State v. A Moreno

• Court: New Mexico Court of Appeals
• Decided: January 5, 2009
• Docket: 28,891
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 28,891

5 ADALY MORENO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Douglas R. Driggers, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 CASTILLO, Judge.

18 Defendant appeals her convictions of child abuse, tampering with evidence, and

19 possession of drug paraphernalia. In particular, she contends that the district court 1 erred in denying her motion to suppress evidence and in failing to order further mental

2 assessment prior to sentencing. In our notice, we proposed to affirm the conviction.

3 Defendant has timely responded. We have considered her arguments and not being

4 persuaded, we affirm.

5 Defendant moved to suppress evidence obtained as the result of a search of her

6 residence on the basis that the police officer initially entered her home without a

7 warrant. We pointed out in our notice that there are certain exceptions to the warrant

8 requirement, including consent. State v. Rowell, 2007-NMCA-075, ¶ 17, 141 N.M.

9 783, 161 P.3d 280, rev’d on other grounds, 2008-NMSC-041, 144 N.M. 371, 188

10 P.3d 95. Here, the trial court found that Defendant had consented to the officer

11 entering her home. [RP 122, fof 2] Defendant appears to be arguing that there was

12 insufficient evidence to support that finding.

13 She contends that she did not give consent to enter her home. However, the

14 officer testified that when he was met at the front door of the residence by Defendant,

15 he asked if he could come in and Defendant gave him permission to do so.

16 Defendant’s assertion that she did not give consent only created a conflict in the facts,

17 which the trier of fact must resolve. Such a resolution of credibility and conflicts is

18 appropriate on a motion to suppress. State v. Boeglin, 100 N.M. 127, 132, 666 P.2d

19 1274, 1279 (Ct. App. 1983). We conclude that the officer’s testimony provided

2 1 sufficient evidence to support a finding of consent to enter the residence.

2 Because Defendant consented to the officer’s entry into her home, there was no

3 basis to support the motion to suppress evidence obtained from that entry.

4 Defendant also contended that the district court erred in failing to order further

5 mental assessment and evaluation before sentencing her. In our notice, we pointed out

6 that we knew of no authority requiring a sentencing court to follow the

7 recommendation of the diagnostic evaluation. Defendant continues to argue that the

8 district court abused its discretion in failing to follow the recommendation. She does

9 not, however, explain how the decision to not follow the recommendation was

10 “clearly against the logic and effect of the facts and circumstances of the case.” State

11 v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (explaining an abuse of

12 discretion). We hold that the district court did not abuse its discretion in failing to

13 follow the recommendation of the diagnostic evaluation and order more assessment

14 of Defendant.

15 For the reasons stated herein and in the notice of proposed disposition, we

16 affirm the convictions.

17 IT IS SO ORDERED.

18 ________________________________ 19 CELIA FOY CASTILLO, Judge

3 1 WE CONCUR:

2 ________________________________ 3 JAMES J. WECHSLER, Judge

4 ________________________________ 5 MICHAEL E. VIGIL, Judge