May 20, 2019- State of New Mexico v. Leon Smith, No. A-1-CA-37656

OCR transcription for search; preserved printed pages are authoritative

Court of Appeals of New Mexico
Filed 5/20/2019 9:10 AM

Reynolds

Pa ek ee eel

Mark
|} IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO |
2| STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
Aly. No. A-1-CA-37656
5| LEON SMITH,
6 Defendant-Appellant.

8) Angie K. Schneider, District

APPEAL FROM THE arene COU
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Hector H. Balderas, Attorney General
Santa Fe, NM

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for Appellee

Bennett J. Baur, Chief Public Defender

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Victor E. Sanchez, Assistant Appellate Defender
Santa Fe, NM

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for Appellant

MEMORANDUM OPINION

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VARGAS, Judge.

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3 Defendant appeals from his jury trial convictions for one count of criminal

sexual penetration and one count of aggravated driving while under the influence of

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liquor or drugs. We proposed to affirm in a notice of proposed summary disposition.

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Unpersuaded, we affirm.

{2} In his docketing statement, Defendant challenged the sufficiency of the

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the information before this Court, we proposed to conclude that there was sufficient
evidence to support Defendant’s convictions.

provides additional facts and maintains that there was insufficient evidence to support

his convictions. [See generally MIO] Notably, Defendant’s memorandum in

opposition does not point to any specific errors of fact or law in our notice of
proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, J 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 (explaining that the repetition of earlier arguments does not meet a
party’s burden to come forward and specifically point out errors of law or fact in a
notice of proposed summary disposition), superseded by statute on other grounds as
stated in State v. Harris, 2013-NMCA-031, 4 3, 297 P.3d 374. Therefore, ‘we are

unpersuaded by Defendant’s memorandum in opposition.

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{3}
because the Blood Alcohol Test (BAT) results were not included in the record proper
[MIO PDF 11], we are not persuaded. Defendant acknowledges, and the record
results in evidence, defense counsel
stipulated to this exhibit, and the district court admitted and read the BAT results on
the record. [Am. DS 7; MIO PDF 7; RP 232] Moreover, there was testimony
presented that Defendant “blew a .18 BAC on the properly calibrated equipment.”
[Am. DS 5; see also MIO PDF 7; RP 233]

{44 For the reasons stated in this opinion, as well as those provided in our notice

of proposed disposition, we affirm.

6} ITISSO ORDERED.

WE CONCUR: