April 20, 2017- State of New Mexico v. Lorenzo Salas, Nos. 34,146; 34,381; 34,875; 34,876 (consl.)

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: Apnil 20, 2017
NOS. 34,146, 34,381, 34,875, and 34,876 (consolidated)
STATE OF NEW MEXICO,

Plaintiff-A ppellee/Cross-A ppellant,

V.
LORENZO SALAS,

Defendant-A ppellant/Cross-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District J udge

Hector H. Balderas, Attomey General
Santa Fe, NM
Elizabeth Ashton, Assistant Attomey General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Sergio J. Viscoli, Appellate Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Lorenzo Salas appeals from his conviction for battery on a peace
officer, contrary to NMSA 1978, Section 30-22-24 (1971). Defendant raises numerous
alleged errors arising from his trial, probation revocation hearing, and sentencing as
a habitual offender.
{2} 	As to his trial, Defendant argues that the district court erred by denying his (1)
motion to dismiss due to the State’s failure to collect potentially exculpatory evidence,
(2) request for a mistrial due to alleged witness tampering, (3) request to poll the jury
for evidence of juror misconduct, and (4) request for a mistrial due to prosecutorial
misconduct. Defendant also argues that (1) the district court issued an impermissible
shotgun jury instruction and (2) substantial evidence does not support a finding of
guilt as to each element of the charged offense. As to his probation revocation hearing,
Defendant argues that the district court violated his procedural due process rights.
Finally, as to his habitual offender hearings (sentencing hearings), Defendant argues
that the district court erred by conducting a subsequent sentencing hearing (1) in
violation of his right to be free from double jeopardy and (2) in violation of his right
to due process. Defendant also argues that (1) he received ineffective assistance of

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counsel and (2) substantial evidence does not support a finding that he was the person
convicted of the prior felonies as alleged in the supplemental criminal information.
{3} 	The State filed a cross-appeal arguing that the district court erred in finding that
the State did not meet its burden to prove that Defendant was the individual identified
in the supplemental criminal information at Defendant’s initial sentencing hearing.
The State did not brief this argument on appeal, and it is, therefore, abandoned. See
State v. White, 1994-NMCA-084, ¶ 1, 118 N.M. 225, 880 P.2d 322 (“Issues raised at
earlier stages of the appeal but not briefed are deemed abandoned.”).
{4} 	For the reasons discussed herein, we conclude that each of Defendant’s
arguments is without merit. We therefore affirm the district court.
BACKGROUND
{5} 	On October 24, 2011, Defendant reported to the Bernalillo County Metropolitan
Detention Center (MDC) to serve a twenty-four hour remand sentence. During
booking, Defendant verbally abused booking technician Jessica Alvarez and threw a
pen at her. The pen struck Alvarez in the chest. Alvarez reported Defendant’s conduct
to her immediate supervisor and to corrections officer Kavin Woodard. Woodard
sought out Defendant in the men’s general holding cell (Cell Five). Woodard found
Defendant lying on a concrete bench. Defendant rose and approached Woodard in an
aggressive manner, which led Woodard to remove Defendant from Cell Five and to

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place him in a solitary cell (Cell One). During the walk between the cells, Woodard
held both Defendant’s hands behind his back. Woodard released one of Defendant’s
hands from his grasp after entering Cell One, at which point Defendant head-butted
Woodard in the mouth. The force of the blow chipped one of Woodard’s teeth and
lacerated his lip. Corrections officers, including Woodard, Christina Garcia, Larry
Smith, and Brian Romm, regained control of Defendant and placed him in restraints.
Both Defendant and Woodard received medical attention.
{6} 	MDC personnel filed a report with the Bernalillo County Sheriff’s Office
(BCSO). Deputy Phillip Gonzales of the BCSO reviewed the report, including the
victim statement and photographs attached to the report. Deputy Gonzales then filed
a criminal complaint against Defendant for aggravated battery on a peace officer.
{7} 	Defendant’s trial occurred in January 2014. Witnesses for the State included
Alvarez, Woodard, Garcia, Romm, and Deputy Gonzales. Defendant testified on his
own behalf. The jury found Defendant guilty of battery on a peace officer. The district
court sentenced Defendant to eighteen months incarceration but gave him credit for
time served and ordered probation for the remaining time. The State filed a
supplemental criminal information, alleging that Defendant was a habitual offender
under 	NMSA 	1978, 	Section 	31-18-17 	(2003), 	and 	seeking 	enhancement 	of
Defendant’s sentence.

1Appellate courts use the terms “retrial,” “resentencing,” and “relitigate”
somewhat interchangeably when referring to subsequent sentencing hearings. We use
the term “retrial” because it is the term used by the United States Supreme Court in
both Lockhart v. Nelson, 488 U.S. 33, 34 (1988), and Monge v. California, 524 U.S.
721, 734 (1998).
4
{8} 	On December 5, 2014, the district court conducted Defendant’s initial
sentencing hearing. The State’s evidence included “case information pages,” which
contained inconsistent identifying information about Defendant and certified copies
of fingerprint cards from 2004 and 2008 arrests. The evidence did not, however,
include a certified copy of Defendant’s fingerprint card from the current case. The
district court ruled that the State’s evidence was not sufficient to prove that Defendant
was the person convicted of the prior felonies as alleged in the supplemental criminal
information and denied the State’s request for sentencing enhancement.
{9} 	At Defendant’s December 16, 2014 probation violation hearing, the State
requested a subsequent sentencing hearing. Defendant objected, arguing that double
jeopardy prohibited retrial of his habitual offender status.1 The district court scheduled
concurrent hearings to address Defendant’s alleged probation violation and sentencing
as a habitual offender for January 20, 2015. The scheduled hearings ultimately
occurred on February 11, 2015 and February 18, 2015. The district court ruled that
Defendant violated his probation and sentenced him to one hundred forty-five days

5
incarceration. The district court then ruled that Defendant was a habitual offender and
enhanced his sentence by four years as required under Section 31-18-17.
{10} 	Both the State and Defendant appealed issues arising from Defendant’s trial, his
probation revocation hearing, and his sentencing hearings. This Court consolidated
these issues on appeal. In lieu of a comprehensive recitation of every event that
occurred during Defendant’s trial and subsequent hearings, we discuss events relevant
to Defendant’s appellate arguments as necessary below.
THE TRIAL
{11} 	As to his trial, Defendant argues that any of five alleged errors by the district
court requires reversal of his conviction. We review four of these alleged errors for
abuse of discretion and the fifth for fundamental error. Defendant additionally argues
that substantial evidence did not support his conviction. A district court abuses its
discretion if its ruling is “clearly against the logic and effect of the facts and
circumstances before the court.” State v. Lucero, 1999-NMCA-102, ¶ 32, 127 N.M.
672, 986 P.2d 468 (internal quotation marks and citation omitted). “Parties alleging
fundamental error must demonstrate the existence of circumstances that shock the
conscience or implicate a fundamental unfairness within the system that would
undermine judicial integrity if left unchecked.” State v. Cunningham, 2000-NMSC-

6
009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation
omitted).
Lost or Destroyed Evidence
{12} 	Defendant argues that the district court erred in denying his motion to dismiss
due to lost or destroyed evidence. “The denial of a motion to sanction by dismissal or
suppression of evidence is reviewed for abuse of discretion.” State v. Duarte, 2007-
NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027.
{13} 	Although alternate tests apply under circumstances in which collected evidence
is “lost, destroyed, or inadequately preserved,” State v. Ware articulates the New
Mexico test for cases in which the evidence at issue is never collected. 1994-NMSC-
091, ¶ 11, 118 N.M. 319, 881 P.2d 679. This test first requires that “the evidence that
the [s]tate failed to gather from the crime scene must be material to the defendant’s
defense.” Id. ¶ 25. If the evidence is material, the district court must determine
whether “the failure to collect the evidence was done in bad faith, [or] in an attempt
to prejudice the defendant’s case[.]” Id. ¶ 26. Such a finding may result in suppression
of the evidence. Id.
{14} 	The booking area of MDC is equipped with a video surveillance system, which
records with cameras that continuously pan the area. There are no cameras inside
either Cell One or Cell Five. Neither MDC personnel nor Deputy Gonzales requested

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that any potential recording of the incident at issue be reviewed or preserved, and the
video surveillance system automatically deleted any relevant recording after six
months. Defendant filed a pre-trial motion to dismiss the charge against him due to
the State’s “destruction of exculpatory evidence.” The district court denied the motion,
ruling that the State’s failure to gather the evidence was not negligent or in bad faith.
{15} 	Defendant presented no evidence that the surveillance system captured video
of either the alleged battery or the immediately preceding interaction. However, even
if the surveillance system did capture material evidence, Defendant does not direct this
Court to any indication that the failure to collect such evidence was the result of bad
faith or an attempt to cause prejudice to Defendant.
{16} 	Deputy Gonzales testified that his investigation comported with BCSO’s
standard procedure for incidents at MDC, specifically stating that battery on a peace
officer is not a charge that requires an in-person investigation. Deputy Gonzales
received Woodard’s written statement and the accompanying photographs. He did not,
apparently, contemplate the possibility that MDC withheld exculpatory evidence.
Even if Deputy Gonzales should have investigated the possibility that exculpatory
video evidence existed, his failure to do so was no more than negligent. See id.
(describing the failure to collect evidence as grossly negligent if the investigating
officer “act[s] directly contrary to standard police investigatory procedure”).

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{17} 	“When the failure to gather evidence is merely negligent, an oversight, or done
in good faith, sanctions are inappropriate, but the defendant can still examine the
prosecution’s witnesses about the deficiencies of the investigation and argue the
investigation’s shortcomings against the standard of reasonable doubt.” Id. Defendant
cross-examined Deputy Gonzales at trial with respect to the substance and quality of
his investigation. Given this cross-examination of Deputy Gonzales, the district
court’s denial of Defendant’s motion to dismiss was not “clearly against the logic and
effect of the facts and circumstances before the court.” Lucero, 1999-NMCA-102,
¶ 32 (internal quotation marks and citation omitted).
Witness Tampering
{18} 	Defendant argues that the district court erred in denying his request for a
mistrial due to witness tampering in violation of Rule 11-615 NMRA. “We review the
[district] court’s denial of a request for a mistrial for abuse of discretion.” Lucero,
1999-NMCA-102, ¶ 32.
{19} 	Rule 11-615 provides that, if requested, the “court must order witnesses
excluded so that they cannot hear other witnesses’ testimony[.]” The purpose of the
rule is to “prevent witnesses from tailoring their testimony to the testimony of other
witnesses.” State v. Ruiz, 1995-NMCA-007, ¶ 22, 119 N.M. 515, 892 P.2d 962.
However, even assuming that the conduct in the current case implicates Rule 11-615,

