State v. Martinez

• Decision Date: 23 December 2019
• Docket Number: No. A-1-CA-36552,A-1-CA-36552
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. RICHARD MARTINEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RICHARD MARTINEZ, Defendant-Appellant.

No. A-1-CA-36552

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 23, 2019

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 MCKINLEY COUNTY

Robert A. Aragon, District Judge

Hector H. Balderas, Attorney General

Emily Tyson-Jorgenson, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

Law Offices of Adrianne R. Turner

Adrianne R. Turner

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

VARGAS, Judge.

{1} Defendant, Richard Martinez, appeals his conviction for burglary. Defendant argues that (1) the evidence was insufficient to support his conviction, (2) his in-court identification was tainted by suggestive pretrial circumstances and should have been suppressed, (3) he received ineffective assistance of counsel, (4) the amended criminal information did not conform to the bind-over order, requiring that his conviction be vacated, and (5) the district court erred in failing to excuse a juror for cause. We perceive no merit to these issues, and we therefore affirm.

{2} Because this is a memorandum opinion and the parties are familiar with the factual background, we will reserve discussion of the pertinent facts for our analysis.

DISCUSSION

A. Sufficiency of the Evidence

{3} We begin by considering Defendant's challenge to the sufficiency of the evidence because, if this issue is resolved in Defendant's favor, it will dispense with the need to consider Defendant's other arguments on appeal. See State v. Zamora, 2005-NMCA-039, ¶ 22, 137 N.M. 301, 110 P.3d 517 (recognizing that a defendant is entitled to dismissal of the charges if the evidence at trial was insufficient to sustain the conviction). "The test for sufficiency of the evidence is 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. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). 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. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. "We will not substitute our judgment for that of the factfinder, nor will we reweigh the evidence." State v. Trujillo, 2012-NMCA-092, ¶ 5, 287 P.3d 344.

{4} In order to convict Defendant of burglary, the State was required to prove beyond a reasonable doubt that, on or about November 11, 2015, (1) Defendant entered a dwelling without authorization, and (2) Defendant entered the dwelling with the intent to commit a theft when inside. See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 ("Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured."); see also NMSA 1978, § 30-16-3 (1971) (defining burglary as the "unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure . . . with the intent to commit any felony or theft therein"); State v. Ramirez, 2008-NMCA-165, ¶ 6, 145 N.M. 367, 198 P.3d 866 ("The crime of burglary is complete when there is an unauthorized entry with the necessary intent; the intent does not have to be carried out after entry." (internal quotation marks and citation omitted)).

{5} At trial, Angel Amesoli testified that she saw Defendant and another man outside her neighbors' home. The men knocked on the door for several minutes, then went to the side of the house where they spent several minutes attempting to remove a window screen. Ms. Amesoli then saw the men go to the back of the house where they picked at a lock and were able to open a door leading to the basement. Ms. Amesoli then saw the two men enter the basement, after which, one of the men exited soon after and stood outside, while Defendant remained in the basement for several minutes more. Ms.Amesoli called police, and several officers were dispatched to the residence. Defendant was arrested nearby. Both the residents of the home also testified that Defendant did not have permission to be inside their residence.

{6} On appeal, Defendant only challenges the sufficiency of the evidence to prove that he had the requisite intent to commit a theft inside the dwelling. We first observe that "[i]ntent can rarely be proved directly and often is proved by circumstantial evidence." State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495; see also State v. Rudolfo, 2008-NMSC-036, ¶ 31, 144 N.M. 305, 187 P.3d 170 (stating that intent can be inferred from an overt act or the conduct of the defendant). Here, there was evidence that Defendant took steps to ensure the residence was unoccupied, he attempted to gain entry through a window by removing screens, and then, when unsuccessful, Defendant entered the residence and remained inside while his associate stayed on watch outside. There was also testimony establishing that Defendant did not have permission to enter the residence. This evidence was sufficient to allow the jury to infer that Defendant had the requisite mens rea to commit a theft inside the dwelling. See State v. Jennings, 1984-NMCA-051, ¶ 14, 102 N.M. 89, 691 P.2d 882 (recognizing that "[a]n unauthorized presence in a structure is evidence from which a jury could reasonably infer the necessary intent to commit a felony or theft therein"); State v. Wilkerson, 1972-NMCA-067, ¶ 6, 83 N.M. 770, 497 P.2d 981 (holding that the jury could reasonably infer from the defendant's unauthorized presence in the vehicle that he had the necessary intent to commit a felony or theft therein).

{7} Defendant argues that the fact of breaking into a residence does not necessarily demonstrate an intent to commit a theft inside, but could instead indicate the existence of some other lawful or unlawful purpose, such as seeking shelter, searching for a place to take drugs, or some other criminal conduct. However, "[w]hen a defendant argues that the evidence and inferences present two equally reasonable hypotheses, one consistent with guilt and another consistent with innocence, our answer is that by its verdict, the jury has necessarily found the hypothesis of guilt more reasonable than the hypothesis of innocence." State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393; see State v. Schaaf, 2013-NMCA-082, ¶ 11, 308 P.3d 160 (stating that, in reviewing the sufficiency of the evidence on appeal, we do not consider whether the evidence would have supported a different result). As stated, the evidence of Defendant's multiple attempts to enter the home after ensuring that it was unoccupied and his unauthorized presence inside the home was sufficient to support an inference that Defendant entered with intent to commit a theft inside. See Jennings, 1984-NMCA-051, ¶ 14 ("If there are reasonable inferences and sufficient direct or circumstantial facts, then the issue of intent is determinable by the jury and will not be reweighed by the reviewing court."). We therefore reject Defendant's challenge to the sufficiency of the evidence and proceed to consider the merits of Defendant's remaining issues.

B. Motion to Suppress Identification

{8} Defendant next argues that the district court erred in denying his motion to suppress Ms. Amesoli's in-court identification of him because it was tainted by the prior, impermissibly suggestive identification made by Ms. Amesoli at the preliminary hearing.

{9} Our review of the record reveals the following factual and procedural history relevant to this issue. After Ms. Amesoli identified Defendant at the preliminary hearing as the person she saw enter and remain in her neighbors' basement, Defendant filed a motion in district court to suppress any in-court identification at trial by Ms. Amesoli, in which he argued that the identification violated his right to due process. Specifically, Defendant argued that Ms. Amesoli did not know him and therefore could not identify him, and that and Ms. Amesoli was at no time given a photo lineup including other individuals prior to identifying him. Defendant also argued that Ms. Amesoli's identification of him at the preliminary hearing was prejudicial because, at the time she identified him, he was the only person wearing orange, he was in handcuffs and leg irons, and he was sitting next to an attorney. The district court denied the motion to suppress. In its oral comments at the hearing, the district court stated that Defendant had not raised a constitutional issue in his motion, and therefore, suppression was not required. The district court also stated that Defendant's issues related to Ms. Amesoli's credibility, which should be directed to the fact-finder at trial.

{10} We first note that, contrary to the district court's assertion at the hearing on the motion to suppress, Defendant did raise a constitutional issue in his motion to suppress because he argued, in essence, that he was subject to a suggestive pretrial identification procedure which violated his right to due process. See State v. Ramirez, 2018-NMSC-003, ¶¶ 30-33, 409 P.3d 902 (recognizing that, where law enforcement uses an identification procedure that is both suggestive and unnecessary, due process requires suppression of the identification); see also State v. Johnson, 2004-NMCA-058, ¶ 13, 135 N.M. 567, 92 P.3d 13 (stating that the reliability of an identification is a due process requirement).

{11} On appeal, Defendant continues to argue that the circumstances...