July 18, 2019- State of New Mexico v. Armando Pena, No. A-1-CA-37945

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-37945
5 ARMANDO PENA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
8 Donna J. Mowrer, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	Aja Oishi, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	M. ZAMORA, Chief Judge.
18 	{t} 	Defendant appeals from his 	convictions for two 	counts 	of trafficking a
19 controlled 	substance 	(methamphetamine). 	Our 	notice 	of proposed 	disposition
20 proposed summary affirmance. Defendant filed a memorandum in opposition to the
21 	proposed disposition. Not persuaded by Defendant's arguments, we affirm.
Court of Appeals of New Mexico
Filed 7/18/2019 9:03 AM

1 {2} 	Defendant continues to argue that the district court judge erred in denying his
2 motion to dismiss because it deprived him of his due process right not to be indicted
3 based on false evidence. [MIO 1O] Defendant argues that the district court should
4 	have dismissed the indictment on three grounds: (1) "the grand jury has a duty to
5 protect a citizen against unfounded accusation[s]," Statev. McGill, 1976-NMCA-100,
6 ,r 13, 89 N.M. 631,556 P.2d 39 [MIO 11]; (2) a law enforcement officer should not
7 be permitted to obtain indictments by making false statements under oath [MIO 12];
8 and (3) at the time the officer made the false statements, the prosecutor took no steps
9 to correct them [Id.]. See State v. Reese, 1977-NMCA-l 12, ,r 6, 91 N.M. 76,570 P.2d
10 	614 	("There 	is 	nothing 	showing 	any effort by the 	prosecutor to 	correct this
11 	testimony."). Defendant asserts that law enforcement officers are members of the
12 prosecution team. [MIO 12] Thus, Defendant argues that the fact that a member of the
13 	prosecution team made false statements under oath is sufficient to impute bad faith
14 to all members of the prosecution team. [DS 12-13] See NMSA 1978, § 31-6-1 l(A)
15 	(2003) ("The sufficiency of the evidence upon which an indictment is returned shall
16 not be subject to review absent a showing of bad faith on the part of the prosecuting
17 attorney assisting the grand jury.").
18 	{3} 	However, Defendant does not dispute the evidence to the contrary relied upon
19 	in our calendar notice. See State v. Mondragon , 1988-NMCA-027, ,r 10 , 107 N.M.
2

1 421 , 759 P.2d 1003 (stating that a party responding to a summary calendar notice
2 must come forward and specifically point out errors oflaw and fact, and the repetition
3 of earlier arguments does not fulfill this requirement). In particular, the officer
4 testified that he thought the arrests had been made and it was not until some time after
5 Defendant's arrest and his grand jury testimony that he learned the felony arrests had
6 not occurred and the inaccuracy of his statement. [CN 2] Because there was evidence
7 the officer was not aware of the inaccuracy of his statement when it was made, and
8 there was no evidence to indicate that the prosecutor was aware of the inaccuracy of
9 the information, we hold that there was no due process violation. [CN 4; 1 RP 242-
10 45]
11 	{4} 	Defendant also continues to argue that the district court judge erred in denying
12 his motion to dismiss on the basis of entrapment. [MIO 13-14] Defendant points to
13 	additional evidence indicating that the officer exceeded the bounds of permissible
14 conduct by playing on Defendant's addiction- 	as he was a long-time addict, a fact
15 	well known to the informant-to persuade him to purchase methamphetamine and
16 	sell it to an undercover officer. [MIO 13] As Defendant acknowledges, however, the
17 evidence presented to support his entrapment defense were based on facts established
18 	through his own testimony. 	[MIO 	14] "[B]ecause the jury is free to reject [a
19 d]efendant's version of the facts[,]" we cannot weigh the evidence to reach a different
3

1 conclusion. State v. Rojo, 1999-NMSC-001 , ,i 19, 126 N.M. 438, 971 P.2d 829; see
2 State v. Salas, 1999-NMCA-099, ,i 13, 127 N.M. 686, 986 P.2d 482 (recognizing that
3 it is for the fact-finder to resolve any conflict in the testimony of the witnesses and
4 to determine where the weight and credibility lie).
5 	{5} 	For these reasons, and those stated in the calendar notice, we affirm.
6 	{6} 	IT IS SO ORDERED.
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8
9 WE CONCUR:
ELINE R. MEDINA, Judge
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