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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 v.                                                                    No. A-1-CA-35386

 5 SAVONA JAMES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Robert A. Aragon, District Judge

 9   Hector Balderas, Attorney General
10   Santa Fe, NM
11   Elizabeth Ashton, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 B. Douglas Wood III, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 GALLEGOS, Judge.
 1   {1}   Following a jury trial, Defendant Savona James was convicted of voluntary

 2 manslaughter, contrary to NMSA 1978, Section 30-2-3(A) (1994). Defendant appeals

 3 her conviction, raising three issues: (1) the evidence was insufficient to establish that

 4 her actions caused Kimberly Yazzie’s (Victim) death; (2) she was denied a fair trial

 5 when the district court refused to excuse a particular juror for cause; and (3) the

 6 district court erred in denying her motion for a new trial based on the jury’s

 7 consideration of new evidence during its deliberations. Unpersuaded by Defendant’s

 8 arguments, we affirm.

 9 BACKGROUND

10   {2}   On the evening of July 3, 2014, a fight took place in a vacant dirt lot in Gallup,

11 New Mexico. On one side of the altercation was Defendant and her sister. On the

12 other side was Victim and her girlfriend, Gilithia Tom. Part of the altercation was

13 recorded by a bystander, Joshua Smith, on his cell phone. It is unclear from the video

14 how the altercation started or how the various individuals gathered around were

15 involved. However, according to Mr. Smith’s testimony at trial, some of the individual

16 onlookers had been “hanging out and drinking” all day.

17   {3}   At some point, a small group of five people approached the area where Mr.

18 Smith was hanging out, and the group was followed by two people yelling “westside.”

19 According to Defendant, it was her sister who was yelling “westside.”                   A


                                               2
 1 confrontation ensued over the things being said by people in both groups, and the

 2 confrontation became physical. In the video, all four of the women—Defendant and

 3 her sister versus Victim and Ms. Tom—can be seen fighting with each other. At one

 4 point, Defendant throws Victim to the ground and then appears to kick Victim in the

 5 head. Victim appears to be unconscious for a short period of time, before she slowly

 6 makes her way to her feet. While she is recovering, Defendant and Ms. Tom exchange

 7 blows. The fight disperses shortly thereafter.

 8   {3}   According to Ms. Tom’s testimony at trial, she and Victim returned to their tent

 9 encampment following the fight. At some point during the night, both Ms. Tom and

10 Victim arose to go to the restroom. Ms. Tom went into town the next morning around

11 7 a.m., and claims that she spoke with Victim at that time. When Ms.Tom returned

12 later that afternoon around 4 p.m., she discovered Victim dead in her tent.

13   {4}   Following an investigation, which included an autopsy, Defendant was arrested

14 in connection with Victim’s death. Defendant was ultimately convicted by a jury of

15 voluntary manslaughter based on her kick to Victim’s head during the July 3, 2014

16 altercation. Because this is a memorandum opinion and both parties are familiar with

17 the facts, additional facts and procedural history will be provided throughout this

18 opinion only as necessary.

19 DISCUSSION


                                               3
 1 Sufficiency of the Evidence

 2   {5}   The first issue on appeal is whether there was sufficient evidence to support

 3 Defendant’s conviction for voluntary manslaughter. In criminal cases, “[t]he test for

 4 sufficiency of the evidence is whether substantial evidence of either a direct or

 5 circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt

 6 with respect to every element essential to a conviction.” State v. Montoya,

 7 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted).

 8 The reviewing court “view[s] the evidence in the light most favorable to the guilty

 9 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence

10 in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,

11 998 P.2d 176. We disregard all evidence and inferences that support a different result.

12 See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

13   {6}   In order to prove that Defendant committed voluntary manslaughter, the State

14 was required to prove:

15         (1)   [D]efendant killed [Victim];

16         (2)   [D]efendant did not act in self-defense;

17         (3)   [D]efendant knew that her acts created a strong probability of
18               death or great bodily harm to [Victim];

19         (4)   [D]efendant acted as a result of sufficient provocation;



                                                4
 1         (5)   This happened in New Mexico on or about the 3rd day of July,
 2               2014.

