State v. Salcido

• Decision Date: 10 September 2018
• Docket Number: NO. A-1-CA-36759,A-1-CA-36759
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ISAIAS SALCIDO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ISAIAS SALCIDO, Defendant-Appellant.

NO. A-1-CA-36759

COURT OF APPEALS OF THE STATE OF NEW MEXICO

September 10, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CHAVES COUNTY

Kea W. Riggs, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender

John Charles Bennett, Assistant Public Defender

Santa Fe, NM

for Appellee

MEMORANDUM OPINION

ZAMORA, Judge.

{1} Defendant Isaias Salcido appeals from his convictions, after a jury trial, of trafficking controlled substances, contrary to NMSA 1978, Section 30-31-20 (2006), and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2001). In this Court's notice of proposed disposition, we proposed to summarily affirm. [CN 1, 10] Defendant filed a memorandum in opposition (MIO) and motion to amend the docketing statement, which we have duly considered. Remaining unpersuaded, we deny Defendant's motion to amend the docketing statement and affirm.

Pretext and Sufficiency

{2} Defendant continues to argue pretext and sufficiency, as he did in his docketing statement. [DS 6-7; MIO 8, 15] With regard to these issues, we note that Defendant has not asserted any new facts, law, or arguments that persuade this Court that our notice of proposed disposition was erroneous. [See id.] See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law."); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that "[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact[,]" and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Defendant to our analysis in our notice of proposed disposition.

{3} We additionally note that, although Defendant continues to argue that there was insufficient evidence to support a reasonable jury finding that Defendant intended to transfer the methamphetamine to another, we reiterate that the evidence—that Defendant was in possession of a cup with a substance determined to be 21.35 grams of methamphetamine in it; that he had a digital scale with residue and two baggies with residue on his person; that amounts of drugs closer to an ounce (28.35 grams) indicate that it is more likely that the intent is to traffic; and that there was no other user-paraphernalia found in the vehicle [MIO 4-6; CN 6-9]—was sufficient to uphold the conviction. See State v. Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930 (stating that sufficiency review is highly deferential; that we view the evidence in the light most favorable to the State, resolving all conflicts and making all possible inferences in favor of the jury's verdict; and that we "do not search for inferences supporting a contrary verdict or re-weigh the evidence because this type of analysis would substitute an appellate court's judgment for that of the jury" (internal quotation marks and citation omitted)); State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226 P.3d 641 (stating that "circumstantial evidence alone can amount to substantial evidence" and that "intent is subjective and is almost always inferred from other factsin the case" (alterations, internal quotation marks, and citation omitted)); State v. Michael S., 1995-NMCA-112, ¶ 7, 120 N.M. 617, 904 P.2d 595 (stating that "[i]ntent need not be established by direct evidence, but may be inferred from the [defendant]'s conduct and the surrounding circumstances").

{4} Again, it is for the jury to resolve any conflicts in the testimony and determine weight and credibility. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. We do not re-weigh the evidence, and we may not substitute our judgment for that of the fact-finder, as long as there is sufficient evidence to support the verdict. State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156; State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (same), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. Moreover, to the extent Defendant presented a different version of the facts, the jury was free to reject his version. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Indeed, "[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.

Motion to Amend: Fundamental Error

{5} Defendant additionally seeks to raise three issues pursuant to his motion to amend: (a) whether the district court fundamentally erred by not including a definition of "inference" in the jury instructions; (b) whether his Fourth Amendment to the United States Constitution rights were violated by the officer asking him for his name and searching for his identification; and (c) whether his New Mexico Constitutional rights were violated for the same reason. [MIO 3; see also MIO 12, 15, 19] In order for this Court to grant a motion to amend the docketing statement, the movant must meet certain criteria that establishes good cause for our allowance of such amendment. See State v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, superceded by rule on other grounds as recognized in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. The essential requirements to show good cause for our allowance of an amendment to an appellant's docketing statement are that "(1) the motion to amend must be timely, (2) the new issue sought to be raised was either (a) properly preserved below or (b) allowed to be raised for the first time on appeal, and (3) the issues raised are viable." Moore, 1989-NMCA-073, ¶ 42.

{6} Defendant seeks to add these three issues pursuant to the doctrine of fundamental error. "The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice." State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. It "is to be resorted to in criminal cases only for the protection of those whose innocence appears indisputabl[e], or open to such question that it would shock the conscience to permit the conviction to stand." Id. ¶ 14 (internal quotation marks and citation omitted).

{7} Jury Instructions. Defendant first argues that "fundamental error results from the failure to instruct the jury on the definition of proper and improper inferences." [MIO 12] Defendant contends that since lawyers, special masters, and "trial court judges require guidance on the magnitude of evidence needed to make permissible inferences," then "a jury of laypersons needs such a definition even more." [MIO 13] Defendant additionally asserts that "[a] brief statement that the verdict should not be based on speculation, guess or conjecture, as the charge here instructed, is not a substitute for the definitions given in" the cases cited. [MIO 13 (internal quotation marks and citation omitted)]. We disagree.

{8} Defendant indicates that a permissible inference has been defined as forming "a rational and logical deduction from facts admitted or established by the evidence," being "linked to a fact in evidence," and/or being "a conclusion arrived at by a process of reasoning which is a rational and logical deduction from facts admitted or established by the evidence." [MIO 12-13 (citing State v. Garcia, 2016-NMSC-034, 384 P.3d 1076, and Slade, 2014-NMCA-088, ¶ 14 (alterations, internal quotationmarks, and citation omitted))]. In the present case, the jury was instructed, in pertinent part, as follows:

You alone are the judges of the credibility of the witnesses and the weight to be given to the testimony of each of them. In determining the credit to be given any witness, you should take into account the witness's truthfulness or untruthfulness, ability and opportunity to observe, memory, manner while testifying, any interest, bias or prejudice the witness may have and the reasonableness of the witness's testimony, considered in the light of all the evidence in the case.

. . . .

You are the sole judges of the facts in this case. It is your duty to determine the facts from the evidence produced here in court. Your verdict should not be based on speculation, guess or conjecture. Neither sympathy nor prejudice should influence your verdict. You are to apply the law as stated in these instructions to the facts as you find them, and in this way decide the case.

[RP 99-100]

{9} Even assuming the jury was required to be instructed on how to properly draw conclusions from the evidence, in the manner suggested by Defendant, we conclude that, viewing the instructions as a whole, the jury was properly instructed in this case—particularly as it was instructed that its verdict should not be based on speculation, guess, or conjecture. See State v. Montoya, 2003-NMSC-004, ¶ 23, 133 N.M. 84, 61 P.3d 793 (stating that we view the jury instructions as a whole); cf. Hourigan v. Cassidy, 2001-NMCA-085, ¶ 33, 131 N.M. 141, 33 P.3d 891 (concluding that a tendered jury...