 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                    No. 30,338

10 BERNADETTE SANCHEZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
13 Matthew J. Sandoval, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Karl Erich Martell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 SUTIN, Judge.

23          At the close of trial in this case, Defendant moved for a new trial. The motion

24 was denied and Defendant appeals. We issued a calendar notice proposing to affirm
 1 the district court’s denial of the motion for a new trial. We have received a response

 2 to our calendar notice from Defendant. After due consideration of Defendant’s

 3 arguments in opposition to our proposed disposition, we affirm the district court’s

 4 decision.

 5        Defendant continues to claim that she did not receive a fair trial due to the

 6 State’s failure to disclose prior to trial a photograph of Defendant that was used during

 7 the State’s closing argument. [MIO 3] Defendant claims that she should have been

 8 granted a new trial and that the district court should have instructed the jury to

 9 disregard the photograph that was displayed by the State. In our calendar notice, we

10 discussed the details of the photograph, including the fact that the photograph

11 included no background information, only showed a small sliver of the garment that

12 Defendant was wearing, and depicted Defendant with a broad smile on her face.

13 Unlike the situation in State v. Haynes, 2000-NMCA-060, 129 N.M. 304, 6 P.3d 1026,

14 the jury was not shown two photographs of Defendant’s front and profile, which

15 might have led to an inference by the jury that Defendant had a criminal record. Id.

16 ¶ 13. In fact, the district court found that there was “very little” to indicate that the

17 photograph was a booking photograph and also found that showing the photograph

18 to the jury was not highly prejudicial. [RP 240] In our calendar notice, we




                                               2
 1 distinguished this case from those cases in which photographs, photographic arrays,

 2 and references to mug shots were found to be improper.

 3        As noted in our calendar notice, defense counsel was told that the State would

 4 use the photograph during closing argument. Defense counsel was asked if he would

 5 like to see the photograph, but he declined saying, “No so . . . long as the photo

 6 doesn’t say guilty all over it.” [RP 236] Defense counsel did not look at the

 7 photograph that was displayed during the State’s closing argument. [MIO 3] When

 8 the photograph was brought to the district court’s attention following the trial, the

 9 court determined that enough of the photograph was cropped so that the jury would

10 not know it was a booking photograph. [DS 2]

11        The photograph used by the State during closing argument was not referred to

12 as a booking photograph and there is nothing in the photograph that would have

13 indicated to the jury that it was a booking photograph. As explained in Haynes, even

14 when evidence is erroneously admitted at trial, the admission of the evidence is

15 harmless and not prejudicial unless there is a reasonable possibility that the admitted

16 evidence may have contributed to the conviction. Id. ¶ 22. In this case, there was

17 nothing to indicate that the photograph was a booking photograph and the photograph

18 did not indicate that Defendant had, in the past, committed a crime or other bad act.

19 There is no reasonable possibility that the photograph contributed to Defendant’s


                                              3
1 conviction. As explained in our calendar notice, the district court did not abuse its

2 discretion in refusing to grant a new trial, and the district court did not err in failing

3 to instruct the jury to disregard the photograph.

4         For the reasons discussed in this opinion and those discussed in our calendar

5 notice, we affirm the district court’s decision.

6        IT IS SO ORDERED.


7                                          __________________________________
8                                          JONATHAN B. SUTIN, Judge

9 WE CONCUR:


10 _________________________________
11 CELIA FOY CASTILLO, Judge


12 _________________________________
13 TIMOTHY L. GARCIA, Judge




                                              4