 3 See UJI 14-220 NMRA; see also State v. Smith, 1986-NMCA-089, ¶ 6, 104 N.M. 729,

 4 ¶ 7, 726 P.2d 883 (“Jury instructions become the law of the case against which the

 5 sufficiency of the evidence is to be measured.”).

 6   {7}   On appeal, Defendant challenges only the first element, arguing that the

 7 evidence presented at trial was insufficient to prove that she caused Victim’s death.

 8 Defendant depends in large part on the testimony of Chief Medical Investigator, Dr.

 9 Ross Zumwalt, that Victim’s physical condition at the time of the incident—suffering

10 from cirrhosis of the liver, intoxication, and with a previous subdural

11 hematoma—made her susceptible to a brain bleed. The crux of Defendant’s argument

12 is that any hit to the head, including a fall, could have been the cause of Victim’s

13 death. According to Defendant, such a hit to the head or fall could have taken place

14 in the time period between the fight and Victim’s death the next day. As a result,

15 Defendant contends that the jury engaged in surmise or conjecture to conclude that it

16 was her kick that caused Victim’s death. See State v. Vigil, 1975-NMSC-013, ¶ 12, 87

17 N.M. 345, 533 P.2d 578 (stating that the appellate court cannot let a conviction stand

18 where “the evidence must be buttressed by surmise and conjecture, rather than logical

19 inference” (internal quotation marks and citation omitted)). We disagree.



                                             5
 1   {8}   In light of Dr. Zumwalt’s testimony that the cause of Victim’s death was a

 2 subdural hemorrhage resulting from blunt force trauma to the head—and that death

 3 from an internal herniation, as occurred here, can happen from minutes to days later

 4 —along with the eyewitness testimony and video evidence showing Defendant

 5 kicking Victim in the head, we conclude that the evidence was sufficient to support

 6 the jury’s verdict, even if Victim may have been more susceptible or vulnerable given

 7 her physical condition. See State v.Montoya, 2003-NMSC-004, ¶ 19, 133 N.M. 84, 61

 8 P.3d 793 (“In cases where death results from multiple causes, an individual may be

 9 a legal cause of death even though other significant causes significantly contributed

10 to the cause of death.”). This is especially the case where Dr. Zumwalt testified that

11 the kick seen in the video more likely than not supplied the blunt force resulting in the

12 subdural hemorrhage.

13   {9}   Moreover, the jury could have discounted, or refused to buy, Defendant’s

14 alternate theory of causation; that is, they did not have to believe that maybe another

15 hit to the head, possibly after the fight had ended and the parties went their separate

16 ways, was the actual cause of Victim’s death. See Rojo, 1999-NMSC-001, ¶ 19

17 (“Contrary evidence supporting acquittal does not provide a basis for reversal because

18 the jury is free to reject [the d]efendant’s version of the facts.”); see also State v.

19 Chandler, 1995-NMCA-033, ¶ 15, 119 N.M. 727, 895 P.2d 249 (stating that when a


                                               6
 1 criminal defendant urges the equal-hypotheses argument, the appellate court’s answer

 2 is that “the jury, by its verdict, has necessarily found the hypothesis of guilt more

 3 reasonable than any of the theories of innocence advanced by the defendant”).

 4   {10}   “View[ing] the evidence in the light most favorable to the . . . verdict, indulging

 5 all reasonable inferences and resolving all conflicts in the evidence in favor of the

 6 verdict[,]” Cunningham, 2000-NMSC-009, ¶ 26, we conclude that a rational jury

 7 could have found beyond a reasonable doubt that Defendant killed Victim by kicking

 8 her in the head.

