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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                   NO. 27,117

 5 RAYMOND WHITING,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Neil C. Candelaria, District Judge

 9 Gary K. King, Attorney General
10 Ann M. Harvey, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Hugh W. Dangler, Chief Public Defender
14 Eleanor Brogan, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                              MEMORANDUM OPINION

18 GARCIA, Judge.

19        Defendant appeals his convictions for one count of aggravated battery by

20 deadly weapon and great bodily harm and three counts of aggravated assault with a

21 deadly weapon. Defendant raises several issues on appeal: (1) the district court erred

22 in denying his two motions for a mistrial, (2) the district court erred in denying his

23 motion for a new trial, and (3) there is insufficient evidence to support his convictions.
 1 We affirm the district court on all issues.

 2 BACKGROUND

 3        On April 29, 2002, Ms. Rivera received a phone call from her friend, Celice

 4 Baca (Co-defendant), who was crying. Co-defendant asked Rivera to pick her up and

 5 drive to Co-defendant’s sister’s house to collect her things because her sister was

 6 throwing Co-defendant out on the street. After going to Co-defendant’s sister’s house,

 7 Co-defendant next asked Rivera to drive to Co-defendant’s father’s house. Upon

 8 arriving at the father’s home, Co-defendant’s boyfriend, Raymond Whiting

 9 (Defendant), got into the back seat of Rivera’s car. Rivera became nervous and

10 scared. She did not want Defendant in her car. Defendant and Co-defendant told

11 Rivera to drive to the west side of Albuquerque. After exiting the freeway and

12 approaching a truck stop, Rivera stopped her car and refused to drive any further.

13 Defendant pulled out a knife, moved it towards Rivera’s throat, and threatened to kill

14 her. A struggle ensued as Rivera tried to fight off Defendant. Co-defendant was also

15 punching Rivera from the passenger seat. Rivera temporarily passed out. Defendant

16 and Co-defendant threw Rivera out of the car. Rivera suffered lacerations on her

17 forearm and shoulder, as well as knife cuts on her hand.

18        Two men, Mr. Herrera, a security guard, and Mr. Hicks, a truck driver, were

19 talking outside the truck stop when they heard Rivera begin to yell for help. They ran


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 1 over to Rivera and tried to help her off the ground. Contemporaneously, Defendant

 2 began driving Rivera’s car. Defendant made three separate passes at Rivera, Herrera,

 3 and Hicks, who all moved out of the way during each pass to avoid being hit by the

 4 car. Defendant then left the truck stop and drove away.

 5        At the start of the trial, Defendant and Co-defendant were being tried together

 6 as joined parties and presented the case in that manner during the voir dire to select

 7 a jury. During a break in voir dire, the district court learned that Co-defendant desired

 8 to accept a plea agreement. After voir dire was completed and outside the presence

 9 of the jury, the district court heard and accepted Co-defendant’s plea agreement.

10 Immediately thereafter, also outside the presence of the jury, Defendant moved to

11 impanel a new jury and moved for a mistrial. Defendant argued that the jury would

12 be tainted by Co-defendant’s sudden absence. The district court denied the motion

13 and later instructed the jury, “Ms. Baca is no longer involved in this case. You are not

14 to speculate nor discuss the reasons why.” The jury found Defendant guilty of one

15 count of aggravated battery by deadly weapon and great bodily harm and three counts

16 of aggravated assault with a deadly weapon. After the trial was complete, Defendant

17 renewed his motion for a mistrial, and the district court denied Defendant’s motion for

18 the second time.

19        After the trial ended, defense counsel interviewed members of the jury and


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 1 questioned them regarding the case. Defense counsel inquired whether the State had

 2 proven that Defendant was present during the incident. These discussions occurred in

 3 the presence of the district court and the district attorney. The conversations were not

 4 on the record, and the parties disagree about what transpired during these

 5 conversations with jurors. According to Defendant, “the jurors indicated that they

 6 considered the fact that the Defendant did not take the stand,” and one of the jurors

 7 stated something to the effect that “it was really close, but we figured that since

 8 [Defendant] didn’t testify, or put on an alibi witness, that [Defendant] was there.”

 9 According to the State, “[One] of the jurors indicated it was a close decision and

10 commented that [the] defense did not put on evidence to support their theory.”

