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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. 35,131

 5 JON D. RIZOR,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
 8 Matthew G. Reynolds, Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Bennett J. Baur, Chief Public Defender
13   Santa Fe, NM
14   Steven J. Forsberg, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   Defendant Jon D. Rizor appeals from the district court’s judgment and sentence,

 2 entered on September 10, 2015. [2 RP 294; DS 2] In this Court’s second notice of

 3 proposed disposition, we proposed to summarily affirm. Defendant filed a

 4 memorandum in opposition to proposed summary affirmance (MIO), which we have

 5 duly considered. Remaining unpersuaded, we affirm Defendant’s convictions.

 6   {2}   In his memorandum in opposition, Defendant raises no new arguments or facts

 7 regarding his sufficiency argument that are not otherwise addressed by this Court’s

 8 notice of proposed disposition. Rather, Defendant continues to argue that “no rational

 9 jury could have concluded that [he] was guilty” because of Victim’s “repeated and

10 vehement denial that [Defendant] was one of his attackers.” [MIO 1] This argument

11 was addressed in our notice of proposed disposition [see 2 CN 6–14], so we refer

12 Defendant to our reasoning and analysis therein.

13   {3}   Defendant additionally argues that his constitutional right to due process was

14 violated due to the police officers’ failure to collect, process, and/or preserve certain

15 evidence. [MIO 1–2] As acknowledged by Defendant, this argument was not raised

16 below and is, accordingly, raised as fundamental error. [MIO 2] However, Defendant

17 has not provided any argument or authority explaining why the officers’ purported

18 failure rises to the level of fundamental error. [See MIO 1–2] Instead, Defendant

19 contends that the officers could or should have preserved, collected, or processed

20 certain evidence to determine whether his fingerprints or DNA was present, and cites

                                               2
 1 to State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679. Although Ware does

 2 discuss the State’s obligation to preserve evidence, it does not discuss fundamental

 3 error. See generally id.

 4   {4}   Moreover, even if the officers’ failure to process DNA or fingerprint evidence

 5 constitutes reversible error under Ware, in light of the other evidence offered at trial,

 6 and absent any explanation from Defendant to the contrary, we will not say that such

 7 error rises to the level of fundamental error. See State v. Barber, 2004-NMSC-019,

 8 ¶¶ 8, 14, 135 N.M. 621, 92 P.3d 633 (stating that the “doctrine of fundamental error

 9 applies only under exceptional circumstances and only to prevent a miscarriage of

10 justice” and “is to be resorted to in criminal cases only for the protection of those

11 whose innocence appears indisputabl[e], or open to such question that it would shock

12 the conscience to permit the conviction to stand”).

13   {5}   Accordingly, for the reasons stated in our notice of proposed disposition and

14 herein, we affirm Defendant’s convictions.

15   {6}   IT IS SO ORDERED.


16                                          _______________________________
17                                          MICHAEL E. VIGIL, Chief Judge


18 WE CONCUR:


19 ___________________________

                                               3
1 M. MONICA ZAMORA, Judge


2 ___________________________
3 J. MILES HANISEE, Judge




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