This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 30,061 9 STEVEN PEREA VALDEZ, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Lisa C. Schultz, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Kathleen T. Baldrige, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 FRY, Chief Judge. 22 Defendant appeals his convic tions for two counts of aggravated assault with a 23 deadly weapon after a jury trial. We i ssued a calendar notice proposing to summarily 24 affirm. Defendant filed a memorandum in response and a motion to amend the 252 docketing statement with a new issue. Af ter due consideration, we deny the motion 1 to amend and affirm. 2 DISCUSSION 3 Evidentiary Issue 4 Defendant argues that the district court erred in admitting photographs of the 5 victims’ injuries and testimony from the victims describing those injuries to 6 demonstrate that Defendant ran into the vic tims with his vehicle. [DS 1-2, 4-5, 6; 7 MIO 5-9] Defendant argues that he objectedto the admission of the evidence because 8 it was either irrelevant or unfairly prejudi cial to the assault charges. [MIO 5-9] 9 “We review the admission of evidence under an abuse of discretion standard 10 and will not reverse in the absence of a clear abuse.” See State v. Sarracino , 1998- 11 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. Evidence is not admissible if it is not 12 relevant. Rule 11-402 NMRA. Relevant evidence is that which tends “to make the 13 existence of any fact that is of conseque nce to the determination of the action more 14 probable or less probable than it would be without the evidence.” Rule 11-401 15 NMRA. Even relevant “evidence may be excluded if its probative value is 16 substantially outweighed by the danger of unf air prejudice, confusion of the issues or 17 misleading the jury.” Rule 11-403 NMRA. “In determining whether the [district] 18 court has abused its discreti on in applying Rule 11-403, th e appellate court considers 193 the probative value of the evidence, but th e fact that some jurors might find this 1 evidence offensive or inflammatory does notnecessarily require its exclusion[.]” 2 State v. Rojo , 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829 (citations omitted). 3 “Determining whether the prejudicial impact of evidence outweighs its probative 4 value is left to the discretion of the [district] court.” Id. (alteration in original) 5 (internal quotation marks and citation omitted). 6 Defendant argues that the evidence in ques tion is not relevant to the offense of 7 aggravated assault and should have beenexcluded under Rule 11-402. [DS 4-5; MIO 8 7-8] The offense of aggravated assault c onsists of “unlawfully assaulting or striking 9 at another with a deadly weapon.” See NMSA 1978, § 30-3-2(A) (1963). The offense 10 is proscribed because it put s the victim in fear. See State v. Cowden , 1996-NMCA11 051, ¶ 12, 121 N.M. 703, 917 P.2d 972. Although Defendant does not provide us with 12 a clear understanding of the relevant facts, th e jury instructions in the record indicate 13 that the State sought to prove that Defendant was guilty of aggravated assault because 14 (1) he struck or threatened the victims w ith his automobile, (2) his conduct caused the 15 victims to believe that Defe ndant was about to intrude on the victims’ bodily integrity 16 or personal safety by touching or applying fo rce to the victims in a rude, insolent or 17 angry manner, (3) a reasonable person w ould have the same belief, and (4) an 18 automobile is a deadly weapon. [RP 67, 70] See UJI 14-305 NMRA. 194 Defendant contends that aggravatedassault does not require an actual 1 application of force or touching with intent to injure and that the jury instructions were 2 misleading because Defendant only needed to strike at and not actually strike or apply 3 force to the victims. [MIO 7] Thus, Defendant argues, photographs and testimony 4 about injuries were irrelevant to the charges of aggravated assault. [Id.] 5 We are not persuaded. Under these circumstances, evidence that Defendant 6 struck the victims with his vehicle and cau sed minor injuries could be perceived by 7 the jury to be part of the threat to th e victims. Simply b ecause Defendant actually 8 struck the victims once does not mean that the threat was over. Thus, evidence that 9 Defendant struck or threatened the victims with his vehicle is relevant to whether 10 Defendant’s actions caused the victims to reasonably believe that Defendant was still 11 about to intrude on the victims’ bodily inte grity or personal safe ty. Accordingly, we 12 hold that the evidence was rele vant to the offense of aggravated assault with a deadly 13
weapon. 14 Because the evidence is relevant to the offense of aggr avated assault, we are not 15 persuaded that the testimony of the witnesses that Defendant ran into them with his 16 vehicle was unfairly prejudicial. [DS 4-5; MIO 8-9] Defendant argues that 17 “photographs of injuries sustained from c ontact with an automobile, coupled with 18 what can only be presumed as emotional testimony from the victims about their 195 injuries, served no other purpose than as an improper appeal to the emotions of 1 jurors.” [MIO 9] Defendant also argues that wh en jurors are told thata victim is in fact 2 injured, a guilty verdict for assault is all but certain. [Id.] Contrary to Defendant’s 3 assertions, we do not perceive testimony from the victims about being struck or 4 threatened by a vehicle as unduly prejudicial as it directly related to the reasons that 5 the victims were put in f ear by Defendant’s conduct. See Cowden , 1996-NMCA-051, 6 ¶ 12. In addition, Defendant claims inhis docketing statement that the photographs 7 showed no injuries other than one minor sc rape. [DS 5] Defendant’s argument that the 8 photographs did not show a great deal of injury undermines his claim that the 9 evidence was unduly prejudicial. 10 We therefore reject Defendant’s evidentiary challenge. 11 Motion to Amend 12 Defendant seeks to amend the docketing st atement with a new issue. [MIO 9- 13 12 ] A motion to amend the docketing statement may only be granted if it is timely, 14 and if the issues are viable. See State v. Moore , 109 N.M. 119, 128-30, 782 P.2d 91, 15 100-102 (Ct. App. 1989), overruled on other groundsby State v. Salgado , 112 N.M. 16 537, 817 P.2d 730 (Ct. App. 1991). 17 Defendant argues that he received the proper uniform jury instruction for 18 aggravated assault but that the instruc tion nonetheless containe d erroneous language. 196 [MIO 9-13] Defendant contends that the language in the first element of the jury 1 instruction described the unlawful act, threat, or menacing conduct improperly by 2 requiring the jury to find that Defendant “struck or threatened” the victims with an 3 automobile. [Id. 11] Defendant contends that the jury should not have been issued the 4 same jury instruction on aggravated assault as th at used in the first trial. [Id. 12] Next, 5 Defendant contends that the unlawful act, threat, or menacing conduct was “striking 6 at” the two victims, not “striking” the two victims. [Id.] As with the first issue, 7 Defendant contends that aggravated assau lt does not require an actual application of 8 force or touching with intent to injure. [Id.] 9 Defendant concedes that the alleged error in the jury instructions was not raised 10 at trial and asks this Court to revi ew for fundamental error. [Id. 12-13] See State v. 11 Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P. 3d 1134 (noting that if an error 12 in the jury instructions has not been preserved, we review for f undamental error). In 13 reviewing for fundamental error, “we seek to determine whether a reasonable juror 14 would have been confused or misdirected by the jury instruction.” Id. 15 Defendant contends that the jury instruction was unclear because the question 16 for the jury was whether Defendant struck at the victims in this case, not whether he 17 actually struck them. [MIO 13] We are not persuaded that the jury instruction was 18 erroneous or that it led to juror confus ion. We believe the instruction clearly 197 described the unlawful act, threat, or me nacing conduct by requiring the jury to find 1 that Defendant struck or threatened the victims with his vehicle. [RP 67, 70] In 2 addition, the jury instructions required th e jurors to find that the conduct caused the 3 victims to believe that Defe ndant was about to intrude on their bodily integrity or 4 personal safety by touching orapplying force to the victims in a rude, insolent, or 5 angry manner, and that a reasonable pers on would have the same belief. [Id.] 6 Defendant does not persuade us that fundamental error occurred. Thus, we 7 conclude that the issue is not viable. Accordingly, we deny Defendant’s motion to 8 amend the docketing statement. 9 Habitual Offender Proceedings 10 Defendant argues that the district court erred in finding the State established a 11 prima facie case that Defendant had committed two prior felonies in the habitual 12 offender proceedings. [DS 6; MIO 13-16] De fendant now raises this issue pursuant 13

