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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. 33,829 5 MELANIE HART-OMER, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ross C. Sanchez, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Steven H. Johnston, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM 16 Josephine H. Ford, Assistant Appellate Defender 17 Albuquerque, NM
18 for Appellant
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1 MEMORANDUM OPINION 2 BUSTAMANTE, Judge. 3 {1} Defendant Melanie Hart-Omer (Defendant) appeals her conviction of one count 4 of violation of a protective order that prohibited her from contacting her then-husband, 5 Boyd Omer (Omer). We affirm. 6 BACKGROUND 7 {2} Defendant was convicted of one count of violation of a protective order after 8 a bench trial in the metropolitan court. See NMSA 1978, § 40-13-6 (2013) (providing 9 for protective orders, their duration, and penalties for violation). Among other things, 10 the protective order stated that Defendant “shall not write to, talk to, visit or contact 11 [Omer] in any way except through [Omer’s] lawyer, if [Omer] has a lawyer.” After 12 the protective order was served, Defendant called and/or texted Omer several times. 13 {3} Three witnesses testified at trial: Omer, the couple’s daughter (Daughter), and 14 the attorney representing Defendant in divorce proceedings. Because Defendant 15 conceded that a protective order had been properly issued, the testimony at trial 16 focused on whether Defendant knew about the protective order and its prohibitions. 17 Defendant’s defense was that, although she had been personally handed the protective 18 order, she had no opportunity to read it because her Daughter immediately snatched 19 it out of her hands, ripped it up, and threw it away. Therefore, Defendant maintained, 20 she did not knowingly violate the order’s prohibitions.
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1 {4} Omer testified that he went to a public rodeo event in which Daughter was 2 competing in order to serve Defendant with the protective order. He was accompanied 3 by Chris Vigil, who handed the protective order, including a cover sheet, to 4 Defendant. Omer took a photo of Defendant with some papers, which he said were the 5 protective order and a cover sheet, in her hand. The photo was admitted into evidence. 6 Omer testified that the cover sheet was labeled “order of protection” and had some 7 court stamps on it, but the cover sheet was not admitted into evidence. 8 {5} Daughter testified that within a minute after Vigil handed Defendant the papers, 9 she grabbed them and tore them up, thinking they were divorce papers. She then threw 10 them in the trash can and ran after Omer, yelling at him that she had “ripped up the 11 divorce papers, and that she could [not] believe [that] he had come to just serve 12 [Defendant] divorce papers, [she] thought he had [come] to see her compete and have 13 [her] awards.” Defendant’s divorce attorney testified that he met with Defendant the 14 day after the papers were served, that Defendant did not mention a protective order, 15 and that he understood that Defendant thought she had been served with divorce 16 papers. 17 {6} Within an hour after the protective order was served on Defendant, Defendant 18 called Omer and left him a voice mail message. Omer testified that when Defendant 19 called him again the following day, he called the police and a deputy was sent to his 20 house. The deputy called Defendant and told her there was a protective order in place.
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1 Omer did not hear the conversation between the deputy and Defendant. Neither the 2 deputy nor Defendant testified. Shortly after the deputy’s call, Defendant called Omer 3 and left a message, stating “[inaudible] just called and said you tried to serve me with 4 a restraining order” and “I have no idea what the restraining order—I haven’t seen it, 5 it’s never been in my hand, I’ve never read it [inaudible].” 6 {7} The metropolitan court found Defendant guilty and sentenced Defendant to 364 7 days incarceration with 333 days suspended. Defendant appealed to the district court, 8 which affirmed Defendant’s conviction. Because this is a memorandum opinion and 9 because the parties are familiar with the case, we reserve further discussion of the 10 facts for our analysis of Defendant’s arguments on appeal. 11 DISCUSSION 12 {8} As a preliminary matter, we first address the State’s argument that this Court 13 lacks jurisdiction to hear Defendant’s appeal because her right to one appeal was 14 exhausted by the district court’s on-record review of the metropolitan court’s decision. 15 As the State acknowledges, however, this issue was addressed in a relatively recent 16 opinion by this Court, in which we held that “[NMSA 1978,] Section 34-5-8(A)(3) 17 [(1983)] vests this Court with jurisdiction to hear appeals from a district court’s on- 18 record review of a metropolitan court decision, and that [NMSA 1978,] Section 39-3- 19 3(A)(1) [(1972)] provides . . . a right to appeal to this Court and invoke that grant of 20 jurisdiction.” State v. Carroll, 2015-NMCA-033, ¶ 12, 346 P.3d 372, cert. granted,
