This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 35,210 4 DANIEL SANDOVAL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 SUTIN, Judge. 172 {1} Defendant has appealed fro m convictions for criminalsexual penetration of a 1 minor and criminal sexual contact of a minor. We previously issued a notice of 2 proposed summary disposition in which we proposed to uphold the convictions. 3 Defendant has filed a combined memorandum in opposition and motion to amend the 4 docketing statement. After dueconsideration, we remainunpersuaded. We therefore 5 affirm. 6 {2} We previously set forth the pertin ent background information and relevant 7 principles of law in the notice of proposed summary disposition. We will avoid undue 8 reiteration here and focus instead on th e content of the memorandum in opposition. 9 {3} First, Defendant renews his challenge to the sufficiency of the evidence to 10 establish his identity as the perpetrator of the crimes. [MIO 6-8] As we previously 11 observed in our notice of proposed summary disposition, “identification does not 12 absolutely require in-court identification by a witness; it can be inferred from facts and 13 circumstances that are in evidence.” State v. Jimenez , 2003-NMCA-026, ¶ 8, 133 14 N.M. 349, 62 P.3d 1231, rev’d in part on other grounds , 2004-NMSC-012, 135 N.M. 15 442, 90 P.3d 461. In this case, the victim iden tified Defendant as th e perpetrator in the 16 course of her preliminary hearing testimony, and a victim advocate confirmed that 17 Defendant was the same pers on the victim had pointed out . [MIO 4-5] This supplies 18 ample support for the element of identity. See generally State v. Soto , 193 2007-NMCA-077, ¶ 11, 142 N.M. 32, 162 P.3d 187 (“Evidence of a direct or 1 circumstantial nature is sufficient if a reasonable mind might accept the evidence as 2 adequate to support a conclu sion.” (alteration, internal quotation marks, and citation 3 omitted)). We therefore reject Defe ndant’s first assertion of error. 4 {4} Second, Defendant continues to argue that the district court erred in admitting 5 the preliminary hearing testimony of the victim. [MIO 8-16] As we previously 6 observed in our notice, the district court admitted this evidence pursuant to Rule 11- 7 804(B)(1) NMRA. [RP 88] Defe ndant asserts that the vi ctim should not have been 8 deemed unavailable pursuant to Rule 11-804( A)(2) and/or Rule 11-804(A)(5)(a) based 9 on his conjecture that the victim never actually refused to testify but, rather, had 10 indicated that she was willing to cooperate[MIO 9, 12] and ba sed on his suggestion 11 that the prosecutor “knew how to reach the witness, but did nothing beyond issuing 12 a subpoena for her.” [MIO 11, 12] However, the record beforeus reflects that the State 13 had additionally called the vic tim on the day before trial in an attempt to obtain her 14 cooperation and had sent an advocate to physically trans port her to the courthouse in 15 an effort to secure her presence, but th e victim failed to show. [MIO 3; RP 61] 16 Moreover, we have previously held that the issuance of subpoenas is an appropriate 17 method of attempting to secure a witness’s presence at trial, and a witness’s failure to 18 appear under such circumstances supplie s an appropriate basis for a finding of 194 unavailability. See State v. Lopez , 1996-NMCA-101, ¶ 27, 122 N.M. 459, 926 P.2d 1 784. Although Defendant suggests that more should be required in this case in light 2 of the difficulties the State had experiencedin securing the witness’s appearance on 3 prior occasions [MIO 12], we disagree thatthe additional formalities should have been 4 required. We therefore conclude that the district court did not err in finding the 5 witness to be unavailable. 6 {5} Defendant further contends that the preliminary hearing testimony should have 7 been excluded because he did not have the opportunity for meaningful cross8 examination. [MIO 14-16] Ho wever, as we previously observed in our notice, our 9 Supreme Court has recognized a “per se rulethat absent extraordinary circumstances 10 preliminary hearing testimony may be admitte d at trial if the w itness is unavailable 11 because the motive to cross-examine is similar .” State v. Lopez , 2011-NMSC-035, ¶ 6, 12 150 N.M. 179, 258 P.3d 458 (empha sis added) (internal quot ation marks and citation 13 omitted). Although Defendant suggests that “n ew information” revealed after the 14 preliminary hearing, “including the fact that a safe-house interview had been done” 15 and “inconsistencies in the case[,]” should be regarded as “extraordinary 16 circumstances” warranting a departure from the per se rule [MIO 15-16], Lopez 17 indicates otherwise. The fact that devel opments may arise in the course of the 18 proceedings that might suggest new issues or avenues for the defense does not 195 diminish the applicability of the per se rule of admissibility. See id. ¶¶ 6-7, 11-12. We 1 therefore remain unpersuaded that the district court erred in admitting the victim’s 2 preliminary hearing testimony. 3 {6} Third and finally, Defendant seeks to amend his docketing statement to advance 4 a claim of fundamental error. [MIO 16-18] In the course of closing arguments, the 5 prosecutor appears to have stated that while “it would be best to have [the victim] here 6 [to testify] . . . we do not[.]” [MIO 5] He then advised the jurors that they should not 7 speculate or guess why she was not present. [MIO 5] Defendant suggests that the jury 8 should have been permitted to“consider the reasons behi nd [the victim’s] absence in 9 their weighing of the evidence” [MIO 17] and, as such, the prosecutor’s closing 10 statements “interfered with the jury’s ro le as fact-finder and judge[] of credibility.” 11 [MIO 17] However, we find no indication that any evidence was presented concerning 12 the reasons for the victim’s failure to appear. In the absen ce of such evidence, the jury 13 could only speculate, and as the prosecutor indicated, this would have been improper. 14 See generally State v. Garcia , 2014-NMCA-006, ¶ 11, 315 P.3d 331 (“A jury must 15 draw its reasonable conclusions from the ev idence produced at trial[;] it must not be 16 left to speculate in the absence of such proof.”). We therefore conclude that the claim 17 of fundamental error is not viable and deny the motion to amend on that basis. See 186 generally State v. Sommer , 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 1 (indicating that a motion to amend will be denied if the issue is not viable). 2 {7} Accordingly, for the reasons stated in our notice of proposed summary 3 disposition and in this Opinion, we affirm. 4 {8} IT IS SO ORDERED. 5

__________________________________ 6 JONATHAN B. SUTIN, Judge 7

WE CONCUR: 8

_______________________________ 9 JAMES J. WECHSLER, Judge 10

_______________________________ 11 LINDA M. VANZI, Judge 12