May 29, 2020- State of New Mexico v. Gregory Lock, No. A-1-CA-37509

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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-37509
5 GREGORY LOCK,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
8 Cindy M. Mercer, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 William A. O’Connell, Assistant Appellant Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals from the judgment and sentence of the district court
19 following his conviction for receiving or transferring a stolen motor vehicle, pursuant
20 to NMSA 1978, Section 30-16D-4 (2009). [RP 116-21] In our notice of proposed
Court of Appeals of New Mexico
Filed 5/29/2020 9:30 AM

2
1 disposition, we proposed to summarily affirm. [CN 2] Defendant filed a memorandum
2 in opposition to this Court’s notice of proposed disposition. We have given due
3 consideration to the memorandum in opposition, and, remaining unpersuaded, we
4 affirm Defendant’s conviction.
5 {2} In his memorandum in opposition, Defendant continues to argue that the
6 district court erred in its decisions to allow the State to show the jury late-disclosed
7 photographs of the motorcycle. [MIO 3] In our calendar notice, we acknowledged that
8 even if the disclosure of the photographs was very untimely, Defendant was required
9 to show that there was prejudice in order to justify sanctions. In his memorandum in
10 opposition, Defendant asserts that he was prejudiced because the officers failed to do
11 a thorough investigation of the case and because the State “made no showing
12 whatsoever that [Defendant] intended to transfer the title of the motorcycle to
13 anyone[.]” [MIO 4] Also, the memorandum in opposition notes that Defendant asked
14 for a less restrictive remedy by solely asking for exclusion of the late-disclosed
15 photographs, rather than moving for dismissal. [MIO 5]
16 {3} While Defendant may be correct that the State’s evidence was not strong or that
17 his requested remedy was less restrictive, that is not the type of prejudice that
18 Defendant is required to show. As we said in our calendar notice, a defendant must

3
1 demonstrate that he or she “was prejudiced by the untimely disclosure.” State v.
2 Duarte, 2007-NMCA-012, ¶¶ 15, 19, 140 N.M. 930, 149 P.3d 1027 (internal
3 quotation marks and citation omitted). “[P]rejudice does not accrue unless the
4 evidence is material and the disclosure is so late that it undermines the defendant’s
5 preparation for trial.” State v. Harper, 2011-NMSC-044, ¶ 20, 150 N.M. 745, 266
6 P.3d 25. Evidence is material if “there is a reasonable probability that, had the
7 evidence been disclosed to the defense, the result of the proceeding would have been
8 different.” Duarte, 2007-NMCA-012, ¶ 15 (internal quotation marks and citation
9 omitted). “Prejudice must be more than speculative; the party claiming prejudice must
10 prove prejudice—it is not enough to simply assert prejudice[.]” Harper, 2011-NMSC-
11 044, ¶ 16. [CN 3-4] Defendant’s arguments as to how he may have been prejudiced
12 continue to point towards credibility issues for the State’s witnesses, which were for
13 the jury to decide. [CN 4] Defendant has not asserted prejudice in the context of
14 Harper, and therefore we hold that the district court did not err in allowing the State
15 to show late-disclosed photographs of the motorcycle.
16 {4} In his memorandum in opposition, Defendant continues to argue that the
17 district court erred in denying his tendered jury instruction, which would have
18 required the jury to find, as an element of the crime, that he “had the intent to procure

4
1 or pass title to the vehicle.” [MIO 5] We considered this argument in our calendar
2 notice. [CN 5] In our calendar notice, we proposed to apply State v. Bernard, 2015-
3 NMCA-089, ¶ 13, 355 P.3d 831, where this Court established that Section 30-16D-4
4 criminalizes two distinct offenses, receiving or transferring possession of a stolen
5 vehicle and possession of a stolen vehicle. “ ‘Intent to procure or pass title to a
6 vehicle’ is not an essential element of the crime of possession of a stolen vehicle,
7 which is a separate and distinct offense under Section 30-16D-4(A).” Bernard, 2015-
8 NMCA-089, ¶ 13.
9 {5} In Defendant’s memorandum in opposition, Defendant concedes that Bernard
10 applies, and yet asks us reconsider our reliance on it. Defendant asks this Court to
11 depart from our case law and claims that “Bernard was wrongly decided.” [MIO 6,
12 see also MIO 12] Defendant argues that the Bernard statutory interpretation was
13 incorrect, claiming that “this Court afforded insufficient significance to the
14 [l]egislature’s 2009 alteration of . . . Section 30-16D-4[.]” [MIO 6] Defendant argues
15 that Bernard “overlooked important aspects of the history underlying the statute that
16 undoubtedly factored into the Legislature’s alteration of it” and particularly disagrees
17 with the Court’s analysis regarding the removal of a comma. [MIO 7-11]
18 {6} Defendant does not address New Mexico’s four-factor test that an appellate
19 court must consider when deciding whether to overturn precedent. State v. Pieri,

5
1 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132, (internal quotation marks and
2 citations omitted), sets forth the factors:
3 1) whether the precedent is so unworkable as to be intolerable; 2)
4 whether parties justifiably relied on the precedent so that reversing it
5 would create an undue hardship; 3) whether the principles of law have
6 developed to such an extent as to leave the old rule no more than a
7 remnant of abandoned doctrine; and 4) whether the facts have changed
8 in the interval from the old rule to reconsideration so as to have robbed
9 the old rule of justification.
10 Further, the principle of stare decisis weighs against overturning Bernard. Stare
11 decisis “dictates adherence to precedent” to “promote[ ] the evenhanded, predictable,
12 and consistent development of legal principles, foster[ ] reliance on judicial decisions,
13 and contribute[ ] to the actual and perceived integrity of the judicial process.” Padilla
14 v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 7, 133 N.M. 661, 68 P.3d 901
15 (internal quotation marks and citation omitted). Stare decisis “lies at the very core of
16 the judicial process of interpreting and announcing law.” Id. (internal quotation marks
17 and citation omitted). Accordingly, we require a “compelling” reason to overrule a
18 case. Id. Defendant offers no such compelling reason, and we decline to overturn
19 Bernard.
20 {7} As he did in his docketing statement, Defendant additionally argues in his
21 memorandum in opposition that there is insufficient evidence to support his
22 conviction, particularly employing the same arguments he used to attack the jury

6
1 instructions. Again, Defendant argues that “the State was required to prove that
2 [Defendant] intended to alter the title of the motorcycle.” [MIO 12] In our calendar
3 notice, we concluded that Defendant’s sufficiency of evidence argument is without
4 merit, because we earlier decided that “intent to procure or pass title to a vehicle” is
5 not an essential element of the offense of possession of a stolen vehicle under Section
6 30-16D-4(A). [CN 6] Defendant has not asserted any fact, law, or argument that
7 persuades us that our analysis of the elements of possession of a stolen vehicle was
8 erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d
9 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden
10 is on the party opposing the proposed disposition to clearly point out errors in fact or
11 law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003
12 (stating that a party responding to a summary calendar notice must come forward and
13 specifically point out errors of law and fact, and the repetition of earlier arguments
14 does not fulfill this requirement), superseded by statute on other grounds as stated
15 in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.
16 {8} Accordingly, for the reasons stated in our notice of proposed disposition and
17 herein, we affirm Defendant’s conviction.

7
1 {9} IT IS SO ORDERED.
2
3 LINDA M. VANZI, Judge
4 WE CONCUR:
5
6 JENNIFER L. ATTREP, Judge
7
8 BRIANA H. ZAMORA, Judge