May 05, 2009 – State of New Mexico v. Jesse Clements, No. 26,953

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 5, 2009

NO. 26,953

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JESSE CLEMENTS,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Charles C. Currier, District J udge

Gary W. King, Attomey General
Margaret McLean, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Joseph P. Walsh, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
ROBLES, Judge.
{1} 	The Opinion filed in this case on April 24, 2009 is hereby withdrawn, and the
following Opinion is substituted therefor.
{2} 	Jesse Clements (Defendant) was arrested and charged with aggravated battery
on a household member (a misdemeanor) and intimidation of a witness (a third-
degree felony). 	He pled guilty to the misdemeanor and went to trial only on the
intimidation of a witness charge. 	He appeals his conviction of intimidation of a
witness, contrary to NMSA 1978, Section 30-24-3(A)(2) (1997), and his sentencing
under the sentence alteration and habitual offender statutes, NMSA 1978, Section 31-
18-15.1 (1993) and NMSA 1978, Section 31-18-17(D) (2003). On appeal, Defendant
raises three issues: 	(1) the evidence does not support a conviction under the
intimidation of a witness statute; (2) the district court’s alteration of Defendant’s
sentence was predicated on a statute that has been found unconstitutional by the New
Mexico Supreme Court, making the sentence invalid; and (3) the district court erred
in relying on a conviction from another jurisdiction during habitual offender
sentencing. We affirm Defendant’s conviction of intimidation of a witness and his
sentence under the sentence alteration statute, and we reverse and remand Defendant’s
sentence under the habitual offender statute.

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I. 	BACKGROUND
{3} 	The facts are not disputed. In the mid-morning of November 2, 2005, Defendant
was arrested following an altercation with his wife. During trial, his wife testified that
an argument had started over a car key and, as Defendant got angrier, she knew “by
the way he was acting, the tone of his voice, and from [her] past experience, [that she]
was going to get hit.” She attempted to make it to her car parked in front of the house,
but Defendant caught up with her and took the keys out of her hand. As the two stood
in the street, Defendant told her that he would kill her grandson if she left him.
{4} 	Upon re-entering the house, Defendant began a physical assault. He grabbed
her hair, threw her to the ground, and told her she was “no good” and that she had
“mental problems.” His wife testified that Defendant left the room for a moment, so
she “took off through [the] back door” and ran. Defendant caught up with her outside.
His wife testified: 	“[H]e just kept hitting me and hitting me.” 	It was then that
Defendant restrained his wife by the hair and bit her on the cheek, causing a
laceration. After seeing the laceration, Defendant began panicking, declaring “I better
not go to jail, I swear to God, oh God I’m going to jail. If I go to jail, Kathy, I swear
to God I will fuckin’ kill you, do you hear me?”
{5} 	A police officer was dispatched to the house in response to a call from a
neighbor. Defendant saw the police approach. Defendant then stated to his wife the

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following:
God dammit, if he comes over here[,] I swear to God, Kathy, if I go to
jail[,] I’ll kill you. When I get out of prison[,] I will kill you. And if you
say anything[,] I’ll kill your kids. . . . 	I swear to God if I go back to
prison, when I get out[,] I will fuckin’ kill you. I will kill your kids. . . .
You better say we were wrestling.
One of the responding police officers testified that, after her arrival and initial contact
with Defendant, she separated the two, and Defendant began yelling at his wife to not
say anything.
II. 	DISCUSSION
A. 	Intimidation
{6} 	Defendant appeals his conviction under Section 30-24-3(A)(2), arguing that the
evidence presented at trial was insufficient to support a conviction under the statute.
After the State rested its case, Defendant moved for a directed verdict, which was
denied. After the jury returned a guilty verdict, Defendant moved to dismiss, and the
district court held a hearing and considered supplemental briefing on the issue.
{7} 	Section 30-24-3 states, in pertinent part:
A. 	Bribery or intimidation of a witness consists of any person
knowingly:
(2) 	intimidating or threatening any witness or person
likely to become a witness in any judicial . . . proceeding for the purpose
of preventing such individual from testifying to any fact, to abstain from
testifying or to testify falsely; or

