January 15, 2019- State of New Mexico v. Ronald Johnson, No. A-1-CA-37430

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed Y 5/2019 8:26 AM
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Plaintiff-Appellee, Neank baal
v. No. A-1-CA-37430
RONALD JOHNSON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
Mercedes C. Murphy, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Assistant Appellate Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Chief Judge.
43}. Defendant appeals from his conviction for voluntary manslaughter. This
Court’s calendar notice proposed to summarily affirm. Defendant filed a

memorandum in opposition to this Court’s proposed disposition. Not persuaded by

Defendant’s arguments, we affirm.

1 {2} 	Defendant continues to argue that there was insufficient evidence to support
2 his conviction for voluntary manslaughter in the face ofhis claims of self-defense and
3 defense of a dwelling. [DS 12; MIO 6-8] Defendant does not dispute the facts relied
4 upon in the proposed disposition. See State v: Mondragon, 1988-NMCA-027, 110,
5 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar
6 notice must come forward and specifically point out errors of law and fact and the
7 repetition of earlier arguments does not fulfill this requirement), superseded by
8 statute on other grounds as stated in State v. Harris, 2013-NMCA-031, 13,297 P.3d
9 374. Rather, Defendant argues that the evidence presented cannot exclude the
10 hypothesis that he acted in self-defense or in defense of his dwelling. [MIO 8]
11 	However, it was for the jury to determine whether the hypothesis of guilt was more
12 reasonable than the defense hypotheses. Cf State v. Montoya, 2005-NMCA-078, 13,
13 	137 N.M. 713, 114 P.3d 393 ("When a defendant argues that the evidence and
14 inferences present two equally reasonable hypotheses, one consistent with guilt and
15 	another consistent with innocence, our answer is that by its verdict, the jury has
16 necessarily found the hypothesis of guilt more reasonable than the hypothesis of
17 innocence."). It was for the jury to weigh the evidence and make that determination.
18 See Statev. Salas, 1999-NMCA-099, 113, 127N.M. 686,986 P.2d482 (recognizing
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1 that it is for the fact-finder to resolve any conflict in the testimony of the witnesses
2 and to determine where the weight and credibility lie).
3 	{3} 	Defendant also continues to argue that trial counsel was ineffective for failing
4 to file a motion to recuse the district court judge from hearing the case or a motion for
5 a change o~venue. [DS 12-13; MIO 8-10] The calendar notice indicated that absent
6 evi~ence.on the record suggesting that the district court judge held some bias in this
7 regard, we proposed to conclude that trial counsel was not ineffective for failure to .
8 make a motion not supported by the record. See State v. Stenz, 1990-NMCA-005, ,-r 7,
9 	109 N.M. 536, 787 P.2d455 (stating that trial counsel is not i.Q.effective for the failure
10 to make a motion that is not supported by the record). Defendant does not point to any
11 	error in the law relied upon in the proposed disposition, but asserts that trial counsel
12 should have at least tried to remove the judge from the case, despite her stated lack
13 	of recollection concerning the 2010 incident. [MIO 10] See Mondragon, 	1988-
14 NMCA-027, ,-r 10.
15 	{4} 	For these reasons, and those stated in the notice of proposed disposition, we
16 affirm.
17 	{5}
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IT IS SO ORDERED.
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WE CONCUR:

MAN <a

M. MONICA ZAMORA, Judge

2. Wa

J. MILES HANISEE, Judge