May 23, 2019- State of New Mexico v. Domingo Bolanos, No. A-1-CA-37799

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-37799
5 	DOMINGO BOLANOS,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Fred T. Van Soelen, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	HANISEE, Judge.
18 	{t} 	Defendant appeals his conviction, following a jury trial, of criminal sexual
19 	contact of a minor. [MIO 1] On appeal, Defendant challenges the sufficiency of the
20 evidence and asserts unpreserved prosecutorial misconduct on the basis of a statement
21 	made during closing argument. [MIO 4, 6] This Court issued a notice of proposed
Court of Appeals of New Mexico
Filed 5/23/2019 8:49 AM

1 summary disposition, proposing to affirm. [CN 6] Defendant has filed a memorandum
2 in opposition to that proposed disposition. Having duly considered that memorandum,
3 we remain unpersuaded.
4 	{2} 	In his memorandum in opposition to summary affirmance, Defendant continues
5 to assert that "[t]he weight of the evidence supports [his] version of events and the
6 jury should have returned a verdict of not guilty." [MIO 5] As we pointed out in our
7 notice of proposed summary disposition, however, it is not the role of this Court to
8 reweigh the evidence received below. SeeStatev. Salas, 1999-NMCA-099, ~ 13,127
9 N.M. 686, 986 P.2d 482 (explaining that this Court defers "to the district court when
10 	it weighs the credibility of witnesses"); Las Cruces Prof'! Fire Fighters v. City ofLas
11 	Cruces, 1997-NMCA-044, ~ 12, 123 N.M. 329, 940 P.2d 177 (explaining that this
12 	Court does not reweigh the evidence on appeal); see also State v. Griffin, 1993-
13 	NMSC-071, ~ 17 , 116 N.M. 689,866 P.2d 1156 (same). As a result, the sole question
14 	before this Court is whether the State offered evidence to support the requisite
15 	elements of the crime charged. See State v. Sanders, 1994-NMSC-043, ~ 11, 117
16 N.M. 452,872 P.2d 870; see also State v. Soliz, 1969-NMCA-043, ~ 8, 80 N.M. 297,
17 	454 P.2d 779 (the testimony of a single witness can be sufficient to support a
18 	conviction). As set forth more fully in our notice of proposed summary disposition,
19 	in this regard, the testimony of the victim sufficed.
2

1 {3} 	Defendant's 	memorandum 	in 	opposition 	also 	continues 	to 	assert 	that
2 prosecutorial misconduct may have occurred during closing argument in which the
3 State made an isolated reference to what a not guilty verdict would say "to every child
4 that has been molested." [MIO 6] Our notice of proposed disposition suggested that
5 the State's comment should be assessed based upon "(1) whether the statement
6 invades some distinct constitutional protection; (2) whether the statement is isolated
7 and brief, or repeated and pervasive; and (3) whether the statement is invited by the
8 defense." State v. Sosa, 2009-NMSC-056, ~ 26, 147 N.M. 351, 223 P.3d 348. In
9 doing so, we suggested that the first two factors weigh in favor of the State and that
10 Defendant's docketing statement did not "recount any of his own closing argument
11 	or otherwise provide context from which we could assess the third factor." [CN 5]
12 	{4} 	In his memorandum, Defendant now asserts that the first factor weighs in his
13 	favor because the comment at issue invaded his "right to a fair trial and due process."
14 	[MIO 7-8] 	Of course, that is the ultimate question to be answered whenever
15 	prosecutorial misconduct is alleged. See State v. Landers, 1992-NMCA-13 l, ~9, 115
16 N.M. 514, 853 P.2d 1270 ("The question presented on appeal when a defendant
17 alleges that the prosecutor in closing arguments made improper comments is whether
18 	the comments deprived the defendant of a fair trial."), overruled on other grounds by
19 State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740. As such, we do not
3

1 believe the general right to a fair trial is the type of"distinct" constitutional protection
2 discussed in Sosa. Rather than just address the overall concern for fairness that is at
3 the heart of all claims of prosecutorial misconduct, Sosa discussed prosecutorial
4 	comment on specific rights like the Fifth Amendment right against self-incrimination
5 or the Fourth Amendment right to refuse entry to a police officer. Sosa, 2009-NMSC-
6 	056, ,r,r 27-28. More importantly, the isolated comment at issue in this case was not
7 what Sosa termed "a return to an impermissible theme from before." Id. ,r 38. Instead,
8 while the prosecutor's statement did amount to "an impermissible appeal to fight
9 crime," we 	are 	not persuaded that the isolated reference rose to the 	level 	of
10 fundamental error in this case. See id. ,r 31.
11 	{5} 	Accordingly, for the reasons stated here and in our notice of proposed summary
12 disposition, we affirm the judgment of the district court.
13 	{6}
14
15
IT IS SO ORDERED.
16 WE CONCUR:
J. MILES HANISEE, Judge
4