State v. Merendon

• Court: Court of Appeals of New Mexico
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. GABRIEL T. MERENDON, Defendant-Appellant.
• Docket Number: A-1-CA-39190
• Decision Date: 15 December 2022

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
GABRIEL T. MERENDON, Defendant-Appellant.

No. A-1-CA-39190

Court of Appeals of New Mexico

December 15, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Daniel J. Gallegos, District Judge

Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

Liane E. Kerr Albuquerque, NM for Appellant

MEMORANDUM OPINION

BACA, JUDGE.

{¶1} Defendant Gabriel Merendon appeals his convictions of twelve counts of criminal sexual penetration of a minor (CSPM) (child under thirteen), contrary to NMSA 1978, Section 30-9-11(D)(1) (2009), and two counts of criminal sexual contact of a minor (CSCM) (child under thirteen), contrary to NMSA 1978, Section 30-9-13(B)(1) (2003), raising three claims of error. First, Defendant argues that the

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district court abused its discretion in failing to excuse two jurors. Second, Defendant challenges the amendment of the indictment, which changed the charging period for one of the CSPM charges and, according to Defendant, included a firearm enhancement (Count 14). Third, Defendant contends that Count 14 was not supported by sufficient evidence. For the following reasons, we affirm.

{¶2} Because this is an unpublished memorandum opinion written solely for the benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361, and the parties are familiar with the factual and procedural background of this case, we omit a background section and leave the discussion of the facts for our analysis of the issues.

DISCUSSION

I. Challenges to Jurors

{¶3} Defendant contends the district court erred by (1) failing to excuse Alternate Juror No. 2 because of bias,^[1] and (2) excusing Juror No. 6 when there was no

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compelling need, and in doing so, allowed Alternate Juror No. 2 to be seated, despite bias.

A. Alternate Juror No. 2

{¶4} As to Defendant's first juror challenge, the State contends that Defendant's arguments about juror bias were not preserved because he "never actually" moved to strike Alternate Juror No. 2. Defendant asserts, without citation to the record, that the district court was alerted to this issue after voir dire concluded. We agree with the State that this issue was not preserved.

{¶5} "To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked." Rule 12-321(A) NMRA. "In order to preserve an error for appeal, it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the trial court to the claimed error or errors." State v. Chavez, 2021-NMSC-017, ¶ 16, 485 P.3d 1279 (internal quotation marks and citation omitted). "This in turn requires assertions of the legal principle and development of the facts." State v. Adame, 2020-NMSC-015, ¶ 13, 476 P.3d 872 (alteration, internal quotation marks, and citation omitted). Upon review of the record, it appears that the district court was never presented with a motion to strike this juror for bias. We further observe that this juror was never questioned about potential bias stemming from knowing the prosecutor's mother, and Defendant did not attempt to do so. Instead, Defendant suggested that the jury be

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instructed to alert the district court with any concerns they may have, and the court gave the requested instruction. Thus, because Defendant failed to invoke a ruling on this issue, it is unpreserved. Because Defendant has not asked us to review this claim for fundamental error, we do not address the matter further. See State v. Druktenis, 2004-NMCA-032, ¶ 122, 135 N.M. 223, 86 P.3d 1050 ("[G]enerally, [we] will [not] address issues not preserved below and raised for the first time on appeal."); see also State v. Gutierrez, 2003-NMCA-077, ¶ 9, 133 N.M. 797, 70 P.3d 787 (stating that courts normally do not review for fundamental or plain error when not requested by the appellant); State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will "not review unclear or undeveloped arguments [that] require us to guess at what a part[y's] arguments might be").

B. Panelist 11 Seated as Juror No. 6

{¶6} On a Tuesday during voir dire, the district court informed the venire that trial could last about four to five days. The district court asked the jury panel about potential scheduling conflicts. Panelist No. 11 disclosed that she was scheduled to travel out of town for work the following week. The district court asked the potential jury panel if anyone would be caused undue hardship by sitting on the jury, and no hands were raised. The parties, by stipulation, struck several panelists for cause. Regarding Panelist No. 11, defense counsel suggested that there was a possibility that jury deliberations might continue into the following week when Panelist No. 11

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was scheduled to travel out of town. The State pointed out that so long as the parties anticipate the trial concluding by week's end, then Panelist No. 11's travel plans were not an issue. The district court declined to strike Panelist No. 11 at that point. Panelist No. 11 was seated as Juror No. 6.

{¶7} That Friday, the court received a note from Juror No. 6 stating that she was leaving town on Sunday. Because jury deliberations were to begin that afternoon, the State recommended replacing Juror No. 6 with Alternate Juror No. 2. The district court accepted the State's recommendation so that the jury would have sufficient time for a full deliberation. Defendant objected, stating that this issue was already addressed during voir dire and that the jury should be allowed to structure its deliberations "as they wish." The district court excused Juror No. 6 and replaced her with Alternate Juror No. 2.

{¶8} On appeal, Defendant argues that the district court abused its discretion in removing Juror No. 6, and as a result, a biased juror was seated, Alternate Juror No. 2. To the extent that Defendant's contentions rest on the alleged bias of Alternate Juror No. 2, we have addressed this contention in the preceding section and will not consider it further. The State maintains that Defendant has not established prejudice from the juror's replacement, and, in any event, there was no abuse of discretion.

{¶9} "It is . . . within the discretion of the [district] court to replace seated jurors who, prior to the time the jury retires to consider its verdicts, become or are found

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to be unable or disqualified to perform their...