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



 2 STATE OF NEW MEXICO,

 3                  Plaintiff-Appellee,

 4          vs.                                                                  No. 33,398


 5 TADEUSZ GMITRUK,

 6                  Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Vicki W. Zelle, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant
 1                              MEMORANDUM OPINION

 2 HANISEE, Judge.

 3   {1}   Defendant appeals from the district court’s judgment affirming his conviction

 4 for harassment following an on-record appeal from his jury trial conviction in

 5 metropolitan court. [RP 134] Our calendar notice proposed to affirm and Defendant

 6 filed a memorandum in opposition. We remain unpersuaded by Defendant’s

 7 arguments and therefore affirm.

 8   {2}   In Issue A, Defendant continues to argue that the metropolitan court erred in

 9 allowing Urszula Christner (Victim) to sit at the prosecution table during the course

10 of the trial. [DS 23; MIO 24] As addressed in our notice, Defendant and Victim are

11 Polish speakers [RP 119] and, although a court-provided translator was present at trial,

12 the State argued and the metropolitan court agreed that Victim’s presence at counsel

13 table was necessary in order to enable the State to challenge any translation errors

14 arising from the language barrier. [DS 4, 5; RP 125] We conclude that this was an

15 appropriate exercise of the metropolitan court’s discretion. See generally State v.

16 Ryan, 2006-NMCA-044, ¶ 40, 139 N.M. 354, 132 P.3d 1040 (reviewing under an

17 abuse of discretion standard a defendant’s claim the trial court improperly allowed the

18 State’s lead investigator to sit at counsel table during the trial).

19   {3}   In Issue B, Defendant maintains that the metropolitan court erred in overruling

20 his hearsay objection, specifically referring to Victim’s testimony that Defendant “told

21 my father he’s [going] to kill me.” [DS 8; MIO 9, 25; RP 126] As provided in our

                                                2
 1 notice, this statement was offered not for the truth of the matter asserted, but rather to

 2 show the reasonableness of Victim’s feelings with regard to Defendant’s postcards

 3 and letters. Given this, we conclude that the metropolitan court did not abuse its

 4 discretion in admitting this testimony. See, e.g., State v. Sarracino, 1998-NMSC-022,

 5 ¶ 20, 125 N.M. 511, 964 P.2d 72 (reviewing the admission of evidence under an abuse

 6 of discretion standard); State v. Rosales, 2004-NMSC-022, ¶ 16, 136 N.M. 25, 94 P.3d

 7 768 (recognizing that “[e]xtrajudicial statements or writings may properly be received

 8 into evidence, not for the truth of the assertions therein contained, or the veracity of

 9 the out-of-court declarant, but for such legitimate purposes as that of establishing

10 knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader,

11 and many others.” (internal quotation marks and citation omitted)).

12   {4}   In Issue C, Defendant continues to assert that the metropolitan court erred “in

13 doing little to nothing in the face of repeated defense objections about the State’s

14 ongoing failure to control its witness,” which—according to Defendant—“allowed the

15 State to side-step the parties’ stipulation that only conduct from 2006 forward was

16 allowable evidence.” [DS 23; MIO 26; RP 127] As support for his continued

17 argument, we understand Defendant to reference Victim’s testimony relating to two

18 instances outside of this stipulated time frame. [MIO 26; RP 127, 128] We understand

19 Defendant to additionally reference Victim’s testimony about Defendant harassing her

20 and telling people he was going to kill her and her daughter [MIO 26; RP 128], as well



                                               3
 1 as to reference Victim’s testimony—as addressed in Issue B—relating to Defendant’s

 2 threats to Victim’s father. [MIO 25]

 3   {5}   With regard to Victim’s testimony relating to instances outside of the stipulated

 4 time frame, the first instance took place on direct examination when Victim was

 5 asked how she knew Defendant, and answered she and Defendant married in 1981

 6 and divorced in 1985, adding “since that time he has been harassing me.” [RP 119; DS

 7 7; MIO 7] Upon objection by Defendant, the metropolitan court admonished the

 8 parties to “stick to the pretrial motion and the decisions I made on those” [MIO 7-8;

 9 RP 119], and there was no deviation from this admonishment for the remainder of the

10 direct examination. With regard to the second instance, Victim was asked on cross-

11 examination if she had been taking anti-depressant and anti-anxiety medications

12 before receiving a particular postcard, and responded affirmatively and added that she

13 had been receiving letters and postcards from Defendant for twenty-five years, thereby

