State v. Gonzalez

Opinion

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 36,247

5 RAY JEFF GONZALES,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean Jr., District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge.

18 {1} Defendant Ray Gonzales appeals from his conviction for trafficking a

19 controlled substance, contrary to NMSA 1978, Section 30-31-20 (2006). [RP 120] 1 Unpersuaded by Defendant’s docketing statement, we entered a notice of proposed

2 summary disposition, proposing to affirm. Defendant has filed a memorandum in

3 opposition (MIO) to our notice. We remain unpersuaded and therefore affirm.

4 {2} Defendant raises one issue on appeal, challenging the sufficiency of the

5 evidence to support his conviction. [DS 4] Our notice detailed the relevant facts and

6 set forth the law that we believed controlled. Applying the law to the facts, we

7 proposed to conclude that the evidence was sufficient to support Defendant’s

8 conviction.

9 {3} In response, Defendant takes issue with the sufficiency of the evidence because,

10 according to him, all the evidence against him was circumstantial in nature. [MIO 5]

11 Additionally, Defendant points out that there was no information concerning: (1) the

12 confidential informant Agent Nickerson used in this case, (2) the man who approached

13 the vehicle prior to the sale, or (3) a vehicle that was allegedly circling the area where

14 the sale took place. [MIO 5] We are not persuaded. Relative to Defendant’s first

15 argument, we disagree with him that all the evidence presented was circumstantial in

16 nature. Specifically, we note that Agent Nickerson testified that he purchased

17 methamphetamine from Defendant. [DS 3; MIO 4] This is direct evidence, and when

18 considered along with the other evidence described in our notice of proposed

19 disposition, it is more than adequate to support Defendant’s conviction. See State v.

2 1 Rael, 1999-NMCA-068, ¶ 27, 127 N.M. 347, 981 P.2d 280 (holding that there was

2 sufficient evidence to support the defendant’s convictions for trafficking a controlled

3 substance where an undercover officer testified that he purchased narcotics from the

4 defendant); State v. Chandler, 1995-NMCA-033, ¶ 15, 119 N.M. 727, 895 P.2d 249

5 (holding that circumstantial evidence may support a conviction if that evidence

6 provides a sufficient basis for a fact-finder to infer guilt beyond reasonable doubt).

7 {4} In short, Defendant does not assert that our account of the evidence upon which

8 we proposed to rely was incorrect; further, his response does not assert any new

9 factual or legal argument that persuades this Court that our notice was incorrect

10 regarding the sufficiency of the evidence. See State v. Mondragon, 1988-NMCA-027,

11 ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary

12 calendar notice must come forward and specifically point out errors of law and fact,

13 and the repetition of earlier arguments does not fulfill this requirement), superceded

14 by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297

15 P.3d 374. Therefore, on the basis of our analysis in the notice of proposed disposition,

16 we hold that sufficient evidence supports Defendant’s conviction.

17 {5} For the reasons set forth in our notice and this opinion, we affirm.

18 {6} IT IS SO ORDERED.

19 ________________________________ 20 TIMOTHY L. GARCIA, Judge

3 1 WE CONCUR:

2 _______________________________ 3 JULIE J. VARGAS, Judge

4 _______________________________ 5 HENRY M. BOHNHOFF Judge