February 10, 2020- State of New Mexico v. Glenn T. Gumbrecht, No. A-1-CA-37942

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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-37942	4
GLENN T. GUMBRECHT,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Matthew E. Chandler, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
B. Douglas Wood, III, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VANZI, Judge.	17
{1} 	Defendant appeals from the district court’s judgment and sentence, convicting	18
him for criminal sexual penetration (CSP) in the third degree and sentencing him to	19
three years imprisonment. Unpersuaded that Defendant established error, we issued	20
a notice of proposed summary disposition, proposing to affirm. Defendant has	21
responded to our notice with a memorandum in opposition and a motion to amend the	22
Court of Appeals of New Mexico
Filed 2/10/2020 8:39 AM

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docketing statement. We deny the motion to amend because Defendant does not	1
demonstrate the viability of the issues, and we remain unpersuaded by Defendant’s	2
other arguments. Accordingly, we affirm.	3
{2} 	On appeal, Defendant challenges the sufficiency of the evidence to support his	4
conviction for CSP. [DS 10; MIO 8-11] Defendant’s arguments challenging the	5
evidence 	on 	appeal 	have 	consistently 	relied 	on 	evidence 	that 	contradicts 	or	6
undermines the evidence presented by the State and attacks to the credibility of	7
Defendant’s ex-wife (Victim) and Defendant’s daughter-in-law. [DS 1-10; MIO 4-11]	8
{3} 	As we stated in our notice, “[c]ontrary evidence supporting acquittal does not	9
provide a basis for reversal because the jury is free to reject [the d]efendant’s version	10
of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. It	11
is for the fact-finder to resolve any conflict in the testimony of the witnesses and to	12
determine where the weight and credibility lie. See State v. Salas, 1999-NMCA-099,	13
¶ 13, 127 N.M. 686, 986 P.2d 482. Nevertheless, the fact that the jury did not believe	14
Defendant does not establish that the opposite of Defendant’s testimony is true. See	15
State v. Wynn, 2001-NMCA-020, ¶ 6, 130 N.M. 381, 24 P.3d 816. When assessing	16
the sufficiency of the evidence, “we view the evidence in the light most favorable to	17
the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the	18
evidence in favor of the verdict.” State v. Samora, 2016-NMSC-031, ¶ 34, 387 P.3d	19

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230 (internal quotation marks and citation omitted). We disregard all evidence and	1
inferences that support a different result. See Rojo, 1999-NMSC-001, ¶ 19. “We then	2
determine whether substantial evidence of either a direct or circumstantial nature	3
exists to support a verdict of guilt beyond a reasonable doubt with respect to every	4
element essential to a conviction.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d	5
1076 (internal quotation marks and citation omitted).	6
{4} 	In the district court, the State was required to establish that Defendant	7
unlawfully and without her consent, used physical force to cause Victim to engage in	8
sexual intercourse. [2 RP 336-37] See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M.	9
729, 726 P.2d 883 (“Jury instructions become the law of the case against which the	10
sufficiency of the evidence is to be measured.”). The State presented the testimony of	11
Victim, who testified that Defendant, a much bigger person, physically forced her to	12
have sex with him while they were both staying at the marital residence, pending its	13
sale. [DS 1, 3-5] Defendant’s daughter-in-law, testified that she encouraged Victim	14
to report the incident to the police, because she did not believe Victim understood it	15
was a sexual assault, in light of Victim’s Thai cultural differences. [DS 5] The State	16
also presented the testimony of the SANE nurse who confirmed that Victim reported	17
pain in her pelvic area and testified that she saw redness and swelling outside of	18
Victim’s vagina. [DS 6] A person from the New Mexico Crime Lab, who tested the	19