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1 2015-NMCERT-001, 350 P.3d 92. We therefore proceed to the merits of Defendant’s 2 arguments. 3 {9} Defendant argues that the metropolitan court erred in three evidentiary rulings 4 and that these errors together constitute cumulative error requiring reversal. She also 5 asserts that the metropolitan court erred in not requiring the State to prove that she 6 knowingly violated the protective order. Finally, she argues that the State failed to 7 prove that she knew that telephone contact with Omer was prohibited. We address the 8 evidentiary rulings first. 9 {10} We review evidentiary rulings for an abuse of discretion. State v. Lopez, 2009- 10 NMCA-044, ¶ 12, 146 N.M. 98, 206 P.3d 1003 (“We cannot say the [lower] court 11 abused its discretion by its ruling unless we can characterize it as clearly untenable or 12 not justified by reason.” (internal quotation marks and citation omitted)). 13 {11} Defendant first argues that Omer’s testimony about the contents of the cover 14 sheet accompanying the protective order was improperly admitted under Rules 11- 15 1002 NMRA and 11-1004 NMRA of the New Mexico Rules of Evidence. Rule 11- 16 1002 states that “[a]n original writing, recording, or photograph is required in order 17 to prove its content unless these rules or a statute provides otherwise.” But Rule 11- 18 1004(A), which “applies when the contents of a writing are at issue but the original 19 document is not introduced into evidence[,]” Lopez, 2009-NMCA-044, ¶ 13, permits 20 admission of “other evidence of the contents of a writing . . . if . . . all the originals are
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1 lost or destroyed, and not by the proponent acting in bad faith.” Rule 11-1004(A). 2 Here, Daughter testified that she tore up all of the papers, including the cover sheet. 3 Thus, the unavailability of the cover sheet is not attributable to the bad faith of either 4 Defendant or the State. We note that in Lopez, this Court stated that the proponent of 5 evidence about a writing is required to produce the original or explain why it is not 6 available, and held that admission of testimony about the contents of a writing was 7 reversible error where “the documents referred to by [the state’s witness] were not 8 introduced at trial, and the [s]tate provided no explanation as to availability of the 9 documents.” Lopez, 2009-NMCA-044, ¶ 14. The State did not argue at trial that Rule 10 11-1004(A) applied because the cover sheet was lost. Thus, it may have been error to 11 admit testimony about the cover sheet in the absence of an explanation for its 12 unavailability. Here, however, the cover sheet was first referred to by Defendant on 13 cross-examination, when Defendant asked Omer whether there was a cover sheet and 14 whether it was blank. On redirect, Omer described the cover sheet further and 15 Defendant objected, stating that the writing was not in evidence. We decline to 16 address this issue further because, even if testimony about the cover sheet were 17 improper under Rules 11-1002 and 11-1004, Defendant elicited the first testimony 18 about the cover sheet during cross-examination, and may have relied on it to rebut the 19 State’s contention that Defendant knew what the papers were after glancing at them. 20 Having done so, Defendant cannot now argue that the testimony was erroneously
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1 admitted. Cf. State v. Bonham, 1998-NMCA-178, ¶ 12, 126 N.M. 382, 970 P.2d 154 2 (stating that “[e]ven if admission of [objectionable] testimony was error, we will not 3 now hear [the d]efendant complain about the error she invited”), abrogated on other 4 grounds by State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518; State v. 5 La Madrid, 1997-NMCA-057, ¶ 17, 123 N.M. 463, 943 P.2d 110 (stating that the 6 “[d]efendant cannot acquiesce in the admission of a hearsay statement when it appears 7 to suit his purpose and then claim reversible error when the same statement is admitted 8 later through another witness”). 9 {12} Next, Defendant argues that the metropolitan court erred in refusing to allow 10 testimony by Omer about what Daughter said to him after she took the papers from 11 Defendant. Defendant asked Omer if it was true that Daughter yelled at him, “How 12 dare you serve my mother divorce papers at my competition, I thought you came to 13 see me.” The court sustained the State’s hearsay objection, rejecting Defendant’s 14 argument that the statement was admissible as an excited utterance. After Omer 15 testified that Daughter was upset and ran after him yelling, Defendant asked Omer if 16 he knew why Daughter was upset and if he based his opinion on what Daughter said 17 to him. The court sustained the State’s objection to this question on the ground that 18 it called for speculation. On appeal, Defendant argues that this testimony should have 19 been admitted as an excited utterance and as the factual basis for Omer’s opinion 20 about why Daughter was upset.
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1 {13} We need not address these arguments about admissibility because we conclude 2 that, even if the metropolitan court’s rulings were erroneous, Defendant has not 3 demonstrated reversible error. “For the court’s error in excluding evidence to be 4 prejudicial against [a d]efendant, improperly refused evidence must form an important 5 part of [the d]efendant’s case.” State v. Gonzales, 1991-NMSC-075, ¶ 27, 112 N.M. 6 544, 817 P.2d 1186. “Moreover, to warrant reversible error in the exclusion of 7 testimony, [the] defendant must show a reasonable probability that the court’s failure 8 to allow the testimony contributed to [her] conviction.” Id. Defendant argues that 9 “[w]hat [Daughter] said and did, . . . were facts relevant to the issue of what 10 [Defendant] knew about the papers served to her.” She contends that “[e]ven though 11 [Daughter] testified about what she said and did, the defense case was unfairly 12 prejudiced when the court precluded the defense from forcing [Omer] to admit . . . that 13 [Daughter] yelled at him about divorce papers.” We understand Defendant to be 14 arguing that she was denied the opportunity to elicit corroborating testimony about 15 what Daughter said. But Defendant presented testimony by her attorney that, in a 16 meeting with Defendant the day after the papers were served, he understood that 17 Defendant thought she had been served with divorce papers. In addition, the court 18 heard recordings of two voice mails, recorded after Defendant had received the papers 19 from Vigil, in which Defendant referred to divorce proceedings and divorce 20 paperwork. In one of those recordings, Defendant stated explicitly that she did not
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1 know about the protective order: “I have no idea what the restraining order—I haven’t 2 seen it, it’s never been in my hand, I’ve never read it [inaudible].” Considering the 3 totality of the circumstances surrounding the excluded testimony, we conclude that 4 any error was harmless. See State v. Tollardo, 2012-NMSC-008, ¶ 43, 275 P.3d 110 5 (stating that a harmless error analysis involves “all of the circumstances surrounding 6 the error”). 7 {14} Having concluded there was no reversible error in the metropolitan court’s 8 evidentiary rulings, we turn to Defendant’s other arguments: that the metropolitan 9 court misstated the mens rea requirements for violation of a protective order, and that 10 there was insufficient evidence that Defendant knowingly violated the protective 11 order. 12 {15} Our analysis of the mens rea requirement for violation of a protective order 13 depends in large part on the Supreme Court’s decision in State v. Ramos, which was 14 filed after the metropolitan court’s decision. 2013-NMSC-031, ¶ 26, 305 P.3d 921. In 15 Ramos, the defendant was personally served with a protective order prohibiting him 16 from being within twenty-five yards of the protected party. Id. ¶¶ 3, 4. The defendant 17 did not read the details of the protective order. Id. ¶ 27. The defendant went to a local 18 bar and “[a]s it turn[ed] out, [the protected party] was also at th[e] bar[,] . . . seated 19 twelve to fifteen yards away from [the d]efendant.” Id. ¶ 5. The protected party called 20 the police and the defendant was arrested for violating the protective order. Id. ¶¶ 7,
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1 8. At trial, the defendant requested a jury instruction “requiring the jury to find that 2 he knowingly violated the order of protection, which the [district] court denied.” Id. 3 ¶ 9. 4 {16} On appeal, the Supreme Court reversed. Id. ¶ 35. It observed that, “[u]nlike a 5 malum in se criminal statute in which a person should know of inherently unlawful 6 conduct and anticipate its consequences, a party restrained by a protective order has 7 to be told that certain otherwise lawful conduct now constitutes a crime; i.e., going 8 within [twenty-five] yards of the other party in a public place.” Id. ¶ 21. Mandatory 9 service of a protective order, the Court went on, “provides the restrained party with 10 knowledge that certain actions will be considered criminal[.]” Id. It concluded that the 11 state was required to prove both that the defendant “knew of (1) the protective order 12 and (2) [the protected party’s] presence within [twenty-five] yards in the same 13 location.” Id. ¶ 26. 14 {17} The Court rejected the defendant’s argument that the first element was not met 15 because he never actually read the protective order, stating that “a restrained party has 16 knowledge of the order when he receives personal service of the order of 17 protection[,]” even if he fails to read it. Id. ¶¶ 26, 27. It held that “knowledge of the 18 contents of the order of protection was imputed to [the d]efendant as a matter of law 19 upon proof of service.” Id. ¶ 27. The Court’s reasoning was based in part on Maso v. 20 State Taxation & Revenue Department, in which the Court noted that “where
