State v. Ortiz-Parra

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

No. S-1-SC-37109

Filing Date: May 28, 2020

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

EDER ORTIZ-PARRA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Judge

Jeffrey J. Buckles
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
Walter M. Hart, III, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} Defendant Eder Ortiz-Parra was charged with several crimes for his participation
in a shooting that left two men dead and another two men injured. He was tried jointly
with his brother Edwin Ortiz-Parra and his cousin Rafael Gonzalez-Parra. Defendant
was convicted of two counts of first-degree willful and deliberate murder, contrary to
NMSA 1978, Section 30-2-1(A)(1) (1994); one count of conspiracy to commit first-
degree murder, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 30-2-
1(A)(1); one count of kidnapping with a firearm enhancement, contrary to NMSA 1978,
Section 30-4-1 (2003) and NMSA 1978, Section 31-18-16 (1993); and two counts of
attempted first-degree willful and deliberate murder with firearm enhancements,
contrary to NMSA 1978, Section 30-28-1 (1963) and Section 30-2-1(A)(1). He received
two life sentences plus fifty-four years of additional incarceration. He appeals his
convictions directly to this Court pursuant to Rule 12-102(A)(1) NMRA.

{2} On appeal, Defendant seeks reversal of his convictions and a new and separate
trial, arguing that 1) the evidence was insufficient to support his convictions and 2) the
district court erred by denying the defendants’ requests for separate trials. Because the
record does not support Defendant’s factual assertions and because the case is
otherwise disposed of by established New Mexico law, we exercise our discretion under
Rule 12-405(B)(1), (2) NMRA and issue this nonprecedential decision affirming
Defendant’s convictions.

I. SUFFICIENCY OF THE EVIDENCE

{3} Defendant first argues that the evidence presented at trial was insufficient to
prove that he committed the crimes for which he was convicted. The test for sufficiency
of the evidence is well established.

We review 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. Evidence is viewed 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.
In particular, New Mexico appellate courts will not invade the jury’s
province as fact-finder by second guessing the jury’s decision concerning
the credibility of witnesses, reweighing the evidence, or substituting its
judgment for that of the jury. So long as a rational jury could have found
beyond a reasonable doubt the essential facts required for a conviction,
we will not upset a jury’s conclusions.

State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations,
internal quotation marks, and citations omitted).

{4} The evidence presented at trial tells the story of two men who were shot and
killed and two men who were wounded when Defendant and his brother Edwin entered
a house and opened fire. One of the survivors, Jorge Hernandez, provided the following
testimony. Jorge, Jose Hernandez, and Juan Carlos Saenz-Ponce were all together at a
house, drinking and using drugs. Sometime that evening, Juan Carlos’s friend, Daniel
Chumacero, arrived. Daniel stayed for seven or eight minutes, drank a beer, and left.
Two minutes later, Daniel came back into the house followed by two men Jorge did not
recognize. Jorge recalled that both men had handguns and that the first man had his
gun to Daniel’s back as if to make him walk back into the house. Almost as soon as they
entered, the first man shot Daniel in the back, and the second man began firing at
Jorge, Jose, and Juan Carlos.
{5} Jorge was shot five times before dragging himself to a closet and eventually
calling 911. Jose was shot twice and was taken to the hospital. Juan Carlos was shot
once in the head and once in the chest, and each shot was independently fatal. Daniel
was shot six times, including a fatal shot to his chest.

{6} Daniel’s girlfriend Mirna Rodriguez-Gutierrez also testified at trial and offered the
following account. Mirna accompanied Daniel to a house and remained in the car while
Daniel went inside. After about five minutes, Daniel came out of the house and got back
into the driver’s seat of the car. As Daniel was backing out of the driveway, two cars
pulled up and blocked Mirna and Daniel’s car. Mirna recognized the first car, which she
described as a dark Camaro with white stripes. She recalled that a man she knew as “El
Chapo” had come to her house earlier that day in that same car.

{7} Four men got out of the cars and yelled at Daniel to exit the car. Mirna did not
see the faces of the men who told Daniel to get out of the car, but she recognized one
of them as “El Chapo” by his voice. The men who told Daniel to get out of the car had
handguns. As Daniel got out of the car, a man Mirna knew as “El Guerro” opened her
door and took her cell phone. Daniel and all four men walked into the house, Mirna
heard several gunshots through the open door, and everyone other than Daniel ran out
of the house and back to their cars. Mirna later identified “El Chapo” as Defendant and
“El Guerro” as Carlos Almazan-Avila.

{8} Carlos testified at trial that he has known all of the codefendants, Defendant,
Edwin, and Rafael, since they were all young children. He explained that Defendant’s
nickname is “El Chapo,” Rafael’s nickname is “El Gordo,” and that his own nickname is
“El Guerro.” He testified that they have had these nicknames since childhood. Carlos
then testified to the same series of events that Mirna described.

{9} On the day of the shooting, Carlos was at home when Defendant and Edwin
asked him to come with them to “talk to some guys[.]” Rafael joined the three men, and
the four proceeded to the house in two separate cars, with Defendant and Edwin in one
and Carlos and Rafael in the other. Defendant and Edwin were in Edwin’s dark blue
Charger with white lines down the hood and the top of the car. When they arrived at the
house, Edwin pulled up behind the car in the driveway, blocking it from leaving.
Defendant and Edwin got out and either told Daniel to get out of the car or took him out
of the car using “a little bit” of force. It was at this point that Carlos realized that both
Defendant and Edwin were armed with handguns.

{10} Defendant, Edwin, and Daniel walked into the house while Carlos and Rafael
went to the passenger side of the car where Mirna was sitting. Carlos testified that he
had seen Mirna before. Because Carlos thought that she might call the police, Carlos
and Rafael took Mirna’s phone. As he turned to go into the house, Carlos heard
gunshots come from inside. Following the gunshots, Defendant and Edwin came
running out of the house with the guns in their hands. The four men got back into their
cars and left the scene.
{11} Defendant’s only assertion regarding this evidence is that it was insufficient to
prove his identity as one of the men who forced Daniel out of the car and shot Daniel,
Jose, Jorge, and Juan Carlos in the house. In support of this assertion, Defendant
argues that the witnesses who testified to his participation in the crimes, specifically
Mirna and Carlos, were “leaky vessels in which to pour the jury’s hopes of learning the
truth” and that they should not be believed. Defendant contends that Mirna’s testimony
that Defendant told Daniel to get out of the car is “dubious” because she identified him
by hearing him say one word through the closed doors and rolled-up windows of the
car. Regarding Carlos, Defendant claims that he was an “outrageously cynical and self-
dealing gamer” who was only testifying as part of a plea deal on other charges. Finally,
Defendant points to testimony from other witnesses which he argues is contrary to the
version of events given by Mirna and Carlos.

{12} Defendant forgets that in reviewing the sufficiency of the evidence, we do not
second guess the jury’s determinations of credibility or reweigh the evidence presented
at trial. Garcia, 2011-NMSC-003, ¶ 5. Despite Defendant’s representations to the
contrary, he is asking us to do just that. Both Mirna and Carlos testified at trial that
Defendant was one of the armed men who ordered Daniel out of the car, walked with
him into house, and ran out of the house after the gunshots. “[I]ndulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict,” we reject
Defendant’s argument that the evidence was insufficient to prove his identity as one of
shooters. See id. (internal quotation marks and citation omitted). Furthermore, because
Defendant’s assertion that only Carlos identified Defendant is incorrect, it is
unnecessary to address his argument that we should reconsider our holding in State v.
Hunter, 1933-NMSC-069, ¶ 6, 37 N.M. 382, 24 P.2d 251, that “the testimony of a single
witness may legally suffice as evidence upon which the jury may found a verdict of
guilt.”

{13} For the foregoing reasons, we conclude that the evidence was sufficient to
support Defendant’s convictions.

II. SEVERANCE OF RAFAEL GONZALEZ-PARRA

{14} Defendant next argues that the district court erred in denying the motions to
sever Defendant’s trial from the trial of his codefendant Rafael, pursuant to Rule 5-
203(C) NMRA. Before trial, Rafael moved to sever his trial from that of Defendant and
Edwin on the grounds of conflicting defenses, arguing that he would be defending the
credibility of certain witnesses that Defendant and Edwin would be attacking. Defendant
joined in Rafael’s motion, and later filed his own motion to sever Rafael on the same
grounds. The district court denied both Rafael’s and Defendant’s motions, concluding
that neither had established that the codefendants would present irreconcilable
defenses.

{15} Under Rule 5-203(C), “[i]f it appears that a defendant or the state is prejudiced by
a joinder of . . . defendants by the filing of a statement of joinder for trial, the court may
. . . grant a severance of defendants, or provide whatever other relief justice requires.”
We review a district court’s denial of a motion to sever defendants for an abuse of
discretion. Garcia, 2011-NMSC-003, ¶ 16; State v. Gallegos, 2007-NMSC-007, ¶ 18,
141 N.M. 185, 152 P.3d 828. Even if we conclude that the trial court abused its
discretion, we “will not reverse unless the error actually prejudiced the defendant.”
Gallegos, 2007-NMSC-007, ¶ 18. A district court abuses its discretion when its ruling is
“clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126
N.M. 438, 971 P.2d 829.

{16} On appeal, Defendant repeats his argument that Carlos’s testimony forced the
codefendants to present conflicting and irreconcilable defenses. In support of this
argument, Defendant relies on State v. Segotta, in which the Court of Appeals held that
severance is required when codefendants present defenses “so antagonistic that a fair
trial can be assured only by a severance.” 1983-NMCA-054, ¶ 32, 100 N.M. 18, 665
P.2d 280 (“Separate trials are required only when . . . defendants are deprived of the
opportunity to present effective defenses.”), rev’d on other grounds State v. Segotta,
1983-NMSC-092, ¶¶ 1, 10, 100 N.M. 498, 672 P.2d 1129. “[I]nconsistent defenses may
support a motion for severance” when the accounts of the defendants are on a “collision
course” and “are so contradictory as to raise an appreciable danger that the jury would
convict solely on the basis of the inconsistency.” Id. ¶ 30 (internal quotation marks and
citation omitted).

{17} In this case, Defendant’s argument focuses on Carlos’s testimony that Defendant
and Edwin were inside the house and Rafael was outside of the house when the
shooting occurred. He contends on appeal, as he did before the district court, that this
testimony gave Rafael no choice but to defend Carlos’s credibility and gave Defendant
no choice but to attack it. The record does not support this assertion.

{18} In both his opening and closing arguments, Rafael’s counsel questioned the
credibility of Carlos as a witness. At most, Rafael’s counsel argued that even if the jury
believed Carlos’s testimony, that testimony did not support the charges against Rafael.
Defendant did not disagree on the issue of Carlos’s credibility. In fact, Defendant’s
counsel began his closing argument by explicitly agreeing with Rafael’s counsel on
Carlos’s lack of credibility.

{19} Contrary to Defendant’s assertion, the jury was not presented with the
“spectacle” of Defendant attacking Carlos’s credibility while Rafael defended it. As such,
we need not determine whether such a circumstance would support severance under
the standard articulated by the Court of Appeals in Segotta. On this record, we cannot
conclude that the district court’s denials of the motions to sever Rafael were “clearly
untenable and not justified by reason” and we therefore reject Defendant’s request for a
new trial. See Rojo, 1999-NMSC-001, ¶ 41.

III. CONCLUSION

{20} For the foregoing reasons we reject Defendant’s arguments that the evidence
was insufficient to prove his identity as one of the shooters and that the district court
erred by declining to sever the codefendants. Accordingly, we affirm Defendant’s
convictions.

{21} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice