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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,131 9 PHILLIP WILLIAMS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Albert S. “Pat” Murdoch, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Anne Kelly, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Will O’Connell, Assistan t Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 23 GARCIA, Judge. 24 Defendant appeals from his convictions for second degree murder and 252 tampering with evidence. Defendant raises numerous issues on appeal that we have 1 duly considered. We affirm Defendant’s convictions. 2 BACKGROUND 3 In the early morning hours of August 5, 2003, Josephine Chacon (Victim) was 4 stabbed to death in the parking lot of th e Sandia Casino as she was getting into her car 5 after her shift as a cashier. She was st abbed eighteen times. No one observed the 6 slaying. Suspicion focused on Defendant because he and Victim had been 7 romantically involved, Defendant left New Mexico immediately after the killing, 8 Defendant’s cell phone was found in the posse ssion of a man who told police that he 9 found the cell phone near a bloody knife that turned out to be the murder weapon, and 10 Defendant’s fingerprint was recovered from the scene imprinted in a smear of what 11 the State maintained was Victim’s blood. 12 The man who had found Defendant’s ce ll phone led police to the place where 13 he found it, and the police recovered the bloody knife as well as a cell phone belt clip 14 that matched Defendant’s cell phone. Through DNA testing, a serologist concluded 15 that the blood on the recovered knife was Victim’s blood. Through blood spatter and 16 fingerprint experts, the State presented tes timony that the fingerprints (a clear one and 17 one that was more smudged) on Victim’s car matched two of Defendant’s fingerprints. 18 The testimony also established that the clearer print was at the edge of a blood smear 193 of Victim’s blood. Finally, this same bl ood smear was created as part of the same 1 event creating the ridged fingerprint, according to the State’s expert. 2 The State presented additional testimony that Victim had moved out of 3 Defendant’s apartment about two months prio r to her death and that she had received 4 threatening telephone calls from Defendant in the weeks before she was killed. 5 Defendant abandoned his job and left New Mexico the day after the murder. The 6 United States Marshal Service Fugitive Ta sk Force found and arrested Defendant in 7 Philadelphia in May 2005, almost two year s after the murder, living under an alias. 8 Defendant testified in his own defense, stating that he had nothing to do with 9 Victim’s death and offering analternate explanation for the murder, for leaving New 10 Mexico, and for the presence of his fingerpri nts at the scene of the crime. Defendant 11 sought to demonstrate that the murder wa s motivated by robbery or that it was the 12 result of an unprovoked assault by a third party, possibly the man who found 13 Defendant’s cell phone. Defendant testified that he fl ed New Mexico because he had 14 planned to go on the road and move back East. Defendant further testified that 15 because he heard his name on the news, hewas afraid. He testified that his 16 fingerprints were on Victim’s car because Victim drove to his apartment the day of 17 the murder for a short visit. 18 In rebuttal, Victim’s son testified that hi s mother slept in late that day and that 194 she never took the car out until she went to work that night. Defendant was convicted 1 of second degree murder and tampering w ith evidence. This appeal followed. 2 DISCUSSION 3 Issue 1 - Admission of Expert Opinion Testimony 4 “The rule in this State has consiste ntly been that the admission of expert 5 testimony or other scientific evidence is p eculiarly within the sound discretion of the 6 trial court and will not be re versed absent a showing of abuse of that discretion.” State 7 v. Fry , 2006-NMSC-001, ¶ 55, 138 N.M. 700, 126 P.3d 516 (filed 2005) (internal 8 quotation marks and citation omitted); see State v. Alberico , 116 N.M. 156, 169, 861 9 P.2d 192, 205 (1993). Rule 11-702 NMRA governs the admissibility of scientific 10 evidence: 11 If scientific, technical or other specialized knowledge will assist 12 the trier of fact to understand the evid ence or to determine a fact in issue, 13 a witness qualified as an expert by knowledge, skill, experience, training 14 or education may testify thereto in the form of an opinion or otherwise. 15 Our Supreme Court explained the three prer equisites in Rule 11-702 for the admission 16 of expert opinion testimony. Alberico , 116 N.M. at 166, 861 P.2d at 202. First, the 17 expert must be qualified. Id. Second, the testimony must “a ssist the trier of fact.” Id. 18 Third, the “expert may testify only as to scientific, technical or other specialized 19 knowledge.” Id. (internal quotation marks and citation omitted). Given the 20 capabilities of jurors and the liberal thrust of the rules of evidence, however, our 215 courts have held that “any doubt regardi ng the admissibility of scientific evidence 1 should be resolved in favor of admission, rather than exclusion.” Lee v. Martinez , 2 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d 291. 3 A. Opinion testimony by Agent Arthur 4 Latent fingerprint (LP6), which witnesse s identified as Defendant’s fingerprint, 5 was lifted from the outside driver’s side window of Victim’s car along with a sample 6 of smeared blood (RS23), which witnesses identified as Victim’s blood. The RS23 7 test sample was taken about two inches from the ridge detail of LP6. Prior to trial, 8 Defendant filed a motion in limine, objecti ng to the State’s witness, Agent Arthur, 9 testifying at trial that LP6 was imprinte d in blood or was a bloody fingerprint, because 10 there had been no testing of the fingerprint itself to determine in what substance it was 11 made. At the hearing on the motion, the district court ruled, and defense counsel 12 agreed, that while Agent Arthur could not st ate conclusively that the fingerprint was 13 made in blood, the State’s witnesses could say the fingerprint wa s in “what appeared 14 to be blood.” 15 Later during the trial, the State asked Agent Arthur, “Is RS23 directly from a 16 portion of LP6?” Before Agent Arthur re sponded to the question, Defendant objected 17 on scientific foundational grounds. A be nch conference ensued where Defendant 18 explained, “my objection is going to be interms of trying to link the two together 196 since one has not been tested, it is a scien tific challenge to that testimony in their 1 foundation that he is a fingerprint expert or that he knows the results of the 2 fingerprints.” The court overruled the objecti on and allowed “a ques tion as to whether 3 it was part of the same event.” The State then asked Agent Arthur, “Was the smeared 4 portion and the ridged portion part of the same event?” Agent Arthur replied, “Yes.” 5 On appeal, Defendant continues to argue that Agent Arthur should not have 6 been allowed to assert “that the fingerprint had been made in blood,” because the 7 substance in which the fingerprint wa s made was not actually submitted for 8 serological testing. He further argues “that he was deprived of a fair trial when the 9 State’s witness was allowed to simply assumethat the latent fingerprint was made in 10 blood without establishing, for a fact, that it was or was not.” We are not persuaded 11 by Defendant’s arguments. 12 Defendant characterizes Agent Arthur’s testimony that RS23 and LP6 were part 13 of the same event as an unsubstantiated assumption that the ri dged fingerprint was 14 made in blood. Even if we agree with th is characterization, we cannot conclude that 15 the district court abused its discretion in allowing the testimony. Defendant stipulated 16 that Agent Arthur was a crime scene inves tigator expert. Agent Arthur testified at 17 length about the different patterns of blood sp atter he found at the scene. On cross18 examination, Defendant had ample opportunity to demonstrate any weakness in Agent 197 Arthur’s opinion. Defendant established th at Agent Arthur was not a fingerprint or 1 DNA expert and that Agent Arthur did not perform any of the laboratory tests on the 2 samples. Defendant also established that it was possible to test the fingerprint but that 3 the State had failed to request that the fingerprint be tested. Furthermore, the State 4 acknowledged that RS23 was taken two inches from LP6. Agent Arthur’s opinion that 5 RS23 was one smear that ended in LP6 and constituted one event, a single smear 6 ending in a fingerprint, was within the area of his investigative expertise. The basis 7 for Agent Arthur’s investigative opinion was fully explored. Under the 8 circumstances, the challenge ba sed on the Agent’s failure to test the smear at the exact 9 location of the fingerprint was not a matter of admissibility but went to the weight of 10 the testimony, which was a matter for the jury to decide. See State v. Anderson , 118 11 N.M. 284, 301, 881 P.2d 29, 46 ( 1994) (“The assessment of the validity and reliability 12 of the conclusions drawn by the experts, howev er, is a jury question. The jury is free 13 to believe or disbelieve the expert testimony.”). We affirm the ruling of the district 14 court on this issue. 15 Defendant further contends that it was improper to pl ace an expert on the stand 16 to merely express a view of the evidence th at is within the co mmon experience of lay 17 jurors. Defendant argues, therefore, that to “the extent that the physical evidence 18 permitted an inference that the fingerprint was made in the same substance as the 198 bloodstain that was actually tested, [Agent] Arthur should not have been allowed to 1 bolster the inference with his credentials as ‘a crime scene expert.’” Defendant did 2 not preserve these arguments below, and wedecline to addre ss them on appeal. See 3 Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a 4 ruling or decision by the district court was fairly invoked[.]”); State v. Reyes , 2002- 5 NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d 948 (dec lining to review the merits of the 6 defendant’s argument on appeal because it was not preserved). 7 B. Qualifying the fingerprint expert 8 The State called Shirley Garcia to te stify as an expert in fingerprint 9 identification. Garcia testified that th e fingerprint, LP6, lifted from the driver’s 10 window of Victim’s car at the edge of the smear, RS23, matched Defendant’s 11 fingerprints. Defendant contends that the district c ourt erred in finding that Garcia 12 “had the knowledge, skill, experience, training, or education needed to testify as a 13 fingerprint identification expert.” Defendant asks this Court to carefully scrutinize the 14 district court’s decision to qualify Garcia as a fingerprint expert. We must carefully 15 review the record as to Garcia’s qualifi cations under an abuse of discretion standard 16 of review. Fry , 2006-NMSC-001, ¶ 55. 17 In State v. Hernandez , 115 N.M. 6, 24, 846 P.2d 312, 330 (1993), the Supreme 18 Court held that a trial court did not abuse its discreti on in qualifying a trace evidence 199 expert, who matched hairs from the crime scene to those of the victim and others. The 1 expert did not have a scientif ic education but instead had sixteen years of training and 2 experience performing trace evidence an alysis, including hair analysis. Id. The 3 Supreme Court noted that the language of Rule 11-702 is in the disjunctive so that a 4 witness may be qualified by “knowle dge, skill, experience, training or education.” Id. 5 (emphasis added); see State v. McDonald , 1998-NMSC-034, ¶ 20, 126 N.M. 44, 966 6 P.2d 752 (stating that “[t]he variety of ba ses for qualifying an expert comports with 7 the wide discretion given the trial judge in th e matter”). The Court also noted that any 8 perceived deficiency in the expert’s education and training, more over, is relevant to 9 the weight accorded by the jury to the e xpert’s testimony and not to the testimony’s 10 admissibility. Hernandez , 115 N.M. at 24, 846 P.2d at 330. 11 Garcia testified that she wa s a forensic scientist in fi ngerprint and shoe and tire 12 track analysis for the New Mexico Department of Public Safety. She also testified 13 that she had been doing fingerprint analysis for over twenty years, since 1984, and that 14 she had been in her current position for thirteen years. Most of Garcia’s training in 15 fingerprint analysis was through the FBI where she received specialized training in 16 fingerprint and palm print identification. Garcia has a diploma from the American 17 Institute of Applied Science (AIA) where she studied several areas of forensic science, 18 focusing primarily on fingerprint identificati on. She has completed yearly proficiency 1910 testing in the area of fingerprints and ha s attended schools and conferences to keep 1 abreast of the latest technology. Garcia further testified that she has taught at the law 2 enforcement academy and the community college, that she has analyzed “[h]undreds 3 of thousands of fingerprints,” has testified in court, and that she has been qualified 4 previously as a fingerprint identification expert. 