14 adding to her depression. [DS 15-16; MIO 12; RP 123] For the reasons discussed in

15 our notice, given that the district court admonished the parties to stick to the pretrial

16 motion and its decisions on that motion, and that the defense opened the door to

17 Victim’s response relating to her medications, we conclude the district court did not

18 abuse its discretion in controlling the conduct of the proceedings before it. See, e.g.,

19 State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807 (“The trial court

20 has broad discretion in controlling the conduct and remedying the errors of counsel

21 during trial” and “is in the best position to evaluate the significance of any alleged

                                               4
 1 prosecutorial errors.”), overruled on other grounds by State v. Tollardo, 2012-NMSC-

 2 008, ¶ 37, 275 P.3d 110.

 3   {6}   Similarly, to the extent Defendant refers to Victim’s statement that Defendant

 4 told people he was going to kill her and her daughter [MIO 26; RP 128], the

 5 metropolitan court sustained any objection below and told the jury to disregard the

 6 statement. [RP 128] We conclude that the district court’s admonishment was an

 7 appropriate exercise of its discretion in controlling the proceedings before it. See State

 8 v. Vialpando, 1979-NMCA-083, ¶ 25, 93 N.M. 289, 599 P.2d 1086 (recognizing that

 9 “New Mexico has frequently held that a prompt admonition from the court to the jury

10 to disregard and not consider inadmissible evidence sufficiently cures any prejudicial

11 effect which otherwise might result”). And while Defendant maintains that Victim

12 poisoned the jury by stating that Defendant had threatened her father [MIO 26], as

13 discussed in Issue B, we do not agree that admission of Victim’s testimony was

14 improper. We thus conclude that the district court controlled the proceedings before

15 it and did not allow the State to sidestep the parties’ stipulation.

16   {7}   In Issue D, Defendant continues to argue that the prosecutor improperly

17 vouched for the truthfulness of Victim in his closing argument. [DS 23; MIO 26] For

18 the reasons detailed in our notice, we conclude that the prosecutor’s statements did not

19 rise to the level of fundamental error because the prosecutor did not invoke the

20 authority of the prosecutor’s office or suggest he had some special knowledge, but

21 instead reminded the jury of its role as fact finder, and its related obligation to assess

                                               5
 1 a witness’s truthfulness or untruthfulness. [RP 131] Cf. State v. Paiz, 2006-NMCA-

 2 144, ¶ 55, 140 N.M. 815, 149 P.3d 579 (recognizing that the prohibition against

 3 vouching stems from concerns that such comments could lead a jury to rest its

 4 decision on the prosecutor’s personal integrity or authority rather than on the evidence

 5 presented). And to the extent Defendant maintains that the prosecutor’s statements

 6 about Victim’s rights may have misled the jury, the metropolitan court instructed the

 7 State to correct any confusion or mistake such statements may have made. See, e.g.,

 8 Duffy, 1998-NMSC-014, ¶ 46 (stating that “[t]he trial court has broad discretion in

 9 controlling the conduct and remedying the errors of counsel during trial” and “is in

10 the best position to evaluate the significance of any alleged prosecutorial errors”). We

11 thus conclude no fundamental error occurred. See State v. Barber, 2004-NMSC-019,

12 ¶ 17, 135 N.M. 621, 92 P.3d 633 (providing fundamental error only occurs in “cases

13 with defendants who are indisputably innocent, and cases in which a mistake in the

14 process makes a conviction fundamentally unfair notwithstanding the apparent guilt

15 of the accused”).

16   {8}   Lastly, Defendant continues to argue that the evidentiary rulings and alleged

17 prosecutorial misconduct discussed above resulted in cumulative error necessitating

18 a mistrial. [DS 23; MIO 27] Because we conclude that Defendant has failed to show

19 that any error occurred at his trial, we also conclude that he has failed to show that his

20 conviction was the result of cumulative error. See State v. Saiz, 2008-NMSC-048, ¶

21 66, 144 N.M. 663, 191 P.3d 521 (“[W]here there is no error to accumulate, there can

                                               6
1 be no cumulative error.”), abrogated on other grounds by State v. Belanger, 2009-

2 NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783.

3   {9}    To conclude, for the reasons discussed in our notice and above, we affirm.

4   {10}   IT IS SO ORDERED.




5
6                                          J. MILES HANISEE, Judge


7 WE CONCUR:



8
9 CYNTHIA A. FRY, Judge



10
11 M. MONICA ZAMORA, Judge




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