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(3) 	intimidating or threatening any person . . . with the
intent to keep the person from truthfully reporting to a law enforcement
officer or any agency of government that is responsible for enforcing
criminal laws information relating to the commission or possible
commission of a felony offense.
{8} 	Defendant argues that the evidence was insufficient to convict him under
subsection (A)(2) because, at the time he threatened his wife, no judicial proceeding
was instituted. 	Additionally, Defendant argues that ambiguity in Section 30-24-3
mandates reversal in light of the rule of lenity.
{9} 	We note that “[t]he main goal of statutory construction is to give effect to the
intent of the [L]egislature.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382
(1995). “The words of a statute . . . should be given their ordinary meaning, absent
clear and express legislative intention to the contrary.” 	Id. (alteration in original)
(internal quotation marks and citation omitted). But a statute’s “construction must not
render the statute’s application absurd, unreasonable, or unjust.” 	Id. (internal
quotation marks and citation omitted). “Interpretation of a statute is an issue of law,
not 	a 	question 	of 	fact,” 	which 	we 	review 	de 	novo. 	Id.; 	State 	v. 	Duhon,
2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50.
{10} 	Defendant contends that it was necessary to allege and prove that he engaged
in intimidation in connection with an already-instituted, judicial proceeding in order
for him to have been convicted under Section 30-24-3(A)(2). Defendant argued to the

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district court that, since the Legislature in 1987 deleted the words “pending or about
to be brought” after the word “proceeding” in Section 30-24-3(A)(2), the paragraph
was restricted to only judicial proceedings in existence. Defendant did not address
why the words “pending or about to be brought” would have been removed if the
Legislature had intended to so restrict the statute and, in fact, the district court noted
that such an action may have been an attempt to broaden the statute.
{11} 	Defendant relies on State v. Bell for the proposition that a formal proceeding
must be in existence at the time intimidation takes place. 78 N.M. 317, 431 P.2d 50
(1967). However, Bell was decided under a different version of the statute and does
not apply to this case. 	Following the Bell decision, Section 30-24-3(A)(2) of the
statute was amended and broadened to include victims who are “likely to become a
witness in any judicial . . . proceeding.” 	§ 30-24-3(A)(2). 	In State v. McGee,
interpreting the present version of the statute, this Court stated that “[i]ntimidation of
a witness . . . requires a finding that the defendant’s actions are committed for the
purpose of preventing the victim from testifying, convincing the victim to testify, or
convincing the victim to testify falsely, in the future.” 2002-NMCA-090, ¶ 12, 132
N.M. 537, 51 P.3d 1191.
{12} 	The statute in its ordinary meaning is a clear expression of the Legislature’s
intent. “When the language in a statute is clear and unambiguous, we give effect to

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that 	language 	and 	refrain 	from 	further 	statutory 	interpretation.” 	Duhon,
2005-NMCA-120, ¶ 10. The specific use of the phrase “likely to become a witness
in any judicial . . . proceeding” is clear and unambiguous on its face. § 30-24-3(A)(2)
(emphasis added). Consequently, we give effect to the present language.
{13} 	Defendant also asserts that allowing a conviction in the instant case would
circumvent the legislative intent in subsection (A)(3) (intimidation to prevent truthful
reporting to a law enforcement officer). In essence, Defendant argues that subsection
(A)(3) was a new addition to Section 30-24-3 in 1991, implying that subsection (A)(2)
did not and does not apply when a defendant intimidates a victim to prevent the
reporting of a crime to law enforcement. In response, the State argues that Defendant
may have been prosecuted under either subsection (A)(2) or (A)(3). The district court
agreed that prosecution under subsection (A)(2) was appropriate when it denied
Defendant’s motion for a directed verdict and, again, when it denied Defendant’s
motion to dismiss a month after trial. 	We agree with the district court. 	The
subsections are not entirely exclusive, but are fact-dependent. The facts may support
a charge under only one section or under both. In this case, Defendant’s wife testified
that Defendant was aware and afraid that he may go to jail because of the assault. She
also stated that Defendant told her that he would kill her if she testified. 	The
conviction under subsection (A)(2) was appropriate under the facts of this case. {14}

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Defendant also argues that the rule of lenity mandates reversal of his conviction
because Section 30-24-3 is ambiguous as applied, arguing that a statute is ambiguous
when it can be understood by reasonably, well-informed persons in two or more
different senses. State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct. App.
1992). Indeed, if a criminal statute is ambiguous, all “[d]oubts about the construction
of criminal statutes are resolved in favor of the rule of lenity.” 	State v. Keith, 102
N.M. 462, 465, 697 P.2d 145, 148 (Ct. App. 1985). However, in the immediate case,
the plain language of the statute does not rise to the level of a reasonable doubt about
the intentions of the Legislature, such that the doubt must be interpreted in favor of
lenity. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (“The rule of
lenity counsels that criminal statutes should be interpreted in the defendant’s favor
when insurmountable ambiguity persists regarding the intended scope of a criminal
statute.”) However, “[a] criminal statute is not ‘ambiguous’ for purposes of lenity
merely because it [is] possible to articulate a construction more narrow than that urged
by the Government.” Id. (second alteration in original) (internal quotation marks and
citation omitted). As stated above, Section 30-24-3(A)(2) is sufficiently clear, and we
decline the invitation of an ambiguous interpretation.
{15} 	Finally, Defendant claims that his conviction must be reversed because it is not
supported by sufficient evidence. 	Sufficient evidence is relevant evidence that a

