State v. Benavidez
| Decision Date | 10 August 2020 |
| Docket Number | No. A-1-CA-38076,A-1-CA-38076 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. ERNESTO BENAVIDEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Associate Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant appeals from his conviction, after a jury trial, of one count of aggravated stalking (violation of protection order), contrary to NMSA 1978, Section 30-3A-3.1 (1997), and five counts of violation of an order of protection, contrary to NMSA 1978, Section 40-13-6 (2013). In this Court's notice of proposed disposition, we proposed to summarily affirm. Defendant filed a memorandum in opposition and motion to amend, which we have duly considered. Remaining unpersuaded, we affirm.
{2} In his memorandum in opposition, Defendant abandons all but three issues, see State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 208, 814 P.2d 136 (): (1) whether there was sufficient evidence to convict Defendant of aggravated stalking [MIO 5], (2) whether "[Defendant's] convictions for both aggravated stalking and violation of an order of protection violated his right to be free from double jeopardy" [MIO 8], and (3) whether the district court erred by preventing Defendant from calling witnesses "to present 'defense of another.' " [MIO 13] Defendant moves to amend his docketing statement as to the second issue, to make his argument one of double description rather than unit of prosecution. [MIO 1-2] We address this issue last.
{3} In his memorandum in opposition, Defendant invites us to look to a statute and uniform jury instruction for what the State was required to prove at trial. [MIO 6] We reiterate that "[t]he jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (alteration, internal quotation marks, and citation omitted). Therefore, in evaluating sufficiency of the evidence, we look to the jury instructions as given. See id.; State v. Arrendondo, 2012-NMSC-013, ¶¶ 19-20, 278 P.3d 517. Because the term "reasonable apprehension" does not appear in the jury instructions at issue, Defendant's exploration of the meaning of that term is misplaced. [MIO 6-7]
{4} We address this issue to the extent Defendant argues there was insufficient evidence that Defendant "maliciously pursued a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened on more than one occasion by harassing [Victim.]" [MIO 6-8; RP 145] Defendant points to evidence suggesting that a reasonable person would not feel frightened, intimidated, or threatened by Defendant's conduct. [MIO 6-7] To the extent the evidence he cites would support such a proposition, it nonetheless does not provide a basis for reversal. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 ("Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject efendant's version of the facts."). Moreover, evidence that Victim may not have read some or all of the letters [DS 6-7] is not relevant in determining whether Defendant "pursued a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened." [RP 145 (Emphasis added.)] See Holt, 2016-NMSC-011, ¶ 20.
{5} Defendant also suggests the State did not prove the required intent for aggravated stalking. [MIO 7-8] He writes, [MIO 7-8] We construe this as an argument that there was insufficient evidence either that Defendant acted maliciously or that he "intended to cause a reasonable person to fear for the person's safety or the safety of a household member" for purposes of stalking. [RP 145]
{6} As Defendant acknowledges in his memorandum in opposition, the letters contained bible tracts; a reference to "the Victoria Marten case, a child whose mother solicited men to have sex with her daughter" and who "was later found dismembered in a burning blanket"; "documents regarding his acquittal on a criminal sexual penetration charge, a drawing of roses, and 'love eternally' "; and "songs or poems[.]" [MIO 4-5] From these letters, the jury was free to infer the requisite intent. See State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226 P.3d 641 (); State v. Michael S., 1995-NMCA-112, ¶ 7, 120 N.M. 617, 904 P.2d 595; see also Rojo, 1999-NMSC-001, ¶ 19 (). Therefore, we conclude that sufficient evidence supported Defendant's conviction. See State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156 .
{7} In our proposed disposition, we proposed to reject Defendant's contention that he should have been allowed to present evidence that Victim's family was abusing her or giving her drugs. [CN 12] We proposed to affirm because Defendant had not "explained what evidence he sought to admit regarding his concern over '[V]ictim's exposure to drugs and abuse;' . . . on what grounds the district court excluded the evidence; or how Defendant was in fact prejudiced by the omission of the evidence[.]" [CN 11] See State v. Chamberlain, 1989-NMCA-082, ¶ 11, 109 N.M. 173, 783 P.2d 483 (); see also Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 ().
{8} In Defendant's memorandum in opposition, Defendant does not dispute our proposed conclusions that this evidence would be relevant only to Defendant's aggravated stalking charge or that we review this issue for abuse of discretion. [CN 9] Rather, Defendant points out that he "could have introduced that evidence on cross-examination of [Victim]." [MIO 13] He suggests that his lack of opportunity to do so prejudiced him because "[t]his evidence would have negated a finding that he acted with an intent to place [Victim] in imminent fear of harm because his theory was that the letters were a step in freeing her from her family." [MIO 13-14] However, Defendant fails to explain the grounds on which the district court omitted this evidence or what argument he raised with the district court in his attempt to introduce the evidence, instead only repeating that the district court "refused to allow" it. [MIO 14, 15] We remain without sufficient facts to further address Defendant's argument that the district court abused its discretion when it "refused to allow" the testimony at issue. See Chamberlain, 1989-NMCA-082, ¶ 11.
{9} Moreover, even if the district court did abuse its discretion, we would only reverse if the error were not harmless. "Error in the exclusion of evidence in a criminal trial is prejudicial and not harmless if there is a reasonable possibility that the excluded evidence might have affected the jury's verdict." State v. Balderama, 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845. "In the absence of prejudice, there is no reversible error." State v. Fernandez, 1994-NMCA-056, ¶ 13, 117 N.M. 673, 875 P.2d 1104.
[I]n reaching a judgment as to the likely effect of the error, courts should evaluate all of the circumstances surrounding the error. This requires an examination of the error itself, which depending upon the facts of the particular case could include an examination of the source of the error and the emphasis placed upon the error.
State v. Tollardo, 2012-NMSC-008, ¶ 43, 275 P.3d 110. The State's evidence of Defendant's guilt may be relevant or even necessary to determine the role the error may have played and its importance, although it should not be mistaken for the former determinative test. See id.
{10} Defendant's failure to provide details regarding the alleged error makes it impossible to evaluate "all of the circumstances surrounding" it. See id. Nor has Defendant provided enough information to examine the error itself, the source of the error, or the emphasis placed on the error. See id. As we noted in our notice of proposed disposition, the content of the letter, sent after an order of protection was entered against Defendant, is a strong indication that Defendant did not somehow intend the letter to defend or protect Victim from her family. See id. [MIO 14] Thus, Defendant's memorandum in opposition fails to convince us that there was a reasonable possibility that evidence that Defendant believed Victim was "the victim of abuse or endangerment at the hand of her family members" [MIO 13] might have affected the jury's verdict. See Corona, 2014-...
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