State v. Romero
| Decision Date | 09 February 2021 |
| Docket Number | No. A-1-CA-37586,A-1-CA-37586 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. TYLER T. ROMERO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 CURRY COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Tyler Romero (Defendant) appeals his convictions for felony criminal damage to property, contrary to NMSA 1978, Section 30-15-1 (1963), and aggravated assault with a deadly weapon, contrary to NMSA 1978, Section 30-3-2 (1963). Defendant contends that the district court erred in denying his motion for a continuance and challenges the sufficiency of the evidence supporting his convictions. We affirm.
{2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we set forth here only a brief overview of the relevant historical facts of this case. We reserve discussion of specific facts where necessary to our analysis.
{3} Following a verbal altercation with his ex-girlfriend, Felicia Gutierrez (Gutierrez), outside of a bar in Clovis, New Mexico, Defendant drove his vehicle toward Gutierrez and her friend, Skylar Price (Price), who were standing next to Price's vehicle. Defendant's car struck Price's vehicle causing damage, including a small dent, scrapes, and paint transfer to the passenger side rear bumper. Defendant was charged with aggravated assault with a deadly weapon and criminal damage to property.
{4} Following the incident, Price obtained two estimates each exceeding $1,000 for the cost of repairing her vehicle, a previously undamaged 2018 Toyota Camry. Price got one estimate from the Toyota dealership where she purchased the vehicle; she got the other estimate from APEX Collision Center (initial APEX estimate). After the incident, Defendant got a job with APEX Collision Center. A week before trial, Defendant also got an estimate (Defendant's estimate) from APEX Collision Center, his employer, for the repairs to Price's vehicle for an amount less than $1,000. Defendant's estimate was prepared by JJ Castillo, while the initial APEX estimate had been prepared by Diego Urioste. Defense counsel disclosed Defendant's estimate to the State a few days prior to trial. The morning jury selection was to begin, the State requested a continuance to investigate Defendant's estimate. The district court denied the State's motion.
{5} Following its denial of the State's motion, the district court noted that because defense counsel had not filed a witness list, it was likely not possible to lay a foundation to introduce Defendant's estimate. Defense counsel explained that she mistakenly believed that the estimate was a sentencing matter and that the estimate did not need to be introduced as evidence during trial. The district court explained that the amount of damage was an essential element of the felony offense of criminal damage to property. Defense counsel then also moved for a continuance or, alternatively, for leave to file a belated witness list. Noting that the case had been pending for nearly ten months, the district court denied Defendant's motion for a continuance and request to file an untimely witness list. The district court stated that defense counsel was free to cross-examine regarding the value of the repairs despite the "possible credibility issues" associated with Defendant's estimate. The State then declared that it no longer intended to call Urioste to introduce the initial APEX estimate.
{6} At trial, Price testified that the Defendant first drove by the women as he left the parking lot of Kelly's Bar and Grill, arguing with Gutierrez. Price explained that Defendant put the car in reverse, reversed toward the women and hit Price's car. Price also explained that when Defendant hit her vehicle, she and Gutierrez were standing between Price's car and another car, which were parked adjacent to one another. Gutierrez testified similarly and further explained that Defendant could have driven his car between Price's car and the car parked beside it. Gutierrez also testified that she and Price jumped out of the way to avoid being hit by Defendant's vehicle. Pricetestified that she obtained multiple estimates from local repair shops, each of which exceeded $1,000.
{7} At the conclusion of the State's case, defense counsel unsuccessfully moved for a directed verdict on both counts, arguing that the State failed to prove the essential elements of aggravated assault because testimony showed only that Defendant drove in a direction where there were people. Defense counsel also argued that it was impossible for Defendant to drive his vehicle between the two parked cars, and therefore no reasonable juror could have believed that Defendant was about to intrude on Price or Gutierrez's personal safety or bodily integrity. Defense counsel asserted as well that the State failed to prove the elements of criminal damage to property over $1,000 because there was no evidence showing an intent to damage Price's car and the State failed to demonstrate that the damage exceeded $1,000. Defendant testified that he never intentionally struck Price's car or attempted to hit anyone. The jury received lesser-included instructions for misdemeanor assault and misdemeanor criminal damage to property, but convicted Defendant of the charged offenses. This appeal followed.
{8} Defendant argues that the district court erred in denying his motion for continuance. We review the district court's denial of a continuance for an abuse of discretion. State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135 (). State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). It is a defendant's burden to establish an abuse of discretion and further, "that the abuse was to the injury of the defendant." Salazar, 2007-NMSC-004, ¶ 10 (internal quotation marks and citation omitted).
{9} Defendant argues that a district court evaluates a motion for continuance by applying the factors set forth in State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. Defendant contends that to "consider" the factors, the district court must "think about this evidence with a degree of care and caution." Relying on State v. Nehemiah G., Defendant asserts that when a trial court fails to consider even one factor, it abuses its discretion. 2018-NMCA-034, ¶ 46, 417 P.3d 1175. Defendant contends the district court failed to consider any of the Torres factors and therefore the district court abused its discretion. The State answers that we recently, in an unpublished memorandum opinion, addressed and rejected a similar argument, stating that we will not presume from an absence of findings in the record that the district courtdid not consider the Torres factors.1 The State also argues that Nehemiah G. is inapplicable in this case.
{10} We first address Nehemiah G., in which we determined that the district court abused its discretion by not considering the statutorily enumerated factors set forth in NMSA 1978, Section 32A-2-20(C) (2009). See Nehemiah G., 2018-NMCA-034, ¶ 20. That section governs the process by which a court determines whether a juvenile is to be sentenced as an adult. See § 32A-2-20(C). Defendant points to no similar such statutory obligation here, nor any case in which we have held that the Torres factors, or other non-statutory evaluative criteria employed by trial courts, are akin to enumerated statutory factors. "We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority." Valerio v. San Mateo Enter., Inc., 2017-NMCA-059, ¶ 45, 400 P.3d 275 (internal quotation marks and citation omitted). Nonetheless, Defendant argues that had the district court considered the Torres factors, it would have found that the factors supported granting of the motion for a continuance.2
{11} The New Mexico Supreme Court has articulated seven factors that courts should consider when deciding whether to grant or deny a motion for a continuance:
the length of the requested delay, the likelihood that a delay would accomplish the movant's objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion.
Torres, 1999-NMSC-010, ¶ 10. We will not presume from the absence of findings in the record that the district court failed to consider that which it is required to consider or otherwise abused its discretion. See State v. Gonzales, 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355 (...
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