January 17, 2019- State of New Mexico v. Arthur H. Gutierrez, No. A-1-CA-37409

OCR transcription for search; preserved printed pages are authoritative

11
12
13
14
15
16

17
18
19
20

21

STATE OF NEW MEXICO,

V.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 1417/2019 9:36 AM

Plaintiff-Appellee, Mark Reynolds

No. A-1-CA-37409

ARTHUR H. GUTIERREZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Chief Judge.

{1}

Defendant, Arthur Gutierrez, appeals his convictions for aggravated burglary,

aggravated battery (great bodily harm), larceny, and criminal damage to property..We

issued a notice of proposed summary disposition proposing to affirm, and Defendant |

has responded with a timely memorandum in opposition and a motion to amend the

1 docketing 	statement. 	We have 	considered Defendant's 	arguments 	and remam
2 unpersuaded that our initial proposed disposition was incorrect. We therefore affirm.
3 	{2} 	We have already outlined the procedural and factual background in our notice
4 	of proposed summary disposition. Therefore, in order to avoid unnecessary repetition,
5 we will focus instead on the contents of Defendant's memorandum in opposition,
6 discussing only such facts as are relevant to his arguments.
7 	{3} 	We first address Defendant's argument that the evidence was insufficient to
8 prove aggravated battery because the injuries inflicted on the victim, Frederick
9 	Sherman, were not severe enough to constitute "great bodily harm" as contemplated
10 by the aggravated battery statute. [MIO 8-9] "The test for sufficiency of the evidence
11 	is whether substantial evidence of either a direct or circumstantial nature exists to
12 	support a verdict of guilt beyond a reasonable doubt with respect to every element
13 	essential to a conviction." State v. Duran, 2006-NMSC-035,, 5, 140 N.M. 94, 140
14 P.3d 515 (internal quotation marks and citation omitted). We view the evidence "in
15 	the light most favorable to the guilty verdict, indulging all reasonable inferences and
16 resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham,
17 2000-NMSC-009,, 26, 128 N.M. 711, 998 P.2d 176. "We will not substitute our
18 judgment for that of the fact[-]finder, nor will we reweigh the evidence." State v.
19 	Trujillo, 2012-NMCA-092,, 5, 287 P.3d 344.
2

1 {4} 	The jury instruction on great bodily harm required the jury to find in part that
2 "the defendant caused great bodily harm to Frederick Sherman or acted in a way that
3 would likely result in death or great bodily harm to Frederick Sherman." [RP 103]
4 "Great bodily harm" was defined in the instructions as "an injury to a person which
5 creates a high probability of death or results in serious disfigurement or results in loss
6 of any member or organ of the body or results in permanent or prolonged impairment
7 of the use of any member or organ of the body." [RP 104] As the aggravated battery
8 instruction illustrates, aggravated battery by great bodily harm "requires only that
9 great bodily harm could result, not that it must result." State v. Pettigrew, 1993-
10 NMCA-095, 17, 116 N.M. 135, 860 P.2d 777; see also NMSA 1978, § 30-3-5(C)
11 	(1969) (defining aggravated battery).
12 	{5} 	In our notice of proposed summary disposition, we proposed to affirm because
13 	the docketing statement did not inform us of the substance of either Mr. Sherman's
14 testimony describing his injuries or the testimony of his treating physician. See Rule
15 	12-208(D)(3) NMRA (stating that the docketing statement shall contain a concise
16 	statement of all facts material to consideration of the issues raised); see also Thornton
17 v. Gamble, 1984-NMCA-093, 118, 101 N.M. 764,688 P.2d 1268 (stating that when
18 	appellant raises the sufficiency of the evidence on appeal, the docketing statement
19 should recite evidence that supports the decision below).
3

1 {6} 	Appellate counsel has provided more information in the memorandum in
2 opposition. We now understand the evidence to be that Defendant struck Mr.
3 	Sherman, resulting in Mr. Sherman losing consciousness and requiring stitches to his
4 head. Mr. Sherman also received a shoulder injury. Mr. Sherman was treated in the
5 emergency room and released, and no follow up treatment was required. [MIO 8-9;
1
6 DS 3] To the extent Defendant asks us to determine that such injuries do not
7 constitute great bodily harm as a matter oflaw, we decline to do so. An injury to the
8 head which is accompanied by a loss of consciousness is, in our view, sufficiently
9 serious 	to 	warrant 	submission 	of the 	issue 	to 	a jury. 	See 	State 	v. 	Foster,
10 	1971-NMCA-064, ,r 22, 82 N.M. 573, 484 P.2d 1283 (recognizing that the jury
11 	determines whether the injuries inflicted during a battery are not likely to cause death
12 or great bodily harm, or whether the battery was committed in a manner whereby
13 	great 	bodily 	harm 	or 	death 	could 	be 	inflicted); 	see 	also 	State 	v. 	Ortega,
14 	1966-NMSC-186, ,r 11, 77N.M. 312,422 P.2d353 (stating that whether"the injuries
15 	sustained were sufficiently substantial to come within the definition of the statute").
16 	{7} 	Defendant stresses in his memorandum in opposition that the victim's injuries
17 were not severe enough to require further treatment after his release from the
18 	emergency room. [MIO 5, 9] However, this is an argument that the jury improperly
19 weighed the evidence, which we do not entertain on appeal. See State v. Tapia,
4

1 2015-NMCA-048, 14,347 P.3d 738 ("We do not reweigh the evidence, nor will we
2 	substitute our judgment for that of the fact[-]finder so long as the record contains
3 sufficient evidence to support the verdict."). For these reasons, we reject this assertion
4 	of error.
5 	{8} 	Defendant next continues his argument that the evidence was insufficient to
6 	establish his identity as the perpetrator. Defendant argues that the State's evidence
7 against him consisted of only two photographic identifications and that eyewitness
8 identifications are inherently unreliable. [MIO 14] Defendant argues that this inherent
9 unreliability and the evidence that witnesses gave conflicting identifications renders
10 the evidence insufficient to prove guilt beyond a reasonable doubt. [MIO 16]
11 	{9} 	We first reject Defendant's assertion that the eyewitness identifications were
12 the only evidence offered by the State on the issue of identity. As we pointed out in
13 	the notice of proposed disposition, Detective Andrew Salazar testified regarding his
14 investigation of the license plate number of the vehicle parked at the Mr. Sherman's
15 	residence and the photograph of that vehicle taken by his neighbor. Defendant has not
16 elaborated on the substance of that testimony. See State v. Rojo, 1999-NMSC-001,
17 1 53, 126 N.M. 438, 971 P.2d 829 (stating that "[w]here there is a doubtful or
18 	deficient record, every presumption must be indulged by the reviewing court in favor
5

1 of the correctness and regularity of the trial court's judgment" (alteration, internal
2 quotation marks, and citation omitted)).
3 {10} 	However, for purposes of this appeal, we will assume that the identifications
4 	of Defendant by Mr. Sherman and his neighbor were the only evidence offered to
5 establish Defendant's identity. Defendant has cited no authority to suggest that such
6 evidence is insufficient. See State v. Ramirez, 2018-NMSC-003, ,, 7-13, 409 P.3d
7 902 (rejecting the defendant's argument that the evidence of identity was insufficient
8 because the eyewitness testimony identifying him as the shooter was "unreliable," and
9 recognizing that the evidence of a single witness may support a guilty verdict); State
10 v. Godoy, 2012-NMCA-084,, 5,284 P.3d 410 ("Where a party cites no authority to
11 	support an argument, we may assume no such authority exists."); State v. Torres,
12 2005-NMCA-070,, 34, 137 N.M. 607, 113 P.3d 877 (stating that this Court will not
13 	address issues unsupported by argument and authority).
14 	{11} 	With respect to Defendant's argument that the in-court and out-of-court
15 	identifications were unreliable because Mr. 	Sherman stated that he 	could not
16 positively identify Defendant, and his neighbor originally identified another person
17 before identifying Defendant to police, any issues relating the credibility of the
18 	identifications of Defendant were for the jury, as the finder of fact, to resolve. See
19 State v. Hughey, 2007-NMSC-036,, 16, 142 N.M. 83, 163 P.3d 470 ("It is the role
6

1 of the fact[-] finder to judge the credibility of witnesses and determine the weight of
2 evidence."); Statev. Ortiz-Burciaga, 1999-NMCA-146, ,22, 128 N.M. 382,933 P.2d
3 96 ("It is the exclusive province of the jury to resolve factual inconsistencies in
4 testimony." (internal quotation marks and citation omitted)). Defendant was afforded
5 the opportunity to cross-examine the witnesses at trial, and the record establishes that
6 Defendant's neighbor was questioned about the discrepancy in his identifications, and
7 he testified that he was certain that Defendant was the, individual and identified him
8 in court. The weight to be given to this evidence was for the jury to determine. State
9 v. Riggs, 1992-NMSC-057,, 17, 114 N.M. 358, 838 P.2d 975.
10 	{12} 	For these same reasons, we reject Defendant's argument that the existence of
11 	other suspects during the investigation of this case required the jury to find that
12 reasonable doubt existed. See. Rojo, 1999-NMSC-001, , 	19 ("Contrary evidence
13 	supporting acquittal does not provide a basis for reversal because the jury is free to
14 reject [the d]efendant's version of the facts."); Statev. Neatherlin, 2007-NMCA-035,
15 , 	8, 141 N.M. 328, 154 P.3d 703 (stating that on appeal "we do not reweigh the
16 	evidence or substitute our judgment for that of the jury").
17 {13} 	Finally, Defendant has filed a motion to amend the docketing statement, in
18 which he argues that he received ineffective assistance of counsel when his trial
19 counsel failed to prepare a sufficient docketing statement. [MIO 2-4, 11-14] "We
7

1 review claims of ineffective assistance of counsel de novo." State v. 	Garcia,
2 2011-NMSC-003, ,r 33, 149 N.M. 185, 246 P.3d 1057. "To establish a claim of
3 ineffective assistance of counsel, a defendant must show that his or her attorney failed
4 to exercise the skill of a reasonably competent attorney and that the defendant was
5 prejudiced by the failure." State v. Reyes, 2002-NMSC-024, ,r 46, 132 N.M. 576, 52
6 P.3d 948, abrogated on other grounds by Allen v. LeMaster, 2012 NMSC-001, 267
7 P.3d 806. "[T]o establish prejudice from trial counsel's ineffectiveness, a defendant
8 must show that there is a reasonable probability that but for counsel's ineffectiveness,
9 the 	result 	of the 	proceeding 	would 	have 	been 	different." 	State 	v. 	Turner,
10 	2017-NMCA-047, ,r 28, 396 P.3d 184.
11 	{14} 	Trial counsel's failure to provide information in the docketing statement is not
12 	sufficient to establish prejudice because, in reviewing Defendant's arguments on
13 	appeal, we have accepted his assertions as to the content and extent of the trial
14 evidence on both the issue of his identity and the nature of the injuries inflicted on the
15 	victim. Accordingly, the record does not establish that the outcome of the proceeding
16 would have been different had trial counsel included a more complete recitation of
17 the evidence in his docketing statement. Defendant has therefore not shown a prima
18 	facie case ofineffective assistance of counsel. See State v. Jacobs, 2000-NMSC-026,
19 ,r 51, 129 N.M. 448, 10 P.3d 127 (stating that failure to prove either prong of the test
8

1 defeats 	a 	claim 	of 	ineffective 	assistance 	of 	counsel); 	State 	v. 	Martinez,
2 2007-NMCA-160, ,r,r 22-24, 143 N.M. 96, 173 P.3d 18 (requiring that an ineffective
3 assistance claim be supported by a showing of how counsel's performance prejudiced
4 the defense).
5 	{15} 	We therefore deny the motion to amend to raise the issue of ineffective
6 assistance of counsel as the issue is not viable on direct appeal. See State v. Powers,
7 	1990-NMCA-108, ,r 8, 111 N.M. 10, 800 P.2d 1067 (denying a motion to amend the
8 docketing statement to raise issues of ineffective assistance of counsel where the
9 issues were not viable); State v. Moore, 1989-NMCA-073, ,r 42, 109 N.M. 119, 782
10 P .2d 91 (stating that issues sought to be presented in a motion to amend the docketing
11 	statement must be viable), superceded by rule on other grounds as stated in State v.
12 Salgado, 1991-NMCA-044, 112 N.M. 537,817 P.2d 730; see also State v. Martinez,
13 	1996-NMCA-109, ,r 25, 122 N.M. 476, 927 P.2d 31 (stating that if the record does
14 not establish a prima facie case of ineffective assistance of counsel, the defendant
15 	must pursue the claim in a habeas corpus proceeding).
16 	CONCLUSION
17 	{16} 	For these reasons, we affirm Defendant's convictions.
9

—

a7; ITIS SO ORDERED.

WE CONCUR:

JAW

(Araadeun

M. MONICA ZAM Judge

-

>. Wr

J. MILES HANISEE, Judge

LINDSM; VANZIL, Chief Judge

ra

10