State v. Frohnhofer

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-36691

5 JAMES FROHNHOFER,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Fred Travis Van Soelen, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Santa Fe, NM 14 Matthew J. Edge 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 {1} Defendant appeals from the district court’s judgment, sentence, and

2 commitment, convicting him following a jury trial of one count of aggravated battery

3 against a household member with a deadly weapon. This Court issued a calendar

4 notice proposing to affirm. Defendant has filed a memorandum in opposition, which

5 we have duly considered. Unpersuaded, we affirm.

6 {2} In this Court’s calendar notice, we detailed the evidence presented against

7 Defendant and proposed to conclude that the evidence was sufficient to support each

8 element of aggravated battery against a household member with a deadly weapon,

9 based on the jury instructions. We pointed out that, to the extent Defendant was

10 arguing that there are inconsistencies in the Victim’s testimony and reasons to

11 question her credibility, concerns of weight and credibility are outside the reach of our

12 appellate review. See State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d

13 1057 (“New Mexico appellate courts will not invade the jury’s province as fact-finder

14 by second-guessing the jury’s decision concerning the credibility of witnesses,

15 reweighing the evidence, or substituting its judgment for that of the jury.” (internal

16 quotation marks and citation omitted)).

17 {3} In his memorandum in opposition, Defendant maintains that the evidence

18 against him is too incredible for a rational fact-finder to rely on. [MIO 3-5] While we

19 note that Defendant has couched his argument in slightly different terms, at its core

2 1 Defendant is still asking this Court to reweigh evidence and reassess credibility. This

2 we will not do. Because we conclude that the relief Defendant seeks is outside of the

3 scope of this Court’s appellate review.

4 {4} Lastly, this Court noted in our notice of proposed disposition that the district

5 court’s judgment contains a clerical error. [CN 2] Specifically, we pointed out that the

6 judgment and sentence indicates that Defendant was convicted of aggravated assault

7 on a household member with a deadly weapon [RP 162], while the record

8 demonstrates that the jury convicted Defendant of aggravated battery on a household

9 member with a deadly weapon [RP 123, 131]. Accordingly, we conclude that remand

10 for correction of the judgment and sentence is required.

11 {5} For the reasons stated above and in this Court’s notice of proposed disposition,

12 we affirm Defendant’s conviction and remand for correction of the judgment and

13 sentence.

14 IT IS SO ORDERED.

15 ________________________________ 16 MICHAEL E. VIGIL, Judge

17 WE CONCUR:

18 ___________________________

3 1 M. MONICA ZAMORA, Judge

2 __________________________ 3 HENRY M. BOHNHOFF, Judge