5 Over Defendant’s objection on “[f]oundation,” the district court qualified 6 Garcia as an expert in the field of fingerprint identification, analysis, and comparison. 7 After reviewing the record, we cannot say that the district court abused its discretion 8 in qualifying Garcia as an expert in fingerprint identification. See McDonald , 1998- 9 NMSC-034, ¶¶ 10, 20 (holding that the trial court did not abuse its discretion in 10 qualifying a witness in DNA analysis who held a bachelor’s degree in biology, had 11 training in a University of New Mexico c ourse in molecular biology, and had taken 12 a course in DNA analysis); Hernandez , 115 N.M. at 24, 846 P.2d at 330 (holding that 13 a hair analysis expert is sufficiently qualified based solely upon his training and 14 experience). We note that, despite Defendant’s contentions, there was no evidence or 15 authority before the district court indicating that certification from the IAI was a 16 necessary “minimum qualification” in th e area of fingerprint identification. Cf. State 17 v. Padilla , 66 N.M. 289, 298-99, 347 P.2d 312, 318- 19 (1959) (holding that under the 18 circumstances of that case, that particul ar psychologist did not possess the required 1911 education and experience to testif y as to the defendant’s sanity). 1 After she was qualified as an expert, Garc ia testified about fingerprint analysis 2 in general and opined that LP6 contained more than e nough ridge detail to make a 3 comparison to Defendant’s prints. She al so testified that she was “100 percent” 4 positive that LP6 was a match for Defendant’s fingerprints, and she noted that LP6 5 was very clear, which made th e comparison analysis easy. Any alleged deficiency in 6 Garcia’s training and education is “relevant to the weight accorded by the jury to [the] 7 testimony and not to the testimony’s admissibility.” See McDonald , 1998-NMCA8 034, ¶ 21 (alteration in original) (internal quotation marks and citation omitted). As 9 appropriate under the applicablelaw, we defer to the jury’s determination of the facts. 10 See State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M . 438, 971 P.2d 829 (filed 1998). 11 We affirm the district court’s decision to qualify Garcia as an expert in fingerprint 12 identification analysis. 13 C. Admission of Detective Applegate’s testimony 14 Defendant argues that the district court “erred in allowing [Detective 15 Applegate] to testify that his specialist training allowed him to understand that 16 [Victim’s] killer was motivated by rage orjealousy.” We interpret Defendant’s 17 argument on appeal to be that Detectiv e Applegate’s testimony was not appropriate 18 and improperly introduced as “profile evid ence.” Defendant only objected during the 1912 trial to Detective Applegate’s testimony ba sed on lack of foundation and because the 1 witness was “telling the jury how to interpret evidence.” Thereafter, the State and the 2 court established a sufficient foundation for Detective Applegate to testify about his 3 investigative techniques as the lead state po lice crime scene inves tigator at the scene. 4 Detective Applegate explained his background training and experience in homicide 5 investigation, including specialized traini ng in establishing potential suspects based 6 upon the nature of the crime and how it was committed. The court overruled 7 Defendant’s objections. De fendant never objected that the testimony was being 8 improperly admitted as profile evidence. Defendant does not challenge the district 9 court’s rulings based upon the objections madeat trial, foundation and interpreting the 10 crime scene evidence. We decline to rule on Defendant’s new profiling argument 11 because he did not preserve this argument. See Rule 12-216(A); Reyes , 2002-NMSC12 024, ¶ 41. 13 Issue 2 - Admission of Hearsay Testimony 14 We review the district court’s admission of hearsay statements for an abuse of 15 discretion. State v. Balderama , 2004-NMSC-008, ¶ 46, 135 N.M. 329, 88 P.3d 845. 16 “The New Mexico Rules of Evidence prohibit the use of out-of-court statements, 17 offered to prove the truth of the matter asserted, unless such a statement falls into a 18 recognized hearsay exception and is re levant and otherwise admissible.” Id. ; see Rule 1913 11-401 NMRA; Rule 11-403 NMRA; Rule 11-801 NMRA (describing the hearsay 1 rule). “[I]f an out-of-court statement is offered in evidence merely for the purpose of 2 establishing what was said at the time, and not for the truth of the matter, the 3 testimony is not hearsay.” Reyes , 2002-NMSC-024, ¶ 29. In addition, statements 4 offered for a purpose other than their truth are not hearsay. Rule 11-801(C); see State 5 v. Rosales , 2004-NMSC-022, ¶ 16, 136 N.M. 25, 94 P.3d 768 (“Extrajudicial 6 statements or writings may properly be receive d into evidence, not for the truth of the 7 assertions therein contained, or the verac ity of the out-of-court declarant, but for such 8 legitimate purposes as that of es tablishing knowledge, belief, good faith, 9 reasonableness, motive, effect on the hearer or reader, and many others.” (emphasis 10 omitted) (internal quotation marks and citation omitted)). 11 A. Aragon testimony 12 Defendant argues on appeal that the di strict court erred in allowing Tiffany 13 Aragon, Victim’s friend and co-worker at the casino, to testify that on the day of the 14 incident, she heard Victim tell Defendant over the phone, “[W]hy can’t you leave me 15 alone?” The State contends that Defendant did not adequately preserve his objection. 