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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. 33,863

 5 ANTOINE WILLIAMS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Santa Fe, NM
14   Jorge A. Alvarado, Chief Public Defender
15   Josephine H. Ford, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant Antoine Williams appeals from the district court’s judgment

 2 affirming his convictions for battery on a household member, contrary to NMSA

 3 1978, Section 30-3-15 (2008), and interference with communications, contrary to

 4 NMSA 1978, Section 30-12-1 (1979). Unpersuaded by Defendant’s docketing

 5 statement, we entered a notice of proposed summary disposition, proposing to affirm.

 6 Defendant has filed a memorandum in opposition to our notice.              We remain

 7 unpersuaded and therefore affirm.

 8   {2}   Defendant raises two issues on appeal: (1) whether the trial court erred in

 9 denying his motion for a mistrial based on prosecutorial misconduct in the form of

10 statements made during closing arguments, and (2) whether there was sufficient

11 evidence to support the conviction of battery against a household member. [DS 24-

12 25; MIO 21-25]

13   {3}   Our notice detailed the relevant facts for each issue and set forth the law that

14 we believe controls. Applying the law to the facts, we proposed to conclude that

15 (1) the trial court did not abuse its discretion in denying Defendant’s motions for a

16 mistrial, and (2) the evidence was sufficient to support Defendant’s convictions. We

17 do not reiterate our analysis detailed in the notice here and instead focus on the

18 content of the memorandum in opposition.




                                               2
 1   {4}   Defendant’s response to our notice continues to argue that the trial court should

 2 have granted Defendant’s motions for a mistrial. [MIO 21] Specifically, Defendant

 3 asserts that the curative instruction given by the trial court was insufficient given the

 4 nature of the prosecutor’s comments. [MIO 21-24] Defendant attempts to analogize

 5 to State v. Cummings, 1953-NMSC-008, 57 N.M. 36, 253 P.2d 321, and asserts that

 6 a statement of facts unsupported by the evidence presented, cannot be justified as

 7 argument. [MIO 22-24] Cummings, however, is distinguishable. In that case, the

 8 defendant was found guilty of involuntary manslaughter after he struck a pedestrian

 9 with his car while intoxicated, killing the pedestrian. Id. ¶¶ 1-2. During closing

10 arguments, the prosecutor remarked three times: “This jury must consider that 285

11 deaths on our highways this year have resulted from traffic accidents.” Id. ¶ 7

12 (internal quotation marks omitted). These assertions were “entirely outside of the

13 evidence,” and the prosecutor repeated this information three times despite the trial

14 court’s admonitions. Id. ¶ 8.

15   {5}   In this case, the prosecutor made two different improper comments that were

16 brief and isolated, and unlike the court in Cummings, the trial court gave a curative

17 instruction. Under these circumstances, we cannot “determine that all the safeguards

18 at the trial level have failed” or that the trial court abused its discretion by acting in

19 “an obviously erroneous, arbitrary, or unwarranted manner.” State v. Torres, 2012-


                                               3
 1 NMSC-016, ¶ 7, 279 P.3d 740 (internal quotation marks and citations omitted); see

 2 also id. (explaining that we should only reverse the judgment of a trial court in this

 3 context “in the most exceptional circumstances” (internal quotation marks and citation

 4 omitted)); id. ¶ 8 (“Because the trial court is better able to gauge the magnitude of

 5 objectionable comments, we afford it broad discretion in choosing the appropriate way

 6 to respond.”).

 7   {6}   With respect to Issue (B), Defendant does not assert that our account of the

 8 evidence upon which we proposed to rely was incorrect; further, his response does not

 9 assert any new factual or legal argument that persuades this Court that our notice was

10 incorrect regarding the sufficiency of the evidence. See State v. Mondragon, 1988-

11 NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a

12 summary calendar notice must come forward and specifically point out errors of law

13 and fact, and the repetition of earlier arguments does not fulfill this requirement),

14 superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031,

15 ¶ 3, 297 P.3d 374. Therefore, on the basis of our proposed analysis, we hold that

16 sufficient evidence supports Defendant’s conviction.

17   {7}   For the reasons set forth in our notice and this Opinion, we affirm.

18   {8}   IT IS SO ORDERED.

19                                         __________________________________
20                                         JONATHAN B. SUTIN, Judge

                                              4
1 WE CONCUR:

2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge

4 _________________________________
5 TIMOTHY L. GARCIA, Judge




                                  5
