 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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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. 30,693

10 FRANCISCO CASTILLO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 George P. Eichwald, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant appeals his conviction for second degree murder claiming the State

24 failed to prove lack of provocation. [DS 5-6; MIO 6-11] We proposed to affirm in
 1 a notice of proposed summary disposition, and Defendant has filed a memorandum

 2 in opposition and a motion to amend the docketing statement. Having considered the

 3 arguments raised by Defendant in his memorandum and motion and remaining

 4 unpersuaded, we affirm his conviction and deny his motion to amend the docketing

 5 statement.

 6        In our notice of proposed summary disposition, we observed that when

 7 undertaking a review for sufficiency of the evidence, we review the evidence in the

 8 light most favorable to the verdict, resolving all conflicts and indulging all permissible

 9 inferences to uphold the conviction and disregarding all evidence and inferences to the

10 contrary. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We do

11 not weigh the evidence or substitute our judgment for that of the fact finder so long

12 as there is sufficient evidence to support the verdict. State v. Mora, 1997-NMSC-060,

13 ¶ 27, 124 N.M. 346, 950 P.2d 789. We noted that the jury was properly instructed

14 that, in order to convict Defendant of second degree murder, it had to find, beyond a

15 reasonable doubt, that: (1) Defendant killed Douglas Robbins; (2) Defendant knew

16 that his acts created a strong probability of death or great bodily harm to Douglas

17 Robbins; (3) Defendant did not act as a result of sufficient provocation; (4) Defendant

18 did not act in self-defense; and (5) this happened in New Mexico on or about February


                                               2
 1 14, 2009. [RP 184] See UJI 14-210 NMRA. The jury was also instructed on the

 2 essential elements of the lesser included offense of voluntary manslaughter and they

 3 were specifically instructed that the difference between second degree murder and

 4 voluntary manslaughter is whether there was sufficient provocation. [RP 185] We

 5 then reviewed the evidence introduced at trial as set forth in the docketing statement

 6 and proposed to hold that based upon that evidence, the jury could conclude that

 7 Defendant was not sufficiently provoked at the time he killed Robbins. [DS 4-5; MIO

 8 4-5]

 9        In his memorandum in opposition, Defendant does not dispute our recitation of

10 the evidence introduced at trial in support of the conviction.           [MIO 2-12]

11 Furthermore, despite our instruction in the notice of proposed summary disposition,

12 Defendant has again failed to inform us of the evidence and arguments that may have

13 been introduced to support the State’s theory that Defendant committed the crime of

14 second degree murder. See Rojo, 1999-NMSC-001, ¶ 19 (noting that we may

15 disregard the evidence in favor of acquittal when considering sufficiency). For

16 example, in our notice of proposed summary disposition, we hypothesized that the

17 number of stab wounds and the fact that the stabbings apparently occurred in different

18 rooms over some amount of time may have allowed the jury to conclude that


                                             3
 1 Defendant had adequate time to “cool off” before continuing to stab Robbins. Cf.

 2 State v. Garcia, 95 N.M. 260, 262, 620 P.2d 1285, 1287 (1980) (stating that in order

 3 to reduce a murder charge to manslaughter, “there must be proof of adequate

 4 provocation at the time of commission of the crime [and] the provocation must be

 5 continuing and to such an extent that an ordinary person would not have cooled off

 6 before acting” (internal quotation marks and citation omitted)). We also noted that we

 7 were unaware of whether there was other testimony or evidence introduced by the

 8 State that may have served to weaken the evidence offered by Defendant in support

 9 of provocation.

10        In his memorandum in opposition, Defendant fails to inform us of the State’s

11 theory or whether any other evidence was introduced to negate Defendant’s theory of

12 provocation.      Instead, Defendant merely states that the evidence concerning

13 provocation was “largely uncontested” or “virtually unchallenged.” [MIO 1, 9, 12]

14        Therefore, for the reasons set forth in our notice of proposed summary

15 disposition, we are of the opinion that there was sufficient evidence to support

16 Defendant’s conviction for second degree murder and to prove, beyond a reasonable

17 doubt that Defendant did not act as a result of sufficient provocation. See State v.

18 Caudillo, 2003-NMCA-042, ¶ 7, 133 N.M. 468, 64 P.3d 495 (holding that, on appeal,


                                             4
 1 the question is whether substantial evidence supports the verdict, not whether

 2 substantial evidence would have also supported acquittal); State v. Glasgow,

 3 2000-NMCA-076, ¶¶ 26, 28, 129 N.M. 480, 10 P.3d 159 (recognizing that although

 4 “there was conflicting evidence that might support a finding of provocation . . . our

 5 standard of review demands that we view the evidence in the light most favorable to

 6 the verdict”).

 7 Motion to Amend the Docketing Statement

 8        Defendant seeks to amend his docketing statement to contend that the district

 9 court erred in refusing to strike a juror for cause. [MIO 1-2, 12-14] Under Rule 12-

10 208(F) NMRA, this Court “may, upon good cause shown, allow the amendment of the

11 docketing statement.” In cases assigned to the summary calendar, this Court will deny

12 a motion to amend the docketing statement if it raises issues that are not viable, even

13 if the issues allege fundamental or jurisdictional error. State v. Moore, 109 N.M. 119,

14 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State v.

15 Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

16        We review the district court’s ruling on a issue concerning jury selection for an

17 abuse of discretion “because the [district] court is in the best position to assess a

18 juror’s state of mind, based upon the juror’s demeanor and credibility.” State v.


                                              5
 1 Johnson, 2010-NMSC-016, ¶ 31, 148 N.M. 50, 229 P.3d 523 (quoting State v. Allen,

 2 2000-NMSC-002, ¶ 83, 128 N.M. 482, 994 P.2d 728). “An abuse of discretion occurs

 3 when the ruling is clearly against the logic and effect of the facts and circumstances

 4 of the case.” Rojo, 1999-NMSC-001, ¶ 41. “The challenging party bears the burden

 5 of proving juror bias.” Johnson, 2010-NMSC-016, ¶ 31.

 6        Defendant claims that a juror should have been excused because she was

 7 Defendant’s neighbor and remembered police cars in her neighborhood the morning

 8 after the incident and remembered seeing crime scene tape on the house. [MIO 1, 13]

 9 Defendant had used all of his peremptory strikes and claims that the juror should have

10 been struck for cause because she was potentially affected by the aftermath of the

11 incident. [MIO 1, 13] See Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 1140

12 (1987) (stating that when a district court abuses its discretion by failing to excuse a

13 juror who could not be impartial, prejudice will be presumed if the defendant has used

14 all of his peremptory challenges on potential jurors who could have been excused for

15 cause). We disagree.

16        We are not convinced that merely because the juror remembered seeing police

17 cars in the neighborhood after the incident, she was potentially affected in such a way

18 so as to render her incapable of being impartial. [MIO 13] There is nothing to


                                              6
 1 suggest that the juror knew Robbins or Defendant. Cf. Mares v. State, 83 N.M. 225,

 2 226, 490 P.2d 667, 668 (1971) (observing that a juror’s mere acquaintance with a

 3 witness is insufficient to establish partiality while noting that an actual relationship

 4 is sufficient for juror partiality). Furthermore, Defendant admitted to killing the

 5 victim, and thus we fail to see why a juror would be improperly prejudiced merely

 6 because she saw officers on the scene and crime scene tape. [MIO 2] Finally, we note

 7 that when questioned, the witness stated that she could be impartial. [MIO 13] Cf.

 8 Johnson, 2010-NMSC-016, ¶ 32 (holding that the district court did not abuse its

 9 discretion in refusing to excuse two jurors for cause when the jurors “indicated the

10 trial would cause them to think about the murders of their loved ones, [but] also

11 indicated that they would be able to be fair and follow the instructions of the judge”).

12        Based upon the foregoing, we are not convinced that the district court abused

13 its discretion in refusing to excuse the juror for cause. See id. Therefore, we deny

14 Defendant’s motion to amend his docketing statement to include this issue. See State

15 v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying a motion

16 to amend the docketing statement based upon a finding that the motion and the

17 argument offered in support thereof were not viable); Moore, 109 N.M. at 129, 782

18 P.2d at 101 (holding that a motion to amend will only be granted if the issue raised is


                                              7
1 viable).




             8
1 CONCLUSION

2       For the reasons set forth above as well as those set forth in our notice of

3 proposed summary disposition, we deny Defendant’s motion to amend the docketing

4 statement and affirm his conviction for second degree murder.

5       IT IS SO ORDERED.



6                                      ___________________________________
7                                      RODERICK T. KENNEDY, Judge

8 WE CONCUR:



 9 ___________________________
10 JAMES J. WECHSLER, Judge



11 ___________________________
12 JONATHAN B. SUTIN, Judge




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