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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official pa per 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. 29,718 9 RICHARD SHARPE, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 12 Jane Shuler Gray, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Adrianne R. Turner, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 222 Defendant is appealing from a district court judgment and sentence entered after 1 a bench trial finding Defendant guilty of battery against a household member. We 2 issued a calendar notice proposing to a ffirm. Defendant has responded with a 3 memorandum in opposition. We affirm. 4 Issue 1 : Defendant continues to challenge the validity of the magistrate court’s 5 reliance on the written waiver of the right to a jury trial. [MIO 1] However, Defendant 6 received a de novo trial in district court, and we do not review any alleged defects in 7 the magistrate court proceeding. See State v. Foster , 2003-NMCA-099, ¶ 9, 134 N.M. 8 224, 75 P.3d 824 (observing that in a de novo tr ial, “a district court conducts a new 9 trial as if the trial in the lower court had not occurred”). 10 Issue 2 : Defendant contends that the distri ct court erred in concluding that he 11 waived his right to a jury trial. [MIO 3] Defendant states that he did not raise an 12 objection below, but he claims that the matter may be raised for the first time on 13 appeal because it involves a fundamental right . [MIO 4] However, fundamental rights 14 may be waived or lost by failing to timely invoke the ruling of the district court. See 15 State v. Pacheco , 2007-NMSC-009, ¶ 10, 141 N.M. 340, 155 P.3d 745. Accordingly, 16 our calendar notice proposed to affirm for lack of preservation. Alternatively, our 17 calendar notice proposed to affirm on the merits. 18 The district court judge informed the pa rties at a pre-trial conference that they 19 were scheduled for a jury trial. [MIO 2] The prosecutor informed the judge that 20 Defendant had waived his right in magistra te court, and the j udge responded by stating 213 that the jury trial setting was a mistake a nd that Defendant woul d be given a bench 1 trial date. [MIO 2] Defense counsel did not object. [MIO 2] 2 As we observed in our calendar notice, it appears that the judge was simply 3 noting that Defendant had previously waived his right to a jury trial, and the judge 4 would likewise proceed with a bench trial in district court. The prosecutor then 5 concurred with a bench trial. [DS 3] Give n this context, we be lieve that Defendant’s 6 behavior amounted to a know ing concurrence as well. See State v. Aragon , 7 1997-NMCA-087, ¶ 24, 123 N.M. 803, 945 P.2d 102 (observing that a defendant may 8 waive jury trial if done voluntarily, knowingly, and intelligently). To the extent that 9 Defendant is claiming that he in fact wanted a jury trial, there is no indication to that 10 effect on the record. M atters not of record cannot be reviewed on appeal. S ee State 11

v. Martin , 101 N.M. 595, 603, 686 P.2d 937, 945 (1984). In the absence of any 12 indication in the record that Defendant timely indicated that he want ed a jury trial, we 13 do not believe that Defendant has established a mistake in the process that would 14 amount to fundamental error. See State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 15 621, 92 P.3d 633 (providing that fundamental error includes both “cases with 16 defendants who are indisputably innocent, a nd cases in which a mi stake in the process 17 makes a conviction fundamentally unfair not withstanding the apparent guilt of the 18 accused”). 19 For the reasons set forth above, we affirm. 20 IT IS SO ORDERED. 214 ______________________________ 1 JAMES J. WECHSLER, Judge 2

WE CONCUR: 3

__________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5

__________________________________ 6 ROBERT E. ROBLES, Judge 7