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reasonable mind might accept as adequate to support a conclusion. 	State v. Baca,
1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776. “In reviewing the sufficiency
of the evidence, we must 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.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,
998 P.2d 176. When we review the evidence in this manner, we conclude that it is
sufficient to support Defendant’s conviction.
{16} 	Defendant’s wife testified that she was intimidated and threatened by Defendant
after he attacked her. She testified that he was attempting to prevent the possibility
of jail in the future. She also testified that she was told by Defendant that he would
kill her and her family if she testified; that she was hesitant to come to court for fear
of her children’s safety; and that the intimidation “worked” on her, even though she
ultimately chose to testify anyway because she was “tired of him telling me what to
do [and] tired of him threatening me.” The evidence presented at trial was sufficient
for a conviction.
B. 	Sentence Alteration
{17} 	At Defendant’s sentencing on July 17, 2006, the district court found that it was
appropriate to aggravate Defendant’s sentence by one-third, adding one year onto his
three-year sentence under Section 31-18-15.1. Defendant appealed his conviction and,

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on October 25, 2007, while his case was on appeal, the Supreme Court of New
Mexico decided State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
(overruling earlier cases that upheld enhanced sentences based on a finding of
aggravating circumstances by a trial judge). Defendant filed his brief-in-chief with
this Court on May 28, 2008 and, for the first time, argued that Frawley should apply
to him in this case.
{18} 	Defendant avers that he received an illegal sentence and, although he did not
preserve the issue below, he is entitled to raise the issue for the first time on appeal.
As an exception to the requirement of preservation, this Court has allowed challenges
to illegal sentences for the first time on appeal. State v Shay, 2004-NMCA-077, ¶ 6,
136 N.M. 8, 94 P.3d 8. This is based on the rationale that a district court does not
have the jurisdiction to impose an illegal sentence, which is an issue of subject matter
jurisdiction. State v. Perez, 2002-NMCA-040, ¶ 11, 132 N.M. 84, 44 P.3d 530; see
also Rule 12-216 NMRA. It is well settled that subject matter jurisdiction may be
raised for the first time on appeal. State v. Davis, 1998-NMCA-148, ¶ 9, 126 N.M.
297, 968 P.2d 808; see also N.M. Const. art. II, § 15. 	This exception to the
requirement of preservation does not apply to all sentencing issues, just those that are
purely legal in nature. State v. Tave, 2007- NMCA-059, ¶¶ 9, 10, 141 N.M. 571, 158
P.3d 1014. We hold, however, that this was not an illegal sentence.

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{19} 	Defendant was sentenced three months before our Supreme Court decided
Frawley. At the time that the sentence was passed, the district court was exercising
authority within what was set out by Section 31-118-15.1. In Frawley, our Supreme
Court stated that it was establishing a “new rule” that was prospective and that “[a]
court establishes a new rule when its decision is flatly inconsistent with the prior
governing precedent and is an explicit overruling of an earlier holding.” 	2007-
NMSC-057, ¶¶ 35, 38, 143 N.M. 7, 172 P.3d 144 (internal quotation marks and
citation omitted). Because our Supreme Court in Frawley held that it would apply to
cases that were prospective only, our review is limited to those cases.
{20} 	In Jackson v. State, our Supreme Court held that
where an appellate decision overrules prior law and announces a new
principle, unless the decision specifically declares the ruling to be
prospective only, the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at all stages of
adjudication up to and including any direct appeal.
1996-NMSC-054, ¶ 5, 122 N.M. 433, 925 P.2d 1195. In Frawley, our Supreme Court
did specify that its new rule was to apply prospectively and not retroactively. 2007-
NMSC-057, ¶ 38, 143 N.M. 7, 172 P.3d 144.
{21} 	In Santillanes v. State, our Supreme Court held that a prospective rule
concerning interpretation of a child abuse statute would apply to “all cases which are
now pending on direct review, provided the issue was raised and preserved below,

