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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. 33,169

 5 JARED THOMAS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 Jerry H. Ritter Jr., District Judge

 9 Gary K. King, 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 VIGIL, Judge.
 1   {1}   Defendant appeals his convictions for fourth degree felony false imprisonment

 2 and misdemeanor battery against a household member. [RP 12-13, 67, 70, 149] Our

 3 notice proposed to affirm. In response, Defendant filed a motion to amend his

 4 docketing statement as well as a memorandum in opposition. We deny Defendant’s

 5 motion to amend and remain unpersuaded by Defendant’s arguments. We therefore

 6 affirm.

 7   {2}   We address first Defendant’s motion to amend his docketing statement.

 8 Defendant seeks to add the issue of whether the police officer was an incompetent

 9 witness and was improperly allowed to read his police report as his testimony. [MIO

10 1, 7] As support for this issue, Defendant refers to State v. Franklin, 1967-NMSC-151,

11 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712

12 P.2d 1. [MIO 2] Our review of the record does not support Defendant’s assertion that

13 the officers read their police reports into the record; rather, it indicates that the officers

14 testified as to their observations. [RP 132-37] Nonetheless, even assuming Defendant

15 has accurately represented what happened below, Defendant acknowledges this issue

16 was not preserved below, but urges this Court to hold that fundamental error occurred.

17 [MIO 7] To the extent officers read their police reports, we perceive no error because

18 the officers could rely on their reports to refresh their memories. See generally Rule

19 11-612 NMRA (writing used to refresh a witness’s memory); see also State v. Stanley,


                                                 2
 1 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85 (providing that we review the district

 2 court’s admission or exclusion of evidence for an abuse of discretion and we will not

 3 disturb its evidentiary ruling absent a clear abuse of that discretion). Moreover, even

 4 if we agreed that error occurred, which we do not, it did not rise to the level of

 5 fundamental error because “there is no reasonable probability the error affected the

 6 verdict.” See State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (stating the

 7 standard for non-constitutional harmless error (emphasis, internal quotation marks,

 8 and citation omitted)). Because the issue Defendant seeks to add is not viable, we

 9 deny his motion to amend. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M.

10 58, 878 P.2d 1007 (denying a motion to amend the docketing statement based upon

11 a determination that the argument sought to be raised was not viable).

12   {3}   Apart from his motion to amend the docketing statement, Defendant continues

13 to argue in Issue I that the district court abused its discretion in allowing the State to

14 introduce the photograph of Victim’s injured ear. [RP 125; DS 2; MIO 5] As support

15 for his continued argument, Defendant refers to Franklin and Boyer. [MIO 6] For the

16 same reasons provided in our notice, we hold that the district court did not abuse its

17 discretion in determining that the probative value of the photograph was outweighed

18 by any prejudicial effect. See State v. Pettigrew, 1993-NMCA-095, ¶ 10, 116 N.M.

19 135, 860 P.2d 777 (recognizing that the reviewing court gives trial courts great


                                               3
 1 discretion in balancing the prejudicial impact of a photograph against its probative

 2 value); see also State v. Boeglin, 1987-NMSC-002, ¶ 23, 105 N.M. 247, 731 P.2d 943

 3 (concluding there was no abuse of discretion in admitting the photographs when the

 4 record indicated that the close-up photographs were necessary to depict the full extent

 5 of the victim’s wounds); State v. Ho’o, 1982-NMCA-158, ¶¶ 19-20, 99 N.M. 140, 654

 6 P.2d 1040 (holding that photographs are properly admitted within the discretion of the

 7 trial court when they are corroborative of other relevant evidence adduced at the trial

 8 and reasonably relevant to material issues at trial).

 9   {4}   Lastly, Defendant continues to argue in Issues II and III that the evidence was

10 insufficient to support his convictions for fourth degree felony false imprisonment [RP

11 12, 67] and misdemeanor battery against a household member. [RP 13, 70] See NMSA

12 1978, §§ 30-4-3 (1963) and 30-3-15 (2008); see also State v. Sutphin, 1988-NMSC-

13 031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (setting forth the standard of review for

14 substantial evidence). In support of his continued arguments, Defendant refers to

15 Franklin and Boyer. [MIO 7] For the reasons extensively detailed in our notice, we

16 hold that substantial evidence supports Defendant’s convictions. See State v. Sparks,

17 1985-NMCA-004, ¶¶ 6-7, 102 N.M. 317, 694 P.2d 1382 (defining substantial

18 evidence as that evidence which a reasonable person would consider adequate to

19 support a defendant’s conviction). In so holding, we acknowledge Defendant’s


                                              4
 1 arguments that he wrapped his arms around Victim not to restrain her against her will,

 2 but instead in an attempt to calm her [DS 2; MIO 4, 6] and that Victim’s ear was

 3 injured accidentally. [MIO 6; RP 127, 140] As we stated in our notice, however, the

 4 jury was free to disbelieve Defendant’s view of the evidence. See State v. Salazar,

 5 1997-NMSC-044, ¶ 44, 123 N.M. 778, 945 P.2d 996 (holding that it is the fact

 6 finder’s prerogative to reject the defendant’s version of the event); see also State v.

 7 Fuentes, 2010-NMCA-027, ¶ 17, 147 N.M. 761, 228 P.3d 1181 (noting that it is up

 8 to the jury to evaluate a witness’s credibility).

 9   {5}   To conclude, for the reasons detailed in our notice and discussed above, we

10 affirm.

11   {6}   IT IS SO ORDERED.


12                                          __________________________________
13                                          MICHAEL E. VIGIL, Judge

14 WE CONCUR:



15 ___________________________________
16 JONATHAN B. SUTIN, Judge



17 ___________________________________
18 CYNTHIA A. FRY, Judge


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