State v. Gonzales

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-36682

5 SAVANNAH D. GONZALES,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 8 Daniel A. Bryant, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Allison H. Jaramillo, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 VIGIL, Judge.

18 {1} Defendant Savannah D. Gonzales appeals her conviction for aggravated battery

19 of a household member, Daniel Lundquist (Victim). We issued a calendar notice 1 proposing to affirm. Defendant has responded with a memorandum in opposition. Not

2 persuaded, we affirm.

3 Prior Bad Act Evidence

4 {2} Defendant continues to challenge the admission of prior bad act evidence. [MIO

5 3] “We review the admission of evidence under an abuse of discretion standard and

6 will not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-NMSC-

7 022, ¶ 20, 125 N.M. 511, 964 P.2d 72.

8 {3} Here, Defendant had been found guilty of aggravated battery of a household

9 member and she filed a de novo appeal in district court. [RP 3] In the district court

10 trial, Victim testified that Defendant had hit him in the past. [MIO 3; DS 6] Defendant

11 claims that these prior incidents were inadmissible prior bad act evidence. See Rule

12 11-404(B) NMRA. However, defense counsel signaled in opening statement that they

13 would present evidence of Victim’s prior bad acts, i.e. that he was the aggressor in

14 their prior altercations. [DS 6-7] Consistent with the opening statement, Defendant’s

15 testimony referenced these prior bad acts. [DS 2-3] As a result, the admission of the

16 prior bad acts of Defendant was admissible under Rule 11-404(A)(2)(b). Because

17 Defendant had opened the door on prior bad act evidence, we conclude that the district

18 court acted within its discretion in admitting this evidence irrespective of any claims

19 of prejudice. See Rule 11-403 NMRA. It also follows that no prior notice was required

2 1 because Defendant was presumed to know that prior bad act evidence would be

2 admissible if she opened the door.

3 Comment on Right to Silence

4 {4} Defendant continues to claim that the court erred in admitting testimony on

5 Defendant’s invocation of her right to be silent. [MIO 8] See generally State v.

6 DeGraff, 2006-NMSC-011, ¶ 12, 139 N.M. 211, 131 P.3d 61 (discussing comments

7 on silence). Here, Defendant’s brother testified that he picked Defendant up after the

8 incident. [DS 5] Defendant was upset and appeared to have been in a physical

9 confrontation. [DS 5] Defendant’s brother testified that he drove her to the police

10 station, where an officer there did not get Defendant’s side of the story but instead

11 treated her as a guilty party; as a result, he told Defendant not to say anything. [DS 5]

12 Defendant’s docketing statement indicated that the brother’s comments were elicited

13 by the prosecutor, who said “you told her not to speak to [the] officer[.]” [DS 9]

14 {5} Under these circumstances, the district court could construe the prosecutor’s

15 comments as limited to an attack on the brother’s credibility as a defense witness. See

16 State v. Rojo, 1999-NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829 (noting that test

17 is whether prosecutor’s comments were directly aimed at a defendant’s right to remain

18 silent). The brother had stated that he wanted to have the officers take pictures of

19 Defendant’s injuries, because she was the victim. [DS 5] The prosecutor’s question

3 1 was limited to his statement to his sister, and did not inquire into Defendant’s

2 response. As such, the district court could construe this as limited to the brother’s own

3 credibility.

4 {6} For the reasons set forth above, we affirm.

5 {7} IT IS SO ORDERED.

6 _____________________________ 7 MICHAEL E. VIGIL, Judge

8 WE CONCUR:

9 ______________________________ 10 JULIE J. VARGAS, Judge

11 ______________________________ 12 STEPHEN G. FRENCH, Judge