 9 Juror Bias

10   {11}   The next question on appeal is whether Defendant was denied a fair trial when

11 the district court refused to excuse a particular juror for cause. Specifically, Defendant

12 contends that the district court erred when it denied her motion to excuse a prospective

13 juror who Defendant maintains indicated through her answers during voir dire that she

14 could not be impartial. The decision to dismiss a juror for partiality is within the

15 district court’s discretion “because the [district court] judge can best assess a potential

16 juror’s state of mind.” State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76

17 P.3d 47. Because the district court has a “great deal of discretion in dismissing a juror

18 for cause, . . . its decision will not be disturbed absent a manifest error or clear abuse



                                                 7
 1 of that discretion.” State v. Wiberg, 1988-NMCA-022, ¶ 21, 107 N.M. 152, 754 P.2d

 2 529. The party claiming bias has the burden of proving it. Id.

 3   {12}   During voir dire, a prospective juror indicated that her brother was murdered

 4 some fifteen years prior while attempting to separate two friends from fighting. In

 5 response to questioning by defense counsel, the prospective juror agreed that the

 6 current case was “close to home” and that this was not a correct case for her to sit as

 7 a juror. The prospective juror also indicated that she may have heard something about

 8 the case about a year prior and may have made up her mind that “something was

 9 wrong.” However, she also stated that she would like “to think that there is a neutral

10 aspect to this case[,] too.”

11   {13}   The district court then had the following exchange with the prospective juror:

12          District Court:       When a person comes up here, is sworn to his oath
13           to tell the truth and testifies, you would not be able to listen objectively
14          and carefully to his evidence and decide whether he is right or wrong or
15          truthful or deceitful?

16          Prospective Juror: I would be able to do that.

17          District Court:     Despite this memory of the . . . murder in your own
18          family fifteen years ago can be as vivid as if it happened last
19          week . . . because of that, would you be able to set that aside and know
20          that what you’re deciding here is whether this lady is guilty or not
21          guilty?

22          Prospective Juror: Yes.


                                              8
 1          District Court:      And that’s completely unrelated to the
 2          tragic . . . murder of your brother fifteen years ago?

 3          Prospective Juror: Yes, I can do that[.]

 4   {14}   Defendant subsequently moved to excuse the prospective juror for cause. The

 5 district court denied the motion, apparently satisfied that the prospective juror had

 6 been sufficiently rehabilitated and had demonstrated that she would be impartial. In

 7 reliance on State v. Sims, 1947-NMSC-071, ¶ 6, 51 N.M. 467, 188 P.2d 177,

 8 Defendant contends on appeal that any indication of impartiality on the part of the

 9 prospective juror resulted from the district court’s “skillful” questioning, and,

10 therefore, was unreliable. See id. (“It is difficult, if not impossible, to understand the

11 reasoning which leads to the conclusion that a person stands free of bias or prejudice

12 who having voluntarily and emphatically asserted its existence in his mind, in the next

13 moment under skillful questioning declares his freedom from its influence.” (internal

14 quotation marks and citation omitted)).

15   {15}   We believe Sims to be distinguishable. While the district court in Sims did go

16 to some lengths to determine—or more to the point, to establish—the impartiality of

17 the juror, the juror’s own statements emphatically demonstrated his bias. The juror in

18 Sims stated that he would “try to be fair” but that he was sure that he would be

19 “prejudiced” against the defendant, and that he would rule against the defendant


                                                9
 1 should it “[come] to a fine point[.]” Id. ¶ 2. Against this backdrop, our Supreme Court

 2 was not convinced that the juror’s final agreement that he could be fair demonstrated

 3 that the bias he had just expressed had dissipated. Id. ¶ 6. In contrast, while the

 4 prospective juror in the present case expressed at first that the subject matter hit “close

 5 to home” due to her brother’s murder, she then indicated to the district court that she

 6 could set her brother’s murder aside while deciding based on the evidence whether

 7 Defendant was guilty or not guilty.

 8   {16}   The district court apparently concluded that the prospective juror could be

