 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 30,061

10 STEVEN PEREA VALDEZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldrige, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 FRY, Chief Judge.

23          Defendant appeals his convictions for two counts of aggravated assault with a

24 deadly weapon after a jury trial. We issued a calendar notice proposing to summarily

25 affirm. Defendant filed a memorandum in response and a motion to amend the
 1 docketing statement with a new issue. After due consideration, we deny the motion

 2 to amend and affirm.

 3 DISCUSSION

 4 Evidentiary Issue

 5        Defendant argues that the district court erred in admitting photographs of the

 6 victims’ injuries and testimony from the victims describing those injuries to

 7 demonstrate that Defendant ran into the victims with his vehicle. [DS 1-2, 4-5, 6;

 8 MIO 5-9] Defendant argues that he objected to the admission of the evidence because

 9 it was either irrelevant or unfairly prejudicial to the assault charges. [MIO 5-9]

10         “We review the admission of evidence under an abuse of discretion standard

11 and will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-

12 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. Evidence is not admissible if it is not

13 relevant. Rule 11-402 NMRA. Relevant evidence is that which tends “to make the

14 existence of any fact that is of consequence to the determination of the action more

15 probable or less probable than it would be without the evidence.” Rule 11-401

16 NMRA.      Even relevant “evidence may be excluded if its probative value is

17 substantially outweighed by the danger of unfair prejudice, confusion of the issues or

18 misleading the jury.” Rule 11-403 NMRA. “In determining whether the [district]

19 court has abused its discretion in applying Rule 11-403, the appellate court considers


                                              2
 1 the probative value of the evidence, but the fact that some jurors might find this

 2 evidence offensive or inflammatory does not necessarily require its exclusion[.]”

 3 State v. Rojo, 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829 (citations omitted).

 4 “Determining whether the prejudicial impact of evidence outweighs its probative

 5 value is left to the discretion of the [district] court.” Id. (alteration in original)

 6 (internal quotation marks and citation omitted).

 7        Defendant argues that the evidence in question is not relevant to the offense of

 8 aggravated assault and should have been excluded under Rule 11-402. [DS 4-5; MIO

 9 7-8] The offense of aggravated assault consists of “unlawfully assaulting or striking

10 at another with a deadly weapon.” See NMSA 1978, § 30-3-2(A) (1963). The offense

11 is proscribed because it puts the victim in fear. See State v. Cowden, 1996-NMCA-

12 051, ¶ 12, 121 N.M. 703, 917 P.2d 972. Although Defendant does not provide us with

13 a clear understanding of the relevant facts, the jury instructions in the record indicate

14 that the State sought to prove that Defendant was guilty of aggravated assault because

15 (1) he struck or threatened the victims with his automobile, (2) his conduct caused the

16 victims to believe that Defendant was about to intrude on the victims’ bodily integrity

17 or personal safety by touching or applying force to the victims in a rude, insolent or

18 angry manner, (3) a reasonable person would have the same belief, and (4) an

19 automobile is a deadly weapon. [RP 67, 70] See UJI 14-305 NMRA.


                                               3
 1        Defendant contends that aggravated assault does not require an actual

 2 application of force or touching with intent to injure and that the jury instructions were

 3 misleading because Defendant only needed to strike at and not actually strike or apply

 4 force to the victims. [MIO 7] Thus, Defendant argues, photographs and testimony

 5 about injuries were irrelevant to the charges of aggravated assault. [Id.]

 6        We are not persuaded. Under these circumstances, evidence that Defendant

 7 struck the victims with his vehicle and caused minor injuries could be perceived by

 8 the jury to be part of the threat to the victims. Simply because Defendant actually

 9 struck the victims once does not mean that the threat was over. Thus, evidence that

10 Defendant struck or threatened the victims with his vehicle is relevant to whether

11 Defendant’s actions caused the victims to reasonably believe that Defendant was still

12 about to intrude on the victims’ bodily integrity or personal safety. Accordingly, we

13 hold that the evidence was relevant to the offense of aggravated assault with a deadly

14 weapon.

15        Because the evidence is relevant to the offense of aggravated assault, we are not

16 persuaded that the testimony of the witnesses that Defendant ran into them with his

17 vehicle was unfairly prejudicial. [DS 4-5; MIO 8-9] Defendant argues that

18 “photographs of injuries sustained from contact with an automobile, coupled with

19 what can only be presumed as emotional testimony from the victims about their


                                               4
 1 injuries, served no other purpose than as an improper appeal to the emotions of

 2 jurors.” [MIO 9] Defendant also argues that when jurors are told that a victim is in fact

 3 injured, a guilty verdict for assault is all but certain. [Id.] Contrary to Defendant’s

 4 assertions, we do not perceive testimony from the victims about being struck or

 5 threatened by a vehicle as unduly prejudicial as it directly related to the reasons that

 6 the victims were put in fear by Defendant’s conduct. See Cowden, 1996-NMCA-051,

 7 ¶ 12. In addition, Defendant claims in his docketing statement that the photographs

 8 showed no injuries other than one minor scrape. [DS 5] Defendant’s argument that the

 9 photographs did not show a great deal of injury undermines his claim that the

10 evidence was unduly prejudicial.

11        We therefore reject Defendant’s evidentiary challenge.

12 Motion to Amend

13        Defendant seeks to amend the docketing statement with a new issue. [MIO 9-

14 12 ] A motion to amend the docketing statement may only be granted if it is timely,

15 and if the issues are viable. See State v. Moore, 109 N.M. 119, 128-30, 782 P.2d 91,

16 100-102 (Ct. App. 1989), overruled on other grounds by State v. Salgado, 112 N.M.

17 537, 817 P.2d 730 (Ct. App. 1991).

18        Defendant argues that he received the proper uniform jury instruction for

19 aggravated assault but that the instruction nonetheless contained erroneous language.


                                               5
 1 [MIO 9-13] Defendant contends that the language in the first element of the jury

 2 instruction described the unlawful act, threat, or menacing conduct improperly by

 3 requiring the jury to find that Defendant “struck or threatened” the victims with an

 4 automobile. [Id. 11] Defendant contends that the jury should not have been issued the

 5 same jury instruction on aggravated assault as that used in the first trial. [Id. 12] Next,

 6 Defendant contends that the unlawful act, threat, or menacing conduct was “striking

 7 at” the two victims, not “striking” the two victims. [Id.] As with the first issue,

 8 Defendant contends that aggravated assault does not require an actual application of

 9 force or touching with intent to injure. [Id.]

10        Defendant concedes that the alleged error in the jury instructions was not raised

11 at trial and asks this Court to review for fundamental error. [Id. 12-13] See State v.

12 Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (noting that if an error

13 in the jury instructions has not been preserved, we review for fundamental error). In

14 reviewing for fundamental error, “we seek to determine whether a reasonable juror

15 would have been confused or misdirected by the jury instruction.” Id.

16        Defendant contends that the jury instruction was unclear because the question

17 for the jury was whether Defendant struck at the victims in this case, not whether he

18 actually struck them. [MIO 13] We are not persuaded that the jury instruction was

19 erroneous or that it led to juror confusion. We believe the instruction clearly


                                                6
 1 described the unlawful act, threat, or menacing conduct by requiring the jury to find

 2 that Defendant struck or threatened the victims with his vehicle. [RP 67, 70] In

 3 addition, the jury instructions required the jurors to find that the conduct caused the

 4 victims to believe that Defendant was about to intrude on their bodily integrity or

 5 personal safety by touching or applying force to the victims in a rude, insolent, or

 6 angry manner, and that a reasonable person would have the same belief. [Id.]

 7        Defendant does not persuade us that fundamental error occurred. Thus, we

 8 conclude that the issue is not viable. Accordingly, we deny Defendant’s motion to

 9 amend the docketing statement.

