State v. Byrd
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Opinion
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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
8 STATE OF NEW MEXICO,
9 Plaintiff-Appellee,
10 v. NO. 29,721
11 LEWIS BYRD,
12 Defendant-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Reed S. Sheppard, District Judge
15 Gary K. King, Attorney General 16 Santa Fe, NM
17 for Appellee
18 Law Office of Steven P. Archibeque 19 Steven P. Archibeque 20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
24 Defendant appeals his convictions for possession of a firearm by a felon and for
25 false imprisonment, as well as the enhancement of his sentence pursuant to the 1 Habitual Offender Act. [RP 209, 193, 233, 238] Our notice proposed to affirm, and
2 Defendant filed an untimely memorandum in opposition. We remain unpersuaded by
3 Defendant’s arguments and therefore affirm.
4 Issue (A). Defendant continues to argue that the prohibition against double
5 jeopardy was violated when the State used the same prior felony conviction both to
6 convict him of being a felon in possession of a firearm and to enhance his sentence.
7 [RP 222; DS 6; MIO 4-5]
8 In support of his argument, Defendant refers [MIO 4] to State v. Haddenham,
9 110 N.M. 149, 152-54, 793 P.2d 279, 282-84 (Ct. App. 1990) (holding that using the
10 same prior felony convictions both to enhance the defendants' sentences for felon in
11 possession of a firearm and to prove that the defendants were felons, an element of the
12 underlying conviction for felon in possession of a firearm, violated the defendants'
13 double jeopardy rights). Defendant refers also to State v. Franklin, 78 N.M. 127, 428
14 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) in
15 support of his argument. [MIO 5] As discussed in our notice, because the prior
16 felony that served as the predicate for Defendant’s felon-in-possession-of-a-firearm
17 conviction was not also used as a predicate for an habitual-offender enhancement of
18 the same felon in possession conviction, no double jeopardy violation took place.
2 1 See, e.g., State v. Handa, 120 N.M. 38, 46, 897 P.2d 225, 233 (Ct. App. 1995)
2 (holding no double jeopardy violation where the same prior felony was used to
3 establish the felon in possession of a firearm conviction and to provide the basis for
4 enhancement of the assault conviction).
5 Issue (B). Defendant continues to argue that the evidence was insufficient to
6 support his conviction for false imprisonment. [DS 6; RP 5] Defendant again refers
7 to Franklin and Boyer in support of his argument. [MIO 7]
8 We review the evidence to determine “whether substantial evidence of either
9 a direct or circumstantial nature exists to support a verdict of guilt beyond a
10 reasonable doubt with respect to every element essential to a conviction.” State v.
11 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e
12 view the evidence in the light most favorable to supporting the verdict and resolve all
13 conflicts and indulge all inferences in favor of upholding the verdict.” State v.
14 Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the
15 evidence, nor substitute our judgment for that of the fact-finder, so long as there is
16 sufficient evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at
17 1319.
3 1 Defendant’s conviction for false imprisonment requires findings that Defendant
2 restrained and/or confined Victim against her will; that Defendant knew he had no
3 authority to restrain or confine Victim; and that this happened on or about November
4 16, 2006. [MIO 6; RP 155, 167, 193, 237] See NMSA 1978, § 30-4-3 (1963); UJI
5 14-401 NMRA.
6 The State presented evidence that Victim told police that Defendant restrained
7 and sexually assaulted her in a car after they met at a bar. [DS 4; MIO 6] We hold
8 that this testimony constitutes sufficient evidence to support Defendant’s conviction
9 for false imprisonment. See State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385
10 (Ct. App. 1985) (defining substantial evidence as that evidence which a reasonable
11 person would consider adequate to support a defendant’s conviction). Although
12 Victim’s statements to the police had not been recorded [MIO 6] , Defendant’s DNA
13 was not the source of the DNA collected from Victim’s cervix and vaginal area [MIO
14 6], and Defendant denied having restrained Victim [DS 4; MIO 6], these were matters
15 for the jury to consider and to weigh. See State v. Gurule, 2004-NMCA-008, ¶ 38,
16 134 N.M. 804, 82 P.3d 975 (recognizing that it is up to the jury to weigh the testimony
17 and contradictory evidence and believe or disbelieve any testimony it hears); see also
4 1 State v. Sutphin, 107 N.M. at 131, 753 P.2d at 1319 (holding that the fact-finder may
2 reject defendant's version of events).
3 Conclusion. Based on our notice and the foregoing discussion, we affirm.
4 IT IS SO ORDERED.
5 6 MICHAEL D. BUSTAMANTE, Judge
7 WE CONCUR:
8 9 RODERICK T. KENNEDY, Judge
10 11 ROBERT E. ROBLES, Judge 12
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State v. Byrd, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byrd-nmctapp-2010.