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and all cases presently pending but in which a verdict has not been reached.” 115
N.M. 215, 225, 849 P.2d 358, 368 (1993) (emphasis added). In State v. Gonzales, we
held that a proscription of a prosecutor’s systematic use of peremptory challenges to
eliminate persons from the jury on the basis of race applied to all cases then pending
on direct review “provided the issue was raised and preserved below.” 111 N.M. 590,
598, 808 P.2d 40, 48 (Ct. App. 1991) (emphasis added). In order to preserve an issue
for appeal, “it is essential that the ground or grounds of the objection or motion be
made with sufficient specificity to alert the mind of the trial court to the claimed error
or errors, and that a ruling thereon then be invoked.” 	State v. Lopez, 84 N.M. 805,
809, 508 P.2d 1292, 1296 (1973).
{22} 	The announcement of the new rule in Frawley came before Defendant made a
claim of error. Our Supreme Court specifically limited the rule to cases that were on
direct review provided that the issue was raised below. This prospective application
is controlling, and Defendant raised the issue for the first time on appeal.
C. 	Habitual Offender Sentencing
{23} 	Defendant appeals the use of one of two prior felonies used to enhance his
sentence under Section 31-18-17(D), arguing that there was insufficient evidence to
support a finding by the district court that Defendant was the same man named in one
of the prior convictions. 	In December 2005, defense counsel was provided with

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certified copies of the Judgment and Sentence Reports (J&S), including the one in
question, which was from a conviction in Wilbarger County, Texas in 1998. The J&S
had no birth date, no social security number, no identifying information about the
defendant, and stated only that the defendant’s name was “Jesse Charles Clements,”
as opposed to “Jesse Clements,” as Defendant is known in his other New Mexico
convictions. The prosecutor stated that, when he received the packet from Texas, the
J&S included a fingerprint card for Defendant. The fingerprint card was delivered to
the Roswell Police Department where a fingerprint expert compared the card to
Defendant’s fingerprints and concluded that they were the same. 	The prosecutor
further stated that the fingerprint expert was not in court to introduce the card or the
report because Defendant had not provided notice to the State as required by Rule 5-
509 NMRA (1989).
{24} 	Defendant objected to the findings of the fingerprint expert, who was not
present in court. 	The prosecutor responded that the fingerprint expert would have
testified that the fingerprint card matched Defendant’s fingerprints, and a subpoena
for the fingerprint expert would have been issued had Defendant followed Rule 5-
509(A), which provides:
If the defense in an habitual criminal sentencing proceeding intends to
attack the validity of any prior conviction, unless a shorter period of time
is ordered by the court, no later than ten (10) days before the habitual

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criminal sentencing proceeding, the defendant shall provide the state
with a written notice of such intention. The defendant’s notice of intent
to attack a prior conviction shall contain specific information as to each
conviction the defendant intends to attack as invalid and the names and
addresses of the witnesses by whom the defendant proposes to establish
such defense.
{25} 	Sentence enhancement under Section 31-18-17(D) requires three elements to
be shown: (1) the defendant is the same person, (2) the defendant has been convicted
of the prior felony, and (3) less than ten years has passed since the defendant
completed serving the sentence, probation, or parole. State v. Simmons, 2006-NMSC-
044, ¶ 8, 140 N.M. 311, 142 P.3d 899. The State has the burden of showing the three
elements to make a prima facie case. State v. Smith, 2000-NMSC-005, ¶ 10, 128 N.M.
588, 995 P.2d 1030. The burden of proof is by the preponderance of the evidence.
State v. Elliott, 2001-NMCA-108, ¶ 35, 131 N.M. 390, 37 P.3d 107. When and if this
burden has been met, it is then the defendant’s burden to produce evidence that
supports the assertion of invalidity. 	Smith, 2000-NMSC-005, ¶ 10. 	Once the
defendant has presented the evidence, the burden shifts yet again to the State to
demonstrate the validity of the prior convictions. Id. Apart from having copies of the
J&S since December 2005, Defendant received a supplemental criminal information
on May 15, 2006, alerting him of past felony convictions the State had identified. The
district court found that the matching name and the lack of objection by Defendant