10 Habitual Offender Proceedings

11        Defendant argues that the district court erred in finding the State established a

12 prima facie case that Defendant had committed two prior felonies in the habitual

13 offender proceedings. [DS 6; MIO 13-16] Defendant now raises this issue pursuant

14 to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and State v. Boyer,

15 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). [MIO 16]

16        In order to obtain a sentencing enhancement under the habitual offender statute,

17 the State must prove by a preponderance of the evidence that the defendant has prior

18 convictions. See State v. Clements, 2009-NMCA-085, ¶ 22, 146 N.M. 745, 215 P.3d

19 54. The State bears the initial burden of establishing a prima facie case of a


                                              7
 1 defendant’s previous convictions; the defendant is then entitled to bring forth contrary

 2 evidence. See State v. Sedillo, 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051

 3 (filed 2000). In order to make a prima facie case, the State must offer proof of all

 4 three elements: identity, conviction, and timing. See Clements, 2009-NMCA-085, ¶

 5 22. The State ultimately bears the burden of demonstrating the validity of the prior

 6 convictions. Id. “In determining whether the evidence supports a criminal charge,

 7 this Court views the evidence in the light most favorable to the [s]tate.” Sedillo, 2001-

 8 NMCA-001, ¶ 6.

 9        In our calendar notice, we noted that the docketing statement indicated that the

10 State sought to enhance Defendant’s sentence as an habitual offender by presenting

11 uncertified copies of pleadings filed with respect to a prior conviction for aggravated

12 battery with a deadly weapon in Cause No. CR-98-187. [CN 5-6] In addition, the

13 State submitted a plea and disposition agreement for a second prior offense in Cause

14 No. CR-2006-1056, in which Defendant admitted to the aggravated battery in CR-98-

15 187. [Id.] However, the plea and disposition agreement in CR-2006-1056 gave the

16 wrong dates for the conviction and offense in CR-98-187. [Id.] Defendant objected

17 that the State did not make a prima facie case as to CR-98-187 because uncertified

18 copies in that cause combined with the inaccurate admission in the plea and

19 disposition agreement in CR-2006-1056 did not adequately prove the necessary


                                               8
 1 elements of the prior conviction of aggravated battery. [Id.] Due to the inaccurate

 2 dates, Defendant argued that the timing element was not met because there was no

 3 evidence of when Defendant’s sentence began and ended. [Id.]

 4        In our calendar notice, we stated that we would be inclined to agree with

 5 Defendant that the district court erred in enhancing Defendant’s sentence if it relied

 6 on uncertified pleadings and a deficient plea and disposition agreement as proof of

 7 Defendant’s prior convictions. [CN 6-7] However, we were not persuaded that the

 8 district court erred in concluding that the State met its burden because it appeared that

 9 the State subsequently filed certified copies of the plea and disposition agreement and

10 the judgment and sentence filed in CR-98-187. [Id.] We presumed that these certified

11 copies were required by the district court and that they contained accurate dates of the

12 offense and conviction that matched the dates in the amended supplemental criminal

13 information. State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211

14 (stating that there is a presumption of correctness in the rulings or decisions of the

15 district court, and the party claiming error bears the burden of showing such error).

16 Thus, we proposed to hold that by submitting the certified copies the State was able

17 to demonstrate that all the necessary elements were met to prove the validity of the

18 prior conviction, including that it was timely. [CN 8]




                                               9
 1       Defendant’s response does not dispute our presumption that the State

 2 subsequently submitted certified copies of the necessary pleadings or that they

 3 contained accurate dates. Instead, Defendant maintains, pursuant to Franklin and

 4 Boyer, that there is no evidence in the record as to when Defendant completed his

 5 serving his sentence in CR-98-187. As it appears to be undisputed, however, that

 6 Defendant was convicted in CR-98-187 on May 28, 1999, we reject Defendant’s

 7 argument. The date of the conviction establishes that Defendant’s prior conviction

 8 occurred less than ten years before his conviction in this case, which occurred on

 9 September 18, 2008. We therefore affirm the district court’s sentencing.

10 CONCLUSION

11       For these reasons, and those in the calendar notice, we affirm Defendant’s

12 convictions and sentence.

13       IT IS SO ORDERED.



14
15                                       CYNTHIA A. FRY, Chief Judge




                                           10
1 WE CONCUR:



2
3 JONATHAN B. SUTIN, Judge



4
5 TIMOTHY L. GARCIA, Judge




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