July 28, 2017- State of New Mexico v. Fabian Lopez, No. 34,615

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: July 28, 2017
NO. 34,615
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FABIAN LOPEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Stephen K. Quinn, District Judge
Hector H. Balderas, Attorney General
Laura E. Horton, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
GARCIA, Judge.
{1} 	Defendant, Fabian Lopez, was convicted of aggravated battery with a deadly
weapon, following a workplace altercation. Defendant raises multiple issues on
appeal, including whether the over two hundred day delay between conviction and
sentencing violated due process. As an issue of first impression, we conclude that
Defendant failed to show prejudice and that no due process violation occurred. On
Defendant’s remaining arguments raised on appeal, we hold that there is no reversible
error. As such, we affirm Defendant’s conviction.
BACKGROUND
{2} 	In February 2011, Saul Montano (Victim or Mr. Montano) and Defendant both
worked at the Midway Dairy in Portales, New Mexico. Defendant speaks very little
Spanish and Mr. Montano speaks very little English. On February 13, 2011, the two
men engaged in an altercation which seemingly resulted from their limited proficiency
in the language spoken by the other party. While the two men were working, they
began verbally arguing and at first, Jesus Acosta, a witness to the altercation, believed
the two men were just kidding around. Mr. Acosta testified that a third person was
mistranslating what Defendant and Mr. Montano were saying to each other. Defendant
testified that he believed that Mr. Montano was gay and was trying to come on to him,

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saying “open [your] butt hole.” Mr. Montano testified that he said to Defendant “make
way asshole” while trying to get by him in the dairy. Defendant became furious and
he yelled at Mr. Montano that he was not gay. The two men went outside and both
men testified that the other threw the first punch. They scuffled for a few minutes and
Defendant ended up on the ground. Defendant testified that he had his shirt over his
head, which caused him to panic. Mr. Montano admitted that he was going to continue
to punch Defendant, but Defendant pulled a knife out of his boot. Defendant then
stabbed Mr. Montano one time in his upper leg near his buttocks.
{3} 	State Police Agent Noe Alvarado was dispatched to the home of Mr. Montano,
where he was receiving medical attention from paramedics. Agent Alvarado then went
to the dairy to speak with Defendant, where Defendant’s wife gave Agent Alvarado
the knife used in the altercation. Defendant admitted to Agent Alvarado that he had
an argument with and then stabbed Mr. Montano.
PROCEDURAL HISTORY
{4} 	Defendant was arrested and then released on bond on February 16, 2011, and
remained out on bond during the entirety of the proceedings. A preliminary hearing
was held in Roosevelt County Magistrate Court on April 13, 2011. On April 14, 2011,
the State filed a criminal information charging Defendant with aggravated battery with
a deadly weapon, pursuant to NMSA 1978, Section 30-3-5(A), (C) (1969), and

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attached a list of witnesses for trial, including Agent Alvarado and Mr. Montano. On
June 24, 2011, the State filed a second witness list adding Mr. Acosta with his address
as the Midway Dairy in Portales.
{5} 	A hearing was held on August 19, 2011, regarding Defendant’s motion for
discovery. The State notified the district court that discovery had been available on the
database since April 28, 2011. Defendant filed a motion to suppress Mr. Montano’s
testimony on September 9, 2011, claiming the State failed to produce the “alleged
victim” for an interview. The district court held a hearing on Defendant’s motion on
December 9, 2011. The State argued that it had set up two courtesy interviews with
Mr. Montano but that he did not show up to either. The district court instructed
Defendant to subpoena Mr. Montano and if then he did not appear, it would consider
suppressing his testimony. Defendant issued a subpoena for an interview with Mr.
Montano at his New Mexico address on December 16, 2011. However, service was
not completed because Mr. Montano had moved to Buckeye, Arizona, a fact noted in
the State’s supplemental witness list filed on December 13, 2011.
{6} 	Trial was scheduled for September 18, 2012, but Defendant filed a motion to
continue that setting, agreeing to waive time until the next setting. Defendant’s motion
was granted. Defendant renewed the motion to suppress Mr. Montano’s testimony on
September 18, 2012. Trial was rescheduled for October 17, 2012. At the docket call

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on October 9, 2012, Defendant realized that the December 2011 subpoena was served
to Mr. Montano’s prior address. The State and Defendant filed a joint motion to
continue the October 2012 trial setting in an attempt to get Mr. Montano to New
Mexico for an interview, agreeing that the delay in time would count against the State.
{7} 	On May 13, 2013, Defendant did not appear for the scheduled docket call and
a bench warrant was issued. The bench warrant was later quashed, and Defendant
notified the district court that his son had been in the hospital. At the hearing, defense
counsel indicated that she had interviewed Mr. Montano by phone. On October 17,
2013, Defendant filed a motion to continue the next scheduled pretrial conference,
agreeing to waive the time limits until the next setting. The trial was again rescheduled
for March 26, 2014.
{8} 	Following a jury trial, Defendant was convicted of aggravated battery with a
deadly weapon on March 26, 2014. The district court ordered a pre-sentence report
from adult probation on October 20, 2014. A supplemental criminal information was
filed by the State, and the district court sentenced Defendant as a habitual offender,
pursuant to NMSA 1978, Section 31-18-17 (2003) with one year to serve and three
years suspended. This appeal followed.

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ANALYSIS
{9} 	Defendant makes the following arguments: (1) the delay in holding Defendant’s
sentencing hearing violated Defendant’s right of due process; (2) defense counsel
provided ineffective assistance of counsel by failing to assert Defendant’s right to a
speedy trial; (3) the district court erred in allowing the witness, Mr. Acosta, to testify
because the State failed to disclose his address; and (4) the district court made several
errors that denied Defendant a fair trial, including holding the trial at the Yam Theater
and admitting certain testimony by Agent Alvarado as well as the photographs of the
knife used in the altercation. Finally, Defendant argues that the cumulative impact of
the errors at trial was so prejudicial that he was denied a fair trial and reversal is
required.
I. 	Due Process in Delayed Sentencing
{10} 	The New Mexico appellate courts have on several occasions analyzed cases
where defendants have faced delays in the imposition of a sentence or in the
enforcement of a sentence. See e.g., State v. Calabaza, 2011-NMCA-053, ¶¶ 19-22,
149 N.M. 612, 252 P.3d 836 (analyzing whether the thirteen-month delay between this
Court’s mandate to the district court and the eventual sentencing violated the
defendant’s right to a speedy trial and due process); State v. Brown, 2003-NMCA-110,
¶ 9, 134 N.M. 356, 76 P.3d 1113 (involving a case where the defendant argued that

6
“his right to a speedy trial was violated by a delay of twenty months from the time this
Court reversed one of his trafficking convictions and remanded the case for
re-sentencing until [the d]efendant was actually re-sentenced”). In State v. Todisco,
the defendant argued that such a delay violated his right to a speedy trial under the
Sixth Amendment of the United States Constitution and this Court, relying on past
guidance from the United States Supreme Court, assumed that the Sixth Amendment
right to a speedy trial extended to the sentencing phase of a criminal proceeding.
2000-NMCA-064, ¶ 16, 129 N.M. 310, 6 P.3d 1032 (citing to Pollard v. United
States, 352 U.S. 354, 361 (1957)). This Court then “[assumed] without deciding, that
the [Sixth Amendment] speedy trial right [can be applied to delays in] sentencing
proceedings” and applied the factors set forth in Barker v. Wingo, 407 U.S. 514, 530
(1972) to analyze the defendant’s claim of an excessive delay in the trial court’s
imposition of a sentence. Todisco, 2000-NMCA-064, ¶¶ 16, 19.
{11} 	In Calabaza, this Court reasoned that, although the Barker factors may be valid
considerations when the issue addressed is speedy sentencing, we did “not believe the
guidelines [were] . . . specifically applicable in the speedy enforcement context.”
Calabaza, 2011-NMCA-053, ¶ 11. The defendant in Calabaza, in addition to speedy
trial claims, also argued a violation of due process in the delay that occurred in the
imposition of his sentence. Id. ¶ 12. This Court, in looking to similar cases where

1The United States Supreme Court reserved “the question [of] whether the
Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing
stage, facts that could increase the prescribed sentencing range are determined[,]” for
example capital cases. Betterman, 136 S. Ct. at 1613 n.2. The Court also reserved the
question related to renewed prosecution following successful appeal, when the
defendant again had a presumption of innocence. Id. Neither question is raised here
nor does Defendant make any arguments of this nature.
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there was a delay not in the sentence hearing itself but in the imposition of a
defendant’s sentence, looked to the “totality of the circumstances.” Id. ¶ 19. These
circumstances include the following:
the length of the delay and the nature of the defendant’s circumstances
at the time the state attempts to enforce the sentence, as well as whether
the delay arose from a negligent mistake on the part of the [district] court
or from deliberate or grossly negligent action, whether the defendant
bears any responsibility for the delay, and whether the defendant has
attempted to remedy the delay without success.
Id. ¶ 18. In Calabaza, we determined that any prejudice to the defendant in the delay
of the imposition of his sentence was outweighed by other factors, including the
district court’s determination that the defendant be allowed to serve the time imposed
in a community custody program. Id. ¶ 22.
{12} 	In Betterman v. Montana, the United States Supreme Court recently held that
a defendant’s right to a speedy trial under the Sixth Amendment does not extend
beyond the time of conviction. 578 U.S. ___, 136 S. Ct 1612, 1617 (2016). 1 However,
the United States Supreme Court did recognize that, similar to the pre-arrest stage of

8
a criminal proceeding, due process serves as a protection against exorbitant delays,
including “tailored relief under the Due Process Clauses of the Fifth and Fourteenth
Amendments.” Id. at 1612. After conviction, “a defendant’s due process right to
liberty, while diminished, is still present. He retains an interest in a sentence
proceeding that is fundamentally fair.” Id. at 1617. Because the defendant in
Betterman did not raise a due process challenge on appeal, the Court expressed no
opinion on how the defendant may have fared under the more “pliable [due process]
standard.” Id. at 1618. The United States Supreme Court offered limited dicta
considerations that might be applied in analyzing a defendant’s claims of due process
violations related to delays in sentencing. It proposed considering factors somewhat
similar to the Barker factors applied in a speedy trial analysis. Betterman, 136 S. Ct
at 1618 n.12. These similar factors included: “[the] length of and reasons for the delay,
the defendant’s diligence in requesting expeditious sentencing, and prejudice.” Id. In
a concurring opinion, Justice Sotomayor also noted that “the Barker factors capture
many of the concerns posed in the sentencing delay context[,] and . . . because the
Barker test is flexible, it will allow courts to take account of any difference between
trial and sentencing delays.” 	Betterman, 136 S. Ct. at 1619 (Sotomayor, J.,
concurring). However, as recognized in Justice Thomas’s concurrence, the Barker
factors “may not necessarily translate to the delayed sentencing context.” Betterman,

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136 S. Ct. at 1618 (Thomas, J., concurring). Instead, “[t]he Due Process Clause can
be satisfied where a [s]tate has adequate procedure to redress an improper deprivation
of liberty or property.” Id.
{13} 	Following Betterman, at least one federal district court has chosen to use the
Barker factors in analyzing claims of delayed sentencing under a due process analysis.
See Deck v. Steele, 4:12 CV 1527 CDP, 2017 WL 1355437, *58, __ F. Supp. 3d __
(E.D. Mo. Apr. 13, 2017). Other jurisdictions, including Montana and the Federal
Sixth Circuit Court of Appeals, have rejected the Barker factors and instead have
looked to the due process analysis set out in United States v. Lovasco, 431 U.S. 783
(1977), to address “ ‘[a]ny undue delay’ before or after the period protected by the
Sixth Amendment,” which would include delays in sentencing as well as delays in the
imposition of a sentence. See United States v. Sanders, 452 F.3d 572, 574, 577-580
(6th Cir. 2006) (quoting United States v. McDonald, 456 U.S. 1, 7 (1982)); State v.
Betterman, 2015 MT 39, ¶ 29, 378 Mont. 182, 342 P.3d 971, aff’d, 136 S. Ct. 1609.
Under this alternative analysis, the question of whether a delay in sentencing violates
a defendant’s due process rights would be answered by looking to: “(1) the reasons
for the delay; and (2) what prejudice the defendant has suffered as a result of the
delay.” Sanders, 452 F.3d at 580. We agree with the Sixth Circuit Court of Appeals
that the “Lovasco [due process] framework is well-suited to analyze whether such a

