August 6, 2020- State of New Mexico v. Michael G. Johnson, No. A-1-CA-37850

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37850	4
MICHAEL G. JOHNSON,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY	7
Lisa B. Riley, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
Caitlin C.M. Smith, Assistance Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant appeals from his convictions for possession of a firearm by a felon,	18
failure to register a vehicle, improper display of a registration plate, and no proof of	19
insurance, following a jury trial. [2 RP 256-58] In our notice of proposed disposition,	20
we proposed to summarily affirm. [CN 9] Defendant filed a memorandum in	21
opposition to this Court’s notice of proposed disposition. We have given due	22
Court of Appeals of New Mexico
Filed 8/6/2020 8:31 AM

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consideration to the memorandum in opposition, and remaining unpersuaded, we	1
affirm Defendant’s convictions.	2
{2} 	In his memorandum in opposition, Defendant continues to argue the same	3
claims of error that he raised in his docketing statement. First, Defendant asserts that	4
the district court abused its discretion by granting Defendant an adverse inference	5
jury instruction, rather than Defendant’s requested remedies of suppression or	6
dismissal, where the lapel and dash camera videos of the investigating officers were	7
lost and not provided to Defendant. [MIO 1, 6-10]	8
{3} 	In our calendar notice, we proposed that the district court did not err in	9
granting Defendant the remedy of an adverse inference jury instruction. We noted	10
that by granting Defendant’s request for an adverse jury instruction, the district court	11
must have concluded that the lost evidence was material—in other words, in some	12
way “determinative of guilt[,]” Scoggins v. State, 1990-NMSC-103, ¶ 9, 111 N.M.	13
122, 802 P.2d 631 (internal quotation marks and citation omitted)—and further that	14
Defendant was prejudiced by the loss of the material evidence. See also State v.	15
Chouinard, 1981-NMSC-096, ¶ 16, 96 N.M. 658, 634 P.2d 680 (discussing New	16
Mexico’s “three-part test to determine whether deprivation of evidence is reversible	17
error”). [CN 4-5] Thus, we concluded that Defendant’s argument was that the district	18
court abused its discretion by not ordering the remedy that Defendant thought most	19
appropriate. [CN 4] We suggested that Defendant had not demonstrated that the	20

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district court erred in assessing the Chouinard factors in determining the remedy	1
most appropriate in Defendant’s case. [CN 5]	2
{4} 	Now, Defendant argues that the district court erred because the district court	3
did not require the State to present testimony explaining how the videos had been	4
lost or what steps it had taken to try to recover the videos. [MIO 4] Defendant notes	5
that the district court made no “formal factual findings.” [MIO 4, 1 RP 125-26]	6
Defendant argues that the district court “did not develop the factual record	7
sufficiently to determine the full extent of the State’s negligence or bad faith[,]”	8
[MIO 7] and that because it did not require evidence from the State, it did not have	9
an opportunity to learn whether the loss of evidence “might have resulted from gross	10
negligence or bad faith.” [MIO 8]	11
{5} 	Nonetheless, while the district court may not have heard testimony on the loss	12
of the evidence in Defendant’s case, we do not conclude that resulted in an abuse of	13
discretion by the district court. “We review a district court’s remedy for lost or	14
destroyed evidence for an abuse of discretion.” State v. Reddz, 2013-NMCA-089,	15
¶ 18, 308 P.3d 1000. “An abuse of discretion occurs when the ruling is clearly	16
against the logic and effect of the facts and circumstances of the case. We cannot	17
say the trial court abused its discretion by its ruling unless we can characterize [the	18
ruling] as clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-	19
001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation	20

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omitted). In Defendant’s case, we cannot conclude that the choice of remedy	1
provided to Defendant, an adverse inference jury instruction, was clearly untenable	2
or not justified by reason. It appears that the district court ruled in favor of Defendant	3
on the Chouinard factors, finding a breached duty by the State, the materiality of the	4
missing evidence, and prejudice to Defendant. The district court then imposed a	5
remedy less extreme than suppression or dismissal. Defendant has not shown that	6
this was an abuse of discretion of the district court, and thus, we decline to so	7
conclude.	8
{6} 	As he did in his docketing statement, Defendant additionally argues in his	9
memorandum in opposition, that a given jury instruction deviated from the uniform	10
jury instruction because his instruction read that he “transported and/or possessed a	11
firearm,” and Defendant objected to the “and/or.” [MIO 11] We addressed this claim	12
in our calendar notice, and concluded that the argument was without merit. [CN 6-	13
8] Defendant has not asserted any fact, law, or argument that persuades us that our	14
analysis of Defendant’s jury instruction argument was erroneous. See Hennessy v.	15
Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have	16
repeatedly held that, in summary calendar cases, the burden is on the party opposing	17
the proposed disposition to clearly point out errors in fact or law.”); State v.	18
Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a	19
party responding to a summary calendar notice must come forward and specifically	20

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point out errors of law and fact, and the repetition of earlier arguments does not	1
fulfill this requirement), superseded by statute on other grounds as stated in State v.	2
Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.	3
{7} 	Accordingly, for the reasons stated in our notice of proposed disposition and	4
herein, we affirm Defendant’s convictions.	5
{8} 	IT IS SO ORDERED.	6
______________________________	7
JULIE J. VARGAS, Judge	8
WE CONCUR:	9
___________________________	10
BRIANA H. ZAMORA, Judge	11
___________________________	12
ZACHARY A. IVES, Judge	13