Advance Opinions

context of all of the other evidence presented at trial, including whether the DNA evidence actually proves that Ruben Sr. touched the gun,10 whether it sufficiently corroborates Hobbs’s version of events, whether Hobbs’s reaction was reasonable or evidence of overkill, and whether Hobbs or Ruben Sr. initiated the altercation.

E. The State’s Procedural Argument

Was Not Preserved

{39} As a final matter, the State argues the district court’s order granting a new trial must be reversed because the district court relied on evidence obtained from a “second round” of DNA testing without requiring a second petition for DNA testing under Section 31-1A-2(D).

{40} “To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked.” Rule 12-321(A), NMRA. Here, the district court considered Dr. Hampikian’s testimony in the context of deciding Hobbs’s timely motion to reconsider, which explicitly requested leave to reopen the record to submit additional evidence. The State opposed the motion to reconsider on various grounds without arguing that a second petition and order were required. In fact, after performing a brief voir dire of Dr. Hampikian at the hearing, the State did not object to his qualification as an expert witness or to the admission of his expert testimony and report. Because the State failed to raise its argument below, we decline to address the State’s argument on appeal.

{41} Likely anticipating our conclusion that this argument was not preserved, the State urges us to consider its argument under our authority to review for fundamental error. See Rule 12-321(B) (2) (listing exceptions to the preservation requirement including “issues involving . . . fundamental error”). “The doctrine of fundamental error is invoked when a court considers it necessary to avoid a miscarriage of justice.” State v. Alingog, 1994-NMSC-063, ¶ 10, 117 N.M. 756, 877 P.2d. 562. “Our rules requiring the preservation of questions for review are designed to do justice, and it is only when the merits of applying those rules clearly are outweighed by other principles of substantial justice that we will apply the doctrine of fundamental error.” Id. ¶ 11. {42} The State claims that fundamental error review is warranted in this case because “the district court’s consideration of the probabilistic genotyping evidence implicates a fundamental unfairness in the judicial system that undermines judicial integrity.” The premise of the State’s claim is that the district court permitted Hobbs to violate the plain language of Section

31-1A-2 by considering the new DNA analysis without first requiring Hobbs to submit a second petition for additional testing. However, the State has offered no explanation of how the district court’s consideration of the evidence resulted in a miscarriage of justice. See Alingog, 1994NMSC-063, ¶ 15 (holding that review of unpreserved error was improper where error did not result in a miscarriage of justice). Additionally, the State has cited no authority in support of its position that a district court’s departure from the plain language of a statute, without more, constitutes an injustice warranting fundamental error review. We therefore decline to apply the doctrine in this case.

III. CONCLUSION

{43} We reverse the Court of Appeals, reinstate the district court’s order for a new trial, and remand to the district court for further proceedings consistent with this opinion.

{44} IT IS SO ORDERED.

Briana H. Zamora, Justice

WE CONCUR:

C. Shannon Bacon, Chief Justice

Michael E. Vigil, Justice

David K. Thomson, Justice

Edward L. Chávez, Justice, Retired, Sitting by Designation

10 The State argues that, because “touch DNA” may result from secondary transfer, it does not establish that Ruben Sr. actually touched the gun. This argument goes to the weight of the DNA evidence and therefore is a matter for the jury at Hobbs’s new trial. See, e.g., State v. Duran, 1994-NMSC-090, ¶ 14, 118 N.M. 303, 881 P.2d 48 (holding that where DNA evidence was admissible, “[a]ny debate over the resulting probabilities that the ‘match’ is random goes to the weight of the evidence and is properly left for the jury to determine”).