to State v. Franklin , 78 N.M. 127, 129, 428 P. 2d 982, 984 (1967) and State v. Boyer , 14 103 N.M. 655, 658-60, 712 P.2d 1, 4- 6 (Ct. App. 1985). [MIO 16] 15 In order to obtain a sentencing enhancement under the habitual offender statute, 16 the State must prove by a preponderance of the evidence that the defendant has prior 17 convictions. See State v. Clements , 2009-NMCA-085, ¶ 22, 146 N.M. 745, 215 P.3d 18 54. The State bears the initial burden of establishing a prima facie case of a 198 defendant’s previous convictions; the defendant is then entitled to bring forth contrary 1 evidence. See State v. Sedillo , 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051 2 (filed 2000). In order to make a prima faci e case, the State mustoffer proof of all 3 three elements: identity, conviction, and timing. See Clements , 2009-NMCA-085, ¶ 4 22. The State ultimately bears the burden of demonstrating the validity of the prior 5 convictions. Id. “In determining whether the evidence supports a criminal charge, 6 this Court views the eviden ce in the light most favor able to the [s]tate.” Sedillo , 2001- 7 NMCA-001, ¶ 6. 8 In our calendar notice, we noted that th e docketing statement indicated that the 9 State sought to enhance Defendant’s senten ce as an habitual offender by presenting 10 uncertified copies of pleadings filed with respect to a prior conviction for aggravated 11 battery with a deadly weapon in Cause No. CR-98-187. [CN 5-6] In addition, the 12 State submitted a plea and disposition agreement for a second prior offense in Cause 13 No. CR-2006-1056, in which Defendant admitte d to the aggravated battery in CR-98- 14 187. [Id.] However, the plea and di sposition agreement in CR-2006-1056 gave the 15 wrong dates for the conviction and offense in CR-98-187. [Id.] Defendant objected 16 that the State did not make a prima f acie case as to CR-98-187 because uncertified 17 copies in that cause combined with the inaccurate admission in the plea and 18 disposition agreement in CR-2006-1056 did not adequately prove the necessary 199 elements of the prior conviction of aggrav ated battery. [Id.] Due to the inaccurate 1 dates, Defendant argued that the timing element was not met because there was no 2 evidence of when Defendant’s se ntence began and ended. [Id.] 3 In our calendar notice, we stated that we would be inclined to agree with 4 Defendant that the district court erred inenhancing Defendant’s sentence if it relied 5 on uncertified pleadings and a deficient pl ea and disposition agreement as proof of 6 Defendant’s prior convictions. [CN 6-7] Ho wever, we were not persuaded that the 7 district court erred in concluding that the State met its burden because it appeared that 8 the State subsequently filed certified copies of the plea and disposition agreement and 9 the judgment and sentence filed in CR-98-187. [Id.] We presumed that these certified 10 copies were required by the district court and that they contained accurate dates of the 11 offense and conviction that matched the dates in the amended supplemental criminal 12 information. State v. Aragon , 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 13 (stating that there is a presumption of correctness in the rulings or decisions of the 14 district court, and the party claiming erro r bears the burden of showing such error). 15 Thus, we proposed to hold that by submitti ng the certified copies the State was able 16 to demonstrate that all the necessary elemen ts were met to prove the validity of the 17 prior conviction, including that it was timely. [CN 8] 1810 Defendant’s response does not dispute our presumption that the State 1 subsequently submitted certified copies of the necessary pleadings or that they 2 contained accurate dates. Instead, Defendant maintains, pursuant to Franklin and 3 Boyer , that there is no evidence in the recordas to when Defendant completed his 4 serving his sentence in CR-98-187. As it appears to be undis puted, however, that 5 Defendant was convicted in CR-98-187 on May 28, 1999, we re ject Defendant’s 6 argument. The date of the conviction establishes that Defendant’s prior conviction 7 occurred less than ten years before his c onviction in this case, which occurred on 8 September 18, 2008. We therefore affirm the district court’s sentencing. 9 CONCLUSION 10 For these reasons, and those in the cal endar notice, we affirm Defendant’s 11 convictions and sentence. 12 IT IS SO ORDERED. 13

14 CYNTHIA A. FRY, Chief Judge 1511 WE CONCUR: 1

2 JONATHAN B. SUTIN, Judge 3

4 TIMOTHY L. GARCIA, Judge 5