1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 28,937
10 TYRON BROOKS,
11 Defendants-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Sandra A. Price, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Francine A. Chavez, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Allison H. Jaramillo, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 SUTIN, Judge. 1 Defendant Tyron Brooks was convicted of larceny over $500 for taking milking
2 stalls from a nonoperational dairy farm. He was stopped for a traffic violation, and
3 the stalls were on a trailer he was pulling. On appeal, Defendant asserts: (1) error
4 because an erroneous instruction on market value “resulted in the essential elements
5 of larceny being taken away from [the jury’s] determination”; (2) insufficient evidence
6 of the value of the stalls; (3) insufficient evidence of the requisite criminal intent; and
7 (4) abuse of discretion in permitting evidence of other suspected crimes of larceny that
8 were not charged.
9 The Erroneous Instruction Issue
10 We review de novo the propriety of a jury instruction given or denied. State v.
11 Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. The crime of larceny
12 of which Defendant was convicted required proof that the stalls exceeded a market
13 value of $500. The instruction the court indicated it would give on market value
14 stated, “‘Market value’ means the price at which the property could ordinarily be
15 bought and sold at the time of the alleged receiving stolen property,” and Defendant
16 objected because the alleged crime was stated as receiving stolen property instead of
17 larceny, and because of the use of the word “stolen.” The court agreed to revise the
18 instruction. The court read a revised jury instruction to the jury, using “alleged
19 larceny” and not “alleged receiving stolen property.” However, the revision was not
2 1 made in the written instruction given to the jury—that instruction still used the words,
2 “alleged receiving stolen property.”
3 The jury was given a written instruction on the elements of larceny. The
4 instruction stated that for the jury to find Defendant guilty of larceny the State was
5 required to prove beyond a reasonable doubt that Defendant “took and carried away
6 four . . . milking stalls belonging to another,” and “intended to permanently deprive
7 the owner of it.” The instructions are to be considered as a whole. State v. Parish,
8 118 N.M. 39, 41, 878 P.2d 988, 990 (1994). Under the circumstances, we do not
9 believe that a reasonable juror would have been confused or misdirected. The larceny
10 instruction set out the elements that the State had to prove. We think it is unlikely that
11 the jury would have been confused or misdirected into thinking that it was
12 predetermined and that they were to assume Defendant had stolen the stalls. Further,
13 there was no question in this case that Defendant “took and carried” the stalls
14 belonging to another. There was no evidence or issue relating to whether Defendant
15 received goods already stolen. Defendant points to nothing other than the market-
16 value instruction from which jury confusion or misdirection occurred or was likely.
17 The evidence and the manner in which this case was presented to the jury give us no
18 indication that the jury would have reached its verdict based on Defendant having
19 received stolen goods or that it was predetermined that Defendant had stolen the stalls.
3 1 For the foregoing reasons, we reject Defendant’s contention that the written market-
2 value instruction constituted reversible error.
3 The Sufficiency of Evidence of Value
4 Defendant asserts that the State failed to provide proof of the current value, age,
5 and condition of the stalls, and therefore, its proof was not sufficient to convict
6 Defendant of larceny beyond a reasonable doubt. We review for sufficiency of the
7 evidence, that is, “whether substantial evidence of either a direct or circumstantial
8 nature exists to support a verdict of guilt beyond a reasonable doubt with respect to
9 every element essential to a conviction.” State v. Pickett, 2009-NMCA-077, ¶ 16, 146
10 N.M. 655, 213 P.3d 805 (internal quotation marks and citation omitted). “Substantial
11 evidence is such relevant evidence as a reasonable mind might accept as adequate to
12 support a conclusion.” Id. (internal quotation marks and citation omitted), cert.
13 denied, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43. We view the evidence in
14 the light most favorable to the State and ask whether “any rational trier of fact could
15 have found the essential elements of the crime beyond a reasonable doubt.” State v.
16 Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891 (internal quotation
17 marks and citation omitted). We will not reweigh the evidence or substitute our
18 judgment for that of the fact finder as long as there is sufficient evidence to support
19 the verdict. State v. Marquez, 2009-NMSC-055, ¶ 17, 147 N.M. 386, 223 P.3d 931.