9
“the choice of remedy [for a violation of the rule] is within the sound discretion of the
[district] court.” State v. Reynolds, 1990-NMCA-122, ¶ 28, 111 N.M. 263, 804 P.2d
1082.
{20} 	In Reynolds, the defendant alleged that one of the state’s witnesses, who had
already testified, discussed the trial with another of the state’s witnesses, who had not
yet testified. Id. ¶ 25. The district court held a hearing on the allegations, denied the
defendant’s request for a mistrial, and tailored alternate sanctions. Id. ¶ 26. This Court
affirmed, holding that although a mistrial is a possible remedy for a violation of Rule
11-615, other potential remedies include “striking testimony, citing for contempt,
instructing the jury, permitting examination of the witnesses by counsel concerning
how their testimony may have been tainted, and permitting argument by counsel.”
Reynolds, 1990-NMCA-122, ¶ 28.
{21} 	Alvarez testified that a secretary employed by the district attorney’s office
provided her with a copy of Woodard’s incident report and that she read portions of
the report prior to testifying. She additionally testified that she only read the first three
lines of Woodard’s report before she stopped reading and that, other than the date of
the incident, the report did not serve to refresh her memory of the incident. Defendant
requested a mistrial, claiming that Alvarez’s reading of Woodard’s incident report was
akin to communication between witnesses. The district court denied this request.

10
{22} 	Reynolds provides that cross-examination is a possible remedy for a violation
of Rule 11-615. Reynolds, 1990-NMCA-122, ¶ 28. The district court gave Defendant
an opportunity to cross-examine Alvarez as to the clarity with which she remembered
the incident independent of Woodard’s report. Defendant does not argue on appeal
that cross-examination was an insufficient remedy. As such, the district court’s choice
of this remedy was not “clearly against the logic and effect of the facts and
circumstances before [it.]” Lucero, 1999-NMCA-102, ¶ 32 (internal quotation marks
and citation omitted).
Jury Misconduct
{23} 	Defendant argues that the district court erred by denying his request to poll the
jury for evidence of misconduct. Although incompletely developed on appeal, we
interpret this argument to address the possibility that the jurors discussed the case
amongst themselves in violation of the district court’s oral instructions. This Court
reviews a district court’s refusal to voir dire a jury under such circumstances for abuse
of discretion. State v. Case, 1984-NMSC-012, ¶ 24, 100 N.M. 714, 676 P.2d 241.
{24} 	“If there is no evidence of probable juror impropriety, the [district] court does
not abuse its discretion by refusing to voir dire the jury.” Id. Additionally, we presume
that jurors adhere to instructions not to prematurely discuss the case among
themselves. Id. ¶ 23.

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{25} 	The spouse of one of the jurors sat in the gallery during the first two days of
trial. On two occasions, references were made to Defendant’s incarceration while
outside the presence of the jury but in the presence of the juror’s spouse. Due to the
possibility that the juror’s spouse could have imparted prejudicial information to the
juror, the district court excused the juror at the end of the second day of trial. The next
day, Defendant requested that the judge voir dire the jury, by way of a generic
question, as to any potentially prejudicial information relayed by the excused juror.
The district court declined this request, stating that addressing the issue with the jury
would simply draw attention to the issue. Defendant did not request a mistrial as a
result of the district court’s ruling.
{26} 	Defendant neither argues, nor directs this Court to any evidence, that the jury
was exposed to extraneous information related to his incarceration during trial. As a
result, the district court’s ruling was not “clearly against the logic and effect of the
facts and circumstances before the court.” Lucero, 1999-NMCA-102, ¶ 32 (internal
quotation marks and citation omitted).
Prosecutorial Misconduct
{27} 	Defendant argues on appeal that the district court erred in denying his motion
for a mistrial on the issue of prosecutorial vouching. “We review the [district] court’s
denial of a request for a mistrial for abuse of discretion.” Id. Defendant’s brief in chief

12
also requests relief for additional instances of alleged prosecutorial vouching. In
accordance with our appellate rules, we address only those instances for which
Defendant provides citation to the record in his brief in chief. See Rule 12-318(A)(3)
NMRA (“The brief in chief of the appellant . . . shall contain citations to the record
proper, 	transcript 	of 	proceedings, 	or 	exhibits 	supporting 	each 	factual
representation[.]”); State v. Dominguez, 2014-NMCA-064, ¶ 26, 327 P.3d 1092
(holding that “we will not search the record to find facts to support [a defendant’s]
argument”).
{28} 	Defendant claims that the district court erred in its treatment of four specific
comments made during the State’s closing argument. The first two comments were
part of a continuous exchange, which occurred as follows:
[The State:] 	You have testimony from all of the witnesses
that this was a fast, out-of-control situation
going on. I believe from Officer Woodard,
who said that it was happening in a matter of
seconds. It’s very possible that it was never
caught on film . . . . It’s also possible that it
lapsed in that six months. But I assure you
there’s no government conspiracy to hide it.
Because you have the witness testimony. If
there had been another witness who provided
conflicting testimony, you would have heard
that too. Because . . . you were given all of the
relevant 	testimony 	that 	the 	State 	had 	to
provide to you to prove this case beyond a
reasonable doubt.