10
delay has occurred.” Sanders, 452 F.3d at 580. Under this framework, appellate courts
are to determine only “whether the action complained of violates those fundamental
conceptions of justice which lie at the base of civil and political institutions, and
which define the community’s sense of fair play and decency.” Id. (omission and
internal quotation marks omitted) (quoting Lovasco, 431 U.S. at 790).
{14} 	Defendant argues that the two-hundred-and-nine-day delay between conviction
and sentencing violated his right to due process. Although we believe Lovasco’s due
process framework is the most suitable analysis for a delay in sentencing claim, under
any framework—Barker, Lovasco, or a totality of the circumstances test—the burden
uniformly remains on the defendant to prove that the delay in sentencing was
prejudicial. See Lovasco, 431 U.S. at 790 (stating that “proof of prejudice is generally
a necessary but not [a] sufficient element of a due process claim”); Barker, 407 U.S.
at 530 (including as the final factor in the balancing test “prejudice to the defendant”);
Calabaza, 2011-NMCA-053, ¶¶ 22-23 (holding that there was no violation of due
process where the defendant suffered no prejudice). In this case, Defendant does not
argue that significant prejudice occurred and we identify none from our review of the
record.
{15} 	After the return of the jury’s verdict, the district court ordered a pre-sentence
report, which was completed on June 18, 2014. The district court was not in Portales,

2Defendant did not assert a statutory claim under Rule 5-701(B) NMRA that
states: “A sentencing hearing shall begin within ninety (90) days from the date the
trial was concluded or the date a plea was entered[,]” unless good cause is shown.
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New Mexico for two weeks because it presided over a murder trial in Tucumcari, New
Mexico sometime in May or June. The district court judge was then on medical leave
for six weeks at the end of July. The district court sent notice on October 2, 2014, for
the sentencing hearing to take place on October 20, 2014. Defendant obtained a copy
of the pre-sentence report on October 16, 2014, and filed a motion to dismiss on
October 22, 2014. Throughout the delay, Defendant was out on bond, was employed,
and even requested further time at sentencing to get his affairs in order. The district
court granted an additional two weeks before remand, sentenced Defendant to the
mandatory habitual offender time, and suspended the rest of his sentence.
{16} 	Although Defendant argues that he was prejudiced because he was not provided
the pre-sentence report earlier, the district court was in control of the report and both
parties were required to obtain a copy from the district court. Defendant did not
identify any material issue that arose at his sentencing hearing because of the delay
in receiving his pre-sentencing report. As such, Defendant did not meet his burden of
proof under either theory, and we conclude that there was no violation of Defendant’s
right to due process under the Fourteenth Amendment in the delay that occurred prior
to his sentencing hearing.2 See Betterman, 136 S. Ct. at 1615 (recognizing that “[i]t

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would be an unjustified windfall, in most cases, to remedy sentencing delay by
vacating validly obtained convictions”).
II. 	Ineffective Assistance of Counsel
{17} 	We review de novo “the legal issues involved with claims of ineffective
assistance of counsel” and “defer to the findings of fact of the [district] court if
substantial evidence supports the court’s findings.” State v. Crocco, 2014-NMSC-016,
¶ 11, 327 P.3d 1068. “Criminal defendants are entitled to reasonably effective
assistance of counsel under the Sixth Amendment of the United States Constitution.”
Id. ¶ 12 (internal quotation marks and citation omitted). For a successful claim of
ineffective assistance of counsel, a defendant must show that his attorney erred and
that this error prejudiced the defendant. State v. Arrendondo, 2012-NMSC-013, ¶ 38,
278 P.3d 517. The “prejudice” element of an ineffective assistance of counsel claim
is not satisfied when the defendant only proves that a particular act or omission by his
counsel was prejudicial to his defense; instead, the defendant must show a “reasonable
probability” that but for the attorney’s objectively unreasonable conduct, the result of
the proceedings would have been different. State v. Brazeal, 1990-NMCA-010, ¶ 23,
109 N.M. 752, 790 P.2d 1033 (internal quotation marks and citation omitted).
{18} 	“When an ineffective assistance claim is first raised on direct appeal, we
evaluate the facts that are part of the record.” Crocco, 2014-NMSC-016, ¶ 14 (internal

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quotation 	marks 	and 	citation 	omitted). 	However, 	“[t]he 	record 	is 	frequently
insufficient to establish whether an action taken by defense counsel was reasonable
or if it caused prejudice.” Arrendondo, 2012-NMSC-013, ¶ 38. Thus, the appellate
courts prefer “that these claims be brought under habeas corpus proceedings so that
the defendant may actually develop the record with respect to defense counsel’s
actions.” Id. The “appellate court[s] may remand a case for [a full] evidentiary hearing
if the defendant makes a prima facie case of ineffective assistance [of counsel].”
Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks and citation omitted). A
prima facie case of ineffective assistance of counsel is made where: “(1) it appears
from the record that counsel acted unreasonably; (2) the appellate court cannot think
of a plausible, rational strategy or tactic to explain counsel’s conduct; and (3) the
actions of counsel are prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131
N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted).
{19} 	Defendant argues that because defense counsel failed to assert Defendant’s right
to a speedy trial and move to dismiss the charges, there exists a prima facie showing
of ineffective assistance of counsel. Recently in State v. Castro, this Court determined
that a prima facie case for ineffective assistance of counsel was established under the
facts that included defense counsel’s failure to ever assert the defendant’s speedy trial

14
rights, pro forma or otherwise. 2016-NMCA-085, ¶¶ 46, 48, 381 P.3d 694. However,
this case is easily distinguished from Castro.
{20} 	In Castro, defense counsel never asserted the defendant’s right to a speedy trial
at any time during the nearly four years that his case was pending. Id. ¶ 46. In the
present case, although it appears from the record that defense counsel failed to assert
Defendant’s right to a speedy trial at every available juncture, defense counsel made
one pro forma assertion to the magistrate court of Defendant’s Sixth Amendment right
and several mentions of the lengthy time line of the case to the district court.
Furthermore, in Castro this Court specifically discussed defense counsel’s failure to
communicate with his client, focusing his efforts on receiving payment for past work,
and his several motions to withdraw. Id. ¶ 48.The defendant in Castro also presented
an affidavit attesting to his desire to assert his speedy trial right. Id. The record before
us presents no such facts or assertions by Defendant. It is not disputed that defense
counsel for Defendant may have asserted Defendant’s right to a speedy trial more
vigorously and could have requested a speedy trial ruling from the district court
during the three years it took to bring this simple aggravated battery case to trial. See
State v. Leon, 2013-NMCA-011, ¶ 20, 292 P.3d 493 (recognizing a presumption of
counsel’s ineffectiveness when constitutional rights are implicated and counsel fails

15
to preserve a defendant’s right to appeal). However, we note that defense counsel’s
action did not rise to the level of unreasonableness identified in Castro.
{21} 	In addition, we agree with the State that there is plausible and rational strategy
for defense counsel’s conduct. Here, defense counsel was diligent in moving to have
the testimony of the Victim suppressed after he twice failed to attend scheduled
interviews. Although Defendant’s defense counsel ultimately interviewed Mr.
Montano over the phone because he had moved to Arizona, it is possible that defense
counsel hoped that Mr. Montano would either continue to elude her or fail to appear
altogether for trial, requiring the State to drop the charges. Furthermore, because
defense counsel was diligent, on multiple occasions, in asserting Defendant’s
argument regarding the State’s failure to provide access to Mr. Montano, we see no
reason to doubt her competency to vigorously represent Defendant at trial. Taking into
account defense counsel’s level of competency with regard to preparation for trial as
well as the other plausible explanation for failing to more vigorously assert
Defendant’s speedy trial right, based upon the facts known to this Court, we agree that
defense counsel was likely making specific, reasoned decisions in her representation
of Defendant in this case. See Castro, 2016-NMCA-085, ¶ 50 (finding “no rational or
strategic basis” for the defense counsel’s failure to act regarding the assertion or
preservation of the defendant’s right to a speedy trial). Where a plausible, rational

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strategy for defense counsel’s conduct exists, as is the case here, Defendant has failed
to establish a prima facie case for ineffective assistance of counsel, and we need not
reach the issue of whether Defendant was prejudiced. See Crocco, 2014-NMSC-016,
¶ 24 (explaining that the defendant did not establish a prima facie claim of ineffective
assistance based on defense counsel’s failure to move to suppress evidence where the
assertion would likely have been groundless as the record did not show any
constitutionally-protected privacy interest was violated by the warrantless entry by
police).
{22} 	We decline to remand this case for an evidentiary hearing on whether defense
counsel provided ineffective assistance of counsel. We note that Defendant is entitled
to pursue an ineffective assistance of counsel claim further by filing a petition for
habeas corpus. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61
(“If facts necessary to a full determination are not part of the record, an ineffective
assistance claim is more properly brought through a habeas corpus petition[.]”).
III. 	Testimony of Jesus Acosta
{23} 	We review the district court’s decision regarding discovery issues for an abuse
of discretion. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968,
abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC-027, ¶ 6,

