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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                    NO. 29,200

 5 RICHARD HERRERA,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Steven L. Bell, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                              MEMORANDUM OPINION

17 KENNEDY, Judge.

18        Defendant appeals from a judgment on his convictions for aggravated assault,

19 evading an officer, and tampering with evidence. In this Court’s notice of proposed

20 summary disposition, we proposed to affirm. Defendant has responded with a

21 memorandum in opposition, pursuant to an extension of time from this Court.
 1 Defendant has also moved to amend the docketing statement to add a claim that the

 2 evidence was insufficient to support his conviction for tampering with evidence. As

 3 we conclude that the issue Defendant seeks to add is not viable, and as we are not

 4 persuaded by Defendant’s arguments in support of reversal, we deny Defendant’s

 5 motion to amend the docketing statement and affirm Defendant’s convictions.

 6 Sufficiency of the Evidence of Aggravated Assault and Evading an Officer

 7        Defendant contends that there was insufficient evidence to support his two

 8 convictions for aggravated assault and his conviction for evading an officer. [DS

 9 unnumbered page 10] In reviewing a conviction for the sufficiency of the evidence,

10        we examine the record to determine whether substantial evidence of
11        either a direct or circumstantial nature exists to support a verdict of guilt
12        beyond a reasonable doubt with respect to every element essential to a
13        conviction. We view the evidence in the light most favorable to the
14        verdict, resolving all conflicts therein and indulging all permissible
15        inferences therefrom in favor of the verdict. Moreover, contrary
16        evidence supporting acquittal does not provide a basis for reversal
17        because the jury is free to reject Defendant’s version of the facts.

18 State v. Burke, 2008-NMSC-052, ¶ 12, 144 N.M. 772, 192 P.3d 767 (alteration

19 omitted) (internal quotation marks and citations omitted).

20        The basis of Defendant’s claim is that there was conflicting evidence that might

21 have led a jury to question whether Defendant was the person who committed the

22 assault or fled from the officer. [DS unnumbered page 8; MIO 6] Defendant suggests

23 that because the complaining witnesses originally gave a description of Defendant that

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 1 differed from his actual appearance, no jury could have found beyond a reasonable

 2 doubt that Defendant was the person who committed the assaults or attempted to

 3 evade arrest. [DS unnumbered pages 3-5, 8; MIO 6] We disagree. Ms. Chavez

 4 positively identified Defendant as the man who assaulted her and her husband. [DS

 5 unnumbered page 3] Officer Coon identified Defendant as the person who fled from

 6 him. [DS unnumbered page 6] This evidence was sufficient to establish that

 7 Defendant was the perpetrator.

 8        Although there was other evidence that might have raised questions about Ms.

 9 Chavez’s identification, this Court does not reweigh the evidence or substitute our

10 judgment for that of the factfinder, and we disregard conflicting evidence that would

11 support a contrary verdict. See State v. Neal, 2008-NMCA-008, ¶¶ 19-20, 143 N.M.

12 341, 176 P.3d 330. Accordingly, we hold that there was sufficient evidence to support

13 Defendant’s convictions for aggravated assault and evading an officer.

14 Motion to Add an Argument that There Was Insufficient Evidence of Tampering
15 with Evidence

16        Defendant asks this Court to exercise its discretion to permit Defendant to

17 amend his docketing statement to add an argument that there was insufficient evidence

18 to support his conviction for tampering with evidence. [MIO 6-8] See Rule 12-208(F)

19 NMRA (“The Court of Appeals may, upon good cause shown, allow the amendment

20 of the docketing statement.”). We will allow a defendant to amend a docketing

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 1 statement to raise an additional issue only if the issue sought to be added is viable.

 2 See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled

 3 on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

 4        Here, Defendant argues that there was not sufficient evidence to support the

 5 jury’s determination that he took off his jacket and put it on the ground in order to

 6 prevent his apprehension, prosecution, or conviction. [MIO 7] Defendant relies on

 7 State v. Duran, 2006-NMSC-035, ¶¶ 12-18, 140 N.M. 94, 140 P.3d 515, in which our

 8 Supreme Court held that when certain evidence related to a crime was never found and

 9 there was no evidence to indicate that the defendant hid it, there was insufficient

10 evidence to support the defendant’s conviction for tampering with evidence. Duran

11 does not apply to this case, since here, the evidence was in fact found, several feet

12 away from the car in which Defendant was apprehended. It was for the jury to

13 determine whether Defendant placed the jacket there in order to make it less likely that

14 he would be identified by his clothing and caught, and as we will not re-weigh that

15 evidence, we conclude that this issue is not viable, and deny Defendant’s motion.

16 Prosecutorial Misconduct

17        Defendant contends that the prosecutor mischaracterized certain evidence in a

18 manner that deprived him of a fair trial. [DS unnumbered page 10] In closing, the

19 prosecutor apparently began to argue that Defendant had pulled a gun on Officer


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 1 Coon. [DS unnumbered page 9] However, Defendant objected and the district court

 2 sustained the objection. [DS unnumbered page 9] The prosecutor then stated that

 3 Defendant was probably drunk when he approached the vehicle, and Defendant’s

 4 objection to this statement was also sustained. [DS unnumbered page 9] In rebuttal,

 5 the prosecutor argued that Defendant actually pointed the gun at the Sanchezes, and

 6 again the district court sustained Defendant’s objection. [DS unnumbered pages 9-10]

 7        “[I]n reviewing claims of prosecutorial misconduct, we determine whether the

 8 [district] court abused its discretion by denying a motion for a new trial based upon

 9 the prosecutor’s conduct, by overruling the defendant’s objection to the challenged

10 conduct, or by otherwise failing to control the conduct of counsel during trial.” State

11 v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807. In this case, we cannot

12 conclude that the district court abused its discretion. It sustained all three of

13 Defendant’s objections and Defendant does not contend that it was not within the

14 district court’s discretion to do so. Although Defendant suggests in his memorandum

15 in opposition that the district court should have declared a mistrial [MIO 8], it does

16 not appear that Defendant sought a mistrial, and under the circumstances, the

17 prosecutor’s remarks did not have “such a persuasive and prejudicial effect on the

18 jury’s verdict that defendant was deprived of a fair trial.” See id. Therefore, we hold

19 that reversal is not warranted.


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1       Accordingly, for the reasons stated in this opinion and in our notice of proposed

2 summary disposition, we affirm.

3       IT IS SO ORDERED.

4                                        ___________________________________
5                                        RODERICK T. KENNEDY, Judge

6 WE CONCUR:



7 ___________________________
8 MICHAEL D. BUSTAMANTE, Judge



 9 ___________________________
10 MICHAEL E. VIGIL, Judge




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