16 During a bench conference at trial, Defendant objected that the statement should not 17 be allowed as an excited utterance. De fendant argued that an angry reaction to a 18 consensual cell phone call is an insufficient basis to find an excited utterance. The 1914 district court issued a conditional ruling, st ating that if the State could establish that 1 the statement was made while Victim wa s “undergoing the stress of the excitement 2 caused by the event or condition,” it would allow the testimony. The State continued 3 with questioning, and Aragon testified that she heard Victim ask, “[W]hy can’t you 4 leave me alone?” Aragon also testified that Victim was extremely angry about the 5 messages and that she knew Vi ctim was upset because Vic tim was yelling, which she 6 did not usually do. Defendant neither re newed his original objection nor offered an 7 objection on the basis that the State had failed to lay a proper foundation for the 8 excited utterance exception. We hold that Defendant failed to preserve his objection 9 for appeal after the requested excited u tterance foundation had been presented by the 10 State without further objection. See Rule 12-216(A); State v. Vallejos , 1998-NMCA11 151, ¶ 31, 126 N.M. 161, 967 P. 2d 836 (holding that the defendant did not preserve 12 the objection on an alleged discovery violation when he failed to renew the objection 13 after the trial court deferred ruling). 14 B. Gallegos testimony 15 Defendant argues that the district c ourt improperly allowed Lawrence Gallegos, 16 Victim’s brother, to testify that Defendant used a phone other than his own to call 17 Victim. Specifically, Defendant contends th at the testimony was hearsay and that the 18 State did “an end run around” the districtcourt’s ruling on hearsay regarding what 1915 Victim told Gallegos about Defendant using another phone to call her. We agree with 1 Defendant. 2 The State wanted to introduce the testim ony of Gallegos that Victim told him 3 that Defendant began using a different phone to contact her several days before her 4 death. During a bench conference, the district court ruled that such testimony would 5 be inadmissible hearsay and refused to qualify Victim’s statements for admission as 6 excited utterances, as the State contended. As such, Gallegos testified that Victim 7 became upset by the number of phone calls that she received from Defendant and 8 stopped answering the phone. The State thenasked Gallegos what he “notice[d], if 9 anything, about when [Victim] does answ er her phone on some occasions?” Gallegos 10 answered, “He’d catch her off guard and call from a different number.” Defense 11 counsel objected on “[l]ack of foundation and speculation,” but the district court 12 overruled the objection, telling the prosecuto r to go ahead but to move onto another 13 area. The prosecutor then asked Gallegos, “Can you describe just her actions when 14 that happened, just her actions?” Galle gos answered, “Just angry. Angry.” 15 We agree with Defendant that the State did not lay the proper foundation for the 16 objectionable testimony. Before introducing th e testimony, the State had to establish 17 that Gallegos had personal knowledge that Defendant w ould call Victim from other 18 phone numbers. See Rule 11-602 NMRA (“A witness may not testify to a matter 1916 unless evidence is introduced sufficient tosupport a finding that the witness has 1 personal knowledge of the matter.”). The St ate, however, did not present evidence to 2 establish that Gallegos had personal knowle dge of this differe nt phone number being 3 used by Defendant. The State did not pres ent evidence that Gallegos either saw the 4 other phone numbers on Victim’s phone or had other personal knowledge that 5 Defendant used phone numbers other than his own to call Victim. The State was 6 unable to rely upon Victim’s statement to Gallegos as the basis to lay the necessary 7 foundation for this different phone number testimony because it was inadmissible 8 hearsay. The necessary foundation fo r the objectionable testimony was never 9 presented by the State. Therefore, the district court abused its discretion in allowing 10 this phone number testimony, which relie d upon Victim’s inadmissible hearsay 11 statement as the only foundation for its admissibility. 12 Despite this erroneous evidentiary ruling, we agree with the St ate that the error 13 was harmless. The alleged error in this case is non-constitutional because the error 14 Defendant establishe d was only on evidentiary grounds. See State v. Barr , 2009- 15 NMSC-024, ¶ 58, 146 N.M. 301, 210 P.3d 198 (reviewing a statement improperly 16 admitted under the rules of evidence for harmless error under the non-constitutional 17 standard). “[N]on-constitutional error is reversible only if the reviewing court is able 18 to say, in the context of the specific eviden ce presented at trial, that it is reasonably 1917 probable that the jury’s verdict would have been different but for the error.” Id. ¶¶ 54- 1 56 (recognizing the factors for determini ng harmless error are “(1) substantial 2 evidence to support the conviction withoutreference to the improperly admitted 3 evidence; (2) such a disproportionate volume of permissible evidence that, in 4 comparison, the amount of improper evid ence will appear minuscule; and (3) no 5 substantial conflicting evidence to disc redit the [s]tate’s testimony.” (footnote 6 omitted)). The State did not rely upon or repeat Gallegos’ statement. The fact that 7 Defendant threatened and harassed Victim by telephone in the weeks and on the day 8 of the murder was supported by other testimony. Aragon testified that on the day of 9 the murder she heard a message on Victim’s cell phone saying, “Y ou’re dead to me.” 10 Gallegos testified that he had previouslyheard messages from Defendant to Victim 11 that said, “Bitch, you come into my life, you wreck it[,] and I’ll kill you. . . . You’re 12 already dead to me. . . . You’ll pay. You will pay.” The jury saw, through 13 photographs and testimony, the extensive and brutal nature of the attack on Victim. 14 The physical evidence of the knife c overed with Victim’s blood found near 15 Defendant’s cell phone and cell phone belt and Defendant’s fingerp rint in a single 16 smear of Victim’s blood greatly diminish the strength of Gallegos’ improper 17 testimony. Finally, no conflicting evidence wa s offered to attribute the “off guard” 18 phone calls to a different caller. We are satisfied that there is no reasonable 1918 probability that error in the admission of Gallegos’ improper statement affected the 1 verdict. 