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138 N.M. 264, 119 P.3d 144. “In order to find an abuse of discretion, we must
conclude that the decision below was against logic and not justified by reason.” State
v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027 (internal quotation
marks and citation omitted).
{24} 	Defendant argues that the district court erred in allowing Mr. Acosta to testify
because the address provided on the State’s witness list was insufficient. Rule 5-
501(A)(5) NMRA states that the State shall disclose to the defendant a “written list
of the names and addresses of all witnesses which the prosecutor intends to call at the
trial[.]” The State has a continuing duty under Rule 5-505(A) NMRA to disclose
“additional material or witnesses which [the prosecutor] would have been under a duty
to produce or disclose [by] . . . promptly giv[ing] written notice to the other party . .
. of the existence of the additional material or witnesses.” The assessment of sanctions
for a violation of discovery “depends upon the extent of the [g]overnment’s
culpability weighed against the amount of prejudice to the defense.” State v. Harper,
2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (omission, internal quotation
marks, and citation omitted). “The exclusion of witnesses is a severe sanction [and]
. . . like outright dismissal of a case, the exclusion of witnesses should not be imposed
except in extreme cases, and only after an adequate hearing to determine the reasons
for the violation and the prejudicial effect on the opposing party.” Id. ¶ 21.

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{25} 	The State did not fail to disclose the witness’s identity or act in bad faith to
conceal his whereabouts. The State filed an updated witness list on June 24, 2011,
including the name of Mr. Acosta and an address at the Midway Dairy. The prosecutor
for the State located Mr. Acosta only thirty-six hours prior to trial after searching for
him. Defendant was then given the opportunity to interview Mr. Acosta in person
prior to his testimony. Given that Mr. Acosta was the only witness to the events
between Defendant and Mr. Montano, it would have been an extreme sanction to
exclude his testimony where there is no evidence that the State failed to timely
disclose his identity, the State searched to locate him for an interview, and Defendant
was ultimately able to interview him prior to his testimony. As a result, we hold that
the district court did not abuse its discretion by refusing to exclude the testimony of
Mr. Acosta. See State v. Le Mier, 2017-NMSC-017, ¶ 17, 394 P.3d 959 (“As an
appellate court, we necessarily operate with imperfect information about the
proceedings we review, and our assessment of the propriety of the decision to impose
or not to impose witness exclusion must reflect this reality.”).
IV. 	Defendant Was Afforded a Fair Trial
A. 	Courtroom
{26} 	Defendant argues that the location of his trial, the Yam Theater, did not afford
him a fair trial because the proceedings lacked the necessary decorum. However,

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Defendant does not argue violations of due process or equal protection and “[a]
general claim of denial of a fair trial cannot provide a basis for relief.” State v. Smith,
1979-NMSC-020, ¶ 9, 92 N.M. 533, 591 P.2d 664. Furthermore, Defendant does not
cite 	to 	any 	specific 	facts 	in 	the 	record 	pointing 	to 	how 	the 	location 	was
unconstitutional and “[w]e will not search the record for facts, arguments, and rulings
in order to support generalized arguments.” Muse v. Muse, 2009-NMCA-003, ¶ 72,
145 N.M. 451, 200 P.3d 104. Finally, Defendant does not argue that the location
limited public access and thereby, denied him a right to a public trial as afforded by
the Sixth Amendment to the United States Constitution.
{27} 	Instead, Defendant cites to several cases from other jurisdictions where courts
have determined that an alternative trial location denied those defendants a fair trial.
See Roberts v. State, 158 N.W. 930, 932 (Neb. 1916) (identifying specific facts during
a trial held in a theater where the bailiff announced that the “regular show will be
to[]morrow; matinee in the afternoon and another performance at 8:30” (internal
quotation marks and citation omitted)); People v. Rose, 368 N.Y.S.2d 387, 391 (N.Y.
Cty. Ct. 1975) (holding that selecting a room permeated with religious symbols was
prejudicial to the defendant as it was inconsistent with prohibitions against the
establishment of religion); State v. Jaime, 233 P.3d 554, 555 (Wash. 2010) (holding
that a trial in a jail was inherently prejudicial to the defendant). However, none of

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these cases are sufficiently similar to Defendant’s case. The trial was held at the Yam
Theater out of necessity because the ducts at the courthouse were being cleaned. There
are no facts argued by Defendant that the case lacked the proper solemnity of a
criminal trial. Furthermore, unlike the cases presented by Defendant, the theater did
not cause the trial to become a spectacle or “show” and it was not full of religious
symbols. The district court further referred to the theater as a courtroom. Finally,
Defendant failed to identify to any facts that would lead us to conclude that the
location was so uninviting as to limit public access.
{28} 	For the foregoing reasons, we will not try to guess at Defendant’s legal
argument or attempt to search for facts that could support such an argument. Holding
Defendant’s trial at Yam Theater did not deny Defendant a fair trial. See People v.
Terry, 222 P.2d 95, 584 (Dist. Ct. Cal. App. 1950) (“In the absence of some showing
to the contrary[,] the mere fact of holding a session of court in a room other than a
regular court room is entirely insufficient to warrant a conclusion, that the trial was
secret and violative of the rights of [the] defendant”).
B. 	Evidentiary Arguments
{29} 	Defendant argues that two evidentiary errors denied him a fair trial: (1) the
chain of custody of the knife that was admitted at trial through a photograph, and (2)
Mr. Montano’s statement to Agent Alvarado that Defendant was the one who stabbed

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him. Defense counsel cites to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428
P.2d 982 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1 in
advocating Defendant’s position.
{30} 	“We review the admission of evidence under an abuse of discretion standard
and 	will 	not 	reverse 	in 	the 	absence 	of 	a 	clear 	abuse.” 	State 	v. 	Sarracino,
1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs
when the ruling is clearly against the logic and effect of the facts and circumstances
of the case. We cannot say the trial court abused its discretion by its ruling unless we
can characterize [the ruling] as clearly untenable or not justified by reason.” State v.
Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks
and citations omitted).
1. 	Photograph of the Knife
{31} 	Defendant, on appeal, challenges the chain of custody of the knife that was
admitted at trial through a photographic exhibit. “In order to admit real or
demonstrative evidence, the evidence must be identified either visually or by
establishing custody of the object from the time of seizure to the time it is offered into
evidence.” State v. Rubio, 2002-NMCA-007, ¶ 16, 131 N.M. 479, 39 P.3d 144
(internal quotation marks and citation omitted). “The State is not required to establish
the chain of custody in sufficient detail to exclude all possibility of tampering.” Id.

22
Photographic evidence, a form of demonstrative evidence, “must fairly and accurately
represent the depicted subject in order to satisfy the foundation requirement for
authentication of photographs.” State v. Mora, 1997-NMSC-060, ¶ 53, 124 N.M. 346,
950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch,
2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. Photographic evidence is
admissible “when a sponsoring witness can testify that it is a fair and accurate
representation of the subject matter, based on that witness’s personal observation.”
State v. Henderson, 1983-NMCA-094, ¶ 8, 100 N.M. 260, 669 P.2d 736.
{32} 	Defendant’s argument on appeal, challenging the adequacy of the State’s proof
of the chain of custody of the knife, was minimally developed in his brief in chief.
Generally, this Court is under no obligation “to review an argument that is not
adequately developed.” Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701.
Even if we interpret Defendant’s argument to be that in failing to establish the chain
of custody of the knife, the State did not establish the admission of the photograph of
the knife, “[q]uestions concerning a possible gap in the chain of custody affects the
weight of the evidence, not its admissibility.” State v. Peters, 1997-NMCA-084, ¶ 26,
123 N.M. 667, 944 P.2d 896. The only questions therefore are whether the knife was
relevant to the case and whether the State laid a proper foundation for admission of
the photograph of the knife.

23
{33} 	At trial, Defendant objected to the State’s admission of the photograph of the
knife (Exhibit 2), the same knife that was given to Agent Alvarado by Defendant’s
wife. Defendant does not argue that the knife given to Agent Alvarado by Defendant’s
wife was not relevant to the stabbing incident between Defendant and the Victim. As
to the foundation for the photograph of the knife, Agent Alvarado testified to the
following facts: (1) while interviewing Defendant after the incident, Agent Alvarado
requested the knife from Defendant;(2) Agent Alvarado was then able to retrieve the
knife from Defendant’s wife; (3) the photograph offered by the State was a picture of
the knife he received from Defendant’s wife; and (4) the photograph was “a fair and
accurate depiction of the knife” that he received. For the purposes of the photograph,
this testimony is sufficient to lay the foundation for the authentication of a
photograph. See State v. Henderson, 1983-NMCA-094, ¶ 8, 100 N.M. 260, 669 P.2d
736 (recognizing that photographic evidence is admissible under the pictorial theory
where the sponsoring witness testifies “that it is a fair and accurate representation of
the subject matter, based on that witness’s personal observation”). Under the
circumstances in this case, the district court did not abuse its discretion in admitting
the photograph of the knife. See id.

24
2. 	Testimony of Agent Alvarado
{34} 	Agent Alvarado testified that Mr. Montano told him that Defendant stabbed
him. Defense counsel did not object. “In order to preserve an issue for appeal, a
defendant must make a timely objection that specifically apprises the trial court of the
nature of the claimed error and invokes an intelligent ruling thereon.” State v.
Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks and
citation omitted). This Court reviews unpreserved evidentiary matters for plain error.
State v. Contreras, 1995-NMSC-056, ¶ 23, 120 N.M. 486, 903 P.2d 228. “The
plain-error rule, however, applies only if the alleged error affected the substantial
rights of the accused. We must be convinced that admission of the testimony
constituted an injustice that created grave doubts concerning the validity of the
verdict.” Id. (internal quotation marks and citations omitted); see Rule 11-103(E)
NMRA (permitting a court to “take notice of a plain error affecting a substantial right,
even if the claim of error was not properly preserved”).
{35} 	Defendant argues that Agent Alvarado’s testimony that Mr. Montano told him
that it was Defendant who stabbed him violated his confrontation rights under the
Confrontation Clause. However, the testimony did not affect Defendant’s substantial
rights in the present case. The fact that Defendant was the individual who stabbed Mr.
Montano was not in dispute. Mr. Montano testified to the fact that Defendant stabbed

25
him and was subject to cross-examination by Defendant. Defendant also testified that,
during the fight, he was swinging the knife at Mr. Montano and hit him. As such,
Agent Alvarado’s testimony was simply cumulative evidence that corroborated the
testimony of both Defendant and the Victim. As such, Agent Alvarado’s testimony
does not implicate a violation of the confrontation clause and any error that may have
occurred would be harmless. See State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d 936
(reviewing improperly admitted evidence for non-constitutional harmless error). By
its nature, harmless error would not be sufficiently prejudicial to establish grave
doubts in the minds of the jury and therefore would not rise to a level sufficient to
establish plain error. See State v. Lopez, 2009-NMCA-044, ¶ 15, 146 N.M. 98, 206
P.3d 1003 (recognizing that, to support reversal, the prejudicial nature of the evidence
must have “likely contributed to the jury’s verdict or, instead, was not prejudicial
because it constituted harmless error”).
V. 	Cumulative Error
{36} 	“Cumulative error requires reversal of a defendant’s conviction when the
cumulative impact of errors which occurred at trial was so prejudicial that the
defendant was deprived of a fair trial.” State v. Martin, 1984-NMSC-077, ¶ 17, 101
N.M. 595, 686 P.2d 937. “The doctrine cannot be invoked if no irregularities occurred
or if the record as a whole demonstrates that a defendant received a fair trial[.]” Id.

26
(citations omitted). Having now determined that the only evidentiary error occurring
in this case was one minor instance of harmless error, we also hold that there was no
cumulative error. See State v. Duffy, 1998-NMSC-014, ¶ 60, 126 N.M. 132, 967 P.2d
807 (reasoning that no cumulative error exists where, after addressing each error
claimed by the defendant, our Supreme Court determined that there was either no error
or 	only 	harmless 	error), 	overruled 	on 	other 	grounds 	by 	State 	v. 	Tollardo,
2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.
CONCLUSION
{37} 	For the foregoing reasons, we affirm Defendant’s conviction.
{38} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
___________________________________
JAMES J. WECHSLER, Judge
_________________________________
JULIE J. VARGAS, Judge