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1 circumstances are such that a reasonably prudent person should make inquiries, that 2 person is charged with knowledge of the facts reasonable inquiry would have 3 revealed.” 2004-NMSC-028, ¶ 13, 136 N.M. 161, 96 P.3d 286 (internal quotation 4 marks and citation omitted). As to the second element, it held that a new trial was 5 required because the jury was not instructed that a conviction required proof that the 6 defendant knew that the protected party was within twenty-five yards of him. Ramos, 7 2013-NMSC-031, ¶ 33. 8 {18} Applying Ramos to the present matter, the State was required to prove that 9 Defendant (1) knew of the protective order, and (2) knew that she was calling Omer, 10 the protected party. Here, the metropolitan court, instead of addressing whether 11 knowledge was a required element under the statute, held that Section 40-13-6 did not 12 require proof of intent to violate the protective order. Although the metropolitan court 13 was correct that the State was not required to show that Defendant “act[ed] with a 14 conscious or wilful desire to defy the protective order[,]” Ramos, 2013-NMSC-031, 15 ¶ 28, “knowledge and intent are separate, not synonymous, elements.” Id. (alteration, 16 internal quotation marks, and citation omitted). To the extent the metropolitan court 17 conflated knowledge and intent in its ruling, it erred. Although it did not have the 18 benefit of Ramos at the time, the metropolitan court misstated the proper standard for 19 violation of a protective order.
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1 {19} Nevertheless, we affirm because the metropolitan court properly imputed 2 knowledge of the protective order and its contents to Defendant. We construe the 3 court’s finding that Defendant was properly served with the protective order as an 4 indication that the court found that Defendant was sufficiently notified of the 5 existence of the order to permit imputing knowledge of its contents to her under 6 Ramos and Maso. See Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009- 7 NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791 (“Upon a doubtful or deficient record, 8 every presumption is indulged in favor of the correctness and regularity of the 9 [district] court’s decision, and the appellate court will indulge in reasonable 10 presumptions in support of the order entered.” (internal quotation marks and citation 11 omitted)). 12 {20} Defendant argues that knowledge of the protective order’s contents should not 13 be imputed to her because, unlike the defendant in Ramos, she did not intentionally 14 fail to read the protective order, but instead could not read it or even identify the 15 papers as a protective order because Daughter intervened. But Omer testified that 16 Defendant was given the papers and that the cover sheet was labeled “order of 17 protection” and had “court stamps” on it. The State presented a photo of Defendant 18 looking at some papers while Vigil walked away from her, and Omer testified that the 19 papers in the photo were the papers served on Defendant. An affidavit of service 20 signed by Vigil was entered into evidence. “The duty to weigh the credibility of
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1 witnesses and to resolve conflicts in the evidence lies with the [trial] court, not the 2 appellate court.” Doughty v. Morris, 1994-NMCA-019, ¶ 9, 117 N.M. 284, 871 P.2d 3 380. Here, the metropolitan court resolved the conflict in the evidence in the State’s 4 favor. We will not second guess the fact finder’s assessment of the evidence. State v. 5 Sedillo, 2001-NMCA-001, ¶ 6, 130 N.M. 98, 18 P.3d 1051 (“This Court does not 6 weigh the evidence and may not substitute its judgment for that of the [trial] court.”). 7 {21} Since we have concluded that knowledge of the protective order was properly 8 imputed to Defendant, we need not address Defendant’s argument that the State failed 9 to prove that she knew she was prohibited from calling Omer. 10 CONCLUSION 11 {22} For the foregoing reasons, we affirm Defendant’s conviction. 12 {23} IT IS SO ORDERED.
13 14 MICHAEL D. BUSTAMANTE, Judge
15 WE CONCUR:
16 __________________________________ 17 JONATHAN B. SUTIN, Judge
18 __________________________________ 19 CYNTHIA A. FRY, Judge