712 P.2d 13 (N.M.App. 1985), 8161, State v. Lujan

Docket Nº:8161.
Citation:712 P.2d 13, 103 N.M. 667, 1985 -NMCA- 111
Opinion Judge:[9] Garcia
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Richard Samuel LUJAN, Defendant-Appellant.
Attorney:Paul G. Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Janet Clow, Chief Public Defender, Deborah A. Moll, Asst. Public Defender, Santa Fe, for defendant-appellant. [7] PAUL G. BARDACKE, Attorney General, WILLIAM McEUEN, Assistant Attorney General, San...
Judge Panel:ALARID and MINZNER, JJ., concur.
Case Date:December 03, 1985
Court:Court of Appeals of New Mexico
 
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712 P.2d 13 (N.M.App. 1985)

103 N.M. 667, 1985 -NMCA- 111

STATE of New Mexico, Plaintiff-Appellee,

v.

Richard Samuel LUJAN, Defendant-Appellant.

No. 8161.

Court of Appeals of New Mexico.

December 3, 1985

Certiorari Denied Jan. 7, 1986.

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[103 N.M. 668] Paul G. Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Janet Clow, Chief Public Defender, Deborah A. Moll, Asst. Public Defender, Santa Fe, for defendant-appellant.

OPINION

GARCIA, Judge.

Defendant appeals his conviction for aggravated assault and child abuse. Five appellate issues have been briefed and are submitted to the court for resolution. The issues are:

1) whether sufficient evidence supports the conviction,

2) whether defendant's actions come within the child abuse statute, NMSA 1978, Section 30-6-1(C) (Repl.Pamp.1984),

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[103 N.M. 669] 3) whether the indictment should have been dismissed on the grounds of double jeopardy,

4) whether the indictment should have been dismissed on the grounds of prosecutorial vindictiveness,

5) whether the trial court erred in allowing impeachment by extrinsic evidence.

We affirm defendant's conviction.

SUBSTANTIAL EVIDENCE

We utilize the substantial evidence test to determine whether the evidence supports the jury's verdict. The tenets of the rule are threefold: 1) that substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) that on appeal, all disputed facts are resolved in favor of the successful party, with all reasonable inferences indulged in support of the verdict, and all evidence and inferences to the contrary discarded; and 3) that although contrary evidence is presented which may have supported a different verdict, the appellate court will not weigh the evidence or foreclose a finding of substantial evidence. State v. Martinez, 95 N.M. 445, 623 P.2d 565 (1981); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968); Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). In accord with the substantial evidence test, we view the facts most favorable to the state.

FACTS

Don Romero and his spouse, Patricia, were leaving a Walgreen's store located in Albuquerque. Patricia was carrying their seven-month-old baby in her arms. Defendant and four others were in a car parked next to the Romero's vehicle. As the Romeros approached their pickup, defendant and the other occupants of the car began whistling at Patricia and making lewd remarks. The verbal harassment of the Romeros escalated to racial epithets and curses. When the Romeros reached their pickup and got in, defendant pulled his vehicle alongside the truck's passenger side and directed additional profanities at Patricia. The Romeros quickly drove away from the parking lot onto Central Avenue. Defendant pursued the Romero's truck. When defendant overtook the truck, he repeatedly honked his horn, cursed at the truck's occupants, and yelled at Mr. Romero to pull over. Mr. Romero accelerated in an attempt to evade his pursuers. Defendant swerved his vehicle towards the truck and the occupants of defendant's vehicle began to throw beer bottles and cans at the pickup. One beer can entered through Mr. Romero's open window, cracked the inside of his windshield, ricocheted, and struck the infant on his forehead. Defendant then began to ram the Romero pickup with his car until the bumpers of both vehicles locked, forcing them to stop.

Several of the occupants of defendant's vehicle jumped out and attacked Mr. Romero. One of the occupants struck Romero on his face with a tire tester, a device described as an 18-inch piece of wood with a 3-inch galvanized pipe attached to one end. The blow broke Mr. Romero's jaw and shattered several of his teeth. Patricia Romero got down from the vehicle and pleaded with the assailants to leave her husband alone. One of the men responded to her pleas by repeatedly striking her in the face.

Another occupant in defendant's vehicle grabbed a metal awning pole from the back of the pickup and began beating Mr. Romero with it. Romero fought off his assailants, ultimately disarming them. Some of the assailants fled, but Mr. Romero was able to hold the others at bay until the authorities arrived.

SUBSTANTIAL EVIDENCE

Following the proceedings in the metropolitan court, discussed infra, defendant was indicted on charges of aggravated assault, aggravated battery and child abuse. After a jury trial in district court, defendant was acquitted of battery, but convicted of aggravated assault and child abuse.

Defendant initially challenges his convictions on the basis of sufficiency of evidence and argues that he did not see the infant, did not know the infant was in the

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[103 N.M. 670] pickup, and no evidence has been presented showing that he threw the can of beer that struck the child. Secondly, defendant argues that no witness has identified him as an assailant and, at most, the evidence showed that he violated driving rules by engaging in a game of "chicken." This, he states, does not show any shared intent or the active encouragement or approval of the crime.

We reject defendant's arguments. Cf. State v. Luna, 92 N.M. 680, 594 P.2d 340 (Ct.App.1979). The appellate court does not weigh the evidence, but determines whether there is substantial evidence to support the jury's verdict. State v. Martinez. In this case, the evidence, and reasonable inferences which may be legitimately drawn from the evidence, would allow the jury to determine that defendant was aware of the child's presence, and had the shared intent to assault the occupants of the pickup. The Romeros testified that they entered the pickup, carrying the infant, while defendant and his companions were in front of the truck. The evidence demonstrates that defendant actively participated in the verbal and physical attacks on the Romero family. He engaged in the name-calling and threats, pursued the Romeros and drove in such a manner as to endanger the occupants of the pickup. He repeatedly rammed his vehicle into the Romero's truck, forcing it to stop. Whether defendant's conduct unwittingly provided an opportunity for...

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