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[Defense Counsel:] 	Objection, Your Honor. She’s vouching for
the strength of her case and evidence.
The Court: 	That’s true. Jury, disregard that last remark.
[The State:] 	You heard every witness that was called in
this 	particular 	case 	who 	had 	relevant
testimony to provide.
[Defense Counsel:] 	Objection, Your Honor.
The Court: 	Once again, State.
[The State:] 	Your Honor, may we approach?
The Court: 	Sure.
. . . .
[Defense Counsel:] 	Your 	Honor, 	I 	move 	for 	mistrial for
prosecutorial misconduct. She is not permitted
to vouch for the strength of her case and
evaluating and making comment that she has
evaluated things that she—they chose all the
relevant information to present in this case.
She has—
[The State:] 	They put on a defense. We said that they were
given relevant information. They had all of
the statements that were permitted to be put on
for 	them, 	therefore 	there’s 	nothing
impermissible about what I did.
The Court: 	Do not refer to it as the relevant information,
and you put on the information you had and
that’s fine. It doesn’t give rise to a mistrial at
this time. So just move on.

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{29} 	The district court agreed that the State’s characterization of certain evidence as
“relevant” was impermissible and took immediate action to correct the error by
issuing a curative instruction after Defendant’s first objection. See State v. Sosa, 2009-
NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348 (holding that “a [district] court can
correct any impropriety [in closing argument] by striking statements and offering
curative instructions”). It is well-settled that juries are presumed to follow such
instructions. State v. Otto, 2007-NMSC-012, ¶ 17, 141 N.M. 443, 157 P.3d 8.
Defendant did not request similar relief following his second objection but instead
requested a mistrial, which was denied. A district court does not err by refusing to
give a curative instruction in the absence of such a request. See State v. Sandoval,
1975-NMCA-096, ¶ 4, 88 N.M. 267, 539 P.2d 1029 (holding that it is the duty of the
complaining party to request a curative instruction). Furthermore, the district court’s
response to Defendant’s second objection implicitly reiterated its previous curative
instruction.
{30} 	District courts “are in the best position to assess the impact of any questionable
comment” and, therefore, have “broad discretion in managing closing argument.”
Sosa, 2009-NMSC-056, ¶ 25. Given the corrective action taken, the district court’s
denial of Defendant’s request for a mistrial was not “clearly against the logic and

15
effect of the facts and circumstances before the court.” Lucero, 1999-NMCA-102,
¶ 32 (internal quotation marks and citation omitted).
{31} 	The next two comments centered on the credibility of witness testimony.
Although Defendant did not request a mistrial or additional curative instructions with
respect to either comment, he argues on appeal that the district court’s failure to grant
such relief sua sponte deprived him of a fair trial.
{32} 	While discussing Defendant’s theory of the case, the State argued that
“Defendant is trying to merge the story, but he can’t because his testimony today is
made out of whole cloth.” Such comments are not impermissible, as long as they are
not expressed as personal opinion or intended to incite prejudice toward a defendant.
Dominguez, 2014-NMCA-064, ¶ 23. “Where a case essentially revolves around which
of two conflicting stories is true, a party may reasonably infer, and thus argue, that the
other side is lying.” Id. ¶ 25 (internal quotation marks and citation omitted). Defendant
testified that Woodard’s injury may have resulted from unintentional contact. The
State’s comment during closing argument merely questioned the credibility of
Defendant’s testimony in light of other evidence. Even had he objected at trial, such
a comment would not entitle Defendant to a mistrial or curative instruction.
{33} 	While discussing Alvarez’s testimony, the State argued that “Defendant placed
a lot of weight on the fact that [she] couldn’t remember details. I would proffer to you

16
that she had a good recollection. She testified credibly, and she told you that.”
Defendant objected, and the district court sustained the objection, stating that “[t]he
jurors get to . . . determine the credibility of each witness.” However, Defendant did
not request a mistrial or curative instruction in response to this comment. In the
absence of such a request, or a demonstration that prejudice resulted, the district
court’s response to Defendant’s objection was sufficient to cure the error. See In re
Crystal L., 2002-NMCA-063, ¶ 19, 132 N.M. 349, 48 P.3d 87 (finding the appellant
was not entitled to relief on appeal when the district court sustained the appellant’s
objection to improper comments during closing argument, but the appellant did not
request additional relief at trial and failed to demonstrate prejudice on appeal).
{34} 	The district court did not abuse its discretion in denying Defendant’s request
for a mistrial or err in its treatment of any of the specific comments raised on appeal.
Defendant is not entitled to his requested relief.
Shotgun Jury Instruction
{35} 	Defendant argues that the district court issued an impermissible shotgun jury
instruction. Defendant did not preserve this argument for appeal. We therefore review
for fundamental error only. See State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621,
92 P.3d 633 (holding that appellate courts review unpreserved questions for

