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     CORRECTION PAGE: Cover pg, ln 13, changed “Elason” to “Eleanor”; SCMO Filed 2/14/12; St v. Lyster, No. 31,493, FYWS


 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3           Plaintiff-Appellee,

 4 v.                                                                       NO. 31,493

 5 LARRY LYSTER,

 6           Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 James Waylon Counts, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appllee

12 Jacqueline L. Cooper, Chief Public Defender
13 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                       MEMORANDUM OPINION

17 FRY, Judge.

18           Defendant appeals his convictions for aggravated battery (felony, great bodily

19 harm) and battery (petty misdemeanor). [RP Vol.II/483, 499] The notice proposed
 1 to affirm and Defendant filed a timely memorandum in opposition and motion to

 2 amend the docketing statement. We deny Defendant’s motion to amend his docketing

 3 statement. We further remain unpersuaded by Defendant’s arguments, and therefore

 4 affirm.

 5        Defendant seeks to amend his docketing statement to argue that he was denied

 6 effective assistance of counsel. [MIO 1, 12-14] Defendant argues his trial counsel

 7 was ineffective because: counsel spent only an hour meeting with him before the first

 8 trial and did not communicate with him before the second trial; counsel did not

 9 prepare for trial and failed to conduct any pre-witness interviews; counsel did not

10 request the surveillance videotape showing the altercation; counsel refused to find any

11 of the other witnesses that saw the altercation; and counsel failed to call a defense

12 expert witness at trial. [MIO 13] These asserted deficiencies, however, either are not

13 of record or otherwise involve trial strategy. See State v. Stenz, 109 N.M. 536, 538,

14 787 P.2d 455, 457 (Ct. App. 1990) (holding that trial counsel is not ineffective for

15 failure to make a motion that is not supported by the record); Lytle v. Jordan,

16 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (“On appeal, we will not second

17 guess the trial strategy and tactics of the defense counsel.” (internal quotation marks

18 and citation omitted)). Defendant also argues that his trial counsel was ineffective

19 because counsel did not file a motion for a new trial based on juror misconduct. [MIO


                                              2
 1 13] As discussed below, however, there was no juror misconduct upon which to

 2 impeach the verdict. See Stenz, 109 N.M. at 538, 787 P.2d at 457 (holding that trial

 3 counsel is not ineffective for failure to make a motion that is not supported by the

 4 record). Defendant has failed to meet his burden to show that counsel’s performance

 5 fell below that of a reasonably competent attorney. See State v. Hester, 1999-NMSC-

 6 020, ¶ 9, 127 N.M. 218, 979 P.2d 729. For this reason, we deny Defendant’s motion

 7 to amend his docketing statement. See State v. Moore, 109 N.M. 119, 128-29, 782

 8 P.2d 91, 100-01 (Ct. App. 1989) (providing that issues sought to be presented must

 9 be viable), overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d

10 730 (Ct. App. 1991).

11        In issue (1), Defendant cites State v. Franklin, 78 N.M. 127, 428 P.2d 982

12 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) [MIO 6-7], and

13 continues to argue that the district court erred in denying his motion to dismiss “for

14 violating the court’s own six-month deadline to retry the case” as set forth in its

15 mistrial order. [MIO 5; DS 4; RP Vol.II/286] As discussed in our notice, in the

16 interim between the district court’s mistrial order and Defendant’s motion to dismiss,

17 our Supreme Court issued State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236

18 P.3d 20, which eliminated portions of Rule 5-604 NMRA (“the six-month rule”)

19 effective for all cases pending in district court as of the date Savedra was filed. See


                                              3
 1 State v. Martinez, 2011-NMSC-010, ¶ 10, 149 N.M. 370, 249 P.3d 82 (clarifying that

 2 “the six-month rule should be withdrawn across the board for all prosecutions

 3 originating in district court, no matter at what stage of the criminal process—trial or

 4 appellate—they may have been as of May 12, 2010”). Because the six-month time

 5 frame in the mistrial order was premised on Rule 5-604 prior to Savedra, we hold that

 6 the district court was not bound by its initial “six-month rule” date as provided in its

 7 mistrial order.