2 C. Becerra’s prior written statement 3 Defendant argues that Robert Becerra, w ho worked at Sandia Casino at the time 4 of Victim’s death, was improperly allowed to read into the reco rd his statement that 5 he gave to casino security the night of Victim’s murder. Rule 11-803(E) NMRA 6 provides as follows: 7 Recorded recollection. A memorandum or record concerning a matter 8 about which a witness once had know ledge but now has insufficient 9 recollection to enable the witness totestify fully and accurately, shown 10 to have been made or adopted by the witness when the matter was fresh 11 in the witness’s memory and to reflect that knowledge correctly. If 12 admitted, the memorandum or record may be read into evidence but may 13 not itself be received as an exhib it unless offered by an adverse party. 14 In Becerra’s statement, he said that he arrived at the old casino parking lot at about 15 7:50 p.m. for his work shift and saw an A frican-American man in a red car that looked 16 like a Ford Fiesta. The man was weari ng a baseball cap and smoking a cigarette. 17 Becerra watched him because it looked like hewas trying to open cars. When the 18 shuttle arrived, Becerra asked the driver to call security, and Becerra then saw the 19 suspicious man drive away. 20 At trial, Defendant first objected to th e admission of the statement on the basis 21 that Becerra could not remember making it. The issue of Becerra’s recollection of 2219 making the statement was then fully explored . Becerra explained that some time after 1 making the statement to security, he wa s involved in a serious car accident that 2 affected his memory. Becerra expressed someconfusion about his statement to casino 3 security and a police report that he had made when his house was burglarized around 4 the same time. Becerra also testified, how ever, that while he could not recall the 5 details of the statement, he recalled making the statement, he had no reason to lie 6 about it, and he stated, “This is a factual statement that I made at that time.” The 7 district court noted that Becerra seemed confused about only whether his statement 8 to casino security should be called a police report. The State then pointed out that 9 Becerra knew that he made a statement and th at his statement was the one in question 10 at trial. In response, defense counsel agreed that “[i]f that’s what the testimony was,” 11 the statement could be read into the record but not admitted into evidence in 12 accordance with the rule. Defense counsel withdrew her objection, stating, “[S]o I 13 won’t make any objections if all he’s doing is going to read the statement into 14 evidence.” 15 On appeal, Defendant contends that th e statement should not have been read 16 into the record because “Becerra was unable to state that the memorandum he gave 17 to the security officer or officers was correct when made.” As demonstrated above, 18 however, the record does not support Defendant’s contentions, and Defendant waived 1920 this objection at trial. Defendant failed to preserve his right to appeal Becerra’s 1 reading of his statement into the record. See Rule 12-216(A). We reject Defendant’s 2 argument at this time. 3 D. Testimony about Defendant’s alias 4 Prior to trial, Defendant requested thatthe district court exclude any evidence 5 of Defendant’s use of an alia s on the basis that such eviden ce is irrelevant, prejudicial, 6 and inadmissible hearsay. The State argued that the ev idence was not hearsay because 7 it was not being offered for the truth of the matter asserted. The district court did not 8 address Defendant’s hearsay argument, and it agreed to allow the testimony for the 9 limited basis of establishing how Defendant was located and arrested. The court 10 reasoned that Defendant’s use of an alia s, along with Defendant’s flight from New 11 Mexico, was admissible to establish Defendant’s consciousness of guilt. On appeal, 12 Defendant argues that the district court should have prevented police witnesses from 13 “passing on the hearsay they overheard whilesearching for [Defendant].” He also 14 argues that the fact that Defendant used many aliases was not e ssential to the police 15 procedural narrative and that this narrativ e amounted to an irrelevant “sideshow.” 16 During Agent Kurtz’ testimony, the State asked Agent Kurtz if he remembered 17 the alias Defendant was using when the police found Defendant. Defendant again 18 objected on hearsay grounds. The districtcourt overruled the objection without an 1921 explanation. Agent Kurtz then stated, “Clayton Atier.” 1 A review of the record reveals that th e district court abused its discretion in 2 allowing testimony regarding Defendant’s alias. Although this “use of an alias name” 3 evidence might have been relevant to show consciousness of guilt, see State v. Gibson , 4 113 N.M. 547, 555, 828 P.2d 980, 988 (Ct. App. 1992) (stating that evidence of the 5 defendant’s flight to Mexico and use of an alias was “clearly admissible to show 6 consciousness of guilt”), it was offered for the truth of the matter asserted and did not 7 fall into one of the exceptions for hearsay. 8 The State argued that the evidence was not offered for the truth of the matter 9 asserted. We disagree. The evidence was o ffered to prove that Defendant was in fact 10 using an alias name when the authorities found him (as opposed to whether 11 Defendant’s name was Clayton Atier or not), thus making the use of this alias name 12 relevant to show Defendant’s consciousness of guilt. Since the “use of an alias” 13 evidence was offered for the truth of the matter asserted, the State was required to lay 14 the foundation for actual knowledgeof said use or an appropriate hearsay exception 15 before having Agent Kurtz testify re garding the use of this alias. See Rules 11-802 16 to -804 NMRA. The State failed to lay sucha foundation. As a result, the use of an 17 alias evidence that originated from a h earsay source and passed on to Agent Kurtz 18 should not have been admitted under Rule 11-801. 1922 Again, we conclude that the admission of this hearsay testimony was harmless 1