 9 impartial. Defendant’s reliance on Sims does not convince us that the district court

10 erred. That is, the prospective juror’s initial hesitancy in this case does not rise to the

11 level of bias or prejudice that was voluntarily and emphatically expressed by the juror

12 in Sims. See, e.g., State v. Olinghouse, 605 S.W.2d 58, 69-71 (Mo. 1980) (determining

13 no abuse of discretion under similar circumstances). Keeping in mind the great deal

14 of discretion given to the district court in determining whether to excuse a juror for

15 cause, we see no error in the district court’s decision to deny Defendant’s motion.




16 The Viewing of Admitted, but Previously Unviewed, Video Evidence During Jury
17 Deliberations


                                               10
 1   {17}   Defendant’s final claim of error is that the jury improperly viewed evidence

 2 during its deliberations that had not been presented to the jury during trial. The

 3 evidence at issue is a videotaped interrogation between Detective Neil Yazzie and

 4 Defendant. Prior to trial, Defendant filed a motion in limine to exclude certain

 5 portions of the video because they contained statements that were purportedly unduly

 6 prejudicial or inadmissible under Rule 11-403 NMRA and Rule 11-404 NMRA.

 7 Specifically, Defendant objected to portions of the video discussing that (1) Defendant

 8 has been fighting since middle school; (2) Defendant has participated in at least ten

 9 fights; and (3) Defendant is an accomplished fighter. The district court granted

10 Defendant’s motion and excluded those specific portions of the interrogation on the

11 basis of undue prejudice and lack of relevance due to remoteness in time.

12   {18}   At trial, during Detective Yazzie’s testimony, the State—apparently recognizing

13 the attendant risk of mistakenly placing the inadmissible portions before the jury in

14 the course of stopping, fast forwarding, and restarting the video—expressed to the

15 district court that it decided to publish only the first 29 minutes and 2 seconds of the

16 videotaped interrogation to the jury. This decision was apparently based on the fact

17 that none of the inadmissible statements were contained in this first part of the video.

18 The State asserted its right to use the balance of the video for impeachment purposes,



                                               11
 1 if necessary. It appears from the record that Defendant made no objection to this

 2 method of presenting the video to the jury.

 3   {19}   After outlining its proposed method of presenting the video to the jury, the State

 4 sought to admit the video into evidence, minus the portions ruled inadmissible by the

 5 district court. With no objection by Defendant, the district court admitted the video.

 6   {20}   During deliberations, the jury made a request to view the video. With no

 7 objection by either the State or Defendant, the jury was allowed to view the entire 1

 8 hour and 4 minute video, excluding the inadmissible portions. Apparently realizing

 9 only after-the-fact that the jury viewed the entire video, Defendant moved for a new

10 trial. The motion for a new trial was based on Rule 5-610(C) NMRA, which states that

11 “[a]fter the jurors have retired to consider their verdict, the court shall not recall the

12 jurors to hear additional evidence.” The district court denied the motion. Defendant

13 now appeals the district court’s denial, and also complains that it was fundamental

14 error for the jury to view the portion of the videotaped statement that was not

15 originally played for them in open court during the trial.

16   {21}   To begin, we note three instances wherein Defendant did not object to the

17 admission of the entire video, which constitutes waiver of the issue. See N.M. Att’y

18 Gen. v. N.M. Pub. Serv. Comm’n, 1984-NMSC-081, ¶ 10, 101 N.M. 549, 685 P.2d

19 957 (“Failure to object to the admission of evidence operates as a waiver.”). The first
                                                12
 1 waiver occurred when Defendant failed to object to the State’s initial request to admit

 2 the video into evidence, as detailed above. The second waiver took place during the

 3 conference on the State’s request to show the jury the remainder of the video

 4 (including the previously redacted portions). The State made this request following

 5 Defendant’s direct examination, based on its perception that Defendant had opened

 6 the door to the admission of the previously-ruled-inadmissible portions of the

 7 interrogation through her testimony. The district court disagreed that Defendant’s

