State v. Montoya

• Decision Date: 09 November 2004
• Docket Number: No. 24,192.,24,192.
• Citation: 136 N.M. 674,2005 NMCA 5,104 P.3d 540
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John MONTOYA, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

104 P.3d 540

136 N.M. 674

2005 NMCA 5

STATE of New Mexico, Plaintiff-Appellee, v. John MONTOYA, Jr., Defendant-Appellant.

No. 24,192.

Court of Appeals of New Mexico.

November 9, 2004.

Certiorari Granted January 4, 2005.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM for Appellee.

John B. Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Santa Fe, NM for Appellant.

Certiorari Granted, No. 28,972, January 4, 2005.

OPINION

FRY, Judge.

{1} In State v. Stein, 1999-NMCA-065, 127 N.M. 362, 981 P.2d 295, we examined the definition of "household member" in the Crimes Against Household Members Act, NMSA 1978, §§ 30-3-10 to -16 (1995, prior to 2001 amendment) (CAHMA), and concluded that the crime of "battery against a household member does not encompass battery against one's own child." Stein, 1999-NMCA-065, ¶ 19, 127 N.M. 362, 981 P.2d 295. The victim in Stein, however, was the 13-year-old daughter of the accused. Id. ¶ 4. Today we must decide whether a defendant who has battered his adult son may be convicted of battery against a household member. We conclude that he may on the ground that the exclusion recognized in Stein applies only to the minor children of the perpetrator.

BACKGROUND

{2} Following a scuffle with Victim, Defendant was charged with battery against a household member. Victim was the 28-year-old son of Defendant and had been estranged from his father for several years. On Father's Day, Victim was out driving with his wife and their two children when they encountered Defendant riding his bicycle. Conflicting versions of the events that followed were presented at trial. Victim and his wife both testified that Defendant rode in front of their car and flipped them off. They testified that when Victim asked Defendant if there was something wrong with his finger, Defendant got off his bike, approached the car, swore at Victim in Spanish, choked him, and threw coins at him. They also testified that when Victim got out of the car, Defendant punched Victim twice in the face before Victim retaliated with blows of his own. Defendant, on the other hand, testified that Victim called Defendant a "bum" and a "hobo" and threatened to run over him with his car. According to Defendant, when Victim got out of his car, he struck Defendant, and Defendant fought back only in self-defense. Rejecting Defendant's version of the events, the district court found Defendant guilty of battery against a household member.

DISCUSSION

Finality

{3} Preliminarily, we address whether the district court's order on trial de novo is a final, appealable order. Originally, Defendant was convicted by a jury in magistrate court of battery against a household member. He was sentenced by the magistrate court to 364 days in jail with all 364 days suspended. Defendant then appealed his conviction to the district court where a trial de novo was held. Following a bench trial, the district court entered an order finding Defendant guilty of battery against a household member and remanding to the magistrate court "for imposition of the original sentence."

{4} As the State correctly notes, when a defendant is convicted in a trial de novo on appeal from magistrate court, the district court is required to impose a sentence prior to remanding the case to the magistrate court for enforcement of the district court's judgment. NMSA 1978, § 35-13-2(C) (1996). When the district court enters an order of remand to the magistrate court that does not resolve the issue of sentencing, this Court has held that the order is not final and appealable. State v. Cordova, 114 N.M. 22, 23, 833 P.2d 1203, 1204 (Ct.App.1992); see also State v. Garcia, 99 N.M. 466, 471, 659 P.2d 918, 923 (Ct.App.1983) (recognizing that a final judgment in a criminal case either adjudicates the defendant guilty and imposes, suspends, or defers sentence or dismisses the charges).

{5} Here, the district court did not impose a sentence but remanded to the magistrate court "for imposition of the original sentence." As the State acknowledges, on remand, the magistrate court will have no discretion to revisit the issue of sentencing, but must simply enter the sentence previously imposed. See State v. Gage, 2002-NMCA-018, ¶ 20, 131 N.M. 581, 40 P.3d 1025 (explaining that the magistrate court has no jurisdiction or authority to exceed the mandate of the district court); see also State v. Celusniak, 2004-NMCA-070, ¶ 9, 135 N.M. 728, 93 P.3d 10 ("On remand, the magistrate court proceeds with the case in keeping with the mandate of the district court."). Therefore, because the magistrate court will lack authority to make any substantive determination regarding Defendant's sentence, and will be limited to the purely ministerial act of imposing the original sentence, we conclude that the order on trial de novo is final for purposes of appeal. Cf. State v. Candy L., 2003-NMCA-109, ¶ 6, 134 N.M. 213, 75 P.3d 429 (dismissing appeal as premature where "we are not merely awaiting a ministerial act, but rather a substantive determination" of the child's restitution plan); State v. Ahasteen, 1998-NMCA-158, ¶ 13, 126 N.M. 238, 968 P.2d 328 (applying the doctrine of practical finality to permit appeal from an order of remand).

Preservation

{6} Next we address the issue of preservation raised by the State. According to the State, Defendant failed to preserve his argument that Victim is not a "household member" within the meaning of the CAHMA, and thus cannot raise the issue for the first time on appeal. In particular, the State points out that Defendant did not argue that his "child" or "adult son" cannot be considered a "family member" or "relative" under Section 30-3-11, and did not refer to Stein in the district court. We conclude that the issue of whether Victim meets the statutory definition of "household member" was adequately preserved.

{7} "The New Mexico Rules of Appellate Procedure require a ruling or decision by the district court to be `fairly invoked' in order to preserve a question for review." State v. Jason F., 1998-NMSC-010, ¶ 9, 125 N.M. 111, 957 P.2d 1145; Rule 12-216(A) NMRA. The primary purposes of the preservation requirement are "(1) to alert the trial court to a claim of error so that it has an opportunity to correct any mistake, and (2) to give the opposing party a fair opportunity to respond and show why the court should rule against the objector." State v. Gomez, 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1. As an appellate court, we bear these dual purposes in mind when we apply the preservation requirement. Gracia v. Bittner, 120 N.M. 191, 195, 900 P.2d 351, 355 (Ct.App.1995).

{8} During closing argument, the prosecutor recited the essential elements of battery against a household member, including that Victim was a "household member." The prosecutor then argued that there was evidence to support each element of the offense beyond a reasonable doubt, and that Defendant was the first aggressor. Defense counsel disagreed, arguing that the elements of battery on a household member had not been met, and that Defendant acted in self-defense. Defense counsel's objection, while broad and nebulous, appears to have alerted the district court to the issue of whether the definition of "household member" was met because it prompted the court to ask the prosecutor for the statutory definition of the term following the defense's closing argument. In response to the district court's inquiry, the prosecutor, during rebuttal, recited the applicable statutory definition and argued that the definition was met under the facts of this case. Specifically, she stated that "co-habitation is not necessary" for Victim "to be deemed a household member" and that the definition was met because Defendant "is a parent" of Victim. After reviewing the evidence in chambers, the district court returned on the record to announce its finding that Defendant was guilty of battery against a household member.

{9} Based on the foregoing facts, we conclude that the issue of whether Victim falls within the statutory definition of "household member" was fairly presented below. Despite the ambiguity of defense counsel's objection, the district court was alerted to the question of whether Victim meets the definition of "household member," the State had an opportunity to respond and argue evidence relating to the issue, and the district court ruled on the issue by finding evidence to support each element of the offense beyond a reasonable doubt. See Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995) (discussing that although appellants' "arguments were not a model of clarity, and certainly could have been made with more specificity, they were sufficient to alert the trial court and opposing counsel to the substance of the argument being made"); State v. Griffin, 2002-NMCA-051, ¶ 6, 132 N.M. 195, 46 P.3d 102 (concluding that jury instruction issue was preserved where the district court understood the defendant's argument and made a well-informed ruling on the question); cf. State v. Woodruff, 1997-NMSC-061, ¶ 21, 124 N.M. 388, 951 P.2d 605 (recognizing that the district court may itself fairly invoke a ruling on an issue).

{10} Although no mention of the Stein case was made below, the issue of whether Victim was a "household member" as defined by the applicable statute, the same question addressed in Stein, appears to have been raised and thus was adequately preserved. See Gomez, 1997-NMSC-006, ¶ 30, 122 N.M. 777, 932 P.2d 1 (determining that a party's failure to cite to specific cases in support of a legal principle was not fatal "so long as the party has asserted the principle recognized in the cases and has developed the facts adequately to give the opposing party an opportunity to respond and to give the court an opportunity to rule"). "The rules that govern the preservation of error for appellate review are not an...