error. See Barr , 2009-NMSC-024, ¶ 62 (holding thatwhere “there was substantial 2 evidence to support Defendant’s convictions without reference to the videotaped 3 statement, such a disproportionate volume of permissible evidence that the improper 4 evidence was minuscule in co mparison, and a lack of si gnificant conflicting evidence 5 overall”, there was no reasonable probability th at admission of a videotaped statement 6 contributed to the defendant’s conviction) . Agent Kurtz’ testimony about Defendant’s 7 use of an alias was brief and was offered to explain how Defendant was located. As 8 previously discussed, there was other overwhelming evidence demonstrating 9 Defendant’s guilt and other corroboration evidence of Defendant’s consciousness of 10 guilt. Finally, there was no conflicting evid ence offered that Defendant was not using 11 an alias name at the time of his arrest inPhiladelphia. We th erefore hold that the 12 district court committed harmless error inallowing the improper hearsay testimony 13 regarding Defendant’s use of an alias name at the time police located him. 14 Issue 3 - Defendant’s Right to Cross-Examine Espinoza 15 On appeal, Defendant contends that the di strict court abused its discretion in not 16 allowing him to cross-examine Javier Es pinoza about the fact that Espinoza lied 17 regarding his immigration status in a pretrial interview. Defendant argues that 18 Espinoza’s lie constituted a specific inst ance of dishonest conduct relevant to 1923 Espinoza’s character for untruthfulness. De fendant also contends that the district 1 court’s ruling violated his state and federal constitutional right of confrontation. 2 Defendant failed to lay the foundation for and preserve these arguments. 3 Prior to trial, the State asked that the district court to exclude any mention of 4 information concerning the immigration status of Espinoza because it was irrelevant, 5 immaterial, and misleading to the jury. Defendant argued that Espinoza was dishonest 6 about his immigration status in an interview, and as a result, it was relevant to the trial. 7 The following exchange between the court and defense counsel followed. 8 Ms. Zarkos: . . . When we interviewed him, we asked him what 9 his immigration status was, and he indicated that he had been on a work 10 permit for the last 15 years . . . . Furthermore, . . . we asked him, “Well, 11 then were you paying taxes under a wo rkers ID?” He indicated no, that 12 he had not been paying taxes. 13 The Court: How is this all relevant, Ms. Zarkos? 14 Ms. Zarkos: Well, we think th at under 608 and 609, that it goes 15 towards his credibility as a witness, because he didn’t pay taxes, and then 16 he told us that he did, but he used his brother’s name. 17 The district court then ruled th at the evidence was irrelevant. 18 Nothing in the record indicates that Es pinoza lied about his immigration status. 19 If anything, he may have been inconsistent in his responses about paying his taxes. 20 The fact that he did or did not pay taxe s is not conclusive evidence of Espinoza’s 21 immigration status. Defendant has failed to establish th e factual basis he relies upon 22 for the arguments regarding Espinoza’s purported lying about his immigration status 2324 or otherwise present a sufficient reco rd for a proper review of Espinoza’s 1 immigrations status. See State v. Robinson , 99 N.M. 674, 676, 662 P.2d 1341, 1343 2 (1983) (“It should be understood by all courts that the onl y relevant circumstance is 3 actual conduct, i.e., the fact, not the mere charge, of having misbehaved.” (internal 4 quotation marks and citation omitted)). We affirm the district court’s ruling on this 5 issue. See Rojo , 1999-NMSC-001, ¶ 44 (stating that wewill not search the record on 6 appeal to determine if an issue was preserved); State v. Jim , 107 N.M. 779, 780, 765 7 P.2d 195, 196 (Ct. App. 1988) (stating that this Court will resolve all inferences in 8 favor of the district court’s decision whenthe defendant fails to meet his burden of 9 providing a record sufficient for review of his issues on appeal). 10 Issue 4 - Defendant’s Jury Instruction Defining Reasonable Doubt 11 Relying on State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and 12 State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4- 6 (Ct. App. 1985), Defendant 13 contends that the district court’s refusal to instruct the jury as he requested on the 14 instruction for reasonable doubt constitutes revers ible error. He argues that the district 15 court erred because he tendered a proposed jury instruction that is a correct and 16 accurate statement of a basic legal principle. 17 The standard of review we apply to jury instructions depends on whether the 18 issue has been preserved. State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 1925 P.3d 1134. “If the error has been preserved we review the instructions for reversible 1 error.” Id. If not, we review for fundamental error. State v. Cunningham , 2 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176. Under both standards we seek 3 to determine “whether a reasonable juror would have been confused or misdirected 4 by the jury instruction.” Id. ¶ 14 (internal quotation marks and citation omitted). 5 In this case, the alleged error was preserved when Defendant tendered a 6 proposed jury instruction on reasonable doubt that read: “Reasonable doubt is one 7 based on reason which arises fro m the evidence, the lack of evidence, or the nature of 8 the evidence.” The district court denied the tendered instruction and instructed the 9 jury using the UJI 14-5060 NMRA definition of reasonable doubt. We determine that 10 the proper instruction was given and affirm. 11 The New Mexico Uniform Jury Instructions define reasonable doubt as “a 12 doubt based upon reason and common sense — the kind of doubt that would make a 13 reasonable person hesitate to act in the grav er and more important affairs of life.” UJI 14 14-5060. Our Supreme Court e xpressly denied the validity of any changes to the 15 wording or language of the UJI 14-5060 reasonable doubt instruction: 16 We need to be clear on this subject. The definition of proof beyond a 17 reasonable doubt remains today what it has been for decades, perhaps 18 longer. UJI 14-5060 adequately expre sses that definition and is to be 19 used in all jury trials, unadorned by any added, illustrative language from 20 this or any other opinion. 2126 State v. Garcia , 2005-NMSC-017, ¶ 10, 138 N.M. 1, 116 P.3d 72. Accordingly, we 1 affirm the district court’s decision to de ny Defendant’s tender of a jury instruction 2 altering UJI 14-5060, which is the S upreme Court’s mandated definition of 3 “reasonable doubt.” 