 8 testimony made those specific portions of the video admissible. However, the district

 9 court pointed out that “when [the video] was introduced it was accepted in its

10 entirety.” The district court continued, stating that “[it] was my understanding [that

11 the State] moved for the admission of the statement” and that Defendant “did not

12 object.” Noting that the original ruling on the motion in limine would remain intact,

13 the district court concluded that “[e]xcept for the specific exclusions that [were]

14 identified, the whole thing is in.” Defense counsel clarified, “Yes, Judge, except for

15 the fighting.” The State followed up by stating that it would provide the bailiff with

16 specific times to avoid playing “should the jury want to review the statement.” When

17 asked if he was “ill at ease” with that solution, defense counsel answered in the

18 negative.



                                             13
 1   {22}   The third instance of waiver occurred when the jury asked to review the video

 2 during deliberations. Both the State and the defense agreed to let the jury view the

 3 video, with the State again pointing out that the specific times to avoid playing were

 4 marked on the video. The district court cautioned the bailiff who was going to play the

 5 video for the jury to “be very careful[.]”

 6   {23}   We also note that there is a fourth potential instance of waiver. The bailiff

 7 testified at the hearing on the motion for new trial that after being instructed in open

 8 court to show the jury the entire video, with the exception of the excluded portions,

 9 he returned to the trial judge’s chambers and clarified—off the record—with the

10 district court and the parties whether he was supposed to play the video “in its

11 entirety.” The bailiff testified that he was again told to play the entire video and that

12 both sides agreed. However, the district court chose not to credit this instance of

13 waiver because it took place off the record. We likewise will not count this instance

14 of waiver against Defendant.

15   {24}   However, in light of the fact that Defendant failed three times to object to the

16 admission and viewing of the entire statement (minus the inadmissible portions), we

17 conclude that the district court did not abuse its discretion in denying Defendant’s

18 motion for a new trial. See State v. Garcia, 2005-NMSC-038, ¶ 7, 138 N.M. 659, 125

19 P.3d 638 (“The general rule is that [the appellate court] will not disturb a [district]
                                                14
 1 court’s exercise of discretion in denying or granting a motion for a new trial unless

 2 there is a manifest abuse of discretion.”); see also State v. Balderama,

 3 2004-NMSC-008, ¶ 22, 135 N.M. 329, 88 P.3d 845 (“An abuse of discretion occurs

 4 when the ruling is clearly against the logic and effects of the facts and circumstances

 5 of the case, is clearly untenable, or is not justified by reason.”).

 6   {25}   To the extent Defendant raises this unpreserved and waived issue separately on

 7 appeal, we review only for fundamental error. See Montoya, 2015-NMSC-010, ¶ 45

 8 (“In order to preserve an issue for appeal, a defendant must make a timely objection

 9 that specifically apprises the [district] court of the nature of the claimed error and

10 invokes an intelligent ruling thereon.” (internal quotation marks and citation

11 omitted)); see also State v. Paiz, 2011-NMSC-008, ¶ 33, 149 N.M. 412, 249 P.3d

12 1235 (“On appeal we only consider issues raised in the [district] court unless the

13 issues involve matters of jurisdictional or fundamental error.”); State v. Anderson,

14 2016-NMCA-007, ¶ 18, 364 P.3d 306 (“Our courts have consistently acknowledged

15 that waiver does not preclude courts from protecting a defendant’s rights on appeal

16 where fundamental error exists.”).

17   {26}   We employ the fundamental error exception to the preservation rule “only

18 under extraordinary circumstances to prevent the miscarriage of justice[.]” State v.

19 Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks
                                               15
 1 and citation omitted). “Accordingly, we will use the doctrine to reverse a conviction

 2 only if the defendant’s guilt is so questionable that upholding a conviction would

 3 shock the conscience, or where, notwithstanding the apparent culpability of the

 4 defendant, substantial justice has not been served. Substantial justice has not been

 5 served when a fundamental unfairness within the system has undermined judicial

 6 integrity.” Id. (internal quotation marks and citation omitted).

 7   {27}   In support of her contention that the jury’s viewing of the entire video

 8 constituted fundamental error, Defendant cites a single out-of-jurisdiction case,

 9 Eslaminia v. White, 136 F.3d 1234 (9th Cir. 1998). In Eslaminia, a federal habeas

10 corpus case, the court determined that non-harmless constitutional error occurred

11 when the jury listened during its deliberations to a taped witness statement that had

12 not been admitted into evidence. Id. at 1239. The taped statement encompassed a

13 conversation between police officers and a witness who did not testify at trial, the

14 substance of which strongly supported the prosecution and seriously undermined the

15 defense. Id. Clearly, the situation in Eslaminia was different from the case here, where

16 the entire video (minus the redacted portions) was admitted into evidence and both

17 Detective Yazzie and Defendant testified at trial. Thus, we are not convinced that the

18 cases are so similar that we should rely, as Defendant requests, on the reasoning in

19 Eslaminia.
                                              16
 1   {28}   We further note that the district court denied Defendant’s motion for new trial

 2 based on its conclusion that Defendant was not prejudiced by the jury’s viewing of the

 3 entire video. In so concluding, the district court found that the balance of the

 4 interrogation video contained poorly defined and peripheral evidence. Defendant does

 5 not challenge these findings on appeal; instead, Defendant seeks to establish prejudice

 6 simply by its reliance on, and comparison to, Eslaminia. For the reasons noted above,

 7 we are not convinced that the analysis in Eslaminia applies here, especially where the

 8 court in that case determined that the substance of the unadmitted—but

 9 viewed—evidence strongly supported the prosecution and seriously undermined the

10 defense. Id. at 1239. And moreover, given the fact that Defendant did not object to the

11 balance of the video as more prejudicial than probative when she had the opportunity

12 to do so, as she did via a motion in limine with respect to the portions ultimately

13 excluded by the district court, we are not convinced that Defendant has established

14 that she was prejudiced when the jury reviewed the remaining unobjected-to portions

15 of her statement to Detective Yazzie. See State v. Aragon, 1999-NMCA-060, ¶ 10,

16 127 N.M. 393, 981 P.2d 1211 (stating that there is a presumption of correctness in the

17 rulings or decisions of the district court, and the party claiming error bears the burden

18 of showing such error); see also In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121

19 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).
                                               17
 1   {29}   Finally, to the extent Defendant may be attempting to use Eslaminia to establish

 2 a violation of the Confrontation Clause or any other constitutional provision, we

 3 observe that any such issue is not adequately briefed and we need not consider it

 4 further. See State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254

 5 (reminding counsel that the appellate courts “are not required to do their research”);

 6 see also State v. Duttle, 2017-NMCA-001, ¶ 34, 387 P.3d 885 (“For this Court to rule

 7 on an inadequately briefed constitutional issue would essentially require us to do the

 8 work on behalf of the [d]efendant, which we will not do.”), cert. denied, ___-

 9 NMCERT-___ (No. S-1-SC-35993, Aug. 8, 2016).

10   {30}   Consequently, although the presentation of evidence clearly could have been

11 handled in a potentially less-confusing manner, we are not persuaded that fundamental

12 error occurred when the jury viewed the entire admitted interrogation video (minus

13 the portions deemed inadmissible by the district court) during its deliberations.

14 CONCLUSION

15   {31}   Therefore, for the reasons stated above, we affirm.

16   {32}   IT IS SO ORDERED.


17                                    ___________________________________
18                                    DANIEL J. GALLEGOS, Judge



                                               18
1 WE CONCUR:


2 __________________________________
3 J. MILES HANISEE, Judge


4 ___________________________________
5 HENRY M. BOHNHOFF, Judge




                                  19