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before the sentencing hearing was sufficient to find the prior conviction “tentatively”
useable under the statute, but allowed him ten days to object and raise “a problem with
the fingerprints,” which, in turn, would also allow the State to subpoena the
fingerprint expert. The district court stated that Defendant had a minimal burden “at
least to notify the State” of the intention to challenge a previous conviction.
Defendant never requested a second hearing and appealed his sentence twenty-two
days later.
{26} 	Defendant argues that the fingerprint card and the conclusions of the fingerprint
expert’s report, which were not in evidence, were improperly considered by the
district court in the admission of the J&S. Further, requiring Defendant to refute what
was not in evidence was an impermissible shifting of the burden. 	We agree. 	The
State has the initial burden to prove past convictions. 	See id. 	Rule 5-509(A) does
provide that the defendant has a duty to notify the State in the event the validity of a
prior conviction is to be contested. The State still has the initial burden of showing
that the defendant is, in fact, the same person as in the J&S.
{27} 	Rule 5-509(C) provides, in pertinent part:
If a defendant fails to serve a copy of such notice as herein required, the
court may exclude evidence offered by such defendant for the purpose of
proving a prior conviction was invalid, except the testimony of the
defendant himself. 	If such notice is given by a defendant, the district
court may exclude the testimony of any witness offered by the defendant

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for the purpose of proving the invalidity of a prior conviction if the name
and address of such witness was known to defendant or his attorney but
was not stated in such notice. If the district attorney fails to file a list of
witnesses and serve a copy thereof on the defendant as provided in this
rule, the court may exclude evidence offered by the [S]tate to contradict
the defendant’s evidence.
(Emphasis added.)
{28} 	To hold that Rule 5-509 applies to a defendant before the State has even met the
initial burden of showing a prima facie case, as the State argues here, would be to say
that failure by a defendant to give notice ten days before a sentencing hearing amounts
to a waiver of any challenges, and an admission that all felonies listed in a
supplemental criminal information have automatically met the prima facie showing.
That is simply not the case. 	“[T]he State must make its prima facie showing,
including all of the required elements for a prior felony conviction as defined by the
habitual offender statute, and then the burden of proof shifts to the defendant.”
Simmons, 2006-NMSC-044, ¶ 13.
{29} 	We now turn to the J&S and examine whether it was sufficient by a
preponderance of the evidence to establish that (1) Defendant was the same person as
the person named in the J&S; (2) Defendant was, in fact, convicted of that prior
felony; and (3) less than ten years had passed since Defendant completed serving his
sentence, probation, or parole. Id.

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{30} 	“In assessing a claim of evidentiary insufficiency, this Court asks whether
substantial evidence supports the [trial] court’s decision.” Elliott, 2001-NMCA-108,
¶ 36. 	Substantial evidence is evidence that a reasonable person would consider
adequate to support a defendant’s guilt. State v. Carrasco, 1997-NMSC-047, ¶ 11,
124 N.M. 64, 946 P.2d 1075. In determining whether the evidence supports a criminal
charge or an essential element thereof, the appellate court must view the evidence in
a light most favorable to the State, resolving all conflicts therein and indulging all
permissible inferences therefrom in favor of a verdict of conviction. 	See State v.
Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). “The reviewing court
does not weigh the evidence or substitute its judgment for that of the fact finder as
long as there is sufficient evidence to support the verdict.” Mora, 1997-NMSC-060,
¶ 27.
{31} 	In Simmons, the defendant challenged the sufficiency of the third element—
conviction within ten years—that the State was required to show for a prima facie case
under Section 31-18-17(D). Simmons, 2006-NMSC-044, ¶¶ 5, 8. Our Supreme Court
stated that review of the sufficiency of evidence is done with a substantial evidence
standard and that, on review for substantial evidence, deference should be given to the
findings of the district court. Id. ¶ 10. However, the district court may not use a prior
conviction for sentencing if the State has not met its burden. See id. ¶ 15.

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{32} 	We therefore conclude that the reliance on a three-page judgment that simply
stated a name similar to Defendant’s name and nothing else was unreasonable to
support the first element under Smith. 	2000-NMSC-005, ¶ 10. 	Without the
fingerprint card or the conclusions of the fingerprint expert in evidence, the district
court should have only considered whether the State had made a prima facie showing
of the Texas conviction. 	The State did not make a prima facie showing, and the
allowance by the district court of ten days for Defendant to object did not cure the
initial deficiency. Accordingly, we reverse on this issue only.
III. 	CONCLUSION
{33} 	We affirm Defendant’s conviction of intimidation of a witness and his sentence
under Section 31-18-15.1. We reverse and remand for entry of judgment and sentence
consistent with this Opinion on the habitual offender issue.
{34} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge
WE CONCUR:
________________________________
JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge
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