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State v. Head

Court of Appeals of New Mexico

September 18, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JAMEY HEAD, Defendant-Appellant.

         This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

         APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Karen L. Townsend, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender MJ Edge, Assistant Appellate Defender Santa Fe, NM for Appellant

          MEMORANDUM OPINION

          M. MONICA ZAMORA, Judge

         {1} Defendant appeals his conviction for aggravated battery. Our notice proposed to affirm, and Defendant filed a memorandum in opposition and motion to amend the docketing statement. We deny Defendant's motion to amend and remain unpersuaded by Defendant's arguments. We therefore affirm.

         {2} As an initial matter, we note that the memorandum in opposition's designation of the issues does not correlate with the designation of the issues as provided in the docketing statement and notice. For consistency, we continue to designate the issues as provided in the docketing statement and notice, and request that counsel maintain consistency in any future pleadings he may file in this Court.

         {3} Issues 1 and 2: Defendant withdraws his challenge to the sufficiency of the evidence and the denial of his motion for a directed verdict. [MIO 1]

         {4} Issue 3: In his docketing statement, Defendant asserted that the district court erred in denying his motion for a mistrial. [DS 4] He claimed that, after the defense rested and while the prosecutor was making his rebuttal closing argument, one of the defense witnesses made an obscene gesture to the prosecutor in the presence of the jury. [DS 4] Two weeks later, during the sentencing hearing, defense counsel made an oral motion for a mistrial due to the obscene gesture. [Id.] The judge denied the motion for mistrial. [Id.]

         {5} We proposed to conclude that Defendant had not provided this Court with sufficient facts or otherwise developed his argument for this Court to meaningfully analyze this issue. [CN 7-8] See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 ("This Court has no duty to review an argument that is not adequately developed."); see also Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("We will not review unclear arguments, or guess at what a party's arguments might be." (alteration, internal quotation marks, and citation omitted)). Because Defendant had not demonstrated error on appeal, we also presumed the district court correctly denied the motion for a mistrial. [CN 8] See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a presumption of correctness in the rulings or decisions of the trial court, and the party claiming error bears the burden of showing such error); see also Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that the appellate courts presume that the district court is correct and the burden is on the appellant to clearly demonstrate that the lower court erred).

         {6} In response, Defendant contends that trial counsel essentially moved for a new trial under Rule 5-614 NMRA, because the jury was exposed to extraneous information. [MIO 8-9] In State v. Doe, 1984-NMCA-045, ¶ 9, 101 N.M. 363, 683 P.2d 45, we stated:

The party seeking a new trial on the basis that extraneous evidence reached the jury must make a preliminary showing that movant has competent evidence that material extraneous to the trial actually reached the jury. If the party makes such a showing, and if there is a reasonable possibility the material prejudiced the defendant, the trial court should grant a new trial. The trial court has a duty to inquire into ...

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