State v. Fuentes, 28

Docket Nº356.
Citation228 P.3d 1181
Case DateDecember 18, 2009
CourtCourt of Appeals of New Mexico

Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Cory J. Thompson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.



{1} Juan Oscar Fuentes (Defendant) appeals from his conviction for aggravated battery with a deadly weapon causing great bodily harm in violation of NMSA 1978, Section 30-3-5 (1969). Defendant raises two issues on appeal. First, he asserts that there was insufficient evidence presented to support his conviction. Second, Defendant challenges the testimony of the State's firearm forensic and tool mark expert and claims that the district court erred in finding that the science underlying the expert's testimony was reliable based solely on the fact that this science is generally accepted. We affirm.


{2} On November 21, 2007, at the conclusion of his jury trial, Defendant was convicted of aggravated battery with a deadly weapon causing great bodily harm in violation of Section 30-3-5. Defendant had already entered a plea of no contest to having violated NMSA 1978, Section 30-7-16(A) (2001), possession of a firearm by a felon. Defendant's conviction and plea stemmed from events occurring in Albuquerque, New Mexico on September 14, 2006, when Sean Levin (Victim) was shot in the stomach several times at close range while standing in front of his friend John Viesterveld's home. Victim sustained life threatening injuries and is now permanently disabled.

{3} At Defendant's trial, the following evidence was presented. Detective Holly Garcia arrived at the scene of the shooting only a short time after Victim was shot. She observed Victim lying in Viesterveld's driveway bleeding from his pelvis area. After rendering assistance to Victim, Detective Garcia asked if Victim knew the identity of the shooter. Victim identified Defendant as the shooter.

{4} Victim had been a guest at Viesterveld's house on the date of the shooting. Viesterveld was vacuuming the interior of his house and had asked Victim to stand on the front porch of his home during the cleaning. Although Viesterveld was primarily focused on vacuuming, he observed Defendant's vehicle pull up to his home. Viesterveld knew that Defendant and Victim were friends and thus did not divert his attention from cleaning. A few moments later, Viesterveld heard gun shots. Viesterveld ran to the front door and observed Defendant driving away and Victim lying in his driveway in a pool of his own blood. Viesterveld approached Victim, asked if he was okay, and immediately went back into his home to contact 911. During his conversation with the 911 operator, Viesterveld was asked if he knew who the shooter was. Viesterveld relayed this question to Victim who responded that Defendant had shot him.

{5} Viesterveld's neighbor, Leif Goennsen, was home on the day of the shooting. After Goennsen heard the gun shots, he looked out of his door. He saw a blue car speed by. Goennsen was shown State's Exhibit 11 and 12, photographs of Defendant's vehicle, and he confirmed that the car in those photographs appeared to be the same car he saw speeding past his home immediately after he heard the gun shots.

{6} A day after the shooting, Officer Scott Norris of the Albuquerque Police Department located Defendant. Officer Norris had been provided a description of Defendant and Defendant's vehicle at the beginning of his shift and, while on patrol in his police vehicle, happened to observe Defendant driving his car. Officer Norris performed a traffic stop and arrested Defendant.

{7} Detective Brett Lampiris-Tremba, also of the Albuquerque Police Department, arrived at the scene of the traffic stop shortly after Officer Norris arrested Defendant. Detective Lampiris-Tremba had Defendant's car sealed until a search warrant could be obtained to enable a search of the vehicle for evidence related to the shooting. While awaiting issuance of that search warrant, Detective Lampiris-Tremba spoke with Defendant, who denied owning a firearm. After obtaining the search warrant, Detective Lampiris-Tremba searched Defendant's vehicle and discovered a handgun in a plastic bag underneath the driver's seat. The handgun was given to the forensic science unit of the Albuquerque Police Department.

{8} Michael G. Haag, a forensic scientist with the Albuquerque Police Department, performed firearm forensics and tool mark analysis tests on the handgun, the projectiles, and the projectile casings recovered at the scene of the shooting to determine whether the gun found in Defendant's car was the weapon used in the shooting of Victim. Haag testified that, in his professional opinion, the gun found in Defendant's car was the gun used to shoot Victim to the exclusion of all other guns. Although his examination of the projectiles proved inconclusive, the projectile casings recovered from the scene of the crime matched the type of projectile casings required for the type of weapon found in Defendant's vehicle, and the markings he observed on test-fired projectile casings he produced by shooting the gun in his laboratory matched the markings he observed on the projectile casings recovered from the scene of the shooting.

{9} At trial, Victim presented contradictory testimony. According to Victim, he and Defendant are close friends. They met in prison and both men share Caribbean ancestry, a matter of some significance according to Victim. Victim testified that Defendant was not the shooter, contrary to his statements on the date of the incident. Instead, Victim described the shooter as an unidentified African-American male with short black hair in his late twenties or early thirties. Victim testified that he neither knows the man who shot him nor why this man shot him. While testifying, Victim described a letter that he had written to Defendant after the shooting but before Defendant's trial. In the letter, Victim stated that it was his intention to testify at Defendant's trial and explain that Defendant was not the shooter.

{10} When asked about the conflict between what Victim told Detective Garcia immediately after he was shot and his trial testimony, Victim claimed that Detective Garcia misinterpreted his statement. Victim testified that he spoke Defendant's name when Detective Garcia asked who had shot him not because he wished to identify Defendant as the shooter but for the following reasons: (1) he was in shock and desired the company of his "most loyal, gracious, and best friend"; (2) he was concerned that Defendant had also been shot; (3) he wanted to see if Defendant was in the neighborhood; (4) he needed the presence of a fearless man and Defendant has the "uncanny" and "intuitive" ability to appear when he is needed.

{11} In addition, Victim's account of the events leading up to the shooting differed markedly from Viesterveld's. According to Victim, the following occurred. He and Viesterveld were both outside Viesterveld's home. A car appeared and the driver of the vehicle was pointing a pistol at them. Viesterveld immediately ran inside. Victim concluded that he needed to protect Viesterveld. Victim began walking towards the car. As he approached the vehicle and neared the end of Viesterveld's driveway, Victim was shot repeatedly.


{12} Defendant raises two issues on appeal. First, he claims that there was insufficient evidence to support his conviction for aggravated battery. As part of this argument, Defendant contends Victim's statement to Detective Garcia—the statement Victim made immediately after he was shot and during which he identified Defendant as the shooter—was hearsay and improperly admitted as substantive evidence. Second, Defendant contends that the State's firearm expert's testimony was improperly admitted. Citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), Defendant asserts that the reliability of the science underlying Haag's testimony was not established. We begin with a review of the evidence.

Sufficiency of the Evidence

{13} "When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State; we resolve all conflicts and indulge all permissible inferences in favor of the verdict." State v. Davis, 2009-NMCA-067, ¶ 18, 146 N.M. 550, 212 P.3d 438 (internal quotation marks and citation omitted). "The relevant inquiry is whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of a crime charged." Id. (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (1998). "On appeal, we will not reweigh the evidence nor substitute our judgment for that of the fact finder provided that there is sufficient evidence to support the verdict." Davis, 2009-NMCA-067, ¶ 18, 146 N.M. 550, 212 P.3d 438 (internal quotation marks and citation omitted).

{14} At the close of Defendant's trial, the jury was instructed that in order to find Defendant guilty of aggravated battery with a deadly weapon causing great bodily harm, they were required to find that:

1. Defendant touched or applied force to Victim by shooting Victim with a firearm;
2. Defendant intended to injure Victim;
3. Defendant caused great bodily harm to Victim or acted in a way that would likely result in death or great bodily harm to Victim;
4. This happened in New Mexico on or about the 14th day of September,

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