State v. J Heying

• Court: New Mexico Court of Appeals
• Decided: January 6, 2009
• Docket: 28,928
• Status: Unpublished

Opinion

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 28,928

5 JOHN HEYING,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Neil C. Candelaria, District Judge

9 Hugh W. Dangler, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Leon F. Encinias 13 Albuquerque, NM

14 for Appellant

15 MEMORANDUM OPINION

16 CASTILLO, Judge.

17 Defendant John Heying appeals his conviction for violating an order of

18 protection, asserting that the metropolitan court erred in denying his motion for 1 directed verdict and in concluding that substantial evidence supported his conviction.

2 This Court issued a calendar notice proposing to affirm the conviction on the summary

3 calendar. Defendant filed a memorandum in opposition, which we have duly

4 considered. We affirm.

5 We review Defendant’s directed verdict and substantial evidence issues

6 together. See, e.g., State v. Romero, 111 N.M. 99, 101, 801 P.2d 681, 683 (Ct. App.

7 1990) (stating that “[t]he question presented by a motion for directed verdict is

8 whether there is substantial evidence supporting the charge”). “Substantial evidence

9 is relevant evidence that a reasonable mind might accept as adequate to support a

10 conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

11 [T]he test to determine the sufficiency of evidence in New Mexico . . . 12 is whether substantial evidence of either a direct or circumstantial nature 13 exists to support a verdict of guilt beyond a reasonable doubt with 14 respect to every element essential to a conviction. A reviewing court 15 must view the evidence in the light most favorable to the state, resolving 16 all conflicts therein and indulging all permissible inferences therefrom 17 in favor of the verdict. This court does not weigh the evidence and may 18 not substitute its judgment for that of the fact finder so long as there is 19 sufficient evidence to support the verdict.

20 State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (citations omitted).

21 Defendant raises two arguments concerning sufficiency of the evidence used

22 to convict him of violating an order of protection by placing a telephone call to

23 Tammy Smith, his former girlfriend. First, he argues that no “contact” occurs when

2 1 the protected person to whom a phone call is directed does not answer the phone. We

2 propose to disagree for the reasons set forth in the district court’s memorandum

3 opinion. [RP 86] By dialing Tammy Smith’s number, Defendant attracted her

4 attention, causing her to look at her phone’s caller ID and making her aware that the

5 call was from Defendant and that if she answered the call she would be talking to him.

6 We do not understand the term “contact” to include any requirement of a response

7 from the person assertedly contacted. We conclude, for purposes of domestic violence

8 orders of protection that forbid contact, that making a phone call to a protected person

9 constitutes contact where the person becomes aware that the call is from the restrained

10 person, regardless of whether the protected person answers the call.

11 Defendant also argues that there was insufficient evidence that he was the

12 person who made the call. His memorandum in opposition to our calendar notice

13 argues that the metropolitan court relied on “mere speculation, guess[,] or conjecture”

14 in concluding that he was the person on the other end of the line and that he

15 intentionally called Smith. [MIO 2] “A conviction cannot stand if the evidence must

16 be buttressed by surmise and conjecture, rather than logical inference in order to

17 support [the] conviction.” State v. Tovar, 98 N.M. 655, 657, 651 P.2d 1299, 1301

18 (1982) (internal quotation marks and citation omitted). We conclude that the

19 circumstantial evidence before the metropolitan court sufficiently supported an

3 1 inference that the caller was Defendant. For several reasons, the metropolitan court’s

2 conclusion that it was Defendant who made the call was more than “surmise and

3 conjecture.” First, it was reasonable for the judge to assume that the phone number

4 appearing on Smith’s phone got there as a result of a call being made from

5 Defendant’s phone and not through some electronic anomaly or other means. Second,

6 while there was some evidence that Defendant also used the phone for his plumbing

7 business, the fact that the call came at 8:41 p.m., after normal business hours, suggests

8 that Defendant made the call. [RP 83] Third, when one of the officers called the

9 phone number at approximately 11:25 p.m., the recorded greeting identified the

10 number as belonging to Defendant and his business, 3J’s Plumbing. [RP 83, 86]

11 Fourth, Defendant personally returned the officer’s call at 1:59 a.m. [RP 83-84]

12 Thus, in order for some other person to have made the call, the phone would have to

13 have been in that other person’s possession at 8:41 p.m. and returned to Defendant

14 sometime before 1:59 a.m. Considered together and viewed in the light most

15 favorable to the State, resolving all conflicts and indulging all permissible inferences

16 in favor of the verdict, we hold that these circumstances are adequate to prove beyond

17 a reasonable doubt that Defendant contacted Smith in violation of the order of

18 protection. See id.

19 In reviewing the evidence that was presented at trial in metropolitan court, the

4 1 district court’s memorandum opinion also mentions that the call made at 8:41 p.m.

2 was “just prior to the incident involving Tammy’s new car.” [RP 86] The court

3 appears to reasonably infer a connection between the two events, in further support

4 of Defendant’s conviction.

5 For the reasons set forth above, we affirm Defendant’s conviction.

6 IT IS SO ORDERED.

7 ________________________________ 8 CELIA FOY CASTILLO, Judge

9 WE CONCUR:

10 _________________________________ 11 JONATHAN B. SUTIN, Chief Judge

12 _________________________________ 13 MICHAEL D. BUSTAMANTE, Judge