4 1 The owner of the stalls testified that the stalls were constructed of stainless
2 steel, which would prevent rusting, and that they would last for “years and years and
3 years,” and “unless they’re torn up, they last forever.” He testified that the stalls were
4 worth $450 each in the early 1990s when he operated the dairy farm. Further,
5 although the stalls probably could not be currently sold as milking stalls, they could
6 be sold as horse feeders or feeders for individual animals. He first estimated that each
7 stall would be worth between $100 and $300 depending on how extensively they were
8 fixed up to make them into a feeder. Later he testified that if he were to run a Thrifty
9 Nickel ad he would sell the stalls for $350 a stall “as is” to individuals who have
10 horses and like to have one feeder per animal.
11 The larceny charge was based on a total value of the four stalls, and the owner’s
12 testimony was sufficient to support a value of over $500 for the four stalls. Owners
13 can testify concerning the value of their personal property. State v. Hughes, 108 N.M.
14 143, 145-46, 767 P.2d 382, 384-85 (Ct. App. 1988). Inconsistencies in testimony are
15 for the jury to resolve. Marquez, 2009-NMSC-055, ¶ 17. Viewing the evidence in the
16 light most favorable to the verdict, we conclude that a rational finder of fact could
17 have found, beyond a reasonable doubt, that the essential elements existed to support
18 its determination of a value in excess of $500.
5 1 The Sufficiency of Evidence of Intent
2 Defendant argues that the evidence was insufficient to prove, beyond a
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 28,937
10 TYRON BROOKS,
11 Defendants-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 Sandra A. Price, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Francine A. Chavez, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Allison H. Jaramillo, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 SUTIN, Judge. 1 Defendant Tyron Brooks was convicted of larceny over $500 for taking milking
2 stalls from a nonoperational dairy farm. He was stopped for a traffic violation, and
3 the stalls were on a trailer he was pulling. On appeal, Defendant asserts: (1) error
4 because an erroneous instruction on market value “resulted in the essential elements
5 of larceny being taken away from [the jury’s] determination”; (2) insufficient evidence
6 of the value of the stalls; (3) insufficient evidence of the requisite criminal intent; and
7 (4) abuse of discretion in permitting evidence of other suspected crimes of larceny that
8 were not charged.
9 The Erroneous Instruction Issue
10 We review de novo the propriety of a jury instruction given or denied. State v.
11 Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. The crime of larceny
12 of which Defendant was convicted required proof that the stalls exceeded a market
13 value of $500. The instruction the court indicated it would give on market value
14 stated, “‘Market value’ means the price at which the property could ordinarily be
15 bought and sold at the time of the alleged receiving stolen property,” and Defendant
16 objected because the alleged crime was stated as receiving stolen property instead of
17 larceny, and because of the use of the word “stolen.” The court agreed to revise the
18 instruction. The court read a revised jury instruction to the jury, using “alleged
19 larceny” and not “alleged receiving stolen property.” However, the revision was not
2 1 made in the written instruction given to the jury—that instruction still used the words,
2 “alleged receiving stolen property.”
3 The jury was given a written instruction on the elements of larceny. The
4 instruction stated that for the jury to find Defendant guilty of larceny the State was
5 required to prove beyond a reasonable doubt that Defendant “took and carried away
6 four . . . milking stalls belonging to another,” and “intended to permanently deprive
7 the owner of it.” The instructions are to be considered as a whole. State v. Parish,
8 118 N.M. 39, 41, 878 P.2d 988, 990 (1994). Under the circumstances, we do not
9 believe that a reasonable juror would have been confused or misdirected. The larceny
10 instruction set out the elements that the State had to prove. We think it is unlikely that
11 the jury would have been confused or misdirected into thinking that it was
12 predetermined and that they were to assume Defendant had stolen the stalls. Further,
13 there was no question in this case that Defendant “took and carried” the stalls
14 belonging to another. There was no evidence or issue relating to whether Defendant
15 received goods already stolen. Defendant points to nothing other than the market-
16 value instruction from which jury confusion or misdirection occurred or was likely.
17 The evidence and the manner in which this case was presented to the jury give us no
18 indication that the jury would have reached its verdict based on Defendant having
19 received stolen goods or that it was predetermined that Defendant had stolen the stalls.
3 1 For the foregoing reasons, we reject Defendant’s contention that the written market-
2 value instruction constituted reversible error.
3 The Sufficiency of Evidence of Value
4 Defendant asserts that the State failed to provide proof of the current value, age,
5 and condition of the stalls, and therefore, its proof was not sufficient to convict
6 Defendant of larceny beyond a reasonable doubt. We review for sufficiency of the
7 evidence, that is, “whether substantial evidence of either a direct or circumstantial
8 nature exists to support a verdict of guilt beyond a reasonable doubt with respect to
9 every element essential to a conviction.” State v. Pickett, 2009-NMCA-077, ¶ 16, 146
10 N.M. 655, 213 P.3d 805 (internal quotation marks and citation omitted). “Substantial
11 evidence is such relevant evidence as a reasonable mind might accept as adequate to
12 support a conclusion.” Id. (internal quotation marks and citation omitted), cert.
13 denied, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43. We view the evidence in
14 the light most favorable to the State and ask whether “any rational trier of fact could
15 have found the essential elements of the crime beyond a reasonable doubt.” State v.
16 Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891 (internal quotation
17 marks and citation omitted). We will not reweigh the evidence or substitute our
18 judgment for that of the fact finder as long as there is sufficient evidence to support
19 the verdict. State v. Marquez, 2009-NMSC-055, ¶ 17, 147 N.M. 386, 223 P.3d 931.
4 1 The owner of the stalls testified that the stalls were constructed of stainless
2 steel, which would prevent rusting, and that they would last for “years and years and
3 years,” and “unless they’re torn up, they last forever.” He testified that the stalls were
4 worth $450 each in the early 1990s when he operated the dairy farm. Further,
5 although the stalls probably could not be currently sold as milking stalls, they could
6 be sold as horse feeders or feeders for individual animals. He first estimated that each
7 stall would be worth between $100 and $300 depending on how extensively they were
8 fixed up to make them into a feeder. Later he testified that if he were to run a Thrifty
9 Nickel ad he would sell the stalls for $350 a stall “as is” to individuals who have
10 horses and like to have one feeder per animal.
11 The larceny charge was based on a total value of the four stalls, and the owner’s
12 testimony was sufficient to support a value of over $500 for the four stalls. Owners
13 can testify concerning the value of their personal property. State v. Hughes, 108 N.M.
14 143, 145-46, 767 P.2d 382, 384-85 (Ct. App. 1988). Inconsistencies in testimony are
15 for the jury to resolve. Marquez, 2009-NMSC-055, ¶ 17. Viewing the evidence in the
16 light most favorable to the verdict, we conclude that a rational finder of fact could
17 have found, beyond a reasonable doubt, that the essential elements existed to support
18 its determination of a value in excess of $500.
5 1 The Sufficiency of Evidence of Intent
2 Defendant argues that the evidence was insufficient to prove, beyond a
3 reasonable doubt, that he had specific intent to permanently deprive the owner of the
4 property, because Defendant thought the property was abandoned, and he could not
5 have intended to deprive anyone of it. We review this issue under the substantial
6 evidence standard set out earlier in this opinion.
7 The jury was instructed pursuant to UJI 14-1601 NMRA and UJI 14-141
8 NMRA in regard to intent. Although there was evidence that indicated the property
9 appeared to have been abandoned, there was also evidence showing that it was
10 apparent that the property had an owner and that Defendant had been informed of the
11 name of the owner. Further, a milking barn, corrals, and equipment were on the
12 property. “Whether the defendant acted intentionally may be inferred from all of the
13 surrounding circumstances, such as the manner in which he acts, the means used, . . .
14 his conduct[,] []and any statements made by him[].” UJI 14-141. Based on the
15 circumstances, and indulging all inferences in favor of the verdict, we are unable to
16 hold that the evidence was insufficient for a reasonable jury to find beyond a
17 reasonable doubt that Defendant intended to permanently deprive the owner of the
18 stalls.
6 1 The Abuse of Discretion on an Evidentiary Ruling Issue
2 Defendant contends that the court abused its discretion in admitting testimony
3 that could indicate he had not only stolen the stalls, but had also stolen “other
4 ‘expensive’ items” and some radiators, arguing that “[t]his evidence was highly
5 prejudicial, because it suggested that [Defendant] was involved in another crime of the
6 same type for which he was on trial.” Defendant contends on appeal that he made and
7 preserved an objection based on Rule 11-404(B) NMRA relating to evidence of other
8 crimes, wrongs, or acts. We review the admission of evidence for abuse of discretion.
9 State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641.
10 The pertinent testimony and the objection to it were as follows:
11 Prosecutor: How many stalls were missing?
12 [Owner]: I believe there was six. That was just the stalls. That wasn’t 13 the other items.
14 Prosecutor: Ok.
15 Defense counsel: Objection.
16 Court: State your objection.
17 Defense counsel: Prejudicial. May I approach?
18 A five-second bench conference was as follows:
19 Court: I think he’s listing the other items.
20 Defense: He has stolen only the stalls in this case.
7 1 Court: Right, but I think it’s already been referenced through other 2 things in the vehicle.
3 The court overruled the objection and immediately instructed the jury, “You’ll get
4 instructions about what you have to decide related to today’s case; and today’s case
5 is just about larceny of the . . . milking stalls.” The prosecutor then asked the owner
6 whether he recovered the items, to which the owner answered, “[w]e got some
7 radiators and those milking stalls back.” Defense counsel did not object to the later
8 question or answer. Nor did defense counsel object to the owner’s volunteered
9 testimony that the other items were “expensive.”
10 The State argues that Defendant failed to preserve a Rule 11-404(B) objection
11 and instead preserved an objection, if any, only under Rule 11-403 NMRA, and only
12 to the first question as to how many stalls were missing and the answer to that
13 question. We agree with the State. Defense counsel’s objection was solely that the
14 answer to the question was “prejudicial.” Nothing in the record of the trial indicates
15 that defense counsel explained or particularized his objection. He cited no rule.
16 That said, however, were we to determine the preservation issue otherwise, we
17 would hold that the court did not abuse its discretion. There had already been
18 evidence regarding other items in the trailer. A deputy testified that he saw some
19 radiators and various items of metal scrap on the trailer. Further, given that defense
20 counsel’s objection was limited solely to “prejudicial,” the court’s curative instruction
8 1 that the case was just about larceny of the stalls, was sufficient to protect against
2 undue prejudice. See State v. Vialpando, 93 N.M. 289, 297, 599 P.2d 1086, 1094 (Ct.
3 App. 1979) (“[A] prompt admonition from the court to the jury to disregard and not
4 consider inadmissible evidence sufficiently cures any prejudicial effect which
5 otherwise might result.”). In addition, nothing has been pointed out to us that
6 indicates the jury’s verdict of larceny of the stalls was likely based in any respect on
7 the evidence that Defendant also had one or more items that were returned to
8 Defendant or that the value of the other items was used by the jury to bring the market
9 value of the stalls over $500. Nor is there any indication that the jury believed the
10 stalls’ value was under $500 but that Defendant should nevertheless be convicted
11 simply because he also may have committed larceny of other items.
12 Defendant represents, with no record support, that defense counsel’s objection
13 was that the owner’s testimony in regard to “a car radiator” and “other items” was
14 “irrelevant.” We see no such objection in the record. The record shows only an
15 objection of “prejudicial.” At most, this objection indicates that Defendant was
16 objecting on the Rule 11-403 ground that the “probative value” of the evidence was
17 “substantially outweighed by the danger of unfair prejudice,” an objection that
18 assumes the evidence is relevant. Defendant nevertheless argues on appeal that the
9 1 evidence was not relevant and was therefore inadmissible, citing Rules 11-401 and 11-
2 402 NMRA. We see no viable basis on which to consider this unpreserved argument.
3 CONCLUSION
4 We affirm.
5 IT IS SO ORDERED.
6 __________________________________ 7 JONATHAN B. SUTIN, Judge
8 WE CONCUR:
9 _________________________________ 10 ROBERT E. ROBLES, Judge
11 _________________________________ 12 LINDA M. VANZI, Judge