 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,638

10 CECIL HANEY,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Nancy Hewitt, Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.

23          Defendant appeals his conviction of one count of criminal sexual contact of a
 1 minor. We proposed to affirm the conviction. Defendant has timely responded. We

 2 have considered his arguments and, not being persuaded, we affirm.

 3        Defendant continues to argue that the district court erred in allowing the victim

 4 to testify about an uncharged incident. In our notice, we proposed to conclude that the

 5 district court did not err in allowing the testimony. [CN 2] The defense objection at

 6 trial was that the testimony concerned a second uncharged count that was not in the

 7 complaint. The objection was construed as going to notice of the testimony of other

 8 bad acts. [RP 141] The district court concluded, and we proposed to agree, that the

 9 defense was on notice of the testimony as it was part of the victim’s narrative that had

10 been given to the defense before trial.

11        In his memorandum in opposition, Defendant does not address this proposal.

12 Rather, he focuses on the bases for admission of bad acts evidence. [MIO 3-5] This

13 argument was not raised below. The objection to the admission of the evidence was

14 not that it was not admissible because the State failed to give a rationale for the

15 evidence; but rather, that the defense had been given no notice that such evidence

16 would be presented. [RP 141] Thus, we assume that Defendant understood that there

17 was a rationale for its admission as his only objection was that he had not been given

18 notice.


                                              2
 1        We conclude that the arguments against admission of this evidence made in the

 2 memorandum in opposition were not properly preserved below. See State v. Steven

 3 B., 2004-NMCA-086, ¶¶ 8, 10, 136 N.M. 111, 94 P.3d 854 (discussing preservation

 4 problems). Therefore, we do not address them.

 5        Defendant continues to argue that the evidence was insufficient to support the

 6 conviction. [MIO 5-7] In so doing, he argues that, because of the inconsistencies in

 7 the victim’s testimony, a jury could not determine, beyond a reasonable doubt, that

 8 Defendant touched or applied force to the victim’s penis. [MIO 6] As we pointed out

 9 in our notice, it was for the jury to reconcile the varied accounts and determine how

10 those accounts affected the victim’s testimony. [CN 5] The victim’s testimony that

11 Defendant touched his penis was sufficient to support the conviction. See State v.

12 Nichols, 2006-NMCA-017, ¶¶ 10-11, 139 N.M. 72, 128 P.3d 500 (filed 2005)

13 (discussing the victim’s testimony in relation to a sufficiency of the evidence claim).

14        Finally, Defendant continues to argue that the State should not have been

15 allowed to construe a statement that he had made regarding that he did not remember

16 inappropriately touching the victim as an admission. [MIO 7-8] As we pointed out

17 in our notice, the State is allowed to comment on evidence. [CN 3-4] Further, we

18 have stated that a failure to remember something is not a denial. See State v. Chavez,


                                              3
1 84 N.M. 247, 247, 501 P.2d 691, 691 (Ct. App. 1972).

2       For the reasons stated herein and in the notice of proposed disposition, we

3 affirm the conviction.

4       IT IS SO ORDERED.



5                                            _______________________________
6                                            JAMES J. WECHSLER, Judge

7 WE CONCUR:



8 _______________________________
9 RODERICK T. KENNEDY, Judge



10 _______________________________
11 MICHAEL E. VIGIL, Judge




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