17
fundamental error); see also Cunningham, 2000-NMSC-009, ¶ 21 (describing the
burden placed on parties alleging fundamental error).
{36} 	The use of a shotgun jury instruction is prohibited due to the “potentially
coercive effect it has on holdout jurors to abandon their convictions to arrive at a
verdict with the majority.” State v. Laney, 2003-NMCA-144, ¶ 52, 134 N.M. 648, 81
P.3d 591. In State v. Rickerson, our Supreme Court outlined three factors that
determine whether communication between the district court and the jury related to
the jury’s deliberations is coercive. 1981-NMSC-036, ¶ 4, 95 N.M. 666, 625 P.2d
1183. These factors are “(a) whether any additional instruction or instructions . . .
were given[,] (b) whether the court failed to caution a jury not to surrender honest
convictions, thus pressuring holdout jurors to conform, and (c) whether the court
established time limits on further deliberations with the threat of a mistrial.” Id.
Although Rickerson reviewed the propriety of an inquiry by the district court into the
numerical division of the jury—a circumstance not at issue here—the circumstances
of this case justify application of the same multi-factor test. In applying the Rickerson
test, we consider both the district court’s actions and the circumstances under which
such actions arose. Laney, 2003-NMCA-144, ¶ 56.
{37} 	The jury received the case on Friday at approximately 4:00 p.m. At 5:10 p.m.,
the district court called the jury to the courtroom to discuss its progress toward a

18
verdict and to relay logistical concerns with allowing deliberations to continue. The
district court instructed the jury that it could deliberate for twenty more minutes and,
if it did not reach a verdict, deliberations would resume on the following Monday. The
jury returned a verdict within the allotted time.
{38} 	Defendant argues that the prospect of returning on Monday could have a
coercive effect on the jurors. Under the circumstances of this case, we cannot agree.
The temporal limitation established by the district court applied only to that particular
day and arose from logistical concerns, rather than deliberative ones. The district court
expressly stated:
I don’t mean to rush you, and I’m not telling you to come back with a
verdict, I just need a point where I have to say enough is enough and you
need to . . . come back on Monday. I don’t want a quick verdict. I don’t
mean to rush you. You can have all the time you need on Monday[.]
While we recognize that the average juror might be disinclined to return to jury
service following the weekend, the district court’s conduct in no way “pressur[ed]
holdout jurors to conform” or “established time limits on further deliberations with
the threat of a mistrial.” Rickerson, 1981-NMSC-036, ¶ 4. In the absence of such
coercion, Defendant has not suffered “fundamental unfairness” requiring reversal.
Cunningham, 2000-NMSC-009, ¶ 21.

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Sufficiency of the Evidence
{39} 	Finally, Defendant argues that substantial evidence does not support a finding
that Woodard was a peace officer as defined by statute. “The test for sufficiency of the
evidence is whether substantial evidence of either a direct or circumstantial nature
exists to support a verdict of guilt beyond a reasonable doubt with respect to every
element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M.
94, 140 P.3d 515 (internal quotation marks and citation omitted). Appellate courts
“view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict.” Id. (internal quotation marks and citation omitted).
{40} 	Section 30-22-24 prohibits battery upon a peace officer. A corrections officer,
or “jailer,” is a peace officer under the statute. See State v. Rhea, 1980-NMSC-033,
¶ 5, 94 N.M. 168, 608 P.2d 144 (“We hold that the Legislature did not exclude jailers
from its definition of peace officers. A jailer is an officer in the public domain,
charged with the duty to maintain public order.”).
{41} 	Woodard testified that he was a corrections officer employed by MDC.
Woodard’s testimony is substantial evidence that he is a peace officer under the
statute. Defendant’s argument is not well-taken.

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PROBATION REVOCATION HEARING
{42} 	Defendant argues that the district court violated his procedural due process
rights by admitting drug test results in violation of protocol established in State v.
Sanchez, 2001-NMCA-060, ¶ 17, 130 N.M. 602, 28 P.3d 1143. This Court reviews
due process claims de novo. State v. Gutierrez, 2015-NMCA-082, ¶ 23, 355 P.3d 93.
However, Defendant did not preserve this argument for appeal. We therefore review
for fundamental error only. See Barber, 2004-NMSC-019, ¶ 8 (holding that appellate
courts review unpreserved questions for fundamental error); see also Cunningham,
2000-NMSC-009, ¶ 21(describing the burden placed on parties alleging fundamental
error).
{43} 	Sanchez established that defendants are entitled to minimum due process rights
in probation revocation hearings. 2001-NMCA-060, ¶ 13. In cases involving a
positive drug test, the defendant must receive a copy of the relevant laboratory test at
least five days prior to the hearing. Id. ¶ 17.
{44} 	The State filed a notice of compliance with the Sanchez protocol on January 5,
2015. Defendant does not direct this Court to any evidence indicating that he did not
receive this notice and the associated litigation packet or that the State otherwise
violated the Sanchez protocol. See Dominguez, 2014-NMCA-064, ¶ 26 (“[W]e will
not search the record to find facts to support [a defendant’s] argument.”). Under these

21
circumstances, Defendant has not suffered “fundamental unfairness” requiring
reversal. Cunningham, 2000-NMSC-009, ¶ 21.
SENTENCING HEARINGS
{45} 	With respect to his sentencing hearings, Defendant argues that any of four
alleged errors by the district court requires reversal of his sentencing enhancement.
We address these arguments in turn.
Double Jeopardy
{46} 	Defendant argues that the district court violated double jeopardy by subjecting
him to retrial after ruling that the State’s evidence was not sufficient to prove that he
was the person convicted of the prior felonies as alleged in the supplemental criminal
information. Questions related to double jeopardy protections are reviewed de novo
and may be raised for the first time on appeal. State v. Lopez, 2008-NMCA-002, ¶ 12,
143 N.M. 274, 175 P.3d 942.
{47} 	The State cites various cases, including State v. Linam, 1979-NMSC-004, 93
N.M. 307, 600 P.2d 253; State v. Aragon, 1993-NMSC-054, 116 N.M. 267, 861 P.2d
948; and State v. Freed, 1996-NMCA-044, 121 N.M. 569, 915 P.2d 325, for the
general principle that double jeopardy protections do not apply to habitual offender
proceedings. We agree that “double jeopardy [protections] generally [do] not apply

22
in . . . habitual offender proceedings” because the proceedings do not have “the
hallmarks of a trial of guilt or innocence[.]” Aragon, 1993-NMSC-054, ¶¶ 11, 13.
{48} 	However, in the only New Mexico case to address Defendant’s specific
argument, our Supreme Court indicated that double jeopardy prohibits retrial after a
ruling that the state’s evidence was not sufficient to prove that the defendant was the
person convicted of the prior felonies as alleged in the supplemental criminal
information. Koonsman v. State, 1993-NMSC-052, ¶ 7 n.2, 116 N.M.112, 860 P.2d
754. In Koonsman, the defendant was convicted of a third degree felony in 1990. Id.
¶ 2. The state submitted a supplemental criminal information that alleged that the
defendant had five prior felony convictions: two from 1960, two from 1966, and one
from 1978. Id. The district court ruled that the defendant was the same person named
in the 1966 and 1978 convictions but that “there was not sufficient evidence of
identity for the two 1960 convictions.” Id. It sentenced the defendant as a habitual
offender with three prior convictions. Id. The defendant appealed his sentencing
enhancement, arguing that the sequencing of the crimes and convictions resulted in
only two qualifying offenses under the statute. Id. ¶ 3. Our Supreme Court agreed and
ruled that the defendant’s conviction could 	only 	be 	enhanced by two prior
convictions—in part because of the sequencing issue raised by the defendant and in
part “because the [s]tate failed to prove that [the defendant] was the same defendant

23
as the person named in the two 1960 convictions.” Id. ¶ 7. It expanded upon its ruling
in a footnote, stating:
Although the court may resentence [the defendant] as a[] habitual
offender with two prior convictions, . . . the [s]tate may not attempt to
relitigate whether [the defendant] was indeed the person named in the
1960 convictions. A hearing already has been held on that issue and the
[s]tate failed to provide sufficient evidence of [the defendant’s] identity.
Id. ¶ 7 n.2 (citations omitted). Because neither party argued for retrial of the 1960
convictions, the footnote appears to be dictum. See Kent Nowlin Constr. Co. v.
Gutierrez, 1982-NMSC-123, ¶ 8, 99 N.M. 389, 658 P.2d 1116 (“Dictum is
unnecessary to the holding of a case and therefore is not binding as a rule of law.”).
Supreme Court dicta, however, has persuasive value. See State v. Johnson, 2001-
NMSC-001, ¶ 16, 130 N.M. 6, 15 P.3d 1233 (holding that lower courts should give
adequate deference to Supreme Court dicta). In Defendant’s initial sentencing hearing,
the State failed to introduce a certified copy of his fingerprint card from the current
case, leading the district court to rule that the State’s evidence was not sufficient to
prove that Defendant was the person convicted of the prior felonies as alleged in the
supplemental criminal information. However, to the extent that Koonsman suggests
that the failure to introduce sufficient evidence of a defendant’s identity in a habitual
offender proceeding prohibits retrial, its persuasive value is negated by subsequent
United States Supreme Court case law.

24
{49} 	In 1988, the United States Supreme Court decided Lockhart v. Nelson. Lockhart
interpreted 	Arkansas’s 	habitual 	offender 	statute, 	which 	imposes 	sentencing
enhancements following a fifth felony conviction. 488 U.S. at 34-35. The defendant
was convicted of burglary, and the state introduced evidence of four prior felony
convictions at his sentencing hearing. Id. at 36. The defendant testified that the
governor had pardoned one of his prior convictions. Id. Despite this testimony, the
jury concluded that the state proved that the defendant had four prior felony
convictions and imposed an enhanced sentence. Id.
{50} 	The defendant petitioned for a writ of habeas corpus, alleging that his sentence
was invalid due to the alleged pardon. Id. at 37. The United States District Court
ordered an investigation, which verified the defendant’s claim. Id. The court declared
the enhancement invalid and subsequently ruled that double jeopardy prohibited retrial
of the defendant’s habitual offender status. Id. When the state moved to retry the
defendant as a habitual offender, the defendant responded that double jeopardy
prohibited retrial. Id. The Eighth Circuit affirmed, holding that “the pardoned
conviction was not admissible under state law, and that without it, the state has failed
to provide sufficient evidence to sustain the enhanced sentence.” Id. (alterations,
internal quotation marks, and citation omitted). The United States Supreme Court
granted certiorari and reversed the Eighth Circuit. Id. In considering whether

25
substantial evidence supported the jury’s finding, it held that “where the evidence
offered by the [s]tate and admitted by the trial court—whether erroneously or
not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy
Clause does not preclude retrial.” Id. at 34. Lockhart left open the issue of whether the
state’s complete failure to introduce sufficient evidence would preclude retrial of a
defendant’s habitual offender status.
{51} 	The United States Supreme Court revisited the issue in Monge v. California.
Monge interpreted California’s “three-strikes” law, which subjects defendants to
sentencing enhancement if they have at least one previous conviction for a “serious
felony.” 524 U.S. at 724. At the defendant’s “three-strikes” hearing, the state alleged
that his qualifying conviction was for assault with a deadly weapon—specifically, a
stick. Id. at 725. The state did not, however, offer any substantive evidence that the
defendant “personally used a dangerous or deadly weapon during the assault” as
required to qualify as a “serious felony.” Id. at 724-25. Despite this evidentiary
deficiency, the trial court enhanced the defendant’s sentence under the “three-strikes”
law. Id. at 725.
{52} 	The California Court of Appeal concluded that insufficient evidence supported
the sentencing enhancement and that double jeopardy prohibited retrial. Id. at 725-26.
The California Supreme Court reversed, and the United States Supreme Court granted

26
certiorari. Id. at 726-27. It first outlined the historical rationale underlying double
jeopardy protections, stating that double jeopardy “protects against successive
prosecutions for the same offense after acquittal or conviction and against multiple
criminal punishments for the same offense.” Id. at 727-28. Then, turning to sentencing
proceedings, it held:
Sentencing decisions favorable to the defendant . . . cannot generally be
analogized to an acquittal. We have held that where an appeals court
overturns a conviction on the ground that the prosecution proffered
insufficient evidence of guilt, that finding is comparable to an acquittal,
and the Double Jeopardy Clause precludes a second trial. Where a
similar failure of proof occurs in a sentencing proceeding, however, the
analogy is inapt. The pronouncement of sentence simply does not have
the qualities of constitutional finality that attend an acquittal.
Id. at 729 (emphasis added) (internal quotation marks and citations omitted). By
holding that insufficient evidence is never a bar to the retrial of a defendant’s status
as a habitual offender, Monge resolved the issue left open in Lockhart. Compare
Bowman v. State, 552 A.2d 1303, 1310 (Md. 1989) (holding, post-Lockhart, that
insufficient evidence prohibits retrial in a habitual offender proceeding), with Scott v.
State, 148 A.3d 72, 83-84 (Md. Ct. Spec. App. 2016) (departing from Bowman and
holding, post-Monge, that insufficient evidence does not prohibit retrial in a habitual
offender proceeding). Defendant does not argue that the New Mexico Constitution
offers greater protection than the Federal Constitution. See State v. Armendariz-Nunez,
2012-NMCA-041, ¶ 5, 276 P.3d 963 (“Where [a state constitutional] provision has

27
never before been addressed under our interstitial analysis, trial counsel . . . must
argue that the state constitutional provision should provide greater protection [than its
federal counterpart.]”). Monge therefore is the relevant precedent, and the district
court did not err in allowing the retrial of Defendant’s habitual offender status.
Due Process Violation
{53} 	Defendant also argues that the district court violated his due process rights by
allowing the State to proceed with a subsequent sentencing hearing without proper
notice. This Court reviews due process claims de novo. Gutierrez, 2015-NMCA-082,
¶ 23. However, Defendant did not preserve this argument for appeal. We therefore
review for fundamental error only. See Barber, 2004-NMSC-019, ¶ 8 (holding that
appellate courts review unpreserved questions for fundamental error); see also
Cunningham, 2000-NMSC-009, ¶ 21(describing the burden placed on parties alleging
fundamental error).
{54} 	In order to subject a defendant to a statutory sentencing enhancement, due
process requires that the defendant “be given notice that enhancement of sentence is
sought by a pleading filed by the [s]tate and an opportunity to be heard before an
increased penalty can be imposed.” State v. Santillanes, 1981-NMSC-064, ¶ 5, 96
N.M. 477, 632 P.2d 354 (citing State v. Rhodes, 1966-NMSC-064, ¶ 11, 76 N.M. 177,
413 P.2d 214). This standard applies to various statutory sentencing enhancement

28
schemes. See, e.g., Caristo v. Sullivan, 1991-NMSC-088, ¶¶ 41-44, 112 N.M. 623,
818 P.2d 401 (applying the Rhodes due process analysis to a sentencing enhancement
predicated upon a finding of aggravating circumstances).
{55} 	In State v. Godoy, the state sought to enhance the defendant’s sentence pursuant
to Section 31-18-17. Godoy, 2012-NMCA-084, ¶¶ 20-21, 284 P.3d 410. On appeal,
the defendant claimed that the state’s failure to “make a prima facie showing of his
past convictions” constituted a due process violation because he “had no fair
opportunity . . . to review and rebut the evidence of those past convictions.” Id. ¶ 20.
This Court summarized the notice provided to the defendant as follows:
[The d]efendant was convicted on November 4, 2009. Eight days later,
the [s]tate filed supplemental information alleging that [the d]efendant
was a habitual offender subject to sentence enhancement. The document
alleged previous convictions in Florida, Texas, and New Mexico. Four
days later, the [s]tate served notice of its intent to seek an enhanced
sentence[.]
Id. ¶ 24. In light of the procedural steps taken by the state, we concluded that it
“provid[ed] adequate notice” to the defendant. Id. ¶ 25.
{56} 	In the present case, Defendant was convicted on January 10, 2014. Four days
later, the State filed a supplemental criminal information alleging that Defendant was
a habitual offender subject to sentence enhancement. The supplemental criminal
information alleged numerous previous felony convictions in the state of New
Mexico. On February 10, 2014, the State requested a special setting for the purpose

29
of conducting a habitual offender hearing. The State’s request certified service to
defense counsel on the same day.
{57} 	We have no doubt that these procedural steps constitute adequate notice under
Godoy and other relevant cases. Our inquiry does not, however, end here. At
Defendant’s initial sentencing hearing, the district court denied the state’s request for
sentencing enhancement. The State then orally moved for a subsequent sentencing
hearing but did not file a new supplemental criminal information. On December 16,
2014, Defendant filed a motion opposing retrial of his habitual offender status. In his
motion, Defendant specifically noted that the district court scheduled (1) a probation
violation hearing and (2) a sentencing hearing for January 20, 2015.
{58} 	Although the record proper does not clearly indicate the procedural steps taken
to schedule these hearings, based upon the content of his December 16, 2014 motion,
Defendant had actual notice that his probation violation and sentencing hearings were
originally scheduled for January 20, 2015. See Pollock v. Ramirez, 1994-NMCA-011,
¶ 24, 117 N.M. 187, 870 P.2d 149 (“ ‘Actual notice’ refers to information that was
communicated directly to or received by a party.”). Had Defendant properly preserved
this issue at trial, our analysis might differ. However, because Defendant had actual
notice 	that 	his 	probation 	violation 	and 	sentencing 	hearings 	were 	scheduled
concurrently, this scheduling did not deprive him of “an opportunity to be heard

30
before an increased penalty can be imposed.” Santillanes, 1981-NMSC-064, ¶ 5.
Additionally, Defendant does not direct this Court to any case law indicating that the
State must file a new supplemental criminal information following a denied request
in a habitual offender hearing. See Godoy, 2012-NMCA-084, ¶ 5 (“Where a party
cites no authority to support an argument, we may assume no such authority exists.”).
Under these circumstances, Defendant has not suffered “fundamental unfairness”
requiring reversal. Cunningham, 2000-NMSC-009, ¶ 21.
Ineffective Assistance of Counsel
{59} 	Defendant additionally argues that his trial counsel provided ineffective
assistance of counsel by failing to object to the district court’s concurrent scheduling
of his probation violation and sentencing hearings. We disagree.
{60} 	“To establish ineffective assistance of counsel, a defendant must show: (1)
counsel’s performance was deficient, and (2) the deficient performance prejudiced the
defense.” State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 101 P.3d 799
(internal quotation marks and citation omitted). The absence of prejudice is sufficient
to dispose of an ineffective assistance of counsel claim. See State v. Martinez, 2007-
NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, we need not
consider whether counsel’s performance was deficient.”).

31
{61} 	Defendant neither specifically argues, nor provides record support for the
proposition, that trial counsel’s failure to object to the concurrent scheduling of his
probation violation and sentencing hearings caused him prejudice. See Muse v. Muse,
2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record
for facts, arguments, and rulings in order to support generalized arguments.”).
Defendant, therefore, has not met his burden of proof to establish ineffective
assistance of counsel.
Sufficiency of the Evidence
{62} 	Finally, Defendant argues that the State’s evidence was not sufficient to prove
that Defendant was the person convicted of the prior felonies as alleged in the
supplemental criminal information. Again, we disagree.
{63} 	“We review the sufficiency of the evidence presented in habitual offender
proceedings under a substantial evidence standard of review.” State v. Bailey, 2008-
NMCA-084, ¶ 23, 144 N.M. 279, 186 P.3d 908. “Substantial evidence is that which
is acceptable to a reasonable mind as adequate support for a conclusion.” State v.
Sanchez, 2001-NMCA-109, ¶ 14, 131 N.M. 355, 36 P.3d 446. Appellate courts
“review the evidence in the light most favorable to the [s]tate, resolving all conflicts
and indulging all permissible inferences to uphold [the] verdict[.]” Id. (internal
quotation marks and citation omitted).

32
{64} 	The district court admitted certified copies of three fingerprint cards, which
corresponded to arrests in 2004, 2008, and 2011, and contained Defendant’s name,
birth date, and social security number. The State’s expert witness testified that the
fingerprints on each certified card came from the same person. The district court also
admitted certified copies of judgment and sentencing documents, which indicated that
Defendant had qualifying convictions, and took judicial notice of Defendant’s 2014
conviction. In light of the admitted evidence, the district court ruled that Defendant
had three qualifying convictions and was subject to sentencing as a habitual offender.
{65} 	Defendant introduced no evidence to contradict the State’s allegation that he
was the individual identified in the supplemental criminal information. Drawing all
inferences in favor of the ruling, the admitted evidence is sufficient to support a
finding that Defendant is a habitual offender under Section 31-18-17.
CONCLUSION
{66} 	Having concluded that Defendant’s arguments are without merit, we affirm.
{67} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

LINDA M. VANZI, Chief Judge

M. MONICA ZAMORA, Judge

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