State v. Porter

• Decision Date: 30 May 2018
• Docket Number: No. A-1-CA-35597,A-1-CA-35597
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENNY V. PORTER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. BENNY V. PORTER, Defendant-Appellant.

No. A-1-CA-35597

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 30, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 OTERO COUNTY

Angie K. Schneider, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Santa Fe NM

for Appellant

MEMORANDUM OPINION

KIEHNE, Judge.

{1} After a jury trial, Benny Porter (Defendant) was convicted of one count of shooting from a motor vehicle in violation of NMSA 1978, Section 30-3-8(B) (1993), and one count of aggravated assault with a deadly weapon in violation of NMSA 1978, Section 30-3-2(A) (1963). Defendant's sentence was enhanced as required by NMSA 1978, Section 31-18-16(A) (1993) because he used a firearm to commit the aggravated assault. On appeal, Defendant claims that his convictions for shooting from a motor vehicle and aggravated assault with a deadly weapon violate double jeopardy; that the firearm enhancement applied to his sentence for aggravated assault with a deadly weapon violates double jeopardy; that he should have been allowed to name a crime for which Jason Swapp (Victim) was convicted in support of his self-defense claim; that the district court improperly allowed a witness to testify about an incident in which Defendant rode as a passenger in a car through Victim's neighborhood one week before the shooting; and that the district court should have granted a mistrial after a juror revealed that she knew one of the State's witnesses. After consideration of Defendant's arguments, we affirm.

BACKGROUND

{2} Defendant and Victim did not like each other. After Victim broke up with his girlfriend, Defendant dated her for one or two months before she resumed her relationship with Victim. On one occasion, Defendant and Victim had a physical altercation; while Victim said that the fight was mutual, Defendant claimed thatVictim was the aggressor, had "flat-out rushed [him]," and that Defendant "had . . . no choice but to defend [himself]."

{3} The present case involves an incident that occurred in May 2013 at the intersection of Lucky and Byrd streets in Alamogordo, New Mexico, when Defendant fired a gun at Victim from his car. Victim lived on Lucky Street, not far from the intersection. Defendant claimed and testified at trial that he fired the shot in self-defense because Victim ran toward Defendant with a baseball bat and threw a beer bottle at the car, causing Defendant to fear for his safety. Defendant said that he was blocked from driving away from the intersection because one of Victim's friends walked out into the street and stood in front of his car. Defendant asserted that he was only in the area to collect money owed to him by a friend who happened to live in the neighborhood. Defendant also testified that he bought the gun used in the shooting because, three weeks earlier, Victim had brandished a rifle while screaming at Defendant and a friend.

{4} The State's theory of the case was that Defendant was not acting in self-defense, but rather had escalated a pattern of harassing Victim. Victim testified that Defendant had driven slowly by his house while playing loud music around fifty times over the span of a few months and had driven by his previous residence about a dozen times. The State presented evidence that on the day of the offense, Victim approachedDefendant's car because he was tired of being harassed, and Victim was holding a beer bottle, not a bat. Victim testified that he only threw the beer bottle as a distraction when he saw Defendant pull out the gun. Other pertinent facts are provided below as needed to address Defendant's arguments.

DISCUSSION

I. Defendant's Convictions for Aggravated Assault With a Deadly Weapon and Shooting From a Motor Vehicle Do Not Violate the Prohibition Against Double Jeopardy

{5} Defendant argues that his convictions for aggravated assault with a deadly weapon and shooting from a motor vehicle violate his right to be free from double jeopardy. We review double jeopardy challenges de novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Double jeopardy challenges involving multiple punishments for violations of the same statute are unit of prosecution cases, while cases in which the same conduct results in convictions under different statutes are double description cases. Id. This is a double description case, because Defendant is challenging his convictions under two different statutes.

{6} To determine whether a double jeopardy violation has occurred in a double description case, we first ask "whether the conduct underlying the offenses [was] unitary, i.e., whether the same conduct violate[d] both statutes." Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 (emphasis omitted). The partieshere agree that the conduct forming the basis for both convictions was unitary; we agree.

{7} After determining that conduct is unitary, this Court must determine whether the Legislature intended to allow multiple punishments for that conduct. See State v. Montoya, 2013-NMSC-020, ¶ 29, 306 P.3d 426. This prong of the analysis is simple because our Supreme Court has already held that convictions for shooting at or from a motor vehicle and aggravated assault with a deadly weapon that arise out of unitary conduct do not violate a defendant's double jeopardy rights. State v. Sosa, 1997-NMSC-032, ¶¶ 34-40, 123 N.M. 564, 943 P.2d 1017. We are bound by our Supreme Court's decision. See Baca v. State, 2017-NMCA-076, ¶ 18, 404 P.3d 789

{8} Defendant nevertheless argues that Sosa has been undermined by our Supreme Court's later decision in Montoya, which "made it clear" that shooting at or from a motor vehicle addresses the same social evil as aggravated assault, and therefore, a defendant may not be punished for both offenses. Defendant further notes that Sosa pre-dated the "modified Blockburger" test that is now used for double description analysis. While we recognize that our Supreme Court has continued to develop the law of double jeopardy since Sosa was decided in 1997, Montoya did not expressly overrule Sosa, and this Court is therefore bound to apply it. Aguilera v. Palm Harbor Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (holding that even ifthe Court of Appeals believes that the Supreme Court would overrule its own precedent if given the opportunity, the Court of Appeals is still bound to apply it). Thus, we leave it to our Supreme Court to overrule its decision in Sosa if that is the appropriate course.

II. The Firearm Enhancement of Defendant's Sentence for Aggravated Assault Does Not Violate Double Jeopardy

{9} Defendant next argues that applying the firearm enhancement to his sentence violated double jeopardy because both the enhancement and his conviction for aggravated assault were based on the use of a firearm. Our Supreme Court recently addressed this issue in State v. Baroz, 2017-NMSC-030, ¶ 20, 404 P.3d 769, and held that applying the firearm enhancement to a sentence for aggravated assault with a deadly weapon does not violate the prohibition against double jeopardy. See State v. Branch, ___-NMCA-___, ¶¶ 1-2, ___ P.3d ___ (No. A-1-CA-33064, Jan. 23, 2018) (recognizing our Supreme Court's decision in Baroz, and withdrawing a previous opinion that held that sentence enhancement for use of a firearm in the commission of aggravated assault violates double jeopardy). Baroz is controlling and we therefore reject Defendant's claim.

III. The District Court Did Not Abuse Its Discretion by Excluding the Name of Victim's Prior Felony Conviction

{10} Defendant argues that the district court abused its discretion by denyingDefendant "the opportunity to name and discuss [Victim's] prior felony conviction for aggravated assault with a deadly weapon." We review evidentiary matters for an abuse of discretion. See State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. "An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. "If there are reasons both for and against a court's decision, there is no abuse of discretion." State v. Smith, 2016-NMSC-007, ¶ 27, 367 P.3d 420.

{11} Victim was convicted of aggravated assault with a deadly weapon in 2007. Before trial, Defendant moved to reconsider an earlier ruling in which the district court had ruled that the name of Victim's crime was inadmissible. Defendant sought to introduce the name of Victim's crime to support his self-defense claim. The State objected, arguing that the evidence was barred by Rule 11-404(B) NMRA and was unfairly prejudicial. The district court, relying on State v. Maples, 2013-NMCA-052, ¶ 18, 300 P.3d 749, ruled that under Rule 11-405(B) NMRA, Defendant could testify about the conviction as a specific instance of Victim's violent conduct to establish Defendant's reasonable fear of Victim if Defendant had knowledge of the conviction. Defendant then testified on voir dire outside the presence of the jury that at the time of the shooting, he did not know the name of the crime that Victim had committed, didnot know the facts of that crime, and did not know how much time in jail Victim had served, if any. Defendant did say that when he met Victim for the first time, Victim told him that he had "served eighteen months in prison for beating the shit out of some guy ....