State v. Herron
| Decision Date | 20 July 2017 |
| Docket Number | No. 35,829,35,829 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAMES HERRON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Will O'Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant James Herron appeals from his convictions, following a jury trial, of three counts of failure to disclose facts to obtain public assistance, contrary to NMSA 1978, Section 30-40-1 (2006). In this Court's notice of proposed disposition, we proposed to summarily affirm. Defendant filed a memorandum in opposition (MIO), which we have duly considered. Remaining unpersuaded, we affirm Defendant's convictions.
{2} Defendant continues to argue that the State improperly shifted the burden of proof to Defendant in its closing argument. [MIO 3] Defendant clarifies in his MIO that, in closing, the State repeatedly characterized his actions as failures to report his true address and faulted him for failing to bring proof of residence after the investigation began. [Id.] Defendant also contends that the State argued that he never came forward with proof that he resided at the addresses disclosed in his welfare applications. [Id.] Defendant claims that he is a borderline-homeless man who lived in precarious slum housing that caused him to frequently change his address, but that he had always truthfully disclosed his living situation to the authorities. [MIO 1] Defendant clarifies his argument that the State's purported burden-shifting violated his due process rights. [MIO 3] Due process entitles a criminal defendant to a determination that he is guilty of every element of the crime with which he is charged. See State v. Herrera, 2014-NMCA-007, ¶ 8, 315 P.3d 343.
{3} We set forth the jury instructions in our calendar notice, which identifies the elements required to be proven in order to convict Defendant. [See CN 5-6] The elements or facts that Defendant contends were not established due to the State's improper burden-shifting are that Defendant knowingly failed to disclose a change in circumstances to the New Mexico Human Services Department (HSD) for the purposes of obtaining or continuing to receive public assistance to which he is not entitled and that Defendant knowingly failed to disclose a material fact known to be necessary to determine eligibility for public assistance to HSD for the purposes of obtaining or continuing to receive public assistance to which he is not entitled. [See RP 150-54; see also CN 6-7]
{4} According to Defendant's MIO, the only evidence at trial was testimony from Jessica Gomez, an investigator with HSD's Office of the Investigator General. [MIO 2] Defendant has still failed to provide a complete recitation of all facts material to our consideration of this issue. See Rule 12-208(D)(3) NMRA (). Instead, Defendant only contends that Ms. Gomez testified that, during her interview with Defendant, he gave her a deceptive account of his various residences over the past several years; that she "personally went to several of [Defendant's past residences, and concluded that hehad not lived in them"; and that, in one instance, the city had condemned the property—although Defendant seems to indicate in his MIO, by way of a parenthetical explanation, that this occurred after Defendant had claimed tenancy. See State v. Hanson, 2015-NMCA-057, ¶ 15, 348 P.3d 1070 (). [MIO 2]
{5} In light of the fact that Defendant failed to include a complete recitation of all testimony offered in support of the State's position that Defendant failed to disclose his addresses, see Thornton v. Gamble, 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268 (), and operating under the presumption of correctness, see State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (); State v. Chamberlain, 1989-NMCA-082, ¶ 11, 109 N.M. 173, 783 P.2d 483 (), we conclude that this evidence is sufficient for a jury to have concluded, beyond a reasonable doubt, that Defendant knowingly failed to disclose a change incircumstances to the HSD for the purposes of obtaining or continuing to receive public assistance to which he is not entitled and that Defendant knowingly failed to disclose a material fact known to be necessary to determine eligibility for public assistance to HSD for the purposes of obtaining or continuing to receive public assistance to which he is not entitled. We do not re-weigh the evidence but, instead, "defer to the district court when it weighs the credibility of witnesses and resolves conflicts in witness testimony." See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482; see also State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156. Further, although Defendant contends that he always told the truth, "the jury [was] free to reject efendant's version of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
{6} As there was sufficient evidence to support the element that Defendant knowingly failed to provide all material facts and disclose a change in circumstances to HSD for the purposes of obtaining or continuing to receive public assistance to which he is not entitled, we cannot say that Defendant's due process rights were violated. Moreover, although Defendant complains that the State did not provide affirmative evidence of where Defendant actually was living [MIO 2], that is not an element required by the statute and the State was not required to provide such evidence. See § 30-40-1. [See RP 150-54 (jury instructions)] We therefore concludethat the district court did not err in concluding that the State did not improperly shift the burden to Defendant.
[MIO 4-5] Although Defendant's proffered instruction only substantively differs from the State's given instruction in the separation of the second paragraph, Defendant argues that such separation was necessary to convey to the jury that the second paragraph represented a separate, distinct element. [MIO 5] The district court found that Defendant's tendered instruction was too complicated and declined to give it to the jury. [MIO 5]
{9} As we explained in our calendar notice, "[a]n appellate court reviews challenged jury instructions to determine whether they correctly state the law and are supported by the evidence introduced at trial." State v. Soutar, 2012-NMCA-024, ¶ 21, 272 P.3d 154 (internal quotation marks and citation omitted). Although Defendant's proffered instruction is not an inaccurate statement of the law, the given instruction is also not an inaccurate statement of the law and is supported by the evidence that was introduced at trial. See id. Additionally, although the given instruction did not set out the "purposeful" aspect of the statute separately, suchaspect was included in the given instruction, and we presume that the jury followed the instructions. See State v...
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