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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. 33,060

 5 JESSE JAMES MILLER,

 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   Jorge A. Alvarado, Chief Public Defender
13   Santa Fe, NM
14   Steven J. Forsberg, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   Defendant appeals his convictions for intimidation of a witness and aggravated

 2 battery. This Court proposed to affirm in a notice of proposed summary disposition,

 3 and Defendant filed a memorandum in opposition to our proposed disposition. Having

 4 considered the arguments asserted by Defendant in his memorandum and remaining

 5 unpersuaded, we affirm the judgment and sentence entered by the district court.

 6   {2}   In his docketing statement, Defendant raised two evidentiary issues, challenging

 7 the exclusion of evidence that his victim, who testified at trial, “tested positive for

 8 marijuana” at the hospital where he was treated, and also challenging the admission

 9 of testimony by a police officer who was permitted to repeat statements made by the

10 victim shortly after the events at issue. [DS 3-4] Because a district court’s evidentiary

11 rulings are reviewed for abuse of discretion, they will not be overturned unless

12 “clearly against the logic and effect of the facts and circumstances of the case.” State

13 v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829.

14   {3}   In our notice of proposed summary disposition, we noted the docketing

15 statement’s failure to provide a summary of “all facts material to a consideration of

16 the issues presented.” [CN 2 (quoting Rule 12-208(D)(3) NMRA)] That notice,

17 nonetheless, proposed to affirm the district court’s evidentiary rulings on the basis that

18 various potential grounds to affirm the district court appeared to be supported by

19 Defendant’s partial recitation of the facts surrounding his trial. [CN 4-9] Defendant’s


                                               2
 1 memorandum in opposition provides a more complete recitation of those facts, which

 2 we have now reviewed. [MIO 1-3]

 3   {4}   With regard to Defendant’s first issue, this Court’s notice proposed to affirm

 4 on alternative grounds, including Rule 11-608(B) NMRA, which prohibits the use of

 5 extrinsic evidence to impeach a witness on collateral matters. [CN 7] See State v.

 6 Lucero, 1999-NMCA-102, ¶ 39, 127 N.M. 672, 986 P.2d 468 (applying Rule 11-608).

 7 Based upon a review of the facts recited in Defendant’s memorandum in opposition,

 8 it now appears that this was the basis for the district court’s exclusion of records

 9 regarding the victim’s positive tests for THC. [MIO 2] Defendant continues to assert

10 that the district court’s ruling improperly limited his ability to impeach the witness.

11 We are unconvinced, however, that the district court abused its discretion in applying

12 Rule 11-608. Finding no error in that evidentiary ruling, we affirm the district court

13 on this issue.

14   {5}   With regard to Defendant’s second issue, this Court’s notice proposed to affirm

15 on the basis that the hearsay complained of, being merely cumulative of other trial

16 evidence, did not prejudice Defendant. [CN 8 (citing State v. Bonham,

17 1998-NMCA-178, ¶¶ 10-11, 126 N.M. 382, 970 P.2d 154)] Error in the admission or

18 exclusion of evidence “is harmless when there is no reasonable probability the error

19 affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (internal


                                              3
 1 quotation marks and citation omitted). Although Defendant’s memorandum in

 2 opposition argues that the testimony at issue was not merely cumulative of other

 3 evidence [MIO 4], we are unpersuaded that the testimony complained of differed from

 4 other trial evidence in any material respect [See DS 2 (acknowledging witness’s

 5 testimony “that he was the victim of a beating by [Defendant]”)]. As a result, we are

 6 unpersuaded that there is any reasonable probability that the challenged testimony

 7 affected the verdict. See Tollardo, 2012-NMSC-008, ¶ 36.

 8   {6}   Alternatively, it also appears from the facts now recited in Defendant’s

 9 memorandum in opposition that the testimony at issue was also admissible under Rule

10 11-803(1) NMRA, which provides an exception to the rule against hearsay for

11 statements “describing or explaining an event or condition, made while or

12 immediately after the declarant perceived it.” Following Defendant’s hearsay

13 objection at trial, the district court heard the arguments of the parties before

14 concluding that the potential hearsay was “a contemporaneous statement taken shortly

15 after the event.” [MIO 3] It thus appears that the testimony at issue was admissible as

16 a present sense impression. And, in any event, Defendant was not prejudiced by the

17 substance of that testimony. Finding no abuse of discretion in the district court’s

18 decision to receive that testimony, we affirm that ruling.

19   {7}   Thus, for the reasons stated here and in our notice of proposed summary


                                              4
1 disposition, we affirm the judgment and sentence entered by the district court.

2   {8}   IT IS SO ORDERED.


3                                        __________________________________
4                                        MICHAEL E. VIGIL, Judge

5 WE CONCUR:



6 ___________________________________
7 MICHAEL D. BUSTAMANTE, Judge



8 ___________________________________
9 CYNTHIA A. FRY, Judge




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