4 Issue 5 - Ineffective Assistance of Counsel 5 Defendant argues that his trial counselwas ineffective for failing to call a 6 potential alibi witness, Tamara Rideout, and for failing to strike a juror, Sheyla 7 Lofties, who had been exposed to pretri al publicity. “In order to prevail on an 8 ineffective assistance of counsel claim, a defendant must show deficiency on the part 9 of counsel and that such deficiency resulted in prejudice.” State v. Gonzales , 10 2007-NMSC-059, ¶ 14, 143 N.M. 25, 172 P.3d 162. The burden of proof is on 11 defendant to prove both prongs of the ineffective assistance test. State v. Hester , 12 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. There is a general presumption 13 that trial counsel provided effective assistance. State v. Baca , 1997-NMSC-045, ¶ 20, 14 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State v. Belanger , 2009- 15 NMSC-025, ¶ 36, 146 N.M. 357, 210 P.3d 783. “Defense counsel’s performance is 16 deficient if counsel’s representati on fell below an objective standard of 17 reasonableness.” State v. Roybal , 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61 18 (internal quotation marks and citations omitted). Whether a defendant was prejudiced 1927 depends on “whether the allegedly incomp etent representation prejudiced the case 1 such that but for counsel’s error, there is a reasonable probability that the result of the 2 conviction proceeding would have been different.” Baca , 1997-NMSC-045, ¶ 20. 3 A. Failure to call an alibi witness 4 On the second day of trial, Defendant file d a notice of intent to claim an alibi. 5 Three days later, Defendant filed a memorandum of law and exhibits, arguing that the 6 late disclosure of Rideout’s testimony was not intentional and that it was exculpatory. 7 Defendant’s alleged alibi c onsisted of the proposed tes timony of Tamara Rideout that 8 she was with Defendant until 2:00 a.m. on the night of the murder. Although the 9 notice of alibi was untimely filed, see Rule 5-508(A) NMRA (requiring the defendant 10 to provide notice of an alibi defense no later than ten days before trial), the district 11 court allowed the parties to investigate th e witness, and the State ultimately did not 12 object to Rideout testifying at trial. Th ereafter, however, defense counsel decided not 13 to call the witness. 14 We cannot say that Defendant has established a prima facie case of ineffective 15 assistance of counsel on direct appeal. Fi rst, as the district court judge noted, 16 Rideout’s testimony was “a really double-edge d sword” that could either assist or 17 detract from Defendant’s case. While Ride out’s testimony would have been that she 18 was with Defendant until 2:00 a.m. on the morning of the murder, the trial testimony 1928 established that the murder happened after 3: 00 a.m. Victim’s co-worker testified that 1 her shift with Victim ended at about 2:30 a.m. and that th ey stayed at the casino for 2 a while afterwards, watching te levision. The shuttle driver testified that Victim was 3 on his shuttle to the casino’s outer parki ng lot at 3:00 a.m. In addition, Defendant 4 testified that he stayed home on the night of the murder, but he did not mention 5 Rideout. Rideout’s testimony was not a comp lete alibi, and her testimony could have 6 either helped or hindered Defendant’s case. 7 As such, defense counsel’s decision not to call Rideout to testify was a strategic 8 one. On appeal, we w ill not second guess counsel ’s trial strategy. Lytle v. Jordan , 9 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666; see Gonzales , 2007-NMSC-059, 10 ¶ 14 (stating that the presumption of effec tive assistance will remain intact as long as 11 there is a reasonable trial tactic explaini ng counsel’s performance). Moreover, there 12 is no basis on the present record for this Court to determine that defense counsel’s 13 decision was outside the real m of competence or prejudici al to Defendant’s case. See 14 Roybal , 2002-NMSC-027, ¶ 19 (stating that “[w] hen an ineffective assistance claim 15 is first raised on direct appeal, we evaluatethe facts that are part of the record”). 16 Finally, if there are any facts necessary for a full determination that are not part of the 17 record on direct appeal, an ineffectiv e assistance claim is more properly brought 18 through a habeas corpus petition. Id. Under the circumstances, we cannot say that 1929 defense counsel provided Defe ndant with ineffective assi stance with regard to this 1 alibi issue presented on direct appeal. 2 B. Failure to disqualify a juror 3 Defendant argues that defense counsel’s failure to strike Lofties from the jury 4 when her name was called before the defens e had exhausted its peremptory challenges 5 constituted ineffective assistance of counsel. Defendant contends that Lofties should 6 have been struck as a juror because sh e was exposed to “an intolerable amount of 7 pretrial publicity” and becauseshe stated during voir dire that she was “devastated” 8 as a child by witnessing her mother’s abus e at the hands of her drunken stepfather. 9 Defendant contends that the failure to strike Lofties provides a prima facie case of 10 ineffective assistance of counsel and thatremand for an evidentiary hearing will 11 establish that trial counsel’s lapse was not an excusable tactical decision and that it 12 prejudiced Defendant. We are not persuaded. 13 Lofties indicated that she remembered that there was a murder at the Sandia 14 Casino in 2003 “a stabbing of a black male against a Hispanic female,” that on the 15 night before her voir dire she had seen on TV that Defendant wa s getting ready to go 16 to trial, and that she had seen Defendant in his orange jumpsuit being brought into the 17 court. When questioned by the district court, however, Lofties stated that she could 18 “[a]bsolutely” set the media coverage asid e and that she had “no doubt” that she could 1930 decide this case based solely on what she h eard in the courtroom. Lofties also stated 1 that she had not decided anything base d on her exposure, had not discussed 2 Defendant’s guilt or innocence, and had not developed any impressions about 3 Defendant. She indicated that although she had witnessed her mother’s abuse, she had 4 also experienced her mother staying withher stepfather because she loved him. 5 Although a prisoner coming into court for trial is entitled to make his appearance free 6 of shackles or bonds, prior cases have held that an inadvertent or insignificant 7 exposure to a defendant in shackles is not su fficiently prejudicial to merit a new trial. 8 See, e.g. , State v. Holly , 2009-NMSC-004, ¶¶ 41-42, 145 N.M. 513, 201 P.3d 844. 