 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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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. 30,742

10 MARVIN L. DEAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 James Waylon Counts, District Judge

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

16 for Appellee

17 Chief Public Defender
18 Allison H. Jaramillo
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant appeals his conviction for aggravated assault (deadly weapon) and

24 the enhancement of his sentence by eight years for being a habitual offender. [RP
 1 307] Our notice proposed to affirm, and Defendant filed a timely memorandum in

 2 opposition. We remain unpersuaded by Defendant’s arguments, and affirm.

 3        Issue (1). Defendant continues to argue that the submitted jury instruction for

 4 aggravated assault with a deadly weapon was “inherently so confusing and

 5 misleading” so as to deprive him of due process. [RP 190; DS 8, 4-5; MIO 5-9]

 6 Defendant argues specifically that the jury instruction was misleading because it failed

 7 to distinguish between two possible uses of a cattle prod—for use as administering an

 8 electrical shock and for use as a “club.” [DS 4; MIO 7]

 9        Defendant’s conviction for aggravated assault is not premised on use of the

10 cattle prod to shock Victim, but instead is specifically premised on Defendant’s use

11 of a cattle prod as a “club” in a manner that could cause death or great bodily harm.

12 In this regard, the jury instruction specifically requires the jury to find that Defendant

13 “tried to touch or apply force to [Victim] by swinging at [Victim] with a cattle prod.”

14 [RP 190] Defendant asserts that the jury instruction is comparable to the instruction

15 at issue in State v. Bonham, 1998-NMCA-178, 126 N.M. 382, 970 P.2d 154,

16 abrogated by State v. Traeger, 2001-NMSC-022, ¶¶ 1, 20, 130 N.M. 618, 29 P.3d

17 518, wherein the phrasing of the jury instruction erroneously did not require the jury

18 to determine whether the “hot plate” could be used as a deadly weapon. [MIO 8] We

19 disagree, because in the present case the jury instruction specifically provided that a


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 1 “cattle prod is a deadly weapon only if you find that a cattle prod, when used as a

 2 weapon, could cause death or great bodily harm[.]” [emphasis added] [RP 190] We

 3 thus disagree with Defendant’s argument that the jury instruction did not provide the

 4 jury with an opportunity to decide whether the cattle prod was used as a weapon.

 5 [MIO 5] Because the jury instruction is neither confusing nor misleading, we affirm.

 6        Issue (2). Defendant continues to argue there was insufficient evidence to

 7 support his conviction for aggravated assault with a deadly weapon. [DS 8; MIO 9-

 8 11] We note initially that the State did not proceed under a theory of aggravated

 9 assault that was dependent on whether the Victim was in fear of receiving an

10 immediate battery. [MIO 9, 11] Compare UJI 14-304 NMRA with UJI 14-305

11 NMRA. Instead, as noted above, Defendant’s conviction requires findings that he

12 tried to touch or apply force to Victim by swinging at Victim with a cattle prod; that

13 Defendant acted in a rude, insolent or angry manner; that Defendant used a cattle prod

14 as a deadly weapon such that it could have caused death or great bodily harm; and that

15 Defendant intended to touch or apply force to Victim. [RP 190] See NMSA 1978, §

16 30-3-2(A) (1963).

17        Defendant argues specifically that the evidence was insufficient to show that

18 he swung the cattle prod at Victim. [MIO 11] We disagree. As set forth in our

19 notice, Victim [RP 219] testified he saw Defendant holding a cattle prod and coming


                                             3
 1 after him with the cattle prod. [MIO 3; RP 221] Another witness [RP 226] testified

 2 that Defendant “came out kicking and swinging” and “had something [in] his hand

 3 like a bat.” [MIO 3; RP 227] We hold that the jury could have reasonably relied on

 4 the foregoing evidence to determine that Defendant swung an object at Victim. See

 5 State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985) (defining

 6 substantial evidence as that evidence which a reasonable person would consider

 7 adequate to support a defendant’s conviction). While evidence was also introduced

 8 that Defendant also used the cattle prod to shock Victim [DS 2; MIO 1, 11], the

 9 evidence upon which Defendant’s conviction is based is Defendant’s use of the cattle

10 prod as a club.

11        Issue (3). Defendant continues to argue that one of his 2005 prior convictions

12 used to sentence him as a habitual offender should be voided because its underlying

13 facts are similar to those in another case, State v. Rowell, 2008-NMSC-041, 144 N.M.

14 371, 188 P.3d 95, which Defendant argues should be retroactively applied. [DS 8;

15 MIO 4, 12] Defendant refers to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982,

16 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App.

17 1985), in support of his argument. [MIO 12] As set forth in our notice, this argument

18 was not preserved below and lacks merit. See generally State v. Varela, 1999-

19 NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (holding that, in order to preserve an


                                             4
 1 issue for appeal, the defendant must make a timely objection that specifically apprises

 2 the trial court of the nature of the claimed error and invokes an intelligent ruling

 3 thereon); State v. Wildenstein, 91 N.M. 550, 552, 577 P.2d 448, 450 (Ct. App. 1978)

 4 (providing that a challenge to the validity of the prior conviction in habitual offender

 5 proceedings is a collateral attack on its validity and is not permitted on the basis of

 6 issues which could have been raised on direct appeal).

 7 CONCLUSION

 8        For reasons set forth herein and in our notice, we affirm.

 9        IT IS SO ORDERED.



10                                         ___________________________________
11                                         RODERICK T. KENNEDY, Judge

12 WE CONCUR:



13 _________________________________
14 CELIA FOY CASTILLO, Chief Judge



15 _________________________________
16 MICHAEL D. BUSTAMANTE, Judge




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