A-1-CA-35882•October 22, 2019- State of New Mexico v. Oshay LeCharles Toney, No. A-1-CA-35882
October 22, 2019- State of New Mexico v. Oshay LeCharles Toney, No. A-1-CA-35882
A-1-CA-35882Nmctapp
Gesamter Gesetzestext
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.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
STATE OF NEW MEXICO, 2
Plaintiff-Appellee, 3
v. No. A-1-CA-35882 4
OSHAY LECHARLES TONEY 5
a/k/a OSHAY LA CHARLES TONEY, 6
Defendant-Appellant. 7
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8
Briana H. Zamora, District Judge 9
Hector H. Balderas, Attorney General 10
Maris Veidemanis, Assistant Attorney General 11
Santa Fe, NM 12
for Appellee 13
L. Helen Bennett 14
Albuquerque, NM 15
for Appellant 16
MEMORANDUM OPINION 17
VARGAS, Judge. 18
{1} Defendant appeals his convictions for shooting at a motor vehicle (great 19
bodily harm), in violation of NMSA 1978, Section 30-3-8(B) (1993), and aggravated 20
assault with a deadly weapon, in violation of NMSA 1978, Section 30-3-2(A) 21
(1963). He raises three arguments on appeal, as discussed below. We affirm. 22
Court of Appeals of New Mexico
Filed 10/22/2019 9:07 AM2
BACKGROUND 1
{2} This case arises out of a violent confrontation between Defendant Oshay 2
Toney (Defendant), Codefendant Thomas Stevenson (Codefendant), and Marvin 3
Ellis (Victim). During the confrontation more than twenty shots were fired into the 4
vehicle Victim was driving (SUV), with both Defendant and Codefendant firing 5
multiple shots. Defendant claimed he fired in self-defense. He provided evidence 6
that Victim was pointing a gun at him, so he began shooting at the SUV. The State 7
introduced contrary evidence indicating that Victim did not have a gun in his hand 8
when the shooting began. The jury rejected Defendant’s version of the events and 9
convicted him of felony murder, voluntary manslaughter, shooting at a motor vehicle 10
resulting in great bodily harm, and aggravated assault with a deadly weapon. The 11
latter conviction was based on the fact that the owner of the SUV was in the 12
passenger seat at the time the shooting began, although she was not hit because 13
Victim pushed her out of the vehicle after the first shots were fired. Subsequently, 14
the district court vacated the felony-murder and voluntary manslaughter convictions 15
on legal grounds not relevant to this opinion. Further facts will be provided as they 16
are relevant to each issue discussed below. 17
Rule 11-404(A)(2)(b)(ii) NMRA 18
{3} Defendant argues that the district court erred in its interpretation of Rule 11- 19
404(A)(2)(b)(ii), concerning admission of evidence of prior violent acts by 203
Defendant. This issue was raised in the appeal pursued by Codefendant, and 1
addressed in our opinion in that case. State v. Stevenson, ___-NMCA-___, ¶¶ 21-33, 2
___ P.3d ___. Defendant is in the same position with respect to this issue as 3
Codefendant, except that the only evidence of prior violent conduct introduced 4
against Defendant was a single prior felony conviction. For the reasons stated in 5
Stevenson, we hold that Defendant did not establish on the record that he was 6
prejudiced by the district court’s erroneous interpretation of the rule, that he was 7
inhibited in his presentation of evidence of prior violent acts of Victim, or that he 8
was denied the ability to present his self-defense claim. 9
Claimed Brady Violation 10
{4} As did Codefendant, Defendant maintains the prosecution violated the 11
requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to disclose 12
that one of the State’s key witnesses had been arrested a few days after she testified. 13
The arrest was for reasons unrelated to this case but could have been useful for 14
impeachment purposes. However, Defendant does not point to anything in the record 15
on appeal that indicates this issue was preserved below. Defendant does state that it 16
appears the issue was raised orally during the sentencing hearing that occurred on 17
July 30, 2016, but the transcript of that hearing was not included in the record proper 18
on appeal. Defendant requests that “if deemed necessary by the Court, the record be 19
further supplemented with the transcript from June 30, 2016.” However, “[i]t is [the] 204
defendant’s burden to bring up a record sufficient for review of the issues he raises 1
on appeal.” State v. Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 195. We 2
therefore decline Defendant’s request. 3
{5} We do note there is some indication in Codefendant’s record proper that the 4
failure to disclose issue may have been raised at the sentencing hearing. In 5
responding to Codefendant’s written motion raising the issue, the State asserted that 6
the “same motion” was made orally at Codefendant’s sentencing hearing, and denied 7
by the district court. Also, as Defendant states, the docketing statement in this case 8
asserts that the argument was raised at the sentencing hearing as part of a motion for 9
new trial. In Stevenson, we held that Codefendant’s motion was not sufficient to 10
raise a Brady claim. Stevenson, ___-NMCA-___, ¶ 17. Similarly here, the docketing 11
statement indicates the issue raised was a newly discovered evidence claim, as well 12
as a general “interests of justice” argument. In addition, to the extent the State was 13
correct and the “same motion” was made orally in this case as the one submitted in 14
writing by Codefendant, neither motion was sufficient to raise the Brady claim now 15
argued by Defendant on appeal, for the reasons stated in Stevenson. See id. In sum, 16
we hold that to the extent we can discern what argument was made below concerning 17
the disclosure issue, the argument did not preserve this claim, and we will not 18
address it. See State v. Paiz, 2011-NMSC-008, ¶ 33, 149 N.M. 412, 249 P.3d 1235 19
(“On appeal we only consider issues raised in the trial court unless the issues involve 205
matters of jurisdictional or fundamental error.”). We also note that while we 1
considered the possibility of fundamental error in Stevenson, ___-NMCA-___, ¶ 18, 2
we do not have enough of a record to engage in the same type of analysis here. We 3
therefore affirm on this issue on the basis of lack of preservation. 4
Sufficiency of the Evidence 5
{6} Defendant argues there was not sufficient evidence to find him guilty beyond 6
a reasonable doubt, and that a new trial must be granted because the great weight of 7
the evidence was clearly in his favor. Defendant points specifically to the testimony 8
of Victim’s girlfriend (Girlfriend), who was a passenger in the SUV when the 9
shooting started. Defendant argues that Girlfriend was the only witness who directly 10
testified that Victim did not have a gun in his hand when Defendant began to shoot 11
at the SUV and points to many inconsistencies in Girlfriend’s testimony that cast 12
doubt on her veracity. As Defendant acknowledges, however, it was the jury’s job 13
to assess the credibility of the witnesses and to decide who was telling the truth. See 14
State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing 15
that it is for the fact-finder to resolve any conflict in the testimony of the witnesses 16
and to determine where the weight and credibility lie). The testimony of a single 17
witness constitutes sufficient evidence to uphold a conviction. See, e.g., State v. 18
Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333. 196
{7} In addition, Girlfriend’s testimony was indirectly corroborated by other 1
evidence in the case. For example, a completely disinterested witness who was 2
observing the events from a window testified that the confrontation seemed to have 3
been defused and the SUV was backing out of the driveway when Defendant fired 4
multiple shots at the vehicle. The same witness testified that he did not see anything 5
such as a gun sticking out of the window of the SUV, although the window was a 6
third or a quarter of the way open. 7
{8} Viewing the evidence in the light most favorable to the verdict, as we must, 8
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176, we hold 9
the evidence was sufficient to support Defendant’s convictions. 10
CONCLUSION 11
{9} Based on the foregoing, we affirm. 12
{10} IT IS SO ORDERED. 13
_________________________________ 14
JULIE J. VARGAS, Judge 15
WE CONCUR: 16
_________________________________ 17
J. MILES HANISEE, Chief Judge 18
_________________________________ 19
KRISTINA BOGARDUS, Judge 20Was bedeutet dieser Text für Ihre Situation?
Kostenlose und unverbindliche Beratung
Schildern Sie uns Ihre Situation. Unser Team meldet sich per E-Mail bei Ihnen für Ihre Beratung.
Setzen Sie Ihre Recherche in ChatGPT oder Claude fort
Verbinden Sie Omnilex, um den Rechtskorpus über Ihren KI-Assistenten zu durchsuchen.