State v. Gabaldon, A-1-CA-35264

• Decision Date: 01 March 2018
• Docket Number: No. A-1-CA-35264,A-1-CA-35264
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. DANAN GABALDON, Defendant-Appellant
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. DANAN GABALDON, Defendant-Appellant

No. A-1-CA-35264

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 1, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Mary Barket, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

HANISEE, Judge.

{1} Defendant appeals from the district court's judgment and sentence entered, pursuant to a jury trial by which he was convicted for residential burglary, larceny, and resisting, evading, or obstructing an officer. The district court sentenced Defendant to ten years of incarceration, which included a habitual offender enhancement of eight years and a suspended sentence of two years. On appeal, Defendant raises five issues, challenging (1) the sufficiency of the evidence to support his convictions for residential burglary and larceny; (2) the district court's rejection of Defendant's requested intent instruction for the offense of residential burglary; (3) the district court's denial of a mistrial when the victim testified in contravention of a court order; (4) the enhancement of Defendant's sentence based on two prior felony convictions—one that was used as a predicate felony to a firearm charge and also the felony firearm charge itself; and (5) the district court's failure to make a change in venue. The last three issues are raised under the requirements of State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. We are not persuaded by any of Defendant's arguments for the reasons set forth below. We, therefore, affirm.

DISCUSSION

{2} Because this is a non-precedential opinion drafted to inform the parties of our reasoning, we omit a section devoted to the facts of which the parties are aware, and discuss the facts only as they are relevant to our analysis.

1. The Evidence Was Sufficient to Support Defendant's Convictions for Residential Burglary and Larceny

{3} When assessing the sufficiency of the evidence, "we view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Samora, 2016-NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation omitted). We disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. "We then determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (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. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted).

Residential Burglary

{4} In his sufficiency challenge to his conviction for residential burglary, Defendant contends that the State's evidence was inadequate to prove that he entered theresidence with an intent to commit a theft when inside, as required by the jury instructions. See Garcia, 2016-NMSC-034, ¶ 17 ("Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." (alteration, internal quotation marks, and citation omitted)). Defendant states the evidence showed that he entered a stranger's unlocked residence while fleeing from the police and that his actions—entering the home, showering there, and changing into ill-fitting clothes belonging to the victim—were spontaneous and haphazard, not intentionally planned. Defendant relies on case law emphasizing that "[a]n intent formed after the illegal entry would not suffice." State v. Romero, 1998-NMCA-057, ¶ 8, 125 N.M. 161, 958 P.2d 119; State v. Elliott, 1975-NMCA-087, ¶ 50, 88 N.M. 187, 539 P.2d 207 (explaining that "[t]he gravamen of the offense of burglary is the intent with which the [residence] is entered[,]" and that evidence of an intent formed after the entry does not prove a burglary), rev'd on other grounds, 1976-NMSC-030, ¶ 1, 89 N.M. 305, 551 P.2d 1352.

{5} "Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence." State v. Duran, 2006-NMSC-035, ¶ 7, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). More specifically, "[i]ntent may be proved by inference from the surrounding facts andcircumstances." State v. Kent, 2006-NMCA-134, ¶ 15, 140 N.M. 606, 145 P.3d 86 (internal quotation marks and citation omitted).

{6} The evidence shows that police were dispatched to a residence based on a complaint about a vehicle in front of that house, and there they found Defendant in the driver's seat. Police then discovered that the license plate on the vehicle was stolen and decided to conduct a felony stop. Defendant did not comply with the officers' instructions and then fled on foot. Defendant jumped over a sharp and pointy chain-link fence and ran across a field and into a residential neighborhood. The officers set up a perimeter around the neighborhood and searched for Defendant. Within that perimeter, Defendant entered the home of a stranger, Mr. Andrew Jaramillo, by way of a backdoor that was closed but unlocked. While inside, Defendant apparently showered and changed into clothing belonging to Mr. Jaramillo. Officers found Defendant wet in Mr. Jaramillo's bathroom, which also contained a wet and dirty bathtub. An officer noticed that Defendant changed out of his distinctive black and yellow Steeler's jersey tee-shirt and shorts and into the ill-fitting clothes that were too warm for the weather and provided full coverage for Defendant's body, including the large tattoo on the back of his neck.

{7} Although we agree with Defendant that this evidence shows that he acted with an intent to flee from police, such an intent does not preclude Defendant from formingan intent to steal prior to his unauthorized entry into the home. We agree with the State that an intent to flee can coexist with an intent to enter the residence with the purpose to hide and take whatever is available in order to further his escape. Our courts state that "intent is often inferred from an overt act of the defendant." Duran, 2006-NMSC-035, ¶ 14. In this case, Defendant's intent, at the time of his unauthorized entry, to take what he could from the residence to further his escape can be inferred from Defendant's act of entering the home without authorization, taking a shower, and taking clothing from Mr. Jaramillo's closet and putting them on to disguise himself. See, e.g., State v. Mireles, 1971-NMCA-027, ¶ 6, 82 N.M. 453, 483 P.2d 508 (holding that evidence that a residence had been entered with an intent to commit theft was the fact that various items of personal property had been stolen); see also State v. Castro, 1979-NMCA-023, ¶ 19, 92 N.M. 585, 592 P.2d 185 ("The burglarious intent can be reasonably and justifiably inferred from the unauthorized entry alone."), overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653 P.2d 162. Defendant's actions from the time of the attempted felony stop to his capture show a consistent intent to flee and give rise to a reasonable inference that he intended to enter the home to hide in it and take something in furtherance of his escape efforts. There is no requirement for the State to prove that Defendant knew what he was going to take once inside the home; the burglary statuteonly requires proof of an authorized entry with the intent to commit theft. See NMSA 1978, § 30-16-3 (1971). We are persuaded that sufficient circumstantial evidence was presented from which the jury could infer that Defendant entered the residence with the intent to commit a theft that would assist in his escape. See State v. Muraida, 2014-NMCA-060, ¶ 18, 326 P.3d 1113 ("It is well established that the fact[-]finder may infer from circumstantial evidence that the defendant acted with the requisite intent; direct evidence of the defendant's state of mind is not required."); id. ("Furthermore, a defendant's knowledge or intent generally presents a question of fact for a jury to decide." (alteration, internal quotation marks, and citation omitted)).

Larceny

{8} Defendant argues that wearing Mr. Jaramillo's clothing in Mr. Jaramillo's home is not sufficient evidence to prove that Defendant "carried away" the clothes or that Defendant had the intent to permanently deprive Mr. Jaramillo of the clothes. See Garcia, 2016-NMSC-034, ¶ 17 ("Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." (alteration, internal quotation marks, and citation omitted)). The instruction for the charge of larceny required the jury to find beyond a reasonable doubt that Defendant "took and carried away various articles of clothing belonging to [Mr.] Jaramillo," at which time, Defendant "intended to permanently deprive the owner of it." The jury was furtherinstructed, consistent with UJI 14-1603 NMRA, that "[c]arried away" meant "moving the property from the place where it was kept or placed by the owner."

{9} There can be little question that Defendant moved Mr. Jaramillo's property from where it...