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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          vs.                                                  No. 34,802


 5 TAYLOR E.,

 6                  Child-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Marci Beyer, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE, Judge.

18   {1}    Following a jury trial, Child appeals from an adjudicatory finding that he
 1 committed the delinquent act of battery on a peace officer, contrary to NMSA 1978,

 2 Section 30-22-24 (1971). [RP 106] We issued a notice of proposed summary

 3 disposition, proposing to affirm. In response, Child has filed a memorandum in

 4 opposition, which we have duly considered. Unpersuaded, we affirm.

 5        Issue (1): Child continues to argue that the disciplinary reports authored by Mr.

 6 Gonzales should have been excluded for noncompliance with Rule 11-404(B) NMRA.

 7 [MIO 2] Specifically, the reports included Child’s statement that Child “missed a time

 8 when everyone called him ‘demon,’ and that he was going to ‘. . . fuck shit up to earn

 9 that nickname again.’ ” [DS 4; MIO 3] The State argued below that the reports were

10 offered to prove motive and intent of Child. [MIO 2] In response, Child argues that

11 because there was no argument by the State that the incident was the result of “a

12 vendetta against Victor Gonzales[,] the reports are nothing more than assertions that

13 [Child] was [troubled].” [MIO 2] As such, Child argues that the reports were not

14 offered for motive and intent, but that State was trying to make the impermissible

15 inference that “troubled children are more likely to commit delinquent acts.” [MIO 2]

16        We disagree. The district court specifically tailored the evidence in this case by

17 excluding all other prior bad acts mentioned in the disciplinary reports, with the

18 exception of one statement “related to Victor Gonzales disciplining [Child] in the

19 past.” [DS 4; MIO 1] In accordance with the district court’s ruling, Mr. Gonzales


                                              2
 1 testified at trial that he had previously written up Child, as well as Child’s statement

 2 about his former nickname of “demon,” and Child’s “intent to earn that nickname

 3 again.” [DS 4] Our case law has explained that evidence that goes to the nature of the

 4 relationship between the victim and the defendant is admissible under Rule 11-404(B).

 5 See, e.g., State v. Flores, 2010-NMSC-002, ¶ 32, 147 N.M. 542, 226 P.3d 641

 6 (explaining, in the context of an appeal from a first-degree murder conviction, that

 7 “[i]n determining [the d]efendant’s guilt, the jury may consider the relationship of the

 8 parties and the animus of the accused toward the deceased” (internal quotation marks

 9 and citation omitted)). We conclude that the district court’s ruling was not an abuse

10 of discretion because the fact that Mr. Gonzales had written up Child in the past for

11 bad behavior could have been illustrative as to Child’s attitude towards Mr. Gonzales,

12 going specifically to motive and intent in this case.

13        We turn next to Child’s contention that “[t]he alleged statement that [Child]

14 missed the nickname ‘[d]emon’ and inten[d]ed to ‘fuck shit up’ in order to regain that

15 nickname does go to motive and intent but fails the [Rule] 11-403 [NMRA] balancing

16 test.” [MIO 3] Child argues that “[g]iven the unclear circumstances of the incident, the

17 admission of this evid[e]nce may have caused the jury to believe [Child’s] actions

18 were intentional hitting rather than flailing in response to unknown people touching

19 him to gain control over him when he was crying hysterically.” [MIO 3] We disagree.


                                              3
 1 The evidence of Child’s statements was probative to show lack of mistake or

 2 accident—specifically, that Child’s conduct was intentional, which the State was

 3 required to prove in this case. [RP 90] Child does not explain that other evidence was

 4 available to rebut the potential inference that Child’s conduct was unintentional. See

 5 State v. Otto, 2007-NMSC-012, ¶¶ 3, 14-16, 141 N.M. 443, 157 P.3d 8 (holding that

 6 the district court did not abuse its discretion in admitting uncharged acts under Rule

 7 11-403—specifically, statements made by the victim to her mother about the charged

 8 act of criminal sexual contact of a minor and subsequent uncharged acts that occurred

 9 out of state—because such evidence “was highly probative to show lack of mistake

10 or accident[,]” and “[t]here was no other evidence available to rebut this potential

11 inference”); see also State v. Ruiz, 1995-NMCA-007, ¶ 12, 119 N.M. 515, 892 P.2d

12 962 (“[T]he fact that evidence is prejudicial is not grounds for excluding it; exclusion

13 is required only when the danger of ‘unfair’ prejudice[] outweighs the legitimate

14 prejudice that is otherwise known as probative value.” (internal quotation marks and

15 citation omitted)); State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495

16 (recognizing that “[i]ntent can rarely be proved directly and often is proved by

17 circumstantial evidence”).

18        We therefore affirm.

19        Issue (2): Child continues to argue that the State failed to provide disclosure


                                              4
 1 compliant with Rule 10-231 NMRA and that the State did not provide reasonable

 2 notice under Rule 11-404(B). [MIO 4] Our notice observed that Child had not made

 3 any showing that he was prejudiced by the district court’s decision to admit the

 4 evidence despite the State’s alleged non-compliance with both of the rules. [CN 4–5,

 5 8] See generally In re Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d

 6 318 (“An assertion of prejudice is not a showing of prejudice.”). In his memorandum

 7 in opposition, Child merely reiterates that the State’s disclosure the day before trial

 8 “[was] simply too late to comply with Rule 11-404(B)’s [reasonable notice]

 9 requirement.” [MIO 4] Further, Child asserts that the State’s late disclosure “is the

10 definition of ‘surprise and gamesmanship’” and that “[t]he evidence should have been

11 excluded, as requested by the defense, or a continuance granted to allow the defense

12 to formulate a strategy to deal with the proposed use – such as investigating the

13 circumstances of [Child’s] alleged statement.” [MIO 4–5]

14        Importantly, in his memorandum in opposition, despite the request made in our

15 notice, Child has not explained how he was prejudiced by the district court’s ruling.

16 See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003

17 (stating that “[a] party responding to a summary calendar notice must come forward

18 and specifically point out errors of law and fact,” and the repetition of earlier

19 arguments does not fulfill this requirement), superseded by statute on other grounds


                                              5
 1 as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Child does not assert

 2 that he requested a continuance that was denied, or that an opportunity to investigate

 3 the circumstances of Child’s statement would have yielded a different strategy or

 4 outcome at trial. Child’s broad assertion of prejudice is speculative. See State v.

 5 Todisco, 2000-NMCA-064, ¶ 24, 129 N.M. 310, 6 P.3d 1032 (concluding that a claim

 6 of prejudice based on insufficient evidence did not show actual and substantial

 7 prejudice and was, therefore, speculative). We therefore affirm.

 8        In sum, for the reasons stated in our notice of proposed summary disposition

 9 and set forth above, we affirm.

10        IT IS SO ORDERED.



11                                               _____________________________
12                                               J. MILES HANISEE, Judge

13 WE CONCUR:



14 __________________________________
15 MICHAEL E. VIGIL, Chief Judge



16 __________________________________
17 M. MONICA ZAMORA, Judge



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