April 15, 2020- State of New Mexico v. Korey Canuto, No. A-1-CA-37767

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Appellee-Appellee
v. 	No. A-1-CA-37767
KOREY CANUTO
Appellant-Appellant
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	1
Christina P. Argyres, District Judge	2
Hector H. Balderas, Attorney General	3
Santa Fe, NM	4
for Appellee	5
Bennett J. Baur, Chief Public Defender	6
Santa Fe, NM	7
Steven J. Forsberg, Assistant Public Defender	8
Albuquerque, NM	9
for Appellant	10
MEMORANDUM OPINION	11
VARGAS, Judge.	12
{1} 	Defendant appeals from the district court’s on-record review and affirmance	13
of her conviction pursuant to a conditional plea for driving while under the influence	14
of intoxicating liquor or drugs (DWI) and expired registration, following a hearing	15
on Defendant’s motion to suppress. [DS 1; RP 48, 50-51] In our notice of proposed	16
disposition, we proposed to agree with the district court in its factual presentation,	17
Court of Appeals of New Mexico
Filed 4/15/2020 10:41 AM

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analysis, and conclusion, and proposed to adopt the district court’s memorandum	1
opinion for purposes of this appeal. [CN 2-3] Defendant filed a memorandum in	2
opposition (MIO) to this Court’s notice of proposed disposition. We have given due	3
consideration to the memorandum in opposition, and remaining unpersuaded, we	4
affirm Defendant’s conviction.	5
{2} 	In her memorandum in opposition, Defendant continues to argue the general	6
proposition that the police officer lacked reasonable suspicion to stop Defendant.	7
[MIO 1] The district court considered this argument in depth, and we proposed to	8
adopt all of the district court’s factual recitations and legal analysis in our calendar	9
notice. [CN 2-3] As we noted in our calendar notice, the district court’s examination	10
was “thorough and well-reasoned.” [CN 3] The district court concluded that the State	11
showed that there were specific, articulable facts showing that the police officer had	12
reasonable suspicion to stop Defendant’s car because he believed Defendant was	13
fleeing a scene of domestic violence or disturbance. [CN 2]	14
{3} 	While Defendant heretofore has focused on an argument that reasonable	15
suspicion was lacking because the stop was allegedly pretextual, now, in her	16
memorandum in opposition, Defendant frames the reasonable suspicion argument	17
slightly differently. With respect to the specific pretext argument, we now deem it	18
waived as Defendant no longer maintains it. See State v. Johnson, 1988-NMCA-029,	19
¶ 8, 107 N.M. 356, 758 P.2d 306 (explaining that when a case is decided on the	20

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summary calendar, an issue is deemed abandoned when a party fails to respond to	1
the proposed disposition of that issue). Defendant now claims that investigatory	2
stops for completed misdemeanors may not be permissible, citing U.S. v. Hensley,	3
469 U.S. 221, 229 (1985). [MIO 1-2] Defendant’s argument cites no facts that	4
suggest 	that 	the 	officer’s 	specific, 	articulable 	facts 	in 	this 	case 	arose 	from	5
misdemeanor domestic violence allegations rather than felony domestic violence	6
allegations. See State v. Hanson, 2015-NMCA-057, ¶ 15, 348 P.3d 1070 (“[T]he	7
mere assertions and arguments of counsel are not evidence[.]” (internal quotation	8
marks and citation omitted)). Nor does Defendant elaborate on how federal law	9
might demonstrate error in this case. See Corona v. Corona, 2014-NMCA-071, ¶ 28,	10
329 P.3d 701 (“This Court has no duty to review an argument that is not adequately	11
developed.”). Defendant makes an unsupported suggestion that perhaps the domestic	12
violence call may have been about mere bickering, calling domestic violence a “hot	13
political issue[.]” [MIO 3] See Hanson, 2015-NMCA-057, ¶ 15. Defendant does not	14
contend that any argument on these grounds was preserved in the metropolitan court	15
or raised in the district court. [MIO 1] See State v. Montoya, 2015-NMSC-010, ¶ 45,	16
345 P.3d 1056 (“In order to preserve an issue for appeal, a defendant must make a	17
timely objection that specifically apprises the trial court of the nature of the claimed	18
error and invokes an intelligent ruling thereon.” (internal quotation marks and	19
citation omitted)).	20

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{4} 	Based on the foregoing, we hold that Defendant’s assertion—that a domestic	1
violence investigation cannot support reasonable suspicion—does not demonstrate	2
error in the district court’s analysis affirming the decision of the metropolitan court.	3
See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating	4
that we presume correctness in the trial court’s rulings and the burden is on the	5
appellant to demonstrate trial court error). Furthermore, our notice proposed to adopt	6
the entire analysis of the district court, including all the grounds set forth therein for	7
affirmance. [CN 2-3] Defendant has not asserted any fact, law, or argument that	8
persuades us the district court’s analysis and our adoption thereof was erroneous.	9
[See id.] See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d	10
683 (“Our courts have repeatedly held that, in summary calendar cases, the burden	11
is on the party opposing the proposed disposition to clearly point out errors in fact	12
or law.”); see also State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759	13
P.2d 1003 (stating that a party responding to a summary calendar notice must come	14
forward and specifically point out errors of law and fact, and the repetition of earlier	15
arguments does not fulfill this requirement), superseded by statute on other grounds	16
as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.	17
{5} 	Accordingly, for the reasons stated in our notice of proposed disposition and	18
herein, we adopt the district court’s memorandum opinion and affirm Defendant’s	19
conviction.	20

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{6} 	IT IS SO ORDERED.	1
_________________________________	2
JULIE J. VARGAS, Judge	3
WE CONCUR:	4
_________________________________	5
J. MILES HANISEE, Chief Judge	6
_________________________________	7
LINDA M. VANZI, Judge	8