964 P.2d 852 (N.M.App. 1998), 18312, State v. Roman
|Citation:||964 P.2d 852, 125 N.M. 688, 1998 -NMCA- 132|
|Opinion Judge:||Alarid, Judge|
|Party Name:||STATE of New Mexico, Plaintiff-Appellee, v. Victor ROMAN, Defendant-Appellant.|
|Attorney:||Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee. Phyllis H. Subin, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.|
|Judge Panel:||DONNELLY, and BUSTAMANTE, JJ., concur.|
|Case Date:||July 27, 1998|
|Court:||Court of Appeals of New Mexico|
Certiorari Denied Sept. 14, 1998.
¶1 At the conclusion of Defendant Victor Roman's testimony in defense of the charges in an eight-count criminal information, the State moved to amend the criminal information to add a new charge of shooting
[125 N.M. 689] at a dwelling or occupied building, contrary to NMSA 1978, § 30-3-8(A) (1993). Defendant asserts that this addition of a new charge at the close of Defendant's case was prejudicial and violated his right to be informed of the charge against him. We agree.
FACTS AND PROCEDURAL HISTORY
¶2 On December 12, 1995, Defendant drove to the Shady Grove Trailer Park in Silver City, New Mexico, and began shooting at a mobile home. Defendant killed a dog owned by the occupants. Defendant testified that he did this in reaction to harassment by a gang known as the "China Town Locos." Defendant was charged by criminal information with attempted first degree murder, two counts of assault with intent to kill, aggravated burglary, tampering with evidence, injury to animals and escape from a police officer. Defendant was also charged in a separate cause, CR-96-04, with aggravated assault and negligent use of a deadly weapon.
¶3 At trial, in Cause No. CR-95-65, Defendant testified that he had had several encounters with the gang. He described how the gang members shot at him, threatened his girlfriend, and physically attacked him. After the gang threatened the lives of Defendant and his girlfriend, Defendant went to the mobile home of one of the gang members. The State presented witnesses who testified that Defendant approached the mobile home, shot the dog, and then entered the house while shooting. Defendant stated that when he arrived at the home he encountered and shot the gang member's dog four or five times and then began shooting at the home. Defendant shot at the home two or three times. He testified that he never entered the house and did not know anyone was inside the mobile home at the time of the shooting. After he began shooting, he heard someone call out "they're not here." Upon hearing this voice, Defendant stopped shooting and left the mobile home park.
¶4 After Defendant's testimony, the defense rested. Subsequently, the State moved to amend the charges against Defendant to include shooting at an occupied dwelling, based on Defendant's testimony that he shot at the mobile home from the outside. Defendant objected to this amendment of the criminal information as improper and impermissible. Defendant argued that...
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