11 Following these discussions, Defendant filed a motion for a new trial. No affidavit

12 or other form of verified statement was attached to Defendant’s motion. A hearing on

13 the motion was held, and the district court denied Defendant’s motion. No record of

14 this hearing on Defendant’s motion for a new trial has been provided for appellate

15 review.

16 DISCUSSION

17 Absence of Co-Defendant

18         Defendant argues the district court erred by denying his motions for a mistrial.

19 Defendant asserts that the jury panel was tainted when it heard the instruction that Co-


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 1 defendant was no longer involved in the case. We must decide whether the district

 2 court abused its discretion in denying Defendant’s motions. State v. Gonzales,

 3 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131 (“We review a [district] court’s

 4 denial of a motion for mistrial under an abuse of discretion standard.”).

 5        Defendant has asserted and therefore has the burden to show that the extraneous

 6 information actually reached the jury. “This burden is not discharged merely by

 7 allegation; rather, [the d]efendant must make an affirmative showing that some

 8 extraneous influence came to bear on the jury’s deliberations.” State v. Mann, 2002-

 9 NMSC-001, ¶ 19, 131 N.M. 459, 39 P.3d 124 (internal quotation marks and citation

10 omitted). It is not clear that Co-defendant’s absence after jury selection constitutes

11 extraneous information pursuant to the authorities cited to the Court by Defendant.

12 Even if Co-defendant’s participation in voir dire was considered extraneous, the

13 district court could find that this information did not prejudice Defendant or result in

14 an unfair trial. Id. ¶ 20.

15          Co-defendant’s participation in this incident remained part of the evidence

16 presented throughout the trial. Defendant has failed to identify any material change

17 in the evidence presented that might have resulted from Co-defendant’s absence after

18 jury selection. Defendant also failed to identify any specific matter raised in jury

19 selection to show that the jury was tainted by information about Co-defendant.


                                              5
 1 Instead, Defendant asks this Court to speculate that there was a reasonable possibility

 2 that the information prejudiced him. Defendant asserts that the jury could speculate

 3 that the reason Co-defendant was no longer involved in the trial was due to her plea

 4 of guilty taken outside their presence. Defendant then argues that the jury would

 5 construe any guilt by Co-defendant into a belief that Defendant must also be guilty.

 6 There are no facts in the record to support Defendant’s assertions. Speculation is not

 7 enough to prove actual prejudice. State v. Gardner, 2003-NMCA-107, ¶¶ 9-10, 134

 8 N.M. 294, 76 P.3d 47 (rejecting the defendant’s “speculative argument” to prove

 9 prejudice to jurors); In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915

10 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).

11        As a curative measure, the district court instructed the jury not to concern itself

12 with the reasons why Co-defendant was no longer involved in the case. The court’s

13 instruction was given to eliminate any potential prejudice arising from Co-defendant’s

14 absence after jury selection. We presume that jurors follow the instructions of the

15 district court. State v. Gonzales, 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992)

16 (“The jury is presumed to follow the court’s instructions.”); see Gardner, 2003-

17 NMCA-107, ¶ 12 (recognizing the speculative nature of alleged bias during voir dire).

18 Defendant failed to prove that he was harmed by information regarding Co-defendant

19 during jury selection. Given the speculative nature of Defendant’s allegation of bias


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 1 or prejudice, the district court’s rulings were not “against the logic and effect of the

 2 facts and circumstances before the court, and the trial court did not abuse its

 3 discretion.” Gardner, 2003-NMCA-107, ¶ 12 (internal quotation marks and citation

 4 omitted). Co-defendant’s absence from trial after jury selection, without more, does

 5 not constitute the type of information sufficient to prejudice Defendant or cause an

 6 unfair trial. The district court did not abuse its discretion when it found that this

 7 information did not prejudice Defendant and denied his motions for a mistrial.

 8 The Juror Statements After Trial

 9        Defendant argues on appeal that the district court abused its discretion in

10 denying his motion for a new trial. Defendant asserts that the jury ignored the court’s

11 instructions and impermissibly used Defendant’s decision not to testify as evidence

12 of his guilt. After reviewing the district court’s decision for an abuse of discretion,

13 we affirm the district court’s denial of Defendant’s motion for a new trial. See State

14 v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363.

