State v. Huynh

• Court: New Mexico Court of Appeals
• Decided: October 5, 2016
• Docket: 34,685
• Status: Unpublished

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,865

5 CHINH HUYHN,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 George P. Eichwald, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 KENNEDY, Judge.

18 {1} Defendant Chinh Huynh appeals from his jury convictions of three counts of

19 aggravated assault upon a peace officer (deadly weapon), contrary to NMSA 1978, 1 Section 30-22-22(A)(1) (1971); assault with intent to commit a violent felony

2 (robbery), contrary to NMSA 1978, Section 30-3-3 (1977); aggravated fleeing law

3 enforcement, contrary to NMSA 1978, Section 30-22-1.1 (2003); shooting at or from

4 a motor vehicle, contrary to NMSA 1978, Section 30-3-8(B) (1993); and conspiracy

5 to commit a felony, contrary to NMSA 1978, Section 30-28-2 (1979). In this Court’s

6 notice of proposed disposition, we proposed to summarily affirm. Defendant filed a

7 memorandum in opposition (MIO), which we have duly considered. Remaining

8 unpersuaded, we affirm Defendant’s convictions.

9 {2} In his memorandum in opposition, Defendant continues to argue that there was

10 insufficient evidence to support his convictions. However, Defendant does not raise

11 new evidence, facts, arguments, or issues that are not otherwise addressed by this

12 Court’s notice of proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036,

13 ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary

14 calendar cases, the burden is on the party opposing the proposed disposition to clearly

15 point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

16 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar

17 notice must come forward and specifically point out errors of law and fact, and the

18 repetition of earlier arguments does not fulfill this requirement), superseded by statute

19 on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.

20 To the extent Defendant continues to contend that there was conflicting evidence,

2 1 weaknesses in the State’s case, and/or defense theories that support acquittal, we

2 reiterate that we do not re-weigh the evidence or substitute our judgment for the jury,

3 the jury is free to reject Defendant’s version of the facts, and it is within the province

4 of the jury; to determine where the weight and credibility of the evidence and

5 testimony lie. See State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d

6 1156 (stating that we do not re-weigh the evidence, and we may not substitute our

7 judgment for that of the fact-finder, as long as there is sufficient evidence to support

8 the verdict); State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829

9 (“[T]he jury is free to reject [the d]efendant’s version of the facts.”); State v. Salas,

10 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (stating that it is for the jury to

11 resolve conflicts in the evidence and determine where the weight and credibility lie).

12 {3} Accordingly, for the reasons stated in our notice of proposed disposition and

13 herein, we affirm Defendant’s convictions.

14 {4} IT IS SO ORDERED.

15 _______________________________ 16 RODERICK T. KENNEDY, Judge

17 WE CONCUR:

18 ___________________________________ 19 JAMES J. WECHSLER, Judge

20 _________________________________

3 1 M. MONICA ZAMORA, Judge