9 Given her responses to the district court’s specific questions, there is no indication that 10 Lofties’ exposure to pretrial publicity was significant or that Lofties had any actual 11 or implied bias toward Defendant. State v. Sanchez , 120 N.M. 247, 251-53, 901 P.2d 12 178, 182-84 (1995) (discussing a claim of juror bias and determining that, absent 13 exceptional circumstances justifying a finding of implied bias, a defendant must 14 demonstrate actual bias). Lofties never wavered in stating that she could fairly and 15 impartially try the case based on the evidence presented in court. The fact that defense 16 counsel chose not to strike Lo fties in order to save his la st strikes for other potential 17 jurors is a strategy decision, and we do not have the record on direct appeal for 18 determining otherwise. See Hester , 1999-NMSC-020, ¶ 11 (“It is not the role of this 1931 Court on appeal to second guess trial tactics.”). As such, we cannot say that 1 Defendant has made a prima facie case of in effective assistance of counsel with regard 2 to defense counsel’s decision not to strike Lofties. Accordingly, we affirm on this 3 peremptory challenge issue raised on direct appeal. 4 Issue 6 - Sufficiency of the Evidence 5 Relying on Franklin , 78 N.M. at 129, 428 P.2d at 984, and Boyer , 103 N.M. 6 658-60, 712 P.2d at 4-6, Defendant argues that this case presents circumstances 7 “where this Court should review the [reco rd as a] whole, including his testimony in 8 his own defense, and concludethat the evidence was insuffi cient for a rational jury to 9 conclude, beyond a reasonable doubt, that he was [Victim’s] killer.” The applicable 10 standard of review for sufficiency of the evidence “is whether substantial evidence 11 of either a direct or circ umstantial nature exists to support a verdict of guilt beyond 12 a reasonable doubt with respect to every element essential to a conviction.” State v. 13 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We review the evidence 14 “in the light most favorable to the guilty verdict, indulging all reasonable inferences 15 and resolving all conflicts in the evidence in favor of the verdict.” Cunningham , 16 2000-NMSC-009, ¶ 26. 17 In this case, the jury was instructed that in order to find Defendant guilty of 18 second degree murder, the State must prove beyond a reasonable doubt each of the 1932 following elements of the crime: (1) Defendant killed Victim; (2) Defendant knew 1 that his acts created a strong probability of death or great bodily harm to Victim; (3) 2 this happened in New Mexico on or about August 5, 2003. The jury was also 3 instructed that “[g]reat bodily harm means an injury to a person which creates a high 4 probability of death” and thatthe State must prove to the satisfaction of the jury 5 beyond a reasonable doubt that Defendant actedintentionally when he committed the 6 crime. With regard to the tampering with evidence charge, the jurywas instructed that 7 the State must prove beyond a reasonable doubteach of the following elements of the 8 crime: (1) Defendant destroyed and/or ch anged and/or hid and/or placed a knife; (2) 9 Defendant intended to prevent the apprehension, prosecution, or conviction of 10 himself; and (3) this happened in New Mexico on or about August 5, 2003. 11 At trial, the State presented the testimony of numerous witnesses that in the 12 early morning hours of August 5, 2003, Vi ctim was stabbed eighteen times with a 13 knife and died of her wounds. Victim’s pur se was not stolen. No one witnessed the 14 stabbing, but within minutes of the attack, Victim’s co-worker heard Victim’s screams 15 and rushed to her side. Victim was covered in blood and died in the ambulance on the 16 way to the hospital. The State presented evidence that Defendant and Victim had been 17 romantically involved. Victim had move d out of Defendant’s apartment two months 18 earlier, and she had received numerous threatening and harassing telephone calls from 1933 Defendant in the days before she was kille d. Defendant’s fingerprint, LP6, was found 1 at the scene of the crime as part of a smear of Victim’s blood, RS23. A blood spatter 2 expert testified that the RS 23 and LP6 were created in oneevent. The jury could 3 reasonable infer, therefore, that the fingerprint did not preexist the blood smear. A 4 fingerprint expert testified that LP6 matc hed Defendant’s fingerp rints. Defendant’s 5 cell phone was found in the possession of a man who led police to a culvert where the 6 knife and a cell phone belt clip that matched Defendant’s cell phone were found. 7 Defendant abandoned his job and fled New Me xico immediately after the crime. He 8 was located almost two years later in Philadelphia. 9 In addition to cross-examini ng the State’s witnesses, Defendant testified at trial, 10 denying that he killed Victim. Defendant offered an altern ate explanation for leaving 11 New Mexico and for his fingerprint being f ound at the scene of th e crime. The jury 12 rejected Defendant’s testimony. See State v. Huff , 1998-NMCA-075, ¶ 11, 125 N.M. 13 254, 960 P.2d 342 (recognizing that where a de fendant’s testimony conflicts with that 14 of his accusers, the jury is entitled to disreg ard the defendant’s version of the facts). 15 We hold that the State presented substantial evidence such that a reasonable 16 jury could conclude that De fendant was guilty of the crimes of second degree murder 17 and tampering with evidence. We therefore affirm Defendant’s convictions. 18 Issue 7 - Cumulative Error 1934 Defendant contends that the cumulative impact of the errors he asserts on 1 appeal deprived him of a fair trial. Th e doctrine of cumulative error requires reversal 2 of a defendant’s conviction when the cumu lative impact of errors which occurred at 3 trial was so prejudicial that the defendant was deprived of a fair trial. State v. Martin , 4 101 N.M. 595, 600-01, 686 P.2d 937, 942-43 (1984) . We have identified two errors 5 at trial stemming from the testimony of Vic tim’s brother and Agent Kurtz. The two 6 errors resulted in harmless error, and their cumulative effect did not deprive Defendant 7 of a fair trial. See State v. Woodward , 121 N.M. 1, 12, 908 P.2d 231, 242 (1995) 8 (stating that the cumulative error doctrine is to be strictly applied and not invoked if 9 the defendant received a fair trial). We reject Defendant ’s cumulative error argument. 10 CONCLUSION 11 We affirm Defendant’s convictions fo r second degree murder and tampering 12 with evidence. 13

IT IS SO ORDERED. 14

______________________________ 15 TIMOTHY L. GARCIA, Judge 16

WE CONCUR: 1735 _________________________________ 1 MICHAEL D. BUSTAMANTE, Judge 2

_________________________________ 3 CELIA FOY CASTILLO, Judge 4