 8        In issue (2), Defendant continues to argue that the jury improperly based its

 9 verdict on sympathy for one of the Victims. [DS 5; MIO 7] Defendant asserts that

10 a juror told defense counsel after the verdict that he used sympathy to determine that

11 Defendant was guilty. [MIO 8] This matter, however, is not of record. See State v.

12 Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (recognizing that matters

13 outside of the record cannot be reviewed on appeal). Moreover, the juror’s alleged

14 statement is nonetheless not an adequate basis upon which to impeach the verdict. See

15 Rule 11-606(B) NMRA (prohibiting a juror from testifying “as to any matter or

16 statement occurring during the course of the jury's deliberations or to the effect of

17 anything upon that or any other juror's mind or emotions . . . or concerning the juror's

18 mental processes in connection therewith, [the verdict]”). We further presume that the

19 jury followed the law as provided in the jury instructions that “[n]either sympathy nor


                                              4
 1 prejudice should influence your verdict.” [RP Vol.II/345] See State v. Gonzales, 113

 2 N.M. 221, 230, 824 P.2d 1023, 1032 (1992) (“The jury is presumed to follow the

 3 court’s instructions.”). We accordingly affirm this issue.

 4        In issue (3), Defendant continues to argue that the evidence was insufficient

 5 to support his convictions. [DS 4; MIO 8-12] We address first Defendant’s

 6 conviction for aggravated battery (great bodily harm). See NMSA 1978, § 30-3-5(C)

 7 (1969). The facts provide that Defendant swung at Victim and struck him in the jaw,

 8 causing Victim to fall and hit his head directly on the asphalt. [DS 2] On the way to

 9 the hospital, Victim went into seizures, was airlifted to a head trauma unit in Texas,

10 stayed at the head trauma unit for several weeks, and was eventually released with

11 brain injuries. [DS 2-3] We hold that the jury could have reasonably relied on the

12 foregoing evidence to convict Defendant for aggravated battery (great bodily harm).

13 See State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985)

14 (defining substantial evidence as that evidence which a reasonable person would

15 consider adequate to support a defendant’s conviction).           Although Defendant

16 maintains that he acted in self-defense [DS 4; MIO 10], it was the jury’s prerogative,

17 as fact-finder, to weigh the evidence and reject Defendant’s version of the events. See

18 generally State v. Nichols, 2006-NMCA-017, ¶ 10, 139 N.M. 72, 128 P.3d 500

19 (recognizing that the jury, as trier of fact, is entitled to weigh conflicting evidence).


                                               5
 1        We next address Defendant’s conviction for battery (petty misdemeanor). See

 2 NMSA 1978, § 30-3-4 (1963). The facts provide that Victim was employed at the

 3 rehabilitation center [DS 2] and that an altercation ensued between Defendant and

 4 others, which included Victim. [DS 2] Defendant shouted at Victim [RP Vol.I/171]

 5 and struck Victim during the time Victim was attempting to assist Alyssa Pieper. [RP

 6 Vol.I/172-73] Victim testified that she had a knot on her hand that was not there

 7 before the altercation. [MIO 7] We hold that a jury could reasonably rely on these

 8 facts to convict Defendant. See Sparks, 102 N.M. at 320, 694 P.2d at 1385 (defining

 9 substantial evidence as that evidence which a reasonable person would consider

10 adequate to support a defendant’s conviction). While Defendant contests that he

11 caused the knot on Victim’s hand, we hold that the jury could rely on the foregoing

12 facts to conclude that he did. See, e.g., State v. Cunningham, 2000-NMSC-009, ¶ 26,

13 128 N.M. 711, 998 P.2d 176 (providing that we “view the evidence in the light most

14 favorable to the guilty verdict, indulging all reasonable




                                             6
1 inferences and resolving all conflicts in the evidence in favor of the verdict”).

2        Based on our notice and the foregoing discussion, we affirm.

3        IT IS SO ORDERED.



4
5                                         CYNTHIA A. FRY, Judge

6 WE CONCUR:



7
8 JAMES J. WECHSLER, Judge



 9
10 JONATHAN B. SUTIN, Judge




                                             7
