. [DS 3] We presume that jurors follow the 15 court’s instructions. See State v. Otto , 2007-NMSC-012, ¶ 17, 141 N.M. 443, 157 P.3d 16 8 (“We presume that the jury followe d the court’s limiting instruction.”); see also 17 State v. Smith , 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (observing that the 18 jury was instructed not to draw any inference of guilt from the fact that the defendant 196 did not testify and that such fact should not be discussed by the jurors or enter into 1 their deliberations in any way, and stating that “[j]uries are presumed to have followed 2 the written instructions”). We therefore re ject this assertion of plain error. 3 {7} Defendant also continues to challenge th e sufficiency of the evidence to support 4 his convictions for both aggravated assault with a deadly weapon and aggravated 5 fleeing a law enforcement officer . [MIO 5-8] “The test for sufficiency of the evidence 6 is whether substantial evidence of either a direct or circumstantial nature exists to 7 support a verdict of guilt beyond a reasonabl e doubt with respect to every element 8 essential to a conviction.” State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 9 P.3d 515 (internal quotation marks and citati on omitted). “In reviewing the sufficiency 10 of the evidence, we must view the eviden ce in the light most favorable to the guilty 11 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 12 in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 13 998 P.2d 176. “The reviewing court does not weigh the evidence or substitute its 14 judgment for that of the fact finder as l ong as there is sufficient evidence to support 15 the verdict.” State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 16 abrogated on other grounds by Kelsey v. Hatch , 2010-NMSC-020, 237 P.3d 683. 17 {8} We believe the evidence in this case is sufficient to support both convictions. 18 In order to convict Defendant of aggravatedassault with a deadly weapon, the State 197 was required to prove beyond a reasonable doubtthat: (1) Defendant pointed a firearm 1 at the victim, (2) Defendant’s conduct caused the victim to believethat Defendant was 2 about to intrude on his bodily integrity or personal safety by touching or applying 3 force to the victim in a rude, insolent, orangry manner, (3) a reasonable person in the 4 same circumstances as the victim would have had the same belie f, and (4) Defendant 5 used a firearm. [RP 111] See UJI 14-305 NMRA (aggravated assault with a deadly 6 weapon); see also State v. Baldwin , 2001-NMCA-063, ¶ 29, 130 N.M. 705, 30 P.3d 7 394 (stating that “[t]he jury instruction becomes the law of the case”). 8 {9} The docketing statement and memorandum in opposition recite that the victim 9 testified that Defendant pointed a gun at hi m. The victim was also shown a replica 10 firearm and testified that it looked similar towhat was pointed at him. [DS 4; MIO 1] 11 This evidence is generally sufficient to support Defendant’s conviction for aggravated 12 assault with a deadly weapon. See NMSA 1978, § 30-3-2(A) (1963) (defining 13 aggravated assault with a deadly weapon). 14 {10} The evidence is also suffici ent to convict Defendant of aggravated fleeing a law 15 enforcement officer. To meet its burden of proof, the State was required to prove that 16 (1) Defendant operated a motor vehicle, (2 ) Defendant drove willf ully and carelessly 17 in a manner that endangered the life of another person, (3) Defendant had been given 18 a visual or audible sign to stop by a uni formed law enforcement officer in an 198 appropriately marked law enforcement vehi cle, and (4) Defendant knew that a law 1 enforcement officer had given him an audible or visual signal to stop. [RP 112] 2 {11} Based on the evidence as recited in the docketing statement and memorandum 3 in opposition, at trial, Officer Jaime Serrano testified that Defendant sped past him, 4 through a red light and several stop signs. [DS 4-5] Officer Serrano testified 5 Defendant drove towards a mu lti-lane intersection where other vehicles were stopped 6 at a red light. [MIO 2] There was also a car that had been merging at a green light 7 when he and Defendant drove through the intersection on the red light, although this 8 car did not have to swerve out of the way. [DS 5; MIO 2] Officer Serrano testified that 9 he and Defendant drove through the intersection manouvering aroung the cars parked 10 at the red light. [DS 5; MIO 2] We believe this evidence is generally sufficient to 11 establish that Defendant drove willfully and carelessly in a manner that endangered 12 the life of another. See State v. Coleman , 2011-NMCA-087, ¶ 22, 150 N.M. 622, 264 13 P.3d 523 (holding that the evidence was sufficient to show that the defendant 14 endangered another where th e defendant drove at high speeds, running stop signs 15 through a residential area placing the lives of his passengers and the deputy in danger 16 during the chase). But see State v. Chavez , 2016-NMCA-016, ¶ 16, 365 P.3d 61, cert. 17 granted 2016-NMCERT-001, 370 P.3d 474 (finding insufficient evidence that the 18 defendant endangered the life of another where the uncontroverted testimony of two 199 participating officers was that the pursuit did not create a public safety concern or 1 place anyone in danger and other drivers onl y had to make simple evasive maneuvers 2 in response to emergency lights). 3 {12} For these reasons, we affirm Defendant’s convictions. 4 {13} IT IS SO ORDERED. 5

__________________ ______________ 6 TIMOTHY L. GARCIA, Judge 7 WE CONCUR: 8

_______________________________ 9 JONATHAN B. SUTIN, Judge 10

_______________________________ 11 JULIE J. VARGAS, Judge 12