15        Defendant asks this Court to impeach the jury’s verdict based on the jurors’

16 comments after trial. Rule 11-606(B) NMRA and New Mexico case law do not

17 permit impeaching jury verdicts based on juror statements after trial except under

18 limited circumstances. Rule 11-606(B) states:

19        Upon an inquiry into the validity of a verdict or indictment, a juror may
20        not testify as to any matter or statement occurring during the course of

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 1        the jury’s deliberations or to the effect of anything upon that or any other
 2        juror’s mind or emotions as influencing the juror to assent to or dissent
 3        from the verdict or indictment or concerning the juror’s mental processes
 4        in connection therewith.

 5 Rule 11-606(B) then lists three exceptions describing when a juror may testify. A

 6 juror may testify about extraneous information reaching the jury, outside influence on

 7 the jury, and any mistake the jurors made in entering a verdict on the verdict form.

 8 Rule 11-606(B). Defendant makes no argument that the jurors’ statements following

 9 trial fit within one of these three exceptions.

10        Defendant argues that we should review the jurors’ statements to determine

11 whether there was juror misconduct in not following the district court’s instructions.

12 We do not interpret Rule 11-606(B) to allow a juror to testify about mental processes

13 during deliberations. Mann, 2002-NMSC-001, ¶ 27 (“Although some forms of

14 misconduct, such as a juror making an unauthorized visit to the scene of a crime, may

15 infringe on a defendant’s right to a fair jury, we are cautious and reluctant to apply

16 this reasoning to actions approaching juror deliberations.”); State v. Sena, 105 N.M.

17 686, 687-88, 736 P.2d 491, 492-93 (1987) (affirming the district court’s refusal to

18 hear post-trial evidence of jury misconduct based on juror’s statement that he knew

19 the defendant was guilty but could not base the conviction on evidence from trial);

20 Duran v. Lovato, 99 N.M. 242, 248, 656 P.2d 905, 911(Ct. App. 1982) (concluding

21 that verdict impeachment under Rule 11-606(B) is not aimed at jury deliberations but

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 1 at jury misconduct such as conducting independent speed tests prior to deliberations).

 2        Defendant relies primarily on DeGraff for his argument. State v. DeGraff,

 3 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61. In the portions of DeGraff cited by

 4 Defendant, the Supreme Court analyzed whether prosecutorial comments regarding

 5 the defendant’s silence during the trial amounted to fundamental error. Id. ¶¶ 21-23.

 6 DeGraff does not address juror misconduct or any resulting abuse of discretion by the

 7 district court involving post-trial statements made by a juror. See id.

 8        Defendant’s evidentiary argument is based solely upon counsel’s memory and

 9 recollection of juror comments during the interviews taken after the trial ended and

10 the jury was dismissed. Defense counsel’s recollection of the juror comments are

11 contested by the State and the district court rejected Defendant’s argument. Defendant

12 does not provide this Court with any affidavits or other evidence of misconduct. In

13 addition, Defendant failed to present for our review the district court record of the

14 hearing on this post-trial motion. Without any record to support Defendant’s

15 arguments, we will not review his claims. State v. Jim, 107 N.M. 779, 780, 765 P.2d

16 195, 196 (Ct. App. 1988) (“It is defendant’s burden to bring up a record sufficient for

17 review of the issues he raises on appeal”). The district court did not abuse its

18 discretion when it denied Defendant’s post-trial motion for a new trial.

19 Sufficiency of the Evidence


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 1          Defendant argues that there was insufficient evidence to support his

 2 convictions. Specifically, Defendant’s theory is that the State did not prove beyond

 3 a reasonable doubt that Defendant committed the crimes because: (1) Hicks did not

 4 testify, and (2) Herrera could not positively identify Defendant as the person who was

 5 driving the car at the time of the incident.

 6          We review the evidence to determine whether there was substantial evidence

 7 to support the convictions. “[A s]ubstantial evidence review requires analysis of

 8 whether direct or circumstantial substantial evidence exists and supports a verdict of

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

10 We determine whether a rational factfinder could have found that each element of the

11 crime was established beyond a reasonable doubt.” State v. Kent, 2006-NMCA-134,

12 ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). “The reviewing court does not

13 weigh the evidence or substitute its judgment for that of the [factfinder] as long as

14 there is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060,

15 ¶ 27, 124 N.M. 346, 950 P.2d 789.

