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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. 33,366

 5 ELFIGO GRAHAM, JR.,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
 8 J. C. Robinson, 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   Santa Fe, NM
15   Sergio J. Viscoli, Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 HANISEE, Judge.
 1   {1}   Defendant appeals from the district court’s affirmance of his magistrate court

 2 conviction for misdemeanor battery upon a household member. Our notice proposed

 3 to affirm. Defendant filed a motion to amend the docketing statement and

 4 memorandum in opposition. We deny Defendant’s motion and remain unpersuaded

 5 by his arguments. We therefore affirm.

 6   {2}   We address first Defendant’s motion to amend his docketing statement.

 7 Defendant seeks to argue that he was denied his right to a jury trial in district court

 8 because there is no showing that he waived his right to a jury. [MIO 5, 11] Defendant

 9 refers to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and

10 State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1, in support of his

11 argument. [MIO 12-13] As acknowledged by Defendant [MIO 9], case law provides

12 that waiver of the right to a jury trial need not be in writing, and no requirement

13 mandates that a defendant be advised on the record of the right. See State v. Ciarlotta,

14 1990-NMCA-050, ¶¶ 10-11, 110 N.M. 197, 793 P.2d 1350. Given this, we deny

15 Defendant’s motion to amend. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M.

16 58, 878 P.2d 1007 (denying a motion to amend the docketing statement based upon

17 a determination that the argument sought to be raised was not viable).

18   {3}   Defendant continues to argue the district court erred in excluding text messages

19 to him from Victim that he views as exculpatory [DS 6 MIO 12], and again refers to


                                               2
 1 Franklin, 1967-NMSC-151, ¶ 9, and Boyer, 1985-NMCA-029, ¶ 24, in support of his

 2 argument. [MIO 12-13] “We examine the admission or exclusion of evidence for

 3 abuse of discretion, and the district court’s determination will not be disturbed absent

 4 a clear abuse of discretion.” State v. Kent, 2006-NMCA-134, ¶ 18, 140 N.M. 606, 145

 5 P.3d 86.

 6   {4}   As a basis for his continued argument, Defendant emphasizes that the excluded

 7 text messages would have shown that Victim was not a credible witness [MIO 12],

 8 that Victim was not afraid of Defendant [MIO 12], and that Victim might have been

 9 lying about the incident with the gun. [MIO 13] As noted in our notice, Defendant has

10 not provided this Court with the contents of the excluded messages, and in the absence

11 of this information we continue to presume that the district court ruled correctly. See,

12 e.g., State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating

13 that there is a presumption of correctness in the rulings or decisions of the trial court,

14 and the party claiming error bears the burden of showing such error). But apart from

15 this, and as emphasized in our notice, there is no indication that the excluded text

16 messages address the disputed issue of whether Defendant battered Victim [DS 5], and

17 for this reason their asserted probative value, if any, is speculative and detracts from

18 the disputed issue of battery. See, e.g., Rule 11-401 NMRA (setting forth the test for

19 relevant evidence); Rule 11-403 NMRA (stating “[t]he court may exclude relevant


                                               3
 1 evidence if its probative value is substantially outweighed by a danger of one or more

 2 of the following: unfair prejudice, confusing the issues, misleading the jury, undue

 3 delay, wasting time, or needlessly presenting cumulative evidence). We accordingly

 4 affirm.

 5   {5}   Next, Defendant continues to argue the evidence is insufficient to support his

 6 conviction. [DS 6; MIO 13] See NMSA 1978, § 30-3-15(A) (2008) (battery upon a

 7 household member). We review the evidence to determine “whether substantial

 8 evidence of either a direct or circumstantial nature exists to support a verdict of guilt

 9 beyond a reasonable doubt with respect to every element essential to a conviction.”

10 State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314.

11   {6}   As set forth in our notice, Victim testified that when she attempted to stop

12 Defendant from leaving the apartment, Defendant pushed her to the side. [DS 2]

13 Victim further testified that, when she again tried to stop Defendant from leaving, he

14 “picked her up and threw her toward the wall” [DS 2] and that “she received a head

15 injury upon making contact with either the wall or the ground.” [DS 3] Lastly, as

16 provided in the admitted text message, evidence was presented that Defendant hit

17 Victim with his hand and hurt Victim by grabbing and turning her arm/wrist. [DS 3-4;

18 RP 89] We hold that the foregoing facts support Defendant’s conviction for battery

19 against a household member. See State v. Sparks, 1985-NMCA-004, ¶¶ 6-7, 102 N.M.


                                               4
 1 317, 694 P.2d 1382 (defining substantial evidence as that evidence which a reasonable

 2 person would consider adequate to support a defendant’s conviction). Although

 3 Defendant maintains that his actions were in self-defense and that Victim was the first

 4 aggressor [MIO 14], it was the fact finder’s prerogative to disbelieve Defendant’s

 5 version of the events. See generally State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

 6 686, 986 P.2d 482 (recognizing that it is for the fact finder to resolve any conflict in

 7 the testimony of the witnesses and to determine where the weight and credibility lay);

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

 9 (recognizing that “the jury is free to reject [the d]efendant’s version of the facts”). We

10 accordingly affirm.

11   {7}   For the reasons set forth in our notice and discussed above, we affirm.

12   {8}   IT IS SO ORDERED.



13
14                                          J. MILES HANISEE, Judge

15 WE CONCUR:



16
17 JONATHAN B. SUTIN, Judge




                                               5
1
2 TIMOTHY L. GARCIA, Judge




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