May 22, 2019- State of New Mexico v. Steven Daniel Talamante, No. A-1-CA-37282

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-37282
5 STEVEN DANIEL TALAMANTE,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Brett Loveless, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	William A. O' Connell, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	ZAMORA, Chief Judge.
18 	{ t} 	Defendant Steven Talamante appeals from his convictions for second degree
19 	armed robbery and fourth degree conspiracy to commit robbery. This Court issued a
20 	calendar notice proposing to affirm Defendant' s convictions. Defendant has filed a
21 	memorandum 	in opposition with this Court, which we have duly considered.
22 	Unpersuaded, we affirm.
Court of Appeals of New Mexico
Filed 5/22/2019 8:39 AM

1 {2} 	On appeal, Defendant challenges the Victim's in-court identification, the
2 admission of pictures taken at a gas station ATM, and the sufficiency of the evidence
3 supporting his convictions. In this Court's calendar notice we proposed to affirm on
4 all three issues raised. In response, Defendant continues to assert that the district
5 court erred in allowing the in-court identification and contends our reliance on the
6 New Mexico Supreme Court's decision inStatev. Ramirez, 2018-NMSC-003, ,-rip3-
7 35, 409 P.3d 902, is misplaced because Ramirez was wrongly decided. This Court,
8 however, is bound by the decisions of our Supreme Court. See State ex rel. Martinez
9 v. City of Las Vegas, 2004-NMSC-009, i120, 135 N.M. 375, 89 P.3d 47 (stating that
10 the Court of Appeals is bound by Supreme Court precedent). To the extent Defendant
11 	asks this Court to reach a decision contrary to Ramirez, we are unable to do so.
12 	{3} 	Similarly, to the extent Defendant contends that there was insufficient evidence
13 	to support his convictions because the jury gave improper weight to testimony
14 	presented at trial, it is outside the purview of this Court's appellate review to assess
15 	credibility or reweigh evidence. See State v. Salas, 1999-NMCA-099, i-113, 12 7 N .M.
16 	686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any conflict in
17 	the testimony of the witnesses and to determine where the weight and credibility lie).
18 	{4} 	Finally, to the extent Defendant contends that the district court erred in
19 	admitting pictures of Defendant in "baggy gang attire, accentuated by [Defendant's]
2

1 gold 	chain 	and 	sideways 	cap" 	[MIO 	5] 	as 	more 	prejudicial 	than 	probative,
2 	Defendant's argument is unavailing. Defendant relies on State v. 	Torrez, 2009-
3 NMSC-029, 146 N.M. 331, 210 P.3d 228, to argue that evidence of gang affiliation
4 	may be unfairly prejudicial. We note, however, that in Torrez our Supreme Court
5 determined 	that 	extensive 	expert 	testimony 	regarding 	gang 	culture 	and 	the
6 	defendant's past gang affiliation was more prejudicial than probative. See generally
7 	id. Given that in the instant case the evidence of proving Defendant's gang affiliation
8 	was limited to a picture depicting Defendant in baggy attire, a gold chain, and a
9 	sideways cap that was offered to show Defendant was in the area and not for purpose
10 	of gang 	affilation, 	this 	Court 	concludes 	that 	Torrez 	does 	not 	necessitate 	a
11 	determination that the district court abused its discretion in balancing the probative
12 versus prejudicial value of the evidence under Rule 11-403 NMRA . See State v.
13 	Stanley, 2001-NMSC-037 , 15, 131 N.M. 368, 37 P.3d 85 (noting that Rule 11-403
14 gives the trial court a great deal of discretion in admitting or excluding evidence, and
15 	that a reviewing court will only disturb the trial court's decision when there is a clear
16 	abuse of discretion).
17 	{5} 	Accordingly, for the reasons stated above and in our notice of proposed
18 	disposition, we affirm Defendant's convictions.
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1 {6} 	IT IS SO ORDERED.
2
3
4 WE CONCUR:
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4