16          In order to convict Defendant of aggravated assault with a deadly weapon, the

17 State needed to establish beyond a reasonable doubt the following elements of the

18 crime:

19            1.    The [D]efendant touched or applied force by trying to run
20            over or strike [the victim] with a motor vehicle;

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 1          2.     The [D]efendant acted in a rude, insolent or angry manner;

 2          3.    The [D]efendant intended to touch or apply force to [the
 3          victim] by running over or striking [the victim] with a motor
 4          vehicle;

 5          OR

 6          1.    The [D]efendant drove a motor vehicle at or towards [the
 7          victim];

 8          2.     The [D]efendant’s conduct caused [the victim] to believe
 9          that the defendant was about to intrude on [the victim’s] bodily
10          integrity or personal safety by touching or applying force to [the
11          victim] in a rude, insolent, or angry manner;

12          3.    A reasonable person in the same circumstances as [the
13          victim] would have had the same belief;

14          AND

15          4.    The [D]efendant used a motor vehicle. A motor vehicle is a
16          deadly weapon only if you find that a motor vehicle, when used as
17          a weapon, could cause death or great bodily harm;

18          AND

19          5.     This happened in New Mexico on or about the 29th day of
20          April, 2002.

21 The State charged Defendant with three counts of aggravated assault, one for each

22 victim: Rivera, Herrera, and Hicks.

23        Defendant claims there was insufficient evidence for a conviction for

24 aggravated assault against Hicks because Hicks did not testify and because the State

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 1 failed to present any evidence regarding Hicks’ belief about Defendant’s conduct.

 2 Defendant’s first argument fails because Hicks does not have to testify in order for the

 3 State to prove its case under the first of the two available options. Rivera and Herrera

 4 provided sufficient detailed testimony regarding Defendant’s actions on April 29,

 5 2002. Rivera testified that Defendant made several passes in an attempt to run her

 6 over and to run over the two men helping her. Herrera testified that “the guy who was

 7 driving” drove toward him, “the woman,” and “the truck driver” and that they all had

 8 to move “so he wouldn’t get us.” Rivera and Herrera’s testimony is sufficient to

 9 establish the elements of the aggravated assault by Defendant against Hicks. State v.

10 Hamilton, 2000-NMCA-063, ¶ 20, 129 N.M. 321, 6 P.3d 1043 (stating that a single

11 witness’ testimony can be sufficient to support a jury’s verdict) (citation omitted).

12 Once the State proved its first theory utilizing Rivera’s and Herrera’s testimony, it was

13 not required to establish a second theory that relied upon the victim’s beliefs. See UJI

14 14-306 NMRA. Rivera and Herrera provided sufficient evidence to prove the

15 elements of aggravated assault. Hicks was not required to testify about his beliefs

16 because they were unnecessary.

17        Defendant next argues that because Herrera could not positively identify

18 Defendant as the person driving the vehicle on the night in question, there was

19 insufficient evidence for a conviction for aggravated assault against Herrera and


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 1 Rivera and for aggravated battery with a deadly weapon against Rivera. Defendant

 2 fails to present any authority that every witness must positively identify a defendant

 3 in order for the state to demonstrate beyond a reasonable doubt that a defendant

 4 committed the crime. Rivera positively identified Defendant as her assailant and as

 5 the driver. As a result of Rivera’s testimony, the jury had evidence that could

 6 positively identify Defendant as the driver. The inconclusive testimony from Herrera

 7 about whether Defendant was the driver went to the weight of the evidence that the

 8 jury was required to consider. State v. Vigil, 87 N.M. 345, 350, 533 P.2d 578, 583

 9 (1975) (“The determination of the weight and effect of the evidence, as well as

10 inferences to be drawn from both direct and circumstantial evidence, are matters

11 reserved for the determination of . . . the trial jury.”). It is the job of the jury, not the

12 appellate court, to hear the evidence presented at trial, weigh the evidence, and decide

13 a defendant’s guilt. UJI 14-5020 NMRA (“You alone are the judges of the credibility

14 of the witnesses and the weight to be given to the testimony of each of them.”). A

15 reasonable factfinder could have relied on Rivera’s testimony to determine that

16 Defendant was the driver. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971

17 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis for

18 reversal because the jury is free to reject [the D]efendant’s version of the facts.”).

19 Sufficient evidence exists to affirm the Defendant’s convictions on all of the


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1 aggravated assault charges and the aggravated battery charge.

2 CONCLUSION

3       For the foregoing reasons, we affirm the district court.

4       IT IS SO ORDERED

5                                               ______________________________
6                                               TIMOTHY L. GARCIA, Judge


7 WE CONCUR:



8 _________________________________
9 JAMES J. WECHSLER, Judge



10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge




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