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sample from Victim’s SANE examination, concluded that the DNA he found could	1
only belong to a male in Defendant’s paternal lineage. [DS 6] The sheet with which	2
Victim slept on a mattress in the living room was also tested and was found to contain	3
sperm and semen that matched the DNA profile from Defendant. [DS 6-7]	4
{5} 	Disregarding all the evidence and inferences that would support a different	5
result consistent with our standard of review, we hold that the State presented	6
sufficient evidence to support Defendant’s conviction. See Rojo, 1999-NMSC-001,	7
¶ 19; State v. Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333 (holding that	8
the testimony of a single witness can constitute sufficient evidence to uphold a	9
conviction).	10
Motion to Amend	11
{6} 	Defendant’s motion to amend the docketing statement seeks to add two issues:	12
(1) whether the district court abused its discretion by excluding a defense witness for	13
lack of relevant testimony; [MIO 11-14] and (2) whether Defendant was denied	14
effective assistance of counsel. [MIO 14-19] In cases assigned to the summary	15
calendar, this Court will grant a motion to amend the docketing statement to include	16
additional issues if the motion (1) is timely; (2) states all facts material to a	17
consideration of the new issues sought to be raised; (3) explains how the issues were	18
properly preserved or why they may be raised for the first time on appeal; (4)	19

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demonstrates just cause by explaining why the issues were not originally raised in the	1
docketing statement; and (5) complies in other respects with the appellate rules. See	2
State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M. 193, 668 P.2d 309.	3
This Court will deny motions to amend that raise issues that are not viable, even if	4
they allege fundamental or jurisdictional error. See State v. Moore, 1989-NMCA-073,	5
¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule on other grounds as	6
recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.	7
{7} 	Defendant contends the district court erred by excluding the testimony of Bill	8
McCormick, who would have testified that Victim “was willing to call Defendant’s	9
boss in North Carolina fourteen months prior to the alleged incident to get him into	10
trouble[.]” [MIO 13] Defendant argues that this testimony would have shown Victim	11
was vindictive toward Defendant and there was a possibility she was not credible in	12
her criminal accusation against Defendant. [MIO 13] Defendant’s motion to amend	13
does not show whether Victim actually called Defendant’s boss, does not describe the	14
alleged incident that might have gotten Defendant into trouble, and does not explain	15
whether Victim actually fabricated the previous, alleged incident. The omission of	16
these facts both fail to satisfy the requirements for a motion to amend and fail to	17
establish the relevance of Mr. McCormick’s testimony. Thus, Defendant does not	18
demonstrate compliance with the rules or the viability of the issue. See Moore,	19

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1989-NMCA-073, ¶¶ 36-51; Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11. We therefore	1
deny the motion to amend to add this issue.	2
{8} 	Defendant’s ineffective assistance of counsel claim suffers similar deficiencies.	3
Defendant contends that his trial counsel was ineffective for failing to (1) file a motion	4
to suppress evidence obtained from the unconstitutional, warrantless entry into his	5
home, (2) enlist an expert witness to explain the limitations of his ability to perform	6
sexually, and (3) cross-examine Victim regarding other conditions she suffered that	7
might have led to the SANE nurse’s observations of redness and swelling in her	8
vaginal area. [MIO 14] Defendant’s motion to amend does not explain how the record	9
on direct appeal shows either the reasons or lack thereof for any of these alleged	10
failures or that the result would have been different if his counsel had not failed to	11
perform any these actions. See State v. Astorga, 2015-NMSC-007, ¶ 17, 343 P.3d	12
1245 (“To establish ineffective assistance of counsel, a defendant must show: (1)	13
counsel’s performance was deficient, and (2) the deficient performance prejudiced the	14
defense.” (internal quotation marks and citation omitted)); id. ¶¶ 18, 21 (explaining	15
what the record on direct appeal must show for us to assess the deficiency of trial	16
counsel’s performance and prejudice from that deficient performance). Where the	17
record is inadequate to assess counsel’s performance or to determine prejudice, we	18
refer defendants to habeas corpus proceedings, so that they may develop the record	19

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to establish their claims of ineffective assistance of counsel. Id. ¶ 17. We do so here,	1
and deny Defendant’s motion to amend the docketing statement to add this claim.	2
{9} 	For the reasons stated in our notice and in this opinion, we deny Defendant’s	3
motion to amend and affirm the district court’s judgment and sentence.	4
{10} 	IT IS SO ORDERED.	5
6
LINDA M. VANZI, Judge	7
WE CONCUR:	8
9
JULIE J. VARGAS, Judge